Police, Crime, Sentencing and Courts Bill
Monday 15th March 2021
(3 years, 1 month ago)
Commons ChamberRead Full debate Police, Crime, Sentencing and Courts Act 2022 Read Hansard Text Read Debate Ministerial Extracts
Madam Deputy Speaker (Dame Rosie Winterton)
Before I call the Home Secretary, I want to remind the House of what was said earlier regarding the Sarah Everard case. Charges have now been brought in that case. The sub judice resolution does not apply formally when the House is legislating. However, I would urge all Members to exercise caution and not say anything about the detail of the case or the identity of those against whom charges have been brought that might affect any subsequent court case.
The Secretary of State for the Home Department (Priti Patel)
I beg to move, That the Bill be now read a Second time.
Just one week after celebrating the achievement of women around the world on International Women’s Day, I would like to open this debate by once again expressing my sadness at the horrific developments in the Sarah Everard case. My heartfelt thoughts and prayers are with Sarah, her family and friends at this unbearable time. This is also a stark moment to reflect on what more we can do to protect women and girls against crime, and the events of the last few days have rightly ignited anger at the danger posed to women by predatory men—an anger I feel as strongly as anyone.
This Government were elected just over a year ago on a clear manifesto commitment to support the police and to keep our country safe. It is vital that we continue to deliver on that promise to the British people, and our commitment to law and order is having a real impact across the country. There are already over 6,600 more police officers in our communities, thanks to the unprecedented campaign to recruit an additional 20,000 more police officers. Our crackdown on county line drug gangs is delivering results, particularly in London, the west midlands and Merseyside. The police have made more than 3,400 arrests, shut down more than 550 deal lines and safeguarded more than 770 vulnerable people. Last year, we saw the UK’s biggest ever law enforcement operation strike a blow against organised crime, with over 1,000 arrests, £54 million of criminal cash seized, and 77 firearms and over two tonnes of drugs seized. The Police, Crime, Sentencing and Courts Bill will go further still in our mission to back the police, to make our communities safe and to restore confidence in the criminal justice system.
We ask our brave police officers to do the most difficult of jobs—they run towards danger to keep us all safe—and that is why I have worked closely with the Police Federation in developing this Bill. I would like to pay tribute to the chair of the Police Federation, John Apter, for his constructive way of working since I became Home Secretary, admirably fighting for his members every single day. He has voiced his members’ concerns to me directly, and I have acted upon them.
This Bill will enshrine in law a requirement to report annually to Parliament on the police covenant, which sets out our commitment to enhance support and protection for those working within or retired from policing roles, whether paid or as volunteers, and their families. The covenant will initially focus on physical protection and support for families, officers and staff, and their health and wellbeing, with a duty to report in place to ensure parliamentary scrutiny.
Despite all that they do, emergency workers are still subject to violence and abuse. The statistics paint an alarming picture. There were more than 30,000 assaults on police officers in the year to March 2020, and over the past year we have all seen the reports of people deliberately coughing at our emergency workers, claiming to have coronavirus and threatening to infect them. There have been too many disgusting examples of police officers and ambulance drivers being spat at and violently attacked as they go out to work day after day to make sure that the rest of us are safe and cared for.
Gareth Johnson (Dartford) (Con)
This Bill doubles the maximum sentence for an assault on emergency workers. Does the Home Secretary therefore share my astonishment at the irony that the Labour party will now be voting against that provision?
Priti Patel
My hon. Friend is absolutely right. Having personally spent much time with our frontline officers, the very people who put themselves in harm’s way to keep us safe, I think that is a really stark point, and a reminder of which party is backing the police and which party simply is not.
Priti Patel
I will in just a second.
Having personally spent time with those on the frontline, I have also seen the impact of these incidents on officers and on their families. We cannot tolerate such acts, which is why the punishment must fit the crime, and the Bill will double the maximum penalty for assaults on emergency workers from 12 months’ to two years’ imprisonment.
Chris Bryant
I urge the Home Secretary not to play party politics with this particular bit. I introduced, as a private Member’s Bill, the legislation that she is acting on, and at the time I argued very strongly in favour of two years being the maximum sentence. I was dissuaded by the right hon. Member for Esher and Walton (Dominic Raab), who is now the Foreign Secretary; by the right hon. Member for Maidenhead (Mrs May), the former Home Secretary; and by a lot of Conservative MPs, who did not want to support the legislation at all.
I need to be persuaded that the Government have used the legislation that is on the statute book at present. For instance, the Home Secretary refers, quite rightly, to people spitting at police officers. It is disgusting and it is a form of assault, but unfortunately the sentencing guidelines still have not been updated since the introduction of my legislation to make sure that spitting is an aggravating factor and will be treated as an offence.
Priti Patel
There are many important points that I would be happy to debate about the police covenant and giving our police officers—the frontline men and women who keep us safe day in, day out—the protection that they and their family members deserve. The hon. Gentleman is right about the sentencing structure and guidance, but we have had support from the Crown Prosecution Service regarding the assaults that I have referred to, particularly over the last few months in relation to coronavirus, when we have seen spitting and assaults on officers.
This Bill is a criminal justice Bill as much as a policing Bill. It is an end-to-end Bill to ensure that the sentence fits the assault and the crime. The Bill will double the maximum penalty for assaults on emergency workers from 12 months’ to two years’ imprisonment, recognising that our officers and emergency workers should rightly be protected. Having spent much time with those on the frontline and seen the impact and the sheer volume of these incidents, I think it is right that we have that provision in this Bill.
The Government fully recognise the professionalism and skills of our highly trained police officers, and that includes the specialism of police drivers. Too often, they are driving in high-pressure situations pursuing suspects on the road while responding urgently to incidents. Through this Bill, we will introduce a new test to assess a police officer’s standard of driving. Should an officer be involved in a road traffic incident, this new test will allow the courts to judge their standard of driving against that of a competent and careful police constable with the same level of training, rather than that of a member of the public, which is how it stands at present.
The Government back the police and will never allow those with an extreme political agenda, such as those calling for the defunding or abolition of the police, to weaken our resolve when it comes to protecting the police. We back the police and will do everything we possibly can to make our community safer.
I have heard the call of the British public for safer communities, and that means cracking down on violent crime, which has a corrosive impact on towns and cities across the country. That includes gangs peddling drugs, as a result of which law-abiding citizens live in fear and, tragically, teenage children are stabbed to death. This senseless violence has absolutely no place in our society.
Mr Toby Perkins (Chesterfield) (Lab)
I support entirely the need to make sure that sentences fit the crime, but is not the reality that courts have huge backlogs and are reluctant to jail people who should be in jail, because they know that our prisons are overcrowded? Does not this Government’s failure on courts and prisons massively undermine what the right hon. Lady says about sentencing?
Priti Patel
Absolutely not. The Government are determined in their resolve—through this legislation, and delivering on our manifesto commitments—to bring in sentences that fit the crime. This is an end-to-end criminal justice Bill. If the hon. Gentleman and hon. Members listen to this afternoon’s debate, they will hear about the measures that are being introduced, and about the Government’s longer-term response. That includes the wider work that the Government are undertaking with the courts and the CPS; the changes that we need to make not just to sentencing, but to our laws; and the support that we are giving to our police.
Sir Edward Leigh (Gainsborough) (Con)
We do not want to waste police time. Over the years I have formed an unlikely alliance with people such as Peter Tatchell, particularly with the Anti-social Behaviour, Crime and Policing Act 2014, to ensure that we enshrine in law your ability, Madam Deputy Speaker, my ability, or anybody’s ability to insult people and cause offence. Thinking particularly of clause 59, will my right hon. Friend assure me that nothing in the Bill will have a chilling effect on the right to debate and, if necessary, cause offence?
Priti Patel
When it comes to freedom of expression, my right hon. Friend knows my views and those of this Government. Prior to taking interventions I spoke about the corrosive impact of violent crime across our towns and cities. Tragically, too many young children—teenagers—have been stabbed to death in towns and cities of the UK. Such senseless violence has no place in our society. I have met too many mothers whose children have been murdered on the streets of our city, and I have seen the raw pain and distress of parents grieving for their child, and the utter devastation they are forced to endure.
We are proud that this Government have put more police officers on the beat, but tough law enforcement can be only part of the solution. We must do much more to understand and address the factors that drive serious violence, so that we can prevent it from happening in the first place. Through the Bill, we will introduce a serious violence duty, which will work to bring public bodies, including the police and local authorities, to work together as one, to share data and information across our communities, and work together to save lives. I thank many of my predecessors for their work on that, particularly my right hon. Friend the Member for Bromsgrove (Sajid Javid).
I make no apology for finding new ways to protect our communities and save the lives of our young people. Whenever lives are tragically lost as the result of serious violence, we must do everything we can to learn from what has happened. Homicides involving offensive weapons such as knives make up a large and growing proportion of all homicides, yet no legal requirement is currently placed on local agencies to understand what has happened after each incident. We are therefore introducing the requirement for a formal review to be considered, where a victim was aged 18 or over and the events surrounding their death involved the use of an offensive weapon. The new reviews will ensure that we learn lessons from such cases, and produce recommendations to improve our response to serious violence.
Every time someone carries a blade or a weapon, they risk ruining their own lives and those of others. Every stabbing leaves a trail of misery and devastation in its wake. Our new serious violence reduction orders will help the police to protect our communities better, by giving officers the power to stop and search those already convicted of crimes involving knives and offensive weapons. The orders will help to tackle prolific and higher-risk offenders, and help to protect individuals from exploitation by criminal gangs. That is exactly what I mean when I say that we are making our communities safer.
There will be concerns about disproportionality, but our aim is for these orders to enable the police to take a more targeted approach, specifically in relation to known knife carriers. Unfortunately, data from 2018-19 indicate that the homicide risk for young black people is 24 times higher than that for young white people. That is appalling. As long as young black men are dying and their families are disproportionately suffering, we cannot stand back, and I cannot apologise for backing the police when it comes to stop and search. The Government will work with the police to gather data on the impact of the orders to deliver real and lasting results.
Victims and witnesses must have the full protection of the law while the police conduct their investigations. We will reform the pre-charge bail regime to encourage the police to impose pre-charge bail, with appropriate conditions where it is necessary and proportionate to do so, including where there is a real risk to victims, witnesses and the public. We hope that that will provide reassurance and additional protection for alleged victims, for example in high-harm cases such as domestic abuse.
Peter Kyle (Hove) (Lab)
Since the Home Secretary’s Government first promised a victims Bill, there have been 1 million sexual offences and 350,000 rapes. This Bill is 300 pages long and barely mentions women or children. The explanatory notes do not mention women or girls once. Will she get to her feet and apologise finally for missing this fantastic opportunity to put victims at the heart of our criminal justice system?
Priti Patel
I will take no lectures from the hon. Gentleman or the Opposition when it comes to supporting victims. As the former chair of the all-party parliamentary group on victims, I and this Government have absolutely put victims at the heart of all our work, as have my predecessors in all their work.
Priti Patel
The hon. Gentleman can yell from the Back Benches, but it is important to remember that when it comes to protecting victims, there are many victims of different offences and different crimes. I think he and all Members of this House should recognise that this Bill will absolutely provide additional protections for victims in high-harm cases such as domestic abuse and many other cases.
These reforms will be named Kay’s law in memory of Kay Richardson, who was tragically killed following the release of her husband under investigation, rather than on pre-charge bail, despite evidence of previous domestic abuse. It is impossible to imagine the impact of such an horrific crime on the victim’s loved ones, and we all have a responsibility to do all we can to prevent more victims and more families from suffering as they have. That is the point and the purpose of this Bill—it is an end-to-end Bill.
Before Opposition Members start to prejudge any aspect of this Bill and this Government’s work on victims, there will be plenty of time to debate this Bill. There will also be plenty of time to debate the role of victims and how the Government are absolutely supporting victims.
An essential responsibility and a duty on us all is protecting our children. I am truly appalled and shocked by each crime and every case of hurt and harm against young people from sexual abuse and exploitation. It is impossible to comprehend the motivation of those who perpetrate offences against children, and we have been reviewing the law in this area carefully to ensure that any changes we make are the right ones. Through this Bill, I intend to extend the scope of the current legislation that criminalises sexual activity with a child under the age of 18 by people who hold defined positions of trust to include faith leaders, sports coaches and others who similarly coach, teach, train, supervise or instruct a sport or religion on a regular basis.
This issue has some brilliant and long-standing champions. I thank my hon. Friend the Member for Chatham and Aylesford (Tracey Crouch), who even throughout her recent cancer treatment worked with me to ensure that we address this significant issue. I also thank the hon. Member for Rotherham (Sarah Champion), who continues to stand by the many victims who were abused as youngsters and who were failed and ignored by those who should have supported them. I also thank Baroness Grey-Thompson for her tireless work on this issue.
Through this Bill, we will also introduce an important measure to help bring closure to families whose loved ones have gone missing. The House will know the horrific case of Keith Bennett and the struggles his family have gone through to find his body since his murder. In 2017, the police believed they had a further lead when it came to light that Ian Brady had committed papers to secure storage before his death, but a gap in the law meant that the police were unable to get a search warrant to seize those papers.
I know this is an important issue—indeed, it has been raised by the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper) and others. I am therefore introducing new powers enabling officers to seize evidence that they believe may help to locate human remains outside of criminal proceedings, such as in missing persons cases, suicides and homicide cases where a suspect is known but cannot be convicted, such as where the suspect themselves has died. As I said to Keith’s brother, Alan, when I met him recently, I am absolutely determined to give the police all the powers they need to access any evidence that could help them to bring some closure in cases such as Keith’s. While I cannot guarantee that a loved one will be found, I can make sure that families are provided with every avenue that our legal system will allow in the pursuit of justice. This is why we emphasise the need to make our communities safer, and that is exactly what the Bill does.
The right to protest peacefully is a cornerstone of our democracy and one that this Government will always defend, but there is, of course, a balance to be struck between the rights of the protester and the rights of individuals to go about their daily lives. The current legislation the police use to manage protests, the Public Order Act 1986, was enacted over 30 years ago. In recent years, we have seen a significant change of protest tactics, with protesters exploiting gaps in the law which have led to disproportionate amounts of disruption. Last year, we saw XR blocking the passage of an ambulance and emergency calls, gluing themselves to a train during rush hour, blocking airport runways, preventing hundreds of hard-working people from going to work. Finally, I would like to gently remind the House that on one day last year many people across the country were prevented from reading their morning newspapers due to the tactics of some groups—a clear attempt to limit a free and fair press, a cornerstone of our democracy and society.
The Bill will give the police the powers to take a more proactive approach in tackling dangerous and disruptive protests. The threshold at which the police can impose conditions on the use of noise at a protest is rightfully high. The majority of protesters will be able to continue to act and make noise as they do now without police intervention, but we are changing it to allow the police to put conditions on noisy protests that cause significant disruption to those in the vicinity. As with all our proposals, the police response will still need to be proportionate. The statutory offence of public nuisance replaces the existing common law offence. Our proposals follow the recommendations made by the Law Commission in 2015. The threshold for committing an offence is high, with any harm needing to affect the public or a cross-section of the public and not just an individual.
We must give the courts the tools to deal effectively with the desecration of war memorials and other statues. Through the Bill, we will toughen the law where there is criminal damage to a memorial by removing the consideration of monetary value of damage. Those changes will allow the court to consider the emotional and sentimental impact, not just financial, so that the sentence can reflect the severity of harm caused. For what it is worth, that does not just mean statues. It will cover a range of memorials with low monetary but high sentimental value, for example gravestones, war memorials, roadside tributes to people killed in car crashes and the memorials to people who have been murdered, such as the Stephen Lawrence memorial. I would like to thank my hon. Friends the Members for Stoke-on-Trent North (Jonathan Gullis) and for Bracknell (James Sunderland) for their important work on this issue.
I am also clear that no one should have to put up with disturbances and disruptions on their doorstep. Unauthorised encampments can create significant challenges for local authorities, and cause distress and misery to those who live nearby. As we pledged in our manifesto, we will make it a criminal offence to live in a vehicle on land without permission and we will give the police the power to seize vehicles if necessary. I can assure the House that the new offence has been framed in such a way to ensure that the rights of ramblers and others to enjoy the countryside are not impacted.
Lloyd Russell-Moyle (Brighton, Kemptown) (Lab/Co-op)
What consideration has the right hon. Lady given to the rights of generations of Travellers and Gypsies, who have often been around longer than some of our property laws, who might want to pull up on a roadside for a night? What consideration of their rights has been given in the Bill, which will automatically criminalise them?
Priti Patel
The hon. Gentleman will be aware that there was an extensive public consultation on this issue and all those points were considered at the time.
Aaron Bell (Newcastle-under-Lyme) (Con)
The Home Secretary may remember coming to visit Wolstanton Marsh in my constituency during the election campaign. Residents around Wolstanton have long suffered as a result of the unauthorised encampments on the marsh. Will she join me in welcoming what the Bill will do for them? This is a manifesto pledge delivered.
Priti Patel
I recall a visit to my hon. Friend’s constituency, and he is right. Many colleagues, and many members of the public through the public consultation, made the point that unauthorised encampments cause misery and harm to those in the local communities affected by them. There have been many discussions with colleagues across the House on this point, and with local authorities, which more often than not bear the brunt of the costs and consequences, alongside the police.
In September, my right hon. and learned Friend the Lord Chancellor published a White Paper setting out our vision for a smarter approach to sentencing, and now we are introducing legislation to establish this in law. We need a system that is robust enough to keep the worst offenders behind bars for as long as possible, but agile enough to give offenders a fair start on their road to rehabilitation. Sexual and violent offenders must serve sentences that reflect the severity of their crimes, helping to protect the public and give victims confidence that justice has been served. These offences are committed predominantly against women. Through this Bill, rapists and other serious sexual predators sentenced to a standard determinate sentence of four years or more will henceforth serve at least two thirds of their sentence in custody. Rapists sentenced to life imprisonment will similarly serve longer in custody before they are considered for release on licence. The Bill also strengthens the framework for the management of sex offenders. In particular, we are legislating so that courts can attach positive requirements to a sexual harm prevention order or a sexual risk order so that, for example, a perpetrator can be required to attend a behavioural change programme.
The measures in this Bill build on those in the Domestic Abuse Bill, which will return to this House after Easter. Among the changes we have brought forward in the Lords is a new offence of non-fatal strangulation and the criminalising of threats to disclose intimate images. I know that these additions to the Bill will be welcomed by the right hon. and learned Member for Camberwell and Peckham (Ms Harman) and my right hon. Friend the Member for Romsey and Southampton North (Caroline Nokes). We have had discussions already this afternoon about violence against women and girls and what more we can do; these measures are fundamental to restoring confidence in the criminal justice system.
We also recognise that the reoffending rate for children is high, and that is why we are taking forward measures to provide courts with stronger alternatives to custody. In the Bill, we are providing custodial sentencing options for the most serious crimes, alongside alternatives that will allow youth offenders to be effectively managed and rehabilitated in the community. That will ensure that judges and magistrates are able to make the most appropriate decisions in the best interests of the child and of the public. In recognition of the fact that children now in custody are much more likely to have complex needs, we will introduce measures to enable the trialling of secure schools. They will be schools with security rather than prisons with education, and they will have education, wellbeing and purposeful activity at their heart.
The courts play a fundamental role in our criminal justice system. During the pandemic, we have seen the benefits of enabling participation in proceedings remotely or by live video or audio link. We want to put these temporary provisions on a permanent footing, giving judges better options to support the effective and efficient running of their courts and underpinning the principle of open justice. Our aim is to modernise our courts and tribunals so that there are more opportunities to attend and observe hearings remotely, shorter waiting times and less unnecessary travel. I can assure the House that these advantages will never be taken from the right to a full hearing in court. This will always be available where needed, and where the court considers it to be in the interests of justice. Trials will continue to take place in court. We also want to further improve accessibility to our justice system for people with disabilities.
Peter Kyle
At the moment, if somebody suffers a sexual assault or rape, they will wait two years before they have their moment in court. Will the Home Secretary agree to amend the Bill so that people who are victims of rape or sexual assault will be fast-tracked straight into the court system and will no longer have to wait two years?
Priti Patel
It is absolutely right that we look at every single measure and approach to ensure that victims of rape receive justice. As the hon. Gentleman will know, the rape review is taking place and will soon be published.
We want to improve accessibility to our justice system for people with disabilities. Reasonable adjustments can be made for most people with disabilities to enable them to complete jury service. However, the law has to date prevented deaf people who require the services of a sign language interpreter from having an interpreter in a jury deliberation room with them. We are changing that to ensure that all deaf individuals are able to serve as jurors unless the circumstances of a particular case mean that it would not be in the interests of justice for them to do so.
As I said at the beginning, this Government were elected on a clear manifesto commitment to keep our country safe. That is what the British people rightly expect, and that is what this Bill will deliver, by supporting the police, by preventing and cutting crime and by restoring confidence in the criminal justice system, because giving people the security they need to live their lives as they choose is an essential part of our freedom. As we emerge from the coronavirus pandemic, we will build back safer and increase the safety and security of our citizens. This Bill will enable us to do exactly that, and I commend it to the House.
Madam Deputy Speaker (Dame Rosie Winterton)
I should inform Members that we will start with a time limit of five minutes, but it will go down very quickly to three minutes.
Nick Thomas-Symonds (Torfaen) (Lab)
The House meets today in the shadow of the tragic loss of Sarah Everard, and I know the whole House will be united in sending our thoughts to her loved ones at this time of unimaginable pain. In an incredibly moving tribute, her family said:
“She was strong and principled and a shining example to us all. We are very proud of her and she brought so much joy to our lives.”
Sarah was just walking home at night—a freedom that sounds so simple, it should be unquestionable. But in recent days, we have heard extraordinarily powerful testimony yet again from women across the country about the dangers they face all too regularly—women speaking of suffering vile harassment on the streets, being told to walk with keys between their fingers to protect themselves and being told they should stay at home. It is not women and girls who should be changing their behaviour because of danger. We must change as a society, and as men in particular, we must do better by listening and, most importantly, acting.
I want to turn immediately to the distressing scenes we saw at Clapham. I share the anger there is about the policing of this. Deep and profound lessons need to be learned, and there must be change. People should have been able to mark this moment peacefully and safely. We need to find a way for people to show solidarity safely and in a covid-secure way. As I mentioned in response to the statement earlier today, the Mayor of London has shown leadership on this, asking Her Majesty’s inspectorate of constabulary to conduct an independent investigation alongside the Independent Office for Police Conduct.
Saturday’s event was not a protest; it was a vigil. But there is no doubt that it brings into sharp focus the proposed measures in this Bill about curtailing the right to protest—the right to give public expression to deep feeling and the right to campaign for change. The scenes from Saturday should be a red warning signal to the House that rushing through ill-judged and ill-thought-out restrictions on the right to protest would be a profound mistake that would have long-lasting consequences and do great damage to our democracy. The right to protest is a cornerstone of that democracy.
On our statute book, we already have the Public Order Act 1986, together with other existing powers to police protests. It is of course right that protests should be peaceful and legitimate—nobody would suggest otherwise—but the Bill significantly expands the conditions that can be imposed on protests. Unbelievably, it includes
“the noise generated by persons taking part”
causing people “serious unease” as a reason to warrant police-imposed conditions. I do not know about Government Members, but the protests that I have been to have certainly generated a lot of noise.
There is also a penalty in the Bill for someone who breaches a police-imposed condition on a protest when they “ought to have known” that the condition existed. That would have the effect of criminalising people who unwittingly breach conditions.
Jacob Young (Redcar) (Con)
Does the right hon. Gentleman not agree that no one should be able to block an ambulance from crossing a road or bridge, and that no one should be able to block a printing press from printing newspapers? If he does agree, why will he not vote for the Bill?
Nick Thomas-Symonds
Because the existing laws deal with those issues. The Conservative party is not making the case for the additional powers.
The right to protest to those in power—including the Under-Secretary of State for the Home Department, the hon. Member for Croydon South (Chris Philp), who waves his Order Paper at me—is extremely precious. I declare an interest as a proud trade unionist and refer to my relevant entry in the Register of Members’ Financial Interests on support from the Unite union and the GMB. Whether it is our trade unions or another group that wants to make its views known loudly in our streets, we curtail their ability to do so at our peril. The right to protest is one of our proudest democratic traditions, and that this Government seek to attack it is to their great shame. Our existing laws on protest strike a careful balance between legitimate rights and the need to keep order. Our laws on protest do not, and never should, seek to shield those in power from public criticism and public protest. We on the Opposition Benches will oppose a Bill that puts at risk the whole right to protest, hard-won by previous generations, that is part of the fabric of British democracy. In seeking to preserve the right to protest, we on these Benches stand in a long tradition of British democracy. It is this Government who seek to undermine those traditions.
Lloyd Russell-Moyle
Does my right hon. Friend agree that the inclusion of parts 3 and 4 of the Bill undermines victims, the police force and the whole point of what the Government are trying to do to reform our criminal justice system and make it work for the people? The Government should withdraw parts 3 and 4 and get on with deliberating on some of the detail that could be half good.
Nick Thomas-Symonds
My hon. Friend is absolutely right. Parts of the Bill could have been removed and we could have had a cross-party discussion on making the rest of it work. The Government have failed to take that approach.
James Gray (North Wiltshire) (Con)
Does the right hon. Gentleman not agree that for him to vote against the entire Bill, much of which is extremely good and much of which the Labour party has campaigned for for many years, because he believes that there may be some curtailment of free speech—I do not believe that is the case—in one small part of the Bill, would be to throw the baby out with the bath water? Surely that is the wrong thing to do.
Nick Thomas-Symonds
I will come to other concerning aspects of the Bill in a moment, but it says a great deal that when I am talking about the great British tradition of the right to protest, it is a Conservative Member of Parliament who stands up to challenge it. That is quite remarkable.
Let me turn to what is needed to address the appalling issue of violence against women and girls. To our shame as a country, we see unacceptable levels of female homicides at the hands of men every year. Labour is committed to working on a cross-party basis to bring forward additional protections; to deliver on the inadequate sentencing for domestic homicides; and to address unacceptable and intimidating street harassment. Labour is committed on stalking, on improving rights for victims of crime, on better domestic abuse services and on recognising misogyny as a hate crime.
There are wider issues, too. On 29 January, I wrote to the Government, together with the shadow Secretary of State for Justice, my right hon. Friend the Member for Tottenham (Mr Lammy); the shadow Housing Secretary, my hon. Friend the Member for Bristol West (Thangam Debbonaire); the shadow Minister for domestic violence and safeguarding, my hon. Friend the Member for Birmingham, Yardley (Jess Phillips); and the shadow Minister for victims and youth justice, my hon. Friend the Member for Hove (Peter Kyle). We raised the awful practice of sex for rent—people coerced into providing sex in lieu of payment—and put forward proposals. We wrote to the Secretary of State for Justice, the Home Secretary and the Secretary of State for Housing, Communities and Local Government; not one of them has even bothered to reply. That shows that this is a Government who too often like to talk tough but who fail to take the action needed. In its current form, the Bill does not meet the ambition of the time and will be a terrible missed opportunity.
Peter Kyle
As a signatory to that letter, campaigning on this means a great deal to me. Actually, I contacted the two previous Home Secretaries and Amber Rudd, when she was Home Secretary, set a workstream up to tackle this issue. It has been cancelled. We have been trying very long and very hard to give protection to those 30,000 women every year who are propositioned for sex in return for rent. Is it not time that this cross-party offer is taken up?
Nick Thomas-Symonds
Absolutely. The cancellation of that workstream is entirely wrong. I say to the Home Secretary that the offer is open on that. The letter has been sent to the Home Office; reply and engage with us on the Opposition Benches.
Priti Patel
I am actually not aware of that workstream being cancelled or the letter, so I would be more than happy to come back to the House and follow up with the right hon. Gentleman and the hon. Member for Hove (Peter Kyle).
Nick Thomas-Symonds
I am grateful for that, and when the Home Secretary returns to the Home Office, I would be grateful if she could dig out the letter and respond. That would be extremely useful—it was sent on 29 January, for reference.
Chris Bryant
As my right hon. Friend knows, I, and I think we as a party, support clause 2, because we believe that emergency workers should not be subject to the terrible assaults that there have been over the years. But this does pose a problem, because a lot of women who work in shops are subjected to exactly the same problems and are often terrified to go into work. We had a terrible incident in the Co-op in Penygraig less than a year ago. Is there not a job of work that we need to do to make sure that all workers, but in particular women workers working in shops, are also protected?
Nick Thomas-Symonds
My hon. Friend is absolutely right and I will come on to that issue in a moment, when I have some proposals to put forward.
Ministers risk sending out an awful message on the level of importance that they attach to violent crime. The Government want a maximum penalty of 10 years for damage to statues. No Government should ever send out a signal that the safety of a statue carries greater importance in our laws than the safety of women, but, as currently drafted, this Bill would allow someone to receive a sentence of up to 10 years for attacking the statue of a slave trader when rape sentences start at five years. That does not reflect the priorities of the people.
The Parliamentary Under-Secretary of State for the Home Department (Chris Philp)
The shadow Home Secretary should well know and should honestly tell the House that the maximum sentence for rape is life.
Nick Thomas-Symonds
I asked the Home Secretary earlier in the statement to tell me how many people convicted of rape were actually sentenced to life imprisonment, and she could not answer the question. The answer is hardly any. Ninety-nine per cent. of reported rapes do not even get close to a court, and then we hear the Minister trying to come to the Dispatch Box to boast about the rape statistics—absolutely appalling.
Peter Kyle
My right hon. Friend and the whole Labour party and Opposition agree that protecting private and public property is incredibly important, but it is about balance. If an angry mob throws a statue into water and then turns around and throws a woman or a child into water, can he tell us which one, if the Bill passes and goes into statute, gets the longer sentence?
Nick Thomas-Symonds
My hon. Friend is absolutely right about the importance that is being put on statues over women, and the Government should be ashamed. This comes at a time when—
Nick Thomas-Symonds
In one moment, because I need to deal with the issue of the rape statistics that has been raised. We are seeing fewer people being prosecuted and convicted for rape than at any time since records began, and that is at a time when the number of reported rapes is increasing. What message do the Government think that that sends to victims about coming forward? As I said to the Minister—he is a Justice Minister; he really should be concentrating on trying to deal with this problem—99% of reported rapes do not even get near a court. That is absolutely shameful. I say to the Home Secretary: think again about the Government’s priorities on this, make changes, such as end-to-end support for victims pre-trial and post-trial, and fast-track these trials through our system, instead of the two years that there have to be at the moment.
Steve Brine
If the desecration of our war memorials does not move the right hon. Gentleman, can I check this one with him? Two of my constituents lost their daughter when somebody impaired by the incorrect use of prescription drugs careered across the carriageway and hit her car head-on at high speed, killing her outright. In part 5 of the Bill, on road traffic, we introduce clause 64, on increased penalties for causing death by dangerous driving. Does the shadow Home Secretary support that and will he vote for it?
Nick Thomas-Symonds
I do absolutely support that and I will come to it in a moment but, to deal with the first part of the hon. Gentleman’s question, he seemed to imply that I did not understand the value of war memorials. I absolutely do. The difference is that this Bill has now been extended to every form of memorial, including statues of slave traders. It really sums up the problem with the Government’s approach. If they genuinely wanted to introduce proportionate measures to protect war memorials, they could have done so and not introduced the measures that they actually have.
I come to the sentencing elements of the Bill. It is of course right to extend whole-life orders to cover the premeditated murder of a child. The tragic murder of Ellie Gould on 3 May 2019 highlights the failure of the justice system to impose strict enough sentences on those who murder in a domestic setting and the issue of the age of the killer. But this measure is insufficient. The current approach to sentencing seems to forget the context in which many female victims are killed—in the home, with a weapon taken from that location. The minimum tariff in such cases is 15 years, but it is 25 if the weapon is brought to the scene of the crime. That is a systemic problem; violence against women and girls seems to be seen as less serious than other forms of violence. This has to be addressed.
The Opposition also say that tougher sentencing on its own is not enough. We know that wider change across our society is needed, and we know that the Government who have decimated our public services over the past 11 years have totally lost sight of addressing the causes of crime as well, with the sadly predictable consequences of rising violent crime in every single police force area of England and Wales. The Bill is shamefully short of measures to address the unacceptable violence women and girls face. In that, it fails woefully to meet the urgent need for change.
James Gray
The right hon. Gentleman mentioned my constituent, Ellie Gould, and her appalling murder two years ago. He is right to say that we campaigned for the issue of premeditation, as proved by taking a weapon to the scene, to be removed. I hope therefore that he will vote for the Bill this evening. There is one counter-argument to that, however. Abused women at home may well defend themselves with a knife, bottle or other weapon at home, and if that were to happen and it became premeditated, that defence would be lost.
Nick Thomas-Symonds
With great respect, the hon. Gentleman identifies a complexity, but I think he agrees with me that that difference in the law—the 15 and 25-year tariffs—is not justifiable as it stands and needs to be equalised.
The need for overdue action brings me to elements of the Bill that have taken too long to introduce, but which we welcome. My hon. Friends, often working across the parties, have campaigned passionately on important issues and they have secured change. It is welcome that the Government have finally brought before Parliament the long-awaited legislation to increase the maximum sentence for assault on emergency service workers to up to two years in prison. I want to pay special tribute to the tireless work of my hon. Friends the Members for Rhondda (Chris Bryant) and for Halifax (Holly Lynch) in securing this change. They have been campaigning since 2018. Indeed, on 27 April 2018, when the matter of two-year sentences was considered, the then Minister said that
“it would begin to create the kind of situation that exists in Russia, which I hope will never exist in the UK”.
He went on to say that such sentences would create
“a category of a superior form of human being with an entitlement to a quite separate form of protection.”—[Official Report, 27 April 2018; Vol. 639, c. 1193.]
Those comments were, frankly, deplorable and the Government’s conversion to the two-year penalty is to be welcomed.
The pandemic has been a powerful reminder, not that one should be needed, of the extraordinary bravery and commitment that our frontline emergency workers have shown throughout. They have put themselves in harm’s way to keep us safe day in, day out, even at the very height of the first wave, when tests and PPE were so shamefully hard to come by. Despite that work, emergency service workers have been subjected to a rising number of attacks in this past year, with a 31% increase in attacks compared with in 2019.
Stuart Anderson (Wolverhampton South West) (Con)
Recently in Wolverhampton, two ambulance staff were stabbed. I am watching you go through this Bill saying that you welcome and agree with so many things, so why on earth have you asked your party to vote against it? It just makes no sense.
Madam Deputy Speaker (Dame Eleanor Laing)
Order. I do not want to stop the debate for this, but you do not call the person who is speaking “you”. “You” means the Chair; the right hon. Gentleman is the right hon. Gentleman. I call the right hon. Gentleman.
Nick Thomas-Symonds
Yes, I was not aware of your position on the Bill, Madam Deputy Speaker. I have not finished my speech yet, so the hon. Member for Wolverhampton South West (Stuart Anderson) will just have to wait for me to complete my argument.
As welcome as this measure is, the Labour party is clear that it does not go far enough. As my hon. Friend the Member for Rhondda said, we need to consider the workers on the frontline of the pandemic who should also be given that level of protection. First, it does not cover the whole of the NHS family, so we are calling for protections to be extended to social care workers as well. Throughout the pandemic, the range of frontline service workers who put themselves at risk to serve our community has been clear.
Mr Perkins
I wonder whether the hon. Member for Wolverhampton South West (Stuart Anderson) has actually hit on something that might be helpful to the House. There are many aspects of the Bill that we all agree on. If only the really divisive aspects that the Home Secretary has put in were removed, could not the whole House get behind supporting our police, rather than going through the mess that we have in front of us today?
Nick Thomas-Symonds
Absolutely. The Government could press pause on the Bill and bring the whole House together.
Research has shown that, during the pandemic alone, one in six of our shop workers have been abused on every shift, with 62% of UK shop workers experiencing verbal abuse and almost being threatened by a customer. There have been awful examples of attacks on other frontline workers, who have been spat at, punched, verbally abused and intimidated. Labour is calling for wider measures to protect the pandemic heroes, extending protections to shop workers as well as other frontline workers. There is widespread support for this, with the additional protection for shop workers supported by organisations such as the Federation of Independent Retailers and chief executive officers from a number of major retailers, including Aldi, the Co-op, Marks & Spencer, McColl’s, Morrisons, Sainsbury’s, Tesco and WHSmith.
I would also like to mention the work of the USDAW—the Union of Shop, Distributive and Allied Workers—which has been passionate in campaigning for its members to receive these vital protections and has generated well over 100,000 signatories on petition. We all owe a huge debt of gratitude to frontline workers for putting themselves at risk to keep our country running. We should repay some of that debt with decent legal protection as well as decent pay.
Sir Iain Duncan Smith (Chingford and Woodford Green) (Con)
The right hon. Gentleman is making, in many parts of his speech, a very strong case for supporting the Bill, but he started by saying that he was not going to support the Bill because of one particular element. The Opposition were going to abstain at the end of last week; then they shifted their position. May I gently suggest to him that a decent way of doing this would be, if necessary, to abstain today, debate the amendments and decide on Third Reading whether the Government have moved at all? Would that not be more logical?
Nick Thomas-Symonds
I will always bow to the right hon. Gentleman’s guidance on parliamentary procedure, but we took a final decision to vote against this Bill. Let me say to Government Members that I will make it clear when I agree with the Government on something, but as I move on to other aspects of my speech, I am sure that the right hon. Gentleman will see that there are other parts of the Bill that also cause deep concern; he need only wait for that.
Chris Bryant
I want to take my right hon. Friend back to the emergency workers legislation. One of the difficulties about the way in which it works is that magistrates courts can only sentence up to six months and the Government have still failed to change the law to allow them to issue longer sentences in certain circumstances. The danger is that increasing the sentence will make absolutely no difference whatever, unless the Government do what they could already have done in the last two years.
Nick Thomas-Symonds
My hon. Friend is absolutely right. Having understood the attitude of the Government in 2018, perhaps it is not surprising how slow this has been.
Nick Thomas-Symonds
Let me make some progress; I have taken a number of interventions.
I come to the police covenant and frontline police officers across the country. Like the Home Secretary, I meet the chair of the Police Federation and work with him on a regular basis. Only in recent days, I met my local officers in Gwent—virtually, of course—with hon. Friends and listened to the work that they are doing. It is clear that throughout this pandemic frontline officers are putting themselves at risk to keep us safe, but across the board, frontline workers in the police, fire service, education and so many other areas are facing a pay freeze. Their efforts in this pandemic are being rewarded with a real-terms pay cut.
The police covenant is welcome but overdue—it is in this Bill, some three years after it was promised. It is right that the Home Secretary makes an annual report to Parliament, addressing key issues on physical protection, health and wellbeing, and support for families, but we will study this provision closely, in consultation with representatives from across policing. We will be arguing for protections including support for mental health, which is too often overlooked.
I turn to the toughening of sentences for those who cause death by dangerous driving. My hon. Friend the Member for Barnsley East (Stephanie Peacock) deserves great credit for securing these changes, together with other right hon. and hon. Members who signed the Bill introduced by the former Prime Minister, the right hon. Member for Maidenhead (Mrs May), last year. They included my hon. Friends the Members for Barnsley Central (Dan Jarvis), for St Helens South and Whiston (Ms Rimmer) and for Bradford South (Judith Cummins), together with MPs from a number of parties. We support those proposals; too many people have taken lives and left families heartbroken, with insufficient punishment—that has to end.
On the extension of laws that prevent adults in positions of trust from engaging in sexual relationships with young people under 18, sports coaches and faith leaders should be included in those safeguards. I give great credit here to my hon. Friend the Member for Rotherham (Sarah Champion), with others, including Baroness Tanni Grey-Thompson and the hon. Member for Chatham and Aylesford (Tracey Crouch). I am sure everyone from across the House would send her our very best wishes.
James Gray
I am sure that the right hon. Gentleman and the whole House will be pleased to hear that my hon. Friend the hon. Member for Chatham and Aylesford was in the Tea Room this afternoon and she tells me that her treatment is fully successful and she will be on her way to a full recovery shortly.
Nick Thomas-Symonds
That is a wonderful intervention to take; I am sure we will all be delighted to hear that.
The Government could do more on the issue I was discussing. For example, tutors and driving instructors are not included, and I hope that the Home Secretary will look at that again.
Another area where some measures are welcome is in parts of the review from my right hon. Friend the Member for Tottenham being implemented, but that review was published in September 2017, nearly four years ago; there are provisions for the pilot of problem solving courts, for recognising the remand of children as a last resort and for reform of the criminal records disclosure regime. On the issue of reform of the Disclosure and Barring Service, I wish to pay tribute to my right hon. Friend the Member for Warley (John Spellar) for his work in securing that change.
All those things are welcome and overdue, but we have heard such powerful testimony of the lived experiences and family legacies of the prejudice that black people have faced. Black people have bravely stepped forward to share their testimony of structural racism and the impact it still has. The Government cannot ignore the disproportionality that exists from start to finish in our criminal justice system and continue to take steps that make it worse. The Bill contains so-called serious violence reduction orders, which raise serious questions about disproportionality and community trust. As a minimum, the whole of the review by my hon. Friend the Member for Tottenham, all 35 recommendations, should be progressed without further delay.
Similarly, the Government must look again at the sections of this Bill on unauthorised encampments. The proposals create a new offence of residing on land without consent in or with a vehicle. The loose way it is drafted seems to capture the intention to do this as well as actually doing this, with penalties of imprisonment of up to three months or a fine of up to £2,500, or both. This is clearly targeted at Gypsy, Roma and Traveller communities, and the criminalisation would potentially breach the Human Rights Act 1998 and the Equality Act 2010.
When Friends, Families and Travellers researched the consultation responses the Government received, they found that 84% of the police responses did not support the criminalisation of unauthorised encampments. Little wonder that senior police officers are telling us that the changes in the Bill would add considerable extra cost to already stretched policing, while making situations worse. I ask Ministers to think of the signal they are sending. We have already had the discussion about how responding to letters to the Home Office quickly is not the Home Secretary’s strong point, but she will surely have seen the letter to her in January—possibly not, given her earlier answer—from nine different organisations, ranging from the Ramblers to Cycling UK. That letter sets out that these unclear proposals not only risk discriminating against Gypsy, Roma and Traveller communities, but risk criminalising wild camping and even rough sleepers in makeshift shelters or tents.
Andrew Griffith (Arundel and South Downs) (Con)
The right hon. Gentleman is very generous to take so many interventions. Is it not the case that, notwithstanding the consultation, the Government have listened and have added the requirement to enter with a vehicle? There is no form of rambling I am aware of where one brings a vehicle on to land with the intention of residing there.
Nick Thomas-Symonds
I think the hon. Member needs to reread the Bill on the scope of the provisions, frankly, because it is extraordinarily loosely drafted.
Rights of access to the countryside were hard won through the protests of previous generations. I do realise that there is some ill feeling between this Prime Minister and his predecessor, the right hon. Member for Maidenhead, but I did not realise that it ran so deep that he would be happy to see people locked up for naughtily running through a field of wheat. [Interruption.] If only she had all those years ago as well.
The Bill before the House could be a landmark Bill, and we must seize this opportunity for change. Yes, absolutely, there are measures in this Bill that we welcome—mostly because Labour Members have actually campaigned for them—but addressing violence against women and girls cannot be at the bottom of this Government’s list of priorities. If Ministers disagree with my interpretation, they must show it by their actions, and drop the elements of the Bill that suggest that attacking a statue could be a worse crime than rape, drop the elements of the Bill on protests, and revisit the elements that drive up disproportionality and the controls on encampments, which are discriminatory and unworkable. Instead, let this Bill be an opportunity for people to come together and seize the moment to drive through vital changes to address violence against women and girls. Whatever this Government say as the Bill progresses, we on these Benches understand and we hear the call for change. Labour will work to bring about that change, and I would ask all Members to work with us in that endeavour.
Mrs Theresa May (Maidenhead) (Con)
I join the Home Secretary and the shadow Home Secretary in sending my condolences to Sarah Everard’s family and friends.
There are elements of this Bill, which is a very large and significant Bill, that I really welcome: the action on unauthorised encampments, on serious violence, on people in positions of trust and on changes to sentencing. I particularly, of course, welcome the change to sentencing for death by dangerous driving, which reflects the change I proposed in my ten-minute rule Bill. It was supported, as the shadow Home Secretary said, across the whole of the House, because many Members of this House have constituency cases that have been affected by this, as my hon. Friend the Member for Winchester (Steve Brine) indicated in his intervention. My desire to bring this forward was first brought about by the case—the very sad case—of my constituent Bryony Hollands, who was killed by somebody under the influence of drugs and drink, but there have been other constituency cases, such as those of Eddy Lee and Max Simmons. On their behalf, on behalf of their families and on behalf of all those affected by this, I say simply to the Government, thank you.
I would like to focus on a number of areas where I worry that there could be unintended consequences of the measures being brought forward by the Government in this Bill. I absolutely see the reason for bringing forward the serious violence reduction orders, but I welcome the fact that they are being piloted, because I think there could be unintended consequences in two areas. The first is in stop-and-search. Stop-and-search is an important tool, but it must be used lawfully and it must not be used disproportionately against certain communities. My concern is that we do not go backwards on improvements that have been made on stop-and-search, and that we actually ensure that we do not see this being used disproportionately and a disproportionate increase taking place.
The other area is girls in gangs, and I am concerned—I have had a discussion with the Under-Secretary of State for the Home Department, my hon. Friend the Member for Louth and Horncastle (Victoria Atkins), about this—that we could see serious violence reduction orders against male members of gangs leading to their pressurising their girlfriends to be carrying knives, with the impact that would have on those girls. The way in which girlfriends of gang members are used to get at rival gangs is a worry and needs to be given more attention, and I do not want to see the position of girls being further exacerbated, unintentionally, as a result of these orders.
My second concern is about pre-charge bail. I can absolutely see that, as a result of the changes that were brought in previously, we have seen too many cases where people have not been put on bail, particularly where the crime was a serious violent crime against a woman. However, I ask the Home Secretary to look carefully at the nine-month period that is being set before the police have to go to the magistrates court for an extension of bail. Certainly, I would urge her to resist any suggestion that that should be extended, because we cannot go back to a situation where people are effectively left with their lives on hold, possibly for years, as a result of the operation of bail.
Finally, I want to raise one area that has already been raised: I do have some concerns about some of the aspects of the public order provisions in the Bill. I absolutely accept that the police have certain challenges, for example when people glue themselves to vehicles or to the gates of Parliament, but freedom of speech is an important right in our democracy, however annoying or uncomfortable that might sometimes be. I know that there will be people who will have seen scenes of protests and asked, “Why aren’t the Government doing something?” The answer, in many cases, may simply be that we live in a democratic, free society.
I do worry about the potential unintended consequences of some of the measures in the Bill, which have been drawn quite widely. Protests have to be under the rule of law, but the law has to be proportionate. The first area that I will mention is giving police the powers to deal with static protests in the way that they have been able to deal with marches. Those have always been differentiated in the past. The second is around noise and nuisance; some of the definitions do look quite wide, and I would urge the Government to look at those definitions.
The final area I want to mention is the power for the Home Secretary to make regulations about the meaning of
“serious disruption to the activities of an organisation…or…to the life of the community.”
It is tempting when Home Secretary to think that giving powers to the Home Secretary is very reasonable, because we all think we are reasonable, but future Home Secretaries may not be so reasonable. I wonder whether the Government will be willing to publish a draft of those regulations during the Bill’s passage so that we can see what they are going to be and ensure that they are not also encroaching on the operational decisions of the police.
There are very important elements of this Bill, but I would urge the Government to consider carefully the need to walk a fine line between being popular and populist. Our freedoms depend on it.
Anne McLaughlin (Glasgow North East) (SNP) [V]
I can confirm that the Scottish National party will be voting against this Bill tomorrow. That is not to say that there are not sections of the proposed legislation that we support or are satisfied with, but the Bill as introduced will not achieve what the Government say they want to achieve, will seriously curtail the rights to protest, will criminalise the way of life of Gypsy/Travellers, is likely to have a disproportionate negative impact on ethnic minority communities and women, and will allow the ridiculous and unjust possibility of a tougher jail sentence for someone who topples over a statue than for someone who does the same thing to a living human being.
There is one overarching thing on which I think we can all agree, and it is certainly the view of the Scottish National party: tackling serious crime has to be a priority. But rather than creating policy to elicit macho headlines about tougher sentences and who comes down hardest on crime, the bottom line for us is: what works? What reduces crime? When it comes to reducing reoffending, Scotland’s rates are the lowest they have been since comparable records began, because of our focus on community justice.
The Under-Secretary of State, the hon. Member for Croydon South (Chris Philp), knows that this tougher sentencing policy does not work. He once said:
“The evidence is mixed, although harsher sentencing tends to be associated with limited or no general deterrent effect.”
So why make that a central plank of the Bill? That is a question the UK Government have to answer. Why do it if it does not work?
Someone we should always listen to is the chief executive of Community Justice Scotland, Karyn McCluskey. She said:
“Community justice allows people who commit a crime to pay back to the community they harmed whilst addressing any underlying causes of crime such as addiction, homelessness and mental health issues.”
It is not hard justice, it is not soft justice; it is smart justice that genuinely reduces reoffending. I will say it again: Scotland now has the lowest reconviction rates since comparable records began 21 years ago.
I turn to the right to protest, which is a right. I know the Government have a bit of a disdain for international law, but article 11 of the European convention on human rights is the right to freedom of assembly and association. The Bill directly contradicts the rights of citizens to protest where, when and how they choose. If it goes through, there will be very few rights to protest in England and Wales at all, and that is unacceptable in a democracy—especially one that likes to claim to be the bastion of democracy and has a history of telling the rest of the world how to behave.
Let us not forget the rights of the people of Scotland to protest in England. While decisions about our lives are made in London, we, the people of Scotland, reserve the right to peacefully protest at the seat of power. Let me note some of the things that the people of Scotland have protested about in England: the Iraq war, over which Scotland had no choice; the obscenity of nuclear weapons conveniently stationed in Scotland, over which Scotland has no choice; and the wonderful women and their allies in the Women Against State Pension Inequality Campaign. Allow me to quote Rosie Dickson from WASPI in Scotland, who called this
“truly a step too far for those 1950s-born women who have not only been unfairly denied their pensions by a Westminster Government but now also face having their human right to protest against it, without fear of arrest, removed.”
Of course, we in the Scottish National party intend for London not to be the seat of power for much longer. We intend to win our independence so that all the decisions governing the lives of the people of Scotland are made in Scotland, where the right to protest is respected. When the Government of an independent Scotland get it wrong, as all Governments do from time to time, the people will be perfectly entitled to tell them that. However, even if independence were happening next week, I would leave this Parliament still fighting for the right of every citizen to protest.
These draconian powers are wide reaching, We have heard a comprehensive analysis of most of them from the shadow Home Secretary, the right hon. Member for Torfaen (Nick Thomas-Symonds), so I will focus on just a few. First, we as Members of Parliament are accountable to our constituents, but now our constituents are to be told that they can protest and let us know of their disapproval, only we would prefer silent protests so we are introducing noise as a basis on which the police can intervene and impose any type of condition to stop them. Even if they do make noise, it will not matter. We will not hear them because we are putting in an exclusion zone around Parliament so far-reaching that what they have to say—their legitimate protest—will not fall on deaf ears; they will simply be so far away that it will not be audible. They will effectively be silenced. I want those people to know that I do not want them silenced, even if they are opposed to what I stand for. I want to be a Member of a Parliament that embraces democracy; the Bill is doing the opposite, and it is embarrassing.
Speaking of embarrassing, that word does not cover how the events of Saturday night felt for most of us watching them. I want to say something about what happened at Clapham common in the context of the police using the powers they already have and for us to think about how much worse it will get if the sweeping powers in the Bill are handed over to senior police officers.
First, I want to add my voice to those of the many thousands who are heartbroken for the family and friends of Sarah Everard. The torment that her family must be going through is something that nobody in this House would wish on anyone. I know we all share the despair. I attended an online vigil on Saturday night, but I understood why those women who met in person did so—particularly those who live near to where Sarah was taken. I got it. I know they were breaking regulations, and I would never encourage that, but they were in pain and they wanted to come together to help others also in pain. I do not know any woman who has not got a story to tell. Male violence against women takes such a heavy toll on all of us, and sometimes we need to be with other people.
Given the context of Clapham common on Saturday night, surely sensitivity should have been the watchword. I cannot imagine how frightened some of the women must have been, particularly given the circumstances. They have just had an alarming reminder that the police uniform does not give a cast-iron guarantee of safety and some of them find themselves on the ground, handcuffed, with knees on their back, flowers for Sarah trampled on, legs held down and unable to move at the hands of the police. Sarah Everard was just walking home; those women were just expressing their grief. If the current powers to curb protest can lead to what happened on Saturday night, imagine how much worse it will get if this legislation goes through.
I am deeply concerned about the attacks in the Bill on the way of life of some of our citizens. I am speaking, of course, about the Gypsy/Traveller community, who are among the most persecuted on these islands and among the most misunderstood. This Tory Government want to criminalise their way of life at the same time as the Scottish Government have produced an action plan entitled “Improving the Lives of Scotland’s Gypsy/Travellers”. What a contrast! Why are this Government so intent on cracking down hardest on the most vulnerable in our society?
While we are on the issue of racism in society, let me come to clause 46 on memorials. Is it not interesting that this legislation that comes down hard on anyone damaging a memorial comes about shortly after a group of people in Bristol toppled a statue of someone who made his money from slavery? Would I have toppled the statue? No. But do I think slave owners should have lasting memorials to them? Definitely not. This Bill would increase the maximum jail sentence for someone convicted of this to 10 years: 10 years for damaging an inanimate and, to some, very offensive object, when it is rare to get anything like as much as that for damaging a living, breathing person or animal. It is interesting, isn’t it, that the toppled statue that I believe prompted some of this legislation was toppled as part of a Black Lives Matter demonstration, when black people and their allies finally said, “Enough is enough”? As soon as they organise to have their voices heard, legislation pops up to silence them. I find that very interesting. I have spoken this weekend to people in the Black Lives Matter movement who believe that this endangers their very existence. They are in no doubt that they will be targeted.
I have had a lot of emails about this in the past two days, and there will be many people watching who—believe it or not—do not normally tune into Parliament, so it is worth mentioning that this is Second Reading and the next stage is Committee, where the Bill will be scrutinised line by line, word for word, by Members from each party, where evidence will be considered, and where amendments may be proposed. One of the things we will want to pay particular attention to is clause 36 on data extraction from mobile devices. I know the Scottish Government have been speaking to the UK Government about safeguarding and some progress has been made. This is certainly something we will want to interrogate. We have to be exceptionally careful about the use of people’s personal data.
Let me turn briefly to stop and search. Although this will not impact directly on Scotland, I want to add my voice to those on the Opposition Benches who are saying “Enough is enough.” It is not just politicians who are saying that the impact on black communities is disproportionate and it is not just black communities who are saying it. Newly retired chief executive of the College of Policing, Mike Cunningham, has voiced his concern that existing stop-and-search powers are disproportionate to what he calls an “eye-watering” degree. We should be listening to him and to groups like Liberty, Amnesty and Fair Trials who have called for a review of existing powers rather than an extension.
If it is to be fair, the law must be foreseeable. We must be able to foresee, to a degree that is reasonable in the circumstances, the consequences that any given action may entail. This Bill is peppered with ambiguous wording left to be defined by statutory instruments. For example, there are regular references throughout to “serious disruption” as a reason to criminalise somebody, but there is nothing in the Bill to define “serious disruption”, leaving it effectively to the Home Secretary to decide. I want to know what the Home Secretary’s definition is. I want the right to debate it. The Home Secretary and I interpret things very differently. She thought the Black Lives Matter movement was “dreadful” while I think it is magnificent, so her idea of “serious disruption” will likely be very different from mine. Yet we are signing over to her the right to come up with a definition that will not be debated and we are simply expected to accept that. It is not good enough. The Scottish National party will be voting against this Bill tomorrow and scrutinising it very carefully when it comes to Committee.
Sir Robert Neill (Bromley and Chislehurst) (Con) [V]
This is a significant and large Bill, and it warrants serious scrutiny. It therefore deserves better attention, I submit, than some of the hyperbole that has regrettably been thrown at it in the course of the earlier speeches of this debate. It is reasonable to examine a Bill carefully as it goes through Committee. I have scarcely ever known a Bill that is not improved by careful examination from the time when it is brought in. To vote against the Bill tomorrow does not seem to me to be a mark of a responsible Opposition, and it is regrettable that Labour and the Scottish National party have gone down that route, particularly when they can see that there is much to agree with. Many organisations in the criminal justice sphere including NACRO, the Centre for Justice organisation, the Magistrates Association and others have welcomed measures in the Bill.
We need a sense of proportion about these matters. For example, the reforms to public order legislation certainly need careful consideration, but changes to the law around public nuisance were recommended by the Law Commission as long ago as 2015. This measure puts that law on a statutory basis, as the Law Commission recommended, but uses, perfectly understandably, terms and phrases from the old common law arrangements, which are well understood and well defined by case law in the courts. The idea, therefore, that the Law Commission is somehow part of some authoritarian plot seems to me to be risible, and better arguments can be made than that.
Being near the M25, my constituency has unfortunately had repeated unauthorised incursions into both publicly owned and privately owned playing fields, sports grounds and others. Proportionality and fairness also mean that there should be swifter and better recompense than the current situation permits for those communities that see much-valued community assets put out of use by unauthorised encampments.
On the sentencing elements of the Bill, sentencing is always a difficult matter, both in individual cases and in terms of policy. It requires a careful balance. Overall, the Justice Secretary and his team who worked on this part of the Bill have got it right. It is right that we strengthen provision to protect the public from the most serious criminals, but it is also right that we give greater attention to the need to rehabilitate. Basically, many of those who end up in the criminal justice system and, indeed, in prison have chaotic lifestyles, sometimes mental health issues, educational issues, social problems and, frequently, weakness and stupidity. Getting those people out of a never-ending cycle of reoffending, as the White Paper says, on which this part of the Bill is based, is not just in their interests, but, overwhelmingly, in the interests of the public, too. I welcome the provisions to give a more agile and sophisticated suite of alternatives to custody. It is important that alternatives to custody are credible to the public, because sentencing has to be credible, but also that they do not waste time in comparatively short prison sentences where little rehabilitative work can be done, and which are hugely expensive. They have their place in just limited instances. Those changes, therefore, are very welcome.
Changes to the provisions regarding spent convictions are very important for rehabilitation. The Justice Committee has called for that in previous reports. Recognising a distinct approach to sentencing of younger offenders is, again, something that our Committee has repeatedly called for, and I welcome that, too. Equally, raising the threshold for remanding children into custody is very welcome and I would have thought overwhelmingly supported.
There is much to support in this Bill, including the provision for charities to set up secure schools, a much better improvement on our current provision. I very much hope that this Bill will get its Second Reading and that we can then examine the provisions in detail. The final thing that we have to be honest about is that justice does not come cheap. If we are to make these important and radical changes to sentencing policy, we must invest in them. If we are to have alternatives to custody, we must invest properly in those alternatives. They will bring both a social and an economic benefit in the long run, but we have to be honest and spell that out at the beginning.
Madam Deputy Speaker (Dame Eleanor Laing)
I call the Chair of the Home Affairs Committee, Yvette Cooper.
Yvette Cooper (Normanton, Pontefract and Castleford) (Lab)
It is a pleasure to follow the hon. Member for Bromley and Chislehurst (Sir Robert Neill), a fellow Select Committee Chair.
The tragic death of Sarah Everard is obviously on all our minds. It has led women across the country to talk about our shared experiences of threats on the streets of our own towns and cities and also to express the anger that, more than 40 years after the first reclaim the night marches in Leeds, we are having the same debates all over again. In some areas, it feels like things have gone backwards. Five years ago, just 8.5% of reported rapes reached prosecution. In the last five years, that has fallen to just 1.4%. The Government have been reviewing this for two years, but in the meantime prosecution rates have got worse.
That reflects the broader near-collapse in the effectiveness of some parts of the criminal justice system. In the five years before covid hit, recorded crime rose by 40%, but the number of crimes being prosecuted fell by 30%. In just five years, hundreds of thousands fewer charges were brought, and hundreds of thousands more criminals are therefore getting away with their crimes. In West Yorkshire, recorded violent crime has shot up. The Government have passed lots of laws, but the number of people convicted of breaking them has fallen. There have been lots of changes to sentences, but fewer criminals are getting sentenced in the first place, so justice is not being done and victims are being let down. Over the last five years, the shocking truth is that it has got easier to be a criminal and harder to be a victim. We cannot let that stand.
There is an important debate to be had about the measures in the Bill, but I see nothing in them that will turn around those shocking figures, and that is what we should work across the House to do. We need the police covenant and stronger measures to support police officers and emergency workers who face attack. We need stronger sentences for the most serious of crimes, including whole-life sentences for premeditated child murder, which is one of the vilest crimes of all. I support those measures. The same should apply for premeditated kidnap, rape and murder, but that is not currently in the Bill. There should also be stronger penalties for rape and stalking, but those are not currently in the Bill. It would, I think, be wrong if we ended up with higher sentences for peaceful protest and public nuisance than for stalking. That would be to get the balance wrong.
I put forward measures last year based on Home Affairs Committee work to extend the register and monitoring provisions for dealing with sex offenders to cover repeat perpetrators of domestic abuse and stalking, to stop them moving from one victim to the next and destroying people’s lives because no one is keeping track or joining the dots. I hope the Government will accept Baroness Royall’s amendment in the other place. If they do not, I will table the same measures to this Bill, and I hope that support can be built for them.
There are further measures, which I hope first to discuss with Ministers, that I hope could increase the prosecution rate for assault and domestic abuse, where there have been such problems. The Government are right to place a duty on councils and the police to co-operate in tackling serious violence, but we should be explicit about including the youth service in that; that is not currently part of the Bill.
The Home Secretary will know, even from today’s debate, that there is cross-party alarm about some of the measures in the Bill that go against the British tradition of free speech and peaceful protest. In the coalfields, there is strong support for the work of the police, but people have long memories of things such as the policing of the miners’ strike, so there is also strong support for proper safeguards to protect peaceful protest.
In the Bill, several powers—the broad wording on noise disruption, even though we know few protests are silent, because people want their voices to be heard; the broad powers given to the Home Secretary on serious disruption; and the statutory public nuisance offences with sentences of up to 10 years for doing things that simply might risk causing serious annoyance—are too broad. Every one of us will have seen protests that we thought were seriously annoying, but we do not believe that they should have been stopped. We know, too, that when people protested outside the Iranian embassy for Nazanin Zaghari-Ratcliffe, the embassy could well have argued that the protests were disruptive to their activities or caused serious annoyance, but none of us would have wanted those protests to be stopped. I urge the Home Secretary to withdraw those measures, to re-consult on them and to try to build consensus not just on them, but on the other, wider, measures in the Bill, so that we can all support taking the action needed to cut crime.
James Gray (North Wiltshire) (Con)
It is a privilege to be called so early in this extremely important debate. As always, it is a pleasure to follow the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper), the Chair of the Home Affairs Committee, although I am a little puzzled, because most of the amendments to the Bill to make it better that she talked about would not be possible if, thanks to the power of her rhetoric, she persuaded the House to vote against Second Reading, since there would be no Committee stage in which to do that. I suspect that, even though she will go through the No Lobby, she actually hopes that the Bill will go into Committee.
I congratulate the Home Secretary and the Lord Chancellor on this outstandingly good Bill designed to make us all safer in so many different ways, but I want to focus on one small aspect of the Bill: the sentencing of minors in clauses 101 to 105. The Home Secretary knows well the case of my constituent Ellie Gould, and she kindly saw the Gould parents on one occasion. Ellie Gould was brutally murdered in her own home by 17-year-old Thomas Griffiths in May 2019. It was the most horrible murder of the worst kind, with a knife found at the scene of the crime.
Griffiths’ 12 and a half-year sentence was shorter than it should have been for three reasons: first, because he pled guilty, and I am glad that he did; secondly, because he was a junior at the time of the offence, albeit he was 18 at the time he was convicted; and thirdly, because, rather than taking a knife with him to the murder, he picked one up in the kitchen. He none the less stabbed Ellie multiple times using that knife and then sought to pretend that Ellie had done it to herself. It was very much a premeditated crime—there is no question about it—but because he did not bring a knife to the scene, he only got 12 and a half years, rather than the significantly longer sentence he would have got otherwise.
I pay tribute to Ellie’s parents, Matt and Carole Gould, and a group of her school friends, who have been tireless in fighting to change the law in respect of a brutal crime of this kind. I thank the Lord Chancellor and the Home Secretary for having listened carefully to them. Under clause 101, a 17-year-old who turns 18 during the course of the trial, as happened in this case, will now face a similar penalty to the one they would face if they had been 18 at the time of the crime. Until now, a 17-year-old was treated much the same as a 10-year-old, and of course, they are very different people. A sliding scale will now be introduced, so that a 17-year-old will be pretty much treated as an adult. That would have increased Thomas Griffiths’ sentence to 14 years. We also welcome the ending of the automatic review halfway through the sentence, which, apart from anything else, causes huge stress and trauma to the victim’s family.
However, the Bill does not address the third anomaly, which is that had Griffiths brought the knife to the scene rather than pick it up in the kitchen, his sentence would have more than doubled—he would have got up to 27 years, rather than 12 and a half. Surely a frenzied attack of this kind, whether it is done with the knife that someone brings with them or a knife that they find in the kitchen, deserves the fullest possible sentence in the law.
There is an argument that women who are victims of domestic abuse may carry out a murder in self-defence using a knife at home. Surely the criminal law could find a way of saying that murder in self-defence under those conditions is quite different from a brutal murder such as that of Ellie Gould. The Lord Chancellor has said that he will consider this matter further, probably outside the context of the Bill. None the less, I hope that such a differentiation will be made possible in the near future, because this is a very important matter, and it touches on the tragic case of Sarah Everard.
Nothing can bring Ellie Gould back. Nothing can assuage the grief of her parents. Incidentally, nothing can assuage the grief of Thomas Griffiths’ parents, who are also my constituents; they have lost their son in a very real way too. But strengthening the sentencing regime, as the Bill does, will at least mean some lasting legacy. It is, indeed, Ellie’s law.
Madam Deputy Speaker (Dame Eleanor Laing)
After the next speaker, the time limit will be reduced to three minutes.
Ms Harriet Harman (Camberwell and Peckham) (Lab)
I very much agree with what the hon. Member for North Wiltshire (James Gray) said. The terrible outcome of the police ban on the Clapham common vigil in the wake of the tragic killing of Sarah Everard shows how wrong the Government are to try in this Bill to curb the right to demonstrate, so I hope they will think again about that. The anger of the vigil was about women demanding to be able to walk the streets without fear, and we must listen to those demands and act on them now in the Bill. This demand is not new. Along with women up and down the country, I joined the “Reclaim the Night” protests in the 1970s, but then women’s demands were not listened to by the men in the corridors of power. Now there are women in government, in the Home Office and in the Cabinet. There are women in all parties in Parliament. We are in the corridors of power, so we must use our power to deliver for women.
We all argued it would make a difference if we were here as women in Parliament. Now we had better prove it. We can in this Bill make it a crime to do what men do to women on the street every day and which makes their lives a misery. Kerb crawling is terrifying for a woman or a girl on her own, especially after dark. A man has no right to do it, so let us make it an offence punishable by taking away his driving licence. Following a woman on the street, filming her, trying to get her number and not taking no for an answer are harassment. Why should women and girls have to put up with it? Let us make that a criminal offence. I have tabled two new clauses, which have the backing of Members from all parties, and not just women, but men, too. I hope that the Government will accept them.
Too often when a woman is the victim of a sexual offence, all her previous sexual history is dragged up in court and it ends up as though she is in the dock, not the man. That is not supposed to happen, but it does, so we need to stop it. I have new clauses with cross-party backing to do that, too, which I hope the Government will back. Women do not want us to sympathise; they want action, and that is what we should do.
Philip Davies (Shipley) (Con) [V]
There is much in the Bill that I agree with, and much of that was set out by the Home Secretary in her opening remarks. I particularly agree with increasing the sentences for assaults on emergency workers to two years, which is an amendment I tabled back when the Assaults on Emergency Workers (Offences) Act 2018 was first debated in 2018. It is always good when the Government come round to my way of thinking, so I hope as a result they will look favourably on my amendments when I table them, and we can save some time.
In the time I have, I will go through some of the things I would like to see in the Bill. As was mentioned earlier, I would like to see a specific offence for assaulting shop workers and other frontline workers. I used to work in retail, but it has been absolutely terrible to see the fact that during the pandemic, when shop workers have been going the extra mile to help us all, the number of assaults on them has doubled. We really need to do something about that, and I hope the Government will look favourably upon that proposal.
I am pleased to see some of the provisions for ending automatic early release for prisoners. I certainly support that, but I would like the Bill to go further. I would like to see the end of all automatic early release for prisoners, particularly those still considered to be a danger to the public. I would particularly like to see an end to all automatic release for those people in prison who assault our prison officers. Again, prison officers face a terrible burden in prison, with far too many assaults. If we were to say to prisoners that anybody convicted of assaulting a prison officer would lose their right to automatic release, that may well help those hard-pressed prison officers.
I would like to see the retirement age for magistrates and judges increased to 75. The Justice Secretary has said that he intends to do that, so this Bill seems a very good vehicle for that. I would like to see a sentencing escalator, whereby if people are convicted of the same offence more than once, they have to get a harsher punishment the second time than they had the first time, and a harsher punishment yet again if they commit the same offence a third time. The Government clearly accept the principle of that, because they have done exactly that with the covid fines. I hope they will allow a sentencing escalator for other criminal offences as well.
I would like to see magistrates’ sentencing power increased to 12 months, rather than six months. That needs to be done. I would like to see the word “insulting” removed from section 4 and section 4A of the Public Order Act 1986 so that someone cannot be guilty of something if they simply insult people. There are many amendments I would like to see to this Bill that time does not allow me to mention this evening. I could do with a whole day on Report all to myself.
Madam Deputy Speaker (Dame Eleanor Laing)
I do not think that is entirely likely to occur.
Andy Slaughter (Hammersmith) (Lab) [V]
Ask almost anyone involved in the criminal justice system for their priorities, and they will not say, “More new offences, types and lengths of sentences, and further layers of complexity masquerading as action”; they will point to the backlog in the courts, the lack of resources for everything from legal aid to prisons, and the systemic failure at every turn from investigation and charge, to trial and disposal. Some measures in the Bill are helpful, but parts are oppressive and downright dangerous. I refer particularly to parts 3 and 4, which amount to a sustained attack on civil liberties, free expression and movement by an intolerant Government who are increasingly careless of the rule of law.
Given the time restraints, I will set up the case against part 4 of the Bill. Gypsies, Travellers and Roma are the most discriminated against and marginalised ethnic minority in UK society—indeed, the action of Pontins management reminded us of that only days ago. The Bill targets those communities, and it criminalises what has hitherto been the civil offence of trespass on land. It makes the direct threat of imprisonment and heavy fines for matters that were previously resolved through negotiation or in the civil courts. The Bill threatens, not just for the act of trespass but for an intention to trespass, to seize and forfeit any vehicle involved in that trespass, which in the case of nomadic people means losing their home and all their possessions.
Only 3% of Gypsy and Traveller caravans are on unauthorised sites. The police response to the proposals was unequivocal:
“trespass is a civil offence and our view is that it should remain so…no new criminal trespass offence is required.”
No family willingly stops somewhere they are not welcome, and which has no running water, waste disposal or electricity. They do so for the lack of either permanent or transit sites. Only 29 councils in England provide transit sites—a mere 354 places.
Evictions will run for 12 months, and it is not difficult to imagine a concerted campaign to exclude Travellers from whole areas of the country, contrary to the recent judgment in the London Borough of Bromley v. Persons Unknown. The judge in that case concluded that
“the Gypsy and Traveller community have an enshrined freedom not to stay in one place but to move from one place to another.”
Preventing that potentially breaches both equality and human rights law, as the shadow Home Secretary said earlier. The Home Secretary may not care about any of this, but many people do. She would be well advised to drop these racist and draconian proposals from the Bill before it progresses any further.
Alberto Costa (South Leicestershire) (Con) [V]
Unlike the hon. Member for Hammersmith (Andy Slaughter), those of us who represent rural or semi-rural constituencies know only too well the problems caused by unauthorised encampments, and the deeply damaging effects they have on our local communities. The proposed offence refers to those who brazenly travel and set up unauthorised encampments, with total disregard for others. My constituents have often been subject to the disruption and difficulties caused by those in caravans who, without permission, set up on a village green, a playing field or agricultural land. Although I accept that that may not sound particularly troublesome in theory, unfortunately it is the behaviour and activities of those in the caravans that causes disruption, damage, and disquiet in our lovely rural villages and towns.
The Government’s proposals on tackling unauthorised encampments is a big step in the right direction, but of course more should be done. It does not discriminate against the vast majority of law-abiding Gypsy and Traveller communities, and neither should it, but it highlights the big issue of those who set up unauthorised encampments, and allows authorities to deal with that in a more effective manner.
I support the proposal in clause 46 to create the offence of desecration of memorials, and I would like the Government to consider creating a new offence of attacking the parliamentary offices of Members of the House. An attack on an MP’s office is an attack on the House and on the heart of our democracy. I should declare that I am the victim of such a crime. My office was violently attacked less than two months ago in what appears to have been a premeditated attack designed to intimidate my staff and me. Unfortunately, Leicestershire police, led by Chief Constable Simon Cole, have not been able to identify the assailant. This is the second time in less than 21 months that my office has been attacked. If we are to place value on memorials and statues, as we should, by creating this new offence, how much more important is the symbol of this sovereign body in each constituency—namely, the MP’s office bearing the portcullis? These are not inanimate historical objects; they are the living, breathing and supposedly safe workplaces of Members of this House across our country. I ask the Government to confirm that they take seriously these attacks against MPs, their staff and their parliamentary offices—even more seriously than attacks against statues. Accordingly, I invite the Government to consider my reasonable suggestion for a specific offence of attacking an MP, their office or their staff in their constituency.
Stephanie Peacock (Barnsley East) (Lab)
In September 2018, my constituent, Jackie Wileman, was tragically killed by four known criminals who joy-rode a stolen heavy goods vehicle around Barnsley for days before hitting and killing Jackie on her daily walk and crashing into a house in the village of Brierley. The four men had 100 convictions between them, and one had already been convicted of causing death by dangerous driving. At the trial, one man pleaded guilty and the other three were also convicted, but with plea deductions and time on licence, they all served between five and just over six years. The lenient sentences handed down to them following Jackie’s death led to her brother, Johnny Wood, bravely and tirelessly campaigning to scrap the maximum sentence for those who cause death by dangerous driving, so that no family would have to go through what they have gone through. Having fought alongside Johnny for this change in the law, and having raised the issue in the Chamber many times and having met the Justice Minister, I am in no doubt that Johnny’s powerful testimony has directly contributed to the sentencing Bill we have before us today.
The Bill, while strong on dangerous driving, also had the opportunity to support victims of other crimes. I met virtually with my constituent Claire Hinchcliffe a few weeks ago. She suffered 13 months of abuse at the hands of her ex-husband, who continued to stalk her after the end of their relationship. He was given a 12-month restraining order. The Bill could have strengthened sentences for crimes such as this, but it does not. It does not mention violence against women once. It fails to address this issue, yet it proposes to give the police extra powers and the right to limit peaceful protest.
The history of Barnsley demonstrates the issues with policing protests and public order. For those who lived through the 1984 miners’ strike and experienced abuse at the hands of the police, these new powers will rightly cause alarm. The state already has sweeping powers to police protests; it does not need any more. This is not about protecting the public; it is about getting cheap, easy headlines for a weak Home Secretary. I am pleased to welcome the provisions in the Bill that will finally deliver justice for Jackie, but I am disappointed that I cannot support the Bill in its entirety due to the fact that it threatens our right to peaceful protest and has no provision to protect victims such as Claire and the thousands of other women who are seeking justice.
Sir Iain Duncan Smith (Chingford and Woodford Green) (Con)
In the short time available, I will limit myself slightly. The Opposition’s position is somewhat illogical at the moment. Is the Bill perfect? No, it is by no means perfect. I hope that it will be corrected as it goes through. Will that happen? Certainly. I accept that there are issues around freedom of speech and the right to assemble, and I think that these will be dealt with during the course of the debate. Overall, this is a good Bill, but Labour Members are going to vote against the protection of the police, the prevention, investigation and prosecution of crime, and important measures on sentencing and release, on public order, on encampments—which bother a lot of my constituents—on youth justice, on secure children’s homes and academies, and on the management and rehabilitation of offenders. They will vote against all of that, yet they agree with much of it. That does not make any sense to me.
Tonight I want to draw the attention of my right hon. and hon. Friends to something very important that is not in the Bill, and I want to make some progress on this. It is to do with the rising theft of pets, including dogs, much of which now includes violence. This is a really big issue; it is not prosaic by any means.
Sir Robert Syms (Poole) (Con)
I agree with my right hon. Friend—it is a big issue for my constituents and I am glad he has brought it up.
Sir Iain Duncan Smith
I am grateful to my hon. Friend.
There have been reports of a huge, 250% increase in dog-theft crimes in a number of counties, particularly Suffolk. The Metropolitan police, who cover my area, report the highest number of dog thefts in the country. The number of stolen dogs registered on the DogLost website has increased by more than 170% since lockdown, and 2020 was the worst ever year for the theft of dogs.
We are not talking about some inanimate object; this is an animal, a pet who is part of the family like the other pets. Dogs also do hugely important jobs. Who secures this place by ensuring that we do not have bombs? Dogs. Who checks at customs that people are not importing drugs and other things? Dogs. Dogs are being trained to detect covid now, and they should have been brought into airports years ago.
The reality here is that it is very violent. The big point is that gangs are involved now. The prices of these animals have risen—we are talking about £5,000 or £10,000 for a dog—and the gangs are very violent. I have constituents who have been knocked to the ground and beaten and had their hands stamped on. There have been threats made against them, their home and their families. These are serious offences, yet right now it is almost impossible to get more than a slap on the wrist for this stuff—a fine of £250 or perhaps £500.
Dogs are not even listed in the Home Office classification—they are in among theft from the person, bicycle theft, shoplifting and other theft. Pet theft currently sits hidden from view under HOC49, alongside things that do not have a home, such as a wheelbarrow. This is wrong, it diminishes the crime and it means that many people who are devastated by pet theft, and often brutalised, have no recourse. As I said, even the sentencing side of it is very poor. We need to bring in much tougher sentences and it is important that we have a categorisation that includes dogs and other pets. We also need police to take pet theft seriously. One individual told me that when their dog was stolen, a police officer said, “Did you have anything else of value taken?” as though dogs were not of any value.
Microchips have to be put in by law, yet no vet has to scan to see whether or not a dog is stolen. That should change so we should bring that in. Other ideas include a ban on cash sales, as happened with scrap metal, to cut off such sales, and consideration of the reintroduction of licences for pet ownership.
Pet theft is a serious offence and I would like the Government, during deliberations on the Bill, to introduce changes to help people. Violence and the theft of animals are wrong. We should do something about it, and do it now.
Debbie Abrahams (Oldham East and Saddleworth) (Lab) [V]
The Bill is a missed opportunity. I support some measures, such as those on the police covenant, on doubling the sentence for assaulting emergency workers and on toughening sentences for death by dangerous driving, but I have concerns about several others, including the proposed changes to the right to peaceful protest and the measures on unauthorised encampments, which are targeted at Gypsy, Roma and other travelling communities.
The absences in the Bill reveal the Government’s worrying priorities. The lack of the prioritising in the Bill of measures to protect women from violence and support them is a matter of deep regret. That the penalty for defacing a statute has been increased to 10 years—double the minimum tariff for someone convicted of rape—is offensive, and I hope the Government will think again on that. With that in mind, I send my sincere condolences to Sarah Everard’s family and friends—I can only imagine what they will be going through at the moment.
I wish to focus the remainder of my remarks on the absence of any measures in the Bill to repeal the Bail Act 1976, and on its impact on vulnerable women. Under the Act, the courts can remand an adult to prison for their own protection, without that person being convicted or sentenced, and even when a charge cannot result in a prison sentence. Someone’s liberty can be removed without expert evidence or any formal investigation into their circumstances, and even without their having legal representation. It is reprehensible to deprive a vulnerable adult or child of their liberty because of shortcomings in social security support or mental health or other local services. The potential for abuse in the use of such arcane and outdated legislation is clear to see. It is a scandal and surely in breach of human rights legislation.
Following our recent inquiry on this issue, the all-party parliamentary group on women in the penal system, which I co-chair with the hon. Member for Thurrock (Jackie Doyle-Price), has recommended that the Bail Act be repealed. At a recent APPG meeting, I was struck by the evidence from a prison governor, who said that prison was the worst possible environment for a vulnerable person and would exacerbate their vulnerability. The shocking thing is that the scale of the scandal is not even known; the Government do not even collect data on the number of people detained under this legislation. After meeting the Minister of State, Ministry of Justice, the hon. and learned Member for South East Cambridgeshire (Lucy Frazer), and the Howard League a few weeks ago, I had hoped that this would be included in the Bill. Perhaps the Home Secretary could indicate whether the Government will be correcting this omission in Committee.
Finally, I want to express my concerns regarding the Government’s failure once again to undertake any equality impact assessment on the Bill. Given the Lammy review and the evidenced racial disproportionality in the criminal justice system, the Government’s rhetoric about Black Lives Matter rings hollow.
Andrew Selous (South West Bedfordshire) (Con) [V]
I strongly support the points about pet theft made by my right hon. Friend the Member for Chingford and Woodford Green (Sir Iain Duncan Smith). As Second Church Estates Commissioner, I also strongly welcome the addition of faith leaders alongside sports coaches, both of which have been added to the list of professions in the Bill—that also includes teachers, social workers and doctors—for whom it is illegal to have a sexual relationship with a 16 or 17-year-old in their care. This is in line with the recommendations of the independent inquiry into child sexual abuse, and it is absolutely right.
I want to spend the rest of my remarks giving voice to the everyday experiences of one of my female constituents in her early 20s. The cumulative impact of these incidents amounts to very serious and wholly unacceptable antisocial behaviour of the very worst kind, which can lead to a severe lack of self-confidence and wellbeing.
Over the last year or so, my constituent has told me that she has endured: being touched inappropriately and called a prostitute by a strange man on her own doorstep; being continually cat-called while walking down the street; being groped without consent in a nightclub; being cat-called in a seriously offensive manner from the street while fully dressed in her own property; being harassed by a group of men in a pub; having her bottom commented on by an older man while filling her car up with petrol; having her figure loudly commented on by three boys while on the underground, with no one else in the carriage asking them to stop; being followed by a much older man in an unwanted manner over coffee after a church service; and having a man lie to her about his singleness, when he was married and asking her to meet under false pretences. If a young woman in today’s society is not free from sexual harassment in her own home, in public, in a pub, in a nightclub, at a petrol station, on public transport or after a church service, where indeed is she safe?
The tragedy is that these experiences are all too common for many younger women, and it is vital that male Members of Parliament call them out. Although there is so much that we properly expect of the law, the police and the courts, they cannot change a whole culture on their own. That is where our common community life, our families, and indeed every single one of us, has a role. It is up to all of us to set a culture to uphold the values of decency, respect and honouring women that should be commonplace. In particular, it is up to all of us—especially men—to challenge the unacceptable behaviour of other men. The behaviour that I described earlier is not manly anyway; it is cowardly, bullying, pathetic and wrong.
Florence Eshalomi (Vauxhall) (Lab/Co-op) [V]
I start by offering my deepest condolences to the friends and family of Sarah Everard. May her soul rest in peace.
Parts of Clapham Common fall within my constituency, and having lived in Brixton all my life, I have walked the same streets that Sarah did. My first job was at the Sainsbury’s supermarket on Clapham High Street and my sixth-form college, St Francis Xavier Catholic Sixth Form College, is located at the southern tip of Clapham Common at Clapham South. I have felt afraid, and I do not want my daughter growing up and making the same adjustments that I did—that all women do. In the past few days, I have been contacted by hundreds of women and men—young and old, grandmothers, mothers, sisters, fathers, brothers—who live in Clapham and across my constituency of Vauxhall. Now they no longer feel safe.
Our streets and our public spaces should not be places of fear for women. We need to listen to women’s voices and we must believe what they are telling us. That includes making sure we listen to all women, including the voices of black women and trans women. Far too often, we do not hear the names of black women and minority ethnic women in the news or on social media, but sadly, many of them have been failed by the police and the criminal justice system. So I say the names of Blessing Olusegun, Joy Morgan, Bibaa Henry, Nicole Smallman and many others who have died on our streets. Only then can we start to heal the mistrust and put in place long overdue protections to protect all women. We must and we will reclaim the streets.
The Bill is wide-ranging and it contains a number of important measures that I welcome. I pay tribute to my hon. Friends for their tireless campaigning on dangerous driving, protecting our emergency service workers, reforming the Disclosure and Barring Service scheme, and widening the law to prevent adults from abusing their positions of trust and engaging in sexual relationships with young people under 18. These measures will make us feel safer.
However, the Bill is also a missed opportunity for much-needed reforms. It does not do nearly enough to address the urgent issue of racial disproportionality in our criminal justice system. As co-chair of the all-party parliamentary group on knife crime and violence reduction, I am disappointed that the Government have missed an opportunity to focus on prevention by ensuring that the organisations that need the long-term funding to tackle serious violence and build trust with communities that feel they are sometimes viewed as the perpetrators when they are actually victims, are not included. That includes the many girls and young women caught up in violence associated with gang violence.
I want to focus the rest of my remarks on some of the other measures proposed in the Bill. Those who seek to control the expression of the right to protest—
Madam Deputy Speaker (Dame Eleanor Laing)
Order. I am afraid the hon. Lady has significantly exceeded her time limit. She will have another opportunity at the next stage of the Bill.
Laura Farris (Newbury) (Con)
There is much that I welcome in the Bill, in particular that the Government have adopted recommendations made by the independent inquiry on child sexual abuse. I have a direct interest in this because I worked on it before entering Parliament. I think I am right in saying that this is the first time that the inquiry’s recommendations have been brought into law. It is a powerful thing for the survivors to see the nightmares of their past informing the laws of the future, first, by extending the definition of “position of trust”. When we looked at sports coaches and religious leaders, what they shared was status not just in their sphere but in their community. The children they chose tended to be vulnerable in the first place. They built on the bonds of trust with families to establish extended periods with those children, often overnight, and they were willing to engage in extended patterns of grooming to do so. There are other categories of worker to whom that applies and I hope the Government will keep an open mind on that.
It is also a core finding of the inquiry that we are failing to properly protect children against the worst kinds of abuse because offenders can travel abroad and find impoverished and vulnerable children to seriously sexually exploit. So I welcome the extension of the sexual harm prevention orders to limit their ability to travel and to give the Secretary of State the right to list countries. We know and the National Crime Agency knows what countries that takes place in. However, to be effective we must also take action against social media companies, which all too often are allowing very violent sexual exploitation to be streamed across their platforms. The abuse happens abroad, it is consumed in the United Kingdom and, if we do not take the opportunity to address that in the online harms Bill, I do not know if we ever will.
Similarly, on managing terrorist risk offenders, I particularly welcome the new powers given to the Parole Board under clause 108 to restrict the release of those who may have been radicalised in prison. This goes directly to the lone wolf attack in Forbury Gardens, on the doorstep of my constituency, where the assailant had been released just 17 days before and it might have changed the outcome.
I want to close by saying something about violence against women. I cannot accept that this Government are not doing all they can to protect women in this Bill, but particularly in the context of the Domestic Abuse Bill. It is so rare to have two new sexual offences identified in one piece of legislation, together with the new offence of coercive control.
Andrew Griffith
My hon. Friend speaks very eloquently about sexual violence against women and we would like to hear more from her.
Laura Farris
I am grateful to my hon. Friend.
In the last week, a new conversation has crystallised about the safety and dignity of women and their ability to move around in public, and attention must be paid to their voices. I do not think the Bill is the place to rush through new measures or to bolt on new provisions, but I think the Government have an opportunity to begin an important conversation through their VAWG strategy, and I think there is a place for focused legislation on the issue at the end of the year.
Wera Hobhouse (Bath) (LD) [V]
Saturday night saw a peaceful vigil highlighting violence against women ending in scenes of women being forcibly restricted by men. It should have been a moment for women collectively to grieve the tragic loss of a life and publicly express their solidarity, but instead of a moment for reflection on the daily injustices faced by women, this weekend was a powerful reminder of the importance of our civil liberties and the right to protest.
Elements of the Bill are good. The Liberal Democrats support trauma-informed services and strengthening rehabilitation with the aim of reducing reoffending. We also support the police covenant, a measure that helps our police to be a better workforce. The Bill could be made even better by explicitly making misogyny a hate crime. We need to recognise the root causes of violence against women. In the same way that we recognise racial or religious discrimination and homophobia, we can recognise that hatred of women causes harm.
All that important debate is undermined by the part of the Bill on the policing of protests, which is an assault on our civil liberties and our democracy. The Government say they want to clamp down on the most destructive protests, but let us be clear that they aim quite literally to silence protest. The measure is a thinly veiled reaction to the climate protests that have taken place over the past couple of years around Parliament and in cities and towns across the country. The climate emergency has evoked strong feelings, particularly among young people, and it would be quite wrong to curtail their voices.
The whole purpose of demonstrations is to have one’s voice heard, to make an argument, to get the attention of those who make the law and to encourage change. Peaceful protest is at the heart of a liberal democracy. We have taken democracy for granted for a long time. Each generation has to fight for its freedoms. Each generation faces different challenges, but the diverse voices from all sections of our society should never be stifled or suppressed.
Liberalism exists to protect our freedoms, our democracy and our right to protest. If the Government were really serious about protecting women from violence, they would never attempt to silence their protests. That part of the Bill must go.
Mr Mark Francois (Rayleigh and Wickford) (Con)
I want to concentrate on the provisions of part 4 of the Bill, which deal with the long-standing problem of unauthorised encampments. Part 4 effectively upgrades acts of deliberate trespass from a civil to a criminal offence. The campaign of those of us who have argued for that change for a number of years now was based on a similar change in the law in the Republic of Ireland several years ago; hence it has often been referred to succinctly as the Irish option. The move has become necessary because of persistent illegal incursions by some individuals, including some members of the travelling community, that have become an increasing problem in many parts of the country, including my home county of Essex, in recent years.
For the record, many Travellers are perfectly law-abiding and have good relations with the settled community. Unfortunately, however, some others are not, and there have been repeated examples of antisocial behaviour and even criminal damage resulting from illegal encampments in recent years in places as varied as village greens, sports grounds and industrial estates. As a civil offence, it has often necessitated local authorities having to go to court, at public expense, to have such incursions moved on, as well as sometimes being involved in the further expense of clean-up operations once illegal sites have been vacated.
Under this Bill, which I am proud to say fulfils a 2019 Conservative manifesto commitment, police officers will be given powers to challenge illegal encampments of one vehicle or more. If people wilfully refuse to move on, they can be arrested with a maximum sentence of three months’ imprisonment or a fine of up to £2,500, or both. Crucially, offenders can also have their property, including their vehicle or vehicles, impounded by the police.
I can assure the House that this important change in the law has proved very popular with my constituents, and I have received many messages of support since it was confirmed last week. In addition, it has also proved popular with the Essex farming community. The county adviser of the National Farmers Union, Dr Jake Richards, sent me this brief message:
“Dear Mr Francois, I am writing to thank you on behalf of the NFU and the farmers in your constituency for your support and for the Commitment from fellow Essex MP, Rt Hon Priti Patel, on Monday when she announced that changes to the law were being brought forward as part of a new major criminal justice bill to be introduced to Parliament imminently. The changes proposed will be most welcome by our Members.”
Our industrious Essex police, fire and crime commissioner, Mr Roger Hirst, also warmly welcomed adding these powers to the statute book.
In summary, I hope and believe that these tough new powers will act as a genuine deterrent to illegal encampments in future and should thus lead to improved relations between the travelling and settled communities. I congratulate Ministers, and the Home Secretary in particular, on having the courage to introduce them and, in so doing, fulfilling part of the manifesto on which we were elected in the first place.
Sir Robert Syms (Poole) (Con)
I am particularly pleased to follow my right hon. Friend the Member for Rayleigh and Wickford (Mr Francois), because I intend to address virtually the same subject. Poole is a beautiful place. We attract people, and, unfortunately, we attract people with unauthorised encampments. Last summer, in Poole Park, the cricket pitch was camped on. There was Whitecliff, Sandbanks car park—there are many areas in Poole that face unauthorised encampments, which take away well-used local resources from children and grandchildren, and my constituents.
Part 4 of the Bill was in the 2019 manifesto. I am particularly pleased that the Government have grasped this issue and brought forward this legislation. My constituents could never understand how they had to have licences, obey the law and pay their council tax, but if they stepped on any area that was illegal, they would get arrested by the police, when there are people—
Sir Iain Duncan Smith
Does my hon. Friend not agree that this is the age-old clash between rights and responsibilities? In this case, they have responsibilities but they see others who simply claim they have rights.
Sir Robert Syms
My right hon. Friend makes a very good point. What used to happen until recently was that people would turn up, and others would phone the local council, which would say that it could not do much about it. They would then phone the local police, who would say that they could not do much about it—indeed, there have been occasions when the local police have watched people go and set up unauthorised encampments—and then they would phone the Member of Parliament and let him know what they think about him, saying that the Government must do something. It is true that the local authority and the police have had more powers than they have been willing to use, but this is in the “too difficult to deal with” box, so people have just kept their heads down and hoped that, after a week or two, people would move on.
However, this does increase real costs to local authorities, which, apart from cleaning up sites, sometimes have to put special measures in to try to protect sites. Year after year, this costs council tax payers quite a lot of money, so I am very pleased that the Government have put these powers in the Bill. I hope that they survive their passage through the House. They will make a material difference to the quality of life of many of my constituents.
There are issues to do with Travellers that we need to address apart from unauthorised encampments. One of those is the poor educational qualifications that many of their children have—the Government need to pay attention to that to see what more we can do—and another is the health standards of many of these people, who do not access hospitals as easily as the rest of us.
Overall, what the Government are doing is very sensible. This is the sort of Bill that a confident right-of-centre Government should bring in to deal with law and order— not only with Travellers but with many other areas. Personally, I am becoming a great fan of the Home Secretary and the Lord Chancellor, who instead of talking a good game are actually producing things in legislation that will make a great difference to people’s lives.
Sarah Champion (Rotherham) (Lab) [V]
I welcome parts of this Bill, but there are glaring omissions, especially around violence against women and children. In Rotherham, and across the country, all too often victims and survivors of crime, especially sexual violence, lack confidence in the system, and this Bill was the opportunity to change that. There are far too many instances where sentencing is too lenient, or indeed where predatory or violent behaviours are not even criminalised.
I am relieved that the Government are finally reintroducing pre-charge bail conditions. Removing them in 2017 led to survivors living in fear of reprisals from their abusers. I also very much welcome the fact that the Government are finally bringing forward the “positions of trust” provisions that make it illegal for faith leaders and sports coaches to have sex with 16 and 17-year-olds in their care. However, the Government need to extend this law to cover the likes of driving instructors, youth workers, police officers and private tutors.
I am pleased about the progress on extending the offence of arranging or facilitating the commission of a child sex offence to include the rape and abuse of a child, and on stronger sentences for commensurate harm. However, the Bill must be strengthened to address online sexual exploitation. Aggravating factors must be included, as has been done in Australia, when it comes to sentencing. The Bill should be amended to state that approaching a person with regard to child sexual offences also specifically includes doing so online or via other telecommunications.
The provisions on the establishment of a list of countries considered to be at high risk of child sexual exploitation or abuse by UK nationals need to include countries that are at risk from UK citizens who commit abhorrent crimes online. Too often, I hear of UK nationals remotely directing abuse of, often, Filipino children from their own homes. Currently, there is a loophole in the law whereby a registered sex offender can change their name through deed poll and then go under the radar of the authorities. Alarmingly, I recently uncovered the fact that over 16,000 sex offenders breached their notification requirements in the past five years, which means that they disappeared from the system set up to monitor them.
Finally, I am astounded that while the Bill makes several changes to procedures in courts and tribunals, the Government have not used it as an opportunity to further improve support for victims and witnesses of sexual abuse.
Tragic events of the past week have shown just how important this Bill is. For too long, abuse, and particularly violence against women and girls, has gone on unchecked and survivors have been left to deal with a system that is not only not working but often making their situation worse. Crimes against women often specifically occur because they are women. These crimes are not gender neutral, so the law should not be either. We must consider a definition in terms of making misogyny a hate crime.
Andrea Leadsom (South Northamptonshire) (Con)
The appalling events of recent days have caused great anger and anxiety. My inbox has many emails calling for curfews on men and many others calling for greater understanding that not all men are perpetrators. At such a difficult time, we must find the right balance between personal freedom and state intervention, but also recognise how vital it is that we teach our boys and our girls the profound importance of mutual respect.
In speaking in this Second Reading debate, I want to focus on a measure in the Bill that I think everyone can get behind—giving the police new powers to tackle unauthorised encampments. For my constituents, that cannot come soon enough. In late 2019, a plot of floodplain near Northampton was sold privately, and then, in the middle of 2020, it was auctioned off to potential developers. The sales were under false pretences because planning consent would never be granted on a floodplain. Then in August 2020, as local residents had feared, a large number of vehicles entered the site and set up an unauthorised encampment. From August to October, the local community was witness to huge piles of commercial waste entering the site and being dumped on the floodplain and in the River Nene, and multiple vehicles with no tax or MOT, some with false plates, entering and leaving the site. There were regular bonfires with acrid black smoke, and visible payment being taken for third parties entering the site to dispose of builders’ waste.
Local residents suffered verbal and racial abuse and antisocial behaviour, including rocks being thrown at passing cars, air rifles being shot, quad bikes being ridden at all hours and dogs running loose around the streets. Residents endured months of real fear and did everything they could to provide evidence to their parish and borough council and the local police. Finally, in October last year, the combined efforts of Northants police and the borough council got the Travellers off the land.
A political philosophy that has always chimed with me is that of John Stuart Mill. In setting out to describe the parameters of individual freedom, he said that we should all be free to do exactly as we like, provided that we are not impeding someone else’s freedom to do exactly as they like. That is a difficult balance to achieve in real life, but where the rights of communities versus the rights of Travellers are concerned, there can be no doubt that facilitating a Traveller’s way of life must not necessitate the misery and fear that was caused for my constituents. Many will be heartily delighted with this new measure, and I am grateful to my right hon. Friend the Home Secretary for listening to the huge majority across the country who want to see greater protections from unauthorised encampments.
Lloyd Russell-Moyle (Brighton, Kemptown) (Lab/Co-op)
This is a Trojan horse Bill, and the Home Secretary is Sinon at the gates of Troy saying, “I’m the only one left! Please let me in with this fantastic Bill that’s going to do all the things that you Opposition Back Benchers have been asking me to do.” Well, we see that hidden in the Bill, there are some nasty and pernicious laws. Many of the good things in the Bill could be achieved by either amending or bringing forward separate Bills, such as the Death by Dangerous Driving (Sentencing) Bill, promoted by the right hon. Member for Maidenhead (Mrs May).
Instead, the Government have put forward a Bill that is so big, so expansive and so diverse that it covers two Departments, so that they can squeeze the good things in as well as those that deny the rights of people. If we allowed this to stand, every Government would do it, would they not? They would put pernicious rules into what, in public speaking, we call a “something sandwich”, where you put the bad in the middle and sandwich it with the good. That is what the Bill is. I will come on to what the particularly bad things are, but there are also great missed opportunities. I sat on the upskirting Bill Committee. We pushed amendments, and the Government accepted that they would explore bringing forward misogyny as a hate crime. Where is that in this Bill? That could have been included, and it is so disappointing that it is not. There are clearly missed opportunities.
Part 3 of the Bill is particularly problematic, and notably the use of the phrase “serious unease”. To tell the truth, I find myself feeling serious unease when certain Government Members speak and I disagree with them, but in a democracy, I can feel unease, disagree and even think that they are saying things that are offensive, but they are not criminalised. During the Brexit debates, in the main, the protests outside this place by UKIP and Brexit party supporters and by the remainers were eccentric and annoying to many of us at the time, but to me, it summarised the beauty of British democracy when those peaceful protesters, sometimes of opposing forces, were ringing bells and shouting into horns. Now there is the idea that the police could say, “You’ve gone a decibel over—you’re a criminal.” Many of the people on protests will not even know that the police have laid orders down, because it will not be widely known, so we will be criminalising people without them even knowing it.
I have not even got on to some of the really pernicious measures in the Bill, such as those on Traveller communities. If we had decent move-on sites and decent support from local authorities and made sure that we worked with the community, we could resolve the problems. Surrey has no move-on sites whatsoever—no wonder there are problems in that county. Those are the things we need to deal with rather than criminalising. The idea that someone in a layby over one night could be considered a criminal—
Madam Deputy Speaker (Dame Eleanor Laing)
Order. I was so carried away with the hon. Gentleman’s rhetoric that I did not notice he had exceeded his three minutes. I apologise to everybody else.
Gareth Johnson (Dartford) (Con)
I welcome the Bill, which seeks to inject fairness into the criminal justice system and rights many wrongs currently in existence. The protection that clause 46 gives to war memorials and wreaths laid on them is admirable, and I am glad that the provision is being introduced. To desecrate a memorial is a particularly low thing to do and the law should reflect that.
May I also welcome the changes to sentencing powers to allow for life imprisonment for death by dangerous driving? In too many cases, the courts have been unable to deal with these matters effectively and consequently they have given inadequate sentences for even the worst incidents. That will stop, and we will all be safer as a consequence. I have to say, it would have helped if the Crown Prosecution Service had been more minded to lay manslaughter charges in many such instances. It seems to be only on the road that an offence can happen in which someone carries out a deliberate action that creates an obvious risk that is against the law, and yet the CPS is reluctant to lay manslaughter charges. That will change because of these proposals, which I welcome with open arms.
The serious violence reduction orders to be brought in by the Bill are truly groundbreaking. Knife crime is an evil that destroys lives and terrifies communities, but the Bill gives the police powers to make a difference. However, we do not want knives simply to be replaced as the weapon of choice by acid, so I ask the Minister to consider including the possession of noxious liquids in the provisions. That would build on the massive improvements that both the Ministry of Justice and the Home Office have achieved in reducing the number of such attacks.
Finally, we need to counter the serious misinformation that has been spread about proposals in the Bill to place conditions on demonstrations. The proposed extra powers are not a ban on protests—far from it. There must always be a right to protest, but there must always be rights for those going about their business, too. The Bill seeks to balance those competing rights. It will allow protests, vigils, demonstrations and marches, but not the blocking of bridges or stopping traffic and bringing cities to a standstill. Protests, yes; causing serious disruption to others, no. The Labour party’s voting against the Bill is totally wrong. The message needs to go out loud and clear that Labour Members are voting against provisions to extend sentences for death by dangerous driving, child killers, and serious violence and knife crime. They should vote for the Bill.
Alex Davies-Jones (Pontypridd) (Lab)
The last few weeks have been incredibly difficult for women across the country. Sarah Everard’s death is utterly tragic. My thoughts are with her family and friends, as well as with all those who have lost a loved one to male violence.
It is clear to me that Saturday evening in Clapham was supposed to be a peaceful vigil, not a protest. I have spent the last few weeks speaking to women overwhelmed by their feelings of grief and anger. I have spoken to those who feel a little less safe on our streets, those who worry about the world in which their daughters will grow up, and those for whom recent events have brought back their own experiences of trauma, harassment and violence. Campaigns such as the #MeToo movement have ensured that conversations on abuse and violence are finally reaching the mainstream discourse, yet women are not under any illusions. We have spoken out against male violence in all its forms for decades, and I am frustrated and appalled that only now are we being listened to. What is in the Bill for us? How does it protect us? How does it address the scandalous prosecution rates for rape and sexual assault? How does it make women safer on the streets? The simple answer is: it does nothing. Increasing sentences for serious crimes is important, but there is little point if criminals never get to court to be sentenced, as is the case in 99% of rapes. Instead of prioritising victims, the Bill curbs our rights. It makes it harder for us to protest when the Government get things wrong and put the protection of statues above the protection of women.
While I welcome the measures in clause 45 that will extend the existing positions of trust offences, some alarming gaps remain. I am hugely concerned that those provisions will not be applicable in all the circumstances in which they have the power to make a difference. As co-chair of the all-party parliamentary group on wrestling, I am hugely disturbed that the provisions set out in clause 45 will not protect those in the wrestling industry. Colleagues may not be aware that wrestling was devastated by the #SpeakingOut movement, which documented horrific tales throughout the industry, including threats of rape and sexual abuse. Some of the victims facing abhorrent abuse have been children as young as 13.
I am sure that the Minister agrees that we do not want perpetrators of sexual offences to fall through a loophole in this legislation, yet because professional wrestling is not classed as a sport and as such does not have a governing body, it is at risk of doing just that. I urge the Minister to commit to meeting me and my colleagues in the APPG on wrestling to talk about the potential avenues to include appropriate protections for young wrestlers in this Bill.
Actions speak louder than words. To quote a heroine of mine, Justice Ruth Bader Ginsburg, on what would have been her 88th birthday:
“Real change, enduring change, happens one step at a time.”
The Government need to recognise that we need to take that step, and that we are at a crossroads with a real opportunity to change the lived reality for women and girls in this country. I plead with the Minister to work with the Labour party to ensure that women and girls are safer on our streets and in their homes, to work with us to ensure that the right to protest is not reduced and that voices across the country are not silenced—to work with us to finally do the right thing.
Lee Anderson (Ashfield) (Con) [V]
Now then, no one should feel unsafe in our country, and this Bill will be of great comfort to law-abiding British people who want to see greater powers for our police and tougher sentences for child murderers, sex offenders, killer drivers and anyone else who thinks they are above the law. If you cannot live by the rules of our society, then you should live in a place that has a different set of rules, and that place is prison. The good news is that we are recruiting 10,000 extra prison officers and 20,000 new police officers, and we are building more prisons.
Post covid, people want to return to safe streets and safer neighbourhoods. This Bill does that. This Bill ensures that the victims of crime are put first. I find it strange that Labour is talking about tougher sentences for crimes against women, yet in December it tried to stop us deporting foreign rapists. One Labour MP said we should not deport those criminals in December as it was too close to Christmas. I disagree; I thought it was a great Christmas present.
Labour says that this Bill will remove the right to protest. Rubbish. This Bill will protect peaceful protests from being hijacked by trouble-causing agitators. Labour’s idea of peaceful protests are the ones we saw in Whitehall last year, where police were attacked, our flag was burned and memorials were damaged, while its own MPs looked on and said nothing. That was disgraceful.
We have a Home Secretary who is brave enough to tackle the issue of illegal camps. Those camps have made the lives of Ashfield residents a misery. When they are set up, crime rises, locals feel intimidated and the council is left with a massive clean-up bill. This Bill puts a stop to that nonsense. Police in Ashfield are doing a great job, but I know they are frustrated by short sentences and weak bail conditions. This Bill will give our police extra powers and the extra confidence they need.
I am confused that the shadow Home Secretary said tonight that he agrees with lots of things in the Bill, yet he will vote against it, proving once again that Labour is on the side of the criminals. Before lockdown, residents would often see me sat in the front of a police car going out on patrol and supporting our police, which is in sharp contrast to some Labour politicians, who have been seen in the back of police cars on the way to the station. It comes as no surprise to me that Labour will not support this Bill, after reading this week that there are 14 leading Labour politicians who have been arrested, imprisoned or under investigation in the past six months. There is no wonder we need more prisons.
Mr Toby Perkins (Chesterfield) (Lab)
We will try to get back to some sense of reality after the nonsense we have just heard.
This is a really important and wide-ranging Bill, and there are many aspects that I and my colleagues welcome. I start by paying tribute to my hon. Friends the Members for Halifax (Holly Lynch) and for Rhondda (Chris Bryant) for their success in securing the “protect the protectors” aspects of this Bill; my right hon. Friend the Member for Warley (John Spellar) for securing reform of the Disclosure and Barring Service; and my hon. Friend the Member for Barnsley East (Stephanie Peacock) for her work that has led to the dangerous driving reforms. All those things and more deserve support. It is a testament to the Home Secretary’s insatiable desire for conflict that a Bill that contains so many measures campaigned for and fought for by Labour MPs should still be impossible to support.
What a missed opportunity this Bill is. There is nothing that will make a significant difference on the issue of violence against women and nothing on victim support, despite what we have just heard from the hon. Member for Ashfield (Lee Anderson) about the Tories being a party that supports victims. Indeed, it considers protecting statues a greater priority than protecting rape victims. The events of this weekend have brought into sharp relief where a civilised society must allow protest and support our police to keep our streets safe from criminals, not instruct them to arrest peaceful and grieving women.
We can easily see why this division is a political strategy of Conservative Members. Listening to speeches like that of the hon. Gentleman, it is very clear that they want to introduce elements that we will all agree with, and then introduce one or two elements that we cannot possibly agree with in order to say that we are preventing the good parts of this Bill. It is absolute cheap politics, and it is the politics of division. This is a Government who have frozen police pay, cut police numbers, and let criminals off the hook due to backlogs in the courts and overcrowding in our prisons. There can be no doubt but that they are no friends of the police.
Before I finish, I want to take a moment on someone who is a friend of the police—the police and crime commissioner for Derbyshire, Hardyal Dhindsa. I was extremely proud that my county, Derbyshire, where less than 5% of residents are BAME, was the first area to elect a BAME police and crime commissioner. Five years on, we are even prouder. Hardyal promised he would set up a programme in every village and town in the county. Not only has he done that, but he has met residents right across our county, while fiercely fighting the corner of our dedicated police both in Government and in the media. He has never forgotten who he is there to represent, and if the police get it wrong, as they did when Derbyshire police published pictures of dog walkers in the Peak or fined people walking five miles from home, he has been quick to be the voice of the people, not hidden away from a difficult situation. I hope he gets people’s support on 6 May.
Tim Loughton (East Worthing and Shoreham) (Con) [V]
This is a substantial and impressive Bill. Many of the policies in it predate the 2019 general election and some featured in the September 2020 White Paper, so they are certainly not measures that are being rushed through. It is difficult, in the space of three minutes, to do justice to the 296 pages, 176 clauses and 20 schedules, so let me just name check a few of the parts I particularly support.
I support putting the police covenant into law at last and the increase in penalties for assaults on emergency workers. It is incredible that we are having to contemplate that. I support the allowance for police officers faced with dangerous high-speed car chases in pursuit of dangerous criminals who are done themselves for dangerous driving; they are just doing their job. I am pleased we are toughening provisions on criminal damage to memorials, especially military memorials. I support tougher penalties for causing serious injury by careless or inconsiderate driving and tougher sentencing of child murderers. I support scrapping the early release of terrorist offenders, innovation in probation with the use of curfews and community sentencing, and clamping down on sex tourism.
There are lots of sensible, practical and much-awaited measures in this Bill that the vast majority of our law-abiding constituents will certainly welcome, but of course Labour is voting against all of these tonight. It has not even bothered to table a reasoned amendment to let the Bill proceed and then scrutinise it in Committee. Apparently, it is just a blanket vote against the whole of the Bill and all the measures in it. Labour Members may try to claim that they have objections to the new public demonstration conditions proposed for preventing serious disruption to the life of the community or recklessly causing public nuisance, and they may claim that in some way it suppresses free speech, but if they really do have such concerns, they should support the Bill and argue for improvements in Committee. However, people gluing themselves to tubes to disrupt the whole London underground system, clambering on to planes to shut down airports, preventing an ambulance reaching an emergency department through protesters, preventing the distribution of a free press, or assaulting police officers to get to, violate and vandalise war memorials does nothing to further free speech, free association or any democratic process. Ordinary law-abiding people should not have to put up with it, and there are many thresholds and conditions in this Bill.
I specifically welcome measures to extend the definitions in relation to those who abuse positions of trust by engaging in sexual activity with minors. The Bill specifically references sports coaches and faith leaders. However, private tutors, including music teachers, are exempt from many of the safeguarding checks that we rightly expect of mainstream employed teachers. Can we consider including them, as I tried to do many years ago as Children’s Minister?
I warmly welcome the measures to criminalise trespass when it results in unauthorised encampments, causing damage in order to access private and community property, trashes the cricket pitch or village green when it happens, and prevents local people using the amenities that they pay for. To add insult to injury, these unauthorised encampments eventually leave the site scarred with fly-tipping, everything from building waste to human waste, and then they come back and repeat it all over again in a few years’ time. It is not acceptable. This Bill will clamp down on it at last, and I support it.
Apsana Begum (Poplar and Limehouse) (Lab)
Thank you, Mr Deputy Speaker, for calling me to speak in this incredible important and timely debate.
Those of us who continuously rejected the recent Covert Human Intelligence Sources Bill did so partly because of the impact that it would have on the freedom to protest. That freedom is being challenged yet again today, through the authoritarian measures proposed in this Bill.
This weekend, people across the country watched in horror the visual evidence of the disgraceful police action towards peaceful attendees of a vigil to mourn the murder of Sarah Everard and to express a collective anger and despair that so many women still suffer violence at the hands of men as part of their everyday life. Despite the Government’s attempt to conjure up smoke and mirrors earlier today, a spot of damage control if you like, this incident exactly demonstrates that there are still serious questions about the powers that our police forces have, the way that these powers are executed, towards whom they are targeted, how they are scrutinised, and how those with such powers are held to account.
The Government regularly express their concern about human rights in other countries. If enacted, however, the Bill before the House today would
“expose already marginalised communities to profiling and disproportionate police powers through the expansion of stop and search, and Gypsy, Roma and Traveller communities may face increased police enforcement through the criminalisation of trespass.”
Those are not my words, but the words of the director of the well-respected human rights organisation, Liberty.
Protests are often a space for the most marginalised to make their voices heard. In the past year, we have seen that in the Black Lives Matter protests and we have seen it over this past weekend. Just as police rode into protesters on horses last year, so, too, did they violently grab women on Saturday night.
Freedom of speech intrinsically linked to the freedom of protest should be enshrined in our legislation so that it is available to all. The Bill, however, would give the Government even more power to decide whether a protest should be allowed to go ahead. Given that our current Home Secretary refers to anti-racist Black Lives Matter protesters as “thugs”, it is no wonder that people up and down the country are alarmed. The crux of the matter goes beyond that. The right to protest must be protected or else we find ourselves on an extremely worrying path, with a totalitarian Government able to silence whoever they choose.
Despite the rhetoric, all evidence indicates that this Bill is unlikely even to cut crime and to make those whom it intends to protect safer. Successive Governments have brought in longer sentences and created even more prison places, and that has not reduced crime or slowed the rate of offending.
The impact of this Bill will be felt by marginalised communities more than any other. It will be felt by women, unable to protest at the everyday violence they face. It will be felt by ethnic minority communities, Gypsy, Roma and Traveller communities, trade unions, anti-racist campaigners and climate emergency campaigners—
Mr Deputy Speaker (Mr Nigel Evans)
Order. I am afraid we must leave it there.
Miss Sarah Dines (Derbyshire Dales) (Con)
I welcome the Bill and the extensive improvements that it will make to the justice and policing systems. I will mention just a few of the many new provisions that have been the subject of much correspondence to me as the Member of Parliament for Derbyshire Dales.
I am pleased that the Government have been prepared to deliver on their manifesto commitments as opposed to changing them as they go along, as those on the Opposition Benches often do. This is what the majority of my constituents voted for. I was pleased to hear from a fellow MP for Derbyshire, the hon. Member for Chesterfield (Mr Perkins). I am disappointed that he will not be supporting the Bill, because I fear that he may well be out of tune with his constituents.
Over decades, the people of Derbyshire Dales have been plagued by illegal encampments. The disruption and damage caused by these illegal encampments have hugely distressed my constituents who have often taken months to resolve these issues only for them literally to appear again up the road. There have been substantial issues in Ashbourne, Matlock and Bakewell, which have caused huge upset, mess, and expense to Derbyshire Dales District Council and its good residents.
The Bill criminalises trespass and strengthens police powers to tackle unauthorised encampments. Under the new legislation, the police will have the power to seize vehicles, at last and to arrest or fine trespassers who intend to reside on public and private land without permission, while ensuring that they are not able to return for at least 12 months. The new criminal offence is much to be welcomed—up to three months in prison or £2,500. That is what my constituents, and people across most of the country, have been demanding.
I support the provisions to double the maximum sentence for assaulting an emergency worker from 12 months to two years. It is ironic that Labour Members wish to increase sentences for offences such as rape, but are intent on voting against those provisions. It makes no sense whatsoever. I fully support the extension of the law on positions of trust. As a mother of four young men who were once young teenagers, I am reassured that the Government are at last prepared to do something regarding sports coaches and religious leaders, and ensure that our children are safe. It is a landmark step forward and I am grateful for it.
On war memorials, I felt sick to the pit of my stomach to see Churchill’s statue jeered at and sprayed with cans of paint, and I take my hat off to my hon. Friends, some of whom are in the Chamber, who cleared it up. I am surprised that Labour Members will oppose some of these common-sense measures, and it is a testament to just how out of touch they are, and how difficult it will be for them to win the trust of voters. Conservative Members will fulfil our promises, and ensure that the manifesto pledges are kept.
Chris Bryant (Rhondda) (Lab)
I confess that I feel saddened and ashamed nearly every year when we come to International Women’s Day, because we have to listen, again, to a litany of the number of women who have been killed by their partner, nearly always in cases of domestic abuse, and sometimes with their child. That has been my experience as an MP in the Rhondda, as nearly all the murders that have happened in my patch over 20 years have been of that exact same situation. What makes me ashamed is that the situation does not seem to improve year on year.
Perhaps three or four times in my life have I worried for my safety on my way home, and last week I felt ashamed to know so many female friends and constituents who say that that is their experience every time they go home. The Rhondda is remarkably safe. We have a very low level of crime. It is a safe place, yet a poll—not a scientific poll but one done by a local firm—showed that 84% of women in the Rhondda felt that they had been sexually harassed or been in danger on their way home. We must do a lot more, and we men must walk in women’s shoes—if you don’t mind the pun—a few more times. If that is uncomfortable, all the better. We need to learn the discomfort that many women go through.
I am delighted that the Bill changes the legislation on emergency workers, which I introduced as a private Member’s Bill. We had to fight tooth and nail against the Conservative Government of the day to get it in place, but
“more joy shall be in heaven over one sinner that repenteth”—
and all the rest, and I am delighted that the sinner repenteth and is now sitting on the Front Bench. Of course it is right to have tough laws against an assault on emergency workers, because an assault on an emergency worker is an attack on us all. However, we cannot just change the law; we have to ensure that the police implement that law, that the Crown Prosecution Service pursues it, and that magistrates feel it is important. I am afraid the Government have done nothing on that front since 2018.
Section 25 is about religion and sport and people in a position of trust, and of course we must deal with that. From my experience, I think we must also consider those who coach people in the arts. My worry is about personal freedom, because this is a woolly jumper that snags easily, and once snagged can readily unravel. We must be very careful about the noise provision. I have been on miners’ marches where we sang so loudly that the walls rocked. I have often been on Pride marches, when I wondered who on earth gave a gay man a whistle in the first place. Noise is part of a protest and part of our freedom.
James Sunderland (Bracknell) (Con)
I was discussing the Bill with a constituent over the weekend, when, bizarrely, she asked me whether I would be disloyal to my party. Loyalty is clearly an underrated concept, but this is much less about party loyalty and much more about doing the right thing. Those who claim that this Bill is anti-conservative, anti-libertarian, anti-democracy or even that it seeks to ban peaceful protest are wrong; it is actually about the silent majority, promises made in our manifesto, law and order, and the need to take this country to where it needs to be. I will be voting it through.
To me, this is one of the most pro-law and order Bills passed in recent decades. It gives police authorities much more confidence in the job that they have been trusted to do. It enshrines the police covenant into law, increases the maximum penalty from 12 months to two years in prison for assaults or battery against emergency workers, ensures that criminal courts have sufficient sentencing powers and, as we have heard, strengthens police powers to tackle unauthorised encampments. It also strengthens the management of sex offenders, and of terrorist risk offenders on licence.
I want to focus briefly on one particular aspect of the Bill—namely, the desecration of war memorials. Alongside my hon. Friend the Member for Stoke-on-Trent North (Jonathan Gullis), who is my very good friend, I was one of the signatories to the Desecration of War Memorials Bill, which will now been subsumed into law. I thank the Home Secretary, the Lord Chancellor, the Under-Secretary of State for Justice, my hon. Friend the Member for Cheltenham (Alex Chalk), and many others for all their support.
Every single war memorial, irrespective of nation, faith or location, serves as a visual reminder of the horrors of war and the appalling conditions that people face when fighting for their country. These names are not just an inscription on stone, but actual human beings who lived, loved and were loved. These heroes had friends and families, and were in the prime of their life when they were taken, so each memorial bears testimony to lives cut short, the anguish suffered by families, the potential that was never fulfilled, the children that were never born and the guilt suffered by those who did come home. That is why we must ensure that all war memorials are sufficiently protected in law, and that those who seek to damage them through wilful ignorance or stupidity are brought to justice. This Bill is excellent, and I will not hesitate to vote it through the House.
Charlotte Nichols (Warrington North) (Lab)
The Government published this blockbuster omnibus Bill last week and rushed it through to the Commons, hoping to swell a law and order narrative ahead of the local elections to distract from the Government’s widespread failings. Along with many sensible and necessary changes to the law that Labour MPs have called for—on child protection, dangerous driving, protecting frontline workers and supporting deaf people to act as jurors—the Bill acts as a Trojan horse to push through divisive culture war issues, including specific offences on damaging statues and cracking down on the public’s right to protest.
Ministers somehow did not foresee that law and order means more than the elements that they have chosen for this Bill. It means keeping women safe. It means supporting women who have suffered violence or sexual violence to come forward, prosecuting the offenders and achieving convictions. It means ensuring that the police and others in authority are held accountable to the public needs, and, yes, it means that the rights to protest, and to express grief and anger, are protected. Is it not a remarkably sad irony that this Bill claims to protect memorials, but could be used to criminalise vigils?
Of course, Ministers should have been able to foresee that violence against women could return to the top of the public’s priorities. Sarah Everard’s tragic death has resonated so viscerally with women not because it was unique, but because, sadly, it was all too typical; she could have been any of us. Last week in the International Women’s Day debate, my hon. Friend the Member for Birmingham, Yardley (Jess Phillips) read out the list of 118 women and girls, aside from Sarah, who were killed by men in the past year—one every three days. The real question is how women’s safety ever dropped from the top of the agenda, and yet this Bill never once mentions women.
According to recent figures, 97% of women aged 18 to 24 have experienced sexual harassment, yet the Bill does nothing to address that scourge. Even fly-tipping could get a longer sentence than stalking. As others have pointed out—irrefutably, at a time when less than 3% of rapes even reported to the police lead to charges, let alone convictions—rape has effectively been decriminalised. Last year, rape prosecutions fell to the lowest level on record. Even when a conviction is achieved, sentences can be as short as five years—half of what the Government think is appropriate for despoiling a statue. Addressing this horrifying situation in line with the demands made today by my hon. Friend the Member for Lewisham West and Penge (Ellie Reeves) should surely be the centrepiece of legislation that is called the Police, Crime, Sentencing and Courts Bill, but the measures she has called for are not even a consideration. I cannot support a Bill that puts protecting monuments ahead of protecting women. Women need concrete action from this Government, not action on concrete.
Jonathan Gullis (Stoke-on-Trent North) (Con)
This Bill delivers on the manifesto commitments on which the people of Stoke-on-Trent North, Kidsgrove and Talke elected me. I am particularly pleased that the Government have adopted proposals from the private Member’s Bill that my hon. Friend the Member for Bracknell (James Sunderland) and I worked on together, to ensure that in every town, village or city across our United Kingdom, thugs who desecrate war memorials will feel the full force of the law. Judges will now be able to consider more than just the monetary value of damage to these sacred memorials to our glorious dead when they pass a sentence—which may be a maximum of 10 years, but that will not be the case in every instance, as some Opposition Members are trying to make out.
I want personally to thank the Home Secretary and Lord Chancellor for our meetings and close work on this aspect of the legislation. I am troubled to see some Labour Members deriding and demeaning this important work. That conflicts directly with the advice given to the Labour party from a leaked sensitive internal strategy document, which said that Labour Members should make “use” of the Union flag and veterans. The fact that the Labour party want to make use of such things, rather than being proud enough to believe and willing to fight for them, is embarrassing.
I have been fortunate to see the incredible work undertaken by Staffordshire police locally, whether that is by meeting PC Karl Mander and his police dog Audi, who was stabbed in service, leading to the first conviction under Finn’s law, or walking the beat with PCSO Matthew Hough-Clewes last week in a local anti-social behaviour hotspot. This legislation is important in giving our police and our courts the powers and guidance they need to keep us safe, so I am left baffled by Labour’s position.
Desperately scrambling for a reason to vote against, Labour Members claim the new law will silence lawful protests. This is simply not the case. In fact, the Bill simply clarifies the existing common law offence of public nuisance. As a constituent who emailed me today said,
“if you are not breaking the law you have nothing to worry about.”
However, if someone wants to block roads and stop ambulances getting sick people into hospital, or glue themselves to a train so people miss a day’s work, the police will now be able to take action, preventing eye-watering costs like the £37 million that Extinction Rebellion’s 2019 protests cost the UK taxpayer.
To sum up, when I vote for this Bill, I will be voting for tougher sentences for child murderers and sex offenders, life sentences for killer drivers, ending the automatic early release of the most dangerous criminals, greater protections for our emergency service workers and delivering Kay’s law, which will help to protect women from their abusers. Those are the sorts of things that people in Stoke-on-Trent North, Kidsgrove and Talke expect to get done, and I will proudly do so.
Liz Saville Roberts (Dwyfor Meirionnydd) (PC) [V]
I have looked at what this rushed and punitive Bill will do for Wales, and I have found it wanting. It will infringe our right to protest, worsen inequality and lead to a yet more unjust society. This Government are not interested in seriously tackling the underlying causes of crime. They would rather overlook the cycle of offending while clamping down on dissent. The Labour party’s U-turn from abject abstention to principled opposition within the space of one hour yesterday showed that its leaders also have scant regard for the consequences of the Bill.
The Government display yet again a wilful ignorance of devolution, and the Bill’s “designed by England, for England” approach will further aggravate the damage caused by the jagged edge of justice policy in Wales. It shows that Wales needs control over justice now more than ever, so that we can develop a holistic approach that interconnects with our health, education and social policies.
The Bill’s erosion of the right to protest is antithetical to Wales’s values. We have a proud history of protesting against injustice, from non-conformism to Chartism, the miners’ strike, Welsh language rights protests and the present-day independence movement marches. The right to make peaceful protest against iniquity is something that lies deep within our culture. The Bill will also entrench Wales’s status as a nation of incarceration. Wales has a higher imprisonment rate even than England, and one that disproportionately affects black people, who are imprisoned at six times the rate of white people in Wales. The Bill will criminalise more young people and increase the number of vulnerable women entering prison, yet still tolerate the circumstances in which women such as Wenjing Lin and Sarah Everard were killed, all the while doing nothing to address the structural problems of the justice system in Wales, faced with disproportionate cuts to court numbers and support services.
The current system is failing. We could do so much better in Wales if we had proper control over policing and criminal justice. We could deliver a more humane justice system—one that enables equality, dignity and social justice, and that would allow us to tackle the root causes of crime, promote community support, tackle gender-based violence, root out structural racism, give victims a fair voice and protect our communities by prioritising the complex task of rehabilitation over the tabloid policing Acts of punishment—and a fair and just Wales for all. This is the nation we can be not if, but when we give ourselves the chance.
Kate Osborne (Jarrow) (Lab) [V]
During this pandemic, the Government have handed enormous powers to the police to enforce lockdown restrictions, leading to a situation where the police are now policing the coronavirus regulations as a public order problem, rather than a public health matter. It has led to dangerous lines being crossed. We must not forget that while this type of state violence was made visible at the weekend, it is the case that these tactics have been used to protect powerful interests throughout our history. It was seen during the miners’ strike, and it was seen last year as a response to the Black Lives Matter protests.
In a democratic society, policing requires consent and understanding of the public mood. We are seeing a huge overreach and a situation where women have been criminalised while attending a peaceful vigil. Recent events have left women feeling even less empowered in our society. For the police to say to women, “The way you can protect yourself is to stay at home”, is just not good enough.
It comes as no surprise that within this Bill there is no mention of women, whereas the word “memorial” appears eight times. The Bill seeks to ensure that attacking a statue carries a longer sentence than attacking a woman. What kind of message does that send about this Government’s attitude to tackling the endemic issue of violence against women and girls?
The Bill disproportionately impacts Gypsy, Roma and Traveller communities by criminalising trespass and increasing police powers of eviction. It will increase the inequalities experienced by Gypsy, Roma and Traveller communities and ensure that discrimination against those communities is still alive and well as an acceptable form of racism in this country. The Bill also extends the definition of “unauthorised encampment”, which in effect criminalises the increasing numbers of rough sleepers.
I believe the right to protest is sacred in any democracy, so I will be voting against this Bill, because it is an assault on our civil liberties, threatens what remains of our rights to protest, expands stop and search powers and further criminalises Traveller communities. The Government must think again and listen to the vast public anger regarding this Bill. I reject the politics of division laid out by the Government in this Bill, and I ask Members across the House to do the same.
Mr Deputy Speaker (Mr Nigel Evans)
Kate was dead on time, and I will now be strict as far as the time limit is concerned. Please do not exceed it.
Dehenna Davison (Bishop Auckland) (Con) [V]
Three minutes is limited, so I will focus on one core aspect of the Bill. I got my first taste of the criminal justice system when I was 13. My dad went to the pub and never came home after receiving a single blow to the head that killed him instantly. From never really having dealings with the criminal justice system, my family was thrust into a whirlwind of police meetings, lawyers’ appointments and court dates, all while trying to deal with the suffocating grief of losing my dad, and that has given me a deep desire to ensure that the criminal justice system works for the victims of crime.
I recently launched an all-party parliamentary group to investigate the rare but damaging phenomenon of one-punch assaults, with an emphasis on sentencing. I wish now that I had been able to get started earlier to feed in some meaningful and evidence-backed proposals to this Bill, but I am grateful to the Justice Secretary none the less for agreeing to meet next week to discuss the APPG’s work. I hope that together we can make some progress in delivering a fairer sense of justice for the left-behind families of one-punch assault victims.
The events that followed losing my dad were the darkest times I have ever known, but in those dark times were points of light in the incredible police officers who helped to support our family. I particularly pay tribute once again to Karen Cocker and Sue Best, our family liaison officers, without whom we would not have been able to navigate the court process with our sanity intact.
After scenes such as those we saw reported at the weekend, it becomes somewhat trendy to turn against our police and denigrate those who devote their lives to keeping us safe. The unfairness of all police being tarred with the same brush based on the actions of a tiny minority is surely something with which we can empathise in this place, given the unfairness of all politicians being held to account for the actions of the worst of us.
Since I was 13, I have had the utmost respect for our police. They run into the face of danger while we run away, stand face to face with armed criminals to keep us safe and are at the frontline of major national crises. The national policing wellbeing survey revealed that a shocking 67% of police officers report post-traumatic stress symptoms and that the average officer shows moderately high symptoms of anxiety. That is why I wholeheartedly supported the Conservative party manifesto commitment to deliver the police covenant—the people of Bishop Auckland elected me on that commitment, which we will deliver through this Bill.
It is our duty to protect the mental health and wellbeing of the police, just as it is their duty to protect us. The Bill will make it a legal requirement for the Home Secretary to report to Parliament each year on what steps they are taking on the physical and mental health and wellbeing of police personnel and their families. Through the Bill, we are also ensuring that our incredible police officers have the powers they need to keep us safe and to secure prosecutions. We are seeking to protect the public and to protect our protectors, both police officers and emergency service workers. I finish with a question. What message does it send that the Labour party is voting against this?
Rachael Maskell (York Central) (Lab/Co-op) [V]
Tonight, I pay my respects to the life of Sarah Everard. As she grew up in York, her loss is deeply felt by me and my community.
Extraordinary liberties have been relinquished to ensure that we kept safe during this last year, but when our liberties are stolen—and, I say this as a woman, at the very time we need them most—the measures in the Bill can only be described as repressive. We have a justice system that is institutionally discriminatory against women; that does not secure high-quality representation for them, that fails to prosecute the most heinous of crimes, that delays cases for years without survivors being able to access vital and necessary trauma services, and that completely fails to keep women safe. The Home Secretary was remiss in her opening speech, since the Bill fails women, fails society and fails to advance our justice. Now is the time when we need to take to the streets and reclaim them, yet the Bill threatens to criminalise us for using our power to force Government and their institutions to change. With economic, social and environmental failure, it is our duty to enable people to exercise their rights, but part 3 of the Bill restrains them.
Let me move on to part 4. I shudder at how the Government are drawing on the darkest periods of history by criminalising Gypsy, Roma and Traveller communities. This demonstrates that the hostile environment continues to fester in the Home Office, and it must be called out.
Before I close, I want to focus on clause 45. I have made a number of representations to Justice and Home Office Ministers, so they will know what I am about to say. It is not just in sport and religious settings where young people have been groomed and abused. My constituent received private tuition—music coaching—and was groomed for two years before being raped. Her case was one of the 99% of rape cases reported, but not prosecuted. Her perpetrator, now known for sexual impropriety, had no DBS check. If he had, she would have been safe. She was failed, and the Bill fails her and many more. All private tuition settings need full safeguarding checks and measures to be introduced. Secondly, host families of international students accommodate young people of different cultures and language. They need the protections covered by clause 45 too. I trust that the Minister will support such amendments.
The Bill is woefully insufficient when it comes to protection yet overtly hostile in disallowing people their rights and their voice. I came to this Parliament to fight for equality, protect the rights of my constituents and advance justice. It is unconscionable not to stand in the way of the repressive ideology advanced in the Bill. I call on the Government to think again and I will vote against the Bill.
Rachel Hopkins (Luton South) (Lab) [V]
The right to take non-violent individual and collective action is fundamental to the functioning of our democracy. The Police, Crime, Sentencing and Courts Bill is being rushed through, and it is ill thought out, with glaring failures, including authoritarian provisions such as those in part 3 that threaten our right to protest. Restricting the freedom of assembly and association contravenes article 11 of the Human Rights Act 1998, and significant concerns have been raised by trade unions, human rights groups, lawyers, activists and even the ex-chief constable of Greater Manchester.
The imposition of additional conditions on protests, such as being too noisy, simply look like an anti-democratic direct attack on particular social movements at odds with the Government’s agenda. This Bill represents an attack on the public’s freedom of speech, impacting on our fight for race and gender equality, against the climate emergency and for improved workers’ rights. Our country has a proud history of collective action, and I want to express my solidarity with those who attended Clapham common on Saturday to remember Sarah Everard and who were treated disgracefully. What we saw contradicts any notion that there needs to be an extension to the powers to oversee protests. Indeed, the former Home Secretary, the right hon. Member for Bromsgrove (Sajid Javid), has previously stated that
“legislation already exists to restrict protest activities that cause harm to others.”
Instead of ever more draconian powers, effective policing requires community consent, and to achieve that, there needs to be greater transparency and accountability for the way that protests are policed. I am pleased that David Michael, the Labour Bedfordshire police and crime commissioner candidate, who grew up in Luton, recognises that and is committed to using his experience in the police, together with his understanding of our community, to ensure trust between Bedfordshire police and the community it serves.
Placing more restrictions on people’s ability to gather and protest will not make the public safer. In fact, it is the opposite. It will trample on our ability to stand up for our human rights and against injustice. The Home Secretary focused her remarks on wanting to support women to feel safe while walking down the street, but heaven forbid we do so a bit too noisily, a bit too annoyingly or a bit too near our elected representatives in order to stand up for our human rights.
Individual and collective action is something to be celebrated and encouraged in a functioning democracy. I owe it to the women role models who stood up for what they believed in and shaped my political awareness as a teenager—be it those at the Greenham common women’s peace camp, the Women Against Pit Closures or those marching against apartheid in South Africa—as much as I owe it to those women now or who will come after me, to not let our right to protest, be it noisy or annoying, be slowly eroded.
Stuart Anderson (Wolverhampton South West) (Con)
I am glad to be speaking about this eagerly awaited Bill because of its importance for the residents of Wolverhampton. I have campaigned and will continue to do so for a safer and cleaner Wolverhampton. I want the residents to be able to walk clean streets day or night and feel safe.
I fully support the Bill and know that it will be welcomed by many of my constituents. I believe in tougher sentencing for child murderers and sex offenders. I approve of the crackdown on knife crime and violent crime, especially to protect emergency workers. Last year, I conducted a community survey. One of the top areas of concern for my residents—even in a pandemic—was crime. Residents are always getting in touch with me about different issues that the Bill addresses. They do not want to see thefts, fly-tipping and unauthorised encampments, and that last point has probably caused me more work than anything as an MP.
Wolverhampton has beautiful parks such as Bantock and West Park, and over the years, these have been home to unauthorised encampments. I want to make it clear that the majority of the Traveller community are law-abiding citizens who cause no trouble in the local community. We in Wolverhampton did see that, but we have also experienced major problems. To deal with that, Wolverhampton Council took out an injunction, giving it extra powers to move unauthorised encampments. Part of the injunction was to build a transit site. I have no problem with that, and I understand that there needs to be a place for the Traveller community to visit. The site chosen was Gorsebrook Road in Dunstall, which is still one of the most deprived areas in Wolverhampton. It was not welcomed by the residents or by the Traveller community. The cost to build the transit site, in an area that I have championed as a nature trail for local schools and residents, is £1 million. The Bill will negate the need for an injunction at the transit site in its current form. I know that work is under way, but I will continue to ask City of Wolverhampton Council, as I do again now, to pause the work, wait for the legislation to be passed, save money, develop the nature trail and build a legacy for generations to come.
Kim Johnson (Liverpool, Riverside) (Lab) [V]
The scenes at Clapham common this weekend exposed a disgraceful abuse of power by the Metropolitan police. However, for too many of us, the scenes did not shock; they have become worryingly familiar. From the miners protesting at Orgreave and elsewhere in the 1980s to the climate change and Black Lives Matter protests last year, the violent crackdown by police on peaceful demonstrators exercising their right to protest has been routine, systematic and deliberate. Such actions raise the fundamental questions: who do the police protect and who do they serve? This weekend, it was abundantly clear that the answer to both questions was not women.
By making it an offence to cause serious annoyance or inconvenience, the Bill restricts our fundamental rights to freedom of assembly and expression and effectively removes our collective ability to fight back against state abuses of power. The proposals for a new serious violence reduction order will provide greater power to stop and search a person at any time, in any place and completely free of suspicion. There are major criticisms of current stop-and-search powers, which impact disproportionately on black people, particularly in my city of Liverpool. A recent Home Office report identified that black people are 2.7 times more likely to be victims of stop and search and three times more likely to have force used against them. The police do not need more of these powers, which will not protect us.
Some of the Bill’s most disturbing clauses attack the nomadic lives of Gypsy, Roma and Traveller communities by criminalising unauthorised encampments and establishing trespass as a criminal offence. The proposals are discriminatory and potentially unlawful. The Government’s own consultation on extending the powers showed that even the majority of the police respondents to the consultation think the crackdown is the wrong approach. GRT communities are among the most persecuted and marginalised. In Liverpool, we have a large permanent settlement of GRT families living in my constituency. They face systemic discrimination and routine violence. Instead of supporting these communities, who already face some of the starkest inequalities, the Government seem hellbent on introducing tougher powers to act against them.
The Government’s approach to public safety is fundamentally flawed: it is rooted in discrimination against communities and restrictions to our freedoms rather than a serious attempt to tackle the problems that we face. I appeal to Members from all parties in the House to ensure that this weekend’s horrific scenes mark a serious turning point. The draconian powers in the Bill must be torn up and a new approach to public safety must be pursued—one that puts safety, welfare, justice and accountability at its heart.
Jane Hunt (Loughborough) (Con) [V]
The first duty of any Government must be to protect the public and keep local communities safe. I know that that belief is shared by many in my constituency, so I welcome this important Bill, which introduces a comprehensive package of measures to achieve just that. Every day, police officers and those in the emergency services put themselves in dangerous situations to keep us safe. Although legislation is in place for the most serious of crimes in this policy area, the sentencing for assaults is too weak. We have a responsibility to ensure that the police and emergency services can carry out their day-to-day duties as safely as possible. The Bill will help to achieve that.
There are many facets to the Bill, but I wish to focus on two particular aspects: bringing people to justice and reducing reoffending. I have been pursuing these issues on behalf of Loughborough since I became an MP and I did so some years ago when I was fortunate enough to chair a panel on reducing reoffending on behalf of Charnwood Borough Council. I refer the House to my entry in the Register of Members’ Financial Interests.
Let me turn first to the removal of the presumption of release pending investigation and the presumption in favour of pre-charge bail conditions, otherwise known as Kay’s law. The change will provide a duty to protect victims and will enable the setting of conditions while further investigations are undertaken. This is vital both to the safety of the victim and to encourage the reporting of crimes with the knowledge that bail conditions can be imposed to help to safeguard the victim.
I received a number of emails from my constituents who are very concerned about sentencing and I have to agree with them that more needs to be done to ensure that those convicted of the most serious crimes receive appropriate sentences and spend more of their sentences actually in prison. That will not only restore public confidence in the justice system, but crucially ensure that victims, who sadly often bear physical and mental scars of their experience, receive the justice they deserve.
Sentencing, however, is only one side of the coin. I welcome that the Bill also places a strong emphasis on action to reduce reoffending. If we are to break the cycle of reoffending, we must ensure that offenders have every opportunity to break the vicious circle of repeat crime, giving them the chance to get their lives back on track and so reducing the social and economic cost to our communities. The £3 million Newham pilot for youth offenders, set to start in July, is one good example of work to reduce reoffending. The curfew orders set out in the Bill, and the ability to vary those orders, are another excellent example, ensuring people have a role in, and can contribute positively to, society. Work is one of the best ways to draw them away from a life of crime.
I strongly believe that, taken together, the measures in the Bill will have a significant impact on reducing crime and protecting not only the public, but our fantastic emergency workers. I will therefore be supporting the Bill.
Wendy Chamberlain (North East Fife) (LD)
Like so many others, I was shocked and appalled by the events on Clapham common on Saturday night. It is an outrage that a peaceful vigil in memory of Sarah Everard was shut down because the Met determined not to engage with organisers to ensure that the vigil could pass off safely. It is very difficult to see how the Met could have got it more wrong, and I say that, as many in this House will know, as a former police officer. The leadership have let down rank and file officers and, despite what those on the Government Benches might say, it is right that Cressida Dick should consider her position.
However, there has also been a failure of Government. For the past year, the Government have sustained legislation which prevents people from exercising their fundamental right to protest. That is why my Liberal Democrat colleagues and I will vote against the renewal of the Coronavirus Act 2020 when it comes back before the House, just as we did in September. Our rights matter and the right to protest matters, too. This is a Bill which, just when we should be considering how we dismantle restrictions on the right to protest in the name of public health, instead doubles down on them. The Home Secretary had strong words about the scenes on Saturday, but the reality is that this hastily pulled together legislation will make such scenes more common. The challenge to some of those on the Government Benches who have claimed to be acting in the name of liberty over the last few months is this: will you oppose the Bill, or does liberty only matter to you when it is your liberty and not the liberty of those you disagree with?
Moving on, I want to use my brief time to speak to part 1 of the Bill and its measures concerning the police service. Enshrining the duty of the Home Secretary to produce a police covenant report in law is a very important step for police officers around the country. It is about recognising the realities of policing and the impact it can have on those who undertake those duties. As someone who comes from a policing family, I have seen that first-hand. My father, husband and I were all assaulted in the course of our duties. This year’s Armed Forces Bill legislates for a duty for public bodies to have due regard to the principles of that covenant. That is not something that this Bill is introducing for the police covenant and I would be grateful for further clarification on whether the Government might look to do similar in relation to the covenant in future.
There are other positive steps in the Bill, such as legislating to allow special constables to join the Police Federation. The work of special constables is vital, both as volunteers and in giving back to local communities. In carrying out frontline duties, they face the same dangers and experiences that appointed police officers face. I also support the introduction of road traffic fixed penalty notices in Scotland, as it is good to have UK-wide alignment.
Finally, I turn to the Government’s proposal to double the maximum sentence for assaulting emergency workers. Is an increased penalty for that actually going to reduce assaults on the police? Is somebody in the heat of the moment going to think, “I’m going to get two years for this, as opposed to 12 months?” I doubt that it will. Instead, I worry that there is a risk of getting into a competition, whereby assaulting someone in a particular role means a higher penalty. The fundamental aspect is policing by consent. If we create the right community culture, it should not matter what the penalty is, because the incidence of such crimes should reduce regardless. Our policies on crimes should not be dictated by what plays well to the gallery—they should be evidence-based.
Saqib Bhatti (Meriden) (Con) [V]
I would like to start by paying tribute to Sarah Everard, and my thoughts are with her loved ones and her family. For too long we have seen women live in fear, and this Bill is one way in which we can start to make our streets and our society safer. It does feel, after last week, that there has been a renewed conversation about the safety of woman, and I hope that Sarah’s death has not been in vain.
This Bill, along with the Domestic Abuse Bill, ought to go a long way in making the world a safer place for women, but we must not be complacent and we must be resolute in this journey. On the latter Bill, I particularly welcome the amendment about threatening revenge porn, and I hope social media companies and other platforms will play their part in ensuring that revenge porn and non-consensual content are banned.
I must commend the Government for bringing forward this legislation and delivering on a manifesto commitment. As I talk to local residents across my constituency, there is one thing in common that they expect. It is that our justice system should be made fair—fair to the victims of crime, fair to the local community and offering fair justice to offenders. In particular, I applaud the removal of the automatic halfway release. This Bill ensures that those who commit the most heinous of crimes will spend more time in prison, so that their victims do not feel short-changed. That is the right thing to do.
I welcome the focus on rehabilitation in this Bill, as in my view society should always be conscious of why we choose to imprison people in the way we do. I am a big believer in global Britain and our place in the world. It was Winston Churchill, the then Home Secretary, who said that a society’s attitude towards its prisoners, its “criminals”, is the measure of
“the stored-up strength of a nation”.—[Official Report, 20 July 1910; Vol. 19, c. 1356.]
But this is also an act of common and economic sense. There is little point in ensuring that sentences are fully served at the taxpayer’s expense if, on release, a person is likely to reoffend. A jail sentence should not be a gateway to reoffending or graduating to a more serious crime. This conveyor belt to crime costs almost £18 billion to the taxpayer, which is why I am also pleased to see a greater emphasis on rehabilitation through greater support for the probation service and targeted measures such as curfews, community sentencing and better technology to ensure sustained rehabilitation.
Of course, prisons must serve their purpose for society in full—the delivery of justice must be fair, and it must be equitable—but we as legislators should not forget our duty in supporting offenders in turning their lives around. Once the victims of crime receive justice, to show compassion through rehabilitation speaks to our strength as a society—the very same strength that Winston Churchill once spoke of.
Jack Brereton (Stoke-on-Trent South) (Con)
I pay tribute to Staffordshire police for their hard work and professionalism throughout covid. Local emergency services have given their all, often at high personal risk, particularly paramedics in responding to medical needs. I am truly grateful for their work, and their dedication brings us ever closer to a safe lifting of lockdown. Our policing is by consent, and I know that officers in Staffordshire hold this in great importance. In Stoke-on-Trent, officers have taken a measured approach based on the four Es—engage, explain, encourage and enforce. The comparatively low covid fines in Staffordshire demonstrate that enforcement is a last resort.
The images we saw over the weekend at Clapham common were disturbing for us all, and this should be thoroughly investigated, but I do not think it right to impede the progress of this important Bill. Our freedom-loving democratic values enshrine rights to peaceful protest, and this Bill does not curtail that. Many constituents have contacted me over the last year after seeing the wanton vandalism and obstruction of ambulances. This totally reckless behaviour of a minority demonstrates the need to update measures, such as putting static protests on the same footing as moving demonstrations. Emergency service workers frequently put themselves in harm’s way in protecting and saving lives of others, and we must give them the protections they need, such as doubling maximum sentences for assaults. How could anyone not support these measures, given that they frequently put themselves at great risk to keep us safe?
I fully support the new police covenant, which ensures that serving and retired officers and their families are properly supported. I know my constituents in Stoke-on-Trent are extremely concerned about more serious criminals. Although crime is generally down, it is worrying that crimes committed in Stoke-on-Trent are becoming more serious. Especially concerning are the repeat offenders, and I welcome serious violence reduction orders to target persistent offenders. The Government’s safer streets initiative in Fenton is particularly important locally, improving household security so that people feel safe in their own homes.
No one should ever feel unsafe, not least women and children. It is totally unacceptable that any woman should be too scared of going out at night or should expect to be regularly harassed. I very much welcome the Home Secretary reopening the survey on tackling violence against women and girls. It is most worrying that Opposition Members do not support measures targeting the most serious offenders, including those committing serious violence and sexual offences. This Bill ends automatic early releases, keeping dangerous criminals off our streets. It also encourages stricter conditions on bail in high-harm cases and extends protections against sexual conduct by those in positions of authority. Figures of authority must not abuse positions of trust through such despicable behaviour. A lack of trusted positive role models often drives young people into gangs, drugs and violence because they believe that they will be somehow more secure. That cycle must be broken down in Stoke-on-Trent and across the country.
Sara Britcliffe (Hyndburn) (Con)
Can I first say, on using women as a reason to vote against the Bill, that I spoke about my own personal experiences last week? I remind those on the Opposition Benches that women and men are equal in law, so it all applies to women.
I want to raise the concerns of my constituents about the fundamental right to peaceful protest. It is important to make one thing clear: the Bill includes nothing that will threaten the genuine rights of people to engage in protests. What it does is address all those people who glue themselves to trains and buses, and block access to hospitals when somebody could need life-saving treatment. Those protests are not simply inconvenient; they make life intolerable for people living or working around them. This is about balancing the genuine and fundamental right that we shall have to protest. In short, the checks and balances remain firmly in place. I hope that the Minister in summing up will confirm that that is correct.
Like women and men up and down this country, my colleagues on the Government Benches believe in law and order and giving our police the tools that they have asked for—the right tools for the job. The Bill delivers on that pledge. I will briefly touch on some of its key points.
The Bill extends whole-life orders for the premeditated murder of a child and ends the automatic early release of dangerous criminals. It introduces life sentences for killer drivers—those who cause fatal accidents while speeding and racing. It doubles the maximum sentence for assaulting emergency workers. It protects communities from illegal Traveller sites being set up. It introduces tougher community sentences, and it brings in Kay’s law to better protect victims and witnesses in cases of violent and sexual offences. It also ensures that those who desecrate our war memorials face the full force of law after what we witnessed with the Churchill monument and others last year.
I want to tackle those issues and bring in measures that protect my constituents and make our streets safer. That is why I will support the Bill’s Second Reading, to allow it to move to Committee where it will be fully scrutinised. It appals me that the Labour party will vote against a Bill that will bring tougher sentences and protect people such as my constituents in Hyndburn and Haslingden. That once again highlights why so many turned their backs on Labour as it continues to turn its back on the wants and needs of constituents such as mine. I will support the Bill, as I wholeheartedly believe that we should punish criminals.
Mark Fletcher (Bolsover) (Con)
It is a pleasure to follow my hon. Friend the Member for Hyndburn (Sara Britcliffe).
In the winter of 2019, through the wonderful weather we had—the snow and the rain—as I knocked on doors across Bolsover and in South Normanton and Clowne, there were three common refrains. The first was: get Brexit done. The second was the remarkable leadership of the Labour party under the right hon. Member for Islington North (Jeremy Corbyn). The third was crime and the sense of unfairness. There was a sense that those who do not live by the rules seemed to get away with it; they were not properly punished. The Bill is a tremendous step in the right direction, delivering on the manifesto commitments that we stood on and making sure that those who commit some of the worst crimes are properly punished.
I welcome the fact that we are enshrining the police covenant in law. It must be an absolutely monstrous time to be a police officer, trying to uphold the law in such difficult circumstances throughout the covid period. I have spoken regularly to police officers and the leadership in Derbyshire, and they have done a remarkable job. I am delighted that we have their backs and are enshrining the police covenant in law.
We are doubling the maximum sentence for assaults on emergency workers. Those who serve our communities with such distinction and such honour should not be the victims of assault full stop, but those who commit such crimes should be punished. That is absolutely the right thing to do.
We are introducing criminal penalties for unauthorised Traveller encampments—that will be welcomed across Derbyshire—and whole-life orders for premeditated murders of children. That is exactly what residents in Bolsover want to see.
We have not had a lot of cross-party love today, so I must confess, I am the co-chairman of the all-party group on wrestling along with my friend the hon. Member for Pontypridd (Alex Davies-Jones). In her remarks, she mentioned that she welcomes the scope of offences in the Sexual Offences Act in relation to the abuse of positions of trust. We are particularly concerned about this in the wrestling industry, and she and I have spent many hours discussing it. In her remarks, she asked for a meeting with the Minister on some of the specifics around that, and I echo that call.
This is a brilliant step in the right direction. It is the kind of legislation that the people in Bolsover voted for, and I look forward to supporting the Bill.
Elliot Colburn (Carshalton and Wallington) (Con) [V]
I join the Home Secretary and colleagues in sending my condolences to the friends and family of Sarah Everard. This Bill delivers on our manifesto commitment—the one that I stood on in Carshalton and Wallington, and so did many others—to toughen up sentences for the most dangerous criminals and reform the criminal justice system.
Of the many welcome measures contained in the Bill, I particularly welcome measures such as extending whole-life orders for the premeditated murder of a child and ending the early automatic release of dangerous criminals, which will keep the perpetrators of the most heinous crimes off our streets. I know, from the countless times that I have been told that the criminal justice system is too lenient, that my constituents will also welcome the tougher sentences for the most dangerous criminals, the introduction of life sentences for killer drivers, the doubling of the maximum sentence for assaulting an emergency worker and the introduction of Kay’s law to better protect victims and witnesses in cases of violent and sexual offences. It is because of the campaigning efforts of those victims and their families that I will support the Bill.
Like me, many colleagues will have met and heard stories of grieving families from their own constituencies, angry at what they have seen as a lenient sentence. I remember reading one story just last year of a young man who tragically lost his life in Carshalton after being hit by a driver who was later arrested on suspicion of being drunk behind the wheel. This Bill will ensure that in cases such as this, the punishment fits the crime. Additionally, I know that residents across the London borough of Sutton will particularly welcome criminalising trespass and strengthening powers to tackle unauthorised encampments. Only recently, Carshalton and Wallington residents were incredibly frustrated when an encampment jumped from local park to local park, causing harm, disruption and distress as it went, yet progress on removing this encampment was incredibly slow because of the limitations around the existing law. These measures will make it much easier to deal with that.
This Bill does deliver on our manifesto commitment, so I am dismayed that Opposition Members are finding ways to try to oppose these important measures. The wording in the Bill is complemented by case law, and clearly defined principles are being put on to the statute book at the request of the independent Law Commission. The Bill is there to stop scenes like those we saw last year of protestors blocking ambulances, and not to ban peaceful protests, so it is no good Labour or Lib Dem Members saying that they agree with parts of the Bill if they are not going to support it. We should be unapologetic in standing up for victims of crime and their families, combined with the efforts that the Government are already making to put more police on our streets and work on prevention. For that reason, I will support the Bill tomorrow.
Miriam Cates (Penistone and Stocksbridge) (Con) [V]
The first duty of any Government is to keep people safe. Although recent events have been shocking, we are fortunate to live in a country where citizens are overwhelmingly law-abiding, but as times change, crimes change, and it is important that we continue to update and amend legislation to make sure that our constituents not only are safe, but feel safe.
Any new criminal legislation should do four important things: it should discourage crime, improve detection and prosecution, make punishments effective and reduce the chances of reoffending. I welcome this Bill, as I believe that it will strengthen the law in all those areas. The Bill will certainly act to discourage crime, with the introduction of whole-life orders for child killers and new powers to halt the automatic early release of offenders who pose a danger to the public. Potential offenders can be in no doubt that this Government are committed to making sure that serious crimes will be met with serious sentences. By increasing the efficiency of the courts, the Bill will also reduce delays and improve prosecution rates. I know from the experiences of my constituents this year—both those accused of crime and those who have been victims—how devastating delays to justice can be.
I welcome the Bill’s provisions to punish certain crimes, particularly serious driving offences and assaults on our brave police and emergency workers, more robustly. I also believe that the Bill will be effective in reducing the chances of reoffending, with more community orders ensuring that offenders do not lose jobs and family relationships as a result of their punishments, making it more likely that they can rebuild their lives without resorting to further criminal behaviour. However, for some offenders who have served their time, returning to their community and their previous relationships can be a factor that actually increases their chance of reoffending. For those people, escaping that context and getting a fresh start can offer them the best chance of building a crime-free life.
Northern College in my constituency, one of only four residential adult education colleges, specialises in giving vulnerable adults, including those who have served prison sentences, a second chance at education. Set in the stunning and inspiring grounds of Wentworth castle, it offers students high-quality teaching alongside counselling and support. In such a positive and focused environment, the outcomes are incredible, with students achieving GCSEs, A-levels and even higher education qualifications, and going on to gain good jobs and live fulfilling lives.
For many ex-offenders, full rehabilitation requires a second chance at education, which so many of us take for granted, so I wonder whether the Minister would be willing to meet me to discuss the role that Northern College could play. This is an excellent Bill that meets many of our manifesto commitments, and it has my full support.
Stephen Hammond (Wimbledon) (Con) [V]
This is an extremely wide-ranging Bill. I have raised in the House a number of times the reform of rehabilitation. This Bill will give the courts powers to give alternatives to custody for youth offenders, by piloting changes to youth rehabilitation orders. For adult offenders, a “problem-solving court approach” will be piloted for certain community and suspended sentences. This aims to ensure that there is more tailored, intensive and structured support to rehabilitate offenders in the community. Employment opportunities for reformed offenders will also be improved by the Bill.
The Bill outlines several measures that will allow the courts to return to normal as soon as possible and cut into the backlog. Virtual juries were trialled with huge success on four occasions last year by the international fair trials organisation Justice, most notably in Wimbledon. “Wimbledon juries”, as they should perhaps become known, were subject to research and authentication by the University of Oxford, and the trials proved that they were, in many ways, as effective in executing their responsibilities as juries in courtrooms. They can be inexpensive and can return juries to their historic origins, based in communities.
The Bill also makes changes to police powers over protests. I have been looking carefully at those parts of the Bill, and I know that they will be examined in greater detail in Committee. However, it is clear, especially with the background of current covid legislation, that those who enforce this legislation need to be clear as to its framework.
The language of clause 59(2) is central. The language of “distress” and “loss of amenity” is familiar to the courts, but “serious annoyance” and “serious inconvenience” are unfamiliar to the courts. I know that “annoyance” has been used in public order Acts in Ireland, I think in Austria and perhaps elsewhere, but I would welcome a very clear definition here. We need to help our police decide what these words mean, and we need to let those that they will cover know what they mean. Similarly, “noise” from a protest that could
“result in serious disruption to the activities of an organisation”
needs to be more clearly defined so that it does not catch the sort of chanting that one would normally expect at a protest.
Finally, I welcome that the Home Secretary has instructed Her Majesty’s inspectorate of constabulary to investigate the policing at the Clapham vigil. I welcome confirmation from her that there are aspects to be investigated and that she intends the extended consultation to ensure that the justice system provides confidence for the victims. Therefore, one should look at this Bill in the whole and it should be supported.
Rob Butler (Aylesbury) (Con)
I welcome this Bill, which fulfils manifesto promises on which I was elected and demonstrates this Government’s firm commitment to law and order. I declare relevant interests: prior to my election, I spent 12 years as a magistrate, and was a board member of the Youth Justice Board, a member of the Sentencing Council and a non-executive director of Her Majesty’s Prison and Probation Service.
There are undoubtedly offenders who pose a clear and present danger, and they must remain in prison for as long as it takes for them to cease being a threat to the public. I therefore welcome moves to lengthen custodial sentences for certain very serious offences and to extend the time that must be served before automatic release applies. This also represents an important step towards increased public confidence in sentencing, which is not always as transparent as it might be.
I want to see fewer victims of crime. Key to achieving that is cutting reoffending, which accounts for some 80% of offences at the moment. Prison is not always the best place to achieve the greatest prospect of rehabilitation, so I am glad to see pilots of problem solving courts, and I hope they will be especially targeted at young adults. I am pleased that community orders will be made more robust, not least by extending the maximum curfew hours to 20 a day. I believe that home detention is a tool we should increasingly look to, as technology continues to develop at a pace that can provide many of the reassurances on security and monitoring behaviour that would not have been possible even 10 years ago.
There are welcome changes to the youth justice system here; reducing the use of remand in custody for children is the right thing to do. I am pleased to see changes to the intensive supervision and surveillance programmes, and I support the proposals to make detention and training orders more flexible. The Bill eliminates many anomalies in previous legislation, and I would welcome the Government giving further consideration to one anomaly that I highlighted in my recent ten-minute rule Bill: that children who commit an offence as a child but turn 18 before getting to court are treated as adults at both trial and sentence. The risk of this happening has been exacerbated by delays caused by covid, and those delays vary greatly between different parts of the country, resulting in a postcode lottery that is fundamentally unjust and yet can have lifelong consequences. Although there has not been time to incorporate my proposal into the Bill at this stage, I am grateful to my right hon. and learned Friend the Lord Chancellor for meeting me to discuss how, with appropriate safeguards, some of its aims might be achieved. I hope that the Government might still be persuaded that this Bill provides such an opportunity. I am confident that that could be achieved without conflicting with other very important proposals in this Bill.
Three minutes is a short time in which to discuss a Bill of 300 pages. Of course, I do not claim to have addressed element of it in my remarks, nor do I claim that the Bill is perfect in every way, but I firmly believe it represents a step change to tackle crime more effectively and so make the British public safer.
Tom Randall (Gedling) (Con) [V]
May I, first, associate myself with the sympathy expressed by my right hon. Friend the Home Secretary to Sarah Everard’s family at the outset of this debate? When this Bill comes to a vote tomorrow I will be supporting it. I will be supporting a Bill that will ensure stronger sentences for child murderers, rapists, violent offenders, dangerous drivers, child abusers, burglars, drug dealers, knife carriers and those who desecrate our memorials. The Labour party will be voting against those stronger sentences. Labour, having previously said that the legislation does not go far enough, will now vote against all of that, in an astonishing U-turn. It will also be voting against increased sentences for those who assault our emergency service workers.
This is a wide-ranging piece of legislation that will, quite reasonably, update public order legislation that is now 35 years old. In the short time in which I have to speak this evening, I am unable to cover the breadth of this Bill, but I will pick out a couple of points. I am pleased to see that the police covenant is to be enshrined in law, strengthening support for serving and retired officers. I know that unauthorised encampments can cause a great deal of stress and inconvenience, as I saw in my constituency, in Colwick, a little while ago, as well as disruption and damage. The power to seize vehicles and arrest or fine trespassers who attempt to reside on private and public land without permission will, no doubt, be reassuring.
It is also important to state that the Bill will not stop the right to protest. The right to demonstrate is a hard-fought one, and it will continue. A number of constituents have written to me regarding clause 59, but it is important to note that this is a component of the existing common law offence of causing a public nuisance, which is being put on to a statutory footing following recommendations by the Law Commission in its 2016 report on the simplification of criminal law. All in all, this is a Bill that makes good on several commitments made in the manifesto on which I stood for election in 2019. I am pleased to support it and I look forward to its passage in the House.
Fiona Bruce (Congleton) (Con) [V]
Freedom of assembly and of expression are fundamental rights that are hard-fought and hard-won but easily lost or damaged if we legislate in haste. I want to focus on clauses 54 to 56 and 59 to 60, which would make significant changes to police powers to respond to protest. They would, for example, significantly lower the legal test for the police to issue conditions on protest. The term “serious unease” is a significant departure, reducing the test for the threshold of harm so as to potentially capture peaceful protest that a claimant considers objectionable.
Clause 54 would give the Secretary of State powers to further define the meaning of
“serious disruption to the activities of an organisation”,
which could significantly curtail the activities of peaceful pro-life vigils outside abortion centres. Organisations such as the British Pregnancy Advisory Service and MSI complain of harassment or intimidation, but this is rarely, if ever, supported by evidence. The test of “serious disruption” could remove the objectivity normally required for criminal prosecution and place the emphasis instead on the perception of an organisation. This has potentially far-reaching implications for the fundamental rights of those with non-mainstream views to assemble and express their views, and it is incumbent on this House to defend those rights, however much we approve or disapprove of such views.
Clause 59, by abolishing the common law offence of public nuisance and replacing it with a new statutory offence of
“intentionally or recklessly causing public nuisance”,
needs to be carefully scrutinised to ensure that there are clear definitions of terms such as “serious annoyance”, “serious inconvenience” and rights common to the public. The word “impact” in relation to static protests is ill defined and too open to interpretation, and on-the-spot assessments could increase unjustifiable interference with fundamental rights.
Concerningly, removing intentionality from the offence of failing to comply with a condition issued by the police on a protest means that the police will be able to enforce the law based on their subjective interpretation of what the alleged offender should have known. Allowing the police to issue conditions on one-person protests, rather than the current two, potentially brings into scope street preachers, but it should be recalled that prosecutions against street preachers have invariably failed due to falling foul of freedom of speech rights. Without amendment, the Bill could increase police apprehension of otherwise lawful speech and could have a profoundly chilling effect on free speech more widely. I hope that the Committee and the other place will have sufficient time to carefully scrutinise this significant Bill.
Antony Higginbotham (Burnley) (Con)
I will have no hesitation in supporting the Bill when it comes to a vote tomorrow, because it delivers on so many of the manifesto promises I made to residents across Burnley and Padiham. It starts by toughening up the sentences for drink and drug drivers who kill while under the influence, for criminals who assault our emergency service workers and for those in positions of trust who groom children for exploitation. It does all this while also tackling unauthorised Traveller camps that show no regard for local residents and planning systems, and so much more. What’s not to like in this Bill?
There is so much in the Bill, but I will keep my remarks to just a small number of areas. The first is the desecration of war memorials. I have been incredibly disappointed to hear Labour MPs indicate that this provision does not matter, because it does. We have some fantastic memorials in Burnley, not least the cenotaph in Towneley Park and the memorials to so many others in our villages such as Hopton and Worsthorne. The images that we saw last year of our national cenotaph being targeted caused hurt, upset and anger. That is why this matters. I am really pleased that the Government have recognised the strength of feeling on this and introduced tougher sentences as a result.
The Bill also delivers on our promise to bring in a smarter, more credible sentencing system. It is one that deals with the most serious violent offenders by ending the automatic release at the halfway point, that tackles repeat offenders that blight our communities, and that makes youth rehabilitation orders more effective at reducing youth offending.
I spent some time before coming to this place mentoring young offenders when they were in prison, and I have no doubt that this will make a difference. I have, however, received emails from concerned constituents about the protest provisions in the Bill. Let us be clear: nothing in the Bill alters a person’s fundamental right to protest and make their voice heard. However, the right to protest does not give anyone the right to block an ambulance going to a hospital; it does not give anyone the right to stop someone going to work to earn a living; and it does not bring with it the right for a person to stop a newspaper being printed just because they disagree with the contents. Just as important as the right to protest is the right to a free press, the right to life, and the right to employment. The Bill just gives equal weight to all those competing rights. The Bill puts the right of the law-abiding majority first. It protects victims, it backs our police and emergency service workers and, with that in mind, it should command cross-party support tomorrow evening.
Brendan Clarke-Smith (Bassetlaw) (Con) [V]
Many constituents have shared their frustrations with me over the issue of illegal encampments. Although many Travellers are law-abiding citizens, illegal sites can cause distress and misery to those who live nearby. They also play havoc with local sports clubs and businesses and the Bill will put a stop to that. I am pleased that these measures are proportionate and that we have taken steps to ensure that those exercising their rights to enjoy the countryside are not inadvertently impacted.
Some people are claiming that the Bill will somehow stop people’s right to protest, and that is simply not true. What makes it worse is that some are trying to link it with temporary covid restrictions, which is a completely separate issue. Whatever the rights and wrongs of recent events, it is abhorrent and totally wrong for groups to try to use a tragic incident as a smokescreen to oppose legislation that they do not like. This legislation means tougher sentences for child murderers, sex offenders, killer drivers and those attacking emergency service workers. By campaigning against this Bill, they are also campaigning against these measures.
The Bill is also designed to stop the behaviour of extremist groups such as Extinction Rebellion or BLM causing serious disruption by stopping trains running or by gluing themselves to buses. Serious disruption is a well-established and defined concept. The changes bring static protests in line with equivalent provisions that apply to marches or processions under section 12 of the Public Order Act 1986. For example, a protest does not cause serious disruption just because it may distract employees in a nearby office, and nor would a peaceful vigil in a park cause serious disruption.
Examples of things that could cause serious disruption might include blocking a bridge or a road to stop pedestrians or traffic getting through. We saw that happen when Extinction Rebellion decided to block Westminster Bridge. While these people were dancing and having fun, ambulances needed to be diverted and cancer patients had to walk to hospital instead. Another example of serious disruption might also include preventing a train from leaving a station. What sort of organisation claims that it wants to stop climate change and then prevents people from using public transport? People from those organisations do not understand the value of a proper day’s work.
People physically preventing a printing press from operating because they disagree with the editorial position of that publication is another example of serious disruption. These people talk of freedoms yet attack freedom of speech and the freedom of our press, including titles such as The Sun, The Times, The Daily Telegraph, the Daily Mail and the London Standard. This is not just an attack on them, but on all our media.
Our freedoms are precious and we must do everything we can to ensure that freedom is enjoyed by all and not hijacked by these groups. This Bill, using sensible, fair and proportionate measures, will set us on a course to do just that.
Richard Drax (South Dorset) (Con) [V]
Please may I too send my deepest sympathies to Sarah Everard’s family and friends? Also, I refer to my entry in the Register of Members’ Financial Interests.
There is much to commend in this Bill, which dots several i’s and crosses several t’s with regard to our manifesto. We hear a lot about rights; now it is time for responsibilities.
Following the unhappy circumstances surrounding the vigil for Sarah Everard, there is concern over the extension of police powers, and the new laws regarding public order must be scrupulously monitored and sparingly used. I mention this with the vigil in mind, where the police were caught between a rock and a hard place as they attempted to balance laws passed to control a pandemic and an outpouring of grief that those who attended the vigil wanted to share. It highlighted to me what happens when the police lose the consent of the people, which only reinforces how important it is for laws affecting public order to be proportionate, clear and reasonable. To that extent, I was reassured when my right hon. Friend the Home Secretary indicated in her speech that these new powers are aimed at preventing protesters from stopping people going to work or closing a city like London for days on end. This new style of protest appears to be the norm today, and no responsible Government can sit idly by.
Let me move on to other aspects of the Bill. I am 100% in support of doubling the maximum penalty for assaults on emergency workers from 12 months to two years in prison. I sincerely hope that this deterrent also applies to inmates who assault prison officers. For too long, a lack of any real deterrent has seen this forgotten army subjected to acts of violence that are totally unacceptable—and it is not just physical violence. Female prison officers, in particular, are vulnerable to being “potted”—a degrading and revolting assault where human excrement is emptied on their heads.
As a former soldier, I find the damage to and desecration of war memorials a particularly heinous and cowardly crime. Whatever one’s view on a particular subject, it does not give the right to tear down statues. I agree that monetary value should not be a factor in sentencing because these memorials are, quite literally, priceless.
I welcome the toughening of the law on trespass. Rural crime is a significant problem, and this promise in our manifesto will help to combat a small and unruly element who think they can operate outside the law.
Finally, I like the idea of secure schools as an alternative to jail for troubled young people—at least, I assume that is the aim. Their success will depend to a large extent on who runs them and how they are operated. I recall the attempt to introduce bootcamps, which fell at the first fence. However, there is no doubt that a period of discipline within a well-organised structure would do no harm.
Tomorrow night I shall be voting for the Bill, which will be welcomed by the law-abiding silent majority.
Suzanne Webb (Stourbridge) (Con)
It is a pleasure to be back here physically to speak.
A Government’s first duty is always to protect their people, and this flagship Bill will ensure that our justice system will always serve the law-abiding majority. It is timely after recent events as it emphasises that this Government put women’s safety front and centre. The Bill lengthens jail time for serious sexual offenders and prevents their early release. It keeps those most horrific individuals who rape or sexually assault children in jail for longer too.
We should consider this Bill in the context of the second major piece of legislation that will protect women—the landmark Domestic Abuse Bill, which introduces new provisions to ban the rough sex defence and extends the law against revenge pornography, as well as creating the specific new offence of non-fatal strangulation. This is flagship policy making. I am proud of a Government who since 2010 have put women’s safety at the heart of their policy making.
The way to test any Bill passed by Government is on whether it changes things for the better for people. This Bill will do just that. It delivers important manifesto commitments, including ensuring that serious violent and sexual offenders spend more of their sentence in prison, increasing to life the maximum sentence for causing death by dangerous driving, increasing sentences for desecrating a war memorial, doubling the sentence for assaulting an emergency worker, and enabling prisoners who become dangerous to spend all their sentence in prison. It also makes sure that more repeat knife offenders and burglars serve the specified minimum jail term. Every stabbing creates a trail of misery, and often devastated families when it ends a life, as in the case of my constituent Ryan Passey.
I welcome the strengthening of police powers to tackle unauthorised encampments. That will be particularly welcome for my residents in Withymoor Village in Amblecote. I fully recognise that everyone has the right to a nomadic life, but this must be balanced against the rights of local communities. For me, the balance has never been quite right, and we needed greater police powers. The Bill delivers just that, for which I thank the Government enormously. It will change things for the better for my constituents. Police will now have the powers to seize vehicles and arrest or fine trespassers who intend to reside on private and public land without permission. Yet Opposition Members attack plans for criminal penalties for those who refuse to leave unauthorised encampments as discriminatory and unworkable. Once again, they show themselves to be on the side of those who break the law rather than the law-abiding.
With this new Bill, we will have more tools at our disposal than ever before to protect our residents. I support it for all that it delivers. It will make my community in Stourbridge safer. After listening to this debate, my concern is that those who vote against the vital measures in the Bill will be putting a day’s headline or strapline ahead of the safety of my constituents, particularly that of women.
Bob Stewart (Beckenham) (Con)
Since 2009, the armed forces’ next of kin have been given the Elizabeth Cross if a family member has been killed in action as a result of terrorism. The award is obviously named after Her Majesty the Queen. I believe that such an award should now also be made to the police, fire officers and members of the ambulance service. I suppose that it would be appropriate to link them all together as blue-light services.
The national police memorial on the Mall lists almost 5,000 police officers who have been killed while on duty since records began. Most recently, during the troubles in Northern Ireland, 319 Royal Ulster Constabulary officers were killed; and since 2001, 16 Police Service of Northern Ireland officers have been murdered. Since 2010, 11 Metropolitan police officers have also been killed here in London. It is difficult to get consolidated lists of firefighters who have been killed doing their duty, but at least 69 died between 1986 and 2017. Ambulance personnel who have died in the line of duty have normally been hit by vehicles when attending casualties, and figures are difficult to get—yet it happens.
Maybe, with the approval of the Queen, we might be able to call this award the “Charles Cross”. After all, His Royal Highness Prince Charles is patron of the National Police Memorial Day. Frankly, I believe it would be a thoroughly appropriate name for such an award. I suppose the scheme might be expanded to include the air ambulance and the Royal National Lifeboat Institution, which are really part of the blue-light fraternity of emergency services. I suggest that the award should go no further than that. I believe such an award to be utterly proper and decent, and it may indeed give close family members of those who have lost their lives protecting the rest of us some solace and perhaps not a little pride when they wear such a decoration.
Richard Fuller (North East Bedfordshire) (Con)
I prepared a one-minute speech, but I will try to stretch it to two minutes. The constituents of North East Bedfordshire will welcome this Bill. They will particularly welcome the fact that it begins with the police covenant, which codifies our responsibility to recognise the obligations and sacrifices of our police officers. They will very much welcome the end of automatic early release, but I must say to the Under-Secretary of State for the Home Department, my hon. Friend the Member for Croydon South (Chris Philp), that I agree with my hon. Friend the Member for Shipley (Philip Davies): he should see this as the start, not the end, of ending automatic release, so that the public understand that sentences mean what they say.
My constituents will particularly welcome the actions on illegal encampments, which are a blight for so many in the countryside and urban areas. On the issue of policing demonstrations, let us listen to what my hon. Friend the Member for Broxbourne (Sir Charles Walker) said and take more responsibility for ourselves in setting the laws, rather than the obligations of the police for policing them. I welcome the sensitivity in the Bill in terms of the interactions of young people with our justice system. If we can get that right, it will preclude many faults later on.
It is welcome that we have clause 164, which at last recognises that deaf people can have access to British Sign Language interpreters. For hundreds of years, we have recognised that every citizen in this country is entitled to a jury of their peers, and now those juries can include our deaf citizens as well as everybody else. Finally, I believe, in all generosity, that Labour Members have made a terrible mistake in opposing the Bill, and neither my constituents nor theirs will ever understand the reasons why.
Ordered, That the debate be now adjourned—(Michael Tomlinson.).
Debate to be resumed tomorrow.
Royal Assent
Mr Deputy Speaker (Mr Nigel Evans)
I have to notify the House, in accordance with the Royal Assent Act 1967, that Her Majesty has signified her Royal Assent to the following Acts:
Supply and Appropriation (Anticipation and Adjustments) Act 2021
Telecommunications Infrastructure (Leasehold Property) Act 2021
Non-Domestic Rating (Lists) Act 2021
Contingencies Fund Act 2021.
Police, Crime, Sentencing and Courts Bill
Tuesday 16th March 2021
(3 years, 1 month ago)
Commons ChamberRead Full debate Police, Crime, Sentencing and Courts Act 2022 Read Hansard Text Read Debate Ministerial Extracts
19:00 - The House divided: - Ayes: 225 / Noes: 359 - Question accordingly negatived.
19:10 - The House divided: - Ayes: 359 / Noes: 263 - Question accordingly agreed to.
Mr Deputy Speaker (Mr Nigel Evans)
Before we resume the debate, I want to remind the House of what was said yesterday regarding the Sarah Everard case. Charges have now been brought in that case. The sub judice resolution does not apply formally when the House is legislating. However, I would urge all Members to exercise caution and not say anything about the detail of the case or of the identity of those against whom charges have been brought that might affect any subsequent court case.
I have decided to select the reasoned amendment in the name of the Official Opposition and I will call David Lammy to move their reasoned amendment when he comes to speak later in the debate.
I remind all hon. Members, whether they are participating remotely or otherwise, that there is a three-minute limit on all contributions. For those participating remotely, there is a timer on the bottom righthand corner of the device that you are utilising. If, for whatever reason, you cannot see that, please ensure that you have another timing device because we have to be very strict. Not everyone will get in today, quite clearly, so please do not push the limit beyond three minutes. For those participating physically, the timer will be demonstrated in the usual manner.
Clive Lewis (Norwich South) (Lab) [V]
How often have we heard the notion that somehow liberty is an integral part of the English character, and that we fortunate few in this country are somehow different from the rest of humanity? Not for us authoritarianism, autocracy or, God forbid, the dark slide into fascism. No, no, no—that is for other people and other countries, not us. Yet here we stand, yet again with yet another Bill from this Government stripping the people of this country of yet more liberty and more of their democratic rights.
English exceptionalism is a dangerous fallacy, none more so than when it comes to the constant vigilance required of any democracy. It is hubris of the first order—one I fear has infected those on the Government Benches. The potential for the slide into authoritarianism and worse is, as history has clearly demonstrated, part of the human condition. That is the painful and bloody lesson from the 20th century. Yet here we are, with this Bill before us. It is the tip of an authoritarian iceberg—one that is on a collision course with public defiance.
Democracy is being swept away in a calculated programme to leave the public muted and powerless. We have the demonisation of the Gypsy, Traveller and Roma community, a planned voter suppression Bill to strip the right to vote from black and other disadvantaged communities, and the limiting of judicial review to stop the public challenging the Government’s decisions in court and shifting yet more power to the Executive. We have the Overseas Operations (Service Personnel and Veterans) Bill, which creates a two-tier, “them and us” system of human rights. Now, having passed that, the Government are coming for our rights with a review of UK human rights legislation.
Those on the Government Benches are fast moving from becoming a Government to becoming a regime. They want to stifle dissent, so that they are not accountable to the public. Our country—our economy, our politics and our media—is controlled by a small clique of individuals. Over the past 40 years, they have taken more power for themselves at the expense of our democracy. Now they are not even happy with us clinging on to the scraps we currently have.
I have directed this speech at Government Members, but to those on my own Front Bench who have finally been brought to the right position of opposition, I say this: it should not have taken the police assault on people gathered peacefully in memory of Sarah Everard to see the assault on democracy that this Bill is. It is writ large, so let this be a wake-up call. We have never seen anything like this Government before.
If the Bill goes through, anyone who values their democratic rights must get organised and fight back. I will stand with protesters, irrelevant of the laws passed by this place. I say to anyone in this place and outside who values democracy that we must create a democracy that is fit for purpose for the challenges we face—climate and ecological breakdown, the epidemic of inequality—
Sajid Javid (Bromsgrove) (Con)
May I start by joining colleagues in expressing my condolences to the friends and family of Sarah Everard?
I rise to support the Second Reading of this Bill. I am particularly pleased that it delivers on three promises that I made in two Departments: stronger police powers and a new criminal offence around unauthorised Traveller camps; putting the police covenant on the statute book and completing the public health approach to serious violence.
Given the short time I have, I will focus my remarks on child sexual abuse and exploitation. I want to leave Members in no doubt that we are facing an epidemic in child sexual abuse, the severity of which has left me crushed at times. Although the Government are doing outstanding work, it is clear that there are still inadequacies and blind spots enabling predators to operate undetected for decades. That is why for the best part of a year, I have been leading an inquiry into child sexual abuse and exploitation with the Centre for Social Justice. Although the findings will not be published until later this month, I am grateful that the Home Secretary and the Justice Secretary have taken an interest in this work and have included some of the initial recommendations in the Bill.
I am particularly pleased that the Bill will close a loophole in the law that allows sports coaches and other people in positions of trust to have sex with 16 and 17-year-olds who are in their care. I congratulate my hon. Friend the Member for Chatham and Aylesford (Tracey Crouch) for the excellent work she did to bring that about.
I also welcome the fact that those serving an SOPC—sentence for offenders of particular concern—for a child sex offence will be made to serve two thirds of their sentence before they are eligible for parole.
These changes will make a difference, but we need to go further. It is difficult to believe that only 4% of child sexual abuse offences result in a charge or summons—to put that another way, when the police record a child sexual abuse offence, more than nine times out of 10, the perpetrator is not brought to justice—or that sentencing guidelines recommend the same punishment for stealing a bicycle worth £500 and viewing the rape of a child.
Lenient sentences make poor deterrents, and they say to victims that society does not take the damage that is done to them seriously enough. That is why I urge the Government to consider three further measures: first, including online offences in the SOPC scheme; secondly, moving to a presumption of cumulative sentencing; and thirdly, asking the Sentencing Council to undertake a full review. It is only when we take the scourge of child sexual abuse seriously that we will start to make sure that the punishment truly fits the crime.
Allan Dorans (Ayr, Carrick and Cumnock) (SNP) [V]
I join others across the House in extending my sincere condolences to the family and friends and all affected by the horrific murder of Sarah Everard last week.
The House has heard many passionate speeches objecting to certain aspects of the Bill that impose disproportionate restrictions on our freedom of expression and right to protest. Those are fundamental human rights and a cornerstone of our democracy, and they must be protected. I totally support those objections to the restriction of our liberties. The right to peacefully protest on any issue must not be interfered with by the Government.
Part 2, chapter 1 of the Bill deals with duties to collaborate and plan to prevent and reduce serious violence. Specifically, it places a legal duty on local authorities, police, criminal justice agencies, health authorities, fire and rescue services and others to collaborate through sharing data and intelligence with one another to prevent and reduce serious violence and a duty to plan together to prevent and reduce such violence. In particular, they must identify the kinds of serious violence that occur, identify the causes of that violence and prepare and implement a strategy to prevent and reduce violence. Without any doubt, it is imperative that the impact of violence by men against women, the prevalence of that violence—particularly domestic violence and sexual violence—controlling and coercive behaviour by men and the impact on the community are included in that strategy to reduce violence against women and girls.
I want to highlight the outstanding work of the Scottish Violence Reduction Unit, funded by the Scottish Government. It has reduced homicides in Scotland from 137 over a number of years to 64 last year, using an innovative, proactive public health partnership approach to violence reduction, driven by the conviction that violence is preventable and not inevitable. A number of police services across England and Wales have sought advice from the Scottish Violence Reduction Unit and are at varying stages of setting up similar schemes.
It is therefore very welcome that the Bill will pave the way for the police service and other agencies to adopt schemes and strategies based on that model, which has proven to be highly successful. That approach must be included in the formal strategy mentioned by the Home Secretary yesterday for the reduction of all forms of violence by men against women and girls. This will, of course, come at a significant cost, but whatever that cost is, we simply cannot afford not to take this action, as by not doing so, we will continue to fail to protect women and girls now and in the future. We must act, and we must act now.
Mr Deputy Speaker (Mr Nigel Evans)
The clock has not been started, because I did not want to eat into your time, Tracey, but I want to say that it is fantastic to see you back in the House of Commons where you belong.
Tracey Crouch (Chatham and Aylesford) (Con)
Thank you for your kind words, Mr Deputy Speaker. Time is exceptionally limited, so I shall keep my remarks short, but like others, I wish to extend my condolences to the family and friends of Sarah Everard.
I welcome this Bill, which draws on our manifesto commitment to make the country safer by equipping the police with the powers needed to protect themselves and the public, while strengthening sentencing laws to keep serious sexual and violent offenders in prison for longer. It is unfortunate that recent events have overshadowed the good intentions of the copious measures in this Bill, and I share the views of those in the House and outside it that we need to do more to protect women and girls. Why should we be afraid to walk somewhere or even exercise after dark? But, rather than trying to kill off the Bill, we should be working cross-party to strengthen it to that end.
I am a supporter of the police and I am afraid that I do not think we stand up for them often enough in this place. We read about the occasions when they misjudge or mishandle things, but we do not read about the 99% of the time where they silently get on with keeping us safe. Like all other key workers, our police officers have continued to work throughout the pandemic on the frontline, often being spat at and assaulted. I have many police officers living in my constituency and I am a proud aunt of a policeman. The measures in the Bill will better protect them and other emergency workers, not least by doubling the maximum sentence for assault on emergency workers, which is much overdue.
I am delighted that the Bill includes measures to extend the positions of trust provisions to include those who coach, teach, train or supervise in sport or religion. This has been a long process, but I am exceptionally grateful that this Home Secretary and Justice Secretary have listened to me, the hon. Member for Rotherham (Sarah Champion), Baroness Tanni Grey-Thompson, the National Society for the Prevention of Cruelty to Children and, most importantly, the brave victims who spoke out about the abuse that they suffered at the hands of their coach or religious leader. The need for change has finally been accepted.
There is so much that I could speak about in this 296-page Bill, but I just want to mention two things. First, my local council very much welcomes the Bill’s provisions that deal with illegal encampments, but Medway Council has requested that an amendment is added that gives local authorities the powers to seek recovery costs for the damage caused. As challenging as this may be in practice, concerting the power that enables them to do so is something that I am willing to table, and I hope that the Government will seek to support it. The second point, which was raised eloquently yesterday by my right hon. Friend the Member for Chingford and Woodford Green (Sir Iain Duncan Smith), is the need for a specific offence and stronger punishment for pet theft. There has been an extraordinary and worrying rise in the theft of dogs, and many of my constituents are fearful for their beloved pets, so using this Bill as an opportunity to strengthen protections is essential.
Given the time, let me conclude by saying that there is so much more that I could add, but this is a good Bill, albeit with plenty of scope for improvement and for new things to be added to it. First and foremost, I look forward to supporting it in the Lobby tonight.
Jon Trickett (Hemsworth) (Lab)
I join others in expressing my condolences. This Bill continues the authoritarian drift of this Government. First, we had the Overseas Operations (Service Personnel and Veterans) Bill, which basically gives immunity to people abroad serving our country who committed torture. Then we had immunity given to state agents breaking the law in our country, including the crime of rape. Now we have clause 59 of the Bill, which proposes a 10-year jail sentence for causing the risk of “serious annoyance”—those are the words in the Bill. Note that is not even for causing “annoyance”, but for causing the risk that there may be annoyance. There are many things with which we might risk causing annoyance every day, but it is only in dictatorships or repressive regimes that such actions are subject to drastic sentencing.
This Government claim to have their roots in libertarianism and, of course, they are champions of liberty, but it is liberty only for the powerful and the wealthy, the “get rich quick” merchants and the spivs, those whose freedoms allow them to cause all kinds of annoyance—firing decent, hard-working employees and then rehiring them on worse conditions and paying poverty wages. Now we have a new freedom—the freedom to bung multimillion-pound taxpayer contracts to mates in the private sector. They have set their sights on our tradition of dissent, because their legislation is designed to crack down on our rights to take action against injustice. Black Lives Matter activists, workers who take industrial action, environmentalists and the women’s movement are all in their sights.
Alex Sobel (Leeds North West) (Lab/Co-op)
My hon. Friend and I have organised and been on many peaceful protests together. The measures in this Bill are so regressive that, under them, surely some of those protests that we have been on would have ended up in scenes like those we saw on Clapham common, with us and others being arrested. This shows that peaceful protest is not safe under the remit of the Bill.
Jon Trickett
I have indeed worked many times with my hon. Friend on all kinds of activities. What the Government have in their sights are the ancient rights of assembly and freedom of association, which are now threatened by clause 59. The fundamental right to free speech means nothing if these other freedoms come under attack. We may end up with a situation in which we are free to shout at the telly in the privacy of our own homes but not free to organise ourselves collectively in public.
It is not as if our country has done away with all forms of injustice and inequality, is it? Yet instead of standing against injustice alongside, for example, the women on Clapham common the other night, the Government appear to be more interested in empowering the police force to arrest people who the state judges to have risked causing annoyance. It is interesting that many police officers have said that they do not wish that power to be bestowed upon them.
This House of Commons should be a beacon of liberty—a protector of our rights to speak, associate freely and assemble in public to express our reservations about how the country is going. Repressive legislation will never eliminate the thirst and hunger for justice that remains so powerful in our country today. It is the duty of the Commons to stand up this evening and reject this Bill.
Dr Caroline Johnson (Sleaford and North Hykeham) (Con) [V]
The first duty of any Government is to protect members of the public from harm, and I welcome the swift progress that the Government have made on that. Despite the challenges posed by the pandemic, the Government have beaten the target of recruiting 6,000 extra officers by March 2021 and are ahead of schedule to recruit, as promised, 20,000 more police officers by 2023. With a new cohort of police officers protecting our communities, we should give them the protection that they need to do the job to the best of their ability.
At a time when we are battling an invisible enemy—the coronavirus—our exceptional frontline workers should not be at risk of violence from the very people they are trying to protect. I am glad that the Government have shown that they will not tolerate such attacks and are legislating to double the maximum penalty for assaults on emergency workers from 12 months to two years in prison—the penalty that fits such an abhorrent and selfish crime.
At a time when we have been tragically reminded of the senseless violence perpetrated against women and girls, it is important that our communities are protected from the most serious offenders. A previous Labour Government introduced automatic early release at the halfway point; we are legislating to ensure that that stops and that those convicted of the most serious violent and sexual offences must serve at least two thirds of their sentence before parole is considered.
I welcome the fact that more robust sentences for the worst offenders will be combined with greater efforts to rehabilitate. For offenders stuck in the revolving door of crime there will be things such as electronic monitoring tags to ensure that long and restrictive curfews are adhered to. Sobriety tags, which were first piloted here in Lincolnshire, will ensure that individuals comply with alcohol abstinence orders. Such measures will ensure that once criminals have left custody, robust monitoring is still in place both to stop further harm and to break the cycle of reoffending.
I am pleased to see that those who use their car as a weapon will receive longer sentences, but as we increase sentences for careless driving I look to the Minister for reassurance that we will not criminalise those who have a momentary lapse in concentration—something most of us experience at some point.
Burglary is a particularly invasive crime that many of my constituents fear, and it leaves people feeling unsafe in their home. Will the Minister consider increasing sentences for those who commit this particularly invasive crime?
The Bill represents a significant strengthening of our judicial system, with the flexibility to tackle both serious crime and the causes of crime. I am proud to see this Government delivering on their manifesto commitment to empower our judicial system and make our country safer, and I will support the Bill today.
Dr Rupa Huq (Ealing Central and Acton) (Lab)
This monster of a Bill includes the word “women” zero times in 295 pages, yet statutes, war memorials and monuments are mentioned multiple times.
The Bill is likely to go into Committee, so it is then that I will seek to improve it by tabling an amendment to prohibit the long-standing and continual, daily harassment and intimidation of women at abortion facilities. Every year, 100,000 women across England and Wales who try to exercise their right to a termination are told that they are going to hell, filmed, followed and given propaganda that is inevitably medically wrong and unwanted. That is not healthy, noisy protest but the shaming of individual vulnerable women for decisions taken perhaps as a result of rape or similar. It is gendered harassment, which is not included in the Bill but overlaps with part 3—the explanatory notes talk about
“disruption to the life of the community”
when
“the purpose of the organiser is to intimidate others into doing or not doing something that they have a right to do”.
Many women will have recognised what the Home Secretary said yesterday about how we all too often quicken our pace or grab our keys or phone in uncomfortable street encounters. Factor in being booked for a time-sensitive medical operation and there is no easy escape. This intimidatory activity is calculated to make women cancel their appointment or, at the very best, rebook it for when those people are not there. There is unpredictability and inconsistency: only three local authorities have gone down the byelaw route of local public space protection orders. This cannot continue; it is unequal access to justice, if nothing else.
When I asked the Health Secretary in this Chamber for his opinion on anti-vaxxers, he told me that no one’s access to legal medicine should be barred or prevented. By lumping such a measure in with prosecuting sports coaches who groom teams, criminalising already-persecuted Traveller lifestyles and introducing excessive sentences for toppling statues, the Government are inevitably going to accuse those who oppose the Bill of being soft on sex offenders, which is really disappointing.
Harassment of women is objectively wrong; it is surely not party political. Indeed, the cross-party will of the House is behind such a measure. The last time my private Member’s Bill was put to a vote in June, the House voted for it by 213 to 47. I even had Government Members on the payroll coming up to me all day saying, “Good on you, I wish we could have voted for this too.” So it is high time we updated what is being done in common law and put into statute, followed Canada—
Mr Deputy Speaker (Mr Nigel Evans)
Order. I am terribly sorry; we have to move on.
Mrs Pauline Latham (Mid Derbyshire) (Con) [V]
Given the recent focus on violence against women and the fact that the coronavirus pandemic has increased physical and sexual violence, the Bill represents an opportunity to fix oversights in the law regarding child safeguarding. It contains some welcome provisions that will protect women in the UK. However, child marriage remains an oversight, and a new clause criminalising the practice would protect vulnerable girls in this country and around the world.
Under the Sexual Offences Act 2003, adults commit a criminal offence if they have sex with a child—defined as a person under the age of 18—with whom they are in a position of trust. Clause 45 of this Bill would extend the list of positions of trust to include sports coaches and religious figures, thanks to my hon. Friend the Member for Chatham and Aylesford (Tracey Crouch). The explanatory notes state that the logic is that children are susceptible to abuse, exploitation and manipulation. If a child’s will can so easily be manipulated by those in a position of trust, with abusive consequences, why does the law allowed them to marry at the age of 16 or 17 with their parents’ consent?
In 2018, the Forced Marriage Unit recorded 1,500 cases of suspected forced marriage, 35% of which involved children under the age of 18, and since 2017, Karma Nirvana has responded to 375 calls involving child marriage. However, the true prevalence of child marriage is likely to be much greater as it often occurs in unofficial customary ceremonies. The crime of forced marriage, introduced in 2014, does not adequately protect children. The Forced Marriage Unit reports feeling unable to intervene in cases involving children because coercion is difficult to prove and vulnerable children have been groomed to appear willing. Children being groomed into child marriages often cannot understand what is happening to them and feel unable to challenge their parents. The current law effectively places the reporting obligation of a serious crime on young and vulnerable victims. For that reason, many contact charities such as Karma Nirvana only later in life when the damage has been done, so could Ministers please include a new clause in the Bill to enable us to stop child marriage in this country?
Mr Deputy Speaker (Mr Nigel Evans)
I should just like to remind those who are on the call list but who, for whatever reason, are unable to take part in the debate, please to get in touch with the Speaker’s Office as usual. That message will then get through to us. The sooner the better, please.
Dame Diana Johnson (Kingston upon Hull North) (Lab) [V]
This Bill has provisions that I support, including whole-life orders for premeditated child murder and ending automatic early release of dangerous prisoners and sex offenders. However, the Bill also attacks, on a permanent basis, the fundamental human right of peaceful assembly. Banning gatherings, or a single person protest, on the grounds of noise or annoyance is deeply troubling. Noting the disgraceful events at Clapham Common on Saturday, I will vote against the Bill tonight.
The Bill also needs to do much more on tackling violence against all women and girls. The Government’s announcement on a council bidding process for lighting and CCTV funding does not cut the mustard. The Opposition’s reasoned amendment points out that the Bill fails to introduce a single new measure specifically designed to tackle the epidemic of violence against women. Indeed, anyone damaging a statue would receive a heavier sentence than many rapists.
I want to raise three issues that the Bill should cover. First, if Ministers are serious about protecting women, they must recognise that exchanging money, food and accommodation for sex is a form of violence. Scotland’s Government, the Crown Prosecution Service and the London Mayor recognise prostitution as violence against women. Why not this Government? Our current laws on prostitution are unfit for purpose. The UK today is a low-risk, high-profit destination for sex traffickers and pimps. Pimping websites operate openly and legally. Women are subjected to sexual exploitation by men, who face no criminal sanction. We must bust the business model of this modern slavery, cracking down on online pimping, deterring sex-buyers and supporting victims. I will be tabling cross-party amendments to introduce laws that support women and hold men accountable.
Secondly, pornography websites currently profit from exposing children to misogynistic violent pornography, fostering attitudes that underpin violence against women. We need the Government to take action on that.
Finally, we must join the dots. Individual incidents of violence against women are often not random, one-off or unconnected. Effective prevention of violence requires early intervention. We need a way to flag up where low-level sexual offences are often the gateway to potential serious escalation. Libby Squire was raped and murdered in Hull by a man who had, for 18 months prior to attacking Libby, wandered the streets committing sexual acts of indecent exposure, voyeurism and burglary of underwear and sex toys. Many offences were not reported, but even if they had been, the current law would not have dealt with the underlying problem.
In conclusion, violence against women is endemic, but also preventable. In remembering Libby Squire, Sarah Everard and many others, we need deeds from this Government, not words.
Craig Mackinlay (South Thanet) (Con)
What a rare treat to be able to speak in the Chamber.
One of my colleagues said earlier that the primary role of Government is to keep people safe: to keep those who are the law-abiding majority safe, those who want to do the right thing and those who simply just want to get on with their lives. We made commitments in our 2019 manifesto on law and order. This substantial Bill fills many holes and codifies some loose ends of common law interpretations, but mainly it protects the public whom we are here to serve. There are a number of features in the Bill and I just want to highlight a few in the time available.
Whole-life orders, as the starting point for premeditated child murder, has to be right. The prevention of automatic early release of serious, violent and sexual offenders has to be right. The public, for too many years, have wondered of what madness we have had that that was not so.
The doubling of the maximum sentence to two years for assaulting emergency workers, again, has to be right. These people have worked hard for us over the past year. Too often, we hear stories of them being spat at and abused during the covid period. We have spoken about the protection of victims and witnesses over many years, but finally Kay’s law, as it has been called, will mean that victims will be able to play a part in the bail conditions that the police impose.
Strengthening powers to tackle protests that cause significant disruption to the public is the area that seems to have got a lot of people exercised over the past few days. What we saw at Clapham Common was an unedifying scene, but it was not a result of this Bill or where we are at the moment. It was a result of the draconian covid legislation that I have not supported throughout but, strangely, Labour has. This Bill does not attempt to stop protest—far from it, and I would not be supporting it if it were, because I quite enjoy a good protest.
Very importantly, the Bill criminalises trespass to tackle unauthorised encampments. I can imagine that hardly any, if any, hon. Members or right hon. Members in this House have not had communities that have had to bear the cost of such unauthorised damage, cost to the local taxpayer, and often a “couldn’t care less” attitude by those who conduct it. The Bill also backs up our significant commitment to deliver 20,000 new police officers, and some of the excellent work in disrupting county lines and action against drugs in general.
I will support the Bill this evening, and I am somewhat intrigued that Her Majesty’s Opposition are opposed to it at this stage, but there seem to be more flip-flops than on a summer holiday.
Sir Paul Beresford (Mole Valley) (Con) [V]
This is a broad and significant Bill. There are many areas that I would like to discuss, but I have only three minutes, so I will concentrate on the long overdue changes relating to illegal Traveller camping.
My constituency has a number of legitimate Traveller sites. The relationship between the settled communities and the so-called Travellers on official sites is generally harmonious. Surrey County Council and Surrey District and Borough Councils are in the process of setting up a transit site, with facilities, for Travellers. All this is very different from the frequent illegal Traveller invasions. Surrey has had hundreds of these incidents, and my constituency has more than its fair share. Over recent years, the numbers of these illegal land-squatting camps have increased. If access is inhibited by barriers, gates or any form of obstruction, they are broken down or removed, and generally damaged. The Travellers then squat on-site regardless of the ownership, be it common land, parkland, farmland, private land or even a school playground. I note that a number of Members are opposed to change and would prefer that this remained a civil matter. That approach has been an absolute, abysmal failure, with considerable financial loss to the local community or the landowners. The legislative change criminalising this type of illegal camping is exceptionally welcome and has been long awaited. It is for the protection of local people—my constituents.
I note that in certain circumstances a fine can be imposed. Considering the phenomenal mess of human detritus and general waste, often including hardcore, that is almost without exception left behind when the illegal occupiers are removed, it would be helpful if some form of recompense for the cost of returning the site to its pre-invasion state could be available. I realise that that would be technically possible using the Compensation Act 2006, but this would need civil action requiring identification and service of notice on individuals who will have already moved and be able to claim that the mess was no fault of theirs. Hence, I wonder if it would be possible to require the site that has been occupied illegally to be returned to its previous state or to apply an appropriate cost to those who are abusing the site.
There is much in this Bill that I like, but this particular change will be overwhelmingly welcomed by an enormous number of my constituents who have been abused by these people over many years.
Gavin Robinson (Belfast East) (DUP) [V]
I am grateful to be called in this debate. I wish to place on record my thanks to the Under-Secretary, the hon. Member for Croydon South (Chris Philp), for meeting me to discuss this Bill. The scale of the Bill, the wide-ranging import of its provisions and indeed the two days set aside for the Second Reading debate all indicate the magnitude of what is contained within it.
First, I wish to indicate my support for the provisions that directly apply to Northern Ireland. The ability to access information from encrypted devices, the ability to take samples from human remains, changes to the Sexual Offences Act 2003 and mutual recognition across our United Kingdom are all welcome provisions that will assist in the fight against serious crime. Ministers are aware that I have raised my concern that, although they are not part of this Bill, unexplained wealth orders, provided for in the Criminal Finances Act 2017, have not yet commenced in Northern Ireland, despite our Department of Justice seeking a commencement order.
With paramilitarism and organised crime still having a significant impact in Northern Ireland generally, and in my constituency of East Belfast particularly, we need immediate progress on this issue. I am prepared to table amendments to the Bill if necessary, though I am somewhat assuaged to hear that progress may come in the next week or two. I would therefore be extremely grateful if confirmation of that could be given from the Dispatch Box this evening.
Separately, the House is well aware of the strength of feeling following the abhorrent murder of Sarah Everard so I am pleased that the Bill will increase the time served in prison from half to two-thirds of the sentence as a minimum for the most serious sexual offences. It will bring in provisions on abuse of positions of trust and enact Kay’s law with greater protections linked to pre-charge bail.
Finally, and regretfully, I rail against in the strongest possible terms the overarching sweeping and draconian provisions on protests. I have heard what the Government’s intention is, but the loose and lazy way the legislation is drafted would make a dictator blush. Protests will be noisy. Protests will disrupt. No matter how offensive we may find the issue at their heart, the right to protest should be protected.
Unless we wish to proceed with societal constraints that permit only graceful, genteel and humble protest, I urge the Government to indicate that they accept the strength of feeling on this issue, that they will work with colleagues across the House to amend the provisions significantly, and that they will not proceed without publishing guidance underpinned by statute on the operative implications.
I wish you, Madam Deputy Speaker, and all colleagues a happy St Patrick’s Day for tomorrow.
Madam Deputy Speaker (Dame Rosie Winterton)
Thank you. We now go by video link to Dame Angela Eagle.
Dame Angela Eagle (Wallasey) (Lab) [V]
Thank you, Madam Deputy Speaker. This is a huge portmanteau Bill. It contains proposals that I would sum up as the good, the bad and the ugly. The good includes measures that give particular protection to emergency service workers from assault, the problem-solving courts pilot, and long overdue reform of the criminal records disclosure regime. The bad is the Government’s appalling assault on the right to protest and free assembly, which is causing concern and alarm across the House, including from the former Conservative Prime Minister, the right hon. Member for Maidenhead (Mrs May), who expressed her misgivings about this in no uncertain terms yesterday.
The ugly is the complete absence from the Bill of any coherent attempt to protect the freedom of women and girls to live their lives free of harassment and violence. Clause 46 further criminalises assaults on statues by increasing the maximum penalty for such vandalism to a scarcely believable 10 years in jail. The Government’s obsession with using the law to stoke a culture war by giving more protection to inanimate statutes than to living people is an abuse.
Clauses 54 to 60 are a premeditated attack on the right to assemble and protest, which is the cornerstone of our democracy. While Ministers purport to be the defenders of our rights and freedoms, the Bill diminishes both. It extends already wide powers to police demonstrations much further, by creating new offences and new criteria that can be used to close down protest. The Bill seeks to place draconian limits on the method, location and even the noise demonstrators will in future be allowed to make if they are to remain lawful.
Apparently demonstrators are henceforth to be seen but not heard, like children in a particularly reactionary Victorian novel; yet the whole point of demonstrations is precisely to draw attention to injustice and give voice to issues that have been ignored. Democracy can be loud and messy sometimes—that is the point of it—so the Bill must be amended to preserve the freedom of assembly and the right to protest.
The real issue that the Bill should address is the mess that the Government have made of the justice and courts system. There is currently a backlog of 56,000 cases in the Crown courts, which means four years to wait for a trial. Justice delayed is surely justice denied. Since 2015, the percentage of recorded crime that reaches the court has halved. Rape convictions are down to just 2% of cases reported, and while domestic violence has soared in lockdown, convictions have fallen off a cliff. The Government would do better to run the existing court system efficiently and effectively before they come to the House with the new laws contained in the Bill.
Mr Gagan Mohindra (South West Hertfordshire) (Con) [V]
I will be supporting this important piece of legislation, which delivers on our manifesto pledge. It covers many important elements, and during my contribution I will have time to address only some of them. First, may I associate myself with the comments about Sarah Everard? My thoughts are with her loved ones.
I am not a lawyer, but there are many learned hon. Members of this House, and it is worth noting that the Law Society supports the overall ambition of this substantial Bill to tackle crime, support the police and build safer communities. Going into detail, one of the bits I particularly want to highlight is clause 46. Following an excellent campaign by my hon. Friends the Members for Bracknell (James Sunderland) and for Stoke-on-Trent North (Jonathan Gullis), with the private Member’s Bill on the desecration of war memorials, it is good to see this measure included in the Bill. It is not just about war memorials; it includes roadside memorials and gravestones as well.
On part 3 on public order and the right to protest, it is worth reiterating that the police response does need to be proportionate. I would cast the House’s memory back to six months ago when we all saw images on social media of an ambulance trying to access St Thomas’s and not being able to do so. The other theme worth highlighting on this particular issue is that there have been effects on freedom of the press with print media not being able to print.
Part 4 on unauthorised encampments—clause 61 onwards—is a really important piece of legislation. I know of many colleagues who have campaigned on this particular provision for many years. It will make trespass a criminal offence, and it has a significant effect on law-abiding communities. I would echo the comments made by others in the House that civil actions have not been a suitable avenue of discouraging poor behaviour. Clause 62, which changes the period of no return from three months to 12 months, targets the bad apples, and I think it is a welcome addition.
Finally, part 7 on sentencing and release is a really important piece of legislation that gives the law-abiding citizens of our country the confidence that those found guilty of heinous crimes will have a proportionate sentence. Clause 108 on referring to the Parole Board in place of automatic release is another aspect that is well worth mentioning.
In summing up, this Bill will be warmly welcomed by law-abiding citizens. It offers increased protection to those who protect us, it increases the options available to the courts to ensure that sentences are in line with the offence and it ensures that disruptive behaviour is actively discouraged.
Martin Docherty-Hughes (West Dunbartonshire) (SNP) [V]
On the day the Parliament of Scotland seeks to place the United Nations convention on the rights of the child at the heart of our nation’s legal system, the British Parliament seeks to criminalise thousands of Gypsy and Traveller children for daring with their families, in the 21st century, to live their traditional and historic way of life. Imprinted on vellum, this archaic legislation will enshrine centuries of resentment, bigotry and racism, entrenching inequalities and proscribing specific ethnic groups, even against the advice of the police forces of England. It is a law that facilitates the narrative of exclusion, well exposed in recent weeks when Dochertys like me, merely for being from the Traveller community, are excluded from the life of the state.
As a Scottish constituency MP, I see this is a direct attack on the Scottish Traveller community, which this Parliament refuses to recognise as a distinct ethnic group—Scots who will be at the mercy of Dickensian attitudes, and exposed to imprisonment and financial ruin by the mother of Parliaments. As the co-chair of the all-party group on Gypsies, Travellers and Roma, I see this as a misguided, reprehensible attack on the ancient and historic rights of the nomadic peoples of these islands. It is clear that England’s green and pleasant lands are not for the likes of us, and the Conservative and Unionist party does not give a damn who knows it.
Mr Simon Clarke (Middlesbrough South and East Cleveland) (Con)
It is a pleasure to speak in this important debate and to support this vital legislation. At the outset of my remarks, I too would like to set on record my deep sympathy for the family and friends of Sarah Everard—what happened last week was the most appalling story, and it will cast a lasting shadow for many of us as we reflect on these issues today and, indeed, in the years ahead.
This legislation matters because it is about the Conservative party delivering on our promise to the public to cut crime and ensure that we have tougher sentencing for some of the most violent criminals in our society, and I find myself genuinely astonished at the attitude of Opposition parties in opposing it.
I want to address the two main grounds being relied on by the official Opposition to justify its stance. First, there are the provisions to stop some of the most extreme tactics of protest groups such as Extinction Rebellion, which go too far. I well remember the tactics of Extinction Rebellion and the misery they brought to hundreds of thousands of people across the capital and elsewhere. Blocking roads so that ambulances cannot pass, because people are glued to the ground, is not a legitimate tactic for protest. The right to protest is fundamental, but it is not unqualified. We have to balance all rights and responsibilities in our society against the rights and liberties of our fellow citizens, and the tactics that have been deployed have clearly gone too far.
The second ground that Labour relies on is that the Bill is not ambitious enough in its protection of women and girls, and some of the remarks by the hon. Member for Wallasey (Dame Angela Eagle) sum up the damaging things that are being said about this legislation, which will undermine public confidence and are, in fact, simply wrong. She spoke about statutes being attacked, as though they were some kind of worthless thing to defend. I would defend our heritage on its own terms, but, of course, the relevant provision is also about protecting gravestones, for example, from being desecrated; it is not just about statues.
The hon. Lady also said that we had not taken action on protecting people from harassment. Well, the Government have taken action on stalking, and they introduced a 10-year sentence for it recently. That is something I am very proud of, and it should not be forgotten. It has added to a very strong record on the protection of women’s rights, on issues from forced marriage to strangulation to coercive control. We should be proud of all of that, because this Government care deeply. The Bill strengthens those provisions further, from ending early release for serious sex offenders, to stricter pre-charge bail conditions, to measures on the abuse of positions of trust and on arranging or facilitating child sex abuse. This is really important legislation, and that should not be forgotten.
That all goes to show how far the Labour party has drifted from the values of its traditional heartlands. In places such as Middlesbrough and Hartlepool, it is not just that local people feel ignored and taken for granted by the Opposition, but that they now feel actively betrayed by them. This legislation is a litmus test about values, and it deserves the full support of the House today.
Stella Creasy (Walthamstow) (Lab/Co-op) [V]
In any legislation, any of us on any of these Benches can always find some good, and this legislation is no different. For example, there are the measures on providing protection from being abused by adults in positions of trust and the measures on dangerous driving, as well as the increase in sentences for those who assault our emergency workers. However, this legislation is a curate’s egg, and what little good there is in it is overwhelmed and infected by the bad. It breaches the covenant between us in Parliament and the public about the consent that is part of a free, fair and equal society.
All of us recognise that it is time for some reform of how public order is managed in this country. The scenes of chaos that we saw on Saturday are a clear embodiment of that. The trust between the police and women, particularly in London, has been broken—trust that many communities have not had in the police for some time—but this legislation will do little to heal those relationships.
I will be honest: I have a long list of things that cause me “severe annoyance”. Some, Members may agree with; many, they probably would not. However, I pity the commanding officer trying to enforce this legislation if it becomes law and trying to explain decisions around severe annoyance. The legislation is simply unworkable. I am also ashamed to be part of a Parliament that is seeking to demonise a minority community in the measures being brought forward around Gypsy and Traveller communities—measures, indeed, that the police themselves have said they do not wish to see.
The public have to be able to tell us when we are getting something wrong. Sometimes that message is noisy and messy, but it is important that we do not seek to silence it no matter how uncomfortable it might make us feel. This legislation seeks to do that.
The Bill also breaches that covenant between us and the public by what it does not contain. The hon. Member for Middlesbrough South and East Cleveland (Mr Clarke) does not quite understand the concern that there is no mention of women, but plenty of mention of statues. At a time when we are all concerned about the lack of action over tackling violence against women, this legislation could have been the perfect vehicle for the Government to implement the Law Commission’s recommendations on making misogyny a hate crime, but those are measures are absent. It could also have been an opportunity for the Government to recognise when they are at fault in the courts. Let me give just two examples. For the past three years, the Government have been found at fault by the courts on how they treat bereaved parents in this country and on how they treat victims of domestic violence who have a sanctuary room—they charge them the bedroom tax—but no measures have been brought forward. What respect for the courts does that show from a Government who are now seeking to reform those areas?
Human rights mean little if they cannot be actioned and if they are not upheld, even when it goes against what appears to be the Government’s interests. I urge the Government to use this legislative time for something more constructive, to work across the House, to recognise the concerns over violence against women and to uphold all our rights. We shall all regret it if they do not.
Cherilyn Mackrory (Truro and Falmouth) (Con) [V]
There is so much to say in such a short time. First and foremost, I wish to thank the brilliant officers of Devon and Cornwall police for their unshakeable commitment, as well as our fantastic police and crime commissioner, Alison Hernandez, who has done a huge amount of work, particularly around combating domestic violence and modern slavery in our region.
I am afraid that I have to take issue with some Opposition voices that have described the new measures around policing protests as dangerous and draconian. Ensuring that a protest cannot prevent an ambulance from reaching a hospital in an emergency is the exact opposite of dangerous. Ensuring that police can impose conditions on protests that are noisy enough to cause intimidation, alarm and distress to innocent bystanders is the exact opposite of draconian. As the Home Secretary said yesterday, the right to peaceful protest is the cornerstone of our democracy, and all of us in this Chamber understand and cherish that fundamental right. It does not, however, extend to causing damage to property or injury to others.
I am pleased that the Bill introduces maximum life sentences for drivers who cause death by dangerous driving or by driving under the influence of drink and drugs. I want to thank my constituents in Truro and Falmouth who, throughout my time as their Member of Parliament, have consistently highlighted the need for proper punishment of hit-and-run drivers. Unfortunately, they will be familiar with the tragic death of Ryan Saltern, a postman from Probus, a husband and a dad of young children. The man responsible for Ryan’s death left the scene and was sentenced to just four months, which was suspended for a year. He was disqualified from driving for just 12 months. Needless to say, Ryan’s family have been left devastated. My hon. Friend the Member for North Cornwall (Scott Mann) has been working closely with Ryan’s parents, and I join him in asking Ministers to consider a new criminal offence of leaving the scene of an accident that later resulted in death. We would welcome further meetings with Ministers about this matter.
Finally, I pay tribute to the Bill for the changes that will bring about better protection for women. I am proud to sit on the Benches of a Government who have already introduced, or who are progressing the introduction of, the following measures specifically aimed at the protection of women: outlawing upskirting; creating an offence of coercive control; strengthening the ban on a rough sex defence; outlawing non-fatal strangulation; creating the offence of stalking and then doubling the maximum sentence; criminalising the sending of revenge porn images or threats to do so; introducing measures to make it easier for victims to give evidence in court; the passing of the Modern Slavery Act 2015; the increased funding for rape support centres by 50%—the list goes on. In addition, Cornwall Council is receiving £1.1 million of funding, which was announced last month, to ensure that domestic abuse victims and their children are able to access life-saving support.
As always, I welcome the Prime Minister’s further announcements this week of the doubling of the investment for our safer streets. There is more to do, but the Bill is a great start, and I will happily back it this evening.
Maria Eagle (Garston and Halewood) (Lab) [V]
This 300-page incoherent mish-mash of a Bill contains some truly odious measures, and I have time to deal with only one of them: the dangerous and unjustifiable crackdown on the freedom to protest in clauses 54 to 60. Those clauses alone are enough for me to vote against Second Reading tonight, despite the Bill containing some good measures.
This populist Government have swiftly developed a penchant for authoritarianism, born of their approach to getting the vast amount of Brexit legislation necessary through Parliament. They have got into the habit of writing framework Bills with extensive Henry VIII powers, leaving vast scope for Ministers to change primary legislation by personal fiat, without adequate parliamentary scrutiny. This trend has been made worse by the necessity to legislate swiftly for public health reasons because of covid, again with no scrutiny ahead of laws being brought into force. The coronavirus crisis has led to a draconian removal of basic liberties that is necessary temporarily for health reasons, but not for a minute to be thought of as desirable. The Government now want to make this emergency way of doing things the norm, to enable police officers to have far too much power effectively to silence any protest.
We have a Government who attack judges who decide cases in ways they do not approve of; some Law Officers who will not defend the independence of the judiciary; a Government who legislate to enable themselves to break a treaty that they have only just signed; Ministers, including the Home Secretary, who break the ministerial code with impunity, while senior civil servants they disagree with are hounded out of their jobs; and a Government who now want to take the power to ban demonstrations or vigils if they are too noisy—they are literally silencing any protest they do not like.
This legislation allows for convictions for breach of conditions that the police have imposed, even where the person on trial has no knowledge of what that condition was; it increases the punishment for such a breach from 12 weeks to 51 weeks in prison. The Home Secretary seems to have hijacked what was a worthy enough sentencing Bill to insert her divisive and polarising measures on protests. The original timetable for the Bill gave the game away. It was due to be completed in time for the police and crime commissioner elections in May. This is being done to enable the Government to claim that their political opponents are not supporting the police enough—indeed, we have already heard speeches from some Government Back Benchers claiming just that.
There has been no real focus on how the law should be changed for the good of society. For example, we have just seen how much it fails to meet the needs of women, who just want to be safe. This Bill just does not tackle any of those issues. Clauses 54 to 60 are intended to destroy the fundamental rights of citizens in our democracy to protest, and just for some cheap headlines ahead of an election. The Bill is draconian and undesirable, and the Government should not get away with enacting it.
Laura Trott (Sevenoaks) (Con) [V]
First, I want to join in the sympathies and prayers expressed by Members from across the House to the family and friends of Sarah Everard.
I rise, virtually, to support this welcome Bill, and in the limited time I have I wish to focus on the aspects that concern violence against women, girls and children. I have been disappointed by the approach that Opposition Members have taken to this Bill, which stands in marked contrast to the constructive tone taken to the Domestic Abuse Bill. It is clear that today’s Bill takes a stride forward in protecting women and girls. The hon. Member for Walthamstow (Stella Creasy) describes the “little good” the Bill is doing. I would not describe ending the automatic halfway release of those convicted of offences such as rape, extending the law on abusing positions of trust to better protect children, better protecting victims of domestic violence and introducing tougher sentences for sex offenders as “little good”. Indeed, when this is paired with the Domestic Abuse Bill and the upcoming violence against women strategy, we see that the Government are taking concrete steps to address the many challenges we still face to make women safe in their homes and on the streets.
I also take serious issue with the conflation of maximum and minimum sentences that we have heard in the course of this debate. The maximum sentence for rape is life. That message should ring out from this Chamber. The conflation of the minimum and maximum sentences is simply a demonstration of the Opposition playing party politics on an issue that goes far beyond any point scoring in this Chamber today.
However, it is always important to look at what more we can do. I have spoken before about my long-standing concerns about the use of standard determinate sentences, particularly for rape. I welcome the action that the Government are taking to end the use of standard determinate sentences for terrorist offenders, and the power to refer high-risk offenders to the Parole Board in place of automatic release. However, the reoffending rate for sexual offenders is 14%, and we know that 84% of rape convictions are dealt with by standard determinate sentences. That means that the Parole Board is not involved at all in the release of those criminals. I think we should look at that further, to add to the already significantly increased protections that we are giving women and children as a result of this Bill—and any accusation that we are doing otherwise is false.
Richard Burgon (Leeds East) (Lab) [V]
This is a dangerous Bill in many ways, both in what it contains and in what it omits, including in its stark failure to really tackle violence against women. I want to concentrate, in my three minutes, on the draconian threat to the right to protest.
Under this Government’s plans, protests will still be allowed, just as long as the police say so, just as long as the protests are not too noisy, just as long as they do not cause too much of a nuisance, just as long as they do not seriously annoy anyone, and just as long as they are not too near Parliament. So protests can go ahead, just as long as they do not do what protests are meant to do. And those who do not abide by the new rules could get 10 years in prison—longer than the sentences most men convicted of rape ever get.
Let us be clear: this is a political attack—an attack on people’s ability to exercise of one of their key democratic rights, an attack on one of the ways people have to speak out against Government policies they oppose, an attack on free speech. The Government have already made it much more difficult for people to go on strike, and now they want the police to make it much harder for people to protest.
Even without this new law, we have seen the state, under this Government, clamping down on democratic rights: last week, a nurse fined £10,000 after protesting against pay cuts; women at the Clapham common vigil attacked. And it goes way back: students kettled for opposing higher tuition fees; fracking activists jailed.
This Bill, written in direct response to the growth of Black Lives Matter and Extinction Rebellion, is aimed at suppressing further political opposition and dissent. Instead of tackling the underlying grievances, the state is responding by attacking those challenging injustice. It is a form of state intimidation, designed to stop people organising and attending protests, but people will not be stopped.
Throughout our history, significant gains have been won through demonstrations: eight-hour days won by the trade unions; votes for women won by the suffragettes. Such movements were always denounced at the time as violent by politicians standing on the wrong side of history. If the Government proceed, this law will be broken repeatedly, and trust between the state and its citizens further shattered.
Edward Timpson (Eddisbury) (Con) [V]
On a sunny spring morning early on a Saturday in 2017, weeks away from the general election, I was at home, where I am now, with my then nine-year-old daughter, my wife having just left to go out with my then 11-year-old and three-month-old daughters. I looked out of the window and saw a car parked outside, with a man holding a ladder walking towards the house. We were not expecting anyone, so I went out to ask if I could help.
Things then took a sinister turn. What unfolded was an orchestrated, organised mass takeover around and on our private home, with two men forcing their way up on to our roof while others appeared with camera phones and a loudhailer as they circled our house, taking photos and video footage through the windows and broadcasting unsavoury and baseless claims about me. My nine-year-old hid upstairs while I called the police for help.
The guise of this protest was to rail against cases of children being taken into care and adopted. As the then Minister for Children, I knew that strong views on this sensitive subject came with the territory, but never in my wildest dreams believed this would ever be literal. We were forced to vacate our family home under police escort and were unable to return for three days as our roof remained occupied, save for my wife recovering some personal belongings for her and our baby with the police in attendance.
As this trespass was, in law, a civil matter, my only recourse at that stage was to apply for an injunction, unless it could be shown that a criminal offence had subsequently been committed on site. We were all left feeling helpless, intimidated, frightened and let down by the current construct of trespass and public order law. The children were confused and worried, and I ended up having to relive the whole experience in court, after which, thankfully, convictions were secured. For many months afterwards, I would still jump when a vehicle I did not recognise parked outside our house. We can all subscribe to physical non-violent protests on public land, but the mental and emotional impact on those caught up in it, especially where trespass is involved, cannot be overlooked. That is one of a number of reasons why I am very supportive of the provisions in parts 3 and 4 of the Bill.
As a former children’s Minister, I am pleased to see measures to extend definitions in relation to those who abuse positions of trust by engaging in sexual activity with minors, as well as measures establishing secure schools, preventing knife crime, promoting and improving the use of youth rehabilitation orders and others. I know that many parishes in Eddisbury will welcome the Bill’s proposals to protect our war memorials from desecration.
As the Bill goes through Committee and Report stages, there is a chance to consider what more we can do to tackle the growing and devastating scourge of pet theft, which is an emotive issue among many of my constituents. Finally, it would be remiss of me not to mention my private Member’s Bill to raise the retirement age of magistrates to 75, which I am delighted is now official Government policy. Is this not the perfect Bill in which to make that law?
Ms Marie Rimmer (St Helens South and Whiston) (Lab) [V]
First, may I pay my respects to the loved ones of Sarah Everard? My thoughts and prayers are with them.
Causing death by dangerous driving deserves a life sentence. That is the justice that Violet-Grace Youens’s parents deserved. Their angelic four-year-old daughter Violet-Grace was so cruelly taken from them. The family continue to tirelessly campaign and help others through the Violet’s Gift charity. Last year I was proud to co-sign the private Member’s Bill promoted by the right hon. Member for Maidenhead (Mrs May) on this very issue. Since then, the Government have indicated that they will not support that Bill. Instead, they have included the dangerous driving changes in this far-reaching Bill before us. Unfortunately, this means that I will not be able to support the changes this time, for this Bill infringes on our very freedom and democratic rights.
Like many, I agree that protests can sometimes cause some personal annoyance. Protests can make us late for work. Protests can cause a little harm to our finances. Protests can force us to listen to views we do not agree with. But should protests be a criminal act because they cause the risk of some “serious annoyance”? I do not think so, and I am sure that most Members agree. Perhaps worse still, the Bill empowers a judge to imprison someone convicted of causing the risk of serious annoyance for 10 years.
The freedom and right to protest is the cornerstone of everything we believe in. It is the bedrock of liberal democracy. Across the world to this day, we see people taking to the streets to protest for their rights. Throughout my life, I have seen how protests have brought about change—the fall of the Berlin wall, the collapse of the Soviet Union, and more recently in Belarus and Myanmar. We have also seen where putting down protests can lead us. The Tiananmen Square protests live on in our memory. Every adult alive that day remembers that brave man walking in front of those tanks. Giving up our freedoms simply so that the Home Secretary can appear to be tough on crime is not justifiable. Doing so would be a betrayal of everything this Chamber represents.
Virginia Crosbie (Ynys Môn) (Con) [V]
It is a privilege to speak in this important debate. I, too, would like to extend my deepest condolences to Sarah Everard’s family and friends. I thank my hon. Friend the Member for Eddisbury (Edward Timpson) for sharing his powerful personal experience to bring to life how important the changes in the Bill are.
A couple of weeks ago, a young female in my constituency started working as a police officer. On just her second shift, she was assaulted when someone spat at her. Spitting and coughing on police officers has become more common since covid-19 came into our lives. North Wales police alone recorded 100 attacks on officers including coughing and spitting or biting between February and November last year. This is part of an unacceptable trend of increased assaults against police and other emergency service workers. Of respondents to the Police Federation demand, capacity and welfare survey last year, 55% said they had been the victim of an unarmed physical attack in the previous 12 months, and in some frontline roles the figure was as high as 83%.
Since 2020, at least 30 officers have been killed while performing their duties, despite massive improvements in protective and defensive equipment. The data shows that we are living in a more violent society, and the threats to our police officers are increasing, but those who attack or assault police officers are often let off with little more than a slap on the wrist. What an offence that is to our police. I speak regularly with the police on Anglesey; I have been out with them on patrol and I helped to man the Britannia bridge with them during the first lockdown. I know how seriously they take protecting people on the island, but they tell me of the difficult and often threatening situations they handle every single day. John Apter, the national chair of the Police Federation, said:
“We need officers to have the very best protection, and there must be a strong deterrent—that deterrent should be time in prison, no ifs, no buts.”
The Bill doubles the maximum sentence for those who assault police and other emergency workers.
I end by saying that I will back the Bill tonight. I applaud this Government for using the Bill to follow through on their manifesto commitment to take serious action on sentencing of those who assault our police, as part of their raft of measures to improve provision for those who serve our communities daily.
Bell Ribeiro-Addy (Streatham) (Lab)
The Government admit that there is a crisis in policing, the criminal justice system and courts, and the publication of such an interminably long Bill speaks to that. Members of the public may be left wondering, given that the Conservative party has been in office for well over 10 years now, who is responsible for the multiple crises. In that time, we have had innumerable pieces of legislation on these matters—on policing, criminal justice and courts—including statutory instruments. Logically, we can conclude that none of that legislation has dealt with the admitted problems, and may even have exacerbated them.
We should not expect the outcome of this Bill to be different, because it is designed not to address fundamental problems but to infringe on our civil liberties and prosecute culture wars, with more protection for a statue than for a woman and a longer sentence for damaging public property than for sexual assault. The Bill does not even attempt to address the crisis of plummeting conviction rates for some of the most serious crimes, including rape. Reported rapes are soaring; they almost reached 60,000 last year, but barely 2,000 resulted in prosecution. The Victims’ Commissioner has spoken of the effective decriminalisation of rape in this country.
Ministers are fooling no one when their default response is to talk about tougher sentences and more police. Tougher sentences are useless if the perpetrators can reasonably expect never to be convicted. More police on the streets are a waste of time if they are instructed to prioritise guarding statues. The Bill seeks to make that style of policing commonplace, with the major focus on powers to prevent non-violent protests, such as Saturday’s vigil in memory of Sarah Everard, whose family we continue to hold in our thoughts and prayers. It follows in rapid succession legislation that provides legal immunity for members of the armed forces and the police, even in cases of rape, torture and murder.
Historically, we have had policing by consent in this country. This Government seem to be intent on ending that, with more armed police and more random stop-and-search, despite the evidence of racist discrimination, ploughing on with the failed Prevent programme and the obvious demonisation and disproportionate impact on the Gypsy, Roma and Traveller communities, and now the suppression of peaceful gatherings and protests. This is draconian legislation. It will not make us safer. It should be opposed by everybody who believes in democracy.
Ruth Edwards (Rushcliffe) (Con)
In the last three years, there have been 1,329 assaults against emergency services workers in Nottinghamshire, and I will share some of their stories.
On 1 February last year, police were called to assist paramedics at a reported insulin overdose. As they reassured the patient, Lance Morgan, that there was no sign of an overdose, he became abusive, kicking out at officers and paramedics, shouting racist abuse. Emergency workers Paul Pointon and Michael Phipps were injured, as Lance Morgan punched Michael in the groin and Paul in the abdomen. He was sentenced to 20 weeks in prison after pleading guilty to four counts of assaulting an emergency worker.
On 16 August, a female police officer was punched in the face and shoved in the chest after she stopped a driver who had been speeding, lost control and crashed into another car. The offender, Andrew Robbins, got 14 months in prison for assaulting an emergency services worker and a string of driving offences.
I have been speaking about violent assaults, but 64% of the 1,329 assaults were non-physical, such as spitting, coughing on, or threatening officers. The majority of those assaults were carried out by people who claimed to have coronavirus—covid assaults. In Nottinghamshire, Omar Osman spat in the mouth of the police officer arresting him, while claiming he was covid-positive. In custody that evening, he spat in the face of a detention officer, splashed water and urine at another, and hit the custody sergeant over the head while spitting in his face. As one officer said to me when I accompanied him on patrol, these things happen over and over, and people live with that constant, nagging fear: “Have I got covid? What if I pass it on to my family?”.
The Bill will double the maximum sentence for assaults on all emergency service workers. This issue has too often been overlooked in debates of the past 24 hours, because Labour Members do not want their constituents to know that they are voting against it. So that we all know where we stand, tonight Conservative Members will vote for tougher sentences for child murderers; Labour Members will be voting against. We are voting to keep rapists in jail longer; Labour is voting against. We are voting for tougher penalties for those who desecrate the memory of the fallen; Labour is voting against. We are voting to keep our streets safer and to tackle violent crime; Labour is voting against. Labour Members are soft on crime, and soft on the causes of crime. They are failing to protect their constituents, and failing to back our police.
Geraint Davies (Swansea West) (Lab/Co-op) [V]
Our hearts are with the family and friends of Sarah Everard, and our thoughts with those who gathered in peace and solidarity to mourn her death, in a vigil that was so badly and aggressively handled, and into which we need an immediate inquiry. In its aftermath, this Bill is our opportunity to help women to reclaim the streets for good, turn back the tide of rapes, and replace fear with confidence. Instead, however, the Bill curtails our rights to peaceful protest and assembly. It gives harsher punishments for attacks on slave-owner monuments than for sexual violence against women. It persecutes our Roma and Gypsy communities, and it attacks our right to roam the countryside while giving rapists freedom to roam our streets; rape is up by 35%, and 99% of recorded rapes never go to court.
We need investment at scale in Nightingale courts, equipped with the latest DNA forensic testing technology, so that rapists can be charged, prosecuted and convicted in weeks, instead of victims living in fear for years, as this Bill allows. The Government should empower our citizens and communities, but instead they attack the rights of all of us to peaceful assembly and protest—trade unionists, EU remainers, climate change activists, anti-war protesters, and vote-at-16 enthusiasts. They are curtailing the freedom of expression that feeds a healthy, responsive democracy. That will drive protest underground, generating heat in place of light.
This Trojan horse Bill may display popular measures on dangerous driving, protecting protectors and Lammy reforms, and I am sure that in Committee, Labour will support those few crumbs of goodness beside the poison chalice that this Bill represents. This thoroughly rotten Bill needs to be rejected and recast in the next Queen’s Speech. It fails to reclaim our streets from the grip of fear; and amid a pandemic, a recession, and the serial abuse of women on our streets, it constitutes an attack on our fundamental values, our democracy, our freedom, and the very laws that protect those things. We should reject the Bill.
James Wild (North West Norfolk) (Con)
The Bill delivers on our manifesto commitments to tackle crime. Let me start with protection for those on the frontline. The new police covenant will bring increased focus to the issues of physical protection, help and support for the families of officers. I know from my time in the Ministry of Defence the galvanising effect that the reporting duty in the Bill will have, just as the duty introduced for the armed forces covenant had.
There has been an unacceptable increase in assaults on emergency workers. In Norfolk alone, 659 police officers were assaulted last year. Doubling the sentence for such attacks will better reflect the risk that the police, firefighters, paramedics, prison workers and others face.
Protecting young people is an important part of the Bill. I support including faith leaders and sports coaches in the provisions relating to sexual activity and positions of trust. Extending the offence of arranging a child sex crime will close a gap in criminal law. I take this opportunity to acknowledge the role that Facebook played in providing information that was crucial to securing a 25-year sentence for a serial paedophile in my constituency. However, with the National Crime Agency and senior police officers warning that Facebook’s plans for encryption risk serious child abuse offenders going undetected, I urge Facebook to rethink.
If we are to increase confidence in the justice system, it is important that sentencing reflects the severity of crimes, and I welcome minimum terms for repeat offences, including burglary, drug and knife crimes, unless exceptional circumstances apply. Very serious violent and sexual offenders should rightly serve longer sentences.
There has been much focus on the clauses relating to public order, and rightly so; the right to protest is an essential part of our democracy. I share concerns about the policing in Clapham, and I welcome the independent review. However, the powers in the Bill are not about that; nor are they about the temporary covid restrictions. They are there to deal with deliberate tactics that have led to disproportionate disruption. Some call the blocking of ambulances, closing of bridges and people gluing themselves to trains legitimate protest. My view is that those actions undermine the careful balance between the rights of protesters and the rights of people to go about their daily lives. I recognise that there are concerns, and those provisions will be considered further in Committee.
Finally, there is strong concern about dog theft in North West Norfolk, as elsewhere. Pets are part of our families, and the emotional hurt that the loss of a pet can cause is immense. I hope that during the passage of the Bill, the Government will bring forward measures to increase penalties for that crime.
Tonight, I will back these measures in the Bill, and others to support rehabilitation and more effective community sentences to tackle serious violence. Anyone who votes against this Bill is voting against measures to make our streets safer.
Jeff Smith (Manchester, Withington) (Lab) [V]
What a shame that the Government have chosen to turn a piece of legislation that we could have all got behind into a divisive attempt at a culture war. In this House, we all support the police covenant. We all want better protections for our emergency workers. We all want the right sentences for people who cause death by dangerous driving, and we all want to protect vulnerable young people from abuse by people in a position of trust. I am pleased those measures are in the Bill, and I am grateful to my hon. Friends the Members for Rhondda (Chris Bryant), for Halifax (Holly Lynch), for Barnsley East (Stephanie Peacock) and for Rotherham (Sarah Champion), and the hon. Member for Chatham and Aylesford (Tracey Crouch), for their campaigning on those issues.
There is more the Government could have done that we would have supported, such as introduce better protection for shop workers, as well as emergency workers. I refer to the Register of Members’ Financial Interests, as I am a member of the Union of Shop, Distributive and Allied Workers. Its survey of shop workers last year showed that 60% were threatened by a customer, and 9% were assaulted. We have been trying to tackle the intimidation of shop workers in Didsbury in my constituency, and it is time for real action to deter that kind of behaviour.
We could have seen real measures to tackle violence against women and girls. On sentences, we agree on whole life orders for the premeditated murder of a child, but why not whole life sentences for the abduction, assault and murder of a woman? Why not make street harassment a crime? We could even have seen measures to seriously tackle drug policy and sentencing. In my view, it is counterproductive to criminalise people for the possession of drugs for personal use. It runs the risk of ruining their future life chances, wastes the time of the police and courts, and does not reduce the harm that drugs cause to individuals or society. A serious debate on drug policy is long overdue.
Even without those measures that the Government could have introduced, we could have supported the Bill on the basis of the good things it proposes if it did not have measures that are disproportionate, divisive and dangerous—and that, most importantly, put our fundamental right to protest in jeopardy. The right to protest is one of the most important rights we have, because it helps us to stand up for all other rights. Even the right hon. Member for Maidenhead (Mrs May) said yesterday that
“freedom of speech is an important right…however annoying…that might sometimes be.”—[Official Report, 15 March 2021; Vol. 691, c. 78.]
The Home Secretary would do well to listen to her predecessor.
This is a big Bill with very significant measures on complex issues, and it needs serious scrutiny. I hope the Government will extend time on it to the time that it needs, and will rethink the measures that we do not need, and that the police often do not want. I support the Labour party’s reasoned amendment, and will vote against a Bill that puts our fundamental right to protest at risk. I ask the Government to rethink and withdraw those measures as the Bill progresses. As the shadow Home Secretary said yesterday, we should press pause on the Bill and bring the whole House together. This is too important an issue for us not to.
Nadia Whittome (Nottingham East) (Lab)
There is so much wrong with the Bill that three minutes could not possibly cover it. It marks a descent into authoritarianism.
We are debating the Bill today because the Home Secretary despises Extinction Rebellion and Black Lives Matter, having described them as hooligans, thugs and criminals. The Bill is designed to make it more difficult for working people to hold the powerful to account by expanding police powers to a level that should not be seen in any modern democracy. In fact, if this proposed legislation was being debating in another country, I am sure Members of this House would be condemning that country as an authoritarian regime. Make no mistake, this is the biggest assault on our rights and freedom to protest in recent history. It moves to criminalise Gypsy, Roma and Traveller communities.
I attended the Black Lives Matter demonstrations in Nottingham East, and the protests and vigils at Scotland Yard and Parliament on Sunday and yesterday. We took to the streets because people are angry. We are hurting. We are sick of male violence, whether it is at the hands of the state, our partners, our family members or strangers. We march because some people do not survive male violence: Sarah Everard, Bibaa Henry, Christina Abbotts, Naomi Hersi and many more. The public realm belongs to women too, and women should have the right to go wherever we choose without men harassing us, assaulting us and raping us. We have a right to walk home.
This Bill does nothing to protect women. In fact, the Bill protects statues of dead men—slave owners, even—more than living women. It hands unaccountable power to the police—the same police who were forcing women to the ground at Clapham common on Saturday night. I will be voting against the Bill.
Matt Vickers (Stockton South) (Con)
I was elected to represent the people of Stockton South on a manifesto that pledged to get tough on crime, protect our emergency service workers and give real justice to the victims of some of the most heinous crimes. I am therefore delighted to support the Bill, which will do exactly that. It will ensure that we are on the side of the victims, not the criminals; it has tougher sentences for those who vandalise our memorials, those who prey on children, sex offenders, killer drivers and child murderers. The victims of those awful crimes are often left scarred by them for the rest of their life, and I am glad that the Bill will go some way to delivering real justice for them.
The Bill contains fundamental, wide-ranging improve-ments to our justice system, and it is impossible to cover its breadth in just three minutes, so I will focus on what it does for our emergency service workers across the country. The pandemic has been awful for us all, but many of our emergency service workers have borne the brunt of it. While we retreated to the safety of our homes, our emergency service workers rolled up their sleeves and got on with it, running towards danger when so many of us would run away. It is therefore unbelievable that during this most terrible year, assaults against our emergency service workers have increased substantially. Yes, our policemen and policewomen who do so much to protect us, and our doctors and nurses who help us when we need them most, have faced record numbers of assaults this year. In Cleveland, that has meant 662 assaults on emergency service workers; that is up more than 50% on the previous year.
Alex Cunningham (Stockton North) (Lab)
I am grateful to my next-door neighbour in Stockton for giving way. We have the third-most serious level of serious crime in Cleveland, yet the hon. Gentleman’s Government refused us additional funding time and again. Why?
Matt Vickers
Today the hon. Gentleman has the chance to be on the side of the emergency workers, those brave men and women who put themselves out on the frontline to keep our communities safe. We are putting more police on the streets and giving them the powers and equipment that they need to do the job, and I am very happy that there are more than 150 more police officers on the streets of Cleveland, thanks to this Government.
I welcome the fact that the Bill will increase the maximum sentence imposed on those who assault our emergency service workers. It is much overdue and there must be no further delay in protecting our protectors, doing justice for those who put themselves in harm’s way to uphold the law or who are there to help us when we need them most. I am hopeful that a tougher approach to sentencing will send a signal and go some way to ensuring that our emergency service workers get the respect that they so rightfully deserve. The Bill enshrines the police covenant into law, ensuring that our police officers—retired or serving—and their families get the additional support that they have rightly earned through their service to our communities.
We have put more police officers on the streets. We have provided more equipment and more funding, and now, whether it is by tackling unauthorised encampments or persistent violent offenders, we are giving the police the powers that they need to do the job. This legislation is long overdue and, tonight, I will be on the side of the victims and the emergency service workers across this country.
Clive Efford (Eltham) (Lab)
There is much in the Bill to be welcomed, but there is an attempt to mislead the public—to accuse Labour MPs of wanting to be soft on those guilty of assaulting or murdering children, emergency workers, police or anyone else convicted of such crimes. Tory MP after Tory MP has done exactly that while, all the time, ignoring the sinister measures in this Bill that hit at the foundations of our democracy—the right to assemble and to protest. No matter how loud the faux anger and indignation of Tory MPs, Labour is right to oppose this Bill and stand up for people’s democratic rights. Protest is awkward, inconvenient and noisy, but it does bring about change. The Bill will give the police powers to determine which protests are acceptable, which should be allowed and which should not. It opens the police up to political pressure and to erring on the side of caution for fear of retribution if trouble occurs.
We are witnessing a Tory-led coup without guns. There has been a consistent pattern to this Tory Government’s abuse of power. To avoid dissent in this House, including dissent from their own side, they closed Parliament. We have seen Tories appointed to public bodies allocating millions in covid contracts to Tory friends for personal protective equipment, goods and services. The Secretary of State for Health and Social Care was found to be acting unlawfully for failing to divulge details of contracts. The National Audit Office concluded that applicants with political contacts were 10 times more likely to be successful in bids for these contracts. We have seen £22 billion wasted on track and trace. Our Home Secretary has paid hundreds of thousands of pounds out from public funds in damages because of her bullying. We had a Budget that blatantly favoured Tory seats, even indulging the Chancellor’s seat.
This Bill is another example of the Tories’ determination to avoid democratic scrutiny. Now, they want to close down public dissent. This hits at the heart of democracy in this country. If we do not stand up and defend people’s right to show dissent, as MPs in this House, we are in dereliction of our duty. We must oppose this Bill.
Rob Roberts (Delyn) (Con)
I will do my best to contain my remarks to the actual content of the Bill. The Government were elected on a clear mandate to tackle serious crime, support our police and keep communities across the UK safe. The Bill is a clear commitment from the Government that they are following through on those promises, and I commend them for it.
Throughout the pandemic, our local police forces have continued to work through extremely difficult circumstances, often risking their safety to ensure the safety of others—of ourselves and our loved ones—just as they do in normal times, running towards danger as we run away. I personally thank the North Wales police force for its hard work in keeping all of us in Delyn and across north Wales safe.
There is a particular challenge for the police in Wales, as responsibility for health regulations is devolved while responsibility for policing is not. I am proud that, despite our local police force often being pulled in disparate directions by some of the interestingly questionable political decisions that are made in Wales, they have carried on with their duties by keeping communities safe and tackling crime.
Just as our police have protected us, it is now time that we help to protect them and their work. As my hon. Friend the Member for Bishop Auckland (Dehenna Davison) said in her contribution yesterday, it is important that we protect the protectors and give them the support they need through appropriate powers and sentencing. We will protect our police forces and frontline workers, who sacrifice so much to keep us safe, by increasing the maximum sentence for assaulting an emergency worker and enshrining the police covenant into law.
We will protect our communities by ensuring that the most dangerous criminals will be properly punished through the introduction of life sentences for killer drivers, the ending of the automatic early release of serious offenders, and the extension of whole-life orders for the worst—those guilty of killing children.
The Bill will make a real difference and help to keep us safe. It will protect our police and strengthen our justice system, thereby preventing further families from going through the pain of not getting the justice they deserve. I do not pretend that the Bill is perfect, and I sympathise with some of the concerns expressed about the provisions on protest. Although I welcome the Bill for the good that it will bring to our society and our justice system, I am sure that those provisions will be carefully considered and scrutinised in Committee.
In closing, I remind all Members that on Second Reading we consider and vote on the general aims and principles of a Bill, so to throw the whole thing out at this stage would just be irresponsible. As the Bill works towards a safer and more just society, I will be deeply saddened if Opposition Members vote against its Second Reading, which they could do only to score a political point or, more worryingly, because they do not wish to see a society that protects its people and its police force.
Carla Lockhart (Upper Bann) (DUP) [V]
I commend all those who have been involved in bringing the Bill before the House. It has much merit, not least in relation to the penalty for those who cause death by dangerous driving. I know of families who have suffered such loss, and it is so tragic. Their pain and grief is compounded by the lenient sentencing of those who have taken away a loved one too soon.
I welcome the increase in penalties for the assault of an emergency worker. We ought never need to be reminded of the contribution that emergency workers make in our society, but if we did, the past 12 months have done just that. Our nurses, doctors, ambulance drivers, paramedics, firefighters, police and others have been very much on the frontline. The least we can do is to protect them when they are attacked by mindless individuals when they are doing their job. I concur with the remarks of the hon. Member for Shipley (Philip Davies) in yesterday’s debate: similar protective provisions for retail workers and others would be very welcome.
There are many other welcome provisions in the Bill, such as the change to the provisions on early release, which can cause so much hurt to victims. The provisions on attacks on war memorials are welcome and badly needed in Northern Ireland where, sadly, such memorials have become a focus of attack for some time.
I also have concerns that I hope the Government can address. It will come as no surprise to the House to hear that, as someone who represents the party of the late, great Ian Paisley, I believe that the right to protest must be protected. That right was hard won, and in a democracy it must be protected. The hon. Member for Congleton (Fiona Bruce) rightly highlighted the potential pitfalls of clauses 54 to 56 and 59 and 60, which would make significant changes to police powers to respond to protest. This issue must be approached with careful consideration and caution. What is “serious disruption”? Who defines it? What is the definition of “serious annoyance”? We need these matters to be clarified.
Anthony Mangnall (Totnes) (Con)
It is a pleasure to speak in this debate. Of course, it is somewhat disappointing to hear the Opposition change their position from one of abstaining to one of voting against the Bill, but then again we have come to be unsurprised by their machinations and changes of heart throughout this Parliament.
There is a great deal to welcome in the Bill, from the ending of unauthorised encampments, to the changes to sentencing for minors, dangerous driving—I pay tribute to my right hon. Friend the Member for Maidenhead (Mrs May) for her work on that—the desecration of monuments, and serious violence and assaults against frontline workers, which so many Members have mentioned. The Government are updating the law to a position that ensures that sentencing fits the crime, and confidence can be restored in our justice system.
Those are worthy steps that make a difference and restore the faith that people have in our Parliament, our police and the way in which we conduct ourselves in this Parliament; yet tonight’s vote has already been misconstrued to the public as anti-freedom, anti-protests and with little impact on women’s rights, despite the fact that Parliament is this week debating the Domestic Abuse Bill in the House of Lords, covering many of the issues that have been raised by the Opposition and that the Minister has already worked on so tirelessly.
The hon. Member for Eltham (Clive Efford) may well stand up and not even speak to the Bill, but there is no restriction on people being able to protest. There is no restriction on freedom of speech. Speech after speech has seen Opposition Members provide examples of positive elements to the Bill, and discuss what does work in it. To say that they will not vote for it is to throw the baby out with the bathwater, and to give the Bill no chance of success, no scrutiny, and, as my colleagues have said, no right to be improved in Committee.
I believe passionately in freedom of speech. It is the cornerstone of our democracy. It is sacrosanct. The right to protest and to speak is no more reduced by the Bill than by the existing laws on libel, sedition or public order. As was said yesterday, in the words of John Stuart Mill,
“we should all be free to do exactly as we like, provided that we are not impeding someone else’s freedom to do exactly as they like.”—[Official Report, 15 March 2021; Vol. 691, c. 99.]
The measures in the Bill are not some governmental power grab or conspiratorial coup, which is what we have heard from some, but an overdue recommendation of the Law Commission from 2015. As my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill) pointed out yesterday, if this House worries about the content of the Bill, it can scrutinise it in Committee and improve it, and we will be able to return something that will do justice to its intent. I will vote for the Bill tonight.
Sarah Owen (Luton North) (Lab) [V]
Much of what has been said about the Bill goes to show just how divisive it is. Rather than seeking to make people feel safer, to work with communities, and to bring peace and cohesion to neighbourhoods, the Bill has been designed to divide us. We know that this mess of a Bill has some good things in it, such as strengthening the work done by my hon. Friend the Member for Halifax (Holly Lynch) on protecting the protectors, and I declare an interest as a former GMB officer, previously working with the brave ambulance worker Sarah Kelly to protect emergency workers such as her from assault.
The Bill also includes dangerously discriminatory measures for Traveller communities, and silencing our right to protest in support of causes that we hold dear. Labour was born out of the trade union movement—out of the working classes protesting for better pay and rights. We should never forget the power of protest, but with all the will in the world, and with all the opposition to it, the Bill will sadly pass. I did not come to Parliament to sit in opposition; I came to Parliament to put Labour values into action. A Labour Government would be making very different choices, but for now the Tories have free rein for their politics of division.
Just as disturbing as what is in the Bill is what is not included. Taking all politics out of it, fundamentally the Bill should be about making people safer. When 97% of women have been sexually harassed, and there are 233 rapes a day and 80,000 a year, with prosecution rates at an all-time low—about 1,000 this year—we have to ask who is made safer by the Bill. There is not one mention of women in it.
If the Government’s answer to making the country safer is delivering tougher sentences for attacking a statue than for raping a person, they have entirely the wrong priorities. If the Home Secretary really wants to make people safer, she should fund refuges, clear the court backlog, support victims throughout the entire process, and rid our streets and institutions of the misogyny that is a breeding ground for violence against women and girls.
I welcome the amendments from the Labour Front Bench on street harassment and seeking to bring much-needed measures to include the safety of women and girls in the Bill. Any woman will say that sexual harassment is not just something that she worries about in the dark; it is something that she risk-assesses in every part of her life, including at work. That is why I intend to table an amendment that criminalises sexual harassment in the workplace. What we have currently are workplaces across industries and sectors effectively policing themselves, and this is failing. It fails victims of sexual harassment every single day. If I were robbed on the street and the robber was caught, he would end up behind bars, but if I were robbed of my earnings, forced out of my job by a man who sexually harassed me, he would do that without fear of any time behind bars. That is not right. Other countries have made sexual harassment a criminal act and it is time for the UK to do the same. In the names of Sarah Everard, Shukri Abdi, Blessing Olusegun, Bibaa Henry, Nicole Smallman and all the thousands of women who have suffered at the hands of male violence: enough. We deserve better than this. We deserve to be safe.
Danny Kruger (Devizes) (Con)
I am delighted to speak in support of this Bill. I particularly welcome the balance it strikes on sentencing, with longer sentences for the most serious offenders but smarter justice, including more community punishments, for young offenders. Having worked for 10 years with prisoners and young offenders, I know that this is the right balance, and that the Bill will be welcomed by my constituents and across the country.
That is why I am so disappointed by the stance taken by the Labour party. It is understandable to object to aspects of the Bill, it is right for the Opposition to challenge the Government on civil liberties and police powers, and it is understandable to see whether this Bill can be amended to include more protections for women and girls, but for the Opposition to say that they will vote against the whole Bill at this early stage—to vote against the aims and principles of the Bill—is to try to make such amendments impossible. It is also blatantly opportunistic. They had no such in-principle objections last week; there was no sense that the clauses on protests or street safety, or the relative number of mentions of women and statues, were so bad that the whole Bill had to be rejected. Last week, the Opposition were just planning to abstain on Second Reading. That in itself was pretty craven and showed Labour’s weak commitment to law and order, but now they have been blown off the fence and blown into voting against the whole Bill. They faced a test this week: would the party, under its new leader, stand for law and order, or would it stand for gestures? It faced that test and failed it, and the public will notice.
Of course it is right that we use this occasion to discuss the abuse and misogyny that women suffer every day in this country. Some of this abuse is already illegal, but all of it must be deprecated in the strongest terms, because all of it has its root in male disrespect of women. This is not a modern phenomenon. I am afraid to say that it is as old as time and it is written on almost every page of human history. But something else is written in our history too: the attempts by society to contain male violence and male disrespect.
Our culture historically taught men that they had a duty to honour and protect women. It is a difficult thing to say, because it may appear that I want to turn back the clock to a time when men chivalrously protected the weaker sex, but of course, as I have said, that is not how it always was in the old days, and even if it had been, we do not accept the idea that women need protection by men; they just need men to behave themselves. So let me say emphatically that I do not want to turn back the clock; however, we do need to face the fact that our modern culture has not delivered all the progress it was supposed to. I wonder whether that is because our modern culture has a problem with telling people how to behave—it has a problem with society having a moral framework at all.
It is right that we are having this debate, and I hope we get to a better place because of it, because the key thing is that all the laws in the world will not stop violence against women and will not stop sexism if our culture is not right. We need boys to grow up secure in themselves, with good role models and an innate sense of respect for other people. That means stronger families and more supportive communities.
Tonia Antoniazzi (Gower) (Lab) [V]
As we have heard through this debate, the right to demonstrate peacefully underpins democracy; people have an inalienable right to be heard. The explicit aim of this Bill seems to minimise that right. Clearly, the new definition of “nuisance” could apply to almost any protest around Parliament, where the whole purpose is to get the attention of politicians such as us. I, for one, have always felt that Steve Bray, the “Stop Brexit” man, served to remind us that we live in a thriving democracy. Protest gives the public a way to reach parliamentarians which should make us proud of the country we live in. Let us not hide away from the fact that this Bill is just a knee-jerk reaction to the Extinction Rebellion protests last year, and it appears to be a deliberate curb on free speech and the right to protest peacefully.
I enjoy a very good relationship with South Wales police, and I would like to pay tribute to the officers from the neighbourhood teams across Gower, the new chief constable and the Labour police and crime commissioner. One of my biggest concerns about the new proposal is that its measures pit the public against the police, creating a wedge at a time when we should be building up trust. We all know where the buck stops, from the disgusting images we saw on Clapham Common at the weekend: it is firmly with the Home Secretary and this Government. Until the Government disclose the minutes of the Home Secretary’s meetings with the Met on Friday, we can only judge from her own social media, and it does not take a genius to work out where the blame lies.
I am sure we have all had distressing casework around the difficult issue of rape. The derisory conviction rate of 3% stems in part from the burden that is put on the police to pull together enough evidence to take to the Crown Prosecution Service. Cut after cut means that they do not have the time or the resources to do that successfully, and this has created a system that is failing women and that fails to recognise the significance to society of all aspects of violence against women. We all know that institutional misogyny exists in many organisations, but misogyny is a societal problem, and society is now at a crossroads.
Last week on the Armed Forces Bill Committee, we heard evidence about prosecuting crimes, including rape, through the military courts. Yesterday I asked the Home Secretary about the attitude of some of the armed forces towards victims of male violence and, frankly, it really is worth taking the time to read the transcript of the evidence session, because in 2021, for men with fancy titles to have such ignorant views is really distressing. I have a huge amount of respect and admiration for those who serve in the police force and the armed forces, but we must make sure that they are not part of the problem and instead part of the solution. As politicians, it is our responsibility to ensure that the full force of the law is always used to protect our citizens and keep them safe.
Nickie Aiken (Cities of London and Westminster) (Con)
There is much to welcome in this far-reaching Bill, with tougher sentences for violent crime, for child murderers and for sex offenders, with greater efforts to remove knives and weapons from our streets, and with the inclusion of Kay’s law to provide greater protection for those who find the bravery to speak up against violence and sexual offences in their own homes. I could go on, but in the time I have, I will focus on an issue that greatly affects my constituency—namely, the right to protest outside this place, in the heart of my constituency.
The recent history of legislating on protests outside Parliament makes for interesting reading. Labour Members who question the Bill’s impact on the freedom to engage in democratic protest may wish to cast their minds back to sections 132 to 138 of the Serious Organised Crime and Police Act 2005, in which a Labour Government prohibited protest within a kilometre of Parliament without prior agreement with the Metropolitan police. Fortunately, the Conservative Government repealed those restrictive sections in 2011.
If this weekend has taught us anything, it is that there is a huge difference between a peaceful vigil where people come together to express shared grief and outrage, and protests that take place day after day for weeks on end and that can occasionally bring unpleasant disruption to those living and working locally. Central London has seen changes in the way that protests are organised and in their longevity. They are not always organised by specific groups. They are movements, often with different aims and objectives. Some come to protest peacefully, but others may have the aim of causing disruption and even destruction. I believe passionately in the right to protest; it is one of the values we hold so dear in this country. The clauses in the Bill do not restrict the right to lawful protest. What they do is bring static protests into line with the provisions that already exist.
I accept that some of the language in the Bill could benefit from tightening up, and I am sure that that will be done as the Bill progresses. Much has been highlighted about the democratic and human right to protest, and I agree, but let us not forget the human rights of my constituents who live with over 500 protests or marches a year. I see a huge spike in my mailbag when Westminster plays host to a major protest, with constituents highlighting that a few cause them distress and loss of amenity. They do not question the right to protest, but they do not accept becoming prisoners in their own home and the distress that they often feel as a result of a small minority of protesters. Criminality is what the Bill aims to prevent, and that is surely something that everyone in this place wants to achieve.
Ian Byrne (Liverpool, West Derby) (Lab) [V]
I will be voting against this Bill: it is a pernicious piece of legislation and it must be stopped in its tracks today.
Yesterday the right hon. Member for Maidenhead (Mrs May) mentioned “unintended consequences”. I respectfully disagree with the “unintended”. The Government have brought forward a Bill knowing that it will criminalise people who want to make their voices and opinions heard on the future of this nation. It is a huge Bill that this Government are determined to bust through the House of Commons at the same time as the unacceptable state tactics used at Clapham Common at the weekend and at the Black Lives Matter protests last year. Despite this, and despite a shameful history of callous injustices such as the events of Orgreave and Hillsborough, and the spy cops and blacklisting scandals, this Government have doubled down and brought in the Covert Human Intelligence Sources (Criminal Conduct) Act 2021 and now this Bill.
The Bill attacks civil liberties; threatens already limited rights to protest, march and demonstrate; risks worsening the racial and gender disparities in the criminal justice system; expands stop-and-search powers; and further criminalises Gypsy, Roma and Traveller communities. It extends powers to police protests so that those causing what it calls “serious annoyance” could be faced with the prospect of 10 years in prison. As a former trade union organiser for Unite, and someone who has marched and protested against injustices all my life, I am certain that had this legislation existed then, it would have risked criminalising every single person I marched alongside. It represents a real and serious danger to those speaking out about injustices going forward. Within this Bill are measures that excessively impact Gypsy, Roma and Traveller communities. The director of Liberty has said:
“If enacted, these proposals would expose already marginalised communities to profiling and disproportionate police powers …and…communities may face increased police enforcement through the criminalisation of trespass.”
This Bill must be voted down. As my hon. Friend the Member for Streatham (Bell Ribeiro-Addy) said, this is draconian legislation. I make a plea to all the parliamentarians who sit in this House and talk about civil liberties to step up to the plate, reject the politics of division, and reject a Bill that shames this House and everything it is supposed to stand for.
Sally-Ann Hart (Hastings and Rye) (Con) [V]
Despite events in London over the weekend, I would like to thank our police forces throughout the country for all their hard work in carrying out their duties, in a somewhat tricky balancing act at times, throughout the pandemic. Mistakes have clearly been made by some, but this cannot detract from the good work done by most forces throughout the country.
Sussex police, led by Chief Constable Jo Shiner and police and crime commissioner Katy Bourne, have consistently exercised a calm and consent-based approach throughout the pandemic, engaging with the public, explaining Government advice to help prevent the spread of coronavirus in our communities, encouraging compliance, and using enforcement only as a last resort where people refuse to comply. We must not forget that the police are the public and the public are the police. We all have a duty in community safety and welfare.
Much has been said over the past few days about the right to protest: a new crackdown on protest, curbing civil liberties, and putting rights fundamental to our democracy at risk. This Bill does not do that. It is indeed our fundamental right to protest: to gather and to have a voice. No one is stopping that. But for some protestors, peaceful protest is just not enough. Last year in London, for example, we saw extreme disruptive tactics in the Extinction Rebellion march that reportedly cost the Metropolitan police £16 million. That is not police money; it is taxpayers’ money that would be better spent on, say, nature-based solutions to climate change. This fundamental right does not come with a right to act in a criminal way—to be violent or disruptive. There is no freedom without justice.
The actions of perpetrators in committing criminal damage and Public Order Acts offences and assaulting members of the public or police officers executing their duty are unlawful and unacceptable. There is no reason for peaceful demonstrations to turn disruptive or violent. Unfortunately, even good causes often attract a malign element hellbent on using such a cause as a platform to showcase their own agendas, undermining the aims and message of the protest or demonstration that they have attached themselves to on that particular day.
We have all witnessed the extreme disruption that some protests have caused, stopping people getting on with their daily lives, hampering the free press and blocking access to roads, bridges and businesses, including Parliament, and even hospitals. We cannot confuse current coronavirus regulations with a new Bill that introduces sensible measures to deal with disruptive behaviours while maintaining a right to peaceful protest. Those who make peaceful revolution impossible will make violent revolution inevitable. I welcome and support the Bill, because as a Conservative, I stand for justice and for law and order.
Lilian Greenwood (Nottingham South) (Lab) [V]
I would like to begin by echoing the comments of my hon. and right hon. Friends yesterday and today who have registered our concerns about the Bill, our disbelief that this Government are seeking to treat attacks on statues as more important than attacks on women, our opposition to disproportionate restrictions on the right to protest and the missed opportunity to protect women and girls from violence and the hatred that underpins it. Nottinghamshire police and our police and crime commissioner, Paddy Tipping, have shown the way by treating misogyny as a hate crime, and the Government need to follow.
I remind the House that the Crown court backlog is failing victims and witnesses. I welcome today’s announcement of a Nightingale court for Nottingham. It has taken too long, but I am glad that the Government have finally responded. There are some welcome measures in the Bill that reflect the hard work of many colleagues who have campaigned for change, but I would like to raise two specific issues.
First, clause 164 paves the way for deaf people to sit as jurors in England and Wales. Previously, language service professionals have not been allowed to enter the deliberation room, so anyone requiring in-person communication support has been barred from jury service. However, I ask the Minister to consider whether it is drafted too narrowly. The clause allows for a British Sign Language interpreter to support a deaf juror, but of the 900,000 UK residents with profound or severe hearing loss, only around 100,000 use BSL as their first language. As chair of the all-party parliamentary group on deafness, I know that a large number of deaf people can only participate when they are supported by a speech-to-text reporter, so will the Minister clarify how this affects them? Will a speech-to-text reporter also be provided in the deliberation room? Will the Minister consider amending the clause to use a catch-all term, to give the Courts Service more flexibility to meet the needs of all deaf jurors?
Secondly, I would like to raise concerns about the effectiveness of measures in the Bill to tackle dangerous driving. The increase in the maximum penalty is welcome, but we must review the definition of dangerous and careless driving and formalise the role of driving bans as a sentencing option for those whose actions have clearly caused danger but who are not dangerous drivers who need to be imprisoned. I would also like to see stronger penalties for hit-and-run offences or where death or serious injury is caused by opening a car door unsafely. Cyclists deserve better protection. Finally, the Government need to close the loophole that allows convicted drivers to evade driving bans by claiming exceptional hardship. I hope the Minister will consider amendments on those matters.
James Murray (Ealing North) (Lab/Co-op) [V]
The need to protect women and girls from violence and the importance of protecting our fundamental right to protest are both long-standing issues that have been brought into sharp focus by what has happened in recent days. We should be using the Bill before us to put in place long overdue protections for women against violence, including domestic homicides, rape and street harassment. We should be doing something about the fact that fewer people are prosecuted and convicted for rape now than at any time since records began, at a time when the number of reported rapes is increasing. We should be tackling the misogynistic attitudes that underpin the abuse women face. Those at the vigil for Sarah Everard in Clapham on Saturday, like my constituents who got in touch with me last year about what happened to Nicole Smallman and Bibaa Henry in Wembley, want us to change as a society. Like so many others who have spoken out for such a long time, they want us as MPs, and as men in particular, to listen and to act. But rather than use the Bill as an opportunity to act in support of women demanding to be able to walk the streets without fear, it is instead being used to attack our fundamental rights as citizens by limiting the right to protest. Those assembled on Saturday were part of a vigil, yet they have drawn attention to the Government’s plans to restrict our right to protest with this Bill.
Protest is the foundation of our democracy. Like many Members of Parliament, I have protested outside of this place for far longer than I have been within it. The right to protest must be protected for us all, and I will use my position in here to do all that I can to defend it. The attempt to restrict our right to protest is not a sign of a Government who are confident with the country that they seek to represent. The right to protest is a long and deeply held part of British democracy. The Bill’s attempt to allow the police to restrict protest because of
“the noise generated by persons taking part”
would make a mockery of our rights.
It is shameful that, rather than attack the injustices that people are protesting about, this Government seek to attack the very right to protest itself. There are measures in the Bill that I and other Labour Members welcome, but the way it targets Gypsies, Travellers and Roma, fails to address violence against women and girls, and seeks to attack our right to protest mean that it is something that we must oppose. As MPs we can use our votes today to voice our opposition to this Bill. It would be inexcusable to use those votes to silence the voices of protest outside.
Sir David Amess (Southend West) (Con)
The Second Reading of a Bill is, for me, about the principle of the legislation. As a candidate at the last general election, I stood on the Government’s manifesto to make this country safer by taking more effective action against crime. Colleagues have the opportunity both in Committee and on Report to amend the Bill if they so wish. I say to my hon. Friend the Minister that I was slightly disappointed that the issue of “released under investigation” was not included in this particular Bill, but I am very glad that the Home Office has announced today that we will be looking again at the role of police and crime commissioners.
Local residents in my constituency have been shocked about a murder in Old Leigh and violent activities in Chalkwell Park. I raised the issue of knife crime in the Chamber earlier this month and was told by the Prime Minister that we have more than 6,000
“of our target extra 20,000 police already recruited.”—[Official Report, 3 March 2021; Vol. 690, c. 247.]
I hope that Essex police recruit enough police officers to stop any more violent crime.
This debate is taking place against a background of an horrendous murder. It appears that the management of the Metropolitan police needs to give a far better and fuller explanation of how it handled recent events. There should also be an external independent investigation, or a public inquiry, into the Metropolitan police’s handling of Operation Midland. My former colleague and parliamentary neighbour, Harvey Proctor, and my former colleague, the late Home Secretary, Leon Brittan, among others, have been denied justice for far too long. The Metropolitan police must not act as judge and jury on its own failings. There should be a full-scale debate in Parliament on Operation Midland and on who should be held to account.
My office looks over Parliament Square. I have long complained about the endless demonstrations that take place on this very busy roundabout. It is absolutely ridiculous. It is very difficult to work because of the noise—the drums, horns and loudspeakers. Policing these so-called events costs a huge amount of money and, with Parliament being the seat of democracy, our work should not be disrupted.
Finally, I am delighted that the campaign of my right hon. Friend the Member for Rayleigh and Wickford (Mr Francois), which he started in 2018 to make deliberate acts of trespass a criminal rather than a civil offence, has been successful. After a large number of Travellers set up encampments on Snakes Lane in Eastwood, many of my constituents complained about an increase in vandalism, crime and antisocial behaviour. I fully support the Home Secretary in her decision to amend the existing powers to remove trespassers, and I wish this Bill well.
Mick Whitley (Birkenhead) (Lab) [V]
I draw the attention of the House to my entry in the Register of Members’ Financial Interests.
It is a matter of deep regret that, after the deeply tragic events of the last week, the Government have decided to move forward with this Bill, which does far too little to protect women and goes too far in restricting the right to peaceful protest. I am immensely grateful to all my hon. Friends who have spoken so movingly in opposition to this Bill over the last two days.
As a lifelong trade unionist and a veteran of countless picket lines and demonstrations, I want to speak specifically to the implications of this Bill for our right to peacefully protest. This is a matter of huge significance to my constituents. In the last few days alone, I have been inundated with messages urging me to speak up against this Bill from teenage climate strikers, anti-racist campaigners and health workers opposed to the privatisation of the national health service.
We must not forget that without protest, agitation and industrial action, the freedoms we most cherish today would never have been won. People protest remains a vital democratic freedom and the very lifeblood of any healthy democracy. Now the Government plan to impose unprecedented new restrictions on the ability of citizens to make their voices heard, and I urge all Members to vote against them. The additional restrictions that this Bill looks likely to impose on the right to public assembly are far too broad. They will do little to improve public safety, but much to deter people from exercising their democratic right to the streets. The introduction of an exclusion zone around Parliament means that the voices of protestors simply will not reach those who need to hear them most—us.
We should also all be concerned by the potential impact of this Bill on Gypsy, Roma and Traveller communities. These are some of the most marginalised and discriminated against people in our country, and they are all too often the victims of social exclusion, racial profiling and police brutality. Instead of using this Bill as an opportunity to honour their commitments to rooting out racial prejudice in all its forms, the Government have instead launched an attack on the very way of life of many Roma and Travellers by criminalising trespass. The Home Office says that this Bill is about making communities safer, but this Bill will in fact leave GRT communities far less safe, more at risk of criminal prosecution and even of having their homes and property confiscated. Will the Home Secretary now listen to the voices of police officers, who overwhelmingly oppose these hard-line measures, and favour adequate site provision as a means of dealing with unauthorised encampments? I will be voting against the Bill.
Jerome Mayhew (Broadland) (Con)
This Bill works to ensure that the criminal justice system continues to reflect the views of society, delivering on our manifesto commitments, and I welcome it.
I welcome the requirement for serious offenders sentenced to four years and more to serve two thirds of their sentences before release on licence, rather than just 50%. Automatically releasing serious criminals on licence well before their sentence is due to expire brings the criminal justice system into disrepute with ordinary people and, more importantly, with the reasonable expectations of the victims of crime. While I recognise that early release and sentence are an important management tool for the prison population, the message needs to be clear that their sentence is what they serve.
Labour is wrong to argue that police powers to search a person who has already been convicted of knife crime without additional suspicion is somehow an unjustifiable attack on their freedoms. My view is that if they do not want to be considered a risk of carrying a knife, then they should not be convicted of carrying one in the first place. These court orders will help ordinary, law-abiding people to be protected. This is where our focus should be, and it is.
Labour is also against powers to help the police to manage the new wave of protest direct action, where the aim is not so much to protest as to cause chaos and inconvenience to as many people as possible. We all have a right to protest and to make sure that our voices are heard, but it is a right to protest, not to prevent. Why should one section of the public have an unfettered right to impose massive disruption on the rest of society? What about their right to get on with life? Where competing rights clash, the law must maintain a balance. Modern protest movements, such as XR, game the system, and disruption, not peaceful protest, is their objective. The law needs to adjust to maintain the balance of competing rights, and I think this Bill helps to achieve that.
Is this new power open to abuse? Yes it is, like every power that the police have, but there is no difference between this power and every other power that we loan to the police. It is open to challenge and review through the press and the courts. As a democracy, we are well used to holding those in power to account. Every single member of the public has the power to become a citizen journalist immediately through their phone. As a result, the police are subject to review and oversight like never before.
This Bill has ordinary people at its heart, sticking up for their priorities. It delivers on manifesto promises. As such, it is democracy in action, and I will be supporting it.
Joanna Cherry (Edinburgh South West) (SNP) [V]
During the pandemic, our civil liberties have been curtailed in a way that was previously unimaginable. Most of us have accepted that in order to protect life and public health, but along the way injustices have occurred.
Black Lives Matter protesters in London were kettled and photographed and asked to provide their names as a condition of their liberty, with no legal basis, yet police allowed football fans to party on the streets of Glasgow and even gave them a police escort to their destination of choice. Then, last weekend, police officers manhandled and detained women protesting the alleged abduction and murder of a woman, with which a police officer is charged. It is hard to imagine a more egregious misuse of police powers.
All this has occurred because the law on protest in a pandemic is not clear, but the provisions in this Bill to curtail the right to protest beyond the pandemic are even worse. The Bill affords significantly expanded powers to the police to stop protests that would cause “serious unease” and creates criminal penalties for people causing “serious annoyance”. But causing annoyance is part of our freedom of speech. If a protest can be prevented for being annoying, any protest can be prevented.
All movements for change involve an element of peaceful protest. Think of the suffragettes. I am sure many of us did when we saw the photographs from Clapham common on Saturday night. If women cannot speak up to protest their rights, what is our society coming to? Yes, the Extinction Rebellion protests may have been very annoying to those of us going about our business on London’s streets and public transport, but those protesters were protesting the biggest problem of our age—climate change—and I think that gives them the right to be a bit annoying.
We have now seen what can happen when the law governing our right to protest is unclear. The same problems will occur if the margin of discretion granted to the police and the Home Secretary is left as wide as it currently is in this Bill. Although these legal changes will have force only in England and Wales, they will impact people living in Scotland. There is a long tradition of Scots travelling to London to protest. We saw that most recently with the huge demonstrations against Brexit, and past examples include the fight against section 28 and the fight of the anti-war movement.
Parliamentarians, whether of left or right, should never be in the business of giving Governments and police forces powers to stifle dissent, particularly where there is a risk that those powers will be used against those whose beliefs make the Government and the establishment of the day uncomfortable. I would say the same if I were worried that the Scottish Government were in danger of curtailing freedom of expression—and indeed I have, which is part of the reason I am making this speech from the Back Benches.
Jo Gideon (Stoke-on-Trent Central) (Con) [V]
This is a thorough, ambitious and necessary Bill. Ministers know that the public expect those in positions of authority to be subject to scrutiny and actively prevented from abusing their power. Those who seek power in order to do bad things must not be tolerated. That is true of those in sports and religious settings, as it is of those in education, medical, care and justice settings. I welcome the extension of position of trust measures to protect more young people.
Staffordshire police and our local emergency services have shown the dedication to duty that the public expect and have done us proud in Stoke-on-Trent during the pandemic. The Home Secretary knows how important it is to support emergency workers, including police officers, who dedicate their working lives to keeping us safe. She knows they must be protected by the force of law, within the rule of law.
I therefore welcome the provisions for longer maximum sentences for those who assault emergency workers. Too often we read comments from judges that they would have imposed more substantial punishment if they had been able to do so. It is right that we in this House enable justice to be done, and that includes against those who desecrate war memorials.
It is also right that we seek to prevent crime from being committed in the first place and that, where it has been committed, we rehabilitate those who commit it, as well as punishing them. Effective community safety partnerships are key to reducing serious violent crime, and I am glad the Bill provides for their remit to do so.
Too often we see the twisted morality of gangs and extremist allegiances leading to violence. It is right that those who commit such crimes should not be able to walk free from prison after just half their sentence and that Ministers should be able to refer to the Parole Board the expected automatic release of individuals who pose a serious threat, including those who pose a terrorist threat.
In Stoke-on-Trent, sadly, we know that the danger posed by a small number of individual extremists is very real indeed. We also know that almost everyone else is law-abiding, or redeemable if they are ex- offenders. Therefore, just as I welcome tougher sentences, meaningful cautions and stricter parole for those from whom we need protection, I also welcome the provisions for the rehabilitation of ex-offenders who have corrected their behaviour.
I judge this Bill on how it delivers for Stoke-on-Trent. It provides for tackling the threat of radicalisation and for tackling serious violence, public nuisance and the rehabilitation of ex-offenders. I am proud to vote for this wide-ranging Bill, which delivers on our manifesto commitment.
Kerry McCarthy (Bristol East) (Lab) [V]
I want to start by remembering Sarah Everard and all women who have died at the hands of violent men. Like all women, I have known what it is like to be scared when you are wondering whether you will make it home—taking the long way round to avoid dark places, moving carriages on the train to avoid men, and hearing footsteps behind you and then being hugely relieved when they pass by. I have also known what it is like to be subjected to abuse and assaults and to not bother reporting them, because those things are so much part of the everyday experience of being a woman. I also know what it is like not to be taken seriously when you do report them.
This Bill does not take violence against women and girls seriously either. I simply cannot imagine any scenario where an attack on a statue could be more serious than a rape, no matter how important the man it commemorates —and let’s face it: it will be a man. Yet that is exactly what this Bill suggests, with a 10-year maximum sentence for harming statues and a five-year minimum sentence for rape. Rape and sexual violence prosecutions are at their lowest ever level in England and Wales, and domestic abuse prosecutions are down 19%, yet the Government are worried about statues.
In Bristol, of course, we know all about statues. When Colston fell, I called out the Home Secretary for her completely unwarranted attack on Avon and Somerset police over their policing of the protests. Now, the independent report that the Home Secretary herself commissioned has praised the decisions that the police made at the time and said that her criticisms of them were misguided. Last summer, we showed how protests could and should be policed. The city and our Mayor responded with dignity and maturity in the aftermath, setting up the We Are Bristol history commission and starting a city-wide conversation. We used that moment to bring the city together.
The Government are now doing the exact opposite. The Communities Secretary wrote an op-ed for The Telegraph, saying:
“We will save Britain's statues from the woke militants who want to censor our past”.
We know what that is about: stoking social and cultural anxieties to win votes, seeking out not what we have in common but what divides us, and fanning the flames. Now, whether it is Black Lives Matter, Reclaim the Streets, the school climate strikes or just someone who wants to pay tribute to a murdered woman by lighting a candle and holding a vigil, people are all collateral damage in the Government’s trumped-up war on woke. That is why I will be voting against the Bill tonight.
It is not just what is in the Bill; it is also what is missing. Labour’s proposals to increase minimum sentences for rapists and stalkers, to make misogyny a hate crime and to create a new street harassment law are not in the Bill. Nor is our proposal that someone convicted of the abduction, sexual assault and murder of a stranger should be eligible for a whole-life order. The Bill could have sent out a strong signal that the Government do take women’s safety seriously. It could have been so much better. I urge the Government to stop playing politics and to start protecting women.
Stephen Farry (North Down) (Alliance) [V]
This legislation marks an undermining of human rights and civil liberties. It represents a slide toward authoritarianism. We have seen other legislative restrictions on human rights in the Overseas Operations (Service Personnel and Veterans) Bill and the Covert Human Intelligence Sources (Criminal Conduct) Act 2021. A fresh look at the Human Rights Act and the right to judicial review are looming. It must be seen in the wider context of manufacturing wedge issues and creating arbitrary divisions within society as part of the politics of distraction from genuine social, economic and environmental challenges. We should focus instead on reinforcing the norms and foundations of liberal society, including democracy, human rights and shared public space.
The Bill is so flawed that it should be rejected outright on Second Reading. Events of the past weekend relating to the vigil for Sarah Everard only reinforce that view. This is a major test for all MPs, and I am pleased that many colleagues across a range of parties understand that, but there is a major challenge tonight facing the so-called and self-styled Conservative libertarians. Liberal principles, human rights and civil liberties are not some form of pick and mix, to be selected only when they suit a particular political agenda. Any necessary element of the Bill, including those applying to Northern Ireland, can readily be presented again by the Government via a different piece of legislation.
Of many dangerous aspects of the Bill, the most dangerous is the attack on the right to protest—a cornerstone of democracy and a critical mechanism for holding power to account. It reminds me of the ill-advised and ill-fated proposed Public Assemblies, Parades and Protests Bill in Northern Ireland. which went out to public consultation in 2010. Thankfully, better sense prevailed and it was dropped. Protests have become seminal moments in the UK’s history, with the protests against the Iraq war and against Brexit standing out in recent memory. Protests have been a source of empowerment for the politically marginalised and a powerful tool for securing rights for minorities. Recently, protests have been central to challenging institutional racism and misogyny. It is why protests work, and the Government know that.
Protests invariably involve a degree of nuisance and inconvenience—it goes with the territory. Nuisance and excessive noise are not the same as illegality; they are not the same as violence. These are not even powers the police themselves are seeking; rather, they will put the police in a much more challenging and invidious position.
It is staggering that less than a month after the Pontins blacklist brought to light just some of the discrimination faced by Gypsy, Roma and Traveller people, the Government’s response is to propose legislation to further erode the rights of those communities.
Jacob Young (Redcar) (Con)
My constituents have waited a long time for the justice system to feel like it is putting victims before criminals, and this Bill will deliver that, with tougher sentences for assaulting emergency workers, stricter conditions on bail in high-harm cases, including domestic abuse, increased jail time for sex offenders and child abusers, and extra funding for violence reduction, including knife crime. This Government are making our communities safer.
In 2020, someone was more likely to be a victim of violent crime in the Cleveland force area than anywhere else in the country, yet we missed out on violence reduction funding because of the criteria being based on the number of hospital admissions. When Ministers revisit the fund, I urge them to review the criteria so that Cleveland can benefit from the additional funding and bring a special violence unit to Teesside—something championed by Theresa Cave and the Chris Cave Foundation.
Outside violent crime, when it comes to tackling petty crime and antisocial behaviour, the role of neighbourhood policing—better known as common-sense policing—must not be underestimated. For that reason, I congratulate the Government on their recruitment of 146 extra police officers for Cleveland, which will help to keep people safe in our town centres and elsewhere.
Antisocial behaviour is not limited to town centres, and residents in TS6 have been experiencing it for far too long. TS6 is a regular meeting place for illegal off-road bikers, who cause great nuisance to local residents and put themselves and other people in danger by riding their off-road bikes around the streets and on Eston Hills. I know from those who live in the area that this causes great concern, so I welcome the new resources in the Bill that will help to fix that dreadful situation for them.
The Bill also introduces new measures to crack down on repeat offenders. In Redcar and Cleveland, we have had a recurring problem of low-value thefts from cars and garages, due largely to the system’s inability to enforce proper sentences for repeat offenders. The Bill will help to change that, but new resources and measures can only go so far. What we need in Redcar and Cleveland is leadership and a police and crime commissioner my constituents can be proud of. We have had six chief constables in eight years, and a damning verdict from Her Majesty’s Revenue and Customs in 2019, which described Cleveland police as the “worst force” in the country.
Our officers are not at fault. They are being failed by the force’s leadership and by Labour’s police and crime commissioner. I have full confidence in Chief Constable Richard Lewis to turn the fate of our force around, but we need an effective police and crime commissioner to hold the force’s leadership to account. I urge people across Teesside to vote for better policing, and to vote Conservative and for Steve Turner on 6 May.
Rebecca Long Bailey (Salford and Eccles) (Lab) [V]
Many of the rights we enjoy today were won not because of politicians with great ideas, but because people came together and demanded that their voices be heard. The Peterloo massacre caused politicians to pass the Great Reform Act 1832, the suffragist movement forced politicians to grant women the right to vote, and the striking Ford machinists and campaign for women’s equal rights inspired the Equal Pay Act 1970.
Our right to be heard is about to be eroded by one of the most pernicious pieces of legislation I have ever seen. Provisions in the Bill enable restrictions to be placed on freedom of assembly and association, which arguably contravenes article 11 of the Human Rights Act. Alarmingly, the Home Secretary will have the power to define what constitutes a “serious disruption” with regard to protests, allowing the Government to effectively determine what protests can and cannot take place. More insidious is the principle whereby protestors who
“intentionally or recklessly cause a public nuisance”,
by causing what is termed “a serious annoyance” can be subject to jail sentences of up to 10 years. A “serious annoyance” is purposely not defined, which should send chills down the spine of anyone who believes in democracy.
The Bill also fails to address the bias and discrimination that persists within our justice system. Indeed, the newly created serious violence reduction orders, which would allow the power to stop and search a person at any time, in any place, and even when completely free of suspicion, is at risk of being applied disproportionately to black and minority ethnic communities. The proposals to criminalise “unauthorised encampments” and establish trespass as a criminal offence, effectively criminalise the way of life for Gypsy, Roma and Traveller communities. The Bill does not include any specific measures to prevent male violence against women, and it does nothing to address decades of underfunding for the sector tackling violence against women and girls.
What of the right to speak out against such injustices when the Bill is enacted? The Bill fundamentally erodes those rights, and consigns them to the history books, only to be told to our children, like a fairy tale of freedoms gone by.
“When people are free to choose, they choose freedom.”
Those are not my words; they are the words of Margaret Thatcher. The reality of her tenure was very different, but frighteningly, her successors are now writing an even darker dystopian tale of their own, and it seems our freedoms play no part in that at all.
Dr Kieran Mullan (Crewe and Nantwich) (Con) [V]
I welcome measures in the Bill that will help to ensure that our justice system better reflects what the silent, law-abiding majority rightly expect of it. There has never been public support for letting people out halfway through their sentences. Most of the public would always have wanted child murderers to spend the rest of their lives in prison, and the majority would feel that justice was done if people who murder, rape and sexually abuse others spent much longer in prison than they currently do. We are addressing those issues.
The Conservative party is making changes to ensure a justice system that does a better job of delivering justice. The tragic loss of Sarah Everard, and the women victims who have spoken out, remind us how important that is. Although the measures in the Bill are much welcomed, and the Government can be proud of bringing them forward, I hope that over time we do more. I still do not understand how someone can rape a child and not, as a default, expect to spend the rest of their life in prison. I do not understand how someone could murder someone, robbing decades from them and their families, and come out of jail fewer than 20 years later. Even the term “life sentence” is an insult to victims and their families. It is as if the threat of someone being recalled to prison if they commit another offence is in any way akin to being locked up.
There remains, I am afraid, an intellectual snobbery around law and order in too many parts of the judicial establishment, which has decided for a long time now that people who think that justice is served by criminals being locked up for longer are unsophisticated, do not understand crime or reoffending, and are acting on some kind of unworthy baser instincts. We have, importantly, made a start today and I am very glad to support these measures.
Of course, nothing I have said stops our justice system doing much more to rehabilitate offenders who commit less serious offences, diverting people away from a life of crime. Not only is that the right thing to do, but it will free up prison spaces so that we can go further in locking up hardened criminals who should be locked up. I know the Justice Secretary is passionate about delivering a range of measures within and accompanying the Bill to do just that, and I welcome those equally.
As for the Opposition, I humbly suggest that yesterday really was a new low for the right hon. and learned Member for Holborn and St Pancras (Keir Starmer). We all recognise that any change in the laws around protest should be carefully scrutinised, as opposed to the confected outrage we have heard today, and of course the Committee stage will provide for that. For a former Director of Public Prosecutions to use a few bullet points on social media to contrast the maximum sentence for one offence with the starting point for another offence is beneath the standards of both the right hon. and learned Gentleman’s current and former office, and, I suspect, is something that will, on reflection, be regretted. Ten years has long been the maximum penalty for criminal damage. Forgive me, but I must have missed the right hon. and learned Gentleman’s previous campaign for sentencing starting points to be calibrated around that.
This is a serious Bill dealing with serious issues and it deserves proper scrutiny. We should expect more from the Leader of the Opposition.
Beth Winter (Cynon Valley) (Lab) [V]
The Secretary of State no doubt thought that she could rush this Bill through Parliament, grouping mundane and relatively positive changes with sweeping attacks on our civil liberties, and thought no one would notice. Last night, thousands protested against the Bill and against the use of excessive force by the police, and many more attended vigils over the weekend in memory of Sarah Everard, Wenjing Lin and all women affected by and lost to violence. I am greatly saddened and angry that the vigil in Clapham descended into violence due to heavy-handed policing. That contrasts with how demonstrations are managed in Wales, where policing has been, in the words of First Minister Mark Drakeford, sensitive and proportionate. I also share his concerns about the Bill.
Democracy is so much more than just ticking a box once every five years. It is a continuous process which involves protests, rallies, picket lines and outpourings of grief, as we all saw and experienced this weekend. It means being able to uphold our hard-fought fundamental democratic rights. The Bill introduces worrying new restrictions on the ability to protest, allowing the police to make highly subjective judgements on what may result in the “intimidation or harassment” of bystanders or cause them “annoyance” or
“serious unease, alarm or distress.”
It also allows the Secretary of State to curtail protests through secondary legislation if she judges them to be disruptive—an incredibly concerning development.
By limiting the type of protests that can take place outside Parliament, this Parliament risks becoming even more detached, even more of a bubble than it already is, divorced from the very real concerns of the people we are elected to represent. Since becoming an MP, I have joined protests outside Parliament alongside people from my constituency in Cynon Valley, to save jobs in Wales and demonstrate about climate change.
I would also like to speak out against this Bill for criminalising the way of life for many in the Gypsy, Roma and Traveller community, who already experience some of the starkest inequalities of any ethnic group in the United Kingdom. Having worked with people in this community, I can bear witness to the inequalities and hardships they suffer daily. In addition, the legislation introduces new measures likely to further criminalise young black men, who are already disproportionately targeted by stop and search.
The Bill takes completely the wrong approach to policing and justice. We need proactive and preventative solutions that address the underlying causes and inequalities that exist in our society. Investment is needed in measures such as early intervention and rehabilitation, and community-based solutions, not reactive measures such as those contained in the Bill that punish and criminalise often the most vulnerable and our most marginalised in society.
The crisis in our police and justice system has been created by a decade of cuts and failed Tory ideology. The Bill fails to address that at the same time as it curtails our civil liberties. That is why I could never have voted for this Bill and I urge everyone to stand with me in opposing it. Diolch yn fawr.
Richard Graham (Gloucester) (Con)
Thank you for calling me to speak in this debate, Madam Deputy Speaker. Anyone listening outside might imagine that Members were talking in different debates. On the one hand, we hear Opposition Members echoing Unite the union’s calling this Bill “dangerous, totalitarian legislation”, and on the other, we have colleagues such as my right hon. Friend the Member for Bromsgrove (Sajid Javid) and my hon. Friends the Members for Chatham and Aylesford (Tracey Crouch) and for Rushcliffe (Ruth Edwards) praising the Bill’s extra protections for children from sex offenders, and for emergency workers from attacks in our hospitals, ambulances and police stations. What is going on?
The confusion comes, I believe, from a conflation after the ghastly death of Sarah Everard between the policing of the peaceful vigil on Clapham common under emergency pandemic laws to maintain social distancing, and measures in the Bill to legislate on public order, which are in part 3 of this vast Bill. The point is that they are separate issues. Let us not forget the core aim of the Bill, which is laid out on page 1. It is not domestic abuse, which is covered in a separate Bill that is also live at the moment, but safety and protection, as the introduction makes clear.
It is over three years since I raised, after meeting constituents’ parents, the issue of the grooming of young people by a driving instructor and a sports coach. Any Member who has read the National Society for the Prevention of Cruelty to Children’s case studies would not oppose the core principle of the Bill, which is the changes in the position of trust clauses. They are a major step forward that every parent and teacher should not just welcome, but applaud. Will the Lord Chancellor, either when he is on his feet later or on Third Reading, confirm that driving instructors are covered by clause 45(2)?
When Opposition Members complain that there is not enough to help women and girls in this Bill, I urge them to realise that the vast majority of those better protected through clauses 44 and 45 and, indeed, through parts 2, 7, 8, 9 and 10—and much else—are in fact women and girls.
Nor should anyone be misled by part 4 and clause 61, which concern unauthorised encampments. They take action against Travellers camping on land without permission of the owner, if they fail to comply with a request to leave
“as soon as reasonably practicable”.
Those in my constituency who have seen such encampments over the last decade—time and again they smash through fences in parks, sports grounds and dog walking fields—have seen their access and rights infringed and their children intimidated, while some, although by no means all, Travellers lift two fingers to the injunction processes.
The Bill also doubles the sentence for assaults on emergency workers and includes Kay’s law. That is why I will be supporting the Bill, and I am frankly astonished that everyone in this House is not doing so, with the details to be discussed on Third Reading.
Caroline Lucas (Brighton, Pavilion) (Green) [V]
This Bill is a disgrace. It is dangerous, undemocratic and disproportionate.
It is dangerous, because it is trying to neuter protests and undermine our most precious rights, including freedom of assembly, freedom of expression and the right to peaceful protest. The Government are seeking to impose far-reaching conditions that would have the effect of shielding those in power from criticism. They would make Greta Thunberg sitting alone with a placard a potential criminal, and likewise all the brave and passionate young people who know that the future of humanity and our planet depend on peaceful protest exposing just how inadequate Government action is given the scale of the climate and nature emergencies, yet the Home Secretary wants the power to decide whether these protests are necessary, too noisy or causing too much disruption, so that she can silence any criticism that does not meet her approval. By increasing the maximum penalty for exercising the right to protest, the Government are creating new restrictions on where they can take place, eliminating important aspects of human rights law that require the state to facilitate protests. She wants to deter any dissent yet further.
The Bill is undemocratic, too. The Government are rushing it through Parliament, with just a week between publication and Second Reading. It is a knee-jerk reaction to last year’s Black Lives Matter and Extinction Rebellion protests, because some right-wing MPs did not like them.
In particular, the process is silencing the voices of marginalised communities who should be heard, as well as the MPs who seek to represent them. Just this weekend, we have seen who else is in the Government’s sights. Women attending peaceful vigils in memory of Sarah Everard were pinned to the ground simply for exercising their rights, which brings me on to disproportionality.
Having seen the response from police on Clapham common on Saturday night, it beggars belief that the Government are giving more powers and discretion to them via this legislation. As one of the few MPs to have been arrested during a peaceful protest—in my case, against fracking—and subsequently after a week’s court case acquitted of any wrongdoing, I can tell the Home Secretary that I have first-hand experience of the disproportionate action of the police. I was therefore proud to co-sponsor a cross-party amendment that sought to deny the Bill a Second Reading. The legislation will perpetuate the systemic risk that infects our criminal justice system, including by expanding stop and search, which sees black men targeted, and by creating a new trespass offence that criminalises the life of nomadic Gypsy and Traveller communities.
Women like Sarah Everard, Bibaa Henry and Nicole Smallman need more than extra street lighting. They, and countless other women, deserve a legislative framework that upholds and defends their fundamental rights. Every UK citizen will be affected by what is a dangerous attack on our universal rights. I urge every MP who believes in free speech and democracy to oppose this Bill.
Huw Merriman (Bexhill and Battle) (Con)
I have a very different view from the hon. Member for Brighton, Pavilion (Caroline Lucas), my near neighbour in Sussex, on this Bill. I wish to focus on its positives regarding not just perpetrators of violence, but victims. I am amazed that any Opposition party would vote against the Bill on Second Reading. They should rather engage with making it better if they feel that there is more road to travel.
First, I pay my respects to the family of Sarah Everard, a fellow graduate of Durham University, as is the Lord Chancellor. Our thoughts are with all her family following this abhorrent crime. This morning, I paid my respects at the shrine that has been created at the bandstand in Clapham common.
There are 24 Members of this House who can say that they objected to the Coronavirus Act 2020 extension in September, which gave the police the powers to act in the way that they did on Saturday evening. I have heard right hon. and hon. Members criticising the police for carrying out actions under legislation that they did not oppose. I do not think it reflects well on this House when we create powers for the police and then criticise them for using them. When we look to give the police more powers, and when they look at the Acts on demonstrations and say that they do not work, they must quiver at the thought that they will be hung out to dry by the very Members who did not oppose the legislation, and I ask all hon. Members to bear that in mind.
In the minute I have left, I will focus on a much smaller shrine, a few hundred metres from the one I mentioned, for another victim of knife crime. I welcome the serious violence reduction orders in the Bill that will be placed on known knife-crime offenders and give the police further powers to act. Some 275 lives were lost in the last year to knife-related homicide. We do not hear enough in the House about how we can help. Those victims lost their life merely for being on the streets.
As vice-chair of the all-party group on knife crime and violence reduction, I have worked cross-party on the introduction of a serious violence duty. We have talked about the health strategy going across agencies, and making sure that there is a duty to report and act. This type of carrot, which is being brought in as well as the stick that I just mentioned, will allow us to tackle knife crime and hopefully reduce the number of lives tragically lost.
Time does not allow me to say more. There is much more in the Bill that I really support but look to the Government do more on, including on the protection of shop workers. That is why the Opposition should vote for this Bill and make it better.
John McDonnell (Hayes and Harlington) (Lab) [V]
Harold Laski, professor at the London School of Economics and chair of the Labour party in the Attlee period, said that in this country, we will not see the arrival of fascism with some dictator strutting in his uniform, bedecked in medals. Instead, the risk to our freedom will come from the creeping, incremental erosion of our civil liberties, leading to harsh Conservative authoritarianism. This Bill is a step in that direction. It is a step in undermining the constitutional safeguards of our liberty, secured over generations of protest and struggle. It threatens the very basic human freedom of assembly and association.
The Bill is aimed not just at the traditional progressive campaigners and trade unions; its target is the young—the younger generation that rejects the racism, sexism and misogyny that permeate our society and understands that its future is being placed at risk by the existential threat of climate change. Through their participation in mobilisations such as Black Lives Matter and Extinction Rebellion, the young have discovered their power; so, too, have this Government recognised the power of the young. The Bill is about ensuring that the younger generation are prevented from exercising that power.
I caution the Government to learn from the past. For centuries, our history has shown that when the Governments have imposed legislation that strikes at the heart of our liberties, our people simply refuse to accept and comply with unjust laws. If a Government persist, division and conflict are always the result, so I warn the Government that they provoke our younger people at their peril.
If anything defines the disgraceful depths to which this Government have sunk, it is the attack in this Bill on the last group in our society against whom it appears that for some it is still acceptable to openly racially discriminate: the Traveller community. Under this Bill, they will suffer the threat of not only action by the police but even the loss of the homes in which they live. I urge colleagues to wake up to the threat of this Bill, and to vote against and defeat it at every stage of its passage. That is what I commit to doing.
Ben Everitt (Milton Keynes North) (Con)
I associate myself with the heartfelt and genuine comments from Members of all parties about the tragic circumstances around Sarah Everard’s death. My thoughts are with her family, her friends and her community. It is a terrible time. Opposition Members have sought to equate the policing of Saturday’s vigil with measures in the Bill that are intended to protect the public from disruptive protests, but those measures make up only a small part of the Bill. It is a knee-jerk reaction. It is populist. I think the Labour party will regret taking the decision to oppose the Bill and will find itself on the wrong side of history.
Let us have a look at what the Labour party proposes to vote against tonight. Labour Members will be voting against protecting women and children from sexual abuse; against tougher punishment for perpetrators of serious sexual and violent crimes; against tougher community sentences, which would ensure that offenders give back to society; and against measures giving police the tools that they need to deal with the harms caused by unauthorised encampments—something that is very important to the people of Milton Keynes.
Labour Members will be voting against the introduction of a serious violence duty on specified authorities that will require them to work together to prevent and reduce serious violence; against extending whole-life orders for the premeditated murder of a child; against ending the automatic early release of dangerous criminals; and against life sentences for killer drivers.
The Bill will ensure that those who commit the most heinous of crimes will spend the rest of their lives behind bars. It will ensure that the police will have the powers and support that they need to make our communities safer. As we vote on the Bill tonight, we need to look ourselves in the mirror. We need to be able to look our constituents in the eye. I know that I will be able to look my constituents in the eye; will Labour Members be able to do the same?
Catherine West (Hornsey and Wood Green) (Lab)
It is a pleasure to follow the hon. Member for Milton Keynes North (Ben Everitt), although I am a bit disappointed that he doubled down so hard on the most discriminated against group in Europe, the Gypsy and Traveller group.
I wish to speak about a group who do not receive a mention in this Bill—women. The killings of Sarah Everard, Bibaa Henry and Nicole Smallman, and the fallout from the policing of vigils or events to remember these terrible occasions, give us an opportunity in this debate to bring about a new conversation. Unfortunately, this Bill just seeks to take away people’s right to protest and to freedom of speech. The Bill is packed with measures to limit our democratic freedoms and to protect statues, rather than address the glaring failures of the system.
Let us look at some facts. Data from the Prison Officers Association shows that the highest number of women in prison are there for the non-payment of TV licences, and that 80% of women in detention are in prison for non-violent offences. A majority of women in prison commit crime as a result of abuse, whether that be childhood trauma, abusive relationships, financial abuse or drug use as a result of some sort of trauma. Women are much more likely, even when in prison, to have been a victim of violent crime, yet this Bill does so little to deal with that. Ministers could have used this legislation to address that, and to defend women and girls. Instead, they have packed this Bill, which lacks focus, with draconian measures to try to divide the country and create yet another culture war.
Ministers could have increased minimum sentences for the most serious crimes, such as rape and stalking, and shown that they really care about the dreadfully low rates of conviction for sexual violence. The Victims’ Commissioner Dame Vera Baird, QC, is right to say that “urgent and sustained action” is needed to
“redress the confidence in the police and criminal justice system—and really, frankly, half the population”.
Labour has done some homework for the Government, and proposes a victims’ Bill and a survivor’s support plan for victims of rape. I hope that the Minister will give due regard to that excellent work, which was prepared through good consultation with many, many women.
I have been clear with my constituents that I will vote against this Bill, not because there are not some good elements to it, but because I seek to defend the right of my constituents not to be silenced. Labour wants changes that will protect women and girls; changes that will target violent crime; and changes that will provide the treatment and addiction support that are so often overlooked in the criminal justice system.
Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op) [V]
I will not support the Bill tonight. I have been contacted by many constituents over the past few weeks who have serious concerns about both what it does and does not contain, and not least about the lack of measures to protect women from violence and abuse. As my hon. Friend the Member for Hornsey and Wood Green (Catherine West) was just explaining, there are aspects of the Bill we would welcome or support, not least those drawing on initiatives by Labour Members, such as measures on protecting emergency workers from assault and on tackling sexual abuse, and others from the Lammy review, but this Bill is sadly deficient in so many other respects.
The Government could have worked with Members across this House to bring forward measures that adequately tackle serious crime, improve the policing and justice systems, tackle the violence against and abuse of women, and protect our democratic rights to liberties, but they did not. The provisions on protest are deeply concerning and disturbing—I would describe them as draconian. Having organised and taken part in many entirely peaceful protests, sometimes involving millions of people, I fear that this is yet another attempt by this Government to clamp down on legitimate dissent and democratic disagreement.
However, the Bill’s greatest deficiency, as my hon. Friend has pointed out, is that despite being 296 pages long, the word “woman” does not appear once. That is a staggering feat, given that more than 50% of victims of violent crime in the past three years have been women, that there was a 23% drop in rape convictions last year, and that domestic abuse prosecutions fell by 24% in 2019. We must take serious action, including by making misogyny a hate crime. The Bill does not increase minimum sentences for rapists and stalkers, it does not make street harassment a crime and it does not fast-track rape or serious sexual assault cases. All women and girls deserve better.
On domestic violence, may I thank my South Wales PCC colleague, my predecessor in this place, Alun Michael, for his work, and colleagues in South Wales police, whose work on tackling domestic violence I have viewed? I am thinking in particular of the pilot project Drive, an initiative tackling perpetrators of domestic violence. An independent evaluation has shown that that is making a significant impact, and I am pleased to see that it now covers all seven local authority areas covered by South Wales police. Unfortunately, like all forces, South Wales police has had to struggle with substantial cuts and the austerity of years of UK Tory rule, including cuts to policing. It was thanks to the Welsh Government that funding was made available for additional police community support officers. I thank the community policing teams for the work that they do. I might also mention that policing in Wales is disadvantaged this year to the tune of £6 million because of the way the apprenticeship levy system works. Will the UK Government fully fund the cost of police graduate training in Wales, as they do in England?
I end by raising serious and legitimate concerns raised by my constituents, especially young people, about the experiences of black constituents and other people of colour in relation to the criminal justice system and policing in Wales and across the UK. I have had a number of frank and open conversations about that in recent weeks. Deeply concerning disparities continue. While 16% of the general population in England and Wales are from a black and minority ethnic background, the disparity in the numbers of people arrested, convicted of a crime and in prison from those communities is stark and has to be dealt with. We need to implement the recommendations of the 2017 report by my right hon. Friend the Member for Tottenham (Mr Lammy).
David Simmonds (Ruislip, Northwood and Pinner) (Con) [V]
All Governments come to power seeking to reduce crime and antisocial behaviour, and it is clear that most succeed to some extent, but the challenges that face our society change, and the weaknesses in laws that have been brought in with good intent are exposed by experience, as we know. That is why I welcome the Bill. It addresses several issues of great concern to my constituents, and, by improving the way in which we conduct cases and sentence those convicted, will benefit our society as a whole. There is no doubt about that.
Among many things, the Bill addresses the unacceptable disruption caused to my constituents and many other people’s lives by protests that have caused enormous trouble but have remained within the bounds of the law as it stands. We have learned from protests in the last couple of years that the police clearly need powers to ensure that, while lawful process is facilitated, it is not at the expense of thousands of people who are simply seeking to go about their daily business.
Secondly, I welcome the steps to improve the handling of cases of sexual abuse. Having spent many years working in local government on those matters, including meeting with the Leader of the Opposition during his days as Director of Public Prosecutions, the measures seem to me to be a proportionate and sensible culmination of the experience that we have gained in cases brought in recent years that have demonstrated some of the weaknesses in the present legal system. Many victims and complainants across the country will have waited a long time for the Government to take action to ensure that their circumstances are taken seriously and offenders are prosecuted effectively.
Thirdly, I strongly welcome the measures to tackle illegal encampments. Like many of my constituents and other people across the country, I have witnessed the setting up of such an encampment within direct sight of home, so I know just how awful the consequences can be for that community and for that place—as well as having, in my time as a councillor, to set aside hundreds of thousands of pounds of taxpayers’ money to clean up the consequences. Communities should not have to suffer that any longer, and these robust measures are well merited.
For those reasons and many others, I strongly support the Bill and I look forward to the benefits that it will bring to my constituents in Ruislip, Northwood and Pinner and to the whole country.
Wes Streeting (Ilford North) (Lab)
I rise to deal with the absolute brass neck that we have heard from the Government Benches during the course of the debate—interestingly standing up to laud what is in the Bill, which I can only describe as the “Government attempting to look busy on crime” Bill, because they do not want to talk about their miserable record over the last 11 years. It is a record that has left fewer police on our streets, fewer courts open for judgment, and fewer police staff to investigate crimes.
We have seen the impact: longer delays to investigations, longer waiting times for criminals to be brought to justice, and indeed criminals getting off scot-free because often victims lose total faith in the criminal justice system. That is the Government’s record. We are asked on Second Reading to support or oppose a Bill on the basis of principle, and I am opposing the Bill on the principle that it fails women, it fails children, and it fails to face up to the serious evolving nature of crime in our country.
Since the appalling murder of Sarah Everard we have seen, in our family, an outpouring not just of grief, but of a demand for change. That is why it so appalling that there is no mention of women in this Bill and no new sentences. Indeed, there is the ludicrous and offensive position that someone can be given a longer prison sentence for throwing a lump of iron into the river than for throwing in a woman. That is the miserable experience.
We also see the experience in case law. I would like the Lord Chancellor to stand up and explain in his summation how it was that a deputy children’s care manager in my borough could be involved in trafficking children to sell crack cocaine and heroin in Devon and Cornwall, and receive the paltry sentence of four years—four years—for trafficking children across the country. What does his Bill do to deal with that? What does he say to those children and victims of crime when, 11 years into his Government, with county lines becoming a feature of crime in a way that it never was before, his Government—[Interruption.]
Madam Deputy Speaker (Dame Eleanor Laing)
Order. We have not had heckling here for a very long time. Now, behave!
Wes Streeting
They do not like it: Government Members do not like being confronted with their record. That is why, with this Bill, they are chasing headlines, instead of chasing serious criminals. They have the audacity to stand up and laud loads of provisions in this Bill that they have taken from Labour Members and their private Members’ Bills. I congratulate them on that, but it is still the case that they are not facing up to the serious nature of crime that affects women and children in my community. They have thrown in loads of measures to look busy, but they are running from their record.
I am voting against this Bill, because it is perfectly right for Members to say, “We demand better and we expect better of this Government”, and unlike Members elected at the 2019 general election, we do not just read scripts from central casting, we demand better. We demand better for our constituents, and so should they.
Sir John Hayes (South Holland and The Deepings) (Con)
When the Home Secretary said that she wanted criminals to “feel terror” at the thought of committing offences, she reflected the heartfelt sentiments of those who live on the frontline of crime, starkly contrasting the small clique of bourgeois liberals who use wealth to segregate and insulate themselves from the reality of disorder and have sought to amplify time and again, as the hon. Member for Brighton, Pavilion (Caroline Lucas) did tonight, the rights of thugs and villains and the civil liberties of the violent mob.
This week, Members of Parliament have rightly resolved to redouble our efforts to prevent violence against women. It is strange then that just months ago 70 Labour parliamentarians sought to block the deportation of 50 violent criminals, including those convicted of murder and rape, and that they will vote against a Bill tonight that cracks down on crime. It does seem that the Labour party is more motivated by the political posturing associated with what the hon. Member for Ilford North (Wes Streeting), whom I greatly admire by the way, typically described as headline grabbing, than it is with protecting the safety of the innocent.
As figures show, our police forces are continually challenged by increasing demands. Hard-working officers are frequently derailed by the malign advocates of the rights of criminals and distracted by the politically correct delusions of the ideologically motivated elite. Imagine the demoralising disappointment they must feel when, after working tirelessly to solve a crime, an unelected judge insists on awarding a derisory sentence, inhibiting the incentive to prosecute, weakening deterrence and undermining public trust.
Typically, custodial sentences are drastically reduced, and even the most ruthless criminals are released early. Many killers are released after a dozen or so years, while naive utopians in gated communities plead for even greater leniency. How the liberal left misunderstands the criminal mind, for deviant individuals who have chosen crime as a career weigh up the balance between risk and reward, cost and benefit. It is a measure of their trade.
The misassumption that crime is an illness to be treated has become so pervasive that it is barely questioned in the broadcast media, yet to see those who choose to profit from the misfortune of others in the same way that we regard the sick and infirm is to demean the latter and elevate the former to a status they do not deserve. This assumption that wickedness is a misfortune of less significance than the suffering it causes means relegating such acts and the victims of them. In this way, justice is neither seen to be done, nor done at all.
This Bill goes some way to regaining public faith by strengthening law and order and regaining that mantle for the Secretary of State and our party. All Members of this House who care about the innocent should vote for it, for our task is to be fierce in defence of the gentle.
Olivia Blake (Sheffield, Hallam) (Lab) [V]
First, I would like to offer my condolences to Sarah Everard’s family and friends. My thoughts are with them and all those who have lost a mother, daughter, sister or friend to violence at the hands of men.
Like many of my constituents, I was shocked by the images that came out of Clapham common over the weekend. There is something very ugly about a group of women being manhandled, pushed to the ground and pinned for mourning yet another victim of male violence against women. The Home Secretary says that the legislation will make us safer, but after this weekend, I do not feel safer. The events on Saturday night show us the opposite of what the Home Secretary has concluded—far from the police not having enough powers, the sad truth is that the powers they do have are already open to abuse. That truth is not only demonstrated by the women who came to mourn and lay flowers over the weekend; it is written in the headlines about the women who survived the horrors of the spy cops scandal, the headlines about black, Asian and minority ethnic people being killed in police custody and the headlines about the Alfie Meadows and the Ian Tomlinsons who are struck down by police just for being in the presence of a demonstration.
This Bill is the latest in a series that, rather than safeguarding our right to protest, grant even more powers to crack down on dissent. Rather than addressing the real problems in our courts—just look at the gigantic backlog of cases waiting to go to trial, many of which will be domestic abuse, violent crime and rape cases—this Government want to hand out harsher punishments for damaging a statue than harassing a woman in the street.
So I do not feel safer, and there is one group of people who will feel significantly less safe and secure because of the Bill: the Gypsy, Roma and Traveller community. If the Government were serious about addressing the issue of unauthorised encampments, they would tackle the real problem: the shortage of places where it is permitted to stop and reside. All this legislation will do is strip people of their homes, push them into the criminal justice system and criminalise the way of life of an already persecuted community.
What we needed today was a Bill that dealt with the very real problems in our criminal justice system, respecting our rights to protest and to live our lives how we choose. That is what makes people safer, and we got the opposite of that.
James Daly (Bury North) (Con) [V]
The right to protest peacefully in this country is enshrined in article 11 of the European convention on human rights. Those provisions were put into domestic law and protect the freedom of assembly and the freedom of association with others. I suspect that every Member of this House, together with millions of our fellow citizens, has taken part in such protest events. Such expressions of community feeling are central to our way of life and part of each citizen’s interaction with the democratic process, and that should be protected at all costs.
However, it is an established legal principle that article 11 rights can never be unfettered, for if that were the case, rampant criminality could be justified, providing a defence to those who indulge in such behaviour under the guise of legitimate protest. These are qualified rights, and interference with them may only be justified in certain specific circumstances, including for the protection of the rights and freedoms of others and the prevention of crime and disorder. In my view, this Bill—specifically, parts 3 and 4—does not impact on article 11 principles but provides reasonable powers to ensure that the police can improve the effectiveness of protest policing in certain limited circumstances, as long as those powers are applied proportionately and in line with human rights law.
Labour appears to be arguing that the police should not have powers to address the most extreme antisocial behaviour during protests, therefore ignoring the rights of our fellow citizens who may be caused intimidation, harassment, serious unease, alarm or distress in certain circumstances outlined in the Bill. There were clearly mistakes in the policing of the vigil at the weekend in memory of Sarah Everard, but that single example should not be used as overwhelming evidence to suggest that the police will not use the powers in the Bill proportionately, reasonably and in line with existing human rights legislation.
If the choice presented to hon. Members is between voting against the Bill due to the definition of the controlled area outside Parliament and voting in favour of it to ensure the longer imprisonment of rapists, I know which way my constituents would expect me to vote. By voting in favour of this legislation, I am voting in favour of tougher sentences for child murderers, ending early release for sex offenders, the imposition of strict conditions on bail, tougher sentences for assaults on emergency service workers, various measures to crack down on knife and violent crime, and the enshrining of the police covenant in law, together with many other important provisions. I am astounded that the Labour party cannot bring itself to support legislation that will protect all our constituents.
Christian Wakeford (Bury South) (Con)
I stand proud to support this Bill today. There are many good measures in it; in fact, we have even heard from Opposition Members that there are many good measures in it. However, they still cannot bring themselves to support it.
Traveller encampments, especially the unauthorised ones, cause distress to residents such as those on Kingston Road in Radcliffe in my constituency, who often thought that the encampment had more rights than they did. They saw extreme antisocial behaviour such as their fences being used as a toilet or being stolen for fires, and they actually feared for themselves. I went and met them several times during the summer, because there was not just one encampment; there were two. It is about time we supported our residents and said that we are not against Travellers, we are just against unauthorised Traveller encampments.
On the sentencing measures in the Bill, I am pleased to see greater sentencing for attacks on shop workers and emergency workers and for the kind of desecration of our memorials that we saw during the Black Lives Matter movement last year. The Bill provides greater sentencing powers for the most serious and violent of crimes. It also introduces Kay’s law, which will provide better protection for the victims and witnesses of violent and sexual offences. That is a measure that we should all welcome. In hand with the Domestic Abuse Bill, it really does go the distance to protect our victims. I would love to quote several of the figures on violent and sexual assaults in my constituency and, indeed, in Greater Manchester. However, with the failure of Greater Manchester police’s data system and the political leadership by Andy Burnham in regard to this, we do not have any of those figures because they got lost, for some reason.
On introducing life sentences for killer drivers, I want to start by thanking my right hon. Friend the Member for Maidenhead (Mrs May) for bringing forward her ten-minute rule Bill on this issue. Her Bill started the process; this one goes much further in ensuring that those who are reckless, careless and selfish will face the full force of the law for depriving us of our loved ones.
The linking of this Bill to the poor decisions of the Met over the weekend shows the true worst of the Opposition. I think it is absolutely disgusting, and they should be truly ashamed. Changing their mind at the last minute because they think there are votes in it is not opposition; it is opportunism, and the public will see through them.
Emma Hardy (Kingston upon Hull West and Hessle) (Lab) [V]
My hon. Friend the Member for Wallasey (Dame Angela Eagle) summarised the Bill perfectly: it contains the good, the bad and the ugly. There is some good in it, and I pay tribute to Labour colleagues who have campaigned to protect the protectors and for increased sentences for dangerous driving, which are in the Bill among some other stuff. However, I find some aspects of it deeply worrying for the future of our democracy, particularly clauses 54 to 60. I cannot comprehend how a Government who, on 16 February, declared that they were so concerned about free speech that they were introducing a duty for universities to
“stamp out unlawful ‘silencing’ on campuses”,
can then introduce a Bill that will damage the right to protest, because freedom to protest is part of our freedom of speech. The Government need to make up their mind: they either support free speech or they do not. Fully free speech does not mean just supporting the newspaper columnists and outspoken TV presenters that they agree with; it means supporting it for all.
I do not agree with every protest I see, and, yes, some are really annoying and some are really noisy, but I support the right for people to have that protest. I supported the coach industry with its noisy, inconvenient “Honk for Hope” protest. It is crucial that everyone understands that when someone loses the right to protest, everyone loses it; we cannot pick and choose. There have been people protesting outside Parliament for centuries. What makes this Government so precious that they are the Government who suddenly cannot cope with it? I will not support the silencing of people, for the Labour party stands for freedom for everybody, and that freedom includes, yes, even the Members on the Government Benches.
I will quickly turn to what else is missing. On 22 September 2020, I raised directly with the Lord Chancellor the increased abuse that shop workers were facing during the pandemic. He replied that it was
“incumbent on all of us to make sure that sentencing guidelines properly reflect the role that they play.”—[Official Report, 22 September 2020; Vol. 680, c. 793.]
I hope everybody can therefore understand why I was disappointed to see no specific reference to retail staff in the Bill. On 10 March, retail trade union USDAW renewed a call for legislation to protect retail staff after it released new statistics showing that 79% of shop workers said that abuse was worse than last year. I pay tribute to my hon. Friend the Member for Nottingham North (Alex Norris), who tried to bring in a private Member’s Bill on assaults on retail workers, but unfortunately the Government objected to it. One shop worker living in Hull West and Hessle stated some of the issues that they had faced, including bad language, spitting, throwing items at staff and verbal abuse, which had caused anxiety and depression. Unlike some Conservative MPs, I care about people more than I care about statues. People come first, and no one should face abuse for just doing their job.
David Johnston (Wantage) (Con) [V]
There is lots to welcome in this Bill, but I want to focus on the issue that it covers on which I have had more casework than any other—unauthorised Traveller encampments. Unfortunately, these are a common feature in my constituency. Since last July, I have been copied into a weekly report on where there are unauthorised camps. In 20 of the 34 weeks since I have been getting that report, there has been at least one other unauthorised camp in one of the two districts that my constituency goes across, and in 32 of the 34 weeks there has been at least one camp somewhere in Oxfordshire.
When my constituents, who I think respect the right of Travellers to live their lives in the way that they do, write to me about unauthorised camps, they typically describe the same things: abuse, mess, noise throughout the night, and vandalism. The clean-up costs of these things are considerable for local authorities. The vast majority of Travellers do not behave in this way, so it is wrong for the Opposition to say that the Bill is criminalising their lifestyle, but for the minority who do behave in that way, it is right that we change the law to be able to tackle that.
These unauthorised camps cause distress, disruption and damage, as the Bill acknowledges. It is common for the police to say that they do not have the power to act, so it is right that we should lower the threshold to enable them to do so. They are commonly set up on highways, which in my constituency typically means the slip road on the A34 at Drayton, so it is right that we should clear them from such roads. The Bill also acknowledges the cat-and-mouse game that often goes on whereby after a long time trying to get these camps removed, they then reappear in the same place within days or weeks, as they have been doing at Great Western park. I therefore support the Government’s measures involving possible prison sentences, fines or confiscation of vehicles.
We all recognise the right of Travellers to be able to set up camps inside sites that are designated—caravan camp data suggests that those sites have increased by 41% in the past decade—but we should also recognise the right of our constituents to live their lives peacefully in their own homes and neighbourhoods, and we should vote for this Bill tonight to help them to do so.
Mr David Lammy (Tottenham) (Lab)
I beg to move an amendment, to leave out from “That” to the end of the Question and add:
“this House declines to give a Second Reading to the Police, Crime, Sentencing and Courts Bill, notwithstanding the need for a police covenant and for tougher sentences for serious crimes, including child murder, terrorism and dangerous driving, and for assaults on emergency service workers, because the Bill rushes changes to protest law and fails to introduce a single new measure specifically designed to tackle the epidemic of violence against women and is therefore an abusers’ charter since domestic abuse rates have spiked and victims of rape are facing the lowest prosecution rates on record, and because the Bill fails to criminalise street harassment, fails to make misogyny a hate crime, fails to raise minimum sentences for rape or stalking, and fails to give whole life orders to those found guilty of abduction and sexual assault and murder of a stranger.”
It is an honour to close this debate on behalf of the Opposition and to move the reasoned amendment standing in my name and that of the Leader of the Opposition. It is a debate that has involved the lion’s share of Members across this House, and of course we meet at a time of a national cry to tackle violence against women and girls.
It was in June last year, on one warm evening, amid the deep concerns about the pandemic at that time, that my wife and I, on learning and reading the news, wept together as a friend of mine, Mina Smallman, and her husband Chris lost their two beautiful daughters, Bibaa and Nicole, to terrible violence on a horrendous night in west London. We wept again just a few weeks ago because, on the evening of 3 March 2021, Sarah Everard, after visiting a friend in south London and walking across Clapham common, was spotted on CCTV at 9.30 pm and then she disappeared. The whole country and both sides of this House are mourning Sarah’s disappearance, kidnap and murder.
No story is more telling of the fact that we need tough sentences on the most serious crimes to deter criminals and protect the public, but we must not make the mistake of thinking that this horrific incident of violence against a woman is a one-off. The press may not report it, but women of all backgrounds, from all parts of the country and of all ages are killed every week. In 2016, 125 women in the UK were killed by men. In 2017, the number was 147. It was 147 again in 2018. Over the past decade, 1,425 women have been murdered in the UK. That is roughly one woman every three days.
It is not only murder; all kinds of violence against women are endemic in our country. In one year alone, 3.1% of women—510,000—experienced a sexual assault. Domestic violence has skyrocketed during the pandemic, with 260,000 domestic abuse offences between March and June. The Government knew about the crisis of violence against women and girls before this week, but when they were drafting the 20 schedules, 176 clauses and 296 pages of this Bill, they chose not to mention women once.
Maybe this Government do not like to talk about women because they know they have failed them. A decade of cuts, court closures and failed ideology is letting women down. Half the courts in England and Wales closed between 2010 and 2019. There are 27,000 fewer sitting days than in 2016. Under this Government, just 1.4% of rapes end in conviction. That is a record low and should shame us all.
As my hon. Friend the Member for Hove (Peter Kyle) rightly asked, why are the Government not fast-tracking rape victims through the CPS and the courts? The Crown court backlog is now a record high of more than 56,000 cases. The Government like to pretend that is only because of the pandemic, but they have no answer to why they let the backlog grow to 39,000 before covid even hit. The result is that victims of crime are being asked to wait up to four years to get to court. Many witnesses are dropping out of the justice system entirely because of delays. Violent criminals are being spared prison because of it. As my hon. Friend the Member for Hammersmith (Andy Slaughter) rightly pointed out, discussions on the justice system must always start with delays in the system and the inadequacy of legal aid. Instead of tackling violence against women, the Government have prioritised giving the police the power to prohibit the fundamental freedoms of protest that the British public hold dear. By giving the police this discretion to use these powers some of the time, it takes away our freedom all of the time. The Government’s Bill targets protesters causing too much noise and says that those who cause annoyance could be jailed for up to 10 years. I am thankful that the draconian limits on the power to protest were not in place during the great protests of the 20th century that led to real change.
Mr Lammy
I will not give way for the moment.
When the suffragettes marched for the right to vote, some of them were prepared to break the law to make their point just outside the House of Commons. Does the Secretary of State believe that those women who shouted noisily should have been arrested, too? Protesters marched from Jarrow in Tyneside all the way to London to demand the right to work in 1936. Does the Secretary of State think that the police should have had the power to stop them before they had even passed York? The anti-apartheid movement, of which I was part, marched continuously on Trafalgar Square for black and white people to be treated as equal. Does the Secretary of State seriously believe that they should have been arrested because they caused an annoyance?
Throughout Britain’s history, protest has been a fundamental method for the public to voice dissent. Pandemic aside, what is it about society that has changed exactly that means that the police need more powers to control protesters today than they did yesterday? What is it about the images of police tackling a mourning woman to the floor last weekend that makes the Secretary of State think that the police do not have enough as it stands? The truth, as has been briefed to his favourite newspapers, is that the Government are introducing these measures because they dislike Black Lives Matter, because they hate Extinction Rebellion and because both tell too many hard truths.
Shaun Bailey
When the Opposition vote against this Bill tonight, does the right hon. Gentleman not think that the Labour party’s position will have finally changed to: weak on crime and weak on the causes of crime?
Mr Lammy
I know that the hon. Gentleman is just getting started, but the party that introduced whole life orders—the Labour party—will not, I am afraid, take any lessons from him.
The former Prime Minister, the right hon. Member for Maidenhead (Mrs May), was right in this debate when she said that there was a fine line between “popular and populist” and that our freedoms depend on it. The Conservative party’s principles are rooted in liberty and against the overreach of the state. I call on every member of the governing party who still believes in freedom to join the Opposition and vote against this Bill tonight.
According to the Government, not only those who cause annoyance but those who damage statues of slave owners should be locked up for a decade. Unlike the Government, the Opposition will never condone criminal behaviour, but this Government’s priorities are backwards; they are upside down. Unlike women, memorials are mentioned in the Bill eight times. The Government think that people who damage statutes should spend up to 10 years in prison because of their emotional value, but it is fine to give five-year sentences for rape. This is not hypothetical: Anthony Williams strangled his wife to death, but received only a five-year sentence; John Patrick raped a 13-year-old girl, but got only seven years in jail; Ferdinando Orlando and Lorenzo Costanzo were jailed for seven and a half years for raping a woman in a Soho nightclub; James Reeve raped a seven-year-old disabled girl, but got only nine years; and David Nicholson raped an 11 year-old, but was given a sentence of nine years and four months. What does this Bill do to address those injustices that many people feel?
The Government would rather blow a dog whistle against minorities than make women safe. Measures in the Bill will further compound the inequalities experienced by Gypsies and Travellers who are already the most disproportionately represented group in the justice system. Those found guilty of trespass in the Bill could receive a higher sentence than someone convicted of stalking. Once again, this Government’s priorities are skewed. Even police forces do not support the Government’s criminalisation of trespass. The National Police Chiefs’ Council and the Association of Police and Crime Commissioners said:
“Trespass is a civil offence and our view is that it should remain so.”
Why are the Government determined to lock up Gypsies and Travellers, even against the advice of their own police?
Many of the other measures in the Bill will compound the biases that the Secretary of State knows exist in the justice system. The Prime Minister likes to boast of following my review and recommendations, but as my hon. Friend the Member for Vauxhall (Florence Eshalomi) argued so convincingly, too often young people are still considered to be perpetrators, when in fact they are victims. Earlier this year we heard the roar “black lives matter”, and it is clear by the fact that no full equalities impact assessment accompanies the Bill that the Secretary of State simply does not agree.
The Bill contains some important proposals that Labour supports. Most of the best measures come from campaigns by Labour MPs, many of whom have spoken eloquently about those campaigns in this debate. Labour supports my hon. Friend the Member for Barnsley East (Stephanie Peacock) on dangerous driving, and my right hon. Friend the Member for Warley (John Spellar) on reform of the disclosure and barring service. Labour supports my hon. Friend the Member for Rotherham (Sarah Champion) regarding sexual abuse by people in positions of trust, and my hon. Friends the Members for Rhondda (Chris Bryant) and for Halifax (Holly Lynch) on protecting the protectors. As the shadow Home Secretary so powerfully said, why can those protections not be extended to shopworkers, social care workers, and other front-line heroes? The Opposition are behind those measures, alongside others to keep the public safe from terrorists, child murderers, and other dangerous offenders.
However, Labour cannot vote for a Policing, Crime, Sentencing and Courts Bill that ignores the intimidation, violence and abuse that women face. We cannot vote for this Bill when it fails to increase sentencing for rape and stalking. We cannot vote for this Bill when it fails to criminalise street harassment, or to make misogyny a hate crime. We cannot vote for this Bill when it fails, on the watch of the Secretary of State, to give whole life orders to those found guilty of abduction, serious assault, and murder of a stranger. We cannot vote for a Bill that fails to outline a strategy to tackle the culture of misogyny that underpins it.
Richard Graham
The right hon. Gentleman mentioned stalking twice. It is worth remembering that in the Government in which he served, stalking was not a criminal offence. It became a criminal offence in 2012, and we then doubled the maximum sentence for stalking a few years later. I hope he will recognise that that was achieved under this Government.
Mr Lammy
Given all that has been said by women over the past few days, with the street harassment and stalking that they face, there is a simple question for the hon. Gentleman, who has tremendous experience in this House: have we done enough? Given that this is an omnibus Bill of a size we have not seen in a long time, could we have done more, and could the Secretary of State have done more? The simple answer to that question is, most obviously, yes, we could.
This is a missed opportunity. The murder of Sarah Everard has led to a national outcry, and the Government must finally take action to tackle violence against women and girls. The Government have responded with yet another meeting. Instead of uniting the country around a mission finally to address that violence, they are bringing forward divisive legislation that pits people against one another and takes away our freedom.
Some time this week, another woman will be killed. After around three more days, another woman’s life will be taken. Both those murders are likely to be committed by a man. For far too long, we in this country have had a problem of men killing women. If we stand for nothing, we fall for everything. Today, Labour is standing up for women by voting against this Bill. I ask Members on both sides of the House to do the same.
The Lord Chancellor and Secretary of State for Justice (Robert Buckland)
As the right hon. Member for Tottenham (Mr Lammy) said, it is an honour to close this debate and to follow other right hon. and hon. Members. This two-day debate has been an opportunity, first of all, for all of us to pay tribute to the memory of Sarah Everard, her loved ones and the wider community, who have expressed their shock, revulsion and anger at what has happened and at the wider issues, too.
When we talk about safety, each and every one of us has a responsibility. When women all too often feel unsafe, it is the wrong response to say to them, “Stay indoors. Don’t go out alone.” Instead of questioning the victim, we have to deal with the perpetrator. When I think about how far we have come, I sharply remind myself of how far we still have to go. I look around this House and think of colleagues from all parties—some of whom are no longer here—with whom I have had the honour to work on a cross-party basis on issues such as stalking, child abuse and coercive control. I am proud of that work, and I know that they are, too. The Domestic Abuse Bill, which is coming to the end of its progress through both Houses, has in many ways been Parliament at its very best.
The events of last week have no doubt acted as a catalyst. Society is speaking. The response to the reopened call for evidence on the Home Office’s violence against women and girls strategy has now received more than 120,000 submissions in just three days. Society is speaking, and it is for all of us to be up to the level of events.
The Bill, on which I have worked for many months—from well before the sentencing White Paper that I published in September last year—is not just the fulfilment of a manifesto commitment, important though that is; it lies at the very heart of the mission of this Government. It is another milestone along the road to creating a higher degree of public protection for victims of crime—and that very much includes women and girls. I had hoped—in fact, I believed—that we were going to be able to work with Members across this House not on the principle of the Bill but perhaps on the detail. Imagine my disappointment to hear that the Labour party has decided to oppose the Bill on Second Reading.
Let us remind ourselves of what Second Reading is all about: it is not about the detail of the Bill—whether it can be amended, improved, honed, polished or added to, as we have seen with the Domestic Abuse Bill—but about the principle. With the greatest of respect to Opposition Members, what beggars belief is that they think that now is the time to turn unity into bitterness and partnership into strife—[Interruption.] I can tell the right hon. Member for Tottenham that I am afraid that is what I have been hearing across the House. It is as if, somehow, we have descended into two nations once again, speaking past each other and not engaging in the way that we did on the Domestic Abuse Bill. To say that I am perplexed and disappointed is an understatement.
But then I read today’s Order Paper, and sadly all seems to be revealed, because we have not one reasoned amendment—we will vote on the one moved by the right hon. Member for Tottenham—but two from the Labour party. The Front-Bench amendment, which has a few names attached to it, makes a brief reference to the law on protest but, on analysis, does not really offer any solid reasons that are differences in principle in respect of Second Reading. The other reasoned amendment, which has been signed by 42 Labour party Members, offers much more direct resistance. It is clear that in principle those signatories are very much opposed to the Bill. There, frankly, lies the heart of the dilemma for the right hon. Gentleman and the Labour party: they are trapped between parts of their party that oppose, in principle, sensible, reasoned, proportionate measures that develop the law in a mature way, and the vast majority of the public, who want us to work together in the national interest. I am afraid that it looks as if party interests are being put before the national interest. It gives me no pleasure at all to say that, but I am afraid that that is what it looks like—not just to those on the Government side of the House, but to the country.
Let us look at what we did on the Domestic Abuse Bill. By working together, we moved mountains.
Robert Buckland
No, I will not give way to the right hon. Gentleman. I do not think I can do justice to the number of inaccuracies, generalisations and false assertions—inadvertent assertions, I will concede—that were made by him and, I am afraid, by other Opposition Members. They are concocting—
Robert Buckland
No, I will not give way.
Opposition Members are concocting synthetic arguments in objection that just do not stand the closest scrutiny. They are inadvertently—I will say “inadvertently”, because I will give them, of course, that courtesy—misstating some of the key provisions of this Bill.
Let us start with the juxtaposition pf sentencing for rape and criminal damage. The starting point for the lowest category of the offence of rape, as set out by the Independent Sentencing Council, is five years. With aggravating factors and different categories of offending, rape offenders will receive, and very often do receive, substantially longer sentences, leading up to those for campaigns of rape, where sentences of in excess of 20 years, or even life sentences, will be imposed, because the maximum penalty for rape is life imprisonment.
Robert Buckland
No, I will not give way.
In this Bill, we are making sure that those who commit offences such as rape spend more of their time in prison. We are ending Labour’s automatic halfway release provisions for people who receive sentences of over four years for offences such as rape and section 18 grievous bodily harm, and we are making sure that they serve two thirds of their term of imprisonment.
Turning to criminal damage, the relevant Act is now 50 years old, and for those 50 years the statutory maximum has been 10 years where the value of the damage is over £5,000. The changes in relation to criminal damage of memorials simply remove the previous restriction on the mode of trial and allow the full range of those powers to be used up to that maximum. We are simply giving the courts greater discretion as to how they sentence such offenders, taking into account the emotional and community impact of those offences.
We had, I thought, cross-party support on these measures. Indeed, back in the summer, the right hon. Member for Torfaen (Nick Thomas-Symonds) publicly backed our proposals. He said that he would work to support such efforts in Parliament. Now he is opposed. Why? Why the change? What is going on here? I will tell Members what is going on.
Robert Buckland
No, I will not give way. I will explain what is going on, and then I will let the right hon. Gentleman in.
I would suggest that what has happened here is the result of a conflation with the covid regulations and their interaction with the right to protest, which the Labour party did not oppose—it voted in favour of those on occasions or did not oppose them. They have conflated those arguments with measures in the Bill that long predate what happened on the weekend—those regrettable scenes that we all saw and were upset and appalled by. They are now conflating those issues with the issues relating to this Bill. There is no relation between the two, and I would love to hear an explanation from the right hon. Gentleman.
Nick Thomas-Symonds
I am grateful to the Secretary of State for giving way. Last year, the Government spoke about additional protection for war memorials. We all understand the value of war memorials. What we did not agree to, and I have never agreed to, is locking up people for 10 years for damaging all memorials, including those of slave traders. That just sums up everything that is wrong with the Government’s approach. They could have worked with us. They did not. They have created division.
Robert Buckland
It is a very nice try from the right hon. Gentleman, for whom I have the utmost respect, but it does not cut the ice. We know what has happened here. It is a party in panic that is weaving, twisting and wobbling because its internal management problems are far more important than the public interest. That is the truth. Here we are, at the end of a two-day debate, with the Labour party, which I concede has a proud record in supporting the police and maintaining law and order, now voting against measures to strengthen sentencing for rapists, burglars, drug dealers, sex abusers, killer drivers. All of that is being opposed by the Labour party. Let me tell Labour Members the price of that for their party.
Robert Buckland
No, I am not going to give way.
Much has been said about the excellent campaigns run by Labour Members. I pay tribute to the hon. Members for Barnsley East (Stephanie Peacock), for St Helens South and Whiston (Ms Rimmer) and for Rotherham (Sarah Champion), with whom I have worked very well over the years on issues relating to child abuse. Imagine the impossible position that those doughty campaigners have been put in by their Front Benchers. They are now having to vote against the very measures that they campaigned for so assiduously. That is a terrible predicament for them to be put in. It is a disgrace, and the Labour Front Benchers should hang their heads in shame.
There have been in this debate many constructive and important contributions, and I want to in the minutes that I have left—
Robert Buckland
They don’t like it when the truth is explained to them. They think that they have the moral high ground on all these issues. Well, I can tell you that there is no monopoly on morality in this place.
Before I deal with the excellent contributions from Members across the House, may I deal with the canard about “annoyance”? Much has been made about the somehow strange use of a word that is seen as a massive infringement on the civil liberties of men and women across this country, yet a brief perusal of the Law Commission’s report of 2015 tells us that the law has developed for centuries with phrases like “annoyance”. It is a part of the common law on public nuisance. The members of the Law Commission—they were all very good members; there was Lord Justice Lloyd Jones as he then was, and Professor David Ormerod, who is well known as an excellent academic in these fields—recommended that the law needed to be codified. The law had been restated with reference to the use of the word “annoyance” by none other than the late and noble Lord Bingham when he was in the House of Lords. He set out the law very clearly. Clause 59 amounts to no more than a reiteration of the excellent work of the Law Commission. To say anything else is, frankly, once again a confection, a concoction and a twisting of the reality.
I want to deal with the question of abuse in a position of trust. I pay particular tribute—I think all hon. Members will agree with me—to the outstanding work of my hon. Friend the Member for Chatham and Aylesford (Tracey Crouch). It has been a pleasure to see her back here. She spoke earlier. I think she has now gone home, but we all wish her well. She has, with great tenacity, campaigned to make sure that we make these provisions a reality.
I also pay tribute to my hon. Friend the Member for Gloucester (Richard Graham). He asked a particular question about driving instructors. He will see in the Bill that there will be provision, by way of statutory instrument, to allow an amendment of the law to extend to further categories of occupation. It is important that there is a clear evidence base. We are dealing with young people who are transitioning to adulthood—they are 16 and 17 years of age—and it is quite clear that the evidence on sports coaches and religious leaders, sadly, did point to a need to change the law. I pay tribute to my hon. Friends and to my noble Friend Baroness Grey-Thompson for their excellent work.
On causing death by dangerous driving and causing death by careless driving while under the influence of drink or drugs, my right hon. Friend the Member for Maidenhead (Mrs May) deserves our thanks and praise for pressing her Bill. I know she has welcomed the provisions. In the context of memorials, I thank my hon. Friends the Members for Bracknell (James Sunderland) and for Stoke-on-Trent North (Jonathan Gullis) for pressing their case with extreme prejudice and alacrity and for succeeding on the provision.
The Home Office parts of the Bill were outlined very well by my right hon. Friend the Home Secretary yesterday. In summary, I would say that important public health duties are being extended in relation to serious violence. I have long held the view that it is only by bringing together the local agencies that we truly get ahead of the trends in serious violence and in prevention, which is of course nine tenths of what we need to be doing.
The Chair of the Justice Committee, my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill), made a weighty contribution to the debate, rightly pointing to the extra investment in alternatives to custody. At the heart of the approach I am taking as Lord Chancellor is enhancing and improving community sentencing. It has long been clear to me that we need to make sure that sentencers have a proper choice of robust community alternatives.
Wes Streeting
I asked whether the Lord Chancellor could explain to my community why someone who was in a position of trust—deputy manager of a care home—who peddled kids to deal drugs across the country got a prison sentence of only four years. What is he going to do about that?
Robert Buckland
The hon. Gentleman knows that matters dealt with in court are matters for the independent judiciary, but I will look at the case, because it is vital that we make sure that those who are involved in organised crime and abuse—that is what that case sounds like to me—are properly dealt with, and that the wider issues are addressed. I share his concern.
Robert Buckland
Not at the moment.
I am particularly pleased to thank my hon. Friend the Member for North Wiltshire (James Gray), who represented the family of Ellie Gould, the murder victim of whose case I think everyone in this House is fully aware. It is important to take on board the points he made about domestic homicide. I have spoken elsewhere about the importance of getting the balance right when it comes to the categories of murder. I committed to a review—I did that last week—and I will bring before the House further information on the content of that important review.
In the minutes left, I am pleased to commend to the House a radical new approach to the way in which we deal with young people—children—who are incarcerated in the secure estate. The days of locking them up and forgetting about them absolutely have to end; we all agree on that. That is why the measures to clarify the legal framework surrounding new secure schools will allow a complete change in the way in which we deal with, support, rehabilitate and educate children in our care. Schools with security will have education, wellbeing and purposeful activity at their very heart. As ever, I am grateful to my hon. Friend the Member for Aylesbury (Rob Butler) for his constructive suggestions and his work as a member of the Justice Committee.
Let me outline on the record the important provisions in the Bill relating to unauthorised encampments. Many right hon. and hon. Members have raised the issue. It is a real concern for many of our constituents.
Mr Steve Baker (Wycombe) (Con)
The pages of the Bucks Free Press attest to the sheer scale of the costs to our green spaces and our communities of unauthorised encampments. Does my right hon. and learned Friend agree that on this issue and on protests, the Opposition are refusing to engage with legitimate limits on both freedoms?
Robert Buckland
My hon. Friend puts it very well. This is all about balancing the rights of Traveller communities to use authorised encampments and to enjoy the lifestyle that they have chosen, and the rights of householders not to have their local communities despoiled. That is what we are seeking to do. The Bill, in my strong submission, allows that balance to be maintained and enhanced.
The Bill is part of our wider approach to making the criminal justice system smarter, and to keeping our streets safe from the worst criminals, while giving offenders opportunities to turn their life around. We can rebalance the justice system. We can restore faith in it, which has sadly been in decline for too long. The Bill is a welcome step forward, and I commend it to the House.
Madam Deputy Speaker (Dame Eleanor Laing)
Order. We require social distancing in the Chamber at all times, please.
Question put, That the amendment be made.
Madam Deputy Speaker (Dame Eleanor Laing)
I will now briefly suspend the House for three minutes so that arrangements can be made and people can leave and enter the Chamber with proper social distancing.
Police, Crime, Sentencing and Courts Bill (First sitting)
Tuesday 18th May 2021
(2 years, 11 months ago)
Public Bill CommitteesRead Full debate Police, Crime, Sentencing and Courts Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 18 May 2021 - (18 May 2021)
The Chair
Before we begin, I have a few preliminary announcements. First, let me ask you to switch any electronic devices off or to silent mode. I remind you that Mr Speaker does not allow tea or coffee to be consumed during sittings of this Committee. This is really difficult, but you have to try to observe the social distancing arrangements and sit only in the places that are marked. I ask you to wear a face mask when you are not speaking, unless you are medically exempt. Space is a bit tight in this room, so people just have to observe social distancing and try to make it as easy for people as possible as they are moving around.
Today we will consider, first, the programme motion on the amendment paper. We will then consider a motion to enable the reporting of written evidence for publication and then a motion to allow us to deliberate in private about our questions, before the oral evidence session. In view of the time available, I hope that we can take all those matters without debate. Before we hear evidence from our first panel, we will have a short briefing from the Parliamentary Digital Service on cyber-security, which is of particular concern to members of this Committee because we are dealing with matters relating to the police and criminal law. The programme motion was discussed on Monday by the Programming Sub-Committee for this Bill.
The Parliamentary Under-Secretary of State for the Home Department (Victoria Atkins)
I beg to move, Date Time Witness Tuesday 18 May Until no later than 10.30 am The National Police Chiefs’ Council Tuesday 18 May Until no later than 11.25 am The Police Superintendents’ Association; The Police Federation of England and Wales Tuesday 18 May Until no later than 2.45 pm The Centre for Justice Innovation; The Centre for Social Justice Tuesday 18 May Until no later than 3.30 pm Jonathan Hall QC, the Independent Reviewer of Terrorism Legislation; HM Inspectorate of Constabulary and Fire & Rescue Services Tuesday 18 May Until no later than 4.15 pm Local Government Association; The Association of Police and Crime Commissioners Tuesday 18 May Until no later than 4.45 pm Doughty Street Chambers; Garden Court Chambers Tuesday 18 May Until no later than 5.15 pm Youth Justice Board Tuesday 18 May Until no later than 5.45 pm The Bar Council Thursday 20 May Until no later than 12.15 pm National Association for the Care and Resettlement of Offenders; Unlock Thursday 20 May Until no later than 1 pm The Victims’ Commissioner Thursday 20 May Until no later than 2.45 pm The Children’s Society; Community Justice Scotland Thursday 20 May Until no later than 3.30 pm The Association of Youth Offending Team Managers Thursday 20 May Until no later than 4.15 pm The Law Society Thursday 20 May Until no later than 5 pm Howard League for Penal Reform; Criminal Justice Alliance; Women in Prison; Sentencing Academy Thursday 20 May Until no later than 5.45 pm Professor Colin Clark, University of the West of Scotland; Amnesty International UK; Liberty
That—
(1) the Committee shall (in addition to its first meeting at 9.25 am on Tuesday 18 May) meet—
(a) at 2.00 pm on Tuesday 18 May;
(b) at 11.30 am and 2.00 pm on Thursday 20 May;
(c) at 9.25 am and 2.00 pm on Tuesday 25 May;
(d) at 11.30 am and 2.00 pm on Thursday 27 May;
(e) at 9.25 am and 2.00 pm on Tuesday 8 June;
(f) at 11.30 am and 2.00 pm on Thursday 10 June;
(g) at 9.25 am and 2.00 pm on Tuesday 15 June;
(h) at 11.30 am and 2.00 pm on Thursday 17 June;
(i) at 9.25 am and 2.00 pm on Tuesday 22 June;
(j) at 11.30 am and 2.00 pm on Thursday 24 June;
(2) the Committee shall hear oral evidence in accordance with the following Table:
(3) proceedings on consideration of the Bill in Committee shall be taken in the following order: Clauses 1 to 10, Schedule 1, Clause 11, Schedule 2, Clauses 12 to 42, Schedule 3, Clause 43, Schedule 4, Clauses 44 to 47, Schedule 5, Clauses 48 to 51, Schedule 6, Clauses 52 to 66, Schedule 7, Clauses 67 to 73, Schedule 8, Clause 74, Schedule 9, Clauses 75 to 97, Schedule 10, Clauses 98 to 100, Schedule 11, Clauses 101 to 127, Schedule 12, Clause 128, Schedule 13, Clause 129, Schedule 14, Clauses 130 to 134, Schedule 15, Clause 135, Schedule 16, Clauses 136 to 156, Schedule 17, Clauses 157 to 161, Schedule 18, Clauses 162 to 168, Schedule 19, Clauses 169 to 171, Schedule 20, Clauses 172 to 176, new Clauses, new Schedules, remaining proceedings on the Bill;
(4) the proceedings shall (so far as not previously concluded) be brought to a conclusion at 5.00 pm on Thursday 24 June.
The Under-Secretary of State for the Home Department, my hon. Friend the Member for Croydon South (Chris Philp), and I are both delighted to serve under your chairmanship, Mr McCabe. I welcome to the Committee my hon. Friends, on the Government Benches, and hon. Members across the room. I am sure that we can expect some lively debates in the days and weeks of scrutiny ahead.
Question put and agreed to.
Resolved,
That, subject to the discretion of the Chair, any written evidence received by the Committee shall be reported to the House for publication.—(Victoria Atkins.)
The Chair
Copies of written evidence that the Committee receives will be circulated to members by email and made available in the Committee Room.
Resolved,
That, at this and any subsequent meeting at which oral evidence is to be heard, the Committee shall sit in private until the witnesses are admitted.—(Victoria Atkins.)
The Chair
If everyone is agreed, we will go into a private session for the briefing on cyber-security and to discuss the lines of questioning. Time is very tight, so we will allow five minutes for the presentation and, if there are any obvious questions, a few minutes for that. If people have things that they want to follow up, I ask them to do that separately with the PDS; otherwise we are just eating into the Committee’s time.
The Chair
I want to check how members of the respective parties want to handle the questions. We have our first panel until 10.30 am; they will all be giving evidence by video today. It is slightly harder since we are not sitting in our usual formed lines, but my assumption is that I should simply alternate between members of the respective parties and allow enough time for the Minister and the Front-Bench spokespersons to come in towards the end. Are you happy with that?
The Chair
Obviously, you can either use the questions that are on the brief that you have been given, but there is no objection to your asking your own questions. However, the questions must relate to the content of the Bill; we do not want any flights of fancy from anyone. I hope that makes perfect sense.
Also, if anyone has anything that they need to declare, I hope that they will be kind enough to do that.
I think that covers all the preliminary business. I am conscious that it is difficult to be called with the arrangement in the room, so if you want to be called, just indicate that to me. And if you are sitting at the back, there is a microphone there, so that you will be heard properly. If anyone is having any terrible difficulties, let me know.
Otherwise, if you are happy to proceed, I will call the first panel of witnesses: Assistant Commissioner Martin Hewitt, the chair of the National Police Chiefs’ Council; and Chief Constable BJ Harrington, the NPCC lead for public order and public safety.
Examination of Witnesses
Assistant Commissioner Martin Hewitt and Chief Constable BJ Harrington gave evidence.
The Chair
Q
Assistant Commissioner Hewitt: For myself, Chair, all I will say is that throughout the construction of the Bill, all my respective leads have worked with the Home Office officials, to try to make sure that our views have been incorporated, so we feel that we have had the opportunity to be engaged throughout the process. I do not think that I really need to say much more than that at this stage.
Chief Constable Harrington: I am one of those respective leads, so I have had plenty of opportunity to inform the Bill.
Sarah Champion (Rotherham) (Lab)
Q
Assistant Commissioner Hewitt: We are always concerned about any officers that have to routinely undertake the kind of work in which there will undoubtedly be an impact on the officer’s welfare. We have a range of wellbeing work that we do, including a specific wellbeing service, Oscar Kilo, that looks after all aspects of wellbeing, particularly mental health wellbeing, which has become one of our priorities in recent years. When you get into specific roles such as the one that you identified there, there is training and assessment for officers who go forward and undertake those roles. There is also regular checking and assessment of those officers so that they are looked at again, spoken to and monitored for any of the specific impacts.
As you have identified, there is a range of roles that we now have officers undertaking that are by their very nature distressing, and of course we recognise that kind of repeated exposure, so there is psychological testing and support provided to those officers. In particular roles, that will incorporate routine and regular checking to ensure that the officer’s welfare is fine. That fits within the much broader work that we undertake more generally on wellbeing, and, as I say, particularly and increasingly mental health wellbeing.
Sarah Champion
Q
Assistant Commissioner Hewitt: The reality is making that work. An issue that we undoubtedly have around wellbeing and the occupational health service provision is the restricted amount of capacity. That is one of our challenges. In all circumstances, where we want to refer officers or staff for support, one of our frustrations is that it often takes quite a while to access that support. Although there is a positive in the concept of providing more universal support, it would have to be balanced with being able to actually provide the capability and the capacity to do that effectively. That is one of the challenges we face.
The Chair
Chief Constable Harrington, do you have anything to add?
Chief Constable Harrington: Like Martin said, we have some systematic processes for those who engage in high risk areas. Some of the capacity issues are dealt with by our trauma incident management response, which enables supervisors and peers to recognise, debrief and spot the people who need further and greater intervention, and almost to triage that response following any kind of traumatic incident, particularly in the cases that have been referenced.
The Chair
I call Robert Goodwill. By the way, Members are free to take their jackets off if they feel so inclined.
Mr Robert Goodwill (Scarborough and Whitby) (Con)
Q
Assistant Commissioner Hewitt: BJ, I will probably let you take that one first.
Chief Constable Harrington: First and foremost, all police training and all police responses to public order and protest, and those important freedoms that you referenced, are in accordance with the Human Rights Act. Of course, there is always the balance between the positive duties to ensure that people can express those rights, and those negative duties, ensuring that we infringe on those rights only when that is proportionate and necessary. I think the point is around getting the balance right in protecting the rights and freedoms of those who are impacted by that.
We asked for some of the changes that are incorporated into the Bill, including more currency around the powers in the Public Order Act 1986 as was. Protest and assemblies have changed since that time. There are issues such as when does a procession become a static assembly, and an assembly become a procession? There is the consistency of what the police can do, always within a landscape of balancing the competing rights of those affected and those who wish to express their rights. There is also the need for real clarity for both the officers who are required to make difficult decisions, balancing objectively and proportionately what they need to do, and for those who wish to express those rights or to have them protected.
We think that the proposals to align sections 12 and 14 of the Public Order Act 1986 really do bring that currency to what we see and how people protest, assemble and march now. There will also be consistency so that people can better understand. Of course, things like the public nuisance elements allow us—the police—to anticipate better where there will be significant or serious impact. “Significant impact” is the phrase we would want to see. You have seen and referenced some of that significant disruption to people whose rights are infringed by others. We think that the changes bring currency and consistency and, overall, greater clarity for all those who have to police it and those who take part.
Mr Goodwill
Q
Chief Constable Harrington: From our perspective, we asked for the consistency between those two sections, and that is included. We asked for, and would like to see, particularly serious disruption—a very high threshold—to become more like significant impact on the community. Of course, we can prove disruption, and it is also about whether the impact is on, for example, a small business, an individual, a neighbourhood or, indeed, a large institution or Parliament itself. We asked for that, and we think the Bill starts to address that.
In terms of the powers and the response to that, the tactics and things, whether that is the use of force, that we apply—you referred to water cannon available to other police forces and other countries—always need to be in that balance and, of course, proportionate and necessary to achieve that legitimate aim. But the proposals give us greater clarity to be able better to balance those competing rights, which are always tricky and difficult and always require judgments about those who are affected by it and those who are expressing their rights, and there will always be opposing opinions. I think the Bill broadly gives us that extra power.
Mr Goodwill
Q
Chief Constable Harrington: If I may reference Her Majesty’s inspectorate of constabulary and fire & rescue services’ survey of the public, where there is serious disruption, the public are very supportive of the police being active and preventing that action taking place. I think the public will perhaps always step in when they see a significant impact on them, or in terms of the lower elements, where it is just frustrating perhaps or just annoying. I think the public in the survey showed that they are more tolerant of that.
It goes back to the previous questioner’s point: in the police service, we guard the freedoms of expression and assembly very carefully, because they support police legitimacy in terms of the police being the public, and the public being the police. So I think the Bill gets the balance right. I think the public will always be concerned where people are climbing on top of tube trains, which is simply dangerous. That will always be a case where the police or the public would want to intervene.
The Chair
Is there anything you want to add, Mr Hewitt?
Assistant Commissioner Hewitt: Not really. We police public order and protest in a particular way, and I am very proud of the way that we police that. As has just been said, it is always a challenge to balance the different rights, responsibilities and risks, and that is what our commanders do routinely. What the provisions in the Bill give us is greater consistency and clarity, which is really important for the commanders and the officers on the ground, but equally for people who are seeking to protest. This is an environment that changes and shifts, and the Bill gives us extra certainty and clarity in terms of dealing with situations as they arise.
Maria Eagle (Garston and Halewood) (Lab)
Q
Chief Constable Harrington: Police training already clearly plays a large part in our obligations, positive and negative, under the Human Rights Act, and we make those judgments around balance now—the protection of rights and freedoms of others, versus the rights of assembly and freedom of expression that are so important. It is a core part of our training, from senior commanders through to police constables and every rank and grade in between. We already balance those competing rights.
In terms of preparation, we engage with protest groups where we can and where they wish to engage with us. We try to understand what it is that they wish to achieve through their protest, and we then try to speak to those who would be impacted on—you used the example of people in a shop—to understand what they need. We try to strike a balance that allows both of those rights and freedoms to be carried out and realised. Sometimes there is conflict in that, because some might seek to obstruct one or the other. That is when police commanders and officers have to make those judgments, but it is always about how they balance those rights in a way that is proportionate and necessary. Of course, any restrictions that we place on those rights must always be prescribed in law, and that is what we say the provisions in the Bill allow us to do more clearly for all involved.
Maria Eagle
Q
“entire classes or types of protests”
will be prohibited and that the bar for what will constitute significant disruption to the community, which is a woolly phrase—what does that consist of?—will be set at a low level, which will infringe on people’s rights to protest peacefully. What do you think about this, and what is your understanding of the definition of serious annoyance?
Chief Constable Harrington: The vast majority of protests across the country are largely unpoliced and take place without police intervention, and we use our current powers under the Public Order Act to impose restrictions relatively infrequently. Over the past year, I do not think it has been more than 20 times, although some of those have been high profile and have obviously been challenged in the courts. These are not powers that we seek to use frequently, and they are well considered. Of course, they are subject, and have been subject, to challenge in the courts, both through judicial review and subsequently when people have been prosecuted for breaching the conditions in relation to that.
On serious annoyance, we think serious disruption is a very high bar. We asked for “significant impact” on the community, to take account of where it may not be serious but is perhaps significant to a business, an individual or a school, or to the operation of someone’s life and freedoms. On serious annoyance, we need to see what Parliament’s decision on the definition of that is and to interpret that accordingly, always coming back to how we interpret the law in a way which comes back to the fundamental freedoms and those fundamental obligations on policing, which is to get the balance right between those who wish to express those rights and those who are impacted by them. We will have to see what Parliament decides and whether it is able to give us some clarity about what that means, so that we can make those judgments in an informed and lawful way.
Maria Eagle
Q
Chief Constable Harrington: I have policed many protests over 27 years in London, and headed up public order for the Metropolitan police in a previous job, so, yes. There are lots of cases—Redmond-Bate and others—that would suggest that protest is annoyance and disruptive. This is the balance. We come back to the point: where does that level of disruption become, in our view, a significant impact on a community? That is the balance of judgment that we have to make. If that stops the operation of a business—a hospital perhaps—or stops thousands or tens of thousands of people commuting to their jobs each day, our argument would be that that tends to trip the bar to say that that is not proportionate and the balance is out of kilter there.
Equally, we have to take into account that there will be some annoyance and there will be some noise, but that is the judgment call that commanders have to make, balancing those and taking the evidence or the information from those affected by it. We would very much welcome from Parliament guidance and a steer as to what that would mean and what the levels are—if you excuse the pun—because that is how we can then make sure that we balance those rights lawfully and proportionately.
Maria Eagle
Q
Chief Constable Harrington: Some are very, very noisy, with drums, cymbals and bands, and others—certainly that I have been involved with—have been absolutely silent, because of the nature of those protests. Noise is one element which can disrupt, but so also is the presence. So there is a whole variety of different protests, but, yes, many are noisy.
Maria Eagle
Q
Chief Constable Harrington: The presumption is that people have a right to assembly, and we would only impose conditions on those where we think that there is serious disruption, serious disorder or the likelihood of serious damage, or they are there to intimidate people. As the law suggests, we have always said that, in terms of serious disruption, that bar is very, very high, and we would like to see “significant impact”.
We use these powers currently very rarely. We allow and facilitate many protests, and sometimes to our criticism. Police commanders are criticised for getting the balance wrong because one or other side, or opposing views, think that it should not be allowed. I cannot say that every protest will always be allowed, but I think individual commanders will make informed, balanced judgments based on the information, always seeking to get the balance right, with a presumption that is set out in the Human Rights Act that we will facilitate a peaceful assembly, but always balancing that against the protection of rights and freedoms of others.
Maria Eagle
Q
Chief Constable Harrington: As I said, we asked for greater consistency in sections 12 and 14 of the Public Order Act. For the Committee’s benefit, for a procession, we can impose conditions such as appear reasonable to the senior commander in the circumstances—whatever range of conditions. For an assembly, we can only specify location, duration and maximum numbers. As I said, the point is when does a march begin and an assembly stop? You will have all seen that in your own experience.
We asked for greater clarity around public nuisance and for that to become a statutory offence, rather than a common law offence. We think that gives commanders and the public greater clarity and understanding. We think that is an important power that will allow us to deal with some of the more serious disruption to communities that perhaps might be planned.
We also asked that, where we have talked to individuals and gone through breach of the conditions, whether in advance, through publication, through engagement or through the five-stage appeal before we use enforcement, and where we have done everything we possibly can, often videoing officers speaking to or giving a leaflet to someone who we say is breaching, that the presumption be shifted, as they ought to know, because we have done everything possible. We have asked for those kinds of powers, and they are reflected in the Bill.
The Chair
I will come to Allan Dorans in a second, but in the interest of balance we will go first to Antony Higginbotham first.
Antony Higginbotham (Burnley) (Con)
Q
Chief Constable Harrington: Social media has been a game changer in many ways. We still get organisers who come forward and people who say they want to march from A to B. They will organise around that; they are what I call a traditional protest march.
But, as you rightly say, we can have protests or assemblies that are organised in a matter of hours—sometimes minutes—and the use of social media can change those protests and make them more dynamic. Hence, the currency around that, because something was advertised as an assembly at a particular point, but, very quickly, through social media, everyone is off to another point, and it becomes a march. We think that is really important, and the powers help us because we can be really clear about imposing proportionate, lawful and necessary conditions, if the threshold is met, on the whole of that protest, whether it walks or stands still. Then everybody can be clear about what they do.
In terms of social media, we have adapted very quickly, I think. You will regularly see police officers in our police liaison team trying to engage with organisers. We will see approaches through a whole range of social media platforms. Sometimes, as it is people’s right not to engage with us, you will see senior officers making very clear appeals and clearly setting out through social media what, in the policing judgment, is acceptable or not acceptable, in order to make sure people are clear about where they may or may not be breaking the law if we impose conditions.
So we have adapted to that and we continue to do that. Through events, you will see that we continue to do that for those events. We also use social media to understand the impact on those affected, so that we can either protect property or protect the rights and freedoms of those who may be affected.
Antony Higginbotham
Q
Chief Constable Harrington: It is the ability to communicate quickly, to change their focus of protest very quickly and to divide and split up—it is just that it is dynamic. We see that in a social context—“I’ll meet you here” or “I’ll meet you there.” That is the same thing in protests.
I think you hit the nail on the head about what we are asking for around consistency and currency, allowing the powers that we use—again, proportionately and with all the balance and the constraints of the Human Rights Act—to be really clear, so we can say, “What is the impact of what this group propose to do? How do we best balance that?”
Then, if we think the threshold is met, we can impose conditions that allow us to be really clear about what we are trying to achieve. To the point you made earlier, we then need to communicate that very clearly to those involved so that they have every opportunity to express their rights, understanding what the rules and thresholds are for when the police would intervene.
Antony Higginbotham
Q
Chief Constable Harrington: We are very careful with the use of closed online groups. The open-source platforms we use are exactly that: open source. Our communication with protest groups is open, as is their conversation with us. I think we are very careful; our access to those would be about criminality, and that is not what we are talking about here in terms of our use of those powers. This is not to limit or criminalise protests; it is to balance those rights of disruption with competing rights.
Seeking access to closed groups would always be at a very high threshold we would consider only with criminality. We do that in other arenas, and we have good powers and good co-operation in order to do that. We would not seek that routinely as part of policing protests or public order. As we have seen over the last year—even this last weekend—there have been largely peaceful protests. My view as the national lead is that we would only seek those powers where protests end and criminality begins, but I think they are well catered for elsewhere.
Allan Dorans (Ayr, Carrick and Cumnock) (SNP)
Q
Assistant Commissioner Hewitt: The first point I would mention is that there will be pilots for the serious violence reduction orders. We have been and will continue to work very closely with the Home Office to make sure that we fully understand the impact of such orders. There is no doubt that there are people who are more violent and have a history of violence, and we do a range of things to try to reduce the number of violent crimes. Our concern is to make sure that there is no disproportionality in the way these orders are used, so we are really keen to work very closely with the pilot site to assess how this can be another tool—and it is just one further tool—in dealing with street violence and violence among younger people.
We do think there is an opportunity for certain individuals to become subject to this sort of order, but we want to work with the pilot site to see how we can make that work; how we can make it an effective tool that does not cause more challenges with particular parts of the community.
The Chair
Thank you. I want to try to squeeze in one last Back-Bench question—Hywel Williams, could you make it brief, because I want to get to the Front Benches.
Hywel Williams (Arfon) (PC)
Q
Assistant Commissioner Hewitt: Potentially, that presents a challenge. The four Welsh forces work extremely well with Welsh Government, and—obviously—with local authorities in the individual force areas. There is always going to be a challenge when people are potentially in different legislative places. We have been dealing with that in many senses in our response to the covid pandemic for the last 14 months or so: we have very deliberately responded as one UK police service, but on almost all occasions there have been slightly different regulations in Scotland, Northern Ireland and, for that matter, Wales. That presents a challenge to policing, but I know for a fact that the four forces in what the National Police Chiefs Council would describe as the Welsh region work incredibly closely with the Welsh Government and with local authorities in the individual areas. We work effectively and collectively as one UK police service. I am confident that we will be able to bridge those gaps if they exist and deal with the challenges, but those challenges nonetheless do exist when we are potentially in different frameworks.
Sarah Jones (Croydon Central) (Lab)
Q
I have some quick-fire questions first concerning several other issues in the Bill that we do not have time to go through in detail, so do not feel that you have to give long answers. On the police covenant—that we welcome—would you have liked to see other police officers included in the primary legislation, such as the British Transport police and the Ministry of Defence police? That question is to Martin.
Assistant Commissioner Hewitt: As I say, we work as one police service and we really have done so over the last 14 months. Potentially, that would be a positive thing. We are working closely with the Government. I have set up a shadow police covenant board which has all the representatives of the organisations: staff associations, unions, police and crime commissioners, and the NPCC. We are working really closely with the Home Office officials who are putting it together. My view is that we operate as one UK police service, and it would be helpful if that was likewise.
Sarah Jones
Q
Assistant Commissioner Hewitt: There could be some potential to that. We have, as you know, been alive to the issue of exploitation, particularly in the guise of county lines. We have used other legislation to prosecute the criminals exploiting those children. It is clear, though, that it is a phenomenon. That is why the requirement to share information is important: so that we identify all the risk factors as we collectively try to reduce violence. It may be worth considering a specific definition, but it is well understood in policing. That aspect is part of how we try to deal with those issues— particularly but not exclusively county lines.
Sarah Jones
Q
“The solution to unauthorised encampments lies in the provision of sufficient lawful accommodation accompanied by closer working between the police, local authorities and all other public services.”
Will you expand on that view? Why did you come to that position? These are really quick-fire questions, sorry.
Assistant Commissioner Hewitt: This is a really challenging area for policing, and it provokes strong views on all sides. The police often find themselves in difficult situations when dealing with these issues. Our group, which worked very closely on this issue, strongly believes that the fundamental problem is insufficient provision of sites for Gypsy Travellers to occupy, and that that causes the relatively small percentage of unlawful encampments, which obviously create real challenges for the people who are responsible for that land and for those living around. Police still get involved at the moment. The view of our group is that the existing legislation is sufficient to allow that to be dealt with, and we have some concerns about the additional power and the new criminal provision and how that will draw policing further into that situation. Really, our point fundamentally as the NPCC group is that the issue here is the lack of provision that theoretically should be made, which means that we have this percentage of Travellers who are on unlawful spaces and you end up in the situations that we end up with. Our view is that the current legislation is sufficient to deal with that issue.
Sarah Jones
Q
Assistant Commissioner Hewitt: I think we all understand that the volume of digital evidence that is required for almost every investigation has grown and grown as all of our lives are lived more digitally. That has created real pressure on the time limits of investigations and our ability to gather the evidence that we need to take an investigation forward. We have increased the capability. It is partly about equipment and having the right equipment to be able to extract digital evidence. It is also about having officers and staff who have the right capabilities to assess that evidence and produce it in an evidential form.
There is no doubt that that is a growth area, and all sorts of discussions are going on between us and Government about increasing our capacity and capability for that. However, the flip side and the really important point is making sure that what is being done is lawful, proportionate and necessary. Again, that side of the work is equally important.
This is never going to be about randomly extracting data; this is about extracting the data that is required to conduct a proper investigation, provide evidence and decide how something goes forward and, really importantly, doing that in a timely fashion. As we all know, there are real concerns about the timelines for investigations and prosecutions, and one of the key factors in the delays in those processes is the extraction and analysis of digital forensics. So we need the legal framework to allow us to do that properly and we then also need the resourcing and the capabilities to do it within the right time limits.
The Chair
Can I remind you, if Mr Cunningham is coming in, that you are in the last two minutes of your time, so how you use it is up to you.
Sarah Jones
Q
Chief Constable Harrington: Of course, there is a process by which we have to react to highway obstruction. It does not allow us to assess impact on hospitals or access for emergency vehicles. There is clarity between what is a procession and what is an assembly, and we can apply such conditions as are necessary, with all of the balancing around what could be a march or an assembly or both. If you take Parliament square, sometimes people will rotate around it. I know there is particular interest in St Thomas’ Hospital with Westminster bridge, for example. The ability to have consistency allows police commanders, where required, depending on the size and nature of the march, protest or assembly, to be clear in advance about where emergency vehicles will be allowed to get through.
I use Parliament square as an example because it will be evident to members of the Committee and easy to describe, but the same issue might arise elsewhere. The process enables us to be clear in advance where that threat is posed or, at the time, to be clear and able to communicate that. With highway obstructions, there is a need to negotiate, discuss and decide whether there is lawful authority and if an emergency vehicle is trying to get through, that takes time and it will not be effective.
The Chair
Thank you. I have got to switch to the Minister, Victoria Atkins. If there is time, I will come back to Sarah Jones.
Victoria Atkins
Q
Assistant Commissioner Hewitt: That is right.
Victoria Atkins
Q
Assistant Commissioner Hewitt: Yes, I welcome that very much. In some senses, that was previously there. When you look, in particular, at the work that has been done by violence reduction units in the past year to 18 months—a couple of years, in fact—getting all the relevant agencies in the local area to focus on and prioritise reducing violence, and play their part, is the way to reduce levels successfully. We can never do that purely by enforcement. This is a really important opportunity to bring all those groups together and focus on violence in their local area.
Victoria Atkins
Q
Assistant Commissioner Hewitt: The fact that it is a partnership is really important as well.
Victoria Atkins
Q
Chief Constable Harrington: We did ask for public nuisance to be made statutory. A Law Commission report from 2015 clearly set out more broadly some of the benefits of doing that. The report refers to:
“serious distress, annoyance, inconvenience or loss of amenity; or is put at risk of suffering any of these things”.
The measure would be for more unusual kinds of protest activity that are not a march. Historically, people have hung off gantries of cranes, where there is serious inconvenience and loss of amenity.
Importantly, making it statutory establishes two things. First, the rules are very clear to those who have to use and understand the legislation. The common law is good, but it is steeped in decided cases and judgments that are often difficult to extract for non-lawyers. It allows Parliament to be clear about what the phrases mean, and to give guidance to policing and the public on what is intended. From a policing perspective, where we have intelligence or information, it allows us to act in advance to prevent some of those issues, where proportionate and necessary. That is the difference that it makes. We are working from the Law Commission report in 2015, which states a number of benefits. We see those as very important for those reasons.
Victoria Atkins
Q
Chief Constable Harrington: Yes, that is the Law Commission’s summary of what that should be. That is where that phrase appears. We welcome the clarity; making it part of statute allows for phrases such as that and others to be clearly defined for us and for the public.
Victoria Atkins
Q
Assistant Commissioner Hewitt: As I alluded to, it is critical to have a clear code of practice and framework to ensure the extraction to be proportionate and necessary for that investigation, and to be very clear about timelines, how that will be done and how the victim—or the complainant—will be treated throughout. This has been a very challenging area for us. Having that certainty and clarity of the guidelines will help to ensure that everybody understands the process. As I said, the ability for us to do that as quickly as we can, to deliver the evidence we need, is really important to maintain confidence, as you say, for people to come forward, and to maintain those complainants throughout the process, to reduce the attrition levels.
The Parliamentary Under-Secretary of State for the Home Department (Chris Philp)
Q
I have two brief questions. The first relates to the proposed increase in the penalty for assaulting an emergency worker from 12 months to two years. Does the police service welcome that change? Do they think that it will potentially deter people from attempting to assault officers in the discharge of their duties?
Assistant Commissioner Hewitt: Yes, we welcome that change very much. It is sad to report that we have seen a steady increase in assaults on emergency workers, primarily police officers. In the month up to 14 March this year, there was a 19% increase on the previous year in assaults on emergency workers, predominantly police officers.
We have done an enormous amount of work in the service; we did an officer and staff safety review process, which is working to improve the safety of our officers and staff. We have worked closely with the Crown Prosecution Service, which has been supportive in achieving charges where officers or staff are assaulted in the course of their duties. I think the increase in the sentence is positive, provided, of course, that those sentences are handed down when people are found guilty at court. We are supportive of that, because it demonstrates the seriousness and the importance of the fact that, although our officers and staff protect the public and do dangerous things, they should not expect routinely to be assaulted.
Chris Philp
We completely agree, thank you. My final question relates to out of court disposals. There are proposals in this Bill to simplify the number of out of court disposals from six to two. That has been trialled, I think, in three forces over the past few years—
The Chair
Order. Minister, I am very sorry to interrupt you, but we are out of time. We will have to save that question for another witness or another occasion. I am afraid that brings us to the end of the Committee’s allotted time to ask questions. I thank our witnesses on behalf of the Committee. Apologies, Minister, but we are on a pretty tight schedule.
Examination of Witnesses
Chief Superintendent Paul Griffiths and John Apter gave evidence.
The Chair
We now hear from Chief Superintendent Paul Griffiths, president of the Police Superintendents’ Association of England and Wales, and John Apter, chair of the Police Federation of England and Wales. We have until 11.25 am for this session. Can I ask you to introduce yourselves for the record, please, gentlemen?
Chief Superintendent Griffiths: Good morning. My name is Paul Griffiths, and I am president of the Police Superintendents’ Association. We represent more than 1,300 senior operational leaders across England and Wales, and other non-Home Office forces and Crown dependencies. Our main priorities are to influence national strategy and to protect our members if they are at risk or from a wellbeing perspective.
John Apter: Good morning. I am John Apter. I am the national chair of the Police Federation of England and Wales, and we represent 130,000 officers across England and Wales—across all 43 Home Office forces —from the rank of constable up to and including chief inspector.
The Chair
Thank you. I think we will try to follow the same pattern as before. I will try to get Back Benchers in first, and then I will allow about 10 minutes each for the Front Benchers.
Sarah Champion
Q
Can I ask of our witnesses the same question that I asked of the chiefs? In the police covenant, would it help and support your members if there were mandatory provision at the very beginning of training and all the way through to support you on a psychological level? I am very aware that you are the first people on many occasions to see some hugely traumatic situations. I am particularly thinking, on child abuse, of the amount of time that police officers have to invest in seeing some pretty horrific things. Should we put in the police covenant mandatory training and support for officers to deal with that trauma?
John Apter: I am happy to start. Thank you for the question. The police covenant is very close to my heart, and it is something that the Police Federation has campaigned for. Absolutely, it needs to be meaningful and tangible, and it needs to have a benefit for those it is there to support—not only officers, but staff, volunteers and retired colleagues. Mr Hewitt said earlier that much has been done about wellbeing in policing over the past few years, and I support that.
We have come an awful long way, but we have not gone far enough. One of the frustrations that my colleagues have is the inconsistency within forces. I have had this conversation with the College of Policing, and part of that is the lack of ability or willingness to mandate particular aspects of training and support. The covenant gives us a great opportunity to put in place mandated levels of psychological support and training from the start of somebody’s service to its conclusion and beyond.
Chief Superintendent Griffiths: I echo John’s view on this. There has been a rise in some of the challenges that officers face—even our members—in terms of psychological trauma, post-traumatic stress disorder and so on. In my role as president of the Police Superintendents’ Association, and as a trustee of the police charities that help and support in these issues, I have seen a rise in some of the challenges that officers face—not only those on the frontline, but my members who are senior operational leaders.
The service has come a long way with the frontline review, the officer safety review and a rise in our focus on wellbeing as a consequence of some of the challenges we have faced over the past decade. Do we need anything additional in the legislation in respect of that? There is a need for consistency across occupational health standards, but I think that could be achieved through the programme management rather than through legislation. There is a real focus in the service now, through Oscar Kilo and wellbeing, the NPCC, and staff associations in this area, and we are working closely together, so there is a golden opportunity with the police covenant to best serve and support officers and staff across the whole country.
Sarah Champion
Q
Chief Superintendent Griffiths: It is hugely important for us to be victim-orientated in our policing services. We have really focused, over the last 10 to 15 years, on vulnerability issues and the significant vulnerability areas of policing, through the College of Policing and the NPCC drive, and we have identified victims, both online and in the physical space. That is a clear focus for us as a service: how best to serve victims.
In many of the initial contacts with victims, we provide a very good service and there is very good feedback, but over time, with the pressures that we are under, that sort of connectivity, and the confidence and trust that victims have in policing, can get strained because of the lack of contact. That is not to say that things are not going on, but we have to work within a system—particularly through the criminal justice system, which is also under strain—where we have to work with victims as best as possible, to deliver the best possible service.
In terms of our service delivery to victims, not only are our tact and diplomacy important in the way we deal with them, at the incidents or wherever they report matters to us—whether current or historic—but there is almost a path by which we have to keep connected to those individuals to provide them with the best possible service. I think that is key for us: that connectivity, drive and support through all the criminal justice processes.
Sarah Champion
Q
Chief Superintendent Griffiths: We have the increase with the additional 20,000 officers who are coming in. It is my hope and expectation that we can actively deploy them to support victims, along with the other challenges and demands that we have. Do we ever have enough police officers? No. There are always things that we want to do, and we have the same ambition as society: to do the very best we can and do as much as we can. In that sense, we never have enough, but in terms of our ability to deal with some of the demand, the increase in resources is very welcome, and hopefully, we will be able to provide a better service to the whole public, as much as our focus around victims.
Sarah Champion
Q
John Apter: I completely echo and support Paul’s comments—he and I work very closely together on this. My colleagues want to do the best they can for victims of crime. What I would add to what Paul said is, “Let us not forget the victims within the service.” You heard from Mr Hewitt that assaults on officers, staffers and other emergency workers have increased by 19% during the pandemic—some horrific levels of attacks—and very often, my colleagues say that they feel they are treated as a second-class victim.
I think we have done enormous things to improve that over the years. A project called Operation Hampshire, of which we are particularly proud and which is being led by the Met, is improving the quality of service that victims within the service get. If I were to add to my ever-increasing wish list on the legislation, I would say that yes, the victims in the public must get the best service possible, but I want to see that same level of service—not better, but the same—extended to my colleagues and members of police staff, because all too often, they feel that that is not the case.
Mr Goodwill
Q
John Apter: This is a longstanding problem for policing and actually for all the emergency services. What we have seen far too often was highlighted in a case in the Hampshire constabulary, when a traffic officer—a roads policing officer, who was fully trained—was engaged in the pursuit of someone who had stolen a vehicle after quite a nasty burglary. It was a textbook pursuit; nobody was injured and we caught the baddies at the end of the pursuit. However, that officer and his crewmate were prosecuted for dangerous driving and they ended up in Crown court. The reason is that the law, as it is currently, does not recognise the training that the officer has received or the purpose to which the vehicle is being put. That puts my colleagues in a very vulnerable position.
So we have been campaigning for many years to try to redress the balance. I want to say on the record that this is not about the Police Federation saying that colleagues can drive as they wish without any fear of scrutiny; some people may have to face prosecution or inquiry. But far too many of my colleagues are prosecuted for simply doing what they have been trained to do.
All that we are seeking is for the training and the purpose of the journey to be recognised in law, because I think the public watching this would be astounded if they were to see a police vehicle engaged in a pursuit or an emergency response and that driver is then judged as any other member of the public. So, you take away the blue lights and the police markings, and that vehicle is treated as one being driven by any other member of the public. That is bizarre; that should not be allowed to happen.
We expect police officers and indeed other emergency drivers to get to a particular place as quickly and as safely as they can. The law fails to protect them at the moment. So, yes, we are seeking those changes. I am really pleased to see the Bill but there are some amendments that we want to see, and we are working closely with the shadow team and the Home Office to see if we can bring about those changes, to make sure that the legislation is fit for purpose and protects the officers who deserve to be protected.
Mr Goodwill
Q
I guess that with an ambulance and a fire engine, it is less nuanced, but with the police you would not necessarily know until you get to the scene whether life is at risk and whether it is necessary to speed there.
John Apter: Indeed, and the training has certainly evolved. The emergency response and the pursuit training for police drivers has evolved over the years, and the training certainly brings in the judgment—it is all about the information that the officer will receive.
I was a roads policing officer for many years. I was trained in response and that judgment is so important because very often at the end of a pursuit or an emergency drive, it is the driver who is responsible for their actions—nobody else. So, yes, you can only deal with the circumstances that you are presented with and you have to risk-assess in that moment. It is a fine balance.
However, I would say, and I genuinely believe, that we have the best driver training in policing in the world—I really do believe that. Our driving standards within policing, with the emergency driving, are exceptional. We just need that element of protection, but it is not to say—I have used this phrase before—that I condone a wacky races culture. That is not what I am supporting. It is about balance.
Mr Goodwill
Q
Chief Superintendent Griffiths: The only bit I would add is that there are circumstances where officers still have to exceed the speed limit as part of their duty. So it would be quite important for us to consider surveillance officers, those doing diplomatic escort and so on, where their driving may leave them in a position where they are under investigation, and it would be reasonable to have the same standards applied to them in the circumstances that could prevail.
Maria Eagle
Q
Chief Superintendent Griffiths: I know that you have had extensive evidence on this from Chief Constable Harrington as the NPCC lead. Our members play a significant role in protest, whether they are silver or gold commanders, depending on the size and scale of the protest. One emerging trend that has caused them great difficulty has been the change in tactics with some of the protest processes, such as protesters gluing themselves on to certain items involving vehicles—locking on. That change in their movement and the inconsistency have caused our members considerable challenges in terms of how best to interpret the law and apply it in a necessary and proportionate way, so there is support in terms of providing consistency for some of the challenges that they face as the operational public order commanders.
In terms of some of the definitions around “serious disruption” or “significant impact”, we will obviously wait for that to be clearly defined by Parliament, but the training mechanisms that are in place for our public order commanders and public order teams are really significant, are quite detailed and do allow them to really play through and work through some of the judgment calls they have to make, and some of the judgment calls may have to be made within seconds, so some of the changes and amendments do gain support from us.
Maria Eagle
Mr Apter, do you have anything to add from the federation’s point of view?
John Apter: These were changes that the Police Federation had not particularly called for, but what I do support, especially after listening to Chief Constable Harrington, is the view that we need to evolve the Public Order Act. Protests have evolved over the years. The way individuals react and, very often, confront police officers has dynamically changed. The vast majority of protests we do not hear about: they are unremarkable; they are peaceful. I do not think you will find many police officers, if any, who do not support the right of peaceful, lawful protest. But we have to evolve; the legislation must evolve to be dynamic, as the protesters are. Very often, we see on our television screens so-called peaceful protests, which are hijacked by those with an agenda to cause violence; we see this time and again. So while the Police Federation has not called for this particular part of the Bill, we are supportive of an evolution of the Public Order Act to make sure that it is fit for purpose but still allows lawful protest and gathering—bearing in mind the pressures on policing at the same time.
Maria Eagle
Q
Chief Superintendent Griffiths: I think the relationship between the public and the police has never been more tested than it has been in the last 18 months. Some of the work and effort that has gone into public relations at a time when we have had to police—some of the laws that have been put in place for the covid restrictions have really put a strain on the relationship, in terms of how we balance peaceful protest with trying to maintain the health regulations that are in place. The relationship that we have with the public is fundamentally important to us, and some of the polls that have come out show that there is significant trust and confidence across the public in general. We recognise there is certain strain with certain communities, but in the main we do have public support. Knowing that that relationship is so strong and knowing about the use of the Human Rights Act in everything that we do in terms of policing should provide the public with the necessary reassurance that we police in an appropriate, lawful and necessary way, and we will continue to do so.
Maria Eagle
Q
Chief Superintendent Griffiths: One of the most important factors that has emerged over the last 18 months and that is a fundamental part of many of our police command issues—whether that is public order, investigations or firearms—is effective communication with the public, so that there is a clear understanding about what they can and cannot do, what we can and cannot do, and how that relationship evolves. We want to facilitate peaceful protest, because it is a fundamental part of our liberal democracy. That is golden to the public, and it is golden to policing as well, but how we balance the human rights of all the individuals, including the ones who are impacted by protest, is a really difficult and challenging balancing judgment that needs to be made by police commanders. From my perspective, a lot of this is about effective communication on what is lawful and what is not lawful. We need to make sure that liaison is in place where there are leaders in relation to the protest issues, so that we can plan in advance, facilitate it is as best as possible and continue as we have done in many veins, in terms of making sure to the best of our ability that people can protest and not be impacted either way.
Maria Eagle
Mr Apter, do you have anything to add from the federation’s point of view?
John Apter: Obviously, the relationship with the public is integral to our style of policing and for the communities, and it has been tested. Paul is right to say it has been tested to the limit in some places over the past 15-plus months. The overarching issue with the Bill, and on protest, is one for the NPCC and, as Paul says, for the commanders, but when relationships break down, it is my colleagues—my members—who feel the brunt of that out on the streets. Of course, when we are policing protests or any sort of activity where there is high emotion and where there will be an element, in some cases, who will be intent on violence no matter what we do, we have to react accordingly. But communication is key, accepting that some will not want to be communicated with; they will not want to hear the message. The relationship is so important—I cannot stress that enough. I agree with Paul: despite the challenges over the last year-plus, the relationship with the vast majority of the public is still very much intact and still very positive.
Maria Eagle
Q
John Apter: I think the problem that we found with the coronavirus legislation was that it was unprecedented. I remember when the legislation was brought in—it was unbelievable. It was almost like watching a film being made. I have been a police officer for more than 28 years, and I would never have dreamt that we would be policing in the way that we were asked to police. If that is how policing felt, you can only imagine how the public felt, and we had to evolve. There were multiple changes of legislation that were not always as clear as they could be, and I understand why. I understand why the legislation had to be rushed through, but that came with problems, because my colleagues did not always know what was fully expected of them but nevertheless did their best in the most trying of circumstances. With the Bill, Parliament can inspect and go through the processes in a timely way, so I hope on behalf of my members that whatever the Bill looks like at the end of the process, it will offer clarity and guidance, and that people will completely understand what is expected of them, both within policing and for the public. I have hopes, and Parliament will do what it does on scrutiny as the Bill goes through that process.
The Chair
Mr Griffiths, is there anything you want to add?
Chief Superintendent Griffiths: I was just going to add that when some of the health regulations were introduced at pace, at speed and at scale, there were moments when there was a lack of consistency across the country, but that was gripped by the police service with the four Es approach. The reality is that applying consistency through this legislation will aid public order policing across the whole country. As we move forward and develop, in line with the legislation, we will do what we always do, which is to increase our communication, and review and adapt accordingly, to best facilitate peaceful protest.
Siobhan Baillie (Stroud) (Con)
Q
John Apter: I declare that I was a special constable before I was a regular officer. I am passionately supportive of our special constable colleagues. I have always thought it was an injustice that special constables could not, if they wished, be a member of the Police Federation, as the representative body of police officers.
When I was a special many years ago, over on the Isle of Wight, I was not allowed to drive police vehicles, generally I was not out on patrol on my own and I certainly was not allowed to be a specialist in any field, but I did feel part of a team and I contributed. The special constabulary, thankfully, has evolved considerably over that time. Special constables are response drivers. They stand shoulder to shoulder with my colleagues. They have exactly the same powers and they carry exactly the same risks.
I have always thought, even when I was a special, that it was wrong that they were not allowed in law to be members of the Police Federation. The Police Federation has been pushing for this measure for a number of years now, not always with the support that we have now to get it where it is in the Bill.
When the Bill goes through with special constables able to be members of the federation—fingers crossed they do—special constables will feel included. I speak to many special constables, who often feel that it is wrong that they are just not included or considered. That is going to change because of the Bill. They will have the same legal support and welfare support. They will be treated as equals alongside my colleagues. It is absolutely right and proper that special constables have a credible, loud voice alongside the representation of other colleagues. This measure is long overdue; I believe passionately in it and I am looking forward to it being in the legislation.
Chief Superintendent Griffiths: We really value the contribution of special constables and other volunteers through our networks across the country. In terms of their contribution to policing, what they do is quite significant. Some of the work that they did through the covid crisis continues to amaze us. It is a valuable contribution. They epitomise the relationship between the public and the police.
I have always had a close working relationship with ASCO, the representative body—the Association of Special Constabulary Officers. This legislation is an enabling opportunity for special constables. It is right and proper that they get protection and support. I have raised issues about funding and true representation, but the legislation has support in terms of its enabling role. Those other reservations about best protecting the rights and so on of special constables are true and dear.
Siobhan Baillie
Q
John Apter: I am really pleased to see these measures in the Bill. The violence that my colleagues face is unprecedented. It increases year on year. As Mr Hewitt said earlier, we have seen a 19% increase in assaults on emergency workers during the pandemic—predominantly police officers. The level of violence has increased also. I have been a strong campaigner, and it is not only about a suitable deterrent in the courts. It is also about better training, better equipment, better support, welfare support, and treating police officers and police staff who are victims of an assault as a victim should be treated, which has not always been the case.
I have only one issue with the legislation. There must be a deterrent, but the increase in sentencing will mean nothing unless the courts actually use their powers. On the sentencing guidelines and what we have seen in recent years, I and my colleagues who are victims would say that perverse sentences have been handed down to people who have been extremely violent and inflicted nasty injuries on police officers or police staff, and they have walked away from court. I completely appreciate that it is case by case and the sentencing guidelines need to be followed. In the cases that I have examined, the sentencing guidelines have been adhered to, which tells me that the sentencing guidelines, certainly for assaults on my colleagues, are not fit for purpose. I absolutely support the increase in sentences, but we have to have a real fundamental review and a sensible conversation about sentencing guidelines as well. That is something that I would like to see pursued.
Chief Superintendent Griffiths: Naturally, because of the role and responsibilities of our members, thankfully, in one respect, we do not encounter direct risk in that sense, but I regularly get feedback from our members about the risks to the people that they lead, and it echoes John’s point around the rise in assaults on police officers and other emergency services. We have seen a 19% increase in the March period compared with last year. We are very grateful to Parliament for considering the increase in the sentence for assaulting emergency workers, but we are under no illusion that this is only one part of the jigsaw. We need to work with not only other criminal justice agencies to best represent, show and demonstrate the impact of this across society, but internally, in terms of our kit, equipment and training and also our development around tactical communication. We need to strengthen that ability to defuse situations by word rather than force. So there are many aspects to this, but we fully support Parliament’s consideration of extending the sentencing available.
The Chair
We will go to Mr Dorans. This had best be the last question before I go to the Front Benches.
Allan Dorans
Q
John Apter: That is a really important question. If you go back 10 years or so, my colleagues would say very little. Some forces were better than others, and that is chief constable-led. If a chief constable has emotional intelligence and those values about how people really matter, that trickles through the organisation, but that has not always been felt. There has been a sad lack of consistency when people are in specialist posts that expose them to trauma. I can give you a lived experience. For many years I was a family liaison officer dealing with trauma every single day, knocking on far too many doors and changing people’s lives, and not for the better. That was many years ago, about 10 years ago, but my force at the time, Hampshire Constabulary, was very innovative and gave us annual check-ups—welfare and psychological check-ups. We had welfare officers in the force. We had a lot of support, but then with austerity, unfortunately, some of those measures were removed and the force was a poorer place for it. That was typical across policing.
We have moved forward in such a positive way. I am often criticised by my colleagues because I talk up the good work going on—whether it is Oscar Kilo, the national police wellbeing service; the Coventry police, which are doing really good work in this area; or the Police Federation, where we have invested heavily on a welfare support programme for our colleagues—but it is not always felt by all our members. Getting that message out to people about what is available and how to access it is a postcode lottery across policing. We need that consistency.
We need occupational health to be benchmarked to a certain standard. I know we are going to have a chief medical officer—hopefully for policing—which I hope will bring that consistency. That is where the covenant can have some good legislative teeth to say to forces: “This is not a nice to have”. We can’t talk all day about looking after our people and say: “Put a post-script about wellbeing and the job is done”. It is much more than that.
That is not to say that is the norm. I don’t believe it is now, we have come a long way, but the covenant must show its teeth. It must be brave and make sure that that consistency is across all policing to support my colleagues, certainly with their mental health. We are seeing a crisis in mental health in policing that we have never seen before. It is a real significant concern: a continuous exposure to trauma. Officers are being exposed to levels of trauma that are unprecedented—more than people have seen in the military. This is based on evidence from the charity, Police Care. Something has to be done. Things are happening, but the covenant is a great opportunity to pull that all together.
The Chair
Chief Superintendent.
Chief Superintendent Griffiths: Picking up on mental health and trauma impacts across the police service, we are also starting to see police charities supporting these areas. There has been a 36% increase in inquiries to the police charities compared with the previous year, the vast majority of which are mental health concerns. There is clear evidence of the impact of trauma on police officers and staff. We recognise that everybody will experience some trauma in their life, but the exposure for police officers is quite significant.
We then have to look at what is the best thing that we can do. There is a whole array of things that we can do: providing appropriate space for debrief, increasing communication, and occupational health support. There is a whole catalogue of things, but I would class those as probably falling under what I would describe as the programme management, rather than any legislative concerns.
There are two matters I would like to raise on the police covenant. The first is the important role of independence within the processes, so that we get an independent view. Our employment rights are restricted—naturally so, we would not contest them, because of the nature of our role and responsibility in society—but measures that can be put into place to provide independent support, guidance and oversight are really important, so I stress the importance of independence in the system.
I would also like to raise the issue of mental health concerns and seeking the police covenant as a way through helping and supporting. Unlike the Police Federation, the Superintendents’ Association goes beyond the 43 Home Office forces. We support other police forces, including British Transport Police and Civil Nuclear Constabulary, which at the moment are not directly covered by this legislation. I would like to emphasise the importance of the whole police family and make a plea to consider as part of the legislation those wider non-Home Office forces that play an integral part in UK policing.
Sarah Jones
Q
You have just made exactly the point that I was going to ask you about, on the importance of the police family and the wider family as part of the police covenant. Can I push you both a bit on the notion of independence from the Government when we are looking at the covenant? What could that look like? Would there be a benefit of some oversight from policing bodies, perhaps chaired independently, on the covenant report that is produced by the Home Secretary? Would you both welcome that?
Chief Superintendent Griffiths: It has always been my perception that a police covenant is almost the sector asking the Government for additional support or assistance, or to rule out any adverse impact on police officers, and for the Government to play their role across all other public agencies to try to level the ground and make sure everything is fair and supportive for policing.
The NPCC has employer responsibilities, which are sometimes in statute and are sometimes just its moral code for how to look after staff, so the way it is constituted in terms of how this flows is really important. My fear is that it would be left in a situation where the Government would direct the NPCC on how to support its own police officers, staff and volunteers. It is incumbent on Parliament to consider how best to get some level of independence, in terms of the oversight, and echo the responsibly to work across Government in terms of supporting the police covenant and all officers and staff.
John Apter: I want to touch on something that Paul said to a previous question. It is important that the Police Federation’s views are noted. This is about who the covenant actually benefits. Paul is right that we represent the Home Office forces, which are the big chunk of who the covenant legally covers, but we work incredibly closely with the non-Home Office forces, Police Scotland, the Scottish Police Federation and the Police Service of Northern Ireland. It is really important that we are all treated equally within policing. We do not want the benefits that the covenant hopefully brings to be diluted in any way for any part of policing. I completely support and echo what Paul says.
On the independence—absolutely. When we were pulling together our concept of the covenant—obviously we want it to be very far reaching, but we accept that we have to start somewhere—one of the things that I was insistent on was that it must be enshrined in law; it must mean something. It is a positive step for the Home Secretary of the day to report to Parliament on a legal framework. It is right that the Home Secretary of the day has that responsibility.
When we talk about oversight, I do not want the covenant to become wrapped up in bureaucracy and red tape. If it is, nothing will be achieved and nothing will get done. Within policing, we have some strong views about the need for it to be independent. That is not to say that the Home Secretary, the policing Minister and the Home Office have not been incredibly supportive. They have, and we could not have got this far without that support, but in order to make the covenant meaningful for our members, retired colleagues and volunteers, I think that level of independence on the oversight programme, the oversight board and the delivery board, which would then lead in to the Government, is really important. We fed back those views collectively as policing. It is not just the federation calling for this; collectively, we all believe very strongly in it.
Sarah Jones
Q
Can I ask Paul about pre-charge bail? What are your thoughts about breach of bail, which we have talked about previously? We are finding our way through that with this piece of legislation. How do you think that would work in an ideal world?
Chief Superintendent Griffiths: I should probably start by saying that we did voice some significant concerns in 2016 about some of the changes that were coming in and highlighted this at the time as a joint letter between the Police Federation, the Police Superintendents’ Association and the National Police Chiefs’ Council. We worked with the changes that Parliament instructed, and we are grateful for the recent amendments that may come through the Bill in terms of timeliness and some of the issues that have been challenging us over the last four years.
We are supportive of the vast majority of it. The one area where had some concern was on the breach of police bail, where bail conditions are imposed and then suspects continue to breach those bails. Of course, those bail conditions would be there to protect victims or even the wider public. It could be extremely useful to us for that to be an offence in its own right. I note that there is an introduction to prevent the start of the custody clock, which was another risk that we thought may come from somebody who would consistently breach their bail, risking an impact on the investigation custody time limits for other aspects for which they were under investigation. The Bill suggests that three hours is sufficient to deal with that breach of bail, and that seems appropriate, but it could be beneficial to the police service for that to be an offence in its own right in terms of processing individuals for such breaches.
Sarah Jones
That is really helpful; thank you. Shall I go over to Alex? I am aware of the time.
Alex Cunningham (Stockton North) (Lab)
Q
Chief Superintendent Griffiths: We have not been called to provide any advice or consultation on that. Could I get back to you in writing on that one? I would probably have to do more research.
The Chair
Do you have anything to add, Mr Apter?
John Apter: I am afraid I will have to give the same answer.
Victoria Atkins
Q
John Apter: I think we are pushing on an open door. Policing has changed significantly over the past decade or so, and it is the same with chief constables, who may previously have been reluctant to get certain wellbeing initiatives into place. There is wholesale agreement that the covenant will be a positive thing for policing.
The issue we have at the moment is that although we know the principles of the covenant, we do not really know what exactly will be in it. Chief constables know me very well, and I, on behalf of the organisation, will be holding them to account, but I genuinely think that it will be a partnership. Perhaps that is naive, but if, as expected, the legislation allows the covenant to be enshrined in law, I will be saying to chief constables very clearly, “This is not something you can cherry-pick. This is in legislation. This is to benefit our colleagues, staff, volunteers and so on. It is not a nice-to-have; it is an essential.” So they will be held to account, but in fairness I think it will be a productive partnership.
Victoria Atkins
Q
Chief Superintendent Griffiths: Most of them have probably worked their way through the hierarchy of public order command systems, from right at the frontline, following through to supervisory and management roles, but not necessarily in all cases. There is a detailed training command course for public order leads, which embodies everything that you would expect: to understand the tactics necessary when utilising public order, seeking the appropriate advice and guidance, understanding the law and the community, and all the different aspects of decision making that are so important to understand how best to corral a crowd or deal with a peaceful protest.
They will learn how to deal with everything from small, minor protests with just some shouting, to some of the challenges that, sadly, we have seen in the past 12 months, where they have faced attacks by missiles, etc. The training is detailed. I have absolute confidence in some of the public order commanders. We have to understand that they are called to make really difficult judgment calls, balancing human rights of individuals and the recognition of their own staff and the public. They make difficult decisions in a short space of time. It is a credit to them as individuals and to the training processes that allow them to do that.
Chris Philp
Q
Chief Superintendent Griffiths: You are right to clarify that. Unfortunately, we have not been consulted on that particular aspect. If I can provide written evidence, we will explore a response and get back to you.
Chris Philp
Q
John Apter: Absolutely, the risk of a custodial sentence would be a meaningful deterrent, as well as everything else. As I said, it is about the training and equipment that officers and staff have. But I go back to my earlier point: the increase in sentencing will mean nothing if the sentencing guidelines do not allow the courts to use those powers effectively. Far too often, my colleagues feel that the wider criminal justice system lets them down. We need to address that, as well as increase sentences. Yes, I believe that it would be a deterrent.
Chief Superintendent Griffiths: It is very much welcome and supported. There is a hope that it will be a deterrent. We recognise that any sort of assault on emergency workers has a complex and dynamic number of factors that may cause that situation to arise. We must do everything in our power to eliminate or minimise every aspect of those factors. Hopefully, it will have a deterrent effect, and will send a very strong message from Parliament to emergency workers to say, “You are valued for what you do. We support you, and you should not have that sort of risk when trying to carry out your duties.” We will review the situation over time, to see what the deterrent effect is, but we are grateful for the support that Parliament proposes.
Chris Philp
Thank you. It may be worth you engaging with the Sentencing Council once the legislation passes, to ensure the sentencing guidelines reflect the seriousness of the offence, and that the sentences in practice reflect Parliament’s intention.
The Chair
Now is a good time to draw this session to a close. I thank the witnesses for their evidence this morning.
Police, Crime, Sentencing and Courts Bill (Second sitting)
Tuesday 18th May 2021
(2 years, 11 months ago)
Public Bill CommitteesRead Full debate Police, Crime, Sentencing and Courts Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 18 May 2021 - (18 May 2021)
The Chair
Q
Phil Bowen: Hello. My name is Phil Bowen and I am the director of the Centre for Justice Innovation. I would like to make the Committee aware that from July 2020 to March 2021 my organisation had a contract with the Ministry of Justice that enabled me to provide policy advice and challenge to Ministers and civil servants on the community supervision aspects of the sentencing White Paper and the Bill.
Adrian Crossley: Good afternoon. My name is Adrian Crossley and I lead the criminal justice unit and the addiction unit at the Centre for Social Justice. The CSJ is a think-tank that advocates social policy aimed at tackling the root causes of poverty in the UK.
Ian Levy (Blyth Valley) (Con)
Q
Phil Bowen: Of course. The Centre for Justice Innovation has long been a supporter of problem-solving courts. At their simplest, they bring together specialist supervision and intervention teams with the powers and authority of a court to review progress regularly against a sentencing plan. They generally operate out of existing courthouses and are built from existing resources. We already do work on and support about 11 courts across the UK that use problem solving to manage specific caseloads, including three in Northern Ireland, sponsored by the Department of Justice in Northern Ireland, and four in Scotland. That is in addition to the 14 family, drug and alcohol courts already in existence in England in the public family law system.
As you know from the Bill, the Government propose to pilot three separate and distinct models of problem-solving courts in England and Wales in the criminal court system: a substance misuse court model; a model to tackle domestic abuse; and a model to help vulnerable women avoid short-term custody. We are very supportive of the move, for which we have been calling for a long time. We believe that the evidence base on all three of those models is robust enough that the piloting of them in England and Wales would be useful as a first step before thinking about their further roll-out across the system. We think there is a real chance to reduce the use of unnecessary custody and tackle reoffending, particularly in the substance misuse and vulnerable women models and, in terms of the model to tackle domestic abuse, to really hold perpetrators to account and give victims a sense of safety and involve them in the ongoing supervision of those perpetrators.
Adrian Crossley: Thank you; I am grateful. I am very well aware of the work that Phil Bowen is doing. CSJ also endorses the use of problem-solving courts. They have the potential to be enormously beneficial to defendants sometimes facing serious matters across the UK.
In terms of the scope of the proposed pilots, I think that the chosen three categories—domestic abuse, substance abuse and vulnerable women facing prison sentences—are wise choices. What is best about a problem-solving court is that it draws from real specialist knowledge and experience that can really look behind a problem, understand it and provide practical solutions, so these issues are worth tackling. One point I would note as a matter of caution is that problem-solving courts at their best are fantastic, but they do pose dangers. I am pleased to see that we are starting with a relatively small pilot because it is important to get right the things that sometimes appear to be small. For example, listing cases for problem courts to ensure that they are before the same panel that can continually look at a case and review it, and understand that the team that they are working with and the person in front of them are important.
In our jurisdiction, we have sometimes had difficulty with listing in front of lay magistrates—problems that they do not necessarily experience to the same degree overseas in the US. So there are examples of things that need to be done well and right. I am pleased to see that those three categories have been chosen, because they are worth tackling, and I am pleased to see that the initial pilots are small enough to allow proper analysis and reform as we go along.
Bambos Charalambous (Enfield, Southgate) (Lab)
Q
The Chair
Adrian, would you like to go first?
Adrian Crossley: Yes. Thank you. I can entirely see that that concern is absolutely valid. We know from the CSTR—community sentence treatment requirements—model that substance abuse and mental health are both dealt with alongside each other, separately but often in the same hearings. It is an absolutely valid concern. I would also say that as well as substance abuse, there is now a growing need to consider the impact of gambling addiction. That issue is becoming increasingly prevalent in our country. Sadly, over the last 15 years, there has been an explosion in this sort of addiction, and it draws into crime the people who would not necessarily always fall into it.
What I would say—I have said it prior to this—is that problem-solving courts are good if they are done well, and I would hope that we do not get too prescriptive about what kind of person is in front of us and categorise them as a domestic abuse or a substance abuse case. Often people have complex and chaotic lives with lots of different things going on. I would hope that a problem-solving court done well might have a category that they call a substance-abuse court, but be equipped to deal with something such as mental health as well.
I practised as a barrister for some time and I know that often clients, like I had before me, have issues behind what is apparent from the offence, which could go unseen unless probed. I spoke to a colleague earlier today and he explained to me that there are some 300,000 people in the UK right now who are indebted to a loan shark. You will never see the chaos behind someone’s life from a simple shoplifting offence. You need to be able to explore that. If problem-solving courts and pre-sentence reports are done well, in line with the new probation reforms, this should become clear and we should be able to help people with multiple needs before the courts.
Phil Bowen: To add to that, I understand that the current plans in the Ministry of Justice are to pilot those three types of models, but as all the models are drawn up, there is an awareness that people who would be eligible for substance misuse court are likely to have co-occurring mental health needs, and those would need to be addressed at the same time. The substance misuse court that currently operates in Belfast and the drugs court that currently operates in Glasgow recognise the complexity of people’s substance misuse and other needs, and seek to address them.
It is pretty clear, from what I have seen, in existing practice and what the Ministry of Justice is beginning to develop, that there is a broad awareness that it may be a trigger for intervention that vulnerable women are identified as at risk of custody, but there will be a recognition and services targeted at a range of their complex needs, one of which almost invariably will be mental health. That is very much at the heart of what the Ministry proposes, and we support that.
Bambos Charalambous
Q
Adrian Crossley: We welcome the addition of the new statutory duty clause for courts that requires them to consider the welfare and best interests of the child. We think that is a positive part of the Bill. It would be nice if it could go further. Seeing custody as something to keep people safe is not correct, but there is broad support, as far as I can tell, from people with an interest in youth justice for this change. I know some of my colleagues would like it to go further.
Adrian Crossley: I can only add that we have seen a substantial reduction in custodial sentences for youths over the last 10 years or so. We welcome efforts to encourage rehabilitation and use it absolutely as a last resort. I think it goes far enough.
Mr Robert Goodwill (Scarborough and Whitby) (Con)
Q
Currently, as I understand, clause 45 would extend those definitions and include anyone aged over 18 who supervises or works with 16 and 17-year-olds. I know from personal experience with my own family that, often, older children at a dance school, perhaps over 18, often chip in to help with tuition and coaching. In some cases, they may even be in the same class at school as a 17-year-old who is part of that dance academy. I wonder whether there could be difficulties in situations such as that. Indeed, we also remove the right to give consent from 16 and 17-year-olds who may find that infringes on their ability to choose who to have a relationship with. Perhaps Mr Crossly might be most appropriate to respond first.
Adrian Crossley: The first point to know is that affording some protection in this area is absolutely imperative. We have seen abuse of trust that has led to not just inappropriate relationships—that is not what we are dealing with. We are dealing with sometimes highly vulnerable children who are sexually abused. In order to make an inroad into dealing with that sort of offending, we need to get to the crux of how it comes about. All too often, positions of trust can allow a perpetrator to hide in plain sight—not only that, they make the person who is abused feel partially responsible and incapable of speaking out. The perpetrator recruits the trust of the people nearest and dearest, including their parents.
While I appreciate that there may be some difficulties in the administration of this issue, that will not unnecessarily impinge upon the movement of people and their enjoyment of their leisure, I do not put that value at naught—absolutely not. I do see, at the other end of this, we have a very real risk, which has existed pervasively throughout our society for a long time. I think the extension into the position-of-trust model starts to move away from identifying it as in small pockets of society and to see it as the modus operandi of some perpetrators of crime. I think its broadness is important and the clause as it stands is sufficient.
Mr Goodwill
Q
Adrian Crossley: So much of this, as with any law, is about how it is actually executed on the ground and how the decision-making processes operate. At this stage, when you are looking at the written form of the clause, I can see that there is potential there for consent. The administration of a clause like this relies on good practice, and I would say that these things can be circumvented. You have the same sort of problem with something as controversial as stop and search, where you can see that there may be a very good reason for it but, done badly, it can be incredibly corrosive to society; it can stop people moving around freely. But that does not mean that the legislation itself is wrong. It will come down to how we administer this, and a continual review of that is necessary. But I do accept this: it is not possible for me to say that there will not be friction and difficulty as this clause is administered.
Hywel Williams (Arfon) (PC)
Q
Phil Bowen: One example to offer the Committee is from the public family law system. The Welsh Government and the courts system have just agreed to create a new family drug and alcohol court. The issue is similar, in that it requires a partnership between people in the Welsh Government, local authorities and the courts service.
I certainly know that, as part of the Ministry of Justice’s scoping of where the pilot sites might be, it is very keen to speak with Mayors, police and crime commissioners, the Welsh Government and others about where the most suitable sites are. So I do not think it is incompatible. It certainly will require partnerships and collaboration. That is what exists already in existing problem-solving courts; as I say, it already is going to be a feature of the new family drug and alcohol court in south Wales. So I do not think this is insurmountable. I certainly know there is a strong interest in the Ministry to have discussions with the Welsh Government about whether they think it is appropriate to have one of the problem-solving court pilots in Wales. I think there is still work to be done there, but wherever they exist, they require partnerships between different agencies and both national actors and local actors.
Hywel Williams
Q
Adrian Crossley: Sentencing inflation is a very real problem. For decades now, we have seen incremental rises in sentencing, right across the board. There is a theory that the more we increase the more serious offences tariffs, there is a trickle-down effect; essentially, it pulls up sentencing for lesser offences. We see, for example, sentences for drug offences increase over a 10-year period by about 30%, and for theft by around 22% over the same period. This has a very real effect on people’s lives. It is not just a question of a few extra years—that would be serious enough as it is—it can often be the difference between somebody having a sentence suspended and actually being taken away and put into a cell, so it is a very real problem.
Some regard this as a Bill of two halves with what some regard as very punitive sentencing on the one hand and some very progressive, challenging and, I would say, quite brave proposals for community reform and rehabilitation on the other. A great deal of subjectivity is involved in deciding how much time somebody should serve for very serious offences. I do not see anything necessarily wrong with reviewing how this society deals with very serious offending. If there is an increase in tariff, which we as a liberal democracy think is right, that is fine, but there are real dangers with that. My view is that we are likely to see a Prison Service that is wholly incapable of dealing with the stress of an extra 20,000 people—what is forecast for the next few years—inundated with new offenders who are likely to have very little access to meaningful reform and rehabilitation. That is deeply concerning to me.
If as a society we feel that that more serious offending requires a higher tariff, we also have to address the numbers in prison. The most important thing we need to do is to look at whether people who are currently being sent to prison, perhaps at the lower and medium end of offending, really need to go there. The Centre for Social Justice published a paper last year called “Sentencing in the Dock”. Our position was very clear that modern technology, with GPS tagging and alcohol tagging—I could list a number of requirements that are already rightly in the Bill—could provide a sufficient deprivation of liberty to act as a real punishment for serious offending or medium to low-level offending.
We need to be much bolder about the amount of people we keep out of prison and deal with in the community. We can see clearly that in treating alcohol, drug addiction, mental health problems, literacy and numeracy, you are far more likely to have an effect on those key drivers of crime if you deal with people in the community than if you put them in prison. We could be much bolder in dealing with community disposals. There is a real risk of sentencing inflation here, of a prison population growing out of control and, in my view, of brutalising people who might otherwise be able to reform.
Phil Bowen: I agree with a lot of that. The only thing I would add is that proposals are set out in the White Paper that are being taken forward by the Ministry that seek to strengthen the community justice parts of the system. They include things such as investing in early intervention and prevention, including the improvements to the out-of-court disposals regime, which I think is vital for young people and people from black, Asian and minority ethnic communities in particular.
The nationalisation of the probation service represents a real opportunity to strengthen community sentences and win public confidence in community sentences back from the courts. I also think a strong interest and investment are needed in high-quality treatment for offenders and the more dynamic use of electronic monitoring. While I agree with a lot of what Adrian has just said that some proposals in the Bill seek to increase the use of prison, that takes away money from smarter investments in community justice. I would also like to emphasise that there are things in the Bill that we support, because we think they take forward that idea of smarter community justice.
Sarah Champion (Rotherham) (Lab)
Q
Adrian Crossley: My view is that definitions usually start their life imperfect and develop with a great deal of expertise from public and experts who understand this issue perhaps better than I ever could. Notwithstanding that, and understanding that there may be a starting point of imperfection, they are useful. In my view, definitions of important criminal principles help real decision makers on the ground make practical decisions that are fair and consistent. Notwithstanding the fact that I see problems with that—we have seen so many different definitions of domestic abuse, which started its life as domestic violence, that it is clear these things are fluid and can develop—I think they have a practical application.
Phil Bowen: I have nothing to add to that. I agree with that.
Sarah Champion
Q
Phil Bowen: I think presumption to all of them is very useful. The other thing that I think is worth underlining is that part of the model of the specialist domestic abuse courts, which ought to operate in every magistrates court but at the moment do not, is that independent domestic violence advocates make sure the victims are asked about special measures and those special measures are put in place. I think there is a delivery and implementation question, as well as a legislative question, about whether the resources are there to help victims of domestic abuse and ensure those special measures are put in. Yes, I think a presumption would be useful, but I think it also requires attention to implementation and delivery issues. Special measures should already be used in specialist domestic abuse courts across our magistrates court estate and, in many cases, domestic abuse victims are without access to those measures, for want of anyone who asked.
Sarah Champion
Q
Adrian Crossley: I endorse pretty much all of what Mr Bowen has just said. I will not repeat what he said, so forgive me, but I particularly want to emphasise the focus that was placed on the reality of actual implementation. I worked for some years as a prosecutor and in defence, and I can say that, very often, lack of special measures is not the result of an omission in thought or some massive procedural error. Sometimes the implementation of special measures and, certainly, the pragmatics of what happens in court are not there and the stress that that puts witnesses through is absolutely huge. Sometimes, we talk a lot about witnesses not turning up or defendants gaming the system, hoping that the stress of waiting for trial is so bad that the witness just will not turn up, but the chaos and confusion that is caused by a broken system that is fixed on the day can be hugely distressing to a witness. I think implementation is important.
That point is not where I was going to go, however. Just for balance, I should say that it is always right that the accused should be able to face their accuser and evidence should be tested properly. Nothing that I have seen that has been proposed, including video examination in chief and cross-examination before trial, gives me any concern that without the right implementation that could not be done well. We always have to have an eye on making sure that the accused has a fair trial. This is important; it is not a nicety. However, the measures I have seen proposed give me no real cause for concern about that. I think it makes a massive difference to the view of the complainant and, unfortunately, it would also make a massive difference to the view of some defendants, who may face the reality of the evidence against them earlier. It may encourage pleas that should have happened earlier.
Alex Cunningham (Stockton North) (Lab)
Q
Phil Bowen: Very quickly, I think the proposal in clause 100, which reduces judicial discretion about imposing minimum custodial sentences, is a regrettable step. I have seen no evidence to suggest that that discretion has been misused. I am not sure on what basis that clause was proposed, and we have been arguing for its removal from the Bill. I see a place for minimum custodial sentencing, but I tend to be against anything that fetters the discretion of judges.
Adrian Crossley: Statutory minimums can have a function when we want to give a standard approach to the severity with which society regards a certain offence. My view, though, is that over a decade or two, judicial discretion right across the board—not just in this clause—has been steadily eroded, and I do not find that particularly helpful in criminal justice. Judges are well equipped to make decisions about what is in front of them, and they are well advised. No guidelines can ever foresee the variety that life can bring you, and my view is that the more judicial discretion there is, the better our criminal justice system is likely to be.
Alex Cunningham
Q
Phil Bowen: In general, we support the move to the two-tier system. It is something that was called for by the National Police Chiefs’ Council, as you know, in 2016. Fifteen forces already operate such a simplified framework. The concerns we have are twofold. One is that in consultation events that we have already held with a number of police forces, they strongly suggested that they wanted to retain the flexibility to issue the community caution—the lower tier—without conditions. In the existing framework, they are able to issue a simple caution that does not involve conditions. Police forces want that flexibility, and the new framework proposed by the Government does not allow that in the lower tier.
The second issue, which speaks to previous comments about disproportionality, is that we would strongly argue that it should be possible to offer the community caution—the lower tier of the two tiers—to individuals who accept responsibility for their behaviour, rather than requiring a formal admission of guilt. This is an idea that was raised in the Lammy review and has subsequently been raised in the Sewell report. We think it would be better if that lower tier could be offered to people, who are required only to accept responsibility for their actions. As the Lammy review suggests, that may encourage the participation of people from groups who tend to have less trust in the police and the criminal justice system.
Adrian Crossley: Drawing from the 2014 audit, there are some learnings from the two-tier system, most notably the training of officers so that they can refer people to the intervention that is appropriate and useful, better inter-agency communication, and sufficient time for implementation. Once that is done, our view is that this is a great step forward. We are very enthusiastic about it. This is about intervening and offering help, not just having a meaningless warning. We have spoken to charities that have actively said that these sorts of interventions, which encourage somebody to engage with treatment, can really make a life-changing difference to people. It is unrealistic to expect them suddenly to go into full rehabilitation, but it can make an introduction and open up doors that sometimes people feel are just not open to them. We see that there is real strength in this approach. We have also heard a number of police forces suggest that it would be enormously helpful to them if community resolution remained on the books. Certainly, it is currently the most widely used disposal.
Alex Cunningham
Q
Adrian Crossley: No, not the simple caution. It is a community resolution. It is slightly different and more like a contract with the police force that they can enter into to take the matter further. That is enormously popular with the police right now. Just to be clear, our view is that the thrust of this two-tier system is that there is a condition attached to allow the disposal of tier one and tier two. We think that is a very positive thing.
Alex Cunningham
Q
Adrian Crossley: I think that risk is entirely possible; this is quite well documented. We have to look at ways to challenge that. Phil briefly touched on the “Chance to Change” pilots that are currently being operated, which look at this slightly lesser form of admission.
Our view is that we have to address the mischief here. If there is mistrust in this system, then there are two things that can be done. First, proper independently chaired scrutiny panels can look at the way these are run and the advice that they give to people when they enter the police station. I know that the Government have already suggested that that might be a way of dealing with this.
Above and beyond that is access to legal advice and to legal aid. We are seeing an attrition of people’s access to legal advice. My experience is that when people are properly advised about what is in front of them, when they understand that they are being treated fairly and decently, and when they understand the evidence against them, then they are in a position to make an informed choice.
If it is just a choice about, “Do you trust the police?” then I can entirely see how some communities would have reservations about that and even, when it comes to sentencing, well-founded reservations about pleading guilty. A system that is transparent and provides good training, a good understanding of what they are involved in and, clearly, good legal advice at an early stage, could combat that.
The Chair
I am afraid I have to strike a balance and I have to switch to the Minister, for his questions. I am sorry.
The Parliamentary Under-Secretary of State for the Home Department (Chris Philp)
Q
Adrian Crossley: So that I understand the question and I answer it properly, are you asking what merits we would need to see in order for there to be an expansion of minimum tariffs in sentencing? Is that what you mean?
Chris Philp
Or the risks. What are your views about the principles of the possibility?
Adrian Crossley: My own view is that judicial discretion should be king. I have not done any huge research into this, but in my view and from my practice, sentencing guidelines have become very prescriptive and they almost railroad judges into decisions. Judges always have parameters to work within, but what is before the court is often something that is necessarily unique. Minimum sentencing can shackle decision makers who are acutely aware of the facts in front of them.
The only benefit I see is in cases where there are overwhelming public interest concerns that mean that a minimum tariff would adequately address a specific mischief and would undo it. If I were to see that, I would regard that as a pro for minimum sentences. I would need to see an evidence base that that would achieve that.
Phil Bowen: I agree with what Adrian says. In general, a lot of the evidence from, for example, the United States on mandatory minimums is not encouraging, but I see an argument for Parliament identifying particular crimes of concern and putting those in place. We should be clear that the deterrent effect of that is likely to be pretty mixed. The evidence is pretty mixed about whether that kind of thing really does deter future crime, but I can see the public need for the Government to be seen to respond to public desires around particular signal crimes. That is why, although I do not reject them out of hand, I agree entirely with Adrian that judicial discretion is extraordinarily important because judges will know the facts of the case much better than the press or the public watching on.
Chris Philp
Q
Phil Bowen: I think the emphasis in the Bill and the White Paper on flexibility around the use of electronic monitoring is the strongest part of the proposals. What the Ministry seems to be doing, which I think is right, is to encourage probation officer discretion and the flexible use of electronic monitoring powers, both to control people where there is need for further control, and to loosen up things where they are doing well. Part of the problem with electronic monitoring to date has been far too rigid sets of curfews without the ability for probation officers to vary them while people are on community sentences. I certainly support that.
In terms of providing for longer periods of electronic monitoring, I can see cases where that may well be useful. The only note of caution that I would suggest to the Committee is that the evidence base suggests that for younger people—in particular, young adults who live at home and people assessed as low risk—longer periods of electronic location monitoring can have a backfire effect. In other words, it can lead to increases in reoffending. All that really means is that the Bill provides the powers that it does, and it is then the job of the probation service to use those powers as flexibly as possible and in line with the evidence.
Chris Philp
Thank you. I was going to ask about problem-solving courts, but I think that was covered adequately in earlier questions. I think Minister Atkins has some questions.
The Parliamentary Under-Secretary of State for the Home Department (Victoria Atkins)
Q
Adrian Crossley: This policy actually has its origins in the CSJ. We are obviously very supportive of the serious violence reduction order. Just for clarity, and so I can answer that more fully, this is a post-conviction order. We regard it as being part of the wider system. We do not regard it as a stand-alone solution to knife crime in our country.
We see a very significant increase, not just in possession of weapon offences, but of violent offences perpetrated with the use of a weapon. What is clear to us is that we need to do something about that which is robust enough to challenge the mindset of someone leaving their home with a weapon. We draw from the group violence intervention models piloted in Boston in the US under Operation Ceasefire, which create a sort of pull-push effect. We really want to deter people from being able to leave the home feeling that they are safe walking around with a weapon. They should know that they are much more likely to attract police attention if they are on these orders. At the same time, in the sentencing court, we would hope that the order would be able to include other, positive provisions—perhaps even a knife crime behaviour order. Real intervention, engaging young people and pulling them away from that sort of offending can also have a pull effect away from that kind of offence.
I should say that currently, as it is being piloted, it is only for adults. Our view is that knife possession is pervasive across a number of age groups: it is particularly concerning when young people are carrying knives. We would like to see this scheme really being rolled out, so that we can intervene early when people are younger, to see that we do everything we can to take knives off the street and keep people safer.
The Chair
As it is 2.45 pm, we had better call this session to an end. I thank the witnesses for the evidence they have given to the Committee.
Examination of Witnesses
Jonathan Hall QC and Matt Parr gave evidence.
The Chair
Q
Jonathan Hall QC: My name is Jonathan Hall QC. I am the Independent Reviewer of Terrorism Legislation and I carried out a review into the management of released terrorist offenders after the Fishmongers’ Hall attack, which is relevant to the evidence that I will give today.
Matt Parr: I am Matt Parr and actually I am not the Chief Inspector of Constabulary; that is Sir Tom Winsor. I am one of the Inspectors of Constabulary; I have been doing that job for almost five years. I think the particular reason that I have been asked to give evidence today is that I have just led a series of inspections, including around protests and the way police look after them; into the Sarah Everard vigil; and then this week into the way that the Police Service of Northern Ireland policed a high-profile republican funeral. So I have been doing quite a lot of work on protesting, and I have had some discussions with the Home Office about the legislative proposals.
Antony Higginbotham (Burnley) (Con)
Q
Matt Parr: Three aspects of that come to mind. First, the use of social media has clearly enabled the organisers of protests to be significantly more nimble. It means that some of the obligations to engage with the police beforehand can be circumvented, creating really quite significant problems for police commanders in the way they plan for protests.
That is the first aspect, which is reasonably obvious to anyone who has been on or near a protest, namely that there is huge potential for social media to be used—in a good way; I am not saying in a bad way. But its ability to galvanise and organise and inform people to join protests or indeed in the way they conduct them is wholly different to what the police had to contend with 20 years ago.
The second point is slightly more subtle. When we conducted the inspection into protesting, we found that more and more police forces are doing more and more policing of protests, for one reason or another, and they are also finding it ever more difficult to persuade their officers to train to be public order commanders, or indeed to make themselves available to do the lower levels of training, so that they can then help out on the protests.
One of the reasons cited for that is that police officers at protests—not in all cases; the temptation to generalise and to be unfair to all protesters is something that we have to resist here—sometimes get identified through social media. One reason that they are disincentivised from going on these protests and volunteering to train to do them is that they are nervous about being vilified on social media, having been identified beforehand. So that is having a chilling effect for police officers and in fact quite often damages their morale.
One of the things we said about the need to modestly reset the balance in the interests of protesters versus the public, and a remark made about decisions made by gold or silver commanders who are the senior police officers commanding the protest, is that they are often nervous about the backlash on social media of any decisions they take. One of the consequences is that there is perhaps a tendency to default to the balance being more in favour of the protester than otherwise. That was my second point.
My third point is that a cautionary tale came out of the inspection we did into the policing of the vigil following the tragic death of Sarah Everard, and the impact of what is frankly a single still photograph that was circulated very quickly and very widely on social media. That created a backlash, and we ended up with some people, and indeed some public bodies and some unions, calling for the resignation of the Met Commissioner. In that report, we said that the reaction was unwarranted. We all know that there is a danger that people get their news and form their opinions from social media. We trawled through hour after hour of police body-worn video of the same incident and came up with a very different view to what social media—completely under- standably—led people to have. I will start with those three points.
Antony Higginbotham
Q
Matt Parr: The Home Secretary asked us to look at five proposals at that stage in November, when she asked me to give an initial impression of five of the proposals going into the Bill. In the end, only four of them went in. We had some reservations, but in general we saw the four proposals—with some caveats, particularly around the fifth one that did not go in—as having the potential to enhance the effectiveness and efficiency of the policing response to protest. If you want to discuss the details of those, we can do that, but in answer to your general question about whether they would assist the police in getting the balance right in the age of social media, I would say probably yes.
Sarah Champion
Q
Jonathan Hall QC: No, I tried to be as comprehensive as I could when carrying out my review of the multi-agency public protection arrangements. I thought long and hard about the additional powers that might be needed, and I am pleased that they are contained in the Bill. I cannot think of anything else. From a detailed, legal perspective I would just say that there are a couple of points of detail about two of the powers, and maybe the Committee will want to question or press on whether further safeguards are needed. I did not draft the powers, of course, and I recommended that they be done generally and they have now been put into statutory language. Overall, I have nothing to add to what is here.
Sarah Champion
Q
Matt Parr: Shall I go first? I am afraid it will be a short answer. We are aware of the issue, and as you may know we do a 43-force inspection of all police forces on a rolling basis. We think that it is a bit early and that we need more time to reach an informed view on the issue, but we will look at it in our next round of inspections.
Jonathan Hall QC: I have a short point to add: I did look at one issue. There are special arrest powers in section 41 of the Terrorism Act 2000, and those powers differ from other arrest powers in that they allow for people to be held for up to 14 days. I did consider whether there should be the power to bail after arrest in section 41 in my first report, but for various practical and technical reasons I thought that was probably wrong. That is the only thinking I have done about that.
Sarah Jones (Croydon Central) (Lab)
Q
Jonathan Hall QC: I thought there were three key points. First, managing the terrorist risk from released offenders involves practitioners from agencies who are not always good at working together. For example, the probation service and MI5 do not have, historically, an easy way of working together.
Secondly, the likelihood of making really good decisions at the right time, which is what matters, would be increased if there was a shared understanding of risk. That involves greater data sharing, and not just secret data sharing—though that is important—but sharing data from all other sources. One of the good things about the Bill is that it resolves an uncertainty about when data can and cannot be shared. It also requires better understanding in all the agencies about what tools exist. Probation has a really fantastic, powerful tool—the ability to recall risky offenders to custody. That is probation’s power—it is not the police’s or MI5’s—and it is important for MI5 to understand that and to make sure that the person making that decision understood the risk. So a comprehensive understanding of each of those powers is important and, as you know, I recommended a couple of extra powers, which are in the Bill.
Thirdly, there is a particular difficulty in practice of managing people who had not been convicted of terrorism offences but who were of terrorist risk when released. Take, for example, someone who went to prison for a very violent offence and became radicalised in prison—they present a terrorist risk on release. It is quite difficult to get them into the structures that exist for managing such a terrorist risk, but the Bill is going to change that to make it easier—[Inaudible.]
Sarah Jones
You froze. You were saying, “to make it easier”.
Jonathan Hall QC: The Bill will make it easier for MAPPA—the management structures of risk—to apply to all terrorist risk offenders. That is not just people who were convicted of terrorism offences but people who are of terrorist risk when they come out of prison.
Sarah Jones
Q
Jonathan Hall QC: I have nothing to say in relation to the power of the police to arrest urgently where there is a breach of licence; that is a really sensible addition. There is a power in clause 159 to apply for a warrant to search the premises of a released offender, and I support that. The point of detail is that it would be possible to apply to a judge for a warrant that would allow you to enter on any number—potentially an infinite number—of occasions. If you think about released terrorist offenders on licence, their licences can last a very long time—for example, 10 or 15 years—so perhaps the Committee may want to think about whether it is appropriate to have a power that would authorise multiple entries into a person’s premises throughout 10 or 15 years. The power of multiple entry under warrant does exist when you are talking about a live operation, and the police find that quite useful. I am not quite sure whether it is justified in the context of this particular risk. That is just one small point of detail, more by way of a safeguard.
Secondly, I recommended and am pleased to see in the Bill a power to search the person of a released terrorist offender. For example, if someone is going to London for the first time, or if a released offender who is very dangerous is going to meet a probation officer for the first time, that would authorise the police to pat them down to make sure they are not carrying something. That is good not only as a deterrent, but as a reassurance. It is reassuring to have that ability, which exists in the context of offenders under civil measures called TPIMs—terrorism prevention and investigation measures.
The only small point is that in the Bill the purpose of searching is
“for purposes connected with protecting members of the public from a risk of terrorism”.
In other statutes, for example the Terrorism Prevention and Investigation Measures Act 2011, the power is to be used for
“ascertaining whether the individual is in possession of anything that could be used to threaten or harm any person.”
When I was thinking about this point, I had in mind patting someone down for a weapon or something of that nature, rather than a personal search to check generally whether they are complying with their licence conditions. Again, that is something that the Committee will probably want to consider—what precisely is the purpose of the search. It may be that the purpose of the search goes a bit wider than is necessary. Those are two relatively small points of detail.
Sarah Jones
Q
Jonathan Hall QC: No, I do not think there is anything in the Bill to address that. The only other bit of the Bill relevant to my area of business is the power to refer an individual who has become dangerous in prison to the Parole Board so that they cease to be someone who is automatically released and can only be released by order of the Parole Board. I think that is sensible. I do not know whether you know that I am doing a review of terrorism in prisons at the moment. The need to be agile and respond to the radicalisation that does sometimes happen in prison is important, so that is to be welcomed. I do not think—unless you can refer me to it—that there is anything that addresses the question of deradicalisation or desistance. I think the truth is that officials will say that it is an ongoing process. I am not saying it will not work with some people, but I would not put all my eggs in that particular basket.
Sarah Jones
Q
Matt Parr: I have got quite a lot of sympathy with what you say. We were very clear in what we said that any reset should be modest. We also said that, because of article 10 and article 11 rights, some degree of disruption is not just an inevitable by-product, it is sometimes the whole point of the exercise of protest, and on that basis, it has to be encouraged. Zero protest is certainly not the aim as we saw it; zero disruption was not the aim either—some degree of it is inevitable. It is just a question of where the balance lies.
I take your point. Some of the things in the Bill we were not asked to comment on. For example, imposing conditions on one-person protests—clause 60 in the Bill —we were not asked to comment on. Some of the specific areas such as access around Parliament—clause 57 and then clause 58 if Parliament moves—we were not asked to comment on, either. There are things that we did not really look at, and therefore I have not got a judge on what effect they might have and what the potential benefit might be.
Perhaps the most contentious would be the third of the proposals that we were asked to look at that widens the range of circumstances in which police can impose conditions on protests: static assemblies or processions. It could be either type. We said that at the moment there are four acid tests. In the disruption one, it was “serious disruption” to the life of the community. As I understand it, the proposal is that that is modified to “significant impact” and so on. Ultimately, these will have to be judged in the courts. It struck me that it clearly aims to set a lower bar. Personally, when I reviewed it, I did not think the bar was necessarily the problem. There is just as much of a problem with educating and training the police officers and making sure they understand how article 10 and 11 rights can be properly tempered. It was a question of training and understanding as much as it was of where the bar was for disruption.
Interestingly—again, I am probably simplifying it a bit too much—there is quite a stark difference between London, which obviously gets a disproportionately large number of protests, and elsewhere. Senior police officers outside London—again, I am generalising—tended to think they had sufficient powers, and senior police officers inside London tended to think that more would be useful. I think that is a reflection of it.
I think yes is the short answer to your question. I think there are dangers and, as ever, the bar for measuring what was significant or what was serious should be a high one. We all recognise that. It should not be done on the flimsiest of pretexts. Again, it would then be open to challenge, and I think police officers would only wish to use it when they were confident.
Alex Cunningham
Q
Jonathan Hall QC: Certainly most of those convicted of terrorism offences will have some sort of Parole Board referral anyway, so automatic release for people convicted of terrorism offences has virtually come to an end. I spoke—
Alex Cunningham
Sorry, can I stop you there? Can you explain the parole role in this, because my understanding was that it would not actually happen?
Jonathan Hall QC: Let us say I get a determinate sentence of eight years for robbery—no, let us say for fraud, a non-violent offence. I will be released automatically after four years. I understand the clause is intended to allow the Secretary of State to ask the Parole Board to look at me to see if I have become a dangerous offender while in prison. Let us imagine I have been radicalised and all the assessments are that I am a dangerous terrorist offender. The Secretary of State could refer that individual to the Parole Board to make a determination that they should now be treated like a violent or a sex offender. In other words, they will not be released automatically at four years, but would have to apply for parole. That is what I understand the clause does.
Alex Cunningham
Q
Jonathan Hall QC: Okay. I have to say that I have not looked at the detail. The Parole Board has a role in deciding whether that person should be released.
Alex Cunningham
Q
“Making release from custody discretionary, and contemplating the possibility that the period in custody could be doubled as a result, is not some minor alteration in the administration of a sentence. It is retrospective sentencing by the executive, a form of internment, circumventing the judicial process and all the protections it confers.”
Do you think the changes to automatic release have any constitutional implications?
Jonathan Hall QC: I will confine myself to talking about terrorist-risk offenders. I do not want to discuss anything outside my remit. If you are talking about people who are sentenced to be automatically released as, for example, Usman Khan was, if in the course of their time in custody it becomes apparent that they are very dangerous, it is appropriate to be able to make their case dependent upon the Parole Board.
As the evidence from the Fishmongers’ Hall inquest has shown, Usman Khan came out with a huge amount of risk, as a result of his behaviour inside. Does that have constitutional implications? The current law is that that sort of change, as you know from the emergency legislation that went through last year, is not contrary to article 7. Does it have big implications for individuals? Yes, it does. It is a decision that would have to be taken very carefully. Does it give rise to the risk of a cliff edge? Yes and no. As you know from the Usman Khan case, they had to be released, and there was no way of changing that.
The point about someone’s release being discretionary is that it is then open to the Parole Board to time their release, and to delay their release if they are not safe enough to be released. Of course, there is always a cliff edge. A person could go to the end of their sentence. The Parole Board could say, “We are not going to release you at all,” and then they would come out automatically. It adds something to put them in the hands of the Parole Board once they have been identified as a risk.
Alex Cunningham
Q
Jonathan Hall QC: It is a really good question. It is a power that will be exercised pretty rarely, I expect. I do not think that you can ask the judge who passed the original sentence to change the sentence. That would be an odd situation, to ask the sentencing judge to reconsider their sentence, on the basis of what happened in prison.
If you think, as I do, that there will be the rare case where you need to delay someone’s release, I cannot see an alternative mechanism, other than putting it in the hands of the Parole Board. You are right that it will disappoint some people, as I think we have discussed in the past. I am slightly concerned about the fact that for some dangerous terrorist offenders—people who have already been identified as dangerous—the role of the Parole Board has now been abolished altogether, because of the Counter-Terrorism and Sentencing Act 2021 that is now in force.
I do not think it is a bad thing to have the Parole Board looking at the small sub-set of individuals who are identified as very risky. In the course of my review into terrorism in prisons, I have seen evidence of individuals who are very risky and potentially becoming riskier because of how they are in prison. It seems right that they should know that, as a result of the risk and what they are doing in prison, their release may have to be delayed.
The Chair
I am going to have to stop you there. I will switch to the Government side and Victoria Atkins.
Victoria Atkins
Q
Jonathan Hall QC: First of all, it means that anyone who is a risky offender—whatever they were put inside for, whether they were sentenced for a terrorist offence or were sentenced for a non-terrorist one but are in fact a risk—can be managed under MAPPA. The law as it stands states that someone must be a risk based on their offending.
To take the example of a fraudster who went to prison and was then dangerously radicalised and became a terrorist risk, their risk would not in fact flow from their offending. Clause 162 cures that, so that anyone who is identified as a terrorist risk may be manged under MAPPA. That is a good thing, because the authorities found it quite hard to deal with that cohort of people.
The other thing that clause 162 does is to make it very clear that people can provide information to MAPPA without having to do what they used to do when I carried out my review, which was to look for information gateways in, for example, the Children Act 1989 or the Crime and Disorder Act 1998, because they did not feel that there was a clear basis for them to share information with MAPPA. As you will understand, the key thing about managing terrorist risk is that all the right information should be receivable. Clause 162 cures that point as well.
Victoria Atkins
In other words, dealing with the reality presented by a very small number of the most dangerous offenders—dealing with that reality, rather than being constrained by the fact that they committed a fraud offence in the past, rather than a terrorist offence.
Jonathan Hall QC: Exactly.
Victoria Atkins
Q
Matt Parr: There were four tests in the law as it stands, one of which is “serious disruption”. Clause 55, I think, changes that to “significant disruption”, among some others. It is a general lowering of the bar.
Victoria Atkins
Q
“serious disruption to the activities of an organisation”,
or,
“serious disruption to the life of the community.”
That is the wording in clause 54 as well. As you will understand, clauses 54 and 55 are about ensuring consistency between moving protest and static protest. We heard from police witnesses this morning that one can flow into the other very easily, and back again.
May I also ask about clause 59? That places the common law offence of public nuisance on the statute book. Does the inspectorate have any views on that, or has it made any recommendations on it previously?
Matt Parr: Not previously, but we did in the report we put out in March. That was one of the five proposals that the Home Secretary asked us to comment on in particular. Our view was that we agreed with what the Law Commission recommended back in 2015, I think. We concluded, for much the same reasons as they did, that that was a sensible thing to do. In summary, we thought that protesters deserve to know where they stand, and that there was no harm in making the rules clearer than they are. It was supporting the Law Commission’s proposal.
Chris Philp
Q
Matt Parr: I am really sorry. I have not looked at that. I cannot give you an answer, I am afraid.
Chris Philp
Q
Let me turn to Jonathan, if I may, going back to clause 108, which Alex Cunningham was asking about. This is in relation to prisoners sentenced for non-terrorist offences who are deemed to become high risk in the course of their sentence. To clarify, is your understanding of the clause the same as mine—that the Secretary of State does not have the power to unilaterally ask for their prolonged incarceration, but instead the Secretary of State simply has a power to refer the prisoner to the Parole Board, which will then make the assessment of dangerousness? It is the Parole Board that makes the decision, not the Secretary of State; the Secretary of State simply refers. Is that your understanding as well?
Jonathan Hall QC: Yes. I have it in front of me. I think the point that Mr Cunningham was making is that it is the Secretary of State who refers it, but you are right: it is the Secretary of State who refers it, but ultimately it is the Parole Board that decides.
Chris Philp
Q
Jonathan Hall QC: Yes, that is right. When the Terrorist Offenders (Restriction of Early Release) Act 2020—the emergency legislation that came in after the attack at Fishmongers’ Hall—transformed people from automatic release prisoners to people who would have to apply to the Parole Board at the two-thirds point, it had an effect on people who are currently serving. That was challenged in the courts by one of the affected prisoners, and the High Court concluded that it was consistent with article 7.
Chris Philp
Q
The final point that Mr Cunningham raised was in relation to the potential for a cliff edge if somebody serves all of their sentence in prison and is not released early. He referred to the possibility of a cliff edge, which exists in various other contexts that you have referred to already. Am I right in saying that if the Government, the security services or the authorities are concerned about the risk that a particular prisoner might pose following release if they were released without licence conditions because they had served all of the sentence, it would be open to the security services, acting through the Secretary of State for the Home Department, to apply for a TPIM if they felt the threshold was met? That would be one option available if they wanted to manage risk, accepting that TPIMs are rarely used.
Jonathan Hall QC: You anticipated what I was going to say. Yes, that is available, but TPIMs are very resource-intensive, and they are very rarely used for that reason.
Alex Cunningham
I misunderstood the line about the role of the Parole Board. I was concerned about what happens beyond the completion of the sentence. As the Minister says, the TPIM is used only in extremely rare circumstances, and it was unclear when that would apply and when it would not apply. Again, my concern is the cliff edge—somebody being released into the community without any licence conditions or further restrictions on their movements.
Chris Philp
Q
The Chair
Hang on a second. I think we are supposed to be taking evidence from our witnesses. Do you want to answer that, Mr Hall?
Jonathan Hall QC: Yes. To continue the thought, where someone reaches the end of their sentence, their sentence cannot be increased—for example, by adding an extra licence period. In a way, it sounds quite a sensible idea that if someone is very dangerous, when they get to the end of their sentence you should just add a licence on administratively, but that would be completely wrong in principle, because the point of a licence is that you can be recalled. If someone was sentenced to 10 years by a judge and got to the end of their sentence, and you then added on a licence period of, say, five years, if they were recalled—quite a few terrorist offenders do end up being recalled—they would end up serving up to 15 years. That would, of course, be wrong in principle.
Sarah Champion
Q
Jonathan Hall QC: I am not trying to avoid it by saying that it is a really good question, but I have not properly absorbed the role of victims in the work that I have done as reviewer of terrorism legislation. One of the difficulties of terrorism is that you are looking more at future risk than at past impact, but obviously, a really bad terrorist attack has the most atrocious consequences for individuals. I am going to slightly dodge it, if I may, by saying that I have not really thought that one through, but I will take it away.
Matt Parr: I do not really have anything to add. It struck me at first glance—it is the first time I have thought about it—as a reasonably attractive idea, but again, I have not really given it a particularly great amount of thought.
The Chair
Are there any further questions? It appears not. In that case, I thank you both very much for your evidence.
Examination of Witnesses
Councillor Nesil Caliskan, David Lloyd and Alison Hernandez gave evidence.
The Chair
Q
Councillor Caliskan: I am Councillor Nesil Caliskan. I am chair of the Local Government Association’s Safer and Stronger Communities Board—[Inaudible].
The Chair
We are having a bit of a sound problem here. Could you repeat that, Councillor Caliskan?
Councillor Caliskan: Thank you, Chair—I hope you can hear me now. I am Councillor Nesil Caliskan. I am chair of the Local Government Association’s Safer and Stronger Communities Board and the leader of Enfield Council.
The Chair
While we straighten out the sound, let us go to Mr Lloyd.
David Lloyd: Hello, I am David Lloyd. I lead on criminal justice for the Association of Police and Crime Commissioners, and I am the recently re-elected Police and Crime Commissioner for Hertfordshire.
Alison Hernandez: I am Alison Hernandez, the national lead for roads policing and safety on behalf of the Association of Police and Crime Commissioners, and I was recently re-elected the Police and Crime Commissioner for Devon, Cornwall and Isles of Scilly. I am here particularly to give the voice of the public on some of the areas in the Bill, and in our role as a scrutineer of policing.
The Chair
Thank you very much. We are trying to straighten things out with Councillor Caliskan’s sound—hopefully we can get that sorted—but we will proceed because of time. I call Ian Levy.
Ian Levy
Q
David Lloyd: I think you make a really good point. Demonstrations are frustrating, especially when they put other people’s livelihoods at risk. Certainly, in Hertfordshire, we had an Extinction Rebellion demonstration that really put free speech at risk by closing down the printing press in Broxbourne, which my friend, the other Chair of the Committee, Sir Charles, will know all about. Certainly, it was difficult to balance the right to demonstrate against the right to free speech.
I think that the strengthening in this Bill is very helpful, although in that specific demonstration the issue was not so much whether the protesters could be arrested, but how they could be arrested, because of the way they had got themselves in some very clever holes so that you could not unpick them. However, I think we really do need to think about the broader population when people are demonstrating, rather than just the rights of the demonstrators.
Alison Hernandez: As you will know, it does not matter which police area the protests occur in; there is a reflection upon police forces nationally from communities thinking, “It is happening where we are, where we live.” There is sheer frustration about some of the disruption that has happened. One of the key factors for us is that it is about being proactive with people who want to run peaceful protests. Our police force in particular has been very good at doing that. As you may be aware, we have the G7 summit coming to us in June in Cornwall, so we are very sensitive, to a heightened extent, about this particular area, and we want to facilitate peaceful protest.
I think these measures in the Bill are needed. Anything that gives the police a tool that ensures public confidence in policing and shows that mob rule does not rule is really important. It really is reflected in public confidence that our police force is on the side of those who are on the right side of the law.
Ian Levy
Thank you. Councillor Caliskan?
Councillor Caliskan: I think it is important to differentiate between protest and the opportunity for the public to come together for things like a vigil. That is obviously—[Inaudible]—the very tragic death of Sarah Everard, for instance.
The Chair
Are you able to bring your face closer to the microphone or bring the microphone closer to your mouth? I think that would help.
Councillor Caliskan: Is that better?
The Chair
Okay, try now.
Councillor Caliskan: And we must also differentiate between a one-day vigil or protest and something that is over a longer period of time. In my experience, from having spoken to council leaders from across the country, the best way that peaceful protest is facilitated is planning in advance. That means the community and organisers having a good relationship with the police, and local forces working closely with local authorities ,so that you know when gatherings will take place, how you can put measures in place to support them to express their views and do so in a safe way. Differentiating between short-term gatherings and long-term gatherings is important.
Sarah Champion
Q
Councillor Caliskan: The first thing to say is that the Local Government Association broadly welcomes the Bill. We recognise its intentions for victims of crime and to support communities. However, there are aspects of the Bill, for instance, the offensive weapon homicide reviews, that I referred to, that lack clarity on the implications for resources, and why they are necessary, given that other reviews take place that could probably cover some of the issues. Reviews take place when you want to learn from an incident. It is unclear what the outcome of an offensive weapon homicide review would be and what learning would be achieved from that.
On the broader point about resources and support, local government have been under incredible pressure in funding youth offending services for several years. We know that youth services have seen a cut in their budgets. Youth offending services primarily have two functions: to stop reoffending, and to stop offending in the first place. The second function is not a statutory responsibility, and it is up to local authorities and partners, such as the police and NHS, to be willing to put in resources to stop offending in the first place. The early intervention and prevention aspect of things will be critical if the intention of the Bill to reduce crime over a long period of time is serious. Alongside the statutory responsibilities that the Bill sets out, the LGA’s view is that it is critical that there are adequate resources to be able to intervene with preventive measures at an earlier stage.
Sarah Champion
Q
Alison Hernandez: There are a few bits in the areas we have been looking at. One area that is particularly of public interest is around the level of offending on our roads from poor driver behaviour generally. There is an absolute appetite from the public—we carried out a survey about 18 months ago on road safety through the Association of Police and Crime Commissioners and over 66,000 people responded. It was absolutely clear that people witness offending behaviour on the roads where they live for about 70% of the time. So there is an appetite for more enforcement and for the fines levels, and that is in the Bill around delivering courses for some of those driver behaviours, which I think is really great. We are interested in seeing another area, which would be a levelling up of the fines for some of those offences. They are all different, whether for speeding, using a mobile phone, or not wearing a seat belt. The fines are all at different levels. Our suggestion is: why don’t you level up the fines, then you also have an opportunity to spend more funding on road safety?
Siobhan Baillie (Stroud) (Con)
Q
I am very interested in this issue and there are two parts to my question. First, do you think that the existing powers under the Criminal Justice and Public Order Act 1994 are sufficient to address the issues that arise from unauthorised encampments for communities that are affected? If not, do you think that this Bill goes some way to fill any gaps that have been identified and raised by a number of different groups?
Separately, regarding local authorities, I think it is little-known that local authorities are actually required to find space for Travellers’ sites, transit sites and authorised encampments. Do you have examples of local authority areas that are doing that alongside communities and the police, and it is working well? And what more can local authorities do?
Siobhan Baillie
Alison Hernandez. Thank you.
Alison Hernandez: There are a few things, actually. Some of the existing arrangements under the legislation that you mentioned are quite strong, but there is a resistance—a nervousness—among police actually to deliver on them, and I think that having a very clear criminal offence makes it a lot easier for the police to act.
At the moment, if you look through the National Police Chiefs’ Council guidance on how to deal with unauthorised encampments, it refers to a number of elements that must be met before the police take some action. This change actually enables the police to make that decision much more easily and more simply, so we really support the change to the way that we are looking at this issue.
I want to be clear that right now, as we speak, I have two unauthorised encampments, one in each county: one in Truro; one in Cranbrook. And these encampments are really affecting our communities’ confidence, by allowing people to break the law and cause damage. Actually, our communities are taking extreme measures to try to stop these unauthorised encampments from happening. This is not about being against people who have an alternative lifestyle; having such a lifestyle is absolutely fine. But when they impact on the communities’ amenity and actually cost the community money to clear up and solve issues, this offence helps to make it really clear that we do not want to see that situation in our communities.
I will just add that the sort of extreme measures that I have witnessed here in my area of Devon and Cornwall include a local council spending £18,500 on metal gates with locks to stop people from accessing pieces of land, which people have still broken into and accessed. The council have now built a concrete wall to stop those people, but it is also stopping local communities from using that land, too, because the council do not want to spend more money to clear up the land afterwards. So there is a challenge about sites—absolutely—for local authorities to consider, but I think this offence makes it clear for policing that there needs to be action.
Councillor Caliskan: The issue is experienced by local authorities up and down the country to different extents. I think it is true to say that there is disruption and that it can cost local authorities resources and funds. It is also true to say that across the country our Gypsy and Traveller communities are badly served in terms of sites that are allocated through planning policy, and it does not help when local plans take a number of years to agree things for them. So, even when there is a clear commitment to find additional sites, it can take years to identify those sites in planning policy. It is partly a planning policy issue and it is partly, I think, a lack of commitment to be able to find adequate space for our Traveller communities.
However, I have to say that the best example of existing local government being able to accommodate Traveller communities is when local authorities proactively build relationships, and while the Bill clearly sets out a way forward to be able to deal with the issues from an enforcement perspective, that is only a part of the picture. The LGA’s view would be that alongside that there needs to be a genuine commitment to accommodate communities, to have adequate spaces and to support those communities in additional things that they might need, such as health provision. Over the past year, there have been good examples of local authorities appointing community liaison individuals just for Traveller communities to be vaccinated, for instance. It costs local authorities resources, but there is a bigger picture that has to be considered.
David Lloyd: I think first of all we have got to start to look at how we can work together across the public sector, and I do not think that we are good enough at that. Very often, the first thing that happens is that the police are called to move on rather than thinking about what the issue is in the first place. Certainly, when I was first elected to a local council back in 1992, we had issues with Travellers and unauthorised encampments. If we had started then with a policy of ensuring that every single borough and district council had sufficient provision for those who may pass through, so that then, when there were unauthorised encampments, they could be moved on to those places, I do not think that anyone would feel that there was a problem in doing that. The issue is when there is no other place reasonable for them to go that is within close proximity. I do not think the duty of the districts and boroughs in two-tier areas and local councils in other areas is enforced sufficiently.
We always have to think about what it is that victims of all crimes and members of the public think most of all. One of the things that concerns people most of all is when there is an encampment—very often, it happens around a bank holiday weekend—and it seems that nothing can be done. I think that the strengthening powers within this will be helpful but that does not, in the long term, help with the real problem, which is: is there sufficient provision? We have got to do something alongside that.
In this discussion, along with the earlier question where Sarah Champion asked “What about budgets?”, we have to find a better way in local government—and I am proudly a part of local government as a police and crime commissioner—to share all of our budgets and we have to find a better way to plan together. Because one of the problems is that the issue of unauthorised encampment is always pushed to someone else as their problem, rather than any one of us picking it up as our problem. We have got to find a way through that.
Allan Dorans (Ayr, Carrick and Cumnock) (SNP)
The Bill introduces offensive weapons homicide reviews. What do you see as a rationale for holding only reviews where offensive weapons are involved? Why is the focus on this type of weapon and is there not a danger that those who have lost loved ones to other causes or other methods will feel that their loss is less valuable than others? That is to anyone who wishes to answer that. I think we will start with Councillor Caliskan, please. [Interruption.]
The Chair
I think we have lost you again, councillor. Shall we go to someone else while we see if we can sort this out?
Allan Dorans
Mr Lloyd?
David Lloyd: My understanding of the Bill—you will understand it better than me, probably—is that it does not get rid of other homicide reviews. Of course, the one that probably you and all of us are familiar with is the domestic homicide review, which is always very helpful, and we all learn a great deal across all agencies around that when that happens. I think this builds on that and that is reasonable.
One of the areas of focus at the moment is around serious violence. I think it not unreasonable, therefore, that we take a little bit more time and we have a little bit more evidence around what has gone wrong. I am a real believer in evidence-based policing, and we have to look at that really closely. I am very much in favour of that. It is going to be, remember, an 18-month pilot. If that brings about initiatives to prevent homicides and protect communities, I think that is a very good idea.
The Chair
Let us try Councillor Caliskan again.
Councillor Caliskan: Hopefully you can hear me now. I agree with what David said about the pilots, and it will be interesting to see the outcomes. The direct comparison is to domestic violence homicide reviews, where there can be very clear learning; and being able to learn, as a system of multiple agencies, where you might have been able to intervene earlier to stop something helps us to reduce crime in the future.
The issue with offensive weapons homicide reviews is that the evidence shows that somebody with an offensive weapon may not necessarily know their victim. You can take knife crime, for example, and compare it with domestic violence. In most cases of domestic violence, the victim and the perpetrator would know each other; that is not necessarily the case—in fact, most often is not the case—when it comes to knife crime.
I think it will be interesting to see the outcome of the pilots, but we have to be careful that we are not just creating additional burdens on agencies and that we have clear criteria and pathways for learning. Also, who will be the owner of the outcomes? Who will be responsible for being able to implement some of those lessons learned? I think that level of detail is probably missing from the Bill, so I wait to see the outcome of the pilots.
Alison Hernandez: One of the challenges around domestic homicide reviews is the lengthy delay from, obviously, when the incident happened to when the review is completed. Often, the challenge we have is that people have moved on and some of the corporate learning from it is not actually kept well within the organisation. So I think that that accountability around this trial would be really helpful, to be clear. There are opportunities around things like local criminal justice boards and there are opportunities through police and crime commissioners of actually holding on to this as part of something that we have to report on. So I think it would be good to look at that accountability to make sure it does not become a paper exercise and is not really utilised in decision making.
Bambos Charalambous
Q
Councillor Caliskan: The burden of finding alternative accommodation is really about the fact that you are competing. You are competing because you may have victims of domestic violence that the local authority also needs to find accommodation for. So it is about limited resources. It does happen already: they will be rare occasions, but there may be examples where a young person needs to be relocated because they may have been involved in county lines or gang activity. But it is not simple and it is not just about relocating that individual—
The Chair
Councillor, I am very sorry to interrupt you. Is it possible to bring the mouthpiece closer to your mouth? We are really struggling to hear you.
Councillor Caliskan: How is that? Is that better? I will hold it.
The Chair
Let us try.
Councillor Caliskan: Hopefully you can hear me a bit clearer. The other point I was going to make is that it is not as simple as just relocating an individual. It is often a family that you have to relocate, and there are additional processes associated with that. Examples of issues are employment for the parents and the tenure of accommodation. If they own their own property, relocating them becomes more complicated. The picture is complicated, as you might expect. This is possible; local authorities do do it, but it takes multi-agency working and it requires a real bespoke approach depending on the individual and the family that you are trying to support.
Bambos Charalambous
Do Alison or David have any insights? I imagine not, but if they do I am happy to hear from them.
David Lloyd: All I would add—I am sure Members will be very much familiar with this—is that probably the vast majority of our criminals are under the age of 25 and a huge number of them are under 18. In Hertfordshire a couple of years ago, three quarters of our murders—we have very few—were committed by people under the age of 18. So in many ways we need to get how people are being remanded right. There are greater rights that children would rightly expect and have, but that does not mean to say that some of our most serious criminals are not children. Getting that balance right is difficult.
Councillor Caliskan: If I might add, there are good examples throughout the country where youth offender services are intervening at an early stage that not only supports individuals not to reoffend but provides a family approach, supporting siblings who may be at risk of being involved in criminal behaviour. That early intervention makes a real difference, so as local government we would look to see how such public health approach-led practice could be rolled out more consistently across the country.
The Chair
Commissioner Hernandez, do you have anything you want to add?
Alison Hernandez: Just one point in relation to youth remand. The challenge in helping young people and getting that right is the gap between arrest and conviction. With the courts backlog there is at the moment, that can be a long gap, and one of the challenges is that sometimes you cannot work with that young person until they get to the point of conviction. I just wanted to flag that up, but that is more about charge to conviction than remand and awaiting.
Mr Goodwill
Q
David Lloyd: I feared that you were going to say that. I am not convinced that anything can easily be done. Clearly, on private land, there is a planning process, but it is private land, and that is difficult. I think you are talking specifically about where someone has purchased land and invited people in, and they may well have inappropriately developed that land so that there is a site built there. It is very difficult to know how to deal with that. I certainly have not got the answer. You may well have an answer among you, but how you get the planning process to discriminate, if you like, in a positive way against that which is clearly not right and for that which is right will be difficult.
Sarah Jones
Q
David Lloyd: Can I come in first on that and perhaps also bring in another bit? One of my concerns about the Bill is that it does not go far enough; in fact, it does not really mention how we might use police and crime commissioners more. My concern has always been very much about trying to be at the centre of the criminal justice system and how we bring that together with someone who is a focus for that on a local basis.
One of the benefits of police and crime commissioners has been their ability to bring different parts of the criminal justice system together, along with local authorities, so that we can better ensure that we reduce violence and crime, that the lessons are properly learned and that we put support for victims and perpetrators in the right place. I think it is perfectly reasonable to establish the situation as we are doing it, but we need to go further. One tends never to talk about what is not in a Bill, but the big thing this misses, as far as I am concerned, is how you put PCCs at the very heart of the criminal justice system.
Frankly, with extra duties falling to police, more people will be arrested, and they will end up in a queue going to court which is getting ever longer. Until you have got someone who is able to break through that long queue to get to court, none of this will really work. That is a crisis that we need to solve, and I think we have a solution in trying to give more power to police and crime commissioners. That might be a discussion for another day, but it is something we really need to focus on.
Councillor Caliskan: I think the LGA would highlight that a prevention-first approach is a long-term, sustainable approach to deal with crime in our communities. We absolutely support collaboration and a multi-agency working approach, because it works. The evidence demonstrates that it works, and the best and most successful outcomes demonstrate that. Take the violence reduction units, for example; there are very good examples of that.
There are not violence reduction units everywhere, so there is this inconsistency. They were, as I understand it, first established based on the areas where there were high levels of knife crime. Now, whether that should be the criteria going forward is a matter for debate, but I would emphasise again that the long-term statutory responsibility is suitable and that the multi-agency approach is properly resourced to be able to deliver those early interventions.
The community safety partnerships are really welcome as well. Again, there are some good examples of them. I guess that the benefit of community safety partnerships is that local communities can decide what the issues are. That gives communities agency, and it allows different organisations to come together to have ownership of the problem.
We at the LGA would ask for there to be more consistency. For that, we should see violence reduction units extended and offered in more areas, and there should be a more sustainable funding model. If we are serious about seeing a reduction in crime, we have to have models that move away from just one-off grant funding or one-year grant funding, to five-year periods of funding, so that there can be long-term projects.
Alison Hernandez: If I may say, I get a bit frustrated with the conversation about funding, because it is not all about having funding from the Government. I absolutely applaud the serious violence duty. One of the challenges that we all recognise is that, generally, society is getting more violent. This isn’t, “Who has got the most violence in their area?” We have a general societal problem, which every area needs to be looking at, focusing on and tackling.
In Devon and Cornwall, we are not one of the areas that received the violence reduction unit funding, so the chief constable and I have come together in a partnership to establish a serious violence prevention programme. We are funding that through council tax payers’ funding, because we believe that it is fundamentally important that we make this a priority. So you can do it yourselves if you think it is important. The serious violence duty will help people to see that this must be prioritised to be tackled. We want to do prevention; we do not want to deal with the things in the Bill that are just about enforcement and the hard end of it. We are able to look at that early intervention and prevention.
Many Members will have heard of things such as Operation Encompass, which is throughout the country in all 43 police forces, to try to help children who are at the receiving end of domestic abuse. In that sort of thing, we are trying to help children as young as possible, to break that cycle of violence. We fundamentally know that domestic abuse is one of the key issues that, if not tackled at a young age, leads to more violence in later life. I am an absolute supporter of the serious violence duty. We have things within our own powers, as commissioners with our local authorities, to set the priorities to tackle that.
Sarah Jones
Q
Councillor Caliskan: I think you are right. There is no point talking about just enforcement if you want to see community cohesion. Enforcement alone does not allow for Gypsies and Traveller communities to have their place in our community when they want it. It is the nature of their protected characteristics.
What needs to happen? There was a question mark over the efficiency of—[Inaudible]—policy. There has to be a commitment from local authorities that those sites are allocated. The statutory legislation that already exists for these protected characteristics needs to be taken seriously. We should be meeting the obligations that are already set in statute, which says that we should have adequate sites for these communities, but we just do not.
I would like to give parliamentarians some reassurance that the LGA absolutely takes tackling crime seriously. That is why councils up and down the country fund multi-agency working. We take it really seriously—it is a priority, because residents tell us that they want to be safe. We also recognise that crime is a symptom of what is often a complicated socioeconomic issue. If we want to collectively be serious about tackling crime, we have to tackle it at every stage, which means talking about prevention and—[Inaudible.]
Victoria Atkins
Q
Alison Hernandez: I want to be really clear what we are all talking about. We are not talking about all Gypsies and Travellers.
Victoria Atkins
Exactly.
Alison Hernandez: We are not talking about the travelling community. We are talking about a minority of people. I have examples in Exeter city where the local authority created a very nice site so that we could admit them quicker from where they were. It had everything that they needed and the facilities that they wanted, and it was in a nice, secluded spot. When the police went in to evict them, they decided not to go to that site that was available to them. They wanted to go to the next game that they wanted to play. Let’s be really clear about this: we are talking about a minority of people who do not want to abide by the law of this country. I believe we need this offence to support our communities and to send a very strong message: you do not do this type of behaviour.
I mentioned the £18,500 metal fencing created at Drumbridges roundabout to stop them accessing that land. They broke into that land. I have communities who will tell me that they have spotters who go ahead to break open the gates, so they will use the excuse that the gates were already open. All these sorts of things are happening. I have asked about CCTV—can we put it on the main sites where we have these things happening? It cannot be done, because of human rights—because it is where someone is living. Every place you turn to as a community to try to solve this problem is not available.
For me, harms are being caused. On Dartmoor alone, when they had an unauthorised encampment, it became absolutely huge. When these things get so huge, no one can move them on, because the amount of resource required to do so is immense. The bailiffs were going to cost £50,000 a day, and they would still need police back-up in order to do it. The cost is absolutely huge. There is something about sending a message through this Bill which tells the public that we are on their side and that we do not support people who do not want to abide by the law.
David Lloyd: I entirely agree with that. In Welwyn Garden City, we have a person who has almost been driven to the verge of bankruptcy because there was an unauthorised encampment which decided, at the same time, to take on industrial-level fly-tipping. It would cost about £150,000 to move those materials. That originally happened 18 months or two years ago. It is still there among all the woodland.
These people are at the end of their tether. The cost is not just monetary. I have people calling me who really are frightened because they have had large numbers of people on their own land and they feel intimidated and personally threatened. We need to do something about it. Much of it is about sending a message.
While I recognise that it is not helped, as I said earlier, by the fact that local authorities do not provide sufficient spots for Travellers to move on to—I recognise that is something we need to do—we also need to send a message that these people can be moved on if they are in an unauthorised place. We need to send that message out again, as Alison has said far more ably than me, so that the public recognise that we are on their side and we are on the side of the underdog.
Councillor Caliskan: All I would add is that I recognise that there are strongly held views, and we have councils who articulate exactly what colleagues on this panel have spoken about. It can be a huge cost to a local authority.
The best way to deal with these issues is through a collaborative approach, not just through agencies in a particular area, but also with the communities themselves who may be occupying the space. Something has got to give at some point, and an obvious solution is trying to identify space. Local authorities absolutely do not want to be encouraging criminality and disruption, not least because it costs a lot of money, but we could be going round and round in circles unless we find a long-term solution. I recognise that the Bill is an attempt to do that. All I would say is that in order for there to be a collaborative approach, alongside that there needs to be an approach that is about dialogue with communities, too. I do not think that contradicts anything that other panel members have said.
Victoria Atkins
Just to assist the Committee, clause 61 focuses on the conditions whereby this offence can be committed. The phrases “significant damage”, “significant disruption” and “significant distress” appear to cover the descriptions given by Commissioner Hernandez and Commissioner Lloyd.
On the serious violence duty, where the Government are requiring local agencies to work together to draw together plans to tackle serious violence in their local areas, I am happy to reassure Commissioner Lloyd that clause 13 very much views police and crime commissioners and mayors with policing powers as having a convening role in that. What value do you think will be gained in your local areas from requiring these organisations—vital as they are, in their many ways, in tackling the serious violence that we hope to prevent—to get around a table and work together with schools and educational establishments, in particular, to ensure that we prevent serious violence?
The Chair
Very briefly, please, because we are almost out of time.
David Lloyd: Things that are asked for specifically and are required of us get done. This measure strengthens what many of us are already putting into our own police and crime plans. It is always better to place a duty on us, because that ensures that it gets done. We really do need to ensure that the scourge of serious violence is reduced. There are many parts of the country—thankfully not Hertfordshire—where this is out of control, and this measure will help.
The Chair
Order. We will stop, because we are out of time. I am sorry, Councillor Caliskan, but we have a very tight schedule today. I thank the witnesses for their evidence, and I thank Councillor Caliskan for persevering with some of the sound problems.
Examination of Witnesses
Adam Wagner and Marc Willers QC gave evidence.
The Chair
Q
Marc Willers QC: Good afternoon. My name is Marc Willers. I am a QC barrister practising at Garden Court Chambers.
Adam Wagner: Good afternoon. I am Adam Wagner, a barrister practising at Doughty Street Chambers.
Sarah Champion
Q
Adam Wagner: I will leave the Gypsy and Traveller aspect to Marc. From a protest perspective, what worries me about the Bill is that it decouples the public order element from the Public Order Act 1986. It makes that Act do things that it was not designed to do—to protect public order by effectively giving the police powers to impose directions on any protest that is very noisy, which is any protest.
In terms of discrimination, I regularly act for clients who protest—not for any particular thing; I act for clients who protest all sorts of things. My concern is that the police and potentially the Government will end up cherry-picking the kinds of protest that they consider to be valuable and the kinds that they consider to be problematic. That will ultimately be a political decision, not one based on public order. Ultimately, it does not matter whether it is a left-wing Government or a right-wing Government—they will have the ability to discriminate against groups that they do not agree with.
Marc Willers QC: You might have guessed that I am going to indicate that the Bill, particularly part 4, discriminates against Romani Gypsies and Irish Travellers, two ethnic minority groups with a traditional way of life, an integral part of which is living in caravans, and which also involves nomadism. The Bill will criminalise trespass at a time when many of those who resort to and reside on unauthorised encampments have nowhere else to go, the reason that being site provision, an elderly but enormous elephant in the room, has not been addressed since 1960, when the Government and Parliament of the day introduced the Caravan Sites and Control of Development Act 1960, which closed the commons.
A statutory duty was introduced in 1968 by Lord Eric Avebury, but that duty was subsequently repealed in 1994. I am afraid that the encouragement of private site provision has failed abysmally, and we still have a cohort of Romani Gypsies, Irish Travellers and, indeed, new travellers who do not have a lawful stopping place. Criminalising trespass and giving greater powers, which the police have roundly suggested they do not need, to occupiers of land for the police to enforce really puts another nail in the coffin of nomadism and makes such people’s lives extremely difficult. The disproportionate impact on Gypsies and Travellers is there for all to see.
Sarah Champion
Q
Adam Wagner: It widens the test for being able to impose conditions on a protest to encompass pretty much any protest that is noisy enough to cause intimidation, to harass, or to cause
“serious unease, alarm or distress”
or “serious disruption”. If you are a protest organiser, you will know that that could apply to any protest. You have to appreciate that the current section 12 of the Public Order Act 1986 allows for conditions only when a protest causes
“serious public disorder, serious damage to property or serious disruption to the life of the community.”
That is already pretty wide.
By making it about noise, you are effectively saying to the organiser that any protest could be caught by that description, so they will have to rely on the good will of the police and the Home Secretary, because the Home Secretary will have a regulation-making power not only to define any of the new terms that I have expressed, but to give examples. Organisers will have to rely on the police and the Home Secretary to decide that their protest is not worth putting conditions on. From a protester perspective, that puts you entirely in the hands of the police and the Home Secretary. That very problematic for somebody organising a protest, because a lot of people will think it is just not worth it, particularly when they are representing an unpopular cause or one that they consider to be controversial. Those are precisely the protests that are the most important, and the most important to protect.
Sarah Champion
Q
Adam Wagner: No; I have not, I am afraid.
The Chair
Is there anything you wanted to add, Mr Willers?
Marc Willers QC: Much the same can be said about proposed new section 60C of the Criminal Justice and Public Order Act 1994, in terms of its language. It seems to me that a lot of the language used is vague and uncertain. There is a reference to causing “significant distress” as one of the conditions that could lead to the criminalisation of an individual who refuses to leave a piece of land. That, in itself, brings inherent problems, because a private citizen could very easily invoke the power and leave a police officer with a fait accompli—in other words, they have no option but to arrest an individual who refuses to leave land in circumstances where the occupier says, “I am being caused significant distress by the very fact that this individual is parking on land that I occupy.”
That distress can be engendered or underpinned by the prejudice that Gypsies and Travellers face in our society today. It is a widespread and long-standing prejudice, dating back to the first time that Romani Gypsies came to these shores in the 1500s. I am afraid that it is fuelled by mainstream media and politicians. It is instilled in the minds of many members of the public, and it is bound to play a part. There may well be unwarranted and unjustified concerns on the part of the occupier, which could lead to the criminalisation of an individual who has nowhere else to go.
Mr Goodwill
Q
Marc Willers QC: It might be better for Mr Wagner to deal with that issue, given that I am dealing with part 4.
Adam Wagner: This is a recommendation by the Law Commission, as I am sure you are aware. My concern about codification is that it becomes a statutory tool in the armoury that might not previously have been used. I appreciate that the Law Commission recommended it. It does have benefits in terms of clarity and making the definition of public nuisance a statutory one, rather than coming out of common law and arguably being subject to not being clear.
I do worry that once it becomes a potential tool in the box, it will be used more. From the perspective of protest, and protecting the right to protest and freedom of assembly, it is just another tool in the armoury of public authorities to limit protest. Both Mr Willers and I deal with cases involving private injunctions against protesters and, in Mr Willers’ case, Gypsy and Traveller communities. You can see this proliferation in the courts of the use of any kind of method that will allow private companies and public authorities to restrict what is generally non-violent activity that does not cause much, if any, public order issue. You can see that being used. My concern is that it adds another potential bar to an already quite extensive collection of bars to public protest.
Marc Willers QC: I echo what Mr Wagner had to say. In the context of unauthorised encampments, there has been what has been described by the Court of Appeal—Lord Justice Coulson—as a feeding frenzy, in a case involving Bromley’s application for a wide injunction, effectively creating a no-go zone in Bromley, where Gypsies and Travellers would not be able to camp. That has been replicated up and down the country, in what has been described, as I said, as a feeding frenzy of litigation.
The Court of Appeal, in that context, concluded that the creation of such no-go zones offended the Equality Act 2010, the European convention on human rights and the protection of the right to respect for the traditional way of life of Gypsies and Travellers, and the enshrined right to roam. To bring it back to unauthorised encampments, in part 4 of the Bill the Government appear to be creating the no-go zones that the Court of Appeal has said in another context would fundamentally breach the rights that I have identified.
Mr Goodwill
Q
Marc Willers QC: The problem with part 4—it is speculation as to whether or not definitions will become crystallised in litigation—is that most Gypsies and Travellers will have left the site and be unable to challenge the decision by a police officer to arrest them, given the scenario that would play out under, for example, proposed new section 60C of the 1994 Act. A Gypsy or Traveller parking on a piece of land with their family, perhaps on the way down to Kent from somewhere up north, is not going to hang around when threatened with the seizure of their vehicle to argue that they should be entitled to remain on the land. Even if they did, they would probably not get legal aid with which to challenge the application of the section and their prosecution. In those circumstances, we are probably unlikely to see much, if any, judicial consideration of the vague terms in part 4.
Adam Wagner: If I may, I will add that
“serious unease, alarm or distress”
is not new to the law. You see that wording in the definition of criminal harassment and in other places. My concern is more about width than about clarity. I have dealt with numerous cases involving over-wide injunctions. There is quite a lot of case law about clarity versus width, and the point is that once this language is in the law relating to noise, it will be obvious to the courts that it is a very wide provision indeed and will rely to quite a large extent on the decision making of the police officers.
For example, if a protest decided to be completely silent, it would be difficult for the police to say that that protest was going to cause enough noise to cause serious unease. I imagine that the next Extinction Rebellion protest we see will be completely silent after this. But in seriousness, I think the court will just see that as very wide. What you have really got here is nothing to do with public order; it is about nuisance. It is about criminalising a certain kind of nuisance arising from what should be a protected activity—exercising political speech rights, under articles 10 and 11 of the European convention.
Sarah Jones
Q
Marc, it was put to us earlier that this is not about discrimination or attacking Gypsies or Travellers. It is about people who are engaged in significant criminal damage in places where they should not be. It would be helpful to have your response to that charge—Adam first.
Adam Wagner: I hear that. I will just quote Lord Justice Laws, who said:
“Rights worth having are unruly things. Demonstrations and protests are liable to be a nuisance. They are liable to be inconvenient and tiresome, or at least perceived as such by others who are out of sympathy with them.”
Protest has not changed; protest has always been a pain, a nuisance and liable to be inconvenient and tiresome. What has changed is that we have a Government who do not like certain protests—although that in itself has not changed either.
Extinction Rebellion is no different from any widespread protest movement—the civil rights movement in the 1960s, the environmental movement previously—but what is different is that it has managed to attract hundreds of thousands of people to its cause and is making real inroads on the public consciousness. That in itself is not a justification effectively to give the police powers to ban or impose conditions on any protest or, even more troublingly from my perspective, to give the Home Secretary—whose role is only to protect public order, not to protect particular opinions or to impose her, his or the Government’s opinion on any particular group—powers in effect to give examples of protests that she considers to be noisy, the ones that this legislation is targeting. You are getting yourself into a situation not where the public is better served, but where this essential part of democracy is going to be reduced down and chilled.
Sarah Jones
Thank you. Marc?
Marc Willers QC: The first thing to say is that those who are committing significant criminal damage can be prosecuted using existing legislation. If they are committing antisocial behaviour, existing legislation is in place. Indeed, the police made that point in their responses to the consultation on these proposed measures, and did so in spades. The response from the vast majority of the police forces was, “We do not need additional powers”, or, “We do need the existing powers under the Criminal Justice and Public Order Act 1994 to be strengthened.”
I have no hesitation in saying, fund the police properly and ensure that they prosecute those who commit criminal offences, whether they be Romany Gypsies, Irish Travellers or members of the settled population—everyone should be treated in the eyes of the law—but part 4 and the proposed provisions do not just affect those who are committing significant criminal damage; they affect each and every Gypsy and Traveller who is exercising their right, enshrined in our convention and under the European convention of human rights, to nomadism, to roam. We should not force them into a position in which they are only lawfully exercising that right when actually on the road—a road to nowhere.
The provision not only will force them into that situation, in which they are literally only within the law when they are moving along the road, but will give police the power to seize their homes, should they fall foul of the provisions. Should they camp on a piece of land and be asked to leave by an occupier who is prejudiced against them and would not want them to be there out of fear that they might commit some behaviour instilled in the mind by prejudice against Gypsies and Travellers, then as I said, it is a fait accompli for the police who are called in. They will have to arrest and almost certainly seize the caravans, that being the home. The individual and family might end up being destitute.
This is all at a time when there is insufficient transit and permanent sites for Gypsies and Travellers to live on. The proposed legislation ignores the rather elderly and enormous elephant in the room—the lack of site provision. That lack of site provision has continued unabated since the 1960s, as I said, when the commons were first closed.
Victoria Atkins
Q
Adam Wagner: Yes, of course.
Victoria Atkins
Q
Adam Wagner: I think I would be neutral on that. It is a very wide piece of legislation. Every time I read it, I am pretty surprised at how wide it is already. What I am pretty clear about is that section 12 does not need to be widened.
Victoria Atkins
Q
Adam Wagner: Well, potentially. The proof is often in the pudding. It depends on how the police use it and whether they are using it effectively. I have read the report from Her Majesty’s Inspectorate of Constabulary and Fire and Rescue Services. I speak to a lot of police, and my experience is that they know they have a wide suite of powers when it comes to protest. What they struggle with, if you look at what has happened over the covid regulations, is deciding when to use them and what is proportionate. These are very difficult policing situations, and they are not necessarily solved by imposing widespread conditions that may lead to legal challenges, which may be successful. Successful policing of protests ultimately comes down to working with the protesters and civil society—hearts and minds stuff from the police. You saw that with the Sarah Everard vigil, and you see that with Extinction Rebellion and Black Lives Matter. I do not think you can really enforce your way out of some of the disruption caused by protest. It is really about allowing voices to be heard and being careful.
Victoria Atkins
Q
Adam Wagner: Well, in part. The Public Order Act was used quite extensively over the course of the Extinction Rebellion protests, and Black Lives Matter was under the covid regulations last summer. That was the power that was used, and those are much more extensive. The covid regulations are far too extensive. We saw there the problems when the police are given too much power, because then they have to make what are not really public order decisions but substantive political decisions about which protests they do and do not allow. That is the danger. I do not think it is a right-wing or left-wing issue; any Government should be worried about protests being limited by political decisions, rather than public order decisions.
Victoria Atkins
Q
Adam Wagner: I think the objective test would assist the courts; I do not think it would assist police officers. Anything that limits these powers is better than not, but I just think the powers themselves are too wide for the reasons I have set out. I do not think that helps anything. From a policing perspective, applying all those tests is not going to be easy anyway. Really, this is about the width of the powers overall as a package, rather than the reasonable firmness test or anything like that.
Victoria Atkins
Q
Marc Willers QC: I do not think it would just be related to private lands—
Victoria Atkins
I accept that. There are provisions on common lands as well—you are quite right.
The Chair
I think we had better let Mr Willers answer as we are going to run completely out of time.
Marc Willers QC: It covers private and public land, and common land, and you are right that the conditions are “significant damage”, “significant disruption” and “significant distress”. My comments earlier were about the fact that significant damage and disruption can be covered by other legislation. The “significant distress” point was one I made in the context of the fact that the occupier may have their own impression of “significant distress”, or may suffer significant distress because of an inherent prejudice towards Gypsies and Travellers.
The Chair
I am really sorry Minister, but we are going to have to stop there because we are out of time allotted for this session. I thank you both for your evidence.
Examination of witness
Stephanie Roberts-Bibby gave evidence.
The Chair
I now call Stephanie Roberts-Bibby, acting CEO of the Youth Justice Board. Once again, we are down to 30 minutes, so we have to be tight—we have until 5.15 pm for this session. Stephanie, would you introduce yourself for the record, please?
Stephanie Roberts-Bibby: Good afternoon, everyone. My name is Stephanie Roberts-Bibby, and I am the interim chief executive officer for the Youth Justice Board. It is great to be here today to give evidence to you.
The Chair
I see that you are on an iPhone. Could I possibly ask you to flip it round so that you are in landscape?
Stephanie Roberts-Bibby: Is that better for you, Chair?
Bambos Charalambous
Q
Stephanie Roberts-Bibby: Absolutely. We would say that children who commit offences as children should be sentenced as children, and that, where possible, the court should take into account the age and maturity of the child at the time of the offence. I know that HMCTS has been working tirelessly—particularly at the moment with the covid pandemic—to make sure that children’s cases are held promptly and before their 18th birthdays.
Bambos Charalambous
Q
Stephanie Roberts-Bibby: We strongly believe that when the offence was committed as a child, that should be reflected in the length of the sentence, so they should be sentenced accordingly. We appreciate the logic for some of the tapering proposed in the Bill, but we feel that it fails to recognise that all children, who were under 18 at the time of the offence, had a distinct set of rights and vulnerabilities, and that the nature and length of time with which children and young people’s development takes place needs to be reflected. Indeed, evidence points firmly to brain development continuing up until the age of 25.
Siobhan Baillie
Q
Stephanie Roberts-Bibby: We wholeheartedly support the introduction of secure schools. We very much welcome the Government’s proposal to open the first secure school at Medway and we look forward to a further secure school as part of the Government’s commitment to an alternative to secure accommodation for children. We have been working closely with Oasis, which was announced as the provider of the first secure school. It is a very strong academy trust and will offer a different operating model from the secure environments that currently exist. While there is some great practice that takes place across the secure estate, we know from the data about the outcomes for children who have been in the current secure estate that those outcomes are poor and that further offending continues.
Siobhan Baillie
Q
Stephanie Roberts-Bibby: It is a concern that the market, as you would describe it, for providing a secure estate is quite limited. We would want to try to stimulate that market, to get the full range of providers that will be able to meet children’s needs. I think there is something about really understanding the complexity of children in the secure estate. These children are extremely vulnerable and, as a result, their behaviours can then be deemed as being extremely risky and posing a risk to others.
Our only concern about the delivery of the secure school is that link, at the moment, to the academy sector, particularly for children entering the youth justice system who have quite often been involved in practices whereby they have been off-rolled. For instance, we note the high levels—the prevalence—of exclusion of children. For example, we know from HMIP data that 89% of children at Feltham in 2018 had been excluded from school. We would be really keen to seek an assurance through the tendering process that academy trusts that are selected to open or run a secure school have the full range of skills, expertise, structures and ethos to support children to change in a secure setting.
Siobhan Baillie
Q
Stephanie Roberts-Bibby: Youth offending teams are critical in early intervention and prevention with children who may be on the cusp of offending. There are a whole range of sentencing options available, but before that point there are out-of-court disposals, which means that children can be engaged in a range of activities, interventions and indeed supervision that would help them to address their needs.
Regarding the latter, I think there is really something about us all committing to understand children’s development, some of the social and economic environments in which children are living, and some of the deprivation and the structural barriers that children in our communities are experiencing, particularly children from black and minority ethnic backgrounds, who we know are disproportionately represented across the youth justice system. So there are a range of options available from youth offending teams.
One of the challenges that we hear about from the sector is its capacity to work upstream. Often, that is a result of funding, although this year the youth offending teams have had an additional uplift in their grant to help with some of the challenges that they are currently experiencing.
Siobhan Baillie
Very tiny. I have a number of youth groups in my patch, as no doubt all MPs have, that are trusted by youngsters and that have been there and built the relationships. How do the Youth Justice Board and youth offending teams work with the grassroots youth organisations?
Stephanie Roberts-Bibby: If I start with our role as the Youth Justice Board, we work really closely with the voluntary and third-sector community. We have a regular stakeholder forum, where we come together with all of the voluntary sector to hear their voices and concerns, so that we can have effective oversight of the youth justice system.
At grassroots level, which you referred to with youth offending teams, local authorities can subcontract or co-commission services to the voluntary sector, although again we know that in latter years some of those organisations have not necessarily been able to sustain themselves. However, those services are really critical to understanding the context in which children are living: the services they need, and the services that are able to get alongside children and help them. We also have a youth-affiliated network in which we hear from children and hear their voices. They are often the go-to services when children are in crisis, are feeling vulnerable, or do not know what to do.
Alex Cunningham
Q
“In this Chapter—
“adult” means a person aged 16 or over”.
Given the wealth of evidence on maturity, do you think that the section and other provisions of the Bill that address sentencing 16 and 17-year-olds are appropriate?
Stephanie Roberts-Bibby: I go back to my original answer in which we are clear that the age in law for children is up to 18. We absolutely promote a child-first youth justice system which means that children up to the age of 18 should get treated as children, as they are in law. The evidence base in the debate about maturity strongly suggests that brain development continues until the age of 25, and indeed some evidence shows that it may extend to 28 for males in particular. We would absolutely continue to champion the idea that children should be sentenced as children until their 18th birthday.
Alex Cunningham
Q
“There is no evidence that the threat of harsher custodial sentences deters children from offending, no evidence that contributes towards rehabilitation or promoting long-term positive outcomes. Meanwhile, there is abundant evidence that imprisonment is extremely harmful to children and disrupts their healthy long-term development.”
How do you think the changes to youth sentencing proposed in the Bill will impact reoffending rates?
Stephanie Roberts-Bibby: A number of changes are presented, and I want to pick out some of those. We are broadly supportive of the proposals relating to youth rehabilitation orders. We are supportive of anything that prevents children from being drawn further into the youth justice system. That would include offering them greater support in the community, and making sure that they get their needs addressed. There is no evidence to show that punishment changes behaviour. What we know changes behaviour is pro-social identity, and giving children a positive image of themselves where they can build on their strengths, and aspire to contribute to our society and our economy. We are very clear that we would not want to see the Bill result in more children being pulled into the youth justice system, and indeed we would want to see children continuing to be referred into the services that rightly should be there to meet their needs and prevent them from offending, as we have seen in the last 20 years since the youth justice system was established.
Alex Cunningham
Q
Stephanie Roberts-Bibby: We really support the proposals and changes to remand. I will start with that point, if that is okay. We welcome the proposal that there be a statutory duty for the court to consider the child’s welfare and best interests when applying the prospect of custody test. We know that at the moment only a third of children in custody on remand go on to get a custodial sentence, which raises the issue of why so many children are being remanded in the first place. So we very much support the proposals around remand.
We particularly support the changes that would say that only a recent and significant history of a breach, or offending while on bail, would result in custodial remand. We recommend that those definitions be tightened or specified. We would recommend that “recent” refer to a six-week period, and “significant” refer to a situation where there is a potential to cause serious harm or injury. We are very supportive of measures that would reduce the number of children being drawn into the system, particularly into custody, so we support the recommendations around remand, but those measures in isolation will not reduce the number of children in custody. There still needs to be work in the community around appropriate accommodation for children, with holistic services that meet their needs. At the moment, there is a misalignment between the priorities of the criminal courts and available community provision for children’s social care accommodation.
We also think there is limited time to build an appropriate bail package. As we all know, there is more to do, although there is ongoing work around vulnerable children and reducing the likelihood of their being exploited.
We very much welcome the changes to the detention training orders, but some of them could result in an increase in the number of children in custody. It might be helpful if I talk through each of those changes. I am conscious of the time and that I am talking very fast, but I think those changes are quite significant. We welcome the fact that there will be more flexibility with their sentences, rather than the rigidity that we have now. However, there is a challenge that the fixed lengths mean that children may miss out on the opportunity to be enrolled in school, for training or for an apprenticeship.
We have some concerns that the findings of the impact assessment that the Government completed may mean that individuals making an early guilty plea may end up with longer sentences than they currently receive. While there would be no additional children’s sentence to detention training orders under this option, that would increase the capacity at any given point of the number of children in the secure estate. We have estimated that to be a potential 30 to 50 places, costing £5.3 million to £8.5 million per year.
Alex Cunningham
Q
Stephanie Roberts-Bibby: We would suggest that some of the changes may further disproportionately disadvantage black and mixed heritage boys—that is indicated in the impact assessment that is currently being completed. We would be very keen to work on some mitigating actions that might prevent those unintended consequences disproportionately affecting those children further.
Chris Philp
Q
Stephanie Roberts-Bibby: We would see the benefits very much related to the skills, experience and expertise that multi-academy trusts could bring into a secure school setting. As you may know, the secure estate is split into three different sections: secure training centres, secure children’s homes and young offenders institutions. The custodial element of those organisations is very strong and probably strongest in the YOIs and the STCs. The introduction of a very different model that accounts for children’s needs will not mean that they will not be secure; it will mean that they have a focus on education, mental health, and a trauma-informed approach to working with children who have complex needs, which is very much needed.
Chris Philp
Q
Stephanie Roberts-Bibby: Gosh. We could probably provide you with a significant amount of evidence on that and I would very much welcome the opportunity to do that in writing to the Committee.
We would suggest coming from the perspective of the child first and using the evidence base that has been developed recently, which focuses on children, their personal and social identity and their strengths, rather than being deficit-based. The evidence, which equally applies to adults, is that if you look for good and build on good, much more is achieved than if you tell people that they are no use and no good and cannot contribute to society.
We know that with children, the earlier we intervene, the better—early intervention and prevention, and targeting services upstream. That is a challenge for youth offending teams at the moment. They have statutory caseloads and trying to balance intervening earlier is really difficult. Some local authorities manage to do that better than others. There is a massive evidence base and we can share the evidence after the Committee today.
Chris Philp
Q
Stephanie Roberts-Bibby: We have been working really closely with the Ministry of Justice on the remand review. We are very keen to understand the data better and to have a look at the trends across the country. One of the things we would really welcome as, dare I say, an amendment to the Bill is for there to be a decision why bail is and is not granted. There is still a lack of evidence on what needs to change for more children to remain in the community, and we want to avoid perpetuating cycles of evidence.
You asked about what more we could do around the remand review. There is certainly something more we could do around trying to knit the system together better, through our heads of regions constantly having discussions with the sector around remand. We are doing quite a lot of work at the moment on developing alternative models for accommodation. We are working across London. We are investing in a pathfinder project to try to develop a different model for children, to prevent them being taken into the secure estate on remand.
Chris Philp
I think that covers everything I wanted to ask. Thank you for the work you are doing.
The Chair
If you do wish to furnish the Committee with further written evidence to support your comments, that would be most welcome. I think Mr Cunningham had a further question.
Alex Cunningham
Q
Stephanie Roberts-Bibby: As I understand it, the inspection framework for a secure school will be Ofsted, quite rightly, because it is a secure school rather than a prison. Of course, there is a role that HMIP might play in helping to share and disseminate best practice. As is the case when Ofsted does an inspection in the secure estate, HMIP is part of that broader inspection team. There is a role for it to share best practice as it sees and finds it.
Alex Cunningham
Q
Stephanie Roberts-Bibby: Some of the principal challenges come from the fact that services for children sit across everyone’s responsibility but no one’s responsibility. There is absolutely something about us continuing to reach out across the Government. We very much see joining services up as some of the leadership space that we are in and will continue to be in, so that children who are vulnerable to offending are seen and are not slipping through the gaps in service provision.
The Chair
If there are no further questions, I thank you very much for your evidence today.
Examination of Witness
Derek Sweeting QC gave evidence.
The Chair
Q
Derek Sweeting QC: I am Derek Sweeting QC, chair of the Bar Council of England and Wales.
Mr Goodwill
Q
Derek Sweeting QC: Two questions there. Would we support them? Yes, because open justice is a really important objective within the justice system. Will they work? There are obvious problems with managing hearings that are accessible over the internet, particularly in an age of social media when people know how to record things and take photographs and video online—that sort of thing. I think there are issues with how you police open justice and ensure that proceedings have the seriousness and gravity that they should have and that you do not get an abuse, particularly on social media, of the facility to be able to see things from afar. But generally I think it is a move in the right direction.
Mr Goodwill
Q
Derek Sweeting QC: Yes. I think at the moment there are already dangers around jurors doing things that they should not through the internet and social media. They are given a very specific warning and written information about what they can and cannot do while they are serving on a jury. I think all of this must be considered with a lot of care. There are bits of court proceedings that I think should not be directly under the gaze of the camera and so on. So there is a lot of room for working out what the protocols are and how things work best.
On the general point, there is plainly a risk that we will have more occasions on which there could be potential contempts of court, but I do not think we can go backwards; we just have to manage these things as we have done with every technological step forward that impacts on the justice system.
Mr Goodwill
Q
Derek Sweeting QC: Well, barristers never do that, of course. I think we are a long way off the American sort of proceedings that we sometimes see. That is perhaps slightly unfair to many American attorneys, who conduct their business with a lot of decorum, even under the gaze of the camera.
Mr Goodwill
Thank you. That was slightly tongue in cheek, although we do occasionally have barristers appearing at the Dispatch Box and I would not comment on their performance.
Bambos Charalambous
Q
Derek Sweeting QC: I think the first part of the question is: what technology have we got in place at the moment?
When the pandemic struck, and once we got back in particular to jury trials in the Crown court, we did see the roll-out of CVP—Cloud Video Platform—which very few of us knew was under development at the time. That was vital to allowing work to resume in many jurisdictions. We have also got a new system on the way, so the technology is improving all the time.
The second part of the question is really about how satisfactory is remote participation by the witness or others in court proceedings, and I think it really prompts the question, if we can do it, whether we should. That is the point—that fact that we can is not really a reason for necessarily doing it. I think it is absolutely clear that proceedings in future will probably involve a hybrid, with some witnesses attending remotely where that is appropriate. That has to be judicially managed. I think for some hearings it is pretty clear that everything could be done remotely, particularly administrative hearings. But in hearings that are serious in their nature because they will result in the final disposition of a case and so on, there is a much greater argument for ensuring that all of the participants and all of the evidence start on the basis that if evidence can be given in person, it should be. Thought should then be given to what is unnecessary to have in person and what could be dealt with remotely.
It is an area where we are finding our way. The Bar Council has just issued a statement with the Bars of the Republic of Ireland, Northern Ireland, Scotland, and of course England and Wales, which I represent, which actually makes that point. It says that there are many aspects of a remote hearing that are not satisfactory, in the sense that they are not as good as having everybody in the room—the old model, where you get two teams together with a referee and you have an adversarial contest. But that model anyway is something that we need to think about as we go forward.
There is plainly a use for more remote, but I think the profession would like some guidance as to what the parameters are for when we should be remote, what the starting position is and when it is appropriate, and only appropriate, to be in person.
Siobhan Baillie
Q
Derek Sweeting QC: The two types of conduct that you have just described are in themselves likely to be criminal offences, so there is nothing new about that. Has protest changed in its nature? I think we have certainly heard some evidence that, particularly with social media, the way in which protests can be arranged makes it much more difficult for them to be managed. I think there is some public concern about that. The measures contained in the Bill, particularly in relation to noise levels and serious disruption to and impact on persons in the vicinity, raise a legitimate question about whether it goes a bit too far, particularly in relation to what “significant” means and who has to take that decision on the ground. You ask whether things have changed, and I think you might look at this and say that almost every suffragette protest would have been caught by the proposed legislation.
Siobhan Baillie
Q
Derek Sweeting QC: I think it is a sensible measure. We welcome the fact that we have got a statutory maximum of 10 years. It was a Law Commission recommendation—clause 59 is what we are talking about. I think the only thing I would inject into the conversation around this is that the Law Commission report itself actually includes a defence of reasonableness, and that defence applies particularly to cases where the conduct is in an exercise of an article 10 or article 11 right to freedom of assembly or freedom of expression. Effectively, you might say that the Government seek to criminalise, on the basis of what the Law Commission’s report addressed, acts that the Law Commission itself thought would be caught by a reasonableness defence in relation to public protest and the exercise of important rights of freedom of expression or freedom of assembly.
Alex Cunningham
Q
Derek Sweeting QC: I think it changes things, rather than adds, doesn’t it? In relation to memorials, we will now find ourselves in the Crown court rather than the magistrates court. It is important to acknowledge that approaching the issue of damage to memorials only on the basis of value, for example, really underplays the quite significant sentiment that attaches to particular memorials and ought to be recognised. However, magistrates already have the power to imprison in relation to the existing offences that would apply. It seems a little unnecessary, I would have thought, to say that all these offences need to be covered by an offence that means they have to be dealt with in the Crown court, with all the extra cost and time that that would entail, particularly in a jurisdiction that already suffers from a significant backlog.
Alex Cunningham
Q
Derek Sweeting QC: I wonder whether the sledgehammer is being used for a nut here. I think you have to reflect public concern about attacks on memorials, but this may just flip the problem from something that perhaps does not provide enough in the way of sentencing options to a much more onerous and ponderous procedure to deal with something that can involve, for example, removing flowers from a memorial, which you would not have thought would be something that could not be dealt with by magistrates. One would anticipate a range of sentencing options within the summary jurisdiction and perhaps in the Crown court as well, but not the need to go off to the Crown court for all these offences.
Alex Cunningham
Q
Derek Sweeting QC: The answer is that we are probably likely to see longer sentences and more of them. I hope that does not sound too pessimistic, but that is the overall effect that you are asking me about. That is probably what we will see if the sentencing reforms are carried into effect, because to some extent they limit judicial discretion and extend the role of mandatory sentencing.
Alex Cunningham
Q
Derek Sweeting QC: You are adjusting the release point within a sentence that has already been passed by the court. I think there is an argument that it might make things more complex, but on the face of it, it seems to me to be something that may actually provide a little clarity within the existing sentencing regime.
Alex Cunningham
Q
Derek Sweeting QC: Which one are you referring to?
Alex Cunningham
The provision about the changes to automatic release and referral to the Parole Board.
Derek Sweeting QC: I am not sure that we have commented on that, actually.
Alex Cunningham
Q
Derek Sweeting QC: The concerns around that are really that it is sensible to try to reduce the complexity of this area—I think the ambition is to reduce down to two—but I think the attachment of conditions to both of the cautions that are left, as a requirement, is not necessarily helpful. It would be useful to have something that was a more general tool that the police could use, that would not turn up in criminal records later on and so on, and that would give the police the option effectively just to give what is now the simple caution.
Alex Cunningham
Q
Derek Sweeting QC: Yes. I think we have drawn attention to the fact that those are not in the Bill, so it would be sensible, we would have thought, to try to do that and to be a bit more ambitious around the youth justice points in the Bill.
Alex Cunningham
Q
Derek Sweeting QC: We do welcome, certainly, the British Sign Language proposal in the Bill. I think that, if anything, we were slightly surprised that there was not some consultation around it. There are jurisdictions in which this is a development and there is some learning about it; there is some practice as well. It involves, generally, two signers, so there is obviously a resource impact as well. This is not just about the interpretation of evidence; someone would go into the jury room when the jury retired. That is likely to require some additional training of signers, because it is a different role from just interpreting. Those are the sorts of things that we think might well have been covered by some consultation.
In fact, in a way, the opportunity was lost, by not consulting, to consider whether there are other categories of disability for which reasonable adjustments and accommodations might be made to enable people to serve on a jury, because it is an important civic duty and the wider the range of citizens who can undertake that duty, the better. So it is the right direction of travel, but we think the arrangements around it will obviously need some thought, some investment and some training for signers, and actually there might have been an opportunity to think a little larger about who else might benefit from similar adjustments or adjustments that are specific to their needs.
Alex Cunningham
Q
Derek Sweeting QC: I hope it is not the case; I think it is once in a lifetime, as far as I am concerned. If I did not make the position clearer earlier, that was because we were really dealing with the general question of remote participation. I think, in the case of remote juries, that is an area where we do have significant concerns, and I think we would oppose the measure that is proposed in the Bill. The reason for that I think you have touched on already: this is not a measure that has been needed over the course of the present pandemic. It is said, I think, to be effectively a just-in-case measure, an emergency measure, but it is wholly unclear what the circumstances would be in which the measure would be required or executed—put into effect. So I think we do have concerns about that.
Fundamentally altering the character of a jury trial by, as the Lord Chief put it, having the jury as spectators rather than participants, which is certainly the view he was expressing about what the impact of remote juries would be—changing it in that way is a very significant change to a very important part of our justice system, a bit of the justice system that really has public confidence, and that we know from the research really recognises diversity and does not produce outcomes that are unfair. I think we need to be very careful and cautious about making significant changes. I think, if we are going to have a measure, it should not be a measure on which we say, “Oh well, there might be a need for it at some point.” If the point arises, it would be much better to consider itin the circumstances of any future emergency, if it occurs. We certainly would not like to see remote juries deployed outside of emergency conditions. There does not seem to be any reason to do that. There is no research about that and no evaluation of the effect on outcomes of having a remote jury. Even in Scotland, where it has been trialled during the pandemic, with much larger juries of 15, it is yet to be evaluated.
We would suggest that it ought to be approached with a lot of caution. It is not a measure that is needed; we can wait until it is needed. Equally, as I think is acknowledged, the technology is only barely there. Again, we ought to wait until the technology can be factored into the mix to consider whether it is a good idea.
Alex Cunningham
Q
Derek Sweeting QC: Those who are vulnerable; young defendants and those who may find it difficult to follow proceedings if they are held remotely, who may need particular access to their counsel, which is much more difficult if you are dealing with things remotely. There is a raft of problems that you may encounter when you physically separate the defendant from the trial process.
Alex Cunningham
Q
Derek Sweeting QC: In the end, it will have to be managed judicially. I am not sure that we need to hem in the exercise of discretion in relation to that. There are already provisions in relation to what the judge must take into account when considering whether there should be remote participation. They are very difficult to apply to juries, by the way, but if they are followed, we will find that they involve a significant number of safeguards for the fair conduct of proceedings.
Victoria Atkins
Q
Derek Sweeting QC: Yes, I think my point was really about the suggestion that the statutory offence—these are the words—is to cover the same conduct as the existing common law offence of public nuisance but, yes, you are right that there is an offence of that sort in there.
Chris Philp
Q
Derek Sweeting QC: Two questions. Is it more convenient? Certainly, during the pandemic it has been important to have a method of holding hearings when we have to socially distance. Under the circumstances of the pandemic, it was vital. Remote hearings have enabled the family jurisdiction in particular to keep on working from the word go—it never stopped. Using technology in those circumstances in remote hearings was extremely helpful. It was certainly convenient during the pandemic.
Is it convenient for everyone? During the pandemic itself, we had some opposing views. Counsel certainly found it convenient, but one or two participants in family proceedings publicly said that they felt detachment from the proceeding. We have to recognise that there are reasons for being cautious about making the assumption that if it is convenient for legal professionals and judges, it is also necessarily a good experience for users. Certainly, there are whole categories of users for whom, if they cannot get to court or if they have mobility problems, the ability to have a hearing remotely is going to be valuable. Of course, we have been in a big laboratory, and we have tested a lot of these things in a way that we that we would not have been able to do in the decades before the pandemic. We need to take forward the best of remote and carry on using it.
Are there disadvantages? Yes, I think there are. There are experiences that we have all heard about, which are salutary and should make us be cautious about just assuming that we can always do things as well if we are doing them remotely.
Chris Philp
Q
Derek Sweeting QC: I am not sure that is right. The point that I was making is that the proposed amendment is to the mode of trial for a limited class of offences of criminal damage. That is the effect of the amendment. It removes the power for an offence involving a memorial to be tried in the magistrates court, however small the value of any damage. That was the point I was making earlier. I was really being asked whether that is a proportionate measure, and the point I was making is that there are some offences involving memorials where one would have thought that the magistrates’ powers are perfectly adequate, and it is not proportionate to require that matter to go to the Crown court.
Chris Philp
Q
Derek Sweeting QC: Well, there might be, but equally there might be cases where it is wholly unnecessary to go to the Crown court. Since the definition of “memorial” extends to moveable items, removing a bunch of flowers from a memorial amounts to the offence. It is difficult to see why that merits a trip to the Crown court. It is well within the magistrate’s existing sentencing.
Chris Philp
Q
Derek Sweeting QC: My understanding that a mode of trial change is being contemplated under part 2.
Chris Philp
Q
Derek Sweeting QC: There are obviously circumstances in which minimum sentences can be used. It is a matter for Parliament. You have to reflect on public disquiet and the need to make sure there is a sentencing regime that reflects the seriousness of offences. The general position is that if you have minimum mandatory sentences, you inevitably tie the hands of the judge to some extent. If you carry on extending that, you are making potentially significant inroads into judicial discretion. The lesson of sentencing is that cases generally need individual sentences because there are very complex differences between them. You were just making the point about judges having discretion to sentence according to the gravity and nature of the crime.
The Chair
Does anyone else have any further questions? I cannot see anyone. In that case, Mr Sweeting, thank you very much for your evidence to the Committee. I thank all witnesses who gave evidence today to the Committee. That brings us to the end of our oral evidence session for today. The Committee will meet again on Thursday to take further evidence. We will meet in this room at 11.30 am.
Ordered, That further consideration be now adjourned. —(Tom Pursglove.)
Police, Crime, Sentencing and Courts Bill (Third sitting)
Thursday 20th May 2021
(2 years, 11 months ago)
Public Bill CommitteesRead Full debate Police, Crime, Sentencing and Courts Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 20 May 2021 - (20 May 2021)
The Chair
I remind hon. Members to observe physical distancing. They should sit only in the places that are clearly marked, and it is important that Members find their seats and leave the room promptly to avoid delays for other Members and staff. Members should wear face coverings in Committee unless they are speaking or medically exempt. Finally, questions to witnesses should be limited to matters within the scope of the Bill, and we must stick to the timings in the programme order that the Committee agreed on Tuesday—we have plenty witnesses and only a finite amount of time. There is one other issue: we have some problems with the cameras, so we can see and hear the witnesses, and they can hear us, but they cannot see us.
We will now discuss the lines of questioning to this morning’s witnesses before we start the session in public.
The Chair
I call the first panel of witnesses. Campbell Robb is the chief executive of the National Association for the Care and Resettlement of Offenders, and Helen Berresford is the director of external engagement for that organisation, so we have two from NACRO. Sam Doohan is policy officer at Unlock. I would like each witness to introduce themselves very quickly so we can crack on with questioning.
Campbell Robb: I am Campbell Robb, chief executive of NACRO for the last two years. I am really pleased to be here—thank you for the invitation.
Helen Berresford: I am Helen Berresford, director of external engagement at NACRO. Thank you.
Sam Doohan: Hi, I am Sam Doohan, and I work for Unlock. We are a charity that focuses on the challenges of people with criminal records.
The Chair
Great. It is nice that we can hear you in the ether. We cannot actually see you either now, so you cannot see us and we cannot see you. We would quite like to see the witnesses if that can be organised. Who would like to ask the first question? I call Sarah Champion.
Sarah Champion (Rotherham) (Lab)
Q
Sam Doohan: There are some things in the Bill that will help to some degree, but there are some omissions. A good deal of the youth offending regime, with regard to criminal records, will stay the same. Larger changes in the Bill, particularly around cautions, are not being made for young offenders, so they will face the same regime as now and will not receive any benefit.
Another critical omission is that once the Bill passes it will still technically be possible for someone to commit a crime as a child, be convicted after they turn 18 and then receive a criminal record as if they had committed the crime as an adult. We are very keen to see some change to that. We firmly believe that we should stick to the principle that young people deserve not only a second chance but special treatment and consideration.
Helen Berresford: While there are some things in the Bill that we welcome in terms of young people—for example, the changes to remand, which will make a really big difference to what has been an ongoing issue for a while—we have a number of concerns about some of the proposals, which will likely increase the number of children and young people in custody and the time they spend in custody, with no evidence of the impact that that will have on either reducing crime or reducing reoffending. We have seen significant progress over recent years with the decrease in the numbers of children being sent into custody. That has been a really positive story, but we are very concerned that a number of the proposals in this Bill will reverse that and increase the number.
Sarah Champion
Q
Helen Berresford: Some of the proposals will increase the sentencing, such as some of the proposals around sentence length and the starting tariffs for murder, for example, and some have implications for increasing the numbers, such as the changes to detention training orders. There are a number of different proposals that will likely increase the numbers of children and young people going into custody.
Campbell Robb: I would add that, overall, some of the welcome things around problem-solving courts and some of those things could be extended into the youth, and we need to see more of that. I would like to see some more discussion during the passage of the Bill about some of the non-custodial approaches that could be introduced in the youth estate, as well as in the adult estate.
Sarah Champion
Q
Sam Doohan: To a large degree, Unlock would say that we are happy with the direction of travel, but we do not think that the Bill in its present form goes far enough. There is something of a split in the criminal records regime, essentially between those who go to prison and those who do not, and we are happy to see that the majority of people who do go to prison will see reduced spending periods for their convictions. However, we are still quite unhappy to see that some people will still disclose for life. We believe that needs quite close attention paid to it.
Further down the regime, even when we talk about what in the grander scheme of things we might think of as quite minor offences, the criminal spending regime around road traffic offences, and speeding in particular, is radically out of step with everything else in the rest of the spending regime. People end up having to disclose, say, a speeding ticket for five years, which is longer than if they had gone to prison for a year. We think that not only does this need to change and be brought into step, but that on the whole we should emphasise not only faster spending but fewer situations in which people legally have to disclose, and a higher standard of demonstrable need to discriminate on the basis of a criminal record.
Helen Berresford: We would very much agree with that. At Nacro, we run a criminal records support service, and we receive thousands of inquiries every year from individuals who are trying, and often struggling, to navigate a very complex system. We very much welcome the direction of travel and the proposals in the Bill to reduce that burden, which is also felt by employers. That is a really important part of this: lots of the employers who we support struggle to navigate the system themselves, and that can lead to them being more risk-averse when it comes to employing people with criminal records.
I agree completely with what Sam said. There are some anomalies and outliers here, and this Bill is a real opportunity to deal with them. Motoring convictions is a great example of that, and I think that can be fairly easily dealt with. There are a couple of other points that come up in this Bill, such as the new out-of-court disposals and the diversionary caution. A simple caution previously did not have a disclosure period, and I think putting one in only increases barriers, which is contrary to the Government’s direction of travel. I think there are some real opportunities to go further and tidy that up, but we very much welcome the direction.
Campbell Robb: I have nothing to add—[Interruption.]
The Chair
Sorry, Mr Robb, we did not hear that because we have a bell going off in our ears. Could you repeat that?
Campbell Robb: I hear the bell ringing. I was just agreeing with both of them; I have nothing to add.
Mr Robert Goodwill (Scarborough and Whitby) (Con)
Q
Have we got the balance right? To what extent is an employer entitled to know somebody’s criminal history? Can we do more to work with employers to get them to understand? Companies such as Timpson, for example, have been very good at taking on people who have criminal pasts, and rehabilitating them. Does the Bill move in the right direction on this? Does it protect employers from potential criminal activity from employees and does it make it easier for people to get into work?
Sam Doohan: The direction of travel is certainly positive. At the same time, we do not think the balance is right yet in the overall rationale for employers at the basic level, who are not obliged to ask for a criminal history and have a free choice whether they do or not. The fact that employers can ask because they are nosy is not fair to applicants at any level.
A 2001 study commissioned by the Department for Work and Pensions said that a lot of the problems around employers asking come from the recruiter and the person who chooses to ask. The study broke that down across several categories, including age and position within a company. There are various factors that make people more willing to ask and more willing to discriminate if people disclose a criminal past.
Another factor that came out from that was that employers would, if given scope to do so, claim that just about any job you can imagine had some tangential relationship to someone’s previous criminal history. Perhaps in a very loose sense, that could be argued to be true, but we see driving convictions being held against people in jobs that do not involve driving, or people with a driving ban, who cannot legally drive, having that conviction held against them for pushing trolleys in the car park in Asda. There is some rationale in allowing employers to ask, but we do not think the balance is there yet. It is being used just to discriminate.
Helen Berresford: The balance point is a really important one. We work with employers as well, and understanding their needs is a really important part of that. For a lot of the employers we have supported, it is about transparency and knowing what they can ask and understanding that point. The system is so complex and arbitrary at the minute, and the transparency is not there, so the faith and trust in the system are not automatically there. We have to get to a point where it is transparent, easy to navigate and much simpler.
Sam’s point about motoring convictions is absolutely right. We have supported people who have had job offers withdrawn because an employer has come across their motoring conviction, which has absolutely nothing to do with the job that they would be doing. It is about relevance for the job. That is a really important factor.
Campbell Robb: As both my colleagues have said, this is a step in the right direction. There is more we would like to see in the Bill. The other point is that, when we get through this, whatever the new regulations are, the Government, working with ourselves and employers, need to really think through how we talk about this. We need to run campaigns and explain to employers and work with businesses and business organisations, so that we do not just all talk about Timpson—which is brilliant at this and does a very good job, but we want to have dozens of organisations. We know they want to do more in this space, but feel put off and worried by the complexity that comes with it. We would like to see a bit more in the Bill, but we also want to work afterwards with the Government and employers to make the measures work better.
Mr Goodwill
Q
Campbell Robb: We work every day with thousands of people who are coming out of prison, trying to settle them. We work with employers across the country to find either permanent or short-term opportunities. Criminal records are just one barrier to many people who are trying to get work when they come out of prison. It is about training and education, rehabilitation in prison and what is available then, and suitable accommodation. There is whole range of factors.
The new changes to the probation system, which I know the Justice Committee has looked at recently, are hopefully opening up some opportunities for all of us who work in this space, to provide a more rounded service. These changes to criminal records will help a bit, but they will make a big difference if we can go just that bit further.
Maria Eagle (Garston and Halewood) (Lab)
Q
Campbell Robb: It is simple: the answer is yes. The commitment in the Bill to community sentences, treatment requirements and problem-solving courts is a real step in the right direction for non-custodial, rounded approaches to sentencing and rehabilitation. When we work with problem-solving courts in the areas that have them, our experience is that they do work. We need to provide that rounded approach to non-custodial sentences, which is to do with treatment, problem solving, a good probation service, training and development. In short, the answer is yes. These are a good thing. We would like to see more of them. The evidence is generally positive, both for pathways out of addiction and into employment, and for reducing reoffending. We look forward to working with whoever is providing them to really get that.
The second thing to add is about better awareness among judges about the success of these courts and how to use them. When the Bill is passed, how do the Government intend to work with the judiciary and other providers to make sure problem-solving courts become more available and better used?
Maria Eagle
Q
Sam Doohan: While we talk about the further end of the criminal justice system, rather than the sentencing part of it, one thing that we see as being particularly positive about problem-solving courts is that while, yes, they are potentially more expensive up front, they have a much stronger ability to head off reoffending, which saves money further down the road in potential future court cases and prison sentences.
We see it as a false economy to say that problem-solving courts cost more in the immediate term. The Government’s White Paper, which led to this Bill, put the cost of reoffending at something like £18 billion—a huge amount of money. For relatively low-level offences that, in the grand scheme of things, are typically associated with reoffending over a more protracted period, if there is no intervention, that extra money is well worth it. We just have to invest it up front and make sure that the solutions actually work.
Maria Eagle
Q
Sam Doohan: Certainly, in the present climate, we would probably see a pilot as a political necessity. However, we would expect a pilot to be very positive. We see no reason why it would not be. It would be nice if we could make them happen tomorrow—have ring-fenced funding and have some long-term commitment to them—but if it takes a year or two years to prove the point and make them a permanent fixture of the justice system, that would be more positive in the long run.
Maria Eagle
Q
Campbell Robb: The evidence from the Bill suggests that most of the approach in it will lead to longer sentences and people in prison for longer. It is also disappointing that there is nothing in the Bill that tackles the issue of the 30,000 short sentences of under six months that are given out every year, which cause significant damage to the individuals involved. We understand the desire of the Government to meet what it feels is the public’s desire to see longer tariffs for some crimes. However, we could have done so much more, particularly on short sentences, to really think through who is ending up in prison, why and for how long.
Maria Eagle
Q
Campbell Robb: I misunderstood, sorry. On treatment orders and the others types of things that we have just been talking about, if they are too harsh or too difficult to pass, or if people have been set up to fail, there is a danger within those that if they are not done properly with the individual and they do not understand the consequences of what they are doing, people could end up back in prison for failing on a relatively minor breach of a treatment order. It is hard to say there is evidence of that, but there is some concern that that might be the case. I hope that answers your question.
The Chair
I will bring in the Front Benchers in three minutes. Mr Dorans, do you want to ask a question?
The Chair
Are all the Back Benchers content and happy? Mr Levy, I did not see you hiding behind the Perspex. You have three minutes before I bring in the Front Benchers.
Ian Levy (Blyth Valley) (Con)
Q
Campbell Robb: Central is the answer. We as an organisation have been working in this space for nearly 50 years, and we feel that the partnership between the new probation service and organisations such as ours, both locally and nationally, is absolutely essential. We need local partnerships in sentencing and pre-sentencing, and in problem-solving courts and the treatment centres. Local charities and national charities should be working together with the statutory services, providing a wraparound—ideally, to stop people offending in the first place.
When people first hit the criminal justice system, we need to bring in organisations such as ours and others in order to be able to work with people and to keep them out of it through education, training and apprenticeships that we can offer at a whole range of levels. When they are in the system, it is about making sure that they get out as soon as possible, and that they get the rehabilitation and education they need when they are in it. Charities are definitely a part of the process, and we would want to see relationships between charities supporting this work.
Ian Levy
Yes, if we have time.
Sam Doohan: I would certainly say that there will continue to be, and there should continue to be, a strong partnership between Government and the charitable sector, but it should also be clear in Parliament’s mind that Government services for probation, youths and all manner of things should not take as read that the charitable can fill in any shortfall. It is important that we work together—we can make more of a difference together than we can separately—but things such as, for example, informing employers about criminal records and the risks associated with hiring someone who has a criminal record, which is the single biggest piece of information that changes an employer’s mind about whether to hire people, are at the moment done almost exclusively by the charitable sector. We are happy to do that work—it needs to be done and it is important—but having more resource and focus from the Government to ensure that message gets out far and wide would be extremely valuable on a number of levels.
Alex Cunningham (Stockton North) (Lab)
Q
Helen Berresford: I am happy to go first. You are right that we are concerned about the disclosure period. One of the other points that I would raise is that obviously the new proposal is for two tiers—a diversionary caution and a community caution. One of the things that we would really like to see from this is a growing use of out-of-court disposals to keep people out of the formal justice system, which we know has a positive impact. The more we can use them, the better. What we do not want to see with this new approach is more people being given the upper-tier caution as a result of it being two tier. We want to see more people coming into out-of-court disposals more broadly. We need to be aware of the risk of more people having the one that has more conditions attached to it, which makes it more difficult.
The second point is very much about the disclosure period. If we take the disclosure period out, we have much more of a chance to use out-of-court disposals in a positive way that does not put up additional barriers and gives people the chance to move on and not to get engaged with the formal justice system.
Sam Doohan: I entirely agree with Helen about the disclosure periods for the new upper-tier caution. That is certainly a problem; I will not re-tread that entirely. One of the other concerns that we have about the new cautions is that now, at least in the adult regime, there will only be conditional cautions, which require a fairly in-depth process of paperwork to set and monitor conditions and ensure compliance. There is now no other caution option available. Those cautions will be delivered largely on an individual officer level and by individual forces.
As a result, forces will be much more hesitant to use a caution. Whereas in the past, they might have been quite content to give a simple caution and send someone on their way with a formal warning or reprimand, now the force in question will have to take on the burden of monitoring, compliance and potentially re-arresting someone if they breach conditions. They will be forced either to go above the caution and see more cases through to prosecution, even though it would not necessarily be in the public interest to do so, or not to take action at all.
As we know with the criminal justice system as a whole, when we start having these slightly weighted decisions about who falls into what tier of disposal, those who are from disadvantaged backgrounds, along the lines of race and religion, almost universally fall into the harsher end, and those who are not do not. We are creating a system that incentivises busy working police officers to say, “Actually, I am going to make this the CPS’s problem, not mine, and I have the choice of who to do it to.” Is that going to lead to good criminal justice outcomes? We think it may not. We do not know yet—I stress that—because it has not been studied, but it does have the characteristics of a system that will not have the desired outcomes.
Alex Cunningham
Q
Campbell Robb: We do have that concern. The Government’s own impact assessment suggests that that might be the case, and that it was in the public interest to continue. We know that, at every stage, young BAME youths, in particular, are disproportionately likely to be stopped and searched, and to end up in the system in different ways. We do have that concern. We would like to see more evidence used to understand what the impact of the proposals might be. We know from previous proposals and reports, such as David Lammy’s, that the system is not working in the way that it could, and there is nothing in the Bill that will positively change that. We urge the Government to think about whether there is more that we could do on that through the passage of the Bill.
Sam Doohan: One important thing to keep an eye on is that the out-of-court disposal family is one that requires co-operation from the person who is receiving the disposal. That is fine if you have a community that is reasonably homogenous and where there is no tension with the police, because people are much more likely to co-operate. They may not see the police as being friendly, but they at least understand the interaction better.
Where there is less community cohesion and there are people from all manner of underprivileged backgrounds who historically do not have good relationships with the police and are less likely to be co-operative, that again puts us in a situation where the out-of-court disposals and their relatively lesser impact on someone throughout the rest of their life will end up going to people from relatively more privileged backgrounds, and those who end up being prosecuted and receiving full convictions will be people from disadvantaged backgrounds.
Alex Cunningham
Q
Helen Berresford: No, I think that is right. Sam has just explained that very well. I think that there is a risk. We can see across a number of the proposals and, as Campbell said, the Government’s impact assessment the impact on people from black and minority ethnic communities. Out-of-court disposals are a good case in point in terms of how we ensure that they do not discriminate. We can see it at every stage. We need to be looking at how we reduce the disproportionality in the justice system, and what actions we can take to do that. We can see that some of these proposals do the opposite.
Alex Cunningham
Q
Helen Berresford: We know from the evidence that community orders are more effective in reducing reoffending than short prison sentences, which are ineffective at doing that. We want to see much better use of community sentences where they are more effective. Community sentence treatment requirements are a really good example of how we can do that, ensuring that we also put in the drug treatments and mental health support that are needed alongside it. That is really important.
A lot of these orders have the potential sanction of being sent to prison if breached. We do not support that as a way forward. We do not think that that is effective. If a community sentence is not working, we already know that a short prison sentence is less effective, so it does not make sense that that is the penalty. There is evidence to show that continuing the support in the community, to ensure that we are actually dealing with the issues, is more effective. It is about ensuring that community sentences are not setting people up to fail, and that the conditions around them try to help with their different needs, such as alcohol and drug treatment, mental health treatment, and homelessness. All those different parts need to be addressed. That is where the focus is.
Alex Cunningham
Q
Sam Doohan: The one thing that needs to be considered with community orders and criminal records is that when a community order is given alongside another disposal and it becomes an ancillary order we have to be very careful about how long we set the orders for. At present, the full conviction does not become spent until the full ancillary order is completed or ended by the court. A lot of orders are given for three years or five years. Some are given for life. We need to be aware of that, so that we are using orders in a proportionate way that matches the intention of them. They should not be given out simply as a five-year ban from this location, say, which will in fact end up with someone taking six years before what is probably a relatively minor conviction is taken off their record.
Alex Cunningham
Q
Campbell Robb: It is one part. To isolate it solely as being effective on its own is not something— It can be a very useful method of keeping people out of prison, but it has to be wrapped around the probationary offer and the other offers available to the individual, so that they have meaningful engagement, either through unpaid work or training or development, and are in stable, suitable accommodation, so that they are not moving all the time. So, in and of itself, it can add some benefit, but it cannot be taken as a single thing.
The Parliamentary Under-Secretary of State for the Home Department (Chris Philp)
Q
May I start with problem-solving courts? Clearly, as with so many things, it is important that the implementation is right; there are some things that work and some things that do not. Can you give your views on the things that have worked and the things that have not worked in problem-solving courts that we have tried in the past—I think there was one in Merseyside a few years ago—and the lessons that we might learn from problem-solving courts in the US, as we design and implement the pilot?
Helen Berresford: This is not something that we have significant expertise in at Nacro, in terms of learning from previous pilots. With any of these things, we have to understand, as you say, what has worked and what has not worked.
The point that we made earlier about the role of building judicial confidence, which was picked up on, is a really important one, and that confidence has to be central to problem-solving courts as we roll them out. Getting the right people involved and the right support functions is important. One of the important purposes—is it not?—of problem-solving courts is that you bring the right people into the discussions and keep them engaged.
I will just refer, for example, to community sentence treatment requirements. We know from our experience of what we have seen that engaging with the judiciary in that process has a really positive impact. That is one of the things we have seen and that we would like to see much more of in the roll-out of CSTRs, and I would say the same for problem-solving courts.
Sam Doohan: In addition to building interest and engagement in the judiciary, one of the other issues is also building interest and engagement among the local population. The courts need to be credible, both to offenders and to the local population. That is probably the biggest step that needs to be taken. If local people think that someone will effectively get just a slap on the wrist and that the problem-solving court does not solve the problem, they will not bother reporting minor crimes and, to some degree, neither will the police. It is very important that that credibility takes centre stage and that the whole process has some faith that its measures will actually be successful.
Chris Philp
Q
First of all, do you share that analysis, particularly where a CSTR might be an alternative to a short sentence? If you do share that analysis, what do you think we can do to encourage the wider use of CSTRs, in addition to the extra money for the actual treatment that is being provided at the moment? I ask that because I would like to see them being used a lot more.
Campbell Robb: Yes, we would too, and I think the evidence suggests that when they are used properly they can have a significant effect, on both the addiction or the mental health issues that people are suffering from, and ultimately—we think in previous studies, but not recently—potentially on reoffending. So we are very supportive of them.
I think that, as you would expect us to say, they need to be part of a wider network that is available, ranging from wider drug treatment services, through the NHS and other public health bodies, to job opportunities. They are part of a holistic approach—part of a whole series of interventions that can help people.
On their use as an alternative to sentencing, we could not agree more. That is the work that Nacro does every day, with hundreds of people across the country. If we can use them to help support people through their mental health issues, or drug and alcohol issues, and keep them out of the criminal justice system, then absolutely; we could not agree more. We are very supportive and would want to work alongside to get more of them up and running as soon as possible.
I agree that having the judiciary, as well as the public, see them as a viable alternative is something we all need to work on once the Bill becomes an Act, so that we really get that buy-in and momentum behind them so that they can be used more widely.
Helen Berresford: We have seen an increase in their usage in the test sites. The only point I would add, without repeating my earlier comment, is that building judicial confidence will be an important part of this. That is a really important thing to learn from. Continually evaluating and learning as we roll these out will be really important, learning where they have worked and where they have not. If we can build that in, I think there is a really positive role for community sentence treatment requirements.
Sam Doohan: There is also an issue with building faith with offenders and the people who will potentially receive treatment. One of the concerns that we hear with these kinds of disposals is that people are worried that their criminal record will show that they have been in drug treatment or mental health treatment. In general, although not in the absolute, that is not a problem, because it will not show up and they will not have to disclose it. But people do not know that and they do not necessarily have a great deal of faith that it will not show up three, four or five years later, when they have turned their life around.
I mention that in particular because a DWP study from 2010, I think, found that the only group who, in employment terms, were discriminated against on a par with people with convictions were alcoholics and drug users. Therefore, ensuring that people understand the full ramifications of co-operating with a drug treatment programme—that it will be private, to a large degree, and that it will give them the opportunity to move on positively afterwards—would go a long way.
Chris Philp
Q
Helen Berresford: Our preference—and yours too, I hear—is very much about looking at community sentences, where they are more effective. If there is an option of custody, I think we really need to build that in as an absolute last resort, and it is worth looking at how we can ensure that is the case. Certainly, on a broader point, in the past we have seen increases in recall to prison, and in some cases people have been recalled for very minor breaches of their conditions, and nothing to do with committing a crime. It is really important that we ensure that is not what we are doing. If there is a condition about prison as a last resort, we have to make sure that it is for a very significant reason and that it is truly a last resort.
Chris Philp
Q
Sam Doohan: Broadly speaking, statutory minimums cause problems. The reduction of judicial discretion means that cases cease to be individual and start to be set by central Government policy. Although it can be argued either way, depending on your taste, were we to follow an American model, where if you get three strikes and then a very long prison sentence for a relatively minor crime, under the current British criminal records system that would almost certainly be disclosed for life, and it would not just be a fairly stiff sentence for repeat offending; it would become a life sentence immediately. That is something always to be aware of when thinking about where we set not just sentencing guidelines, but sentencing minimums in particular. If the judge thinks that six months is appropriate, we should not be the ones to argue with that.
Campbell Robb: We agree that judicial discretion is paramount. We think that is a very, very important consideration. For any changes, it is important to be aware of that and to have an urgent space to see what impact those minimum sentences are having across the piece, in terms of numbers, time and then rehabilitation.
The Chair
I thank our three witnesses for a very strong performance and for answering the questions so fully—it is much appreciated.
Examination of witnesses
Dame Vera Baird, QC, gave evidence.
The Chair
We now move on to our second session. We have Dame Vera Baird, the Victims’ Commissioner. Dame Vera, could you introduce yourself for the record, please? Not that you need a great deal of introduction, as you were formerly of this parish, but just for the record.
Dame Vera Baird: Good morning. I am Vera Baird, the Victims’ Commissioner for England and Wales. I hope you are receiving me. Over.
The Chair
Excellent. We are receiving you—brilliant. I am not sure if you can see us yet, but we can certainly see you. I call Mr Goodwill.
Mr Goodwill
Q
Dame Vera Baird: Thank you very much, Mr Goodwill. It is very good to see you again—we were next-door neighbours at one time, constituency-wise.
I will focus on the digital download point, because it is extremely key. Clause 36 in the Bill is very problematic. We have done some considerable work on it, which I would like to mention. First, let me compliment the Home Office team who drafted it and who approached us to ask what we thought of it. Let me explain that I fully understand, as I guess the Committee does, that the purpose of clause 36 is different from the area Mr Goodwill has just rehearsed.
I understand from Mr De Meyer, who is the NPCC police officer I have mostly been talking to about this, that people say to the police, “Someone is harassing me” or “Someone sent me this. Look at my phone—there is the evidence.” The police are worried that if they take the phone, they might be in breach of the investigatory powers legislation, so they are seeking a statutory power to take a phone off somebody who is voluntarily giving it up. That was good to understand—that is fine—but the power as set out at the moment does not contain any protections for the complainants who are in the position that Mr Goodwill has mentioned.
If I may, I will briefly rehearse the position as it is seen from the victim’s point of view. If you look at a Rape Crisis survey 18 months ago, or if you talk daily to ISVAs, you will find that the view is that on the ground it is practically routine for rape and sexual assault complainants to be asked to hand over digital devices, and for most of the material on it to be trawled, so far as they are aware. Apparently, according to my network of stakeholders, the CPS frequently seeks a level of material straight away, before it charges, and if a complainant refuses, the case just does not get considered for charge. That is very, very troubling, and it has a chilling effect not only on current victims, but on reporting, and it could impact victim attrition.
We did an analysis of a data set showing that one in five victims withdrew their complaint of rape at least in part due to disclosure concerns. Home Office data shows an increase of rape complainants withdrawing pre-charge, and it is right to say that many senior police officers, including Mr De Meyer, accept that there has been a big blow to the confidence of the public in the police because of the whole issue of digital data.
In my own former area—I was the PCC in Northumbria until not quite two years ago—the Home Office funded a pilot of independent legal advice for rape complainants dealing with digital download. That pilot disclosed that about 50% of the requests for digital download of rape complainants’ devices were not necessary or proportionate. Of course, we must take some comfort from the fact that that means the other 50% were, and my understanding is that this pilot worked well. It was praised by 23 of the 25 professionals involved in it because it also speeded matters up: where there was a legitimate request for a particular section of the contents of the device, the independent legal advisor was able to get to grips with its reasonableness and advise if it was reasonable, and it was then very quickly accepted. None the less, 50% of requests were not in that category, and we do know that it influences people about reporting rape when they fear that not only their own personal data, but the data of everybody else who is on their phone—their little brother, their sister, their mother, anyone they may confide in—will also have to be disclosed.
The last three points that I really want to emphasise to let you appreciate the seriousness of this problem are that in 2020, the Information Commissioner published a report about exactly this, and outlined a series of ways in which the police were not complying in a number of respects with data protection legislation. The gateway for consent was one of the concerns, and there was an internal report by the CPS two years ago, which found that 60% of its requests for digital download were over-intrusive and not necessary. A little bit later, HMCPSI found about 40% were in the same category. The police have now done a lot of work to try to shift policy backwards, and this new power—which has no obvious nod, even, in the direction of the protection of complainants—came out of the blue from a different Department of the Home Office, and has absolutely none of the protections that, in policy terms, the police have been looking towards for quite some time.
We have the ICO, the Home Office and the National Police Chiefs’ Council all meeting with us, and we are very pleased with that. We asked whether we can draft some amendments to this that will safeguard the protection the police need, but will also offer protections for complainants when the power is used for this—as it will be, of course. In a very lightning run through them, there is no definition of agreement. What it says is that an authorised person can take information from a device if it has been voluntarily provided and there is agreement to give the stuff, but there is no definition of agreement, and we know very well—as I have just recited—that often, there is a sort of implicit threat that if you do not, that is the end of the story. We defined agreement in a fairly obvious way—fully informed and freely given. There is no requirement at all for the police to specify the nature of the material, let alone the actual material, that they want to look for. It is just all or nothing: you agree or you do not agree. A big concern is that although it is described as information that needs to be relevant if it is being sought, it does not make reference to the very important turn of phrase in the legislation, which is a “reasonable line of inquiry”. It is much broader.
We therefore drafted some amendments that dealt with all of those points and a number more, and we offered them to the Home Office team. I am very pleased to say that the National Police Chiefs’ Council accepted them, and felt that they fulfilled all the requirements that it had and offered some excellent protections. I am very pleased to say that the Information Commissioner’s Office, although it is happy with the code of practice going way beyond this legislation, also accepted them. The Home Office did not. When we tried to probe why, the answer came:
“While the NPCC indicated they were content with your drafted provisions, they have also said they were similarly supportive of the draft we prepared. We incorporated their operational perspective…with the views of our technical and legal experts”.
Mr Goodwill
I think we probably need to move on, because other colleagues want to get in.
The Chair
I think we have to move on now. It is not that this is not important. It is hugely important, but you have asked one question and there was a 10-minute response. We have three colleagues. We cannot do that again. I call Mr Dorans.
Allan Dorans
Q
Dame Vera Baird: I do not think that it does go far enough. Sentencing is not a territory that I want to get into particularly because victims’ views are very different about sentencing. It is by no means the case that everybody who is a victim of crime wants extremely heavy sentencing. There was a piece of research recently by RoadPeace that shows that they are not particularly strongly supportive of the increased sentences for driving offences, and would prefer driving bans rather than what they see as people who have driven dangerously but are not dangerous people being locked up in prison for a long time. They feel that long sentences may deter charging or jury verdicts.
Victims, just like everyone else, are a mixed bag, but what they want very much is to be treated decently by all the criminal justice agencies; to have adequate support and courteous engagement; to be kept up to date; to have all the entitlements when they come to court that will help them to give their evidence well; and to be supported right through, including after the sentence, going into the time when someone is serving their sentence—keeping them up to date about what is happening so that they might then more easily accept what happens when the individual comes out.
That whole procedural justice—what works for victims—is absolutely key. It does start to appear quite well in the new victims’ code of practice, but certainly that code of practice, which is about the sixth version of it that we have had, must be implemented, when the others have not been. There is nothing in the legislation here to help with that. The victims’ law is coming down the line and I hope that we can do more for victims in that.
Apologies for taking a long time about digital download. I meant simply to end by saying that all the problems that we have experienced can be solved by the drafts that we have prepared, which have been accepted by everyone but the Home Office. I urge the Minister in charge to look at that again.
Sarah Champion
Q
Dame Vera Baird: I agree. I wonder whether the problem starts with the victim contact scheme and whether we are not embracing enough people into it. We have done some really good work with HMPPS about that. They are moving to a much stronger invitation to join the victim contact scheme and are offering all sorts of ways to do it, even after the event. That would put people in a position where their statement would be taken, and it would be read.
In fact, during the course of the pandemic, a lot of victims have gone online and read their statement to the parole board. The number of victims who have done that has gone up, and we think the online provision—giving satisfactory remoteness to an individual from a prisoner, but none the less communicating what is good—is probably a good model for the future, but it is imperative that that opportunity is given to victims.
Sarah Champion
Q
Dame Vera Baird: In essence, yes, I do. We have just done a report about special measures, Ms Champion, and it would be good if you looked at it. The problem starts with the fact that the needs assessment is not done clearly by a single agency. It is all across the CPS, witness care units and the police. We have said that it should be in the witness care units. It should be done in a professional and thorough way with them co-ordinating it.
Then there is the real problem that the range of special measures, and the one that might suit you as a witness, are not always available and are not always offered even if they are available. There is a risk of some sort of court culture limiting the choice when the intention is that the best evidence should be given for the benefit both of the complainant, to cut the tension, and of the criminal justice system, to get evidence that it might not get otherwise.
Let me add that the roll-out of section 28 enables vulnerable and intimidated witnesses to pre-record their evidence weeks and weeks—probably, in reality, years—before a case can come to trial, and then be cross-examined on video too so that, many weeks before it comes to trial, they have finished their involvement in it. Obviously, it often just needs to be a choice, but that can be the default position to get a lot of vulnerable and intimidated witnesses out of the queue at the Crown court, put an end to their stress and record their evidence while their memory is fresh. I think that should be the default position available for all the categories that you mentioned.
Sarah Champion
Q
Dame Vera Baird: Yes.
Sarah Champion
Thank you.
Dame Vera Baird: We wrote last year and asked for exactly that.
Siobhan Baillie (Stroud) (Con)
Q
Dame Vera Baird: I am not the lead for the Association of Police and Crime Commissioners; I am the Victims’ Commissioner for England and Wales, and I do not know about that conversation.
There are two difficulties. One is that an unauthorised encampment often causes great discomfort to neighbours of it—that is probably a gross understatement. The other concern I have—very frankly—is that my experience is that the appropriate statutory provision is not always made to provide Gypsies and Travellers with an alternative place that is lawful and so they, too, are put in a very problematic position.
I saw what Martin Hewitt from the National Police Chiefs’ Council said the day before yesterday. He said that he did not think the police needed more powers; it would be much better if more lawful places were made available. And then there is no difficulty with getting Gypsies and Travellers out of places where they should not be, because there is a lawful place to put them. So I am afraid at the moment we have kind of two sets of victims.
Siobhan Baillie
Q
Dame Vera Baird: Yes, I do. It is very important that what victims want, which I have described—procedural justice, being treated with decency, being kept up to date and so on—is provided for in the process of delivering a caution. It looks as if victims are about as satisfied when the offender is given a caution as they are when the matter goes to court, so as long as they are consulted and they are treated as victims throughout, I think it is probably excellent to streamline the nature of this work.
There is one reservation: perhaps something needing a bit of looking at is the obligation to admit guilt in order to get an out-of-court disposal. Sometimes something like a deferred prosecution might be something that a person would be readier to accept, and it should be no more of a problem for a victim. But in principle, as long as victims are involved—we have a massive backlog in the courts, so if we can deal with justice for both sides in some other way, let us do it.
Lee Anderson (Ashfield) (Con)
Q
Dame Vera Baird: I am not an expert on sentencing and I do not think you particularly want my personal views. Do you want the perspective of victims on that?
Lee Anderson
Yes, please.
Dame Vera Baird: It is hard to say because we do not get a lot of victims coming to us and talking about sentencing; they are usually talking more about their own treatment by the justice system. But what I can tell you is that although they are broadly supportive of different sentencing, the briefing that you have probably had—and that we certainly have had from RoadPeace, Brake and British Cycling—suggests that they are worried about the difference between a sentence where someone has caused death and a sentence where someone has “only” caused what might be the very most serious of harms, and they wonder whether there ought to be some nearer proximity between the two.
But victims do say quite clearly that they have concerns about making causing death by dangerous driving and causing severe injury by dangerous driving have much higher penalties, because of the factor I mentioned before: it might deter prosecutions, or it might deter juries, who can pretty easily see themselves in a driving seat when something goes wrong, from convicting. So they have that reservation.
I think the telling line is that victims are not sure why there is such reliance on custodial sentencing for people who may have driven dangerously but are not dangerous people. Is it not better to use driving bans more effectively and not to allow such leeway about the unfairness of it but to make them pretty well automatic? That is their take on it, and I do not think I can second-guess them.
Sarah Jones (Croydon Central) (Lab)
Q
To finish the conversation that we started at the beginning, it would be helpful if you could describe the impact that you think those amendments will have on the process and on the victims. Perhaps you could say a bit more about their sense of confidence in the system. What are we aiming for here?
Dame Vera Baird: We do have to protect the article 8 rights of complainants, and the open nature—the swingeing and unconditional nature—of these clauses does not do that. I have set out all the people who have commented on how commonplace it is for a victim to have their phone demanded and for it to be trawled, as it is called on the ground. I have set all that out.
The consequence, of course, is that complainants, who say they have been sexually assaulted—they are already injured, and we have already failed to protect them against crime. They are probably vulnerable. They are certainly very nervous. They have heard that it is not a nice thing to go to court. They probably know the conviction rate is very low. They have got together the courage to go and talk to the police and to discuss the case, and they seem to be met—my survey last year made this very clear—with police officers who are looking askance at them as genuine victims and saying, in effect, “Hand over everything there is for me to know about you, so that I can check whether you are a worthy person for me to get behind and prosecute this case.”
Other than sexual assaults, rapes and trafficking, and occasionally domestic abuse, I do not know of any other kind of case in which the download of phones is used in that way. It is not just the download of phones. Frequently the police ask for, and frequently the CPS requires, all health notes, psychiatric notes, school reports and social services reports, which obviously adds to the tendency to think that you are the one under investigation, and not the other. This is a massive deterrent and, not surprisingly, a good reason why people withdraw.
Following the pilot we did in Northumbria, which was highly successful, it is very important that there should be automatic legal advice. When someone’s article 8 human rights—we have an obligation to protect human rights—are put at stake by what the CPS has found are overly intrusive demands in 60% of cases, the only way to try to deal with it, given that there are a whole range of cases about it, is to get free, independent legal advice for the purpose of discussing and ordering with the police and the CPS what is appropriate to seek, what should be disclosed and what should not.
Our amendments say that, and we have sent those to the Government. I think we have also sent them to every member of this Committee. I hope that the Government will realise that although it has an end-to-end rape review—the purpose of which is to restore confidence and restore prosecutions—this piece of legislation is actually running in the opposite direction and is likely to make things worse.
Alex Cunningham
Q
Dame Vera Baird: What needs to happen is that section 28 needs to be the default option, so that rape complainants can finish with the trial while their memory is fresh and facilitate getting some trauma therapy, if that is what they need—section 28 and independent legal advice. I think it is fair to say to the CPS that if they require a level of data from phones and other places and they find something, however irrelevant, it may call the complainant’s credibility into question. There was a terrible case when I was a PCC in Newcastle, where it was put to a woman of 23 that she had always been a liar because she had lied by writing a letter to her school saying that she could not go to the swimming pool that day, and forging her mother’s signature. She was 12 when she did that. If something like that is found, the police probably think they have to disclose it to the other side, because they have a full duty to do so.
The point is not to look for ridiculously irrelevant material, or you are in pursuit of what I think victims think the police are looking for, which is the perfect victim. Of course, none of us would be a perfect victim in that sense, so that needs very much to be met by legal advice. It may be that once that material is found, there is no power in the CPS to do anything but disclose it. It is arguing at the beginning about what material should be sought.
It is absolutely clear that the Crown Prosecution Service has to start prosecuting rape. It now prosecutes around 1,700 cases a year, whereas for the best part of a decade, prior to a change in its approach to rape in 2016-17, it prosecuted 3,500 cases a year and got a corresponding number of convictions. Now it is prosecuting only half as many as that and getting convictions only in three figures, which is a terrific collapse. That approach, which changed, needs to be changed back.
There must also be good provision of independent sexual violence advisers. Anyone who comes to make a complaint, which is a very courageous thing to do given what they have gone through, the imbalance of power between them and the police and their complete lack of awareness of what the criminal justice system is like, needs a professional friend beside them to help them to cope. They may need to move house, if the rape was in the house, or move job, if the rape was connected with the job. At least a professional friend can help with those things, and you cannot expect a complainant to cope with that as well as with the criminal justice system. All that seems imperative. I am mindful of the Chair’s wish for brevity from me, so perhaps I will write to you with a longer list.
Alex Cunningham
Thank you very much for that. I think you have covered everything that I needed to cover.
The Parliamentary Under-Secretary of State for the Home Department (Victoria Atkins)
Q
On the point about digital divides, do you accept that there is a need to clarify the law on this? At the moment, we have the Criminal Procedure and Investigations Act 1996 and we have the Attorney General’s new guidelines, but presumably you accept that there is a need to set a framework in law in order to help and protect victims, and to protect the right of a free trial under article 6 of the Human Rights Act 1998?
Dame Vera Baird: I think national legislation to clarify the law about this is imperative, but it is just not this national legislation.
Victoria Atkins
Q
Dame Vera Baird: Yes, of course we have to do so. I am not sure you will be doing that with this power. I think there is a real human rights challenge here already, and I am pretty satisfied that there will be data protection challenges too. Yes, of course data protection is the law and it is important. I do not think this fulfils all your obligations under that either.
Victoria Atkins
Q
“that information stored on the electronic device is relevant to a purpose within subsection (2)”.
That wording of course comes from the 1996 Act, doesn’t it?
Dame Vera Baird: I do not know which it comes from, but “relevant” is no good, Minister. “Relevant” is not a reasonable line of inquiry. Somebody who comes across the letter from the lady in Northumbria might think that is relevant. I do not think that finding it is a reasonable line of inquiry. A reasonable line of inquiry in the CPIA is the right test, and this is the wrong test.
Victoria Atkins
Q
Dame Vera Baird: There is a test of a reasonable line of inquiry under the CPIA. That is the test, and that is very much a narrower test than the one in the proposed clauses. I have to say, because we narrowed it from relevance down to a reasonable line of inquiry in our amendments, the police were happy to accept that, so I am not sure why the Home Office wants it to be wider than the police want it to be.
Victoria Atkins
Q
“satisfied that exercise of the power is necessary and proportionate”.
Again, that wording applies across the board in terms of criminal proceedings. Is that correct?
Dame Vera Baird: I have come across the terminology before, but it is highly subjective. Insufficient detail is gone into for it to have the meaning that it is important to have. I think it is a very good thing, if I may say so, Minister, that you have accepted that the backdrop against which we approach these clauses is a very, very undesirable one, where confidence has been lost by over-demands on vulnerable complainants’ personal data. It is hugely important therefore to put into the legislation every protection that can be put in, for fairness. Remember, there is a massive power imbalance in the relationship at the time of the requests—
Victoria Atkins
Q
The codes of practice under the Police and Criminal Evidence Act 1984, for example, are vital codes of practice that are relied on in court. If a police officer does not meet the standards expected by that code when interviewing suspects, for example—if there is a significant breach—the entire prosecution can fall. Do you accept that although we are rightly looking at the wording of the clauses, just focusing on those would not give the full picture? We also need to consider the importance that the code of practice will have. It will deal with some of the practice points that you have raised.
Dame Vera Baird: I do not think it is the right analogy to compare any code of practice. Let me tell you, the code of practice under this is invisible or non-existent. Codes of practice are discussed though they are the answer to it all. The first thing to say is that they do not have the power of statute, and if the legislation goes through as it is now, that is what the police will likely rely on. Of course a statutory code of practice under PACE has the consequences that you described, Minister, but that is because if you break the code of practice under PACE, it impacts on the defendant. The defendant can say, “Oh, that’s been done unfairly and jeopardised my fair trial,” and a breach can even be the end of a prosecution. There is absolutely no power for a rape complainant to have a similar resolution of a breach of any code of practice in this legislation. They can breach the codes of practice until they are blue in the face, and it does not make any difference to the trial.
Victoria Atkins
But you accept—
Dame Vera Baird: That is a difference in power, is it not? That is an important point.
Victoria Atkins
Q
Dame Vera Baird: I am sure you accept the difference, though, Minister—
Victoria Atkins
No—
Dame Vera Baird: There is no possible remedy or solution for the complainant that is analogous to the outright acquittal that can be a consequence of breaching the PACE code of practice, because that is about a defendant. This is about a complainant. What do you suggest would be the solution if the code of practice were breached in my case of rape and too much documentation was taken and disclosed? What is my remedy?
Victoria Atkins
Q
Dame Vera Baird: I would like to answer that, if I can. They are the only thing, because there is no sign of a code of practice. There is no draft code of practice at all. When I ask what my remedy would be as a rape complainant, you say to me that the police will be accountable, but how will they be accountable? It is not a crime and it is not a tort to break this code of practice, so what is the remedy if it is broken? It is not an analogy with the PACE code of practice. Do not over-rely on this code of practice, Minister. You and I share the aim of protecting complainants. Do not over-rely on a code of practice no one has ever seen and that does not have statutory form.
Victoria Atkins
Q
Dame Vera Baird: If those routes really do exist, have they been working, Minister? I do not remember any complainant being able to come to me as a PCC and complain about an individual case. Let’s face it: the dire situation where the public, or at least this sector of them, have lost confidence in the police has occurred at the time when all of those bodies that can call them to account have been in play, and they have not called them to account.
Victoria Atkins
Q
I will move on to unauthorised encampments. You were asked about the impact and you fairly conceded that residents can be victims in the context of unauthorised encampments. Clause 61 sets out the offence. The conditions that are laid down for the alleged commission of an offence include factors such as “significant damage”, “significant disruption” and “significant distress”. With your focus on antisocial behaviour, presumably you welcome the focus on those unauthorised encampments that result in those sorts of distressing conditions?
Dame Vera Baird: I would not want anyone to suffer from any of those, but causing damage—I do not know what that is. If you are on an unauthorised encampment and you have not got a lavatory so you dig a latrine, is that causing damage to the field? I think it depends how it is defined. I really cannot go much further than saying that unless there is proper provision of authorised encampments, you have two sets of victims. I quite agree with you that the people who are distressed, damaged or whatever by an unauthorised encampment are victims of that. There is no doubt of it—you have made your point—but I want you to take into account the difficulty of finding somewhere to camp in a lot of places, which forces people into an unlawful place. Of course, damage is not justifiable, but that is a factor to consider. I was so pleased when the NPCC appreciated that as well.
The Chair
Order. I am afraid that brings us to the end of the time allotted for the Committee to ask questions. I thank the witness again for her evidence.
Police, Crime, Sentencing and Courts Bill (Fourth sitting)
Thursday 20th May 2021
(2 years, 11 months ago)
Public Bill CommitteesRead Full debate Police, Crime, Sentencing and Courts Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 20 May 2021 - (20 May 2021)
The Chair
I will introduce our panel of witnesses. If they can see us and hear us, that is an improvement on this morning when they could only hear us. We will hear from Iryna Pona, policy and research manager at the Children’s Society, and Will Linden, deputy head of the Scottish Violence Reduction Unit at Community Justice Scotland.
Colleagues, we have until 2.45 pm for this section, so just under 45 minutes. Will our witnesses introduce themselves for the record, please?
Iryna Pona: My name is Iryna Pona, policy and research manager at the Children’s Society, which is a voluntary sector organisation. We work with young people who are criminally or sexually exploited, who have experienced abuse or who have gone missing from home or care. We do policy and research and also work directly with children and young people delivering one-to-one support group work as well as therapeutic support for children.
We also have national programmes such as the disrupting exploitation and prevention programme. These programmes, as well as working with young people, also work with professionals to help them improve their responses to children who are criminally or sexually exploited. Our prevention programme funded by the Home Office also runs campaigns. The #LookCloser campaign is about raising the awareness of the public and professionals of child exploitation with the aim of better identification and better and earlier support for these children.
The Chair
Thank you. Mr Linden next.
Will Linden: Good afternoon. I am Will Linden, deputy head of the violence reduction unit in Scotland. We are an independent unit as part of Police Scotland. We look at prevention in all of its guises in reducing violence from cradle to grave. We have been doing this since 2005. We adopted a public health model fairly early on.
Sarah Champion (Rotherham) (Lab)
Q
Iryna Pona: I think having a definition of child criminal exploitation would be very helpful. When we did research on child criminal exploitation, one of the messages that we had from loads of professionals, both working with the Children’s Society but also working with the local authority and police, was that different services—
Sarah Champion
Sorry, I am a bit deaf and your link is a bit iffy. Is there any chance you could speak a little slower, please?
Iryna Pona: Of course, yes—sorry. I was saying that the lack of shared understanding of what child criminal exploitation is prevents co-ordinated, joined-up responses to children who are criminally exploited, particularly responses that happen at earlier stages, when the children are groomed for child criminal exploitation.
Also, when children come into contact with police and law enforcement agencies, we know that they are still more likely to be treated as young offenders rather than being seen as victims of crime. So having a definition that all agencies—police, social care, the voluntary sector and others—can share and understand in the same way will really help to change attitudes and also help with how support is provided.
We also believe that the definition needs to be quite broad and not just focused on county lines. We have seen in recent years that there has been a huge focus on county lines, which is really welcome, but the county lines model of child criminal exploitation is just one type of criminal exploitation. We know that children may be exploited in a variety of other ways and that these models constantly evolve and develop.
Having a broad definition that would explain to everyone involved that child criminal exploitation is when someone manipulates a child into undertaking criminal activity would go a long way to improving the responses to children who are criminally exploited and it would improve early intervention as well.
Sarah Champion
Q
Will Linden: It is not necessarily my area of expertise, but I will just back up what Iryna said there. The challenge if you set a definition for child criminal exploitation is to make sure that the definition is wide and dynamic enough to cover things. The problem is that if we set definitions, we then work to them; we work to that bar—and if, for whatever reason, a young person does not qualify for or meet that definition, they can fall within the gaps in the system.
We have to be quite careful with the definition, to make sure that it is encompassing and that it is not fixed at any point in time; if we are writing it just now, the definition of “exploitation” and what happens to a young person who is being exploited will change. We have to be quite careful. It is important that we write a definition and have one, so that we understand what the services need to do, but we must not get absolutely fixated on it.
Sarah Champion
Q
Iryna Pona: From what we know about this issue, definitely not enough data is being collected. In relation to child criminal exploitation, some data is collected through the national referral mechanism when young people are referred to it. From October 2019, it started collecting data specifically on child criminal exploitation, because of the huge increase in the number of referrals. It is really helpful, but in our opinion it is only the tip of the iceberg.
No similar data is collected through social care. I know that social care will introduce this as one of the factors in assessment—from this year onwards, I think. However, at the moment we do not know the true scale of child criminal exploitation. There is some proxy data, which is about how many children have been arrested, but I believe that at that point it is too late. We need to start identifying child criminal exploitation much earlier, to offer help much earlier.
There are also gaps in relation to child sexual exploitation. Some data is collected by the police and is available from them, but police data often focuses on crime; it does not always include children aged 16 or 17 who are victims of sexual offences because of the way the data focuses on crime. It is acknowledged in the Government’s sexual abuse strategy that that is a gap.
We also do not necessarily understand the progression from identification to prosecution of these cases. There is no clear data in relation to that, which I think impacts on how agencies can see the bigger picture, gather information and plan a relevant response to these really serious crimes. Regarding prosecution, some data is available, but it is very limited.
Sarah Champion
Q
Will Linden: The Scottish perspective is very similar, but this comes down to the fact that we collect a lot of data on individuals and families—crime data, health data and social work data. The problem is that the data do not speak to each other.
We often hide behind GDPR and data protection rules. The datasets and the data holders need to be more aligned so that when we are trying to make some of the strategic decisions, we can interrogate the data better, understand the impacts on families and understand the impacts on young people. For me, this is not about collecting anything new; it is about using it smarter. From Scotland’s perspective, I do not think we are much further ahead than where we are in England and Wales now, because we need to get smarter at that too.
Sarah Jones (Croydon Central) (Lab)
Q
Will Linden: I come from a background of looking at prevention and looking at what works, both from a public health perspective and from a criminal justice perspective—not any particular one lens.
Looking at the Bill and what it is trying to do with violent crime reduction orders and other aspects, the intent is there to try to reduce violence. Some of the challenges I have with it regard the unintended consequences of the Bill. If you are going to use some of the measures in it, such as what are essentially increased stop-and-search powers and increased powers over individuals connected to, and guilty of, violent crime and carrying knives, we have to be sure that those are the targets that we want to target with this, because we really need to be focusing on those who are the most at risk of committing the highest level of violence.
For the majority of young people—it will be young people who are caught up in some of the violent crime orders—they will probably be one-off offences. What we will be doing is further criminalising them, and the unintended consequence is that we might be pushing them further down a criminal justice pathway. Looking broadly at the Bill, it is a good idea in principle, but it is about who we point it towards and who we target it at. If we are targeting it at a wide spread—everyone who is caught with a knife, or everyone who has something to do with violent crime—and everyone becomes a part of the Bill or a part of this order, the consequences could far outstrip the outcomes that we are going to try to achieve.
Iryna Pona: From the Children’s Society perspective, we are supportive of the intention behind the duty to bring together different agencies to develop a strategy to reduce and prevent serious violence in their areas. However, we know that the success of such a duty would rest a lot on how it is implemented locally. It is really important that the duty is formulated in such a way as to encourage the greatest focus possible on the safeguarding of children and on the early intervention and support for children and families, as opposed to being seen as a crime reduction initiative.
We therefore believe that for the duty to have a significant impact on reducing the criminal exploitation of children when criminal exploitation is linked to violence or children’s involvement in violence, it is important that the safeguarding of children is recognised and included in the name of the duty, encouraging multi-agency action to address the underlying causes of violence, such as poverty, poor housing, exposure to domestic violence, and criminal and sexual exploitation.
All those are really important, because I agree with what Will said. Potentially, if it is just treated as a crime reduction initiative and prevention is focused on police action, it is very different from when it is safeguarding and focused on offering the best support possible to children.
Sarah Jones
Q
Iryna Pona: Yes. I believe it will help with interpretation of the duty locally, to enable it to be interpreted in a very similar way across the country and to focus attention on action that needs to be taken by different agencies locally on safeguarding children and taking action to provide support. It is not necessarily preventing escalation or further involvement in violence, but preventing as early as possible involvement in any violent activity. That would be really important.
I also think there are other simple ways in which the duty can be improved—for example, by making sure that when the strategy is produced, social care is part of the consultation, because it will have information about who the vulnerable children are, what the level of need is and how things can be improved locally.
There are different elements related to the duty—for example, about information sharing—that are also important. Information sharing is obviously a very important area. We agree that it is crucial that relevant information is shared to enable agencies working together to plan a better response to children. But there is also something in the duty and in the accompanying guidance that suggests that information may be shared or requested directly—for example, from schools—by the police about individual children. We would have concerns about that, because schools have such an important role to play; school is a place where children have trusting relationships with teachers and educators. It could undermine some of the trust that children have. We believe that there are already in place multi-agency structures—such as multi-agency safeguarding hubs or multi-agency risk assessment conferences—that are better placed for that information sharing about individual children.
So I think there are elements in this duty that are really important, but there are also ways to improve it.
Sarah Jones
Q
Iryna Pona: Plugging is when young people are exploited by criminal groups to deliver drugs across the country and—sometimes—they are delivering those drugs inserted in cavities in their bodies. It is a horrific experience for children—it is also a great risk to their health. Unfortunately, it is something that a lot of children we are working with are experiencing. It is experienced by a lot of children who are exploited by criminal groups for county lines drug trafficking.
Sarah Jones
Q
Iryna Pona: Yes. That definitely came up a lot when we were doing our research for the county lines report. Practitioners were—[Interruption.]
Sarah Jones
Q
Will Linden: A public health approach to tackling violence is quite simple. It is about using an evidence-based approach to address the causes of the violence in the first place—looking at the challenges, the underlying situation and the underlying evidence, and addressing them before they becomes a wider issue. The public approach is nothing to do with specific trauma or with criminology; it is solely about applying what works at the earliest possible stage. It is evidence-based, it is tried and tested, and it is there to try to deliver long-term, sustainable outcomes. Obviously, over the last year we have all become aware of the public health approach in terms of dealing with the covid situation. This is the same idea: it is looking at what works. How do you vaccinate a community? How do you try to reduce violence? In relation to young people and violence, it is not necessarily about crime, prison and stop-and-search; it is about why they got to that point in the first place and what we can do about it.
Sarah Jones
Q
Will Linden: There are a number of thoughts about that in terms of what has happened over the last few years. There are increasing levels of inequality and the reductions in the services that are available because of some of the decisions we have had to make; there are also issues such as social media and young people’s culture. What is interesting for me from a Scottish perspective is that although we have seen increasing levels of youth violence in England and Wales, we have not seen the same thing in Scotland. We have seen the level of violence change, go up and stabilise at a certain level, but not necessarily among young people. It is a different group and a different type of violence.
There is something particular happening within certain cultures in certain areas of the UK. We know that violence is not constant across the whole country; it is in pockets. For example, in Scotland, about 60% of the violence is attributable to less than 1% of the population at a very small geographic level. Although we talk about looking at a public health response to the whole country, it is sometimes about much more targeted interventions at a local level.
Sarah Jones
Q
Will Linden: I do not hold much stock in the comment that violence is just increasing anyway, because throughout the western world violence has been reducing for centuries. We are safer today than we were yesterday, despite what the crime figures, and sometimes the newspaper headlines, tell us.
In Scotland, we looked at policing to start with. Policing is incredibly important, because sometimes you have to stabilise the patient and deal with the problem before you can put in prevention measures and deal with the underlying causes. For us, that was heavily about education. It was about looking at schools and access to young people, who were our initial target, our biggest group and our biggest challenge, predominantly in Glasgow and the west coast of Scotland, not in the whole of Scotland. That is who we targeted.
We targeted young people with education, programmes and advertising campaigns. We looked at how we could get people into jobs and mentor and support them. It was not a one-fix thing. It was about trying to understand the local situation, so in specific areas of Glasgow we looked at the gangs problem, and in Lanarkshire we looked at unemployment. It was about looking at different problems and trying to apply the solutions locally. That took a great deal of partnership working and a great deal of intelligence and information.
Maria Eagle (Garston and Halewood) (Lab)
Q
Will Linden: That is an important question, because they do have to fit in with existing structures. One of the successes we have had in Scotland in delivering on the strategy is because we are connected in. We are connected into policing. We are connected into the Government. We are connected into local government across the country. If you are introducing any new structures alongside that—VRUs; it does not matter what it is—how are they going to connect into local delivery and local services? More importantly, how is it going to connect into local communities?
If we are looking at strategies based on short-term turnaround—for example, we are going to provide x amount of money to provide a reduction in the next year—that is not going to work, because you are looking at how to build the building blocks, within these communities, areas and partnerships, that are going to deliver long-term, sustainable outcomes. That does not mean that the partnerships, in whatever area of the country they are, cannot get reductions just now, but what we want to do is to build upon those short-term wins in order to build long-term, sustainable reductions that are built into the system—that are not additionality.
Maria Eagle
Q
Will Linden: We do not have any experience in what you are looking to do down in Merseyside or any other areas, but you need to think beyond the traditional route of crime indicators because of the length of time involved.
You can look at trying to reduce the levels of crime and violence, but what we are dealing with just now is a post-pandemic situation. Over the last year, we have seen significant changes to communities’ environments, so you might actually face increasing levels of violence and there might be increasing problems over the next year or two as a result of the consequences of the last year, and post recovery. If you just tie yourselves down to simple crime figures and recorded crime figures, you could be challenged on that. What we will have to do is to look at some of the other figures around things like community wellbeing, trust in the services, trust in policing and education figures, and try to take in a broad spectrum of outcomes, particularly when we are looking at young people.
If our outcome is solely about reducing crime, that can be achieved quite simply with two things. Recorded crime can be reduced by changing the law and stopping recording it; that is easy. But if you want to reduce the harm that violence causes our communities, you have to look at all the various measurements that measure harm. Some of those are simple, like the crime surveys. Others are much more complex, in terms of mental health or wellbeing. I would look to try to include as wide a sweep as possible, to try to get an understanding of its wider impacts, not just the simple ones.
Maria Eagle
Q
Iryna, I am asking about the serious violence reduction units and how they are going to fit into other arrangements that are already there. From the perspective of the Children’s Society, do you have anything to say about how the new multi-agency collaborations are going to work alongside violence reduction units and existing structures that are supposed to promote collaboration between agencies?
Iryna Pona: First, apologies for being disconnected. There were some technical difficulties.
The violence reduction unit is obviously quite new, and they also work in very different areas. With the new duty to focus on serious violence, I think it is very important that in the way it works, it should be complementary and joined up with the work of the violence reduction unit. It is also important to understand that areas where there are violence reduction units receive additional funding to undertake violence reduction activity locally, but that is not available across the country. It is really important that the new duty is supported with appropriate resources and delivered locally.
The Children’s Services Funding Alliance, which the Children’s Society is part of, looked at the funding from 2010-11 to 2018-19 on early intervention and late intervention services. It showed that the funding for early intervention services reduced by 46% during that time, while the funding for late intervention services increased by 29%. That shows that there is not enough early intervention available. It is important that where there is activity that focuses specifically on diverting young persons from being involved in violence or violence-related activity, it comes together with funding to address the underlying causes of why young people may be in a situation where they may be exploited in a particular way or drawn into certain groups and activities.
It is really important to understand that local picture. In that respect, it is really important that violence reduction units and local safeguarding partnerships work together to understand those underlying causes and try to develop a strategy that will comprehensively address those local issues.
Sarah Champion
It is extraordinary. I have tinnitus, which is why I am deaf, so that ringing—
Sarah Champion
Q
Will Linden: The impact on a child receiving a criminal record is extraordinary. It sets you on a pathway for life that makes things much more challenging. It can be traumatic and it can hamper you having a job or a career in the future. It can take you further down the criminal justice pathway, where you can get further involved in criminality but you are actually more likely to be victimised and to be the victim of crime. Having young people involved in anything to do with the criminal justice system is not, under any circumstances, a thing we should ever aspire to. The criminal justice system is one of the necessary evils that we require in society at present and we should do our best to keep young people out of it as much as possible.
The Chair
Does anybody else have anything they would like to ask our excellent witnesses? No? Well, I thank the two of you for giving up your Thursday afternoon to join us. I am sorry that we lost you occasionally and that there was background noise, bells and banging, but we got there in the end, so thank you very much.
Examination of Witness
Hazel Williamson gave evidence.
The Chair
Good afternoon, Hazel, and thank you for being ready to join us early. Hazel Williamson is the chair of the Association of Youth Offending Team Managers. I have just introduced you, but I think we need to do you the courtesy of allowing you to introduce yourself very briefly.
Hazel Williamson: Thank you. I am very grateful, and I am delighted to be able to give some evidence today. Yes, I am Hazel Williamson, and I am chair of the Association of Youth Offending Team Managers. I have been chair since September last year, and for two years before that I was vice-chair. My day job is head of Staffordshire youth offending service.
The Chair
Thank you very much. We have a question straight away from Mr Robert Goodwill.
Mr Robert Goodwill (Scarborough and Whitby) (Con)
Q
Hazel Williamson: In terms of custodial remand, we have seen a significant reduction under the previous legislation and the current legislation. Under the Legal Aid, Sentencing and Punishment of Offenders Act 2012, we have seen a reduction in remand. Some of the challenges that remain for remand are around those robust packages, and in particular suitable placements, for our children and young people. We know that placements is a national issue for children and young people, and finding the most suitable is really difficult. What we know about our cohort in the youth justice system now is that they have changed over the past 20 years. They are presenting with significant trauma and abuse, often as a result of exploitation. That makes it really difficult for our local authority colleagues to source an appropriate placement.
Mr Goodwill
Q
Hazel Williamson: With remand into custody, we would always try to offer suitable alternatives wherever possible, whether that is a robust bail package supported by our youth offending teams or remand into the care of the local authority with that additional support. We know that in the custodial population, there are high numbers of children who have been looked after or are currently being looked after, along with other needs, but wherever possible we would try to work with our local authority to seek that suitable alternative to remand.
Mr Goodwill
Q
Hazel Williamson: In particular, I would like us to record remand decisions more robustly in the courts. We need clear decision making; we need it to be clear why we have made those decisions. Also, we should take the opportunity to encourage regular reviews of remand and seek alternatives wherever possible.
I think on a national footing we need to be working closely with the Department for Education and our director of children’s services to develop a more robust placement process and improve the quality of the market for placements.
Mr Goodwill
Thank you very much indeed for those clear and concise answers.
Maria Eagle
Q
Hazel Williamson: We are obviously supportive of anything that improves youth custody. We know that outcomes for children who end up in youth custody are poor and have been for some considerable time. The recent inspection reports will detail that we do not yet have the significant improvements we need in youth custody.
As an association of YOT managers, we believe that children in custody—custody should be a last resort—should be placed in small, secure units close to their homes. We do not advocate large custodial establishments where children are placed far away from their home; we would advocate small custodial units. As for the academy trust, it remains to be seen what the detail is around the secure school and how children will manage as part of the routine within that environment.
Maria Eagle
Q
Hazel Williamson: If we look at the proposal for an extended intensive supervision and surveillance programme, it did not have great results when it was previously piloted, and it was not piloted on a scale to allow an effective evaluation. We as YOT managers are not convinced that the extended ISS is the way to go. We are absolutely committed to ensuring that custody is the last resort for children and young people.
The other proposal in the Bill that we as an association have been discussing is around intensive fostering. Staffordshire youth offending team—my service—was part of one of the pilots. That scheme was extremely expensive and did not necessarily get the expected results for those children and young people. So while we absolutely support robust alternatives to custody, I think we need to be consulting with our youth offending teams to try to examine what we think will work with the cohort of children we are dealing with.
Maria Eagle
Q
Hazel Williamson: There has always been a disparity for our girls in the system. I am concerned overall that the numbers of children going into custody will increase with some proposed mandatory sentencing, and I am concerned that it will impact in particular on our girls and our black and minority ethnic children—particularly our black and mixed heritage boys. I am also concerned that it may impact on our children who are looked after. There are some particular groups in the youth justice system who I believe will be adversely affected by some of the recommendations in the Bill.
Sarah Champion
Q
Hazel Williamson: I am not going to put a figure on it, but we know that we get better outcomes for children and young people who are placed in secure children’s homes that are generally run by people who are social work and social care-trained, and that provides a much more nurturing environment. It is a children’s home with security rather than a custodial environment overseen by prison rules.
Sarah Champion
Q
Hazel Williamson: I think there is a missed opportunity in the Bill to really strengthen the rights of children, whether that is in the community or in custody. There is a missed opportunity in that we are not strengthening our welfare-based approach to how we deal with children and young people. We know that children are different from adults, and we should take a stronger welfare-based approach with our children and young people. I definitely think that could be strengthened in the Bill.
Sarah Champion
Q
Hazel Williamson: Some things in the Bill mean that some of our children would receive mandatory sentences. I do not think it necessarily outlines for us how children’s welfare and the needs of children would be taken into consideration.
Sarah Champion
Q
Hazel Williamson: That is really a commissioning contract that we have not been party to. In the association’s view—I go back to my previous point—children should not be looked after where they are governed by prison rules, primarily.
Sarah Champion
Q
Hazel Williamson: It is slightly more. There is no doubt that paying for care for children where we want better results will inevitably cost us more. If we compare that with what it would cost for what is being proposed in the community, that also costs more. If we want better outcomes for our children and young people, we will have to invest, and invest a lot earlier.
Ian Levy (Blyth Valley) (Con)
Q
Hazel Williamson: In terms of how we administer any community order, we work together with children and their families, or their corporate parent if they are a child in our care. We develop a holistic package that includes health. There is no doubt that health across England is patchy, in terms of provision for youth offending teams. However, health is a statutory member of all youth offending team partnerships. We would certainly advocate that the health offer is strengthened nationally, so that all children, whichever area they live in, get the right treatment at the right time.
We know that children who come into contact with our service have a significant range of unmet health needs, in particular speech, communication and language needs. We know that over 90% of the children we work with are often operating at an understanding age of between five and seven years old. So when we ask a teenager to navigate a very complex environment, their understanding is much lower than their chronological age.
The Chair
Well done, Mr Levy. Right, are there any more Back-Bench colleagues who would like to come in before I bring in the shadow Minister, who is champing at the bit? No? I call the shadow Minister.
Alex Cunningham (Stockton North) (Lab)
Q
Earlier, I believe that I heard you correctly when you were expressing a view on the proposed changes to the test for custodial remand. Did you say that you were concerned that it could lead to more children being remanded in custody?
Hazel Williamson: No, that is not what I said. I believe that the Bill could lead to more children receiving custodial sentences. In terms of remand, we are pleased that the Bill strengthens the conditions for remand and that remand will be seen as the last alternative. However, in the courts arena we would like to see the reasons for remand being made really clearly recorded, and the decisions about it.
Alex Cunningham
Q
Hazel Williamson: In particular, we are looking at mandatory sentences for some offences. What we have to understand is that the children and young people who we currently work with in the youth offending service are different from those we were working with 20 years ago. Youth offending teams have worked really hard to reduce the number of children and young people in the statutory youth justice system, and we have much lower numbers now. However, what we have is an increasingly complex group of children and young people, who have often experienced exploitation, in particular criminal exploitation, and significant trauma.
For me, what is a missed opportunity within the Bill is that join-up regarding how we work with children who are exploited by our serious crime gangs, and we need to be thinking about a much more welfare-based approach to how we work with our children and young people.
We are also concerned about the differences proposed for some of our 17-year-olds. We believe that, in terms of youth justice, they are a child until they get to 18. There is also lots of evidence about brain development, showing that it can take children until they are into their early or mid-20s to fully develop.
We believe that there is opportunity within the Bill for more custodial sentences and we are particularly concerned about our black and minority ethnic children, including our Gypsy, Roma and Traveller children.
Alex Cunningham
Q
“In this Chapter…‘adult’ means a person aged 16 or over”.
Do you think that generally—you have already alluded to some of this—the Bill gives sufficient consideration to research on maturity?
Hazel Williamson: I know that there is mention of neurodiversity in the Bill, but it does not go far enough. We should treat children as children until they are 18 and they should be sentenced as a child until they reach the age of 18. In an ideal world, we would look beyond that, because many people do not develop fully, in terms of brain development, until they are in their mid-20s. The cohort of children and young people we are working with have suffered significant trauma. We know that affects what would be the brain of a teenager who had not experienced trauma; the brain develops differently, if you have experienced significant trauma and abuse. Virtually all the children we work with in our system have experienced abuse to some level or degree.
So no, the Bill does not go far enough, in my view. That links to our earlier conversation about being more welfare and rights-based. We need to think about the rights of children. They should be treated as children until they are 18.
Alex Cunningham
Q
Hazel Williamson: If they have committed the offence as a child, they should be sentenced as a child. During covid, there have been some delays in court processes, which has meant some children being sentenced as an 18-year-old when they committed the crime as a child. Going back to our earlier conversation, we know that brain development does not change just at age 18. For me, if you committed the offence as a child, you should be sentenced as a child.
Alex Cunningham
Q
Hazel Williamson: We have talked about this as an association. We have concerns when there are not opportunities to have terms reviewed. What we know is that there will be significant changes. For example, the brain of a child who was sentenced to a long term at 17 will have matured significantly by the time they reach their mid-20s, so we should be enabling that review to happen along and through their sentence.
Alex Cunningham
Q
Hazel Williamson: What YOT managers say to me is that the biggest challenge is around funding. Youth offending teams have absolutely reduced first-time entrants; we have reduced children and young people going into custody. We are also reducing the reoffending rates for many of our children and young people. The assumption, therefore, is that youth offending teams do not need to be funded as much as they were previously.
However, youth offending team managers have been saying for some time that just because the numbers have reduced does not mean that we are not working with a complex group of children and young people. For many youth offending teams, the numbers they are working with have not reduced; it is just that the children are in a different space and place. For example, we might not be working with as many children on statutory orders, but we will be offering some kind of prevention and diversion to keep them out of the criminal justice system.
It is not always the case that because first-time entrants are reducing and the numbers of children involved in the criminal justice system are reducing, youth offending teams are not doing the same amount of work they have always done. Funding is really an issue, as is understanding the context and the numbers of children that YOTs are trying to work with across the country.
The Parliamentary Under-Secretary of State for the Home Department (Chris Philp)
Q
Hazel Williamson: Absolutely, and we know that, but children and young people who commit those offences as children should still be sentenced as children. We can use the strength in our youth offending teams, because we have seconded probation staff working with us, so we can have quite a balanced report for those children and young people, and support them with the transition from youth offending teams into probation. Age and maturity should absolutely be considered across the whole system, but our children and young people who commit offences when under 18 should be sentenced as children.
Chris Philp
Q
Hazel Williamson: What we know about sentencing is that people will make significant changes between the time they committed the offence and where they are at any given point in time. We have been working with children who have been awaiting sentence in the Crown court, and who are now past their 18th birthdays. They will have made significant changes up to the point where they are sentenced, and they were still children at the time they committed that offence.
Chris Philp
Q
Secondly, some new youth sentencing options, and sentencing options more widely, are made available in the Bill. Can you give us some commentary on how youth offending services and courts can make a success of those new sentencing options?
Hazel Williamson: I assume you are referring to the intensive supervision and surveillance, intensive fostering, and GPS monitoring?
Chris Philp
Yes, for example.
Hazel Williamson: Okay. In terms of ISS, I have already indicated that its extension will require some resourcing. Intensive supervision and surveillance is already in place across the country for youth offending teams, and it is utilised to prevent children from receiving custodial sentences. I think that is already in place. There are concerns that the pilot of an ISS extended to 12 months did not give the results it needed to.
In terms of the intensive foresting arrangements, again, I go back to the fact that it is really resource-intensive and expensive, and it will require very close join-up with our local authority colleagues, who will be required to provide the foster carers to support it. On GPS—some trials have been taking place for GPS monitoring for our children and young people—there is some thought that it will certainly prevent some of our children and young people from being involved in those more violent crimes, and will reduce the risk of them being exploited. That is not the case from what we are seeing with children and young people who are subject to GPS monitoring and tagging. We also know that those children really struggle with the equipment, in terms of practicalities and charging the equipment. We know that GPS does not work for a lot of our children and young people in areas where it has been piloted.
As youth offending teams, we want to look for suitable and robust alternatives to custody for our children and young people. There is no doubt that it has to be done in partnership, but it will require some significant resourcing.
The Chair
Hazel, thank you for that. When people ask—[Interruption.] Bloody hell, I am wrestling with my wretched mask—my mother-in-law made it and I wear it in honour and tribute to her. Hazel, when people ask me, “How should I prepare to give evidence to a Committee?”—be it a Select Committee or a Bill Committee like this—I shall say, “Watch Hazel Williamson.” That was crisp, concise and informative. It really was a masterclass, and it is appreciated by us all at the start of a very long afternoon. We are trying to find our next witness, who is being asked to appear 25 minutes early. If we cannot find our next witness, colleagues may go and have a cup of tea and stretch their legs. Thank you, Hazel.
Hazel Williamson: Thank you.
The Chair
I will call a 10-minute break. The sitting is suspended until a quarter past 3.
The Chair
Hello, Ellie Cumbo, Head of Public Law at the Law Society. Can you hear and see us?
Ellie Cumbo: I can.
The Chair
Excellent. We have until 4.15 pm for this session, but I think we are going to end early. Thank you for joining us early. We are ahead of schedule. Would you like to introduce yourself very briefly?
Ellie Cumbo: Certainly. My name is Ellie Cumbo. I am the Law Society’s Head of Public Law, and I have been in post for two years. My substantive responsibilities are, as my title suggests, largely to do with public law, and we include criminal law within that definition.
Mr Goodwill
Q
Ellie Cumbo: Certainly, there is nothing in there that sounds controversial to me. I should, however, flag that the Law Society at the moment does not take the view that it is right for us to comment on the public order provisions of the Bill. That is largely down to the fact that our role is to comment on how they will work in practice and whether it will be possible for them to be implemented by the police and understood by solicitors, clients and the general public. Much of that remains to be seen. It is, after all, the case that these are political decisions.
We of course take the point about fundamental rights. We want to point out that it has become extremely clear in the last year and a half that it is important not only that the law is clear and accessible in the ways that I just described, but that it is enforced in a way that is consistent and can be understood by the general public. That is something that we would call for. Beyond that, we have not seen fit to comment on these particular provisions.
Mr Goodwill
Q
Ellie Cumbo: I am saying that it is not within our remit. We have to judge our remit based on what we take to be in the interests of our members, which of course includes issues of principle such as the rule of law and access to justice. It may well be the case that there comes a point where, if great concern is expressed by those agencies and bodies with greater knowledge of how these provisions would be enforced in practice—policing bodies, voluntary sector bodies—we might see a need for us to add our voice to those concerns, but there are more appropriate bodies to comment on those at this point than us.
Mr Goodwill
Q
Ellie Cumbo: Again, clarity of the law is an issue of concern and interest to the Law Society and its members. We have not taken a view on that particular Law Commission proposal, but we certainly would not oppose it. Codification does not always come without disbenefits: in this case, we are not aware of any, but to reiterate, we have no strong view on that at present.
Mr Goodwill
Q
Ellie Cumbo: I am afraid so. I am sorry not to be able to assist the Committee on that, but we have taken a view that at the moment, that is not an area for our expertise.
Maria Eagle
Q
Ellie Cumbo: Certainly. The heading for all of our concerns is access to justice and the impact, or potential impact, of some of the provisions on access to justice. Now, in some of those areas, it is more that we have a question and we would like to see more detail about how this will look in practice—the open justice provisions would be in that category—but there are two particular areas where our concerns are already sufficient to put us in a position where we do not support what the Bill currently proposes. Those are in relation to video juries and the pre-charge bail provisions.
Maria Eagle
Q
Ellie Cumbo: I should say at the outset that we support the aim of those provisions, first to give clarity, and secondly to give the police a realistic opportunity to conduct investigations in hopes of preventing such measures as we have seen in recent years: the over-reliance on release under investigation, which the Committee may be aware that the Law Society has raised significant concerns about. At the moment, the risk is that a great many people—we do not know how many, and that is part of the problem—who are suspected of a crime but have not yet been charged with one are living in limbo for truly unacceptable lengths of time, as are all other potential parties to the case, including the complainants and potential witnesses. We understand that if the police have a little bit more time in which to put somebody on bail, that might reduce the need for them to feel that release under investigation is their only option.
However, at the other end of the scale, we do not want to return to the situation prior to 2017, where suspects could be on bail for indeterminate lengths of time. That too is a situation that places an unacceptable strain not only on defendants, as they are at that point, but on the other parties to the case, including complainants —potential victims. Our preference was for a middle way, so when this was consulted on in 2017, our preference was for an initial period of two months, followed by extensions up to four and up to six. That was what we felt was the appropriate middle ground. We feel that the potential to go to nine months before a court gets anywhere near the matter is excessive, but we do support the aim. We obviously want there to be greater certainty for all concerned.
I should just say, in closing, that ultimately what we really want, which I hope we could all agree on, is fewer delays, and investigations that conclude in a timely fashion. In our view, that is better achieved by greater investment of resources in the criminal justice system, rather than by what I might call a little bit of tinkering around bail time limits.
Maria Eagle
Q
Ellie Cumbo: The first thing to say is that of course that uncertainty, that living in limbo that I referred to previously, affects solicitors and legal practitioners, too. Ultimately, though, I think what my members would say is that it is their entire duty to act in the interests of their client, so it is the impact on their clients that they are quick to raise with us, and the potential injustice not only for, as I say, suspects and potential defendants, but all other parties to the case.
It is probably worth also developing the issue of what this might mean for access to legal advice. The longer a case is put off, the greater the risk of disengagement by the suspect or defendant and by all others. Memories fade. Justice outcomes are potentially damaged by the time that there actually is a hearing, and that is not good for anybody.
Maria Eagle
Q
Ellie Cumbo: I should say that we are in a middling position—again—on those provisions. We have not taken a stance against the provisions. Solicitors have adapted very well to remote hearings over the last year and a half, and they have been seen to have very great advantages, particularly in relation to administrative or interlocutory hearings where only the legal representatives are present. That has enhanced everyone’s convenience and the efficiency of proceedings in a very clear way, and our members are very clear about that.
However, we do have concerns about the fact that this is a very new development. It is foetal in terms of lifespan in the broader justice system. We would not be the first to raise concerns about the ability of vulnerable parties to participate in an effective way. In a survey that we recently conducted with our members, only 16% of them told us that they felt that vulnerable parties were able to participate effectively in remote hearings. We understand that the judiciary have taken notice of that. Guidance is available, in different jurisdictions, about the cases in which remote hearings are thought to be suitable. But it is still a developing agenda, and we are concerned that things should not move forward too quickly, because it is a substantive change and of course—as with so much in the criminal justice system—we know very little about the potential impact on justice outcomes and whether it is in fact in any way a risk to the right to a fair trial to conduct certain types of hearing in a remote way.
Maria Eagle
Q
Ellie Cumbo: We certainly welcome it, yes. Many people might be surprised that it is not already the case that a British Sign Language interpreter can be present in those circumstances. Obviously, that is a reflection of the fact that the whole system takes the importance of an independent jury very seriously—it is perhaps the most important safeguard we have for the fundamental rights of those who are charged with criminal offences. That is probably why it has taken the length of time it has to get here.
Our view is that, given where the public consensus can be judged to be and the fact that BSL interpreters participate in other types of confidential proceedings, we do not think that at this point it would be sustainable not to move forward with these provisions. Obviously, we are pleased to see that the Government are taking seriously the risk that the jury might in some way be influenced unduly by the presence of a 13th person, but as long as those safeguards are in place, we are entirely supportive of those provisions.
Sarah Champion
Q
Ellie, I am reeling from something that our Front-Bench spokesperson said in the last session. In chapter 3, on the extraction of information from electronic devices, in clause 36(10), the Government redefine an adult away from the definition in the convention on the rights of a child, which defines a child as a human under the age of 18, to
“ ‘adult’ means a person aged 16 or over”.
Could you comment on that extraordinary change?
Ellie Cumbo: I have not had the benefit of hearing that, so I think it would be unwise and unhelpful for me to do so. Could I come back to you on that?
Sarah Champion
Q
Within the Bill, there are changes regarding the availability of live links and when a vulnerable witness could call for special measures. What reasons would a judge have to refuse the use of a live link?
Ellie Cumbo: It is important that judges maintain that discretion. It is difficult to give an overview because the examples of a judgment that it is not in the interest of justice to use those live links will be so case-specific. It would be difficult for me to enlighten the Committee any further on that, other than to say that we place great trust in the discretion of judges and believe that they would not refuse vulnerable people the ability to use special measures without good reason.
Sarah Champion
Q
Ellie Cumbo: I think that would be difficult to assess in practice. I wonder if it would be helpful for me to consult some of our members who do defence work. It will sound to most people, including me, as though there is not an enormous difference between those two different situations, but I would not want to speak out of turn and be unhelpful. Is it acceptable for me to ask some of my defence practitioners who would be best able to give you an example of why that might or might not make a difference?
Sarah Champion
I would be extremely grateful for that. Thank you. I refer you back to one of your earlier answers. There are already huge backlogs in the justice system, for various reasons. Are there any measures in the Bill that cause you direct concern that it might increase that backlog?
Ellie Cumbo: I believe I would not be the first to note that anything that enhances the risk of a welter of contempt of court prosecutions is probably not desperately helpful. That is one of the reasons why we are keen to see the final detail around what I refer to as the open justice provisions of the Bill.
Of course, we support open justice and think it is of vital importance, but the reality is that there is a de facto limit in a physical courtroom of how many people can be observing trial proceedings at any given time and what they are getting up to while under the immediate eye of the judge. If any move towards the possibility of mass observation of court proceedings were possible as a result of the Bill, there would be a much enhanced risk of abuse and of people behaving in such a way that criminal proceedings against them ensue.
On a separate point, a concern that we have is that it puts a level of pressure on the parties that simply is not an issue in a physical courtroom, that something might go viral on social media.
Those are the concerns that we have about the open justice provisions. I am aware that I have gone slightly off topic, but certainly anything that puts further pressure on the criminal justice system in that way is not ideal in terms of dealing with the backlog. As I said with regard to the pre-charge bail provisions in particular, we would like to see significant further investment in the criminal justice system to clear that backlog, rather than changes that I think can be described as a bit of tweaking around the edges.
The Chair
Would any other colleagues from the Back Benches like to participate? No. I call the shadow Minister.
Alex Cunningham
Q
Ellie Cumbo: That is another area of the Bill where, for the time being, we have chosen not to make significant comments. We comment on sentencing guidelines, but we view whether sentences should be tougher or softer as a political decision, and are slow to presume that our members would all have the same view.
Alex Cunningham
Q
Ellie Cumbo: I think I can safely say that criminal defence practitioners in particular worry about sentence inflation as a political trend in the long term, but I do not think that I could responsibly comment on the specific provisions of the Bill. As I say, I do not think that members’ views would all necessarily align.
Alex Cunningham
Q
Ellie Cumbo: Absolutely not, no. We are very clear on that.
Alex Cunningham
Q
Ellie Cumbo: I think it is worth saying that the absence of public consultation on that point is a cause for concern. Anecdotally—I am sure this is true for many of you as well—nobody I have spoken to in a personal capacity feels comfortable that such a change might be made. They certainly find that they want to know more about it, and the safeguards that would underly it. This is an area where, to me, there is an obvious need for public consultation, given the importance that we all place on the way that juries work, and the ability to be tried by a jury of your peers.
In relation to whether we have been consulted as the Law Society, we have had informal conversations. We were aware that the possibility of remote juries was under consideration at one point during the pandemic, but of course it was not then introduced, so the timing of putting it on the statute book now struck us as rather odd.
Alex Cunningham
Q
Ellie Cumbo: I think what is important is that we do not know. The problem with any change to the way juries work is the relative difficulty of having a baseline against which to compare changes. We do not know to what extent changes to the way juries operate would have an impact on fair trial rights and the justice of the outcomes.
One could only speculate about which particular categories of defendants might be impacted—the vulnerable, those who already have communication difficulties, and so on. I do not know how helpful that speculation is. The point is that you do not experiment with a decades-old system that is so important to ensuring our fundamental rights and freedom without significant evidence, including that there is a need for it and that it would in fact deliver additional capacity to the system, which has not been done yet. The evidence has not been produced that there would be a significant increase in capacity from the proposals.
Alex Cunningham
Q
Ellie Cumbo: Our preferred safeguard is that we do not do it. We are very clear on that. We do not believe it is appropriate to introduce remote juries, particularly at a time when demand for them is surely in decline.
Chris Philp
Q
Ellie Cumbo: As I said earlier, it has been a story of great success in many ways, enhancing the convenience of all parties, including solicitors, particularly in relation to those types of hearings—administrative hearings— where it is only legal professionals talking to each other. Why on earth should you not use a remote hearing for that?
But it is not just an innate conservativism that prompts those concerns about whether it is working well for all types of hearings and all types of people appearing in those hearings. This is a significant change that is difficult to analyse—in fact, I believe the MOJ itself is still in the process of evaluating its success. We are keen participants in those discussions and are keen that our views are heard. Our views are that where such hearings enhance the interests of justice, we are in favour of them and, where they do not, we are not.
Chris Philp
Q
Ellie Cumbo: Obviously we and our members have implicit confidence in the judiciary. We are great believers in the importance of our independent and expert judiciary. That is not to suggest that it is not possible to make their lives a little bit easier than the current provisions do.
There is guidance, as I referred to earlier, about where remote hearings are and are not appropriate, and it differs slightly from jurisdiction to jurisdiction. That is not a comment on the judiciary but it is arguably a reason for further attention to be paid to how clear those messages are and how possible it is, with the best will in the world, for the judiciary to interpret them in a way that promotes the interests of justice.
Sarah Champion
Q
Ellie Cumbo: No, I think I have had the opportunity to cover most of the things that the Law Society would want to. Perhaps I should have added into the conversation about pre-charge bail that we take the same view in relation to the removal of the presumption against bail: we understand the aim, but do not think this is the best way of achieving it. We would like to retain that presumption on the basis that it is still perfectly possible to use bail, but it can only be used where it is appropriate and proportionate to do so. We think that is an important safeguard.
The Chair
That brings this session to an end. Ellie, thank you very much for joining us and for the crispness of your answers.
Ellie Cumbo: Thank you.
The Chair
I say to the Committee that we are only going to run this panel for a maximum of 45 minutes. Our wonderful people in the Perspex booth doing the audio and visual will try to find the next panel so that we can end today at 5.30 pm. That is 15 minutes early, but we are running ahead of schedule.
We will now hear from Dr Kate Paradine, chief executive of Women in Prison; Nina Champion, director of the Criminal Justice Alliance; Dr Laura Janes, legal director of the Howard League for Penal Reform; and Dr Jonathan Bild, director of operations at the Sentencing Academy. Welcome, all.
May I ask for short and crisp answers? You will be asked lots of questions and there are four of you. I will not delay further. Will you introduce yourselves in no more than 10 seconds each, please? We will start with Dr Paradine.
Dr Paradine: Kate Paradine, chief executive of Women in Prison. We work with women in communities and prisons, and campaign for the rights of women in prison.
Nina Champion: I am Nina Champion, director of the Criminal Justice Alliance. We are an alliance of over 160 organisations working towards a fair and effective criminal justice system. In addition, since the Bill was published, we have helped to convene a coalition of criminal justice and race equality organisations to examine and highlight how the Bill risks deepening racial inequality in the criminal justice system.
Dr Janes: Good afternoon. I am the legal director of the Howard League for Penal Reform. We work for less crime and safe communities, and we run a discrete legal service representing children and young people in prison.
Dr Bild: I am Dr Jonathan Bild, director of operations at the Sentencing Academy, which is a charitable organisation that promotes the use of effective sentencing practices and also public understanding of and confidence in sentencing.
Mr Goodwill
Q
The Chair
Do it in the order you introduced yourselves.
Dr Paradine: In terms of improvement, we think that there has to be a focus on rehabilitation and not on sentence inflation and the ripple effect that that will have on the prison population, and particularly on the crisis in prisons. We welcome the focus on improving community sentences, but we feel that there needs to be a really close look at what that will mean in practice on the ground.
Certainly in terms of the impact on actually preventing rehabilitation rather than encouraging it, it is important that we consider what the knock-on effects are on the system. In terms of undermining improvements that are happening on the ground, whether it is diversion from custody or strengthening support services, the Bill does not address any of those issues as it currently stands. The ripple effect on sentence inflation is a real concern for us.
Mr Goodwill
Q
Dr Paradine: When we talk to probation officers, their concern is caseloads and the access to support services that help people to address the root causes of offending. We do not believe that probation officers need any more powers, and we do not think that they think that they need them, either.
The issue is access to a full, strong network of support services, particularly focused on the needs of women in the case of those that we address. For the purposes of enforcing sentences, there is not a problem with sentences not being harsh enough. Community support services that enable people to complete those sentences are what is really needed, not extra powers for probation officers.
The Chair
It is Nina Champion.
Nina Champion: We certainly welcome aspects of the Bill around reducing use of child remand, criminal records reform and the focus on diversion from custody, but overall we are very concerned about the sentencing and policing aspects of the Bill, and about the lack of evidence that it will improve public safety or reduce crime. It will put great pressure on an already stretched criminal justice and prison system. We are particularly concerned that the cumulative impact of many of the recommendations will result in increased racial inequality in our criminal justice system.
Mr Goodwill
Q
Nina Champion: For that period of time, but when you look at all the evidence, there is none to show that keeping people in prison for longer will have any impact on public safety or on their own rehabilitation. We are concerned, for example, about provisions that keep people in custody for longer and then reduce the amount of time that they spend on licence in the community, which is absolutely vital to enable people to resettle into the community and have that supervision by probation. Reducing that could have an adverse impact on public safety.
The Government have clearly committed to trying to reduce racial inequality in our criminal justice system, but that has to be by actions and not just by words. They have to be able to show evidence that this will have the impact that they want, and there just is not that evidence.
Dr Janes: We at the Howard League also really welcome the provisions in relation to remands for children, but we do think that not getting rid of the rather Dickensian ability to remand women and children for their own protection and welfare is a real missed opportunity, especially now that there will be a requirement to consider welfare before remanding a child. We also welcome the criminal records changes, which are very good, but more can be done to make sure that the rehabilitation period reflects the date at which the offence was committed.
We are incredibly concerned about the cost. The impact assessment shows that the increase in prison time will cost millions of pounds. We are also very concerned about the impact on our prison system. With these proposals, in the next five years the prison population will increase to 100,000, which is unprecedented in our country. Just to put that in context, in only the 1990s we were at 40,000, so that is an absolutely huge increase, and the impact assessment states that that will lead to instability, compound overcrowding, reduce access to rehabilitation, and increase self-harm and violence.
Although covid has absolutely been a challenge for everyone and a tragedy for many, it has given a brief pause in the uptick in the prison population. Not building on that, and putting further strain on the prison system, really is a bit of a missed opportunity.
Dr Bild: I echo a lot of what Nina said on the sentencing provisions. We have concerns that they do protect the public but in only the narrowest of senses—only for those additional months, or perhaps years, that someone spends in custody. If there is a plan to do something with those people while they are in custody for that extra time to make them less likely to reoffend when they come out, we suspect that that may only kick the problem down the road by a few months or years.
We are very keen on the issues around public confidence in the criminal justice system, but we do not necessarily think the Bill will make a great leap in that direction because of the technical nature of many of the changes. What the Bill does do is to make sentencing ever-more complex and complicated.
A pre-requisite for public confidence is public understanding. One of the results of some of these changes will be that it will perhaps be more difficult than ever to really understand what a custodial sentence will mean in practice. There is much more uncertainty about what a length of custody actually means. Overall, it is yet more piecemeal change in sentencing, which further complicates the framework.
Sarah Champion
Q
Dr Janes: Yes, the projections, as I just mentioned, show that it is set to go up to around 100,000. It is absolutely clear that many of the provisions in this Bill will see people spending a lot longer in prison. There is the increase in the minimum term. We know that with the DTO sentences we are likely to see up to 50 children at any one time in custody. The release provisions for the serious offences—four years or more—will go up to two thirds, rather than a half, which goes right back to the point that both Nina and Jonathan have made in terms of less time in the community under supervision, which is important for victims and confidence in the system.
Sarah Champion
Q
Dr Paradine: Most women in prison have experienced much worse crimes than those they are accused of committing and that end up meaning that they are in prison, particularly domestic abuse, child abuse and other forms of sexual exploitation, so this is a massive issue. We are really concerned about the impact on women, on families and, particularly, on children in terms of the imprisonment of primary carers.
We support the Joint Committee on Human Rights proposals for an amendment that would require judges to record and consider what they have taken into account in relation to sentencing primary carers, including to prison, and to collect data on that, so that finally we have the data, which it is really shocking that we do not have, about the number of children and families affected when the primary carer goes to prison.
When a mother is in prison, in 95% of cases her child will have to leave their own home to go into care or to live with relatives. It is completely unacceptable that the measures up until now have not resulted in the change needed. This is an opportunity to make that small change. It does not require anything different, but it will make sure, hopefully, that the things that should be happening in court do happen, that imprisonment is not having a disproportionate impact on children and that their best interests are safeguarded.
Sarah Champion
Q
Dr Paradine: That absolutely is the case. The majority of women are in prison for things like theft and non-violent offending, often linked to property, to mental ill health, to substance misuse and to multiple needs. The 5% of the prison population that is women is the most vulnerable of that already vulnerable population of people in prison. It is quite ridiculous that we plan to build 500 new women’s prison places, when what we should be doing is driving down the women’s prison population, which we can do if we invest in the right things and focus in the right direction.
Unfortunately, this Bill is a missed opportunity to turn the system around and to focus on rehabilitation, community intervention and making sure that prison is a last resort and not the first resort, which sadly it still often is, drawing people into a system that they find it difficult to escape from. We plead with you to make sure that we try and make sure that this Bill does not make a bad situation even worse.
Sarah Champion
Q
Dr Bild: Yes, when it comes to primary carers that is a relatively stable area of law and it is a relevant mitigating factor. I understand that there has been an amendment moved to go into statute, which is something that would be sensible, but sentencing will already refer to the guidelines on that. I would defer to Kate on all of these issues; it is very much her area of expertise.
The Chair
Dr Janes, you wanted to say something a moment ago and put your hand up.
Dr Janes: I would just add, on this point, that the really important aspect of sentencing is judicial discretion. That is essential if you want to really make sure we do not make women, children and disabled people—people from all sorts of backgrounds—suffer unduly. There is a real shift away from judicial discretion in this Bill.
Nina Champion: Some of the provisions will disproportionately impact women, and also black, Asian and minority ethnic women. For example, on the clause relating to assault on emergency workers, the equality impact assessment acknowledges that for that type of assault, which can often happen, for example, after a stop and search, it is more likely that women will be caught up by extending the maximum sentence in that provision. Of course, we want to protect our frontline workers, but these sentences have already been increased, even in 2018, and the deterrent effect just is not there. The proof is not there that it has any impact on protecting our frontline workers. What it does is catch more people up in the criminal justice system.
The other proposal relating to mandatory minimum sentences, particularly for issues around drug trafficking, will also capture more women and black, Asian and minority ethnic women. As Laura said, it removes judicial discretion to look at the individual circumstances of the case. We know that many women may have been coerced or exploited in drug trafficking cases. As Kate said, they are victims themselves. Introducing minimum sentences removes the opportunity for the judge to look at the individual circumstances of the case.
Maria Eagle
Q
Dr Paradine: Yes, absolutely. This is a Bill that does not recognise the nuances of individual cases, including those relating to women. We know that hard cases make bad law, and many of the provisions are an example of that. We absolutely think that the needs of women have been overlooked.
We know that sentence inflation has knock-on effects throughout the system. There are many unintended consequences to, for example, focusing on the enforcement of community orders and including more and more enforcement measures without addressing the real issue, which is about support to ensure that those who have community sentences can complete them with the support that they need. From our point of view, many of these measures are not looking at individual cases and enabling the discretion on the ground that is needed to make sure we meet each case as we find it. We know that the women’s prison population can be radically reduced, but not with some of these measures, which do not take into account the unintended consequences—particularly the impact on women who are primary carers and the best interests of their children.
Nina Champion: I just wanted to add a point about the lack of overall consultation with this Bill and these provisions. Because it was brought in as a White Paper, rather than a Green Paper, there has been no public official consultation. Groups that will be disproportionately impacted by these measures have not had the opportunity to be heard, including organisations and individuals representing those from black, Asian and minority ethnic communities, women, or young adults. We really need to have much greater consultation before these measures are brought in to ensure that there are not the adverse impacts that Kate was talking about.
Maria Eagle
Q
Dr Paradine: Yes, absolutely. The problem-solving courts pilot is one small green shoot of hope in this Bill, in that those sorts of measures, which will enable court and multi-agency support across the system locally to tackle the root causes of what brings people into the system, are really the answer here. We would like to see much more focus on those innovative solutions, restorative justice and out-of-court disposals, of course, which are a really untapped resource in terms of what could turn our system around.
We are concerned not only about the lack of consultation with all sorts of groups representing the interests of those affected by this system but with professionals working within it. We know that there is real progress with out-of-court disposals and the use of simple cautions, conditional cautions and all those provisions available to the police, and we think that those measures must be looked at really, really closely, to make sure that the unintended consequence is not to undermine progress that is already being made in doing exactly what you say needs to be done, which is to focus on a wide range of community solutions that enable us to tailor sentences and responses to individual cases, and actually turn these situations around rather than driving people into a system—indeed, a revolving door—that they find it difficult to escape from.
Maria Eagle
I think that the Howard League wanted to come in there, if I can see properly.
Dr Janes: Thank you very much; I just want to make a brief point. I completely agree with what Kate just said, but I will add to it that the Howard League is concerned about this increased use of electronic monitoring, and particularly, as was raised earlier, the lack of scrutiny of it by the courts. There is a real concern that, instead of it being an alternative to custody, it can become a gateway to custody, and a real concern that that could disproportionately affect women. I just wanted to add that.
The Chair
Dr Bild wants to come in on this and then Nina Champion. Dr Bild.
Dr Bild: Sometimes there is a disconnect between what Parliament does with legislation and what happens in practice. Lots of relatively innovative and problem-solving options have been available, in theory, for a number of years. You can attach treatment orders—alcohol treatment orders, mental health orders or drug orders—to community orders and suspended sentence orders, but in practice it happens very, very rarely. Only a tiny proportion of community orders and suspended sentence orders will have what might be a rehabilitative order attached to them.
Part of this is a commitment to resourcing, as well. There does not need to be huge legislative change; this stuff is already on the statute book and it is already, in theory, available to sentencers. Anecdotally, sentencers are reluctant to impose an order that they are not entirely sure is available, and the defendant will not be able to benefit, through no fault of their own.
It is not necessarily only about finding new ideas, although new ideas are very welcome; it is also about properly resourcing, and showing some commitment to, what is already on the statute book.
Nina Champion: I just wanted to add that there are a couple of missed opportunities, in terms of a presumption against short sentences—there was a real missed opportunity here to divert people from custody—and to look at adult remand as well as child remand, as adult remand disproportionately affects women.
Also, just picking up on Kate’s point about restorative justice, the White Paper made some positive noises about the benefits of restorative justice, both for victims—in terms of coping and recovery—and for reducing reoffending, particularly for violent offences. However, the Bill does nothing to ensure that there will be more access to restorative justice. For example, the national action plan for restorative justice expired in March 2018 and has not yet been renewed. Those are the sorts of measures that really will make a difference for victims and reduce reoffending.
Maria Eagle
Q
Dr Paradine: I am sorry to say that, no, we do not think that the current Bill does that. There are all sorts of ways in which the intent to reduce the number of women in prison radically and to divert women, and others, from the system is not played out in its provisions. For all the reasons that have been covered by the various members of the panel, it does not do that. Sadly, unless the Bill’s direction of travel is redirected towards rehabilitation and communities rather than prison and creating harsher sentences, any progress that has been made will unravel really quickly. The 500 prison places will sadly be the focus, rather than our hope that we could really transform the system in the way that it affects women, families and communities, and beyond that men and young people also.
There needs to be a really strong rethink of what the Bill is trying to do, and a focus on the real problem, which is community support services and the ways that we tackle the root causes of offending. There is very little in the Bill that convinces us that that is the focus, so we need a really strong rethink to focus on communities and not on prison. We know that victims want sentences that work. They do not want to see harsh sentences that do not work. Their interest is in stopping crime and reducing reoffending. Sadly, we do not think that the Bill as it stands achieves that ultimate aim.
Alex Cunningham
Q
Dr Bild: Yes I do. Of all the clauses, that is the one that I have the most concern about. I saw some of the discussion on Tuesday with Jonathan Hall, QC in relation to terrorism, but this is broader than terrorism, of course. It takes in a large number of offences that are violent, and certain sexual offences.
The problem I think it creates is twofold. First, there is an issue with the power being given to the Secretary of State. As I say, I saw the debate on Tuesday. I think it engages slightly different considerations than the changes that took place last year in relation to terrorism did. On this occasion, we are talking about the Secretary of State intervening on the sentence of an individual prisoner, which engages a slightly different debate to the Secretary of State changing the arrangements for everyone convicted of a certain offence. I would draw an analogy to the Home Secretary’s old role to set the tariff for life-sentence prisoners. That power spent about 20 years in litigation before the Home Secretary lost it. It is slightly different, but there is an analogy, I think, and I am not sure that it is an appropriate power for the Secretary of State to have.
There is also a real concern that the most dangerous people will come out with no supervision, no licence conditions and no support. In some respects, the more dangerous you are, the less you will be managed in the community. In terms of managing that—
Alex Cunningham
Q
Dr Bild: I am not sure that that will be a high-visibility issue for confidence in sentencing, to be honest. One of the huge problems we have is that we do not really know what goes on in magistrates’ courts. Magistrates’ courts themselves are very low-visibility things, so I do not think we should overstate the impact that these reforms will have on confidence.
Alex Cunningham
Q
Dr Janes: Yes. These minimum term reviews are very little understood, because they are rare, but I have done a number of these cases in my own practice, and it is a very unusual situation where we get to see the criminal justice system actually incentivising people to make consistent and genuine change. The current proposal pins that opportunity on the arbitrary date when you happen to be sentenced. All of us want to see the consequences of crime actually fit what happened, and we know that in the current climate, cases are delayed for all sorts of reasons beyond a young person’s control. That might be because of delays due to covid, or because extremely vulnerable young people have to have their sentencing delayed while they have psychiatric and psychological reports, so this proposal does not seem to have any rational basis. It seems to deprive the most vulnerable people of something we would want for them, which is to be incentivised to really change their lives around.
Alex Cunningham
Q
Dr Janes: That, I really cannot answer. As you say, the entire sentence is galvanised around the date of commission. As was said by the House of Lords in the Maria Smith case, that is because it is recognised—and has been for decades, and internationally—that children are less culpable than fully grown adults. There seems to be no rational rhyme or reason as to why the date of sentence would be chosen.
Alex Cunningham
Does anybody else wish to comment on that? If not, I will pass to Sarah.
Sarah Jones
Q
Nina Champion: Thank you for that question. We responded to the consultation on serious violence reduction orders to oppose them—well, we tried to oppose those orders, but there was no question to enable us to oppose it. That option was not given as part of the consultation; it assumed that these were going ahead before the consultation had actually happened. What we do know is that many respondents to that consultation said that one of their key concerns was the disproportionate impact of this provision, particularly on young black men.
We do not believe that serious violence reduction orders are needed, or that there is evidence that they will reduce knife crime. Of course, we all want to reduce knife crime, but rather than additional surveillance, we would rather see additional support for people convicted of these offences. We worry about these very draconian and sweeping police powers to stop and search people for up to two years after their release without any reasonable grounds. Reasonable grounds are an absolutely vital safeguard on stop and search powers, and to be able to be stopped and searched at any point is a very draconian move that, again, risks adversely impacting on those with serious violence reduction orders. For young people who are trying to move away from crime, set up a new life and develop positive identities, to be repeatedly stopped and searched, labelled and stigmatised as someone still involved in that way of life could have adverse impacts. It could also have impacts on the potential exploitation of girlfriends or children carrying knives for people on those orders. There could be some real unintended consequences from these orders.
In relation to your point about what could be done, if these powers were to go ahead, we would like to see a very thorough evaluation of them before they are rolled out nationally. I do not have much confidence in that, given that section 60 powers, which also allow suspicion-less searches to happen, were rolled out following a pilot after several months without any evaluation being published or any consultation. It is therefore absolutely vital that these powers are thoroughly evaluated. That could involve things such as looking at the age and ethnicity of those who were stopped and searched, the number of people stopped in the belief they were someone who had an order but did not—we might see increased stop-and-account of people who have got nothing to do with an order, in cases of mistaken identity for someone who is under one—or the number of times individuals were stopped.
We would like to see scrutiny panels given access to body-worn video footage of every stop-and-search that is done under these powers or in belief of these powers. It is crucial that the evaluation speaks to people who are directly impacted by these powers, interviews them and understands what the impact is. It should also interview and speak to the organisations working with them. Ultimately, it should also look at whether this has achieved its aim. Has it reduced knife crime within an area compared to non-pilot areas? Much could be done to ensure that the evaluation is thorough to avoid the roll-out of these powers, which we believe are not necessary and could have disproportionately adverse impacts. They are just not needed.
Chris Philp
Q
Dr Bild: Yes.
Chris Philp
Q
Dr Bild: Yes, I agree with that. I think the concern is the ability of a Secretary of State to have the power to intervene in the automatic release of a prisoner. That is the question. I agree that the ultimate decision will be made by the Parole Board, which is an independent tribunal, but there should probably be a bit more of a firewall between the Secretary of State and an individual prisoner’s sentence.
Chris Philp
Q
Dr Bild: I do not know if it is going to be made by the Home Secretary or the Justice Secretary. Yes, I agree on the final decision for release, but the halting of the automatic release will presumably be done by the Secretary of State.
Chris Philp
Q
Dr Bild: I agree with you, but the issue you have here is that somebody who is dangerous could be released into the community under licence. If that person serves their entire sentence in custody, that same person, who may be even more dangerous by the end of their full sentence, will be released into the community with no licence conditions, no supervision and no support. So yes, I agree with you that it is safer for the extra time that someone is kept in custody, but it is less safe once they are released.
Chris Philp
Q
Dr Bild: The Parole Board only has discretion in the sense that it has to follow its own rules. Therefore, it can release someone only when it is satisfied that they do not pose a risk to the public. The Parole Board would not be able to decide that now is a nice time to release someone and have a little bit of licence period; I assume that it would have to follow its rules. If it was not fully satisfied that the person is safe to release, I imagine that the Parole Board’s hands would be tied by its own rules.
Chris Philp
Q
Dr Bild: I would agree that that was the case last year in relation to the terrorism legislation, as I said earlier. I am not saying that it is not lawful, but I think that a different issue is engaged when a Secretary of State is making a decision on an individual case and not a blanket, “You have committed a certain offence, therefore this is your release arrangement.” That is the issue.
Chris Philp
Q
Let me move on. I want to ask a question to all the panellists, so perhaps the answers could be relatively brief, given that I am sure we are under time pressure. We had some debate some time ago in this session about the appropriateness of imposing minimum sentences, whereby Parliament specifies in statute that if someone is convicted of a particular offence, there is a minimum period of time that they must be sentenced to in prison, regardless of the facts of the individual case, and regardless of any discretion that the judge may wish to exercise. Can each panel member give the Committee their views on the appropriateness, generally, of statutory minimum sentences?
Chris Philp
We have got three minutes.
Dr Janes: The problem with mandatory minimum sentences is that they do not allow the judge to take into account the specific characteristics, needs and circumstances of the person before them. We have already spoken about why those things are so important. [Interruption.]
The Chair
Do not all speak at once, but one of you please speak.
Dr Paradine: For us, it is the same as for Laura: minimum sentences, the lack of evidence of a deterrent effect, and the inflation of sentences across the board. We really do not believe that minimum sentences are the way forward, and there is so much evidence that that is not the way to go. It is misleading, and it will not do anything for public confidence. What will do so is sentences that actually work in preventing and reducing offending.
Chris Philp
Q
Dr Paradine: Yes, because judges should have the discretion to apply to the case the sentence that is required. That is why we have judges, and that is why our system is as it is. There is no need for constant interference in the way that is proposed in the Bill.
Nina Champion: I agree with both Kate and Laura about the importance of looking at the individual circumstances of the case. I would also like to add that, in terms of racial disparity, we know that black people are more likely than white people to be sent to prison at Crown court. We know that black women are more likely to be given a custodial sentence. We know that these disparities exist. Even taking into account other factors such as the lack of an early guilty plea, we know that black people are disproportionately represented in terms of sentencing and being sent to custody, so this would disproportionately impact those groups.
Chris Philp
Q
Nina Champion: Across the board.
The Chair
Dr Bild, last but not least.
Dr Bild: I agree with the other panellists. If there was any evidence whatsoever that mandatory sentences deterred people, there could be some justification for them, but in the complete absence of any such evidence, I see no reason to have mandatory minimum sentences. To pre-empt the question, that includes every single offence.
The Chair
Thank you very much, panel. Have a happy Thursday evening and a great Friday, working into the weekend.
Examination of witnesses
Professor Colin Clark, Oliver Feeley-Sprague and Gracie Bradley gave evidence.
The Chair
Colleagues, we now move on to our final panel. It is scheduled to end at 5.45 pm, but it is starting five minutes early. It is up to you when it ends, but it was scheduled for 45 minutes. If you want to take it to an hour, that is up to you, but it was scheduled for 45 minutes, and it could end earlier than that.
We will now hear from Professor Colin Clark from the University of the West of Scotland, Oliver Feeley-Sprague, programme director for military, security and police at Amnesty International UK, and Gracie Bradley, interim director of Liberty. In the order I have introduced you, could you each say hello and tell us who you are, in no longer than 10 seconds?
Professor Clark: Good afternoon, colleagues. As indicated, my name is Professor Colin Clark. I work at the University of the West of Scotland and am based here in Glasgow.
Oliver Feeley-Sprague: Good afternoon. Thank you for having me. My name is Oliver Feeley-Sprague. I head up Amnesty UK’s work on policing, military and security issues. Usually I am based in London, but I am currently sitting in Northamptonshire, in a very windy upstairs room—I hope we will not be disturbed.
Gracie Bradley: Hi, I am Gracie Bradley. I am interim director at Liberty and I am at home in London.
The Chair
Thank you all. I also thank you all for joining us early. It was really kind of you to give up part of your day to let us talk to you a few minutes before we had scheduled. Right, Mr Anderson would like to ask a question.
Lee Anderson (Ashfield) (Con)
Q
I surveyed 1,000 people in my constituency earlier this year. I will run through a couple of the questions I asked. The first question was: do you think the Travelling community respect the rights of the local community when they set up camp in your area? Only 4% said yes. I asked: do you think the Home Secretary is right when she said that we need to give our police tougher measures to stop unauthorised camps? Only 3% said no. I am not going to run through all the questions, but the last one I will give you is this: do you think crime rises in the area when an illegal camp is set up? Some 92% of my residents said yes.
The Bill is great news, because what it will do is see a decrease in crime the four or five times a year when unauthorised camps are set up in my community. I would like to ask the witnesses whether they agree with me that crime will reduce in places such as Ashfield because of the new measures in the Bill to stop unauthorised camps. It is a yes or no answer.
Professor Clark: Well, I am speaking to you as someone who has been employed as a professor and a researcher for more than 25 years.
I suppose we need to begin with querying the methodology of the survey that was just mentioned and how robust that kind of response and the data are. In terms of a yes or no answer, the answer in a sense would be this. What is in place to ensure that we address the ripple effect of the issues and consequences of the lack of provision of Traveller sites at least since the Caravan Sites Act 1968 and up to the Criminal Justice and Public Order Act 1994? The concern is that if people have nowhere to go, if there are no legal sites in the area, these encampments will not go away, so unfortunately this new legislation, which I think is going to be just about as unpopular as the Dangerous Dogs Act 1991, and we all remember how unpopular that was, will do nothing to solve this issue.
What needs to be in place is a national site strategy that to some extent addresses the wide-ranging social policy issues that arise when there are unauthorised camps, as they were referred to there; roadside sites is another way of talking about it, in terms of the terminology. The Government need to work with the organisations that represent the communities to plan an effective road map—quite literally—of UK sites and accommodation. I just do not see this legislation helping that by any means at all.
We are witnessing right now what is going on in Bristol —the really draconian eviction that is going on in Bristol. We are witnessing what has happened at the Wickham horse fair. This goes back many, many generations, and I think there has been an overreaction at the Wickham horse fair today as well. A really serious rethink is needed. I would hope that time and energy were spent addressing the shortfall issues with accommodation and the consequent social policy issues that arise, rather than trying to use a sledgehammer to crack a walnut. It is a minority within a minority of the population. Bear in mind that 75% to 80% of the Gypsy and Traveller population in the United Kingdom are in bricks-and-mortar housing; this is a small percentage.
I absolutely sympathise with the speaker who mentioned the issues in the local area. What needs to be done is to address that issue in a more comprehensive, national strategy. That, not criminalising populations, is the answer.
Oliver Feeley-Sprague: I agree with a lot of what Colin said. The specific issue around Traveller legislation is not something that we prioritised in great detail in our submission on the Bill, but as a representative of Amnesty International I would say that Travelling communities, not just in the UK but widely across continental Europe, are among the most discriminated against and victimised of any minority group in existence. That is even reflected in things like the Lammy report on racial discrimination in the UK. You do not address the problem by criminalising an entire way of life, which is one of the potential outcomes of the measures in the Bill, especially when you are talking about groups that already have protected characteristics under other relevant law.
I point out that the list of things that anecdotally were reported as part of the survey are already criminal acts. There are already powers in place to prevent, detect and stop those things and to prosecute the offenders. A common feature of some of the measures in the Bill, in our view, around the necessity and proportionality test, is that many of the things that are addressed are already criminal, or can be made criminal in the right circumstances. Those measures are neither necessary nor proportionate.
Gracie Bradley: I would echo a lot of what Colin and Olly said. The real issue here is the chronic national shortage of site provision. Instead of criminalisation, what we want to see is local authorities and Government working together to improve site provision.
It is really important to recognise that we are talking about one of the most marginalised communities in the UK at the moment. These measures are a disproportionate and probably unlawful interference in Gypsy, Roma and Travellers’ nomadic way of life. Article 8 of the European convention on human rights protects people’s right to private and family life and their home. The Court of Appeal has set out that this community has an enshrined freedom to move from one place to another, and the state has a positive obligation to protect Gypsy, Roma and Traveller communities’ traditional way of life. The new seizure powers in respect of vehicles in particular are very likely to mean that people end up facing homelessness.
As we have already discussed, some elements of these proposals are very subjective and invite stereotypes and profiling. The majority of police forces do not want greater powers. Research from Friends, Families and Travellers has shown that when police were consulted in 2018, 84% of the responses said that they did not support the criminalisation of unauthorised encampments, and 75% of responses said that their current powers were sufficient and/or proportionate. The issue is the chronic national shortage of site provision, and that should be the priority of Government and local authorities.
Maria Eagle
Q
The Chair
We will go in reverse order. Gracie first, then Oliver and Colin.
Gracie Bradley: Thanks. I would like to set the Bill in its wider context. What we are seeing is a shrinking space for people to speak up and hold power to account, the Human Rights Act potentially being watered down, and attacks on judicial review. Now we see this policing Bill that inevitably poses an existential threat to our right to protest. These aspects of the Bill are so significant and so serious that they cannot be mitigated by procedural amendments.
The right to protest is the cornerstone of a healthy democracy and it is protected by articles 10 and 11 of the European convention on human rights. I recognise that it is not an absolute right, but the state has a duty to protect that right and has a positive obligation to facilitate it. We must not forget that protest is an essential social good. For people who do not have access to the courts or the media and so on, it might be the only way they have to make their voices heard.
In Liberty’s view, we have not seen a compelling case in favour of expanding existing powers in respect of protests. The existing powers are already broad and difficult to challenge, and they are weighted heavily in favour of the authorities. I know that there is some analysis to suggest that the protest provisions in the Bill are a direct response to Extinction Rebellion and Black Lives Matter. I just remind the Committee that during the judicial review of the Met’s decision to ban Extinction Rebellion protests in 2019, the commissioner conceded that there were sufficient powers in the Public Order Act to deal with protests that were attempting to stretch policing to its limits. We are incredibly concerned by the existential threat to protest that the policing provisions in the Bill propose. We invite the Committee to say that they should not stand part of the Bill. I will leave it there for now because I am sure others have more to say.
Oliver Feeley-Sprague: Again, I agree wholeheartedly with what Gracie has said. Amnesty is part of a number of civil society organisations and academics who think that part 3, on protests, in its entirety should be removed from the Bill. It is neither proportionate nor necessary.
I have been working on policing issues for the best part of 25 years and I have never seen a roll-back of policing rights in all of that time. Often I think what is missing from these discussions is recognition that it is not necessarily about a lack of policing power. It is a tactical and operational decision made by commanders at the time to maintain and uphold public order, and they already have a variety of powers and laws. You have only to look at the College of Policing’s authorised professional practice on public order to see the enormous list of powers police have at their disposal.
From an international perspective—you would expect me to say this as someone from an international human rights organisation—these are international legal obligations under article 21 of the international covenant on civil and political rights. Interestingly, the Human Rights Committee issued a general commentary on this issue last year. It is quite normal in international legal circles for authoritative bodies to introduce guides and interpretation statements about how these things are supposed to be implemented. Importantly, the commentary on the right to peaceful protest issued by the Human Rights Committee last September said that states parties should avoid using
“overbroad restrictions on the right of peaceful assembly.”
It stated that peaceful assembly can be
“inherently or deliberately disruptive and require a significant degree of toleration.”
Lowering the thresholds and introducing vague terminology such as “noise”, “annoyance” and “unease” are the clear definition of overly broad restrictions on the right to peaceful protest. It puts the UK out of step with its international obligations.
That is also important in the foreign policy setting, because Britain—the UK—goes out of its way to say that it wants to be a champion of human rights around the world, especially on issues of civic space and freedom of assembly. It was a feature of the integrated review and it featured in the UK’s response to the G7 communiqué. It is awfully difficult for the UK to champion these issues on the world stage when domestically it is rolling them back. If any other regime in any other context were to introduce powers of the kind introduced in the UK by this Bill, the UK Government would be the first to criticise. It gives those regimes an easy excuse or get-out clause. They can point the finger and say, “Well, the UK is as guilty as all of us. The UK has no credibility to lead on these issues on the world stage.” That discussion is missing a bit from this Bill.
Professor Clark: There is little I can add to what has been said, but I will do my best.
The words that Olly quoted—“noise”, “annoyance” and “unease”—are replicated in other parts of the Bill, where there is talk of “disruption”, “damage” and “distress” of a significant nature. What strikes me is the imprecise language and terminology of the Bill, and the potential that it would introduce for discretion, the operation of prejudice and bad governance, in a sense. It leads to some fundamental questions about what kind of democracy we want to live in. Do we want to live in a democracy that protects human rights, protects peaceful assembly and guarantees both formal and substantive citizenship rights?
I am of an age where I remember being outside where you are right now back in 1993, peacefully assembling to protest the introduction of the Criminal Justice and Public Order Act 1994 for the same reasons that we are here today. There is a real sense of déjà vu about this in terms of the rights to protest and to peaceful assembly. Then, of course, it was raves and the succession of repetitive beats, as the Act made it known. It was a section of the Criminal Justice and Public Order Act 1994 that effectively ripped up the obligation of the state and local authorities to provide Gypsy sites within local authority areas. There is a real sense that we have not made much progress here at all.
Again, I concur with what Gracie and Olly said. I hope this is taken on board.
Sarah Jones
Q
In terms of protests, it is completely reasonable for the police, particularly in London, to say, “We have these enormous protests that last for several days. They may well be peaceful, but the city grinds to a halt. Is the balance of power right in this setting?” That is a perfectly reasonable question to ask, and there are different views about what the answer is. You have all made your views clear on the Bill, and I agree, but do you think there is anything reasonable that should be done, perhaps not through the Bill but in other ways? There are lots of different practices that could be looked at. Does any of you have a response to the charge that there are protests that last for days and cause significant disruption, and what are we to do about that?
Gracie Bradley: That is as really interesting question. It is a good question, but the problem is that, in seeking to legislate for that kind of thing, we have ended up with something that is so broad and has the lowest threshold so far that essentially any protest may be targeted. That is just not really what is at hand here. The issue is that nearly any protest could be considered to cause serious annoyance. All kinds of protesters may fall foul of it, and nobody should face a sentence of up to a decade for exercising their fundamental rights. That is the problem that we have with this legislation.
I appreciate that you are asking what we should do with protests that go on for days, and are disruptive and so on. As I said, protest is a fundamental right, and it is the state’s obligation to facilitate it. The very essence of protest is that it will be disruptive to some degree. One person may say, “This has been going on for days,” or one public authority may say, “This has been going on for days and now it is causing a huge problem,” but other people will perceive the threshold as much lower, so it is a really dangerous road to try to go down. What we should really be looking at is how we uphold the right to protest.
Again, there is a perception that this is just about Extinction Rebellion or Black Lives Matter, but people have been out to protests for all kinds of reasons over the last year, be it either side of the Brexit debate, lockdown or BLM. The Court of Appeal said:
“Rights worth having are unruly things. Demonstrations and protests are liable to be a nuisance. They are liable to be inconvenient and tiresome”.
It is to approach the question from the wrong perspective to be saying, “How can we limit?” We really need to be looking at how we can facilitate, especially when we have had scenes like the ones at Clapham Common under existing powers, and when the Black Lives Matter protesters last year were subject to very heavy policing—kettling, horse charges and so on. We have seen a nurse fined £10,000 for organising a protest. Really, the question is, “What can we be doing to better protect and uphold protest rights?” rather than, “How can we clamp down?”
Professor Clark: I very much agree with what Gracie says. In a sense, this issue is back to front. It is ostensibly an issue of management and pragmatics, and how to better facilitate protest, as Gracie puts it. We recently had a situation here in Glasgow. It was two tales of the weekend, really: on the Saturday we had Rangers football fans in Glasgow city centre, and then on the Sunday we had a march in support of Palestine and against what was going on there.
I attended the Sunday event, not the football event, but it seemed to me that those were very much issues of management and pragmatics. The Sunday event was well planned and prepared for, and proportionately policed and managed. It had a clear start point and end point, and as far as I am aware there was no trouble whatsoever—there were stewards present and so on. The Saturday was a rather different matter. It was expected but not particularly well planned for, particularly by Police Scotland and other representatives.
Bearing in mind what happened there and in other instances of what this legislation could be used for, it strikes me that we need to come back to the idea of how we embrace and understand questions of formal and substantive citizenship, and manage the pragmatics of given protests and how we can better facilitate and prepare for them. That seems the right thing to do if you believe—to go back to what I said earlier—in human rights and want a better functioning democracy.
Oliver Feeley-Sprague: I repeat what I said earlier about the fact that the right to peaceful protest is a right, enshrined in international law, that everybody has, and for centuries those rights have been used, often in very noisy and productive ways, to deliver everything from votes for women to preventing serious wrongdoing, behaviours and things of that nature. Noisy and uneasy protest is often the way that we see very productive social change happen. I think that is recognised in the international commentary around how states should react.
The way the police manage public order is an enormous skill of tactical and operational consideration. I would just go back to the toolkit that they already have. Sometimes they make the right decision, and sometimes they make the wrong decision—everybody is human—but the answer here is a toleration, not a restriction, and a tactical and operational decision about how best to manage. The threshold needs to be set high to prevent serious threats to public order, not noise and unease.
I would like to bring in two other points so that we do not miss them. The Bill captures other people by using a very low threshold of “ought to know”, which basically means in this context that if you attend a protest, you should be aware of any restrictions that may have been imposed either by a Minister via regulation or by the police. You are then criminalised for that—criminalised for things that in any other context would be perfectly lawful. That is a very dangerous threshold for ordinary citizens to have to face going about their daily lives.
Allowing Ministers to further define these vague terms through secondary legislation, by issuing regulations, creates a space for the Executive branch of Government essentially to outlaw things it finds uncomfortable, rather than the general threshold of serious threats to the public health or order. By doing it via the regulatory framework, you are not allowing Parliament enough scrutiny and enough checks and balances on that.
The way that bystanders and people who participate may be criminalised, and the way that it gives Ministers disproportionate power, are two dangerous things that should not be there.
Sarah Jones
Q
The Chair
That question could elicit some very long answers, so could we please have really crisp answers? Let us start with you, Gracie.
Gracie Bradley: That is a great question. To put it bluntly, Liberty was founded in 1934 in response to oppressive policing of the hunger marches. As I am sure Committee members will know, we have taken significant action over the years, in court, in terms of policy, influencing legislation and so on, in respect of what we perceive to be heavy-handed or disproportionate policing of protest. To say that if we had not had the covid restrictions it would all have been better is unfortunately too optimistic and not borne out by the evidence. I referenced the injunction that unlawfully banned protest in 2019 brought by the Met. That was pre covid.
The pandemic has unfortunately given rise to confrontations that we perhaps would not have seen, because we have seen interventions that would not have had any basis in law had we not been in the context of the pandemic, but Liberty’s history of campaigning, policy and legal work tells us that some of the tactics that we saw at Black Lives Matter protests, such as kettling, horse charges, and people being stopped and searched rather than being supported when they were seeking support from the police, are not confined to the pandemic.
I think it is incredibly dangerous that we may be heading from a situation in which protest has been policed for the last year, in Liberty’s view wrongly, as if it were not lawful, straight into a situation, if the Bill becomes law, where effective protest can be shut down more or less at a public authority’s whim. We are seeing a continuity that we may not have seen had we not been subject to the pandemic restrictions that we have been subject to, but even there the police have overreached in their interpretation of the powers. We have seen protest treated as if it were banned, and it has never been under a blanket ban in the course of pandemic. That is why we have seen a lot of confrontation.
Oliver Feeley-Sprague: I want to be careful not to imply that I would ever think that there was a time when the powers in the Bill to restrict protest were proportionate or necessary. I do not think that they ever would be, but we are in unprecedent times in terms of overall restrictions on things that would normally be perfectly lawful. We are living in extraordinary times. I agree with Gracie that some of the policing decisions have clearly been wrong, but we have been living under unprecedented restrictions that have almost become normalised and entrenched on our views. We are all anxious about going outside, playing by the rules, doing the right thing and keeping everyone safe, as we all want to be during this pandemic. If ever there were a time not to be increasing policing powers in the way that is envisaged in the Bill, now is that time because this is not normal. But I want to be careful because Amnesty would say that the powers in the Bill would never be proportionate.
Professor Clark: I would underline that the key word, which Gracie used earlier, is overreaching. I think that is what we have seen. In a sense, the current context and public health situation because of the pandemic has allowed for that overreach to happen. That is not to say that it might not have happened in other, more normal times, but there has been evidence of overreaching. Olly was spot on when he said that this is absolutely not the time to be doing this. We need to be really cautious about the next steps.
The Parliamentary Under-Secretary of State for the Home Department (Victoria Atkins)
Q
Oliver Feeley-Sprague: I think in my answer, I said—if I didn’t, I should have—that it has the potential to criminalise a way of life. Some of the powers around returning to a site and seizing vehicles, when those vehicles might be your home, clearly do raise that prospect. I will repeat what I said about our experience as a human rights monitoring organisation: Gypsy and Traveller communities across this continent, across Europe, possibly even—
Victoria Atkins
Q
Oliver Feeley-Sprague: It depends on how you are defining that threshold of “serious”. I have seen little in the Bill that gives any indication of what threshold you are using to reach those determinations. It is true, as far as I am aware, that the Gypsy and Traveller community is one of the most persecuted groups in the UK, and they are persecuted across Europe.
Victoria Atkins
Q
Gracie Bradley: I just want to echo what Olly said in respect of the fact that the threshold is not clearly defined. These definitions are vague, and they could potentially include a very wide range of issues. I would also add that the way the clause is drafted, it is not simply where significant disruption, damage or distress is caused; it is where there is a likelihood or a perception that it is likely to be caused. The offence can be committed by someone who is said to be likely to cause damage or distress. This is highly subjective, and may invite stereotypes and profiling based on the mere existence of an unauthorised encampment. Again, the issue is really about the breadth of the drafting, the lack of definition, and the fact that the mere threshold of likelihood may invite judgments that are based on stereotyping and profiling. That is what is really concerning about this clause.
Victoria Atkins
Q
Gracie Bradley: That is a difficult question to answer. I do not have a firm answer to that, but I think that if you are taking into account the distress of local residents, you also have to take into account the fundamental right of Gypsy, Roma and Traveller people to live a nomadic way of life. It is not an absolute in either direction, and when we are talking about a community that, as Olly has said, is one of the most persecuted in the country, we have to be really careful about introducing these really broad and vaguely defined measures that are likely to invite them to be stereotyped and discriminated against further.
Victoria Atkins
Q
Gracie Bradley: As I have already said, the issue is that we are talking about “likely to cause damage”. That is subjectively determined. There are some people who will be perceived as likely to cause damage; there are some people who, in another person’s mind, will not be. This is very subjective, and I do not think we can abstract it from the history of how people have been treated. I think Colin wants to come in.
Professor Clark: Yes, I can say something about this. In a sense, it is not even local residents; it is actually in the hands of the landowner or the licensee. That is one of the changes between, for example, the regulations in the law as contained in the Criminal Justice and Public Order Act 1994 and the current Bill—this is where there is a significant change. In the 1994 Act, it was the police who had that decision to make about when the action should be forthcoming. In this Bill, that right is given over to the landowner or the licensee, and in a sense it is up to the people who—to answer your question, Minister—own the land on which the Travellers are camped. The landowner would make a decision: “I now feel that this is disruptive, damaging and distressing, so therefore I will call the police and then issue the actions.” That is the issue at stake here.
I will just remind the Minister about the lack of movement on a national site strategy, around both permanent and transit sites and around the right number of pitches on those sites. A lot of these issues would go away and it would be far less expensive than a constant cycle of evictions. The economics of this, as well as the human rights aspects, are quite important.
Victoria Atkins
Q
Professor Clark: What is the context? Without context that is an impossible question to answer.
Victoria Atkins
Fly-tipping. A field was taken over by an unauthorised encampment and it cost £50,000 to clear it. Is that acceptable?
Professor Clark: There is legislation in place already to deal with fly-tipping, I believe. I do not think that there needs to be an enhancement of that legislation to the current law as it stands. There is legislation to deal with fly-tipping, whoever may cause it.
When sites come into being in local areas, it is not uncommon for other people to notice that it is Travellers coming in and use that as an excuse to fly-tip their own business-related waste, and then blame it on the Travellers. That comes back to the points that my two colleagues made about the dangers of invoking racialised stereotypes here and apportioning blame, when it is not those individuals who are to blame. Again, this is where we need to be careful about the way in which we use language and how this Bill goes forward.
Victoria Atkins
Q
Oliver Feeley-Sprague: Anybody responsible for causing £50,000-worth of damage to somebody’s property is committing a crime and, absolutely, people should be protected from that. To echo what the other panellists have said, I think you need to be very careful about further minoritising the Gypsy and Traveller communities. To answer your question bluntly, any form of significant damage of that nature is a crime, whoever does it.
Victoria Atkins
Q
Gracie Bradley: I am not sure that I understand what the question is getting at.
Victoria Atkins
Does the Law Commission have a reputation for not understanding human rights law, or for somehow wanting to diminish people’s human rights?
Gracie Bradley: Not that I am aware of. I suppose what you are getting at is that codifying public nuisance in statute was a recommendation of the Law Commission, which is correct. In 2015, it did recommend that codifying public nuisance should be done, but it did not consider the application of public nuisance to protest.
The Law Commission noted that its proposed defence of reasonableness would increase cases where a person was exercising their right under article 10 or article 11 of the convention, but they also noted that it is somewhat difficult to imagine examples in which this point arises in connection with public nuisance. The Law Commission absolutely did not propose a maximum custodial sentence of a decade.
The Chair
Would any of the other witnesses like to respond to that question?
Oliver Feeley-Sprague: Just to say that I agree 100% with what Gracie said. That is my reading of what the Law Commission concluded in 2015. There are very specific qualifications about article 10 and article 11 rights needing to be protected under any changes of the law. By my reading, this Bill does exactly the opposite of that, so we should be extremely cautious.
Professor Clark: I think the Law Commission is fully cognisant of the rights and responsibilities of a healthy democracy. It understands questions of human rights and citizenship. I would not dare to suggest differently.
Victoria Atkins
Q
The Chair
One of you can respond to that, if you would like to kick off.
Professor Clark: I can. What was the question?
Victoria Atkins
“Serious annoyance” is a phrase that has caught attention. In the context of public nuisance, that is a phrase that has arisen over centuries—I think I am right in saying that—of legal development and does not necessarily have quite the flippant meaning that it may have in day-to-day life outside of a court of law.
Professor Clark: Okay. I understand now—sorry. I think this comes back to the point that all three of us have made on the issues around terminology and definitions, and the use of them, and the ability to exercise discretion. You would like to hope, and expect, that moving forwards such expressions would take on their proper meanings in a legal context, but applied fairly and applied justly.
Given the overall nature of the Bill and what I said earlier about the impreciseness of the language and terminology, certainly in the case of part 4 with regard to unauthorised encampments, I think that is why a lot of outside bodies and organisations and non-governmental organisations have question marks.
However, I will hand over to Gracie, who might be better informed than I am on this.
Gracie Bradley: I am happy to pick this up. We know the legal genesis of that definition of “serious annoyance”, but of course the provisions in the Bill do not confine themselves to “annoyance”. If we look at clause 54, we see that conditions may be imposed that appear
“necessary to prevent the disorder, damage, disruption, impact or intimidation”—
Victoria Atkins
Q
Gracie Bradley: I was not saying that it was in clause 59; I was picking up on another clause in the Bill, which contains language that is vague and concerning. But I can leave it there, if you want to stick with clause 59; I do not have anything to add on that.
Chris Philp
Q
“public safety…the economic well being…the prevention of disorder or crime…or for the protection of the rights and freedoms of others.”
Of course, unauthorised encampments of this kind do infringe
“the rights and freedoms of others”.
Thereby, I would suggest, article 8 is not engaged. Moreover, the right to enjoy one’s property is made very clear, is it not, in article 1 of protocol 1, which says that people are
“entitled to the peaceful enjoyment of…possessions.”
So, given what I have just said about paragraph 2 of article 8, and about article 1 of protocol 1, would you care to reconsider your article 8 analysis in relation to this clause?
Gracie Bradley: No. I think that what I said was that under article 8 it would likely be an unlawful interference, and I would disagree with your analysis that if it is proportionate, article 8 is not engaged. If the right can still be engaged, and a limitation may or may not be proportionate—
Chris Philp
Q
Gracie Bradley: The point is that there is a balance to be struck; that is what happens with qualified rights. And I think the point is that the potential threshold at which these measures may be applied is so low, and the impact on Gypsy, Roma and Traveller people is potentially so distinct, that it would be disproportionate for the measure to be applied to them. What we are talking about, especially when we are talking about the potential seizure of vehicles in the context of nomadic Gypsy and Roma Traveller communities, is people potentially losing their homes entirely. If we are talking about people potentially facing a custodial sentence, that is a really significant interference with their article 8 rights, and it may have further implications—for example, what happens to their children if their caregivers are not available to them? Yes, I recognise that there may be interference in the life of the local community, but the point is that the threshold at which these measures may be invoked, and the impact on people who live in their homes and who have a nomadic way of life, is so significant that the way the Bill is drafted is disproportionate. In Liberty’s view, it also invites discrimination.
I recognise that the Committee is trying to get at the point about the wider community. It goes back to what Colin spoke about at the beginning and what numerous police forces have mentioned—that there is a lack of lawful stopping places, and that there is inadequate provision. I do not think we square this circle by getting into whose rights are more infringed on which side. The point is that what we need to get to is working constructively together to ensure that communities are provided for, and to make sure that there are enough stopping places and pitches. That is the way that we resolve this.
Chris Philp
Q
Gracie Bradley: Of course—Liberty is a human rights organisation. As I am aiming to demonstrate, I am not dismissing that this is a qualified right, and that there are other things that hang in the balance on the other side. I have said there is a balance to be struck but, at the same time, the way the Bill is drafted means that it poses a disproportionate and really significant threat to the rights of Gypsy and Roma Traveller communities. They are a persecuted and minoritised community, and I do not think it is defensible for them to be targeted in this way, especially when there is a non-punitive solution, which is to ensure that there are adequate stopping places.
Chris Philp
It is not targeting that community expressly; it is targeting people who engage in a particular kind of behaviour, regardless of their identity—but I think I have taken this far enough.
The Chair
I thank the witnesses on behalf of the Committee. Thank you for coming early and staying longer than your allotted 45 minutes, and I thank you for your evidence.
That brings us to the end of today’s sittings. The Committee will meet again at 9.25 am on Tuesday in Committee Room 14, in order to commence line-by-line consideration of the Bill.
Ordered, That further consideration be now adjourned. —(Tom Pursglove.)
Police, Crime, Sentencing and Courts Bill (Fifth sitting)
Tuesday 25th May 2021
(2 years, 11 months ago)
Public Bill CommitteesRead Full debate Police, Crime, Sentencing and Courts Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 25 May 2021 - (25 May 2021)
The Chair
Good morning. Before we begin line-by-line scrutiny sof the Bill, I have a few preliminary reminders. Please switch electronic devices to silent. No food or drink is permitted during sittings of the Committee except for the water provided. I remind Members to observe physical distancing. Members should sit only in the places that are clearly marked. It is important that Members find their seats and leave the room promptly to avoid delays for other Members and staff—although I do not think that will be a problem for us given that you are all coming back this afternoon. Members should wear face coverings in Committee unless they are speaking or medically exempt. Hansard colleagues would be grateful if Members emailed their speaking notes to hansardnotes@ parliament.uk.
We now begin line-by-line consideration of the Bill. The selection list for today’s sitting, which shows how selected amendments have been grouped together for debate, is available in the room. Amendments grouped together are generally on the same or a similar issue. Please note that decisions on amendments take place not in the order they are debated but in the order they appear on the amendment paper; the selection and grouping list shows order of debate. Decisions on each amendment are taken when we come to the clause to which an amendment relates. Decisions on new clauses will be taken once we have completed consideration of the existing clauses of the Bill. Members wishing to press a grouped amendment or new clause to a Division should indicate when speaking to it that they wish to do so. Here we go!
Clause 1
Police covenant report
Sarah Champion (Rotherham) (Lab)
I beg to move amendment 2, in clause 1, page 2, line 2, after “workforce,”, insert
“including the impact of working with traumatised survivors on officers’ wellbeing and morale,”
This amendment aims to ensure the police covenant report, when addressing the health and well-being of members and formers members of the police workforce, also addresses the specific impact working with traumatised survivors, such as survivors of child sexual abuse, has on officers’ wellbeing and morale.
The Chair
With this it will be convenient to discuss the following:
Amendment 77, in clause 1, page 2, line 34, at end insert—
“(8A) The Secretary of State may not lay the police covenant report before Parliament unless it has been reviewed by an oversight board.
(8B) The oversight board referred to in section (8A) must be made up of representatives of the following organisations, appointed in each case by the organisation itself—
(a) the Police Federation,
(b) the Police Superintendents’ Association,
(c) the Chief Police Officers Staff Association,
(d) UNISON,
(e) the National Police Chiefs Council,
(f) the Association of Police and Crime Commissioners,
(g) the Home Office, and
(h) the College of Policing,
and an independent chair appointed by the Secretary of State, and any other person the Secretary of State considers appropriate.”
Amendment 76, in clause 1, page 2, line 41, at end insert—
“(aa) members of the British Transport Police,
(ab) members of the Civil Nuclear Constabulary,
(ac) members of the Ministry of Defence police,”
Clause stand part.
New clause 44—Duty on health service bodies to have due regard to police covenant principles—
“(1) In exercising in relation to England a relevant healthcare function, a person or body specified in subsection (2) must have due regard to—
(a) the obligations of and sacrifices made by members of the police workforce,
(b) the principle that it is desirable to remove any disadvantage for members or former members of the police workforce arising from their membership or former membership, and
(c) the principle that special provision for members or former members of the police workforce may be justified by the effects on such people of membership, or former membership, of that workforce.
(2) The specified persons and bodies are—
(a) the National Health Service Commissioning Board;
(b) a clinical commissioning group;
(c) a National Health Service trust in England;
(d) an NHS foundation trust.”
Sarah Champion
It is a pleasure to speak here today and that the first amendment is on the police covenant, which has support across the House. The amendment would make the covenant as strong and useful as it possibly can be.
It is clear that officers and police staff across the country get variable levels of support. They put themselves at risk in the most extreme circumstances, and the horror and trauma they have had to deal with in the last year has been exceptional. I will speak specifically about trauma, and first let me give some examples. Child sex offences recorded by the police increased by 178% between March 2007 and March 2017 and there has been a 511% increase in the abuse of children through sexual exploitation. Unfortunately, in just that example, different police forces across the country give different levels of support to their officers and frontline staff. We should not be surprised that police officers are exposed to trauma, but I find it quite shocking that there is no standard training as soon as individuals join the force to help them identify what trauma is and how to deal with it. The fact that across police forces there is not a standard level of support to be accessed once an officer feels he has the need for it is really letting our forces down.
Maria Eagle (Garston and Halewood) (Lab)
I congratulate my hon. Friend on tabling the amendment. Does she agree that one of the problems is that for too long there has been a culture in the police of making do, being tough and toughing through it? That is why it is unaddressed, and that can lead to people not raising the concerns they feel and to the absence of help that should be there.
Sarah Champion
My hon. Friend knows the issues intimately and has tried to address them in the past. She speaks with a great deal of experience and she is absolutely right. I was speaking to my district commander about the clause on Friday. He said, “The biggest problem we have is that the culture in the force is basically to deal with it, and we are weak if we try to raise concerns.” My response to him was that in the armed forces, particularly in the last 10 years, they have completely turned that culture around because there was the will and impetus to do that. I am incredibly impressed by the level of self-awareness, recognition and support that the armed forces have when people start to feel the impact of trauma.
Alex Cunningham (Stockton North) (Lab)
Further to what my hon. Friend the Member for Garston and Halewood said, the number of police officers who are off sick as a direct result of trauma and related activity demonstrates that the problem is huge. The evidence is there for the change that we propose.
Sarah Champion
This is what I do not understand: throughout my career in Parliament I have tried to focus on prevention, because it is cheaper. The bottom line shows that it is much better at the beginning to teach police officers or back room office staff how to identify trauma, how to deal with it and how to get help. That is why I say to the Minister that, within the covenant and with the opportunities she is given to follow through on her own’s party’s commitment to produce the covenant, we need trauma training and the necessary support in black and white in the police covenant.
Police forces have an organisational responsibility to support the wellbeing of their workforce. The College of Policing published a wellbeing framework, which outlines standards to benchmark their wellbeing services, but that is voluntary. The college has also issued specific guidance on responding to trauma in policing and psychological risk management. Let me offer some more facts and stats—people who know me know that I love a statistic. The 2019 police wellbeing survey identified some really worrying mental health data, finding that 67.1% of police officers responding reported post-traumatic stress symptoms that would warrant an evaluation for post-traumatic stress disorder. That is two thirds of the police. A Police Federation survey of 18,000 members found that
“Attending traumatic and/or distressing incidents”
was one of the top 10 reasons why respondents were having psychological difficulties at work.
Let me pick up on the phrase “psychological difficulties at work”. Such difficulties have an impact on the individual, their colleagues, and the public. I have done an awful lot of work with survivors, predominantly of child abuse but of abuse in general as well. The level of response and empathy that they get from that first police officer tends to dictate how the rest of that process goes and, ultimately, whether they are able to secure the conviction of the perpetrator. If that police officer has undiagnosed post-traumatic stress disorder and is unable to access support, what will that first interaction with the victim be? It will be poor. That is not the officer’s fault; it is our fault for not putting the support in place to enable them to identify the issue at the time.
Mr Robert Goodwill (Scarborough and Whitby) (Con)
The hon. Lady certainly lives up to her name by standing up for the victims of abuse and those affected in other ways. The police could perhaps learn lessons in how to deal with some of those problems from GCHQ, many of whose officers, including those working in Scarborough, spend many hours looking at online images of child sexual abuse or terrorism. GCHQ is aware of those problems and is on top of them from the very start. Does she agree that the police could learn from GCHQ?
Sarah Champion
I completely agree with the right hon. Gentleman. GCHQ has a large footprint in his constituency, so he has seen at first hand that correct identification and the provision of early intervention and support prevent these issues arising. Unfortunately, in the police force that is a voluntary duty. The police covenant gives us the opportunity to put in the Bill that that needs to be addressed. It is simple, it is cheap, and it involves an hour’s training and signposting to existing resources.
Some 23% of respondents to the Police Federation survey had sought help for their feelings of stress, low mood, anxiety and other difficulties. Let us contrast that with the 67% who were recognised as having undiagnosed PTSD: just 23% of the nearly 70% who had those symptoms sought help.
Alex Cunningham
My hon. Friend will remember that when she was questioning Assistant Commissioner Hewitt about the availability of support, he said:
“An issue that we undoubtedly have around wellbeing and the occupational health service provision is the restricted amount of capacity… In all circumstances, where we want to refer officers or staff for support, one of our frustrations is that it often takes quite a while to access that support.”––[Official Report, Police, Crime, Sentencing and Courts Public Bill Committee, 18 May 2021; c. 6, Q3.]
Does she agree that if we had proper training up front, so that people were trained almost to expect traumatic experiences, the pressure on the system when they undergo them would be all the less?
Sarah Champion
My hon. Friend is absolutely right. That is what I mean when I talk about recognition, a change of culture and early intervention. Members probably do not know that I trained and qualified as a psychodynamic counsellor. My very first client was a miner who had been buried alive—he was stuck underground. I was in my early 20s and he was in his mid-50s, and we looked at one another and both went, “Oh my God. This is what I have to deal with,” but as it was a post-traumatic stress disorder and he had come very soon after the event had happened, we managed to resolve the issue within four sessions.
With post-traumatic stress disorder, early intervention is key. If it is left for years—decades, in some cases—it becomes so embedded and ingrained in someone’s psychological make-up that it becomes a really big issue that affects every single aspect of life. It is important to recognise the early signs, which could be covered at the very beginning of training; it could even be an hour-long online training course. We need the police to be able to recognise it themselves. That is where we need to get to, and that is what the police covenant could do.
Returning to the survey, of those police officers who sought help 34% reported that they were poorly or very poorly supported by the police service. Of those with line management responsibility, only 21.8% could remember being given any training on how to support the staff in health and wellbeing.
Members of the National Association of Retired Police Officers have supplied me with examples of the sorts of incidents that they have to deal with. I apologise as they are shocking, but not unnecessarily so, I hope. This is the first case study:
“I served as a traffic sergeant. Part of the role was as a road death scene manager. I attended the scene of many deaths on the roads. I then went to a child abuse investigation, where I got promoted to DI. Whilst a temporary DI, my wife’s best friend and our neighbour hanged herself and I cut the body down. I got symptoms in relation to this straight away and things didn’t get better.
Now 11 years down the line, I have chronic PTSD, the side effects of which are severe depression, anxiety attacks and extreme mood swings. Now, it’s always at the back of my mind that if I’d had early intervention when I asked for it, maybe things would have been different.”
The following is case study 2:
“Operational experiences include attending suicides. For example, within my first few weeks of returning from training school, I attended a suicide where the victim lay on the railway tracks and was hit by a train. I assisted in the recovery of the remains of the victim.
Also, a man jumped off a tall office building and landed headfirst. I was the first on the scene to see the massive head trauma he had suffered.
They were all extremely distressing sights and I have difficulty getting them out of my head, even now.
These are just a few examples where I wasn’t offered any psychological support. I wasn’t even asked if I was okay. It was just seen by everybody as part of the job: suck it up and get on to the next thing.
I retired medically in 1999 as a result of injuries received on duty. I have suffered with complex PTSD and health issues ever since. I am currently waiting to receive further treatment from the NHS. I have received nothing from the police by way of support, even at the time of my retirement.”
Hywel Williams (Arfon) (PC)
I can confirm the efficacy of having support immediately after a traumatic event. In my own experience as a social worker when I was a young man, I discovered someone who had unfortunately committed suicide. The support that I got from my senior colleagues allowed me to resolve the difficulties I had with the experience. It also convinced me that quick intervention can work very effectively and that, conversely, no intervention at all can lead to problems for many decades.
Sarah Champion
I thank the hon. Member for sharing that experience, which reiterates the two points of early intervention and creating a culture in which it is automatic for a manager to ask, “Are you okay?” and to offer support, and to have support in place.
Alex Cunningham
Another example comes from my personal experience. When I worked for the gas industry, I went to a gas explosion to handle the associated public relations. As went towards the building where the explosion had taken place, a fireman coming out the door said to me, “It’s not very pleasant in there.” I went in—I had to find out exactly what had happened—and there was the torso of a woman. That was 30-odd years ago, and it lives with me to this day. I got no support whatsoever—I did not even think about it. Perhaps that is all the more reason why we need to ensure that at least our emergency workers are getting the support they need as soon as possible.
Sarah Champion
Exactly. My hon. Friend used the phrase, “I did not even think about it” and that is what we have to change. The police covenant gives us the opportunity to turn that around and have a culture in which, if someone sees something traumatic, it will be automatic to check in on them to see if they are okay. If they are okay, that is good, and they can move on. Our police are suffering the most extreme trauma day in, day out. They do not know it when they get up in the morning but they have no idea what they will face when they open that door. Think of the stress that puts on their bodies—stress that can be alleviated.
Maria Eagle
Does my hon. Friend agree that it is not enough just to ask, “How are you?” in the context of a culture that expects people to be okay, and that, consequently, the Minister can give a lead in how she implements her welcome proposal for the police covenant by emphasising that mental health is as important as physical health? Does my hon. Friend also agree that just having wellbeing in there is not quite enough to change a culture and that the expectation that support is given needs to be clear?
Sarah Champion
My hon. Friend puts it far more elegantly than I could; I absolutely agree. The police covenant talks about wellbeing. We need the word “trauma” in there, because that is what we are dealing with. The Minister has the opportunity to put that in black and white and show the leadership that we need. The whole House would support her in that. I really hope that she can take that forward.
In our evidence sessions, Assistant Commissioner Hewitt said that we have an issue with
“the restricted amount of capacity. That is one of our challenges…one of our frustrations is that it often takes quite a while to access that support.”—[Official Report, Police, Crime Sentencing and Courts Public Bill Committee, 18 May 2021; c. 6, Q3.]
As we heard from my hon. Friend the Member for Stockton North, early intervention prevents escalation. John Apter, the chair of the Police Federation, spoke about dealing with trauma, saying:
“We have come an awful long way, but we have not gone far enough. One of the frustrations that my colleagues have is the inconsistency within forces…part of that is the lack of ability or willingness to mandate particular aspects of training and support. The covenant gives us a great opportunity to put in place mandated levels of psychological support and training”.—[Official Report, Police, Crime Sentencing and Courts Public Bill Committee, 18 May 2021; c. 20, Q30.]
Chief Superintendent Griffiths said:
“There has been a 36% increase in inquiries to the police charities compared with the previous year, the vast majority of which are mental health concerns.”
He added that, on trauma,
the exposure for police officers…is quite significant.”—[Official Report, Police, Crime Sentencing and Courts Public Bill Committee, 18 May 2021; c. 29, Q43.]
Allan Dorans (Ayr, Carrick and Cumnock) (SNP)
As I have previously declared, I am a former detective inspector in the Metropolitan police, where I served for 17 years in operational roles. I absolutely relate to the hon. Lady’s description of the lack of support at that time, but chief constables are required, as part of the police retirement process, to write to retiring officers to offer them such support.
Sarah Champion
Yes, but the case study from NARPO shows that that does not always happen. I am grateful to the hon. Gentleman for raising that point, but we ought to extend that support to retired officers. That will not have a massive cost implication, but it is our duty to them for all they have done. We have a fantastic veterans covenant in place. The police covenant provides the opportunity to deliver something similar, in recognition of that incredible service that the police have given us. We should do something when they are serving as an officer and once they have left. The fact that it is voluntary and sometimes it happens and is piecemeal is just not good enough. That is not acceptable. We have the opportunity to change that.
Sarah Jones (Croydon Central) (Lab)
My hon. Friend is making an incredibly powerful point. We are looking to introduce the covenant now. Now is the perfect time in many ways, because we lost many police—21,000—over the past 10 years, but there is now a period of significant recruitment, so a lot of officers are coming into the force. Does she agree that now is the perfect time to make sure that we do that early intervention and training, so that those thousands of new officers do not go through the same experience as many others in the past?
Sarah Champion
I completely agree. Now is the perfect time for those reasons, and also because hopefully we are coming out of the pandemic. The service that the police gave during the pandemic was exceptional. We should recognise the personal trauma that caused to them, by ensuring that the need for trauma support is recognised in the police covenant. That would be the greatest respect we can show.
Alex Cunningham
When my hon. Friend questioned John Apter, the national chair of the Police Federation of England and Wales, she asked whether he supported this measure. He said:
“Absolutely, it needs to be meaningful and tangible, and it needs to have a benefit for those it is there to support—not only officers, but staff, volunteers and retired colleagues.”
He went on to say about training:
“I have had this conversation with the College of Policing, and part of that is the lack of ability or willingness to mandate particular aspects of training and support.”
The most important part of his evidence was:
“The covenant gives us a great opportunity to put in place mandated levels of psychological support and training from the start of somebody’s service to its conclusion and beyond.”––[Official Report, Police, Crime, Sentencing and Courts Public Bill Committee, 18 May 2021; c. 20, Q30.]
I am sure my hon. Friend will welcome the fact that the Police Federation is fully behind the amendment.
Sarah Champion
I do welcome it, but it is not just the Police Federation, NARPO or the College of Policing that are saying that; it is what I hear when I speak to serving officers. I had a long conversation with my district commander about this on Friday, and he cited case after case of officers entering a building, having a traumatic experience, and then him trying to give them support. However, what tends to happen is that the support is not in place, the waiting list is too long and they then go off on long-term sick leave. While off on long-term sick leave, the issue is compounded so it becomes even more of an issue. I paraphrase, but basically he said to me: “When we are able to offer early intervention, the officer comes back and carries on serving. When we are not, we know that they are going to be off for a very long time, if indeed they come back at all.”
I say to the Minister that this amendment is a common-sense courtesy. It is a way for the House and the Minister to make a clear commitment to recognising mental health and trauma, and showing the respect and duty that we have to our police force.
Maria Eagle
I want to make a short contribution based upon my experience before I came into the House, which was a shocking length of time ago. It was 24 years ago, in fact, and now I have put that on the record—oh dear.
Before that time, I was a solicitor practising in civil litigation. I frequently tried to help people who had been traumatised at work and were suing their employer, normally because they had lost their employment. Some of the people I sought to assist in that capacity were serving and former police officers, and others who had encountered traumatic situations in the workplace.
At the time, I thought of myself as a relatively sympathetic ear, and I think I was regarded as such too—Members might be startled to hear that, given the adversarial nature of proceedings in this House over the past 24 years. However, it was tremendously difficult for me to get a good statement out of the people who had been traumatised, because they had put up barriers. I would ask them, “What effect did this have on you?” and they would say, “I’m fine. I’m okay.” Often that was a few years after the incident that led them to the path out of employment, whether they had to retire or they were medically dismissed. They were clearly not okay, yet even when I, as their solicitor, was seeking to take a statement to assist them in getting some support ex post facto, and usually after they had had to leave their employment, they were still almost incapable of telling me how they really felt about what had happened and the impact it had had on them.
I know that if those people had been in a culture that said, “It’s okay to be not okay; we are going to provide you with help; you might not think you need it, but it is here in case you do, and it is perfectly fine to go along to the counsellor and break down in tears; that does not mean you are not a man”—they generally were men, but not only—then my role as a solicitor, trying to get them some compensation for their trauma over the years and their loss of employment, might have been a lot easier.
Sarah Champion
My hon. Friend reminds me of another constituent who is no longer a police officer, unfortunately. He went to what he was told was a domestic incident, was let in and found someone on the floor, convulsing—they had taken a large amount of cocaine when they knew he was entering the building. He tried to resuscitate the person, which led to PTSD. He left the force, but this is where the double nub that my hon. Friend spoke about relating to compensation needs to be considered. The police force did not recognise his PTSD, which was the reason he resigned from the force—he could not cope because he could not get the support from them—but the Criminal Injuries Compensation Authority did not acknowledge that he was a victim of a crime because of the incident that led to the trauma, so he got no support, no compensation and no job. He actually went to a solicitor three times and challenged it. I am glad to say that he is now an incredible campaigner for police veterans with PTSD and is getting them the recognition that they deserve, but it should not have to be a fight all the time; it should be automatic.
Maria Eagle
I saw that kind of situation many times in my practice as a solicitor. I always felt that it would have been better to have prevented these things from happening. I believe that amendment 2, by making it clear that the covenant can and should seek to address trauma, could be the key to opening up and changing that culture, facets of which we have all, in our various ways, given examples of today.
One thing that is common to all the examples that Members have recalled from their own experience is that they involve an emergency worker—someone who is there to help and benefit society—who in the course of their employment sees the kinds of things that the rest of us in society are shielded from, thankfully, and then they are not supported to overcome that trauma. That is the common thread.
The Government should accept the amendment, because wellbeing equates to mental wellbeing. It is not just about someone making sure they are physically strong enough to be a police officer; mental support is just as important. If inserting “trauma” could be a key to unlocking that kind of support, I believe that the Government could be responsible for leading and promoting a change in culture across our emergency services.
That has already happened in the armed forces, as my hon. Friend the Member for Rotherham said. Much progress has been made in what was a very macho workplace, where there was an equal lack of understanding that mental ill health and trauma could lead to serious disability, a lack of operational effectiveness and a requirement to retire far earlier than society would have wished, having invested a lot of money, time and effort into training such specialists. That is also true of our emergency services on the civilian side.
This is an opportunity for the Government to lead what will be a tremendously important change in culture—a signal to those organisations that this is the way forward and this is what matters. This has been missing in our civilian forces and civilian emergency services, and it needs to be there. This could be a really important way of leading that change.
I hope that the Minister will see the importance of that and will ignore what she may have in front of her, which will be from civil servants—who are doing their job absolutely adequately and well, I have no doubt—setting out to try to resist any change to the perfect wording that they have devised. It is not always perfect; it can sometimes be improved. I am not criticising the civil servants—I spent nine years as a Minister, so I know how hard they work—but sometimes a Minister can apply her own common sense to what is in front of her. She is there to do just that. She is there to say to her officials, “That’s all very interesting, but I am applying my political common sense and we are going to accept it.”
If the Minister does that—I hope she will—it could be the beginning of a real change in culture that in future will impact on the nameless people who otherwise might have fallen into the kinds of problems that my hon. Friend the Member for Rotherham so eloquently set out. All of us who have spoken in this short debate have some experience of coming across aspects of this issue. In the future there might be unnamed people whose health benefits and who do not lose their employment and livelihoods because the Minister was brave enough to lead the change by accepting the amendments. I hope she will think very seriously about doing so.
Hywel Williams
I referred earlier to my experience as a young approved social worker under the Mental Health Act of getting an innocuous call, while I was on duty on a Saturday morning, that turned out to be a case of suicide in a very rural and unsupported area, which meant that I was there for quite some time before the police and medical people turned up. I want to make one point to the Minister. Following that day, I had two calls from a colleague—a peer—who shared her experiences and supported me. Then I had two calls from a manager, and on the Monday we had a short, purposeful meeting. My point is that support need not be extensive or even expensive in any real sense. Short interventions that are purposeful and skilled can be very sophisticated and effective.
Sarah Jones
It is a pleasure to serve under your chairman- ship, Sir Charles. As we are debating amendments 2, 77 and 76, clause 1 stand part and new clause 44, I will speak to all the issues in the round. I will start by thanking Sarah Thatcher and Huw Yardley from the Public Bill Office, who have given so much guidance to us all in preparation for the Committee. We start this debate at the end of a difficult and turbulent year, but one in which people across the country have come together and there are many lessons that we can learn. I hope we can apply those lessons to the progress of the Bill. It is a year today since George Floyd was murdered, and I know that the lessons from that will also guide much of what we talk about today.
It is a pleasure to begin our line-by-line consideration of the Bill by debating the introduction of the police covenant, which we all agree with and support. We all probably believe it is long overdue. The tone set by my hon. Friends the Members for Rotherham and for Garston and Halewood shows the nature of our approach and how we want to try to support the changes, but we also want to work to improve them as much as we can.
The Bill creates a statutory duty for forces to support police officers and places a requirement on the Home Secretary to report annually to Parliament. It focuses on protection, health and wellbeing and support for families. It applies—correctly—to serving and former police personnel. It is an appropriate acknowledgement of the sacrifices made by the police service and the need to provide better support. The Police Federation has campaigned for the introduction of a covenant for several years, and I salute it for the campaigning work that it has done. I am pleased that the Government are taking action.
It is appropriate to take a moment to thank, on behalf of the Opposition, the police and all those who have given incredible service working on the frontline through the covid crisis: our police officers, firefighters and other emergency services, health and social care workers, shopworkers and transport workers, who have all shown incredible bravery and dedication. Those who put themselves in harm’s way to keep us safe are the very best of us, and we thank them for their service.
We support clause 1. We are pleased that the covenant will focus on
“the health and well-being of members and former members of the police workforce”—
their “physical protection”, and—
“the support required by members of their families”.
Amendment 2, tabled by my hon. Friend the Member for Rotherham, is extremely important. I congratulate her on tabling it and agree with everything she and others have said this morning. It helps to expand on what is an absolutely crucial element of the covenant.
We heard today that a Member of this place has had to take several weeks off because they are suffering from PTSD. The surprise with which we hear that reflects how we do not talk about these issues enough. We do not support people enough who have these conditions, and we are not enabling a lot of different professions to tackle these issues.
In preparation for this debate, I talked to the National Police Chiefs Council, the Police Federation, the Police Superintendents’ Association, and many police across the country who have talked about mental health and how it is a significant and growing issue. Some forces deal with it extremely well and some do not, which is the premise of where we are starting from. Some support out there is absolutely first rate and some really is not. There is no consistency across the country.
Working with traumatised survivors, as my hon. Friend set out, has a huge impact on the wellbeing and morale of police officers and staff, but the impact of running into danger and serving the public goes beyond that. I recall when I first became an MP talking to a police officer who had to stem the blood of a young boy who had been stabbed as he waited for the ambulance to arrive. The trauma of that cannot be underplayed.
I have talked to officers in the custody suite in Croydon where, only last year, Sergeant Matt Ratana, a police officer approaching his retirement after 30 years’ service in the police force, was shot dead in front of his colleagues by somebody who had been brought in for questioning. The impact of that on the entire community of police officers cannot be underplayed. The officers who were there had to intervene and try to help their colleague before the emergency services arrived. All the other people who worked in that area who were his friends and colleagues were also affected. Think also of colleagues in the Independent Office for Police Conduct who did the investigation and had to watch repeatedly the CCTV footage of what happened and see a police officer in that situation again and again. That is real, brutal trauma.
Sarah Champion
I support everything my hon. Friend is saying. The examples that she and I and Members here have given are the big trauma incidents that we recognise as likely to have an impact, but I also think it is important to recognise it might involve going to a domestic abuse case and seeing a child who is the same age as your child. A seemingly small case could have the most profound impact. Putting the provision for support in the police covenant, regardless of the incident, is the key to the amendment. It should be up to the individual to know and recognise when something has an impact and is starting to unravel—to see the early signs, whatever the trigger.
Sarah Jones
I completely agree with my hon. Friend. We do not always know what is going to trigger those kinds of responses. I met recently with Sam Smith, who some people will know. He is an ex-police officer who served on the frontline for three years. He said:
“You’re thrown into a job where, within weeks of starting, you’re spat at, fighting people, rolling over dead bodies—your adrenaline levels are so high”.
The job quickly became his life. A chronic shortage of staff meant that Smith did a lot of overtime, spending his time-off sleeping and barely seeing his friends. He started having nightmares. He said:
“I probably wasn’t the nicest to my girlfriend—I became irrational and unreasonable. When I look back now, I’m surprised she stayed with me.”
After two and a half years of service, Sam realised he was suffering from PTSD and did not feel he had the support he needed to stay in the job.
Since leaving the force, Sam has been running a campaign calling for better mental health support for police officers, as he is concerned about inconsistencies in support across the 43 different police forces. He says that at the moment the main mental health welfare service for police officers is a programme called Oscar Kilo. Many would argue that the money provided is not well spent, the provisions are entirely optional and nothing is mandatory for any forces. Because of that, and ever-tightening budgets within the police, the service can be underused, and many officers had never even heard of it.
Sam is calling for us to go further than the Bill and the amendment. He is calling for a national standard of wellbeing support for police officers and hopes that the Government will back his Green Ribbon Policing campaign. I know he would appreciate it if the Minister would look at the campaign for a national standard of wellbeing support, and perhaps she might consider meeting Sam and talking about how those proposals could be taken forward.
There are some aspects of the Bill on which we will inevitably disagree, but I think we can all, across the House, agree on the importance of the mental health of members and former members of the police workforce. In that spirit, I hope the Minister will support amendment 2 and potentially pledge to go further and consider wider reform to wellbeing standards for police officers.
I will move on to amendments 76 and 77 and new clause 44. As I mentioned, the Police Federation has been campaigning for many years for a covenant, through its “Protect the Protectors” campaign. All the police bodies are in favour. It is a good thing. To be the best it can be, we need to make some improvements and make sure that we do not miss this opportunity.
The covenant comes after a year where the police have had to carry out the enormous challenge of policing the draconian emergency covid legislation, with limited guidance, in some cases, or notice when laws would be changed. The police absolutely rose to that challenge and got the balance right overall. The covenant also comes within the context of significant cuts to the police, as well as the nature of crime changing, with violent crime high, terrorism and historic child abuse cases taking up more of police time, and a high proportion of crimes now online. The number of assaults on police officers has rocketed to more than 35,000 assaults in the last year, a subject we will return to in our debate on clause 2.
As my hon. Friend the Member for Rotherham mentioned, the number of police officers leaving the service with mental health problems is too high. Research from a team of sociologists at Cambridge University showed that nearly one in five police officers have symptoms consistent with PTSD. It is widely recognised that mental health issues are widespread and under-detected, and a proper response is patchy across police force areas.
Morale is at an all-time low. The Police Federation’s 2020 survey revealed that 86% of respondents said that they did not feel fairly paid in relation to the stresses and strains of the job. Some 65% of respondents reported that the covid-19 crisis has had a negative impact on their morale and 76% felt unfairly paid for the risks and responsibilities of their job during the pandemic.
Alex Cunningham
My hon. Friend will recollect the evidence given by John Apter during the evidence sessions. He quoted Martin Hewitt:
“You heard from Mr Hewitt that assaults on officers, staffers and other emergency workers have increased by 19% during the pandemic—some horrific levels of attacks—and very often, my colleagues say that they feel they are treated as a second-class victim.”––[Official Report, Police, Crime, Sentencing and Courts Public Bill Committee, 18 May 2021; c. 21, Q33.]
Does my hon. Friend agree that, having seen that surge, what she is trying to achieve is all the more important?
Sarah Jones
My hon. Friend is absolutely right. Throughout the period of covid, I have been talking to John Apter, Martin Hewitt and others. The impact on police staff—the exhaustion—of not being able to take leave for long periods of time and of those increased assaults has been significant. We need to reflect that.
As of March 2020, there were 2,578 police officers on long-term sick leave. More than half of long-term police officer absence is due to sick leave. In 2019, the national police wellbeing survey identified some worrying mental health data, which we have heard about. Some 18,066 police officers and 14,526 police staff responded to the survey, and 67.1% of respondents reported post-traumatic stress symptoms that would warrant an evaluation for PTSD. The average anxiety score for police officers was moderately high and their average depression score was moderate. They were not given the vaccine as a priority, so they were running into danger with that threat, and they have also had a pay freeze. This is an opportunity to show that we appreciate the work that they do, and to acknowledge that we can do better in giving them more support in the job that we ask them to do.
Sarah Champion
I support the amendment. To be quite honest, if I am on a train and something kicks off, I do not really care what police force the officer comes from. If they are a member of the British Transport police and can sort the incident out, I am just incredibly grateful. They ought to get the same recognition and levels of support as any other police officer.
Sarah Jones
My hon. Friend is completely right. The fact that those police are the responsibility of another Department is neither here nor there. They should absolutely be front and centre as part of the covenant. We want to ensure that all the wider police family is covered by the police covenant. The amendment would extend the covenant to the British Transport police, the Civil Nuclear Police Federation and the Ministry of Defence police.
The British Transport police are the specialist police force for Britain’s railways, providing a service to rail operators, their staff, and passengers across the country. They respond to and investigate all crimes committed on or related to the railway network, including the most serious. They also have a significant role to play in protecting the many vulnerable people who use the railway network and stations as refuge when in crisis.
The nature of the work of the British Transport police means that officers regularly deal with the most traumatic incidents, and I would like us to reflect on that. Around 300 people take their own lives on the railways every year. British Transport police are the ones who attend and manage all those scenes, so every year, 40% of British Transport police are affected by people taking their own lives on the railways. More than 1,000 staff are affected by two or more cases.
The British Transport police often do incredible work on county lines. The criminals are savvy to that and are increasingly using taxis and recruiting young people in the towns themselves, rather than putting them on trains, as the British Transport police are so good at spotting those vulnerable young people on trains carrying drugs to other towns. There is a lot of knife crime on the transport system because people might be moving from place to place and through transport hubs. Last year, at East Croydon station, which is a major transport hub in my constituency, there was a murder when two lads from different gang networks bumped into one another and one murdered the other, and the British Transport police were there to respond.
I will give one other example. Please forgive me for talking about Croydon—I know I am a Front Bencher, but it is hard not to bring my own examples. Last week was the start of the inquest into the tram crash in Croydon, when seven people died and many more were injured as a tram toppled over after going too fast around a steep corner. The nature of that horrific incident—the windows shattered and people came out of the tram—meant that many bodies could not be identified. Again, it was the British Transport police who were there as the first responders to that crisis.
Sarah Champion
I did not realise until I started working on child abuse that there is an amazing charity called the Railway Children based in Liverpool and in India. The train network is often the first point at which runaway children are identified, and it is the British Transport police who are there to offer them support. My concern is that if an officer is experiencing trauma themselves, it is much more difficult for them to give the necessary sensitivity to a runaway. I agree that it seems bonkers therefore to separate British Transport police and tag it on as an afterthought.
Sarah Jones
I agree. When we consider the severe and significant impact of such crashes and traumas, as well as the day-to-day experience, as my hon. Friend said, of trying to deal with people fleeing county lines or fleeing crisis, we need to ensure that the British Transport police are as strong as they can be in response.
British Transport police officers are often victims of assault when carrying out their duties. On average, 21.5% of British Transport officers and police community support officers—about one in five—are assaulted each year. In the previous year to date, there were 470 assaults on British Transport police officers and community support officers. In the last year, during covid, even though the number of people using the trains went right down, assaults increased marginally. I guess that is understandable given the nature of what those officers are trying to enforce: disputes over wearing face masks or coverings on a train. There have been several incidents resulting in spitting or coughing as a method of aggravation towards either the victim on the train or the British Transport police. The Opposition’s key argument is that the British Transport police’s service is no lesser just because it happens to sit with the Department for Transport. Surely we could bring them in as part of the covenant and give them the same status as those in other police forces.
In the initial conversations about why the British Transport police, the Civil Nuclear constabulary and the Ministry of Defence police were not included, we were told that it was not feasible to put them in the Bill because they sit in different Departments: the Department for Transport, the Ministry of Defence and the Department for Business, Energy and Industrial Strategy. However, they are included in other parts of the Bill such as the clauses that refer to police driving standards. If we can include them there, presumably we could include them here.
The key point about the police covenant, which we heard in our evidence last week, is that we do not want it to be just warm words; we want it to make a tangible difference to the experience of those in the police service. It is possible to include all police forces in the Bill, and it is surely the right thing to do. I would be grateful for the Minister to confirm that she has heard and understands that and perhaps will take steps to address it.
I turn to new clause 44. We want our police to have proper mental health support, as we have heard, but we want local health bodies to have due regard to the principles of the covenant, instead of the Secretary of State reporting on these issues and presenting back to police forces. New clause 44 emulates part of what the Government have provided for the military in the Armed Forces Bill, which puts a legal duty on local healthcare bodies. The words, “due regard”, have previously been used in other legislation, such as the public sector equality duty contained in section 149 of the Equality Act 2010, which requires public authorities to have due regard to several equality considerations when exercising their functions.
We think it would be good to enshrine these measures into the police covenant and in law, particularly on an issue as crucial as health. By emulating the wording of the relevant section of the Armed Forces Bill, new clause 44 does not specify the outcomes but simply ensures that the principles of the police covenant are followed and that police officers, staff and relevant family members are not at a disadvantage. I am aware that this is one of many issues, but the stark figures that we have all been talking about this morning mean there is not really a reason why adequate healthcare support for police and retired police would not be included in the covenant.
Clause 1(7) says:
“A police covenant report must state whether, in the Secretary of State’s opinion”.
I want to pick up on that, because it is important to remember that the covenant should be about providing the police with support that has a meaningful impact on their situation. Chief Superintendent Griffiths put it well when he said at the evidence session last week that
“a police covenant is almost the sector asking the Government for additional support or assistance, or to rule out any adverse impact on police officers, and for the Government to play their role across all other public agencies to try to level the ground and make sure everything is fair and supportive for policing.”––[Official Report, Police, Crime, Sentencing and Courts Public Bill Committee, 18 May 2021; c. 29, Q44.]
I hope the Minister will consider supporting new clause 44, which I am sure would have the full backing of the House.
Finally, I turn to amendment 77, which is absolutely crucial and goes to the heart of how the covenant should work going forward. The amendment would set up an oversight board for the covenant, with an independent chair and membership of police organisations that would review the annual report before it is laid before Parliament. The amendment would also allow the Secretary of State to appoint other people to the oversight board as they deem appropriate. In essence, the amendment would ensure that the covenant does not have Ministers marking their own homework. The point of the covenant is not for the Home Secretary to decide whether the police are doing what they should be doing; the point is that the police should be working with the Home Secretary to make sure the police are getting the support that they need.
Alex Cunningham
I always think of the expression, “do with”, rather than “do to”, and I am sure my hon. Friend agrees that working closely with the different organisations outlined in the clause will add considerable value to what the Government are trying to achieve. Better than that, it will have better outcomes for the police officers involved.
Sarah Jones
My hon. Friend is exactly right in how he describes what the covenant should be about and how it should work.
Maria Eagle
Does my hon. Friend agree that by including a broad spread of representative organisations at all levels of the police, whether trade unions or staff associations, and at all levels, from the most junior officer to more senior officers, it is much more likely that the kinds of events that lead to the outcomes that we were discussing earlier in the debate will be identified and can be tackled via the covenant, if those things are talked about across the whole range of organisations before fixing the report? Is that not the point of the amendment?
Sarah Jones
I thank my hon. Friend for her intervention. She is absolutely right, and all the police organisations have been really clear that this is how we get the best outcome from the covenant, and that this is how we can best define it. I mentioned the death of George Floyd, and all the major police organisations have been working together on black lives matter issues—for example, by looking at issues around discrimination across the police force. I have had many conversations with Martin Hewitt, John Apter, police supers and others in which they talk about how absolutely fascinating it has been to talk to police officers lower down in the force, understand what is holding them back and what changes need to be made, and drive that change forward. By bringing in all these organisations, we can deliver better policy.
John Apter, in an evidence session last week, said that
“in order to make the covenant meaningful for our members, retired colleagues and volunteers, I think that level of independence on the oversight programme, the oversight board and the delivery board, which would then lead in to the Government, is really important…It is not just the federation calling for this; collectively, we all believe very strongly in it.”––[Official Report, Police, Crime, Sentencing and Courts Public Bill Committee, 18 May 2021; c. 30, Q44.]
That is a powerful case, which I am sure the Minister understands. I hope that she will support our amendments.
The Parliamentary Under-Secretary of State for the Home Department (Victoria Atkins)
Thank you, Sir Charles. It is, as always, a pleasure to serve under your chairmanship.
First, I thank Opposition Members for the constructive tone of the debate so far. I very much take the point that this covenant meets with the approval of all the parties represented here today and, I am sure, others as well. We are all conscious of the terrible incidents that members of the police force and the wider policing family have to endure on a daily basis, but we are also particularly mindful—reference has been made to this—of what they have had to endure and the services that they have had to provide in the past 12 months. It has been a very difficult time for the whole of society, and it is, I hope, no surprise to anyone that members of our policing family have been at the forefront of that and have been protecting us through these very difficult 12 months. I am therefore really pleased by the constructive tone of the debate thus far.
I am particularly grateful to the hon. Members for Rotherham and for Croydon Central for tabling these amendments and explaining their reasons for doing so. As I hope will become clear, we very much understand the motivations behind the amendments and, indeed, we have great sympathy with what they seek to achieve. We may just have different ideas of how to achieve them.
Let me put the clause in context. I am pleased that parliamentary counsel decided to put this clause at the very start of the Bill, because it is a significant Bill—the largest criminal justice Bill that Parliament has considered for some time—and I think it right that the police covenant is at the very start. It sets the tone for the rest of the legislation.
This clause will enshrine in law a duty on the Secretary of State to report annually to Parliament on the police covenant, which has been introduced with a view to enhancing support for the police workforce and their families—a very significant point. Even in this Committee Room, there are members of the policing family—they are not direct members themselves, but their fathers, mothers and so on have served in the service—and it is right that we include them in our consideration.
Sarah Champion
I appreciate the Minister giving way. She says, “and their families.” She has just done some exemplary work on the Bill that has become the Domestic Abuse Act 2021 and knows that a disproportionately high number of cases of domestic violence and abuse happen within the police world. One would hope that, were we able to tackle the root cause of that by addressing the trauma at the very beginning and putting support in place, the knock-on repercussions would be prevented, which I am sure she and I both really want.
Victoria Atkins
I am extremely grateful to the hon. Lady. She is right: in the course of proceedings on that Bill, we examined the impact that domestic abuse has on members of the wider policing family. She is absolutely right, and I will come on to that point about the trauma, if I may. I do very much acknowledge it.
I will just explain the thinking behind the clause as currently drafted. The covenant takes the form of a declaration and is not set out in the Bill. In particular, the report must address the health and wellbeing of members and former members of the police workforce in England and Wales, their physical protections and support for their families. Over time, the report may deal with other matters addressed under the banner of the police covenant.
The clause is in the Bill because our police put themselves at risk on a daily basis, dealing with some of the most challenging, toughest and most heartbreaking situations—hon. Members have given examples of that during this debate. I will explain how the covenant came into being. We set out a frontline review, inviting police officers, staff and community support officers to share ideas, in order to change and improve policing. The results of that review identified the fact that more must be done to support the wellbeing of those across the policing community. We have therefore announced plans to establish a police covenant, to recognise the bravery, sacrifices and commitment of those who work, or who have worked, in policing. No member of the police workforce should suffer any disadvantage as a result of their role in policing, and the covenant will support that aim.
The examples that hon. Members have provided show, first, the challenges, difficulties and—actually—terror that officers must face on occasion. However, I also hope—I am grasping for silver linings—that some of the stories show the improvements in our collective understanding of the impact of trauma and post-traumatic stress disorder on mental health.
The example that the hon. Member for Rotherham gave of the officer who—I think she said that they were not even asked if they were okay, which, as the hon. Member for Garston and Halewood quite rightly said, should be only the beginning of the conversation; of course, much more must flow from that first question. However, the officer to whom the hon. Member for Rotherham referred had to leave the force in 1999. I hope that we all, as a society, have gained a better understanding of the impacts of trauma and so on on mental health since then.
Maria Eagle
Because the Minister has just said that trauma is now recognised, will she go the whole hog and include the word in her wonderful clause 1?
Victoria Atkins
I am developing my argument, if I may. The reason I referred to that particular officer, although other examples were given, is that under the covenant, as it is drafted, that officer—as a former member of the police force—is covered by the covenant, and we very much want it to support not just serving members but those who have served and have since retired, or had to leave.
We now come to the nub of the issue—the inclusion of words in the legal framework, as set out in the Bill. We believe very strongly that the consideration of the impact of working with traumatised survivors on the morale and wellbeing of members and former members of the police force is already within scope of the clause, as currently drafted. It falls within the broad categories of health and wellbeing, as set out in clause 1.
Again, just to give the Committee some comfort and, indeed, I hope confidence in what we intend to do, our initial priorities for year one, which will be overseen and monitored by the police covenant oversight board and the police covenant delivery group, will include working towards ensuring that occupational health standards, including for mental health, are embedded in all forces; holding chiefs to account for providing the right quality and investment in their workforce; further consideration of a new chief medical officer for policing in England and Wales; working on a review to establish what is a good support model for families, drawing on established good practice and research from other sectors and international partners; and once that is agreed forces will be required to implement locally bespoke schemes in their local infrastructure. It will include development training for GPs around the role of the police, similar to the military veterans’ GP training, and development of pre-deployment mental health support provided to the police workforce, particularly in the light of the pandemic and the effect that it will have had on the police workforce.
Rather like the Domestic Abuse Act 2021, whereby in the definition we set out the very broad legal framework, and there were many examples of domestic abuse behaviour in those categories, which were then put into the statutory guidance. The wording, “health and wellbeing”, provides the legal framework. Within that, it is for the board, the delivery group and, ultimately, the Secretary of State, to include those matters in the report.
Sarah Champion
The Minister’s words are giving me a lot of comfort, but could she clarify a little more? What she is talking about is retrospective support once the incident has happened. Is it her intent that there will be preventive action at the very beginning of police training, so people are aware what the trauma is in advance, rather than just focusing on once it has happened?
Victoria Atkins
I am sure that I will give further clarification in due course if it is needed, but I draw comfort from the fact that the wording I have here is the development of “pre-deployment” mental health support. If that requires further explanation, I am sure that I will provide that explanation in due course.
Victoria Atkins
I would just like to give comfort on this point. We also plan that the board should have its inaugural meeting to set its priorities during scrutiny of the Bill. Parliament will be able to assess the priorities that flow from that meeting within the scrutiny of the Bill. The approach in the clause is very much of openness and transparency. We want the concerns that have been quite properly put forward to be addressed within the legal framework as set out in clause 1, and the practical workings to have meaningful effect for officers, former officers and members of staff on the ground.
Maria Eagle
The Minister has been very generous in giving way. It sounds as if she is moving towards the suggestion that she might not accept the amendment. Although in broad terms, the word “trauma” can be encompassed in the widest possible definition of health and wellbeing, one of the difficulties faced thus far is that the culture has been that health is about physical health, and wellbeing is just about not being off work. Consequently, were she to accept the change in wording, it would give a very strong steer that Government see the importance of cultural change being at the heart of the issue.
Victoria Atkins
I would go further, because I would not want the Committee to understand that the covenant is the only work being done on mental health and understanding trauma and wellbeing. There is already work going on with some of the people who have been mentioned in the debate to improve local understanding of the impact. Chief constables are very alive to that.
The point of the covenant is to set the framework for recognition in relation to both mental and physical wellbeing, and to set up the structure so that the Secretary of State is accountable through the report to Parliament for those matters. It is drafted as it is because we do not want to fall into the beguiling trap where, in a year or three years’ time perhaps, people look at a list of conditions in a piece of legislation, and take that as exhaustive. We want professional curiosity and intelligence to be used in these matters. Our concern is that differentiating physical and mental health could have unintended consequences years down the line for how the terms of the covenant are deployed at local level.
Alex Cunningham
The Minister will have heard me quoting John Apter earlier. Having talked to the College of Policing, he said that there is a
“lack of ability or willingness to mandate particular aspects of training and support.”—[Official Report, Police, Crime, Sentencing and Courts Public Bill Committee, 18 May 2021; c. 20, Q30.]
Does she not think that it is time they were given that ability so that, were willing, they could alter the training to suit changing circumstances and the needs of police officers?
Victoria Atkins
I am grateful to the hon. Gentleman for his question. He touches upon one of those imponderables, in that the police are operationally independent. There is always a balancing act, for Ministers of any Government, of any colour, in persuading, cajoling, directing and working with the police to ensure that their training meets both the expectations of the public and the needs of police staff. That is why the police want to come with us on this journey, because we are working together on this. I cannot be as directional as he is perhaps suggesting.
However, the fact that we are having these debates in Parliament is significant. We plan for the board to have its inaugural meeting during the scrutiny of this Parliament, and very senior people, who take what this House says very seriously, will be around the table. Having this debate will very much help them understand their responsibilities in this regard. I note that Paul Griffiths said in giving evidence last week:
“There is a need for consistency across occupational health standards, but I think that could be achieved through the programme management rather than through legislation.”—[Official Report, Police, Crime, Sentencing and Courts Public Bill Committee, 18 May 2021; c. 20, Q30.]
That is really what we are trying to address in clause 1.
The hon. Member for Croydon Central kindly invited me to meet Sam from the Green Ribbon Policing campaign to discuss some of these issues, and I would be delighted to do so. We are very much in listening mode as to how we can improve our plans for this clause. We have kept the wording deliberately broad to ensure that there is room within the legislation to allow the Secretary of State to consider issues of importance as they arise, and the issues that have been raised here will be included in those considerations.
We have built flexibility into the clause through paragraphs (a) to (c) of subsection (2), to be addressed if considered appropriate. We very much want to strike the right balance, by directing the substance of the report without being too prescriptive. As the aim of the covenant is to focus on issues directly relevant to members or former members of the police workforce, we will be establishing a police covenant governance structure, along with key policing stakeholders, to feed directly into the police covenant report. This structure will support us in prioritising the most relevant issues to the police year on year, and ensure that the report reflects that.
Amendment 77 seeks to place the police covenant oversight board on a statutory footing. I hope that it is apparent from what I have said already that we do intend to establish such a board, albeit on a non-statutory basis, to drive the strategic direction of the covenant, to set priorities and to monitor progress, which will feed into the Home Secretary’s annual report to Parliament. The board will comprise key representatives from across policing, but we consider it appropriate for the board to be chaired by the Minister for Policing. As part of our plans to establish the board, we will ensure that its important work feeds into the police covenant report.
Sarah Jones
Does the Minister acknowledge that the reason we want to put the board on a statutory footing is that at the moment it falls to the Home Secretary to provide a report to Parliament only once a year? The power balance of who the covenant is for, who should be driving the improvements and who should be leading what is needed within the police is wrong. We believe that that balance could be put right if the Bill stated that it should be those police organisations, under an independent chair. If the Minister for Policing chairs the board, inevitably he will be marking his own homework. The whole purpose of the covenant is to enable the police to get the support they need in a way that is driven by the police for the police. It is not about the Minister deciding whether what is being done suits him.
Victoria Atkins
I am so pleased that the hon. Lady raises that, because the very first subsection of the Bill sets out the Secretary of State’s accountability. It is the Secretary of State who lays a report before Parliament, so they are accountable to Parliament for the contents of that report. I do not have a crystal ball, but I imagine that when the first report is laid, hon. Members from across the House will ask the Secretary of State searching questions about, for example, its observations and provisions in relation to mental health and trauma. In drafting the covenant, we have tried to keep the Secretary of State’s accountability absolutely on the face of the Bill. Just as the Secretary of State is accountable at the Dispatch Box, so too must the board be chaired by the relevant Minister, so that the flow of accountability to the Dispatch Box is there.
There are other important boards across Government that are not on a statutory footing but that assist and hold Ministers to account when it comes to how particular work is developed. The accountability point is that the Secretary of State must lay this report before Parliament, and then Parliament will hold the Secretary of State to account.
Sarah Jones
If the board is not on a statutory footing, it does not much matter who is chairing it, because there is no statutory line of accountability. If it is not on the face of the Bill, it does not matter. The Minister could agree to have an independent chair of the board if it is not going to be on a statutory footing. Her argument does not follow, in that sense.
Victoria Atkins
This is very speculative, so forgive me, but let us follow the hon. Lady’s example. If the board has an independent chair, and to everyone’s surprise they make recommendations to the Secretary of State that do not include measures relating to mental health, the Secretary of State is then in a very difficult position, because she is accountable to Parliament for the contents of the report, yet the work of the report, driven by a committee that is not chaired by one of her Ministers, has come to a set of results that she may not agree with and cannot account for. This is about the trail of accountability from the covenant through to the Dispatch Box. That is why—[Interruption.] I am so sorry; I have just been handed a note but cannot read the writing. I think I can get it. We have that chain of accountability through to the Dispatch Box, which is precisely what we are trying to achieve. We do not want the report or the Minister not to be accountable.
Sarah Champion
For clarity—I am sorry to labour the point, but it is important—will the board be on a formal setting? Is it an actual thing? Is it the same group of organisations that make up the report at present? If the board is an actual thing, my concern is this. To take the Minister’s hypothetical example, a new Home Secretary might not have any interest in mental health and wellbeing, but if the board is on a statutory footing, it still has a duty to push whoever is chairing it in the right direction. Could the Minister clarify whether the board is a formal body?
Victoria Atkins
Of course, and as with other boards, as I have said, the terms are set out and agreed. We want to be open and transparent on that. Its membership will include all the key policing representatives that one would imagine and, what is more, we have tried to go further by giving the Secretary of State the freedom to consult others. If there is a particular charity or organisation that is addressing a particular issue that the board feels is important that year, the Secretary of State has the power to consult that organisation. Again, to provide comfort, we will review the governance arrangements six months after the board is constituted, and we will consider the independence of the board’s chair as part of that.
Amendment 76 is an important amendment. We are exploring how the police covenant, as currently drafted, can apply to police forces and law enforcement organisations that do not fall within the remit of the Home Office, in particular the British Transport police, the Civil Nuclear Constabulary, the Ministry of Defence police and the National Crime Agency. We are very much alive to the points made both by organisations and in this debate. With that work ongoing, I trust that the hon. Member for Croydon Central will not press the amendment to a vote.
Finally, new clause 44 would place a duty on specified health service bodies to have due regard to the police covenant principles. I recognise that, in advancing this new clause, the hon. Member for Croydon Central has drawn on the provisions of the Armed Forces Bill 2021 in respect of the armed forces covenant. The difficulty is that the two covenants are at a different stage in their development. The armed forces covenant has been around for some years, and in that context it is right that it should now develop, with the new duty provided for in clause 8 of the Armed Forces Bill. In contrast, we are just getting started with the police covenant. At the moment, we do not think it appropriate to place a requirement on specific public bodies to have due regard to the police covenant. We must gather robust evidence and have careful consideration of the needs and consultation with the relevant health service bodies.
I want to reassure the hon. Lady that, through the reporting requirement that we have set out in the legislation and the governance process, we will be looking at the best way to ensure that our police can access the right care when they need it. In the light of my explanation and my assurance that we are continuing to consider how best to address the report requirement for non-Home Office forces, I hope that the hon. Member for Rotherham will be content to withdraw her amendment.
The Chair
Before I call Sarah Champion, would the shadow Minister like to say anything in response?
Sarah Champion
The Minister is clearly in listening mode, and it is deeply appreciated how much time and consideration she has clearly given to the amendment. I am reassured by what she has said. If possible, I would like to have some more of the detail that she was talking about. At this point, I will not push the amendment to a vote, because of the chance to do so at a later date.
Sarah Jones
I thank the Minister for her responses. On amendments 76 and 77, I stress again how keen the police world is that we make some progress on those two issues. I noted that she said on clause 77 that there will be a review in six months that will consider the independence of the chair. I think it makes sense to have an independent chair and believe it is appropriate, given that we are suggesting that the board should review the annual report before it is published. It cannot say what it is—it cannot control that—so having an independent chair would give comfort. However, I heard what she said on that, so I will not push that amendment to a Division. On amendment 76, which she briefly responded to after she got the note that we should hurry up, she said that work is ongoing. I cannot stress enough how strongly the different organisations feel about that. Again, I will not test the view of the Committee on that.
Sarah Champion
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Chair
Nobody wants to press any other amendments to a vote, and new clause 44 will be dealt with later, so we come to the decision on clause 1.
Clause 1 ordered to stand part of the Bill.
Clause 2
Increase in penalty for assault on emergency worker
Question proposed, That the clause stand part of the Bill.
The Parliamentary Under-Secretary of State for the Home Department (Chris Philp)
It is a pleasure, as always, to serve under your chairmanship, Sir Charles. Clause 2 increases the maximum penalty for common assault or battery against an emergency worker from 12 months to two years’ imprisonment, thereby delivering our manifesto commitment. Our emergency services place themselves in harm’s way to protect us, and it is therefore right that we treat with particular seriousness any assault committed against an emergency worker, which is why we seek to legislate to increase the maximum sentence for assault against them from 12 months to two years’ imprisonment. I take this opportunity to pay tribute to our emergency services for the work they do on our behalf and on behalf of all our constituents, keeping us safe, looking after us and protecting us. I am sure the whole Committee will be united in expressing that sentiment.
We consulted last year on extending the maximum penalty from one year to two years and found overwhelming support for the move. In evidence last week, we heard representatives of policing and emergency services expressing strong support for the move as well. It will give courts the ability to pass higher sentences, reflecting the seriousness and severity of these offences. The clause does not change the definition of emergency workers. That is set out in section 3(1) of the Assaults on Emergency Workers (Offences) Act 2018 and covers police constables; National Crime Agency officers; prison and custody officers; fire, rescue and search personnel; and those people providing NHS services. The clause simply amends the maximum sentence that appears in that Act from 12 months to two years.
It is worth saying that, where more serious assaults occur against emergency workers, such as actual bodily harm, grievous bodily harm or grievous bodily harm with intent, those offences will be charged as those more serious matters, which of course have higher sentences. Actual bodily harm has a maximum sentence of five years; GBH, under the Offences Against the Person Act 1861, also has a five-year maximum; and GBH with intent has a maximum sentence of life. We of course expect more serious assaults on our emergency workers to be prosecuted and sentenced accordingly.
It is worth noting that the proportion of defendants in assault cases against emergency workers receiving immediate custody went up last year compared with the year before, from 17% to 25%, and about 10,000 cases were successfully prosecuted and sentenced. This legislation is being used on a fairly wide basis.
No amendments have been tabled to the clause. I believe it commands widespread support across the House and among the public. I do not want to detain the Committee longer than necessary. I think I have covered the key elements of the proposals, and spoken about the importance of the work of our emergency services and the tribute that we pay to them. On that basis, I commend the clause to the Committee.
Maria Eagle
I do not wish to detain the Committee for long; I have just a couple of points. The Minister set out that the consultation has gone on. It was obviously a manifesto commitment of his party, and I generally approve of manifesto commitments being implemented. Even if I might not agree with all the ones that were in his manifesto, I can see the point, but am I not right that the original intention of my hon. Friend the Member for Rhondda (Chris Bryant), who introduced the Assaults on Emergency Workers (Offences) Act, was to have a two-year maximum, but it was reduced during the passage of the legislation to one year as a consequence of the Government of the day wanting it to be one year?
I understand that there have been consultations and a manifesto commitment since, but from where does this Damascene conversion come? It seems to me that the Government originally said, “We’ll support the legislation if the maximum is one year,” and within months of it being implemented they were saying, “It’s got to be two years,” which was what my hon. Friend actually wanted. He cut it in order to get Government support. I am interested to find out where that conversion came from. Was there some sudden bit of evidence that convinced the Government that my hon. Friend was correct, in which case I congratulate the Government on being willing to change their mind. I would be interested to hear from the Minister where that change of heart came from.
Secondly, I notice that the British Association of Social Workers and the Social Workers Union have submitted a petition to the Government, which I understand has quite a few thousand signatures, asking them to amend the legislation to include social workers in the definition of emergency workers. No doubt there are arguments for and against that, but I wonder whether the Minister has anything to say about whether the Government have any intention of doing that.
Sarah Jones
Clause 2, as the Minister, who is my parliamentary neighbour, has outlined, increases the maximum penalty for assaulting an emergency worker from 12 months to two years. We absolutely support that provision. As my hon. Friend the Member for Garston and Halewood highlighted, the Opposition have been calling for it for years. On Second Reading of the Assaults on Emergency Workers (Offences) Act 2018, which my hon. Friend the Member for Rhondda introduced, he eloquently said:
“An assault on anyone is wrong, but an attack on any emergency worker—whether that is a police constable, a paramedic, an ambulance driver, an accident and emergency doctor or nurse, a fire officer, a prison officer, someone working in search and rescue, or someone working on a lifeboat—is an attack on us all. And when we are all attacked, we all stand firm together.”—[Official Report, 20 October 2017; Vol. 629, c. 1103.]
Many Members, including the Under-Secretary of State for the Home Department, the hon. Member for Louth and Horncastle, were present on Second Reading, and I remember well the huge support for that private Member’s Bill, with many Members wanting to speak.
During the covid pandemic, which has happened since that legislation was passed, there has been a shocking increase in the number of attacks on frontline emergency service workers, with a 31% increase compared with 2019. Over the last five years, attacks on frontline police officers have gone up by 50%. It has been clear through the pandemic that emergency services and shopworkers have been right at the forefront, risking their own health to serve their communities. Many have faced unacceptable attacks as they have worked to keep us safe, from being spat at and punched to being verbally abused and intimidated. Those attacks should be met with swift, meaningful punishment.
As I mentioned earlier, Sergeant Matt Ratana was murdered doing the job that he loved last year. All of us, I hope, would do everything that we can to honour his memory by campaigning to stop assaults on our police as best we can. The NHS figures are disturbing. Between January and July last year, there were more than 1,600 physical assaults on UK ambulance workers. In London, there were 355 physical assaults on ambulance workers and 239 incidents of verbal abuse. I experienced it myself when I rode out with some police officers, and we had to arrest people who were on drugs and being highly abusive. The ambulance workers arrived and were sexually assaulted by the two men. It is a daily occurrence, and we should not accept it.
The Government’s impact assessment states that over 11,250 cases of assault on an emergency worker were proceeded against in 2019, with around 9,050 resulting in a sentence. Of those, 1,900 cases received a fine, 3,600 a community sentence, 950 a suspended sentence and 1,550 an immediate custodial sentence. Of those receiving an immediate custodial sentence, most—67%—were sentenced to three months or less, 27% were given a sentence of three to six months, and only 6% received an immediate custodial sentence of six months or more.
We should pay tribute to my hon. Friends the Members for Halifax (Holly Lynch) and for Rhondda for all their work campaigning to achieve the change. My hon. Friend the Member for Halifax originally drafted the “Protect the Protectors” Bill and campaigned relentlessly with the Police Federation for its introduction. The Bill was later picked up as a private Member’s Bill by my hon. Friend the Member for Rhondda, and received universal support to be passed into law.
As has been mentioned, my hon. Friend the Member for Rhondda had originally pushed for a two-year maximum sentence in his Bill, but the Government had wanted 12 months, to which he agreed in order to ensure that the Bill passed. It is a shame that the Government did not agree to it at that time and it would be useful to understand what the change in view is down to. There are still concerns around the stronger sentence only applying to convictions in the Crown court, and some in the police have raised concerns that it should come alongside effective sentencing guidance: magistrates should be able to sentence for longer to avoid clogging up the Crown court. Sentencing guidance has not yet been published in relation to section 2 of the 2018 Act, and while the increased sentence is welcome in the Bill, it would be good to hear from the Minister about his plans for new sentencing guidance.
Mr Goodwill
Is it also the case that, because we introduced the ability to appeal against lenient sentences, if judges and magistrates do not use the powers in the Bill available to them, it is open to the Government or law officers to challenge those sentences?
Sarah Jones
I thank the right hon. Gentleman for his intervention. It would be good to hear the Minister’s view on that in his response.
To finish my remarks on clause 2, which recognises the bravery of emergency workers and appreciates that there should be increased sentences for those who assault them, the Government could take many other actions that may also reduce the number of assaults against emergency workers. We should not lose sight of them. Being alone on a patrol increases the risk of assault, and that tends to be down to resources. The Government need to tackle that issue. We also have a woefully small amount of evidence as to why assaults are increasing. What is the evidence around what is happening, and why it is happening? What analysis has been done by the Home Office on where these assaults are taking place, and why?
Linked to that is the issue of protective equipment. There has been a big increase in body-worn cameras and spit guards in policing, but what lessons are actually being learned from covid, and from the experience suffered by our police officers and other emergency workers during this time, to ensure that we are doing everything we can to protect them in the future? In conclusion, clause 2 is a welcome step in the right direction.
Sarah Champion
Covid has obviously changed everything, including our definition of “emergency worker”. Several MPs have pointed out that emergency workers are not the only group suffering from frequent violent attacks, and provisions should be extended to all staff in the NHS and social care, as well as to shopworkers. In 2020, the Union of Shop, Distributive and Allied Workers found that the vast majority of shopworkers—88%—were victims of verbal abuse in 2020. They were largely trying to implement the covid restrictions. Nearly two thirds were threatened, and nearly one in 10 were assaulted. Can the Minister explain what the Government are doing for those workers? They were on the frontline of the pandemic and should be given the same level of protection as emergency workers.
Chris Philp
Let me reply briefly to some of the points that have been raised by Opposition Members.
The hon. Member for Garston and Halewood asked about what had prompted the change from one year to two years and if there had been a “Damascene conversion.” The change is evidence that the Government are always willing to listen and to reflect. They have listened to organisations such as the Police Federation and to the results of the consultation. It is no bad thing that a Government are willing to keep things under review and to make changes, where there is public appetite or evidence to support them, rather than simply to remain with a particular position that was taken two or three years ago. It is a sign of maturity and wisdom that we are willing to make changes as appropriate.
Both the hon. Lady and the hon. Member for Rotherham asked about other workers, including social workers. The 2018 Act, which passed with widespread cross-party support, drew a particular distinction about frontline emergency workers—the police, firefighters, frontline NHS staff, rescue services and so on—who are putting themselves directly into harm’s way, because what they are doing is unique.
However, as both hon. Members and the shadow Minister said, other workers also have contact with the public, including retail workers and social workers, which is important. That is why the sentencing guidelines we already have rightly recognise that a victim might be working in the public sector or otherwise providing a service to the public, including working in a shop, as an aggravating factor. Because it is recognised as an aggravating factor, it means that if the victim is one of those people, the judge is duty bound to pass a higher sentence than would otherwise be the case, so that is accounted for in the way I just described.
The shadow Minister spoke a little about the sentences passed down and mentioned that in 2019 only 6% of sentences for common assault on an emergency worker were for six months or more. That went up a bit last year. The figures for 2020 came out just a few days ago, and it went up to 15% in 2020. The average sentence has gone up as well. By elevating the maximum sentence today, we in Parliament are sending a clear signal to the judiciary and others that we expect this offence to be taken extremely seriously, and sentenced accordingly and commensurately.
My understanding is that the Sentencing Council guidelines for the offence as it already exists are due to be published in the near future, possibly as soon as later this week. They will provide further clarity to the judiciary, but Parliament’s voice will be heard clearly today in signalling that we expect longer sentences for people who assault our emergency workers. I am sure the judiciary will hear that.
The shadow Minister made some points about ensuring that the police are properly protected. She drew particular attention to the risks of attending lone patrols and the need for resources. We are in the middle of a successful police recruitment campaign, which will eventually target 23,000 extra police. We are about a third of the way through that. The result of that extra recruitment will be to mitigate some of the risks that the shadow Minister mentioned. As a fellow Croydon MP and her constituency neighbour, I am well aware of those risks and was painfully affected by the awful murder of Sergeant Matt Ratana. I take the opportunity to join the shadow Minister in paying tribute to Sergeant Ratana and his family. He died in the course of duty after a long and distinguished career, and I am sure we all want to remember him and his family.
I hope that answers the questions that were raised, and I commend the clause to the Committee.
Question put and agreed to.
Clause 2 accordingly ordered to stand part of the Bill.
Clause 3
Special constables and Police Federations: amendments to the Police Act 1996
Question proposed, That the clause stand part of the Bill.
Victoria Atkins
Sir Charles, noting that there are no amendments, I do not propose to speak to the clause, which I commend to the Committee.
Sarah Jones
Thank you, Sir Charles. Clause 3 would allow police specials—volunteer police officers—to become members of the Police Federation, a proposal that we support. I wanted to say a few words because special constables play a vital role in keeping our communities safe. They have been of huge value to communities across the country, particularly through the pandemic. The special constabulary has a long and proud history and has made an immeasurable contribution to policing our communities.
Sir Robert Peel is often quoted:
“The police are the people, and the people are the police.”
That cannot be more applicable than to our special constables who volunteer to make our communities safer while working at other jobs. It is important that special constabulary officers feel valued and that their contribution is recognised. It is imperative that they have the support and opportunities to thrive and feel they have the protections they deserve for doing such an important job. I know this clause is close to the Police Federation’s heart and to that of former special John Apter, who has campaigned for police specials to join the federation.
The number of police specials has significantly declined. There were 9,126 specials in England and Wales in September 2020. That is 10,500 fewer than in 2012, a drop of more than 15%. John Apter argues that including the specials in the Police Federation will help increase numbers, as the representation that the change will bring may encourage more people to volunteer with the police. It would give specials a legal status, like that of police officers who are members of the federation. Putting the change into law will formalise that support for specials. In a survey about federation membership, 94% of respondents who were specials said that they wanted to join the Police Federation.
In Scotland, police specials are already part of the Scottish Police Federation. Scottish specials have the same legal status in the force as their regular officer counterparts. Both are appointed to office by the chief constable of Police Scotland, so there is no legal barrier to specials joining the Scottish Police Federation. The inclusion of specials in the Scottish federation has been uncontroversial, as far as I can see.
The Association of Special Constabulary Officers is supportive of specials being given greater access to the federation’s legal advice and assistance services. It says:
“As frontline volunteer police officers we are exposed to the same risks of complaints and injuries and conduct investigations, and the Federation has an unrivalled local network of capability on those issues already in place, which is required under police regulations and funded by forces. In this respect ASCO is supportive of the ongoing work.”
However, ASCO has voiced concerns about how much it will cost and the risk of specials losing their independent voice. ASCO wants to retain its role as the representative association and professional body for police specials, with the federation being the lead and expert organisation in respect of the elements of formal representation that it is funded to undertake.
The cost will be around £3 million, which is not being covered by the Home Office. If the number of specials increase, as we hope, back to 2012 levels, that would possibly rise to £6 million or £7 million. The chair, workforce lead and “citizens in policing” lead for the Association of Police and Crime Commissioners have agreed in principle to fund membership for specials. They wrote to all current PCCs in June 2020, asking them to indicate their willingness to pay specials’ subscription fees. Although we support the relatively uncontroversial clause, will the Minister confirm that that £3 million cost is accurate? Does she think the cost of membership is proportionate? Is it appropriate for taxpayers to cover that amount out of the police precept, especially if the number of specials rise and the cost goes up to £6 million or £7 million?
Victoria Atkins
I note the time. Our special constables make a vital contribution to keeping communities safe, through their professionalism, dedication and sacrifice, increasingly fulfilling a range of specialised and frontline roles. They often face the same risks as regular officers while on duty and have the same powers as regular officers.
Police, Crime, Sentencing and Courts Bill (Sixth sitting)
Tuesday 25th May 2021
(2 years, 11 months ago)
Public Bill CommitteesRead Full debate Police, Crime, Sentencing and Courts Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 25 May 2021 - (25 May 2021)
The Committee divided: - Ayes: 5 / Noes: 8 - Question accordingly negatived.
The Committee divided: - Ayes: 4 / Noes: 8 - Question accordingly negatived.
The Parliamentary Under-Secretary of State for the Home Department (Victoria Atkins)
When we adjourned this morning, I was agreeing with the hon. Member for Croydon Central that special constables make a vital contribution to keeping communities safe, through their professionalism, dedication and sacrifice. Increasingly, as they fulfil a range of specialised and frontline roles, they face the same risks as regular officers while on duty. Given that they share the range of powers that regular officers can deploy, we are very pleased to have included this clause in the Bill.
The hon. Lady asked me about the funding. We understand that the Police Federation is currently exploring funding options for specials’ membership. The Home Office currently provides free access to an insurance policy for all special constables, to cover the costs of legal advice in the event of disciplinary and misconduct proceedings. We have no plans at present to withdraw from that insurance. I commend clause 3 to the Committee.
Question put and agreed to.
Clause 3 accordingly ordered to stand part of the Bill.
Clause 4
Meaning of dangerous driving: constables etc
Question proposed, That the clause stand part of the Bill.
Sarah Jones (Croydon Central) (Lab)
We support clauses 4 to 6, which relate to police driving standards. The Opposition have been calling for some years for proper legal protections for police officers when they pursue suspects on the roads. We know that the police put themselves in incredible danger to ensure that suspects are caught, and they should not be criminalised for doing that job. One of the first events I attended as an MP was an event organised by the Police Federation, and this issue was part of the first conversation that I had with it. I pay tribute to the Police Federation and others who have campaigned for this change.
Clauses 4 to 6 amend the Road Traffic Act 1988 so that qualified police drivers are compared to what is expected of a competent and careful trained police driver, rather than what is expected of competent and careful drivers, for the offences of dangerous and careless driving. It makes a lot of sense to give the police these added protections when they are driving for police purposes.
For those who may have concerns about these clauses, it is important to consider the context in which this change is being made. The Independent Office for Police Conduct publishes an annual report on deaths during or following police contact. In 2019-20, 24 people died in road traffic incidents involving the police: 19 were pursuit related; three were emergency response related; and the two remaining incidents were classed as other police traffic accidents. The number of road traffic fatalities involving the police in 2019-20 was the fifth lowest figure since records began in the early 2000s.
The Police Federation has been campaigning since 2012 for the skills of police officers to be considered in dangerous and careless driving cases. John Apter of the Police Federation, giving us evidence last week, said:
“All that we are seeking is for the training and the purpose of the journey to be recognised in law, because I think the public watching this would be astounded if they were to see a police vehicle engaged in a pursuit or an emergency response and that driver is then judged as any other member of the public. So, you take away the blue lights and the police markings, and that vehicle is treated as one being driven by any other member of the public. That is bizarre; that should not be allowed to happen.”––[Official Report, Police, Crime, Sentencing and Courts Public Bill Committee, 18 May 2021; c. 22, Q34.]
The Police Federation says that the
“current legislation leaves drivers vulnerable”,
and that subjecting drivers to conduct and criminal investigations as a result of being held to the same standards as a normal driver caused significant distress and impeded their careers. The Home Office’s review of the law, guidance and training governing police pursuit in September 2019 concluded that it is not appropriate to hold officers to the same standards as regular guidance, and set out to consult on possible changes.
Mr Robert Goodwill (Scarborough and Whitby) (Con)
Is the hon. Lady aware that police forces have in place strict guidance on how police officers can use their driving skills? In particular, if a hot pursuit were to put members of the public at risk, they would have to desist from the pursuit.
Sarah Jones
The right hon. Gentleman is right; there are many other processes in place for when an accident occurs. As soon as an accident occurred, the IOPC would investigate why it happened. Measures are in place to ensure that the police do not do things that we would not expect of them. The amendment aims to make sure that it is very clear what is expected of them and what is not. When I spoke to the National Police Chiefs Council lead on those issues, it was clear to me that we have to enable the police to do what they need to do without fearing that they will be taken to court. There also need to be checks and balances to ensure that they do not overstep the mark.
The Government review was welcome. The IOPC concluded:
“Any change to legislation must not have the unintended consequence of reducing public safety or undermining the ability to hold the police to account effectively”.
That is very important. The change is welcome; it is not about the police driving without fear of scrutiny, but it is important that police are not prosecuted for doing what they have been trained to do.
It is also important to discuss an issue related to clause 4, which a number of police officers have raised with me. We tried to craft some amendments around this, but it was problematic, so I am just raising the issue. There was a concern that the number of officers who have undertaken the full level of driver training varies between forces, because there are various different levels of driving training, and what officers have will depend on where they are. Officers who do not receive the full training worry that they will be hesitant to do what may be required of them in the circumstances. For instance, if they were on a motorway and needed to ram a vehicle in order to save someone’s life on the road, would an officer take that risk if they could end up subject to a criminal investigation?
The police clearly have to strike a fine balance in the circumstances they are presented with. I have no doubt that, in the main, they will do what is expected of them. Subsection (3) states that
“the designated person is to be regarded as driving dangerously… only if)—
(a) the way the person drives falls far below what would be expected of a competent and careful constable who has undertaken the same prescribed training, and
(b) it would be obvious to such a competent and careful constable that driving in that way would be dangerous.”
Can the Minister provide some assurance? If a police officer who has done the basic level of police driver training finds themselves in a situation where they have to respond to an emergency incident that would require higher levels of training, how would they be protected?
On a matter related to clauses 4 to 6, the College of Policing has said that it would be “highly desirable” for police vehicles involved in pursuits always to be fitted with black boxes, which monitor the performance of drivers. Some forces, such as the Metropolitan police, fit all vehicles with those devices, but that is not the case everywhere. Could the Minister look into that? The cost might be prohibitive, but what would it take for all vehicles used in police pursuits to have those black boxes? What safeguards will be in place to protect drivers who have not had the highest level of driver training? Will that lead to more IOPC and court referrals, or can we be comfortable that the clauses as drafted will provide that protection?
Sarah Champion (Rotherham) (Lab)
I am broadly supportive of the measures. When I go out with South Yorkshire police, I am always incredibly impressed by the amount of planning and expertise in the force, but I need to raise concerns made by the IOPC, which I hope the Minister will respond to. It, too, is broadly supportive, but it has raised a couple of reservations, including the fact that the lack of detailed information on the number and outcomes of investigations involving police road traffic incidents made it difficult to understand the full context of the proposed legislative change, and therefore how big the current problem is. It also says that any change to legislation must not have the unintended consequence of reducing public safety or undermining the ability to hold the police to account effectively. I wonder whether the Minister could comment on those points.
Allan Dorans (Ayr, Carrick and Cumnock) (SNP)
On an almost minute-by-minute basis, highly trained police drivers respond to emergency calls on all our behalf. They rush to incidents of danger when others run away. They are highly trained and they deserve the protection afforded by the Bill, and to be judged by the standard of the training they have received, rather than the standard of a normal driver. This may seem a relatively unimportant feature of the Bill, but it is extremely important to the police officers who undertake these dangerous duties. It is a matter of great interest and concern that they should not be treated as criminals when all they are actually doing is performing their duties to the best of their abilities.
Victoria Atkins
Clauses 4 to 6 provide a new test to assess the standard of driving of a police officer. Should an officer be involved in a road traffic incident, this new test will allow courts to judge their standard of driving against a competent and careful police constable with the same level of training, rather than against a member of the public, as at present. Clause 4 applies the new test to the offence of dangerous driving, while clause 5 makes similar provision in respect of the offence of careless driving.
We believe that police officers need to be able to do their job effectively and keep the public safe. We are aware of concerns among some police officers over the legal position when pursuing suspected offenders or responding to an emergency. The hon. Member for Croydon Central asked about different standards of training. The proposed changes seek to strike the right balance between enabling the police to keep the public safe on the roads and pavements, apprehending criminals around the country who would otherwise pose a threat, and effectively holding to account the minority of officers who drive inappropriately.
The National Police Chiefs’ Council has worked closely with police forces to standardise police driver training across England and Wales. This will ensure that police drivers are trained to a similar standard, depending on their role, and that the legal test for police drivers will have a fairer comparator. This will also include different levels of training to reflect the training and skills that each role requires.
Sarah Jones
The NPCC made exactly that point: people will have different levels of training. It just wants reassurance about officers who are not trained to do something that they end up having to do in the line of duty. Will they be affected because they have not had a very high level of training when, for example, pursuing somebody?
Victoria Atkins
This will include different levels of training to reflect the training and skills that each will require, so that difference is reflected. We are pleased to introduce these clauses. There is a careful balancing act between the interests of the law-abiding public and police officers while ensuring that standards are maintained on the road. These provisions will also extend, I am happy to say, to police driving instructors when they carry out advanced police driving techniques for the purpose of teaching trainee police driving instructors and trainee police drivers in the territorial police forces and other police forces. We believe that this new test strikes that balance, so I commend the clauses to the Committee.
Question put and agreed to.
Clause 4 accordingly ordered to stand part of the Bill.
Clauses 5 and 6 ordered to stand part of the Bill.
Clause 7
Duties to collaborate and plan to prevent and reduce serious violence
Sarah Jones
I beg to move amendment 78, in clause 7, page 7, line 33, after “violence”, insert “and safeguard children involved in serious violence”
This amendment, together with Amendments 79, 80, 83, 84, 85, 86, 88 and 89, would ensure specified authorities involved in the “serious violence duty” safeguard children at risk of or experiencing from harm.
The Chair
With this it will be convenient to discuss the following:
Amendment 79, in clause 7, page 7, line 38, after “violence”, insert “and safeguard children involved in serious violence”
See explanatory statement to amendment 78.
Amendment 92, in clause 7, page 8, line 4, at end insert—
“(d) prepare and implement an early help strategy to prevent violence and support child victims of violence and prevent hidden harm.”
This amendment would add a duty on specified authorities to prepare and implement an early help strategy.
Amendment 80, in clause 7, page 8, line 4, at end insert—
“(d) safeguard children involved in serious violence in the area, and
(e) identify and safeguard children who are involved in serious violence in the area as a result of being a victim of modern slavery and trafficking offences under the Modern Slavery Act 2015.”
See explanatory statement to amendment 78.
Amendment 93, in clause 7, page 8, line 10, at end insert—
“(d) any children’s social care authority for the area which is not a specified authority for the area.”
This amendment would ensure that any children’s social care authority which was not already involved in the strategy would be consulted in the preparation of the strategy.
Amendment 82, in clause 7, page 8, line 30, at end insert—
“(7A) The local policing body for the area must provide an annual monitoring report for local safeguarding partners on actions undertaken as part of a strategy.”
Amendment 83, in clause 8, page 9, line 3, after “violence”, insert “and safeguard children involved in serious violence”
See explanatory statement to amendment 78.
Amendment 84, in clause 8, page 9, line 6, after “violence”, insert “and safeguard children involved in serious violence”
See explanatory statement to amendment 78.
Amendment 85, in clause 8, page 9, line 11, after “violence”, insert “and safeguard children involved in serious violence”
See explanatory statement to amendment 78.
Amendment 86, in clause 8, page 9, line 11, at end insert—
“(d) identify and safeguard children who are involved in serious violence in the area as a result of being a victim of modern slavery and trafficking offences under the Modern Slavery Act 2015.”
See explanatory statement to amendment 78.
Amendment 88, in clause 9, page 10, line 30, after “violence”, insert “and safeguard children involved in serious violence”
See explanatory statement to amendment 78.
Amendment 89, in clause 9, page 10, line 32, after “violence”, insert “and safeguard children involved in serious violence”
See explanatory statement to amendment 78.
New clause 17—Child criminal exploitation—
“At end of section 3 of the Modern Slavery Act 2015 (meaning of exploitation), insert—
‘(7) Another person manipulates, deceives, coerces or controls the person to undertake activity which constitutes a criminal offence and the person is under the age of 18.’”
This new clause introduces a statutory definition of child criminal exploitation.
New clause 47—Duties to collaborate and plan to prevent and reduce child criminal exploitation and safeguard affected children—
“(1) The specified authorities for a local government area must collaborate with each other to prevent and reduce child criminal exploitation in the area and safeguard affected children.
(2) The duty imposed on the specified authorities for a local government area by subsection (1) includes a duty to plan together to exercise their functions so as to prevent and reduce child criminal exploitation in the area and safeguard affected children.
(3) In particular, the specified authorities for a local government area must—
(a) Identify the kinds of child criminal exploitation that occur in the area,
(b) identify the causes of child criminal exploitation in the area, so far as it is possible to do so, and
(c) prepare and implement a strategy for exercising their functions to prevent and reduce child criminal exploitation and safeguard affected children in the area.
(4) In preparing a strategy under this section for a local government area, the specified authorities for the area must ensure that the following are consulted—
(a) each educational authority for the area;
(b) each prison authority for the area;
(c) each youth custody authority for the area.
(5) A strategy under this section for a local government area may specify an action to be carried out by—
(a) an educational authority for the area,
(b) a prison authority for the area, or
(c) a youth custody authority for the area.
(6) Once a strategy has been prepared under this section for a local government area, the specified authorities for the area must—
(a) keep the strategy under review, and
(b) every two years, prepare and implement a revised strategy.
(7) A strategy prepared under this section may be combined with a strategy prepared in accordance with section 7 (Duties to collaborate and plan to prevent and reduce serious violence) or section 8 (Powers to collaborate and plan to prevent and reduce serious violence).
(8) For the purposes of this section, “child criminal exploitation” means activity which would constitute an offence under section [Child criminal exploitation] of this Act.”
New clause 58—Training on child criminal exploitation and serious youth violence—
“(1) The Secretary of State must, within three months of the day on which this Act is passed, publish a strategy for providing specialist training on child criminal exploitation and serious youth violence for all specified authorities to which Chapter 1 of Part 2 of this Act applies.
(2) Before publishing the strategy the Secretary of State must consult such bodies with expertise in providing relevant training as the Secretary of State considers appropriate.”
Sarah Jones
This is a really important part of the Bill. The Minister knows that I came into this House in 2017 absolutely determined to tackle the scourge of rising levels of serious violence, particularly youth violence, and she knows that I set up and chaired the all-party parliamentary group on knife crime and violence reduction, which relentlessly champions the need to prevent violence through strong policing, of course, but also through prevention. We have been in many debates together, and she has kindly met constituents of mine who have lost family members to knife crime, and she has also spoken to the APPG.
There has been a long conversation in Parliament about bringing organisations together to look at the stories behind the headlines, and to look at the evidence of what causes violence, in order to understand that it is not inevitable and that it is something we can affect. There is plenty of evidence from many places on how to reduce violence. Many other hon. Members across the House have campaigned on this, not least my hon. Friend the Member for Lewisham, Deptford (Vicky Foxcroft), who has done so much cross-party work on the issue.
Clauses 7 to 22, which place a duty on local authorities to plan, prevent and reduce serious violence, are welcome. At their core is the new duty on specified authorities to identify the kinds of serious violence that occur in a relevant place; to identify the causes of serious violence in the area; and to prepare and implement a strategy for exercising their functions to prevent and reduce serious violence in an area. That is significant. Although there are many “buts”, which we will come to as we go through the amendments, it is important to recognise that that is a good thing and will make authorities work better together and make them look to prevent as well as reduce violent crime.
Of course prison is absolutely crucial in terms of justice and punishing those who have wronged, but we know that it does not stop overall levels of crime increasing. Although policing is absolutely vital, at the heart of everything we are talking about, we know that an increase in resources and focus leads to a reduction in violent crime, but it goes up again over a couple of years. We can look at how knife crime goes up and down. It goes up, there is a significant intervention from the police, there are more resources, and it goes down. People are locked up, but then a few years later it starts rising again. We know that the real long-term solution is prevention, as evidenced in many parts of Scotland—the example often given—and in other parts of the world as well.
We have talked about this before, but we know that the approach to prevention and tackling violence is more effective when it is tackled in the way that the last Labour Government tackled teenage pregnancies. We had the highest teenage pregnancy rates in Europe. It was a massive problem and everyone was very concerned about it. There was a moral panic about why so many were getting pregnant. There was a 10-year intervention that looked at the causes of why these things were happening, so it was not just about trying to stop girls having sex; it looked at why on earth their aspirations were so low. Their education and ambitions were not what they could have been. A broad approach, targeted from the centre and delivered locally over a 10-year period, reduced teenage pregnancy by 50%—a huge, long-term reduction that has remained pretty static. It has delivered a societal change because of the nature of the approach.
It is argued that we can do the same thing with violence, as has been done in Scotland. Over a long period of time we can reduce violence, and those levels can become the societal norms. We can shift the norms and reduce violence. That is what many of us have campaigned for, and it is at the heart of this new part of the Bill.
I will give another example. In Croydon, there was a review of 60 cases of serious violence among young people, which involved people who were murdered, people who were imprisoned for murdering other people, and people who had been victims or perpetrators of the most serious cases. They looked at all those cases and where the similarities were, and it turned out that half of those young people were known to social services before they were five years old. That tells us everything we need to know about how the duties should operate. If someone is in care, is vulnerable, has experienced domestic abuse in the home, has parents with addiction or does not have parents at all, there are things that make them more vulnerable to getting involved in violence later in life. If we intervene at the earliest possible stages, we can have a significant impact not just on the lives of those young people, but on society and on the cost to society. Figures about the cost of a murder are bandied around, although I am sure they are now outdated. People used to say a murder costs about £1 million, but it probably now costs the public purse significantly more.
Sarah Champion
I just wanted to congratulate my hon. Friend on making such a powerful and relevant speech. I also wanted to give her a moment to get a glass of water
Sarah Jones
I thank my hon. Friend for allowing me to get a glass of water.
Alex Cunningham (Stockton North) (Lab)
I am really pleased that my hon. Friend has raised the issue of looked-after children. When I was the lead member for children and young people in Stockton, there was forever a group of young people whom we knew needed extra support, yet we found out that many of these young people ended up in the prison system later in life, which was a terrible tragedy. More power to her elbow, because we really need to tackle the problem early. I am sure she agrees with that.
Sarah Jones
I completely agree.
When we talk about violent crime, there is often a moral panic about what is happening, and we often see very polarised responses. Either it is all about more policing and more resources, or it is about tougher sentencing—throwing people in prison and throwing away the key. Actually, we need to have a much more grown-up conversation about the causes of these issues and what the solutions are. I hope, and I think we all hope, that this part of the Bill is a step in the right direction towards doing that.
Moving on to the amendments that we have tabled, having held roundtable discussions and spoken to policing organisations, charities and others, I am concerned that, as currently drafted, the Bill will not deliver the results that we intend. There is a lot of talk of the need for a public-health approach to tackling serious violence that seeks to address the root causes, and we welcome the Government’s acknowledgement of the need to shift the focus towards that. However, we do not believe that, as currently drafted, the proposals amount to a public health approach. We, along with several agencies, are concerned that there could be a number of unintended consequences for both children and the agencies involved if the statutory public-health duty is created without achieving the desired result of reducing the number of children who are harmed by serious violence.
A vision for tackling serious violence that does not also help to protect children from harm, does not include the full range of partners and interventions needed, and does not consider some of the more structural factors that contribute to violence, will not deliver the outcome that we want. We need a broader strategy that equips the safeguarding system and the statutory and voluntary services to protect children from harm, with the resources and guidance to do so. It should embed a response that takes account of the context in which children are at risk and that is trauma-informed, as we were discussing this morning. A duty for serious violence that presents these issues as distinct from wider safeguarding duties could lead to a more punitive approach to those children, which evidence suggests is inadequate to reduce violence. Of course, implementation of a new duty without additional resources will be difficult for services that are already tasked with rising demand and crisis management options, and have low staff retention.
Amendment 78, and the amendments to other clauses, make the specified authorities involved in the serious violence duty safeguard children at risk of or experiencing harm. In particular, amendments 80 and 86 refer to children involved in serious violence in the area as a result of being a victim of modern slavery and trafficking offences under the Modern Slavery Act 2015. The point we are trying to make is that the statutory duty to reduce violence cannot be effective on its own, without a statutory duty to safeguard children.
As an example, I met police from Exeter because there is a county line from London to Exeter, and the police had been working to tackle that issue. A senior police officer told me that there had been a number of occasions on which they had picked up a child at the coach station because they can quite often tell if someone is bringing drugs to the area, as they will get off the coach on their own with just a rucksack—the police pick up young children who are doing that. On several occasions, that senior police officer had to sit with the child in his office for hours because nobody would come to collect them. Perhaps the child is in foster care, which is very often the case, and because they have been found with drugs, the foster parents will not have them back. The local authority might not have any emergency foster carers and so cannot take the child back, and nobody will come to look after them. That child is committing a crime, but they are also a child who ends up sitting there playing computer games in a senior police officer’s office in Exeter because nobody has worked out how to join things together and look after them.
Sarah Champion
Does my hon. Friend agree that those children are symptoms and casualties of crime, rather than the cause? We need some sensitivity in the Bill to recognise that.
Sarah Jones
My hon. Friend is exactly right. We do not disagree with the premise of what is in the Bill, but we think those two things need to come together. I am sure we all have examples of cases where children are manipulated and groomed into committing criminal offences. They sometimes have no choice whatever, or they feel that they have no choice. Those things have to be looked at together or this will not work.
Amendment 92 would add a duty on the specified authorities to prepare and implement an early help strategy to prevent violence, support child victims of violence and prevent hidden harm. The Minister may say that that could be part of the wider duty, but we have tabled the amendment because that early intervention is crucial to prevent violence before it occurs, and that really ought to be in the Bill.
We in this place will all have spoken to and had presentations from people talking about ACEs—adverse childhood experiences—whether domestic abuse or a violent death, for example. Violent death in particular causes significant problems for young people and has not really been looked at enough. We know about all those ACEs, and we know that the systems and structures in place at the moment often intervene at the point of absolute crisis rather than intervening earlier and more effectively by trying to break the cycle of violence. Including an early help strategy in the Bill would ensure that that crucial element is not forgotten. That is part of a much wider issue that is out of scope of the Bill, including Sure Start, the importance of schools and intervention, and the funding of child social services, but we want the principle of early intervention to be included in the Bill. It is important that the Government, local authorities, the police and the voluntary sector have a joined-up approach to preventing, recognising and responding to violence. Central to that must be the need to prevent the criminalisation of children, as well as early intervention to prevent young people from becoming involved in violence in the first place.
Sarah Champion
This point is more to do with new clause 47, but it is appropriate now. Does my hon. Friend agree it is vital that the serious violence duty and accompanying strategy interact with local authority strategies to tackle child exploitation, the national violence against women and girls strategy and the national tackling child sexual abuse strategy as well as others?
Sarah Jones
Yes, my hon. Friend is right. They all need to join up, but some organisations have asked questions about how such things will join up effectively to ensure that offshoots of activity are pulled together as one whole.
New clause 47 would ensure that the bodies under the duty collaborate and plan to prevent and reduce child criminal exploitation and safeguard affected children. The new clause takes the definition of modern criminal exploitation from new clause 17, tabled by my hon. Friend, which would amend the Modern Slavery Act 2015 to introduce this statutory definition of child criminal exploitation:
“Another person manipulates, deceives, coerces or controls the person to undertake activity which constitutes a criminal offence and the person is under the age of 18.”
The definition would cover activities such as debt bondage and GPS tracking by gang leaders of those coerced into running county lines. When I was in Birmingham a few weeks ago, I heard about very young gang members. Yes, they were scared, but they were so invested in their criminal gang leaders, whom they saw as their family, that they were prepared to commit crimes that would put them in prison for very small amounts of money. They genuinely believed that was the most sensible choice available to them. They were clearly exploited, but there is not necessarily a definition in place to respond appropriately to that.
As my hon. Friend said, children who are groomed and exploited by criminal gangs are the victims, not the criminals. Many different organisations have flagged, as witnesses said last week, the fact that the absence of that statutory definition makes it harder for agencies to have a co-ordinated and effective response to vulnerable children.
The serious violence duty is a unique opportunity to bring together all the relevant authorities for training and action at a local level. In the past decade, county lines drug dealing has been a major driver of serious violence across the country. I am afraid that since the National Crime Agency’s first county lines assessment in 2015, the Government have been slow to respond, and cuts across the public sector have made things worse. Sadly, county lines drug networks rely on the grooming of vulnerable children to act as drug runners. They are badly exploited, then abandoned when they are no longer of use to the gang leaders. The Children’s Commissioner for England has estimated that 27,000 children are gang members. Modelling done by crime and justice specialists, Crest Advisory, identified 213,000 vulnerable children.
Children and vulnerable young people experiencing serious violence require a different response from that given to adults, and being involved in violence is often an indicator that children are experiencing other significant problems in their lives, such as being criminally exploited. Despite growing recognition of child criminal exploitation, there are still concerns that many children and young people involved in exploitation are not being identified or sufficiently supported by statutory services. Too often, these young people only come to the attention of the authorities when they are picked up by the police, caught in possession of drugs or weapons, or through involvement in a violent assault.
I should also mention the important issue of young girls who are involved in gang activity. I met a young girl who had been involved and had been injured as a result. She was in a hotel room with several gang members, who had money and drugs. The police had raided the hotel and arrested all the boys, but told the girl to be on her way because they did not know how to respond to her. She was in danger and was being exploited, but the police response was not there because they were not used to dealing with girls in that situation. Presumably they thought they were being kind, but they were actually leaving a girl who had been exploited to potentially still be in danger.
Alex Cunningham
When I was a member of the Education Committee, we carried out an inquiry around support, particularly for girls, and we had an evidence session with young people. A 16-year-old girl, who had been a victim of exploitation, had been placed in an out-of-town YMCA somewhere in Kent, to live there until the authorities sorted out what needed to happen with her. She told stories of men braying at her door at night asking her to come and party. That is all the more reason why we need a multi-agency approach, so that girls like her are properly protected.
Sarah Jones
Sadly, that tale is probably not uncommon. I am sure that the response of agencies to girls is better than it was, but it is still not joined up in a way that provides the support that is needed.
Children and young people who are victims of child criminal exploitation and gang violence are not being identified in time to save their lives, literally, and to save other people’s lives, despite frequent opportunities to do so. Communications between agencies and the recording and sharing of data is often poor, and support for at-risk children is inconsistent. As the 2019 report on gangs and exploitation by the previous Children’s Commissioner found, only a fraction of children involved in gang violence are known to children’s services.
The experience of being criminally exploited is extremely traumatising to children, and it is unlikely they will be able to escape these abusive experiences and rehabilitate without significant professional support. The approach to tackling child criminal exploitation must combine effective enforcement with long-term safeguarding and support strategies that are focused on managing long-term risks as well as the immediate ones. Too often vulnerable children receive crisis-driven care, not the long-term trust that they need, which would be provided by preventative support.
As part of criminal exploitation, children may be threatened into carrying knives or perpetrating violence against rival groups. It is important to understand the underlying causes of why children might be involved in violence and for these underlying causes in a child’s life or in the lives of children within a certain area to be addressed. This would involve adopting a more universal understanding of how children are coerced, controlled and threatened into serious violence, taking disruption action against those who coerce and control children, and ensuring that the response to children is centred on addressing their needs, fears and experiences.
Sarah Champion
I was struck by and am still musing on the fact that, earlier, when the example of a child carrying out a crime was given, the word “choice” was used. Does my hon. Friend agree that, in the situation she describes, these children have no choice unless we add to the Bill the measures that she argues for?
Sarah Jones
I agree that they do not have a choice, but I have met young people who committed crimes as a child who believed that they did have a choice and that they were making the right choice because their parents had no money and they wanted to pay the bills. They believe that they are making sensible decisions, but they are children and they are vulnerable, and they are not. We need to provide support if we are going to stop them spiralling into a life of crime in the future.
New clause 58 was tabled by my hon. Friend the Member for Vauxhall (Florence Eshalomi), who now co-chairs the all-party parliamentary group on knife crime and violence reduction, and who worked with Barnardo’s on the new clause. It would require the Government to publish a strategy for providing specialist training on child criminal exploitation and serious youth violence for all specified authorities to which chapter 1 of part 2 of the Bill applies. It is really important that all bodies involved in safeguarding children and the prevention of serious violence receive proper training in looking out for and preventing child criminal exploitation. The training of professionals can make all the difference when identifying children who have been criminally exploited and in understanding the dual nature of a child being an offender and a victim.
I have had trauma training, as I am sure have several people in this room. I cannot tell hon. Members how useful it has been to understanding the issues children deal with and which levers might be used. I was in a meeting with police recently, talking about a 15-year-old boy who had just committed quite a serious crime. The police officers, who had had trauma training, had a relationship with this child because they had been playing football with them for several months before the crime occurred. They were able to appreciate that the child had an alcoholic mother who was abusive, and we were able to talk to some charities about getting some support for that child. The police understood what interventions were needed to try to pull the child out of criminal activity and pushed towards a life of non-criminal options. It was amazing to see. Having that training and understanding some of these underlying issues is really important. I am grateful to my hon. Friend the Member for Vauxhall for tabling the new clause, which we will support.
Sarah Champion
I want to express my gratitude to my hon. Friend the Member for Croydon Central for the amendments and new clauses she has tabled. Effectively, my new clause 17 underpins and provides the impetus for the work that she detailed, and I am grateful to the Children’s Society for helping me to develop it.
I start from the position of being the MP for Rotherham, where 20 years ago it was not uncommon for girls to be raped, abused by gangs or forced into carrying out crime on behalf of those gangs. They would get a criminal record and would be told that they were child prostitutes, and their lives were destroyed accordingly. We now have a definition of child sexual exploitation. That completely changed the attitudes of all the agencies, including the police and the social services, and the general population to the fact that exploitation of those children was happening.
It is clear that child criminal exploitation is going on, whichever heading we put it under, but we are quite a long way behind in our understanding of what that actually means. New clause 17 would place a statutory definition of criminal child exploitation in law for the first time by amending the Modern Slavery Act 2015. For it to be truly effective, the Modern Slavery Act must adapt as new forms of exploitation are recognised. Child criminal exploitation is the grooming and exploitation of children into criminal activity. There is a strong association with county lines, but it can also include moving drugs—I am grateful to my hon. Friend the Member for Croydon Central for adding to my knowledge; I now know what “plugging” is, which children are forced to do—financial fraud and shoplifting. Obviously, that has been around for decades, but we are only just waking up and realising the harm and damage that those criminals are causing children. The true scale remains unknown, as many children fall through the cracks of statutory support.
The Children’s Commissioner estimated that 27,000 children are at high risk of gang exploitation. During 2020, 2,544 children were referred to the national referral mechanism due to concerns about child criminal exploitation, and 205 of those cases involved concerns about both criminal and sexual exploitation. My hon. Friend rightly highlighted that girls are criminally and sexually exploited by the same gang.
Alex Cunningham
I am just reflecting on the attitude of the professionals who do not actually understand or do not have a clear enough definition with which to work. What changes do they want to ensure clarity and that they can better protect people?
Sarah Champion
My hon. Friend is absolutely right to raise that. I am going off on a slight tangent, but The Times is tomorrow coming out with an article about child sexual exploitation. One of the key indicators of that is children going missing, and it cites the case of one girl who went missing 197 times, each time being reported to the police—this is recently—but the police still did not act. Just having the definition is not enough. This is about the issues that my hon. Friend the Member for Croydon Central described. It is about the training, public awareness, and all the agencies working together when they see that child. What I have found with the CSE definition is that having that hook does really sharpen and focus professionals’ minds around it. We have taken huge strides when it comes to child sexual exploitation, because we have that definition in place and because there is a level playing field when talking about it.
Sarah Jones
I congratulate my hon. Friend on the very powerful case she is making. It reminds me of a conversation that I had recently with police officers, who were talking about the number of children who go missing but are not reported to the police as missing, because the family have other children, siblings of the missing child, and are nervous that if they report that one child has gone missing—who will probably come back, because he is doing county lines—the other children might be taken into care. That underlines the case for training and understanding of these issues beyond just policing. It is through education and terminology that everyone can understand that all the different organisations involved in trying to reduce this can understand some of the issues and intervene when they need to.
Sarah Champion
Exactly. Once people have the definition, they have a list of the indicators, and going missing would of course be one of those, so the first thing that would cross the social worker’s mind, rather than “Oh, this is bad parenting,” would be, “Could the child be being sexually exploited? Could the child be being criminally exploited?” It really shifts the mindset of the professionals. I thank my hon. Friend for that intervention.
There is another potential nervousness that the Minister may have. I know that a statutory definition of child criminal exploitation was explored when the Modern Slavery Act was reviewed in 2019. I note that the reviewers’ main concern was about a narrow definition of child criminal exploitation that would not be future proof as the exploitation adapted. That is why the definition that I am proposing is broad and simple, focusing on the coercive and controlling behaviour that perpetrators display in relation to their victims, not on the very specific criminal act itself.
I know that the Home Office has raised concerns with regard to use of the section 45 defence in the Modern Slavery Act and children being able to take advantage of that. I am aware that colleagues have also raised concerns about unintended consequences that this definition might have for the use of that defence, but I do not believe that there would be those unintended consequences. A clear definition of child criminal exploitation would guide a jury far better than is the case now, as jurors would need to weigh up the evidence and consider the defence but would be aided by a much clearer definition of what constitutes relevant exploitation. That would in fact reduce the risk of the section 45 defence being used spuriously, which is a concern that colleagues have raised with me. This definition would not change the provisions under section 45, but I hope that the awareness raising that would come with a statutory definition of child criminal exploitation would enable genuine victims of exploitation to use the defence more routinely.
The Chair
Before we move on, I remind colleagues that they are meant to address the Chair. I am seeing quite a lot of backs. I do not mind seeing backs occasionally, but it does help Hansard writers and everybody here if we have a little bit of fluidity and motion. I call the Minister.
Victoria Atkins
Sir Charles, I am probably the worst offender for that, so forgive me—I will try to face forward.
Before I turn to the specifics of the amendments, it may assist the Committee if I set out why we feel it necessary to create the duty. Serious violence has a devastating impact on victims and their families. It instils fear in communities and it is extremely costly to society. It is always difficult to talk about economic cost when we are talking about children in harm and grieving families and so on, but there is an economic cost as well.
Incidents of serious violence have increased in England and Wales, and it is for that reason that we have decided to introduce the serious violence duty. The duty is a key part of the Government’s programme of work to prevent and reduce serious violence. It involves taking a multi-agency approach to understand the causes and consequences of serious violence, focusing on prevention and early intervention, informed by evidence. In addition to tough law enforcement, we need to understand and address the factors that cause someone to commit violent crime so that we can prevent it from happening.
Analysis of responses to our 2019 public consultation, which tested options for a public health approach to tackling serious violence, found an overall consensus that a legislative approach was preferred to a voluntary, non-statutory approach. We know that that is already being undertaken in some areas, such as those with a pre-existing violence reduction unit, but there is inconsistency across England and Wales. We envisage that the duty will create the conditions and legal basis to bridge that gap.
At its core, the duty will require specified authorities to work together and share data and intelligence. They will also need to formulate an evidence-based analysis of the problems associated with serious violence in their local area, and subsequently produce and implement a strategy detailing how they will respond to those particular issues. The duty will be placed on specified authorities from the police, justice, fire and rescue, health and local authorities. Education, prison and youth custody authorities will be under a separate duty to co-operate with the specified authorities where required; they can also choose to collaborate voluntarily with the specified authorities, or with each other, should they wish to do so. There will be requirements for authorities to consult all such institutions in their area as they prepare their strategy.
We know how important it is that we get implementation of this new duty right and that we ensure that the authorities understand what will be required of them. That is why we have published draft statutory guidance to support the implementation of the new duty. That guidance, which is available to hon. Members now, explains the requirements of the new duty and provides advice on how they can be met effectively, including examples of good practice. We have done that precisely because we want Parliament, charities and others to examine the document and feed in their thoughts on how it can be improved, ensuring that the guidance is as effective as it can be ahead of implementation of the new duty.
Sarah Champion
When the national referral mechanism was introduced, I was struck that the responses to my freedom of information requests showed that it was not UK children who were being referred. There was a perception that it was international children, whereas the act of trafficking can mean literally taking a child from one side of the street to the other. Has the situation changed, and will anything in this work make that apparent to local authorities and other safeguarding organisations?
Victoria Atkins
I am extremely grateful to the hon. Lady for her question. Sadly, the situation has changed and now the most common nationality of potential child victims of modern slavery is British. As she knows, the NRM is more than a decade old. The criminal world has moved on and the needs of the children we are trying to help, as well as those of adult victims, have changed.
The transformation programme is looking at whether there are different ways in which we can help victims, depending on the safeguarding arrangements that may already be in place and whether children have any family or parental links with this country. Clearly, the needs of a child from Vietnam who has no family links in this country may be very different from those of a child who has been born and brought up here, with parents looking after them and with brothers and sisters. We are trying to find ways to address the needs of all victims, but particularly child victims in this context.
Local authorities are of course already responsible for safeguarding and promoting the welfare of all children in their area, including child victims of modern slavery. Children’s services must already work in close co-operation with the police and other statutory and non-statutory agencies to offer child victims of modern slavery the support they require. With the background and context that it is already mandatory, we therefore conclude that it is not necessary to include that as a further requirement in the Bill.
I turn to amendment 92 and an early help strategy. The hon. Member for Croydon Central is right to point to the need for a focus on prevention, which is a key part of what the duty seeks to achieve. Early intervention is an important part of prevention work and reducing serious youth violence. The duty already sets out the responsibilities of specified authorities and the work they are to undertake, which includes risk factors that occur before a young person has become involved in serious violence. The specified authorities, including the local authority that has responsibility for children’s social care, will be required to consult education authorities in preparing the strategy. They can also be required to collaborate on the strategy. As such, the provision should already ensure that a strategy to reduce and prevent serious violence would encapsulate early help for this cohort, so we do not believe that an additional strategy is required. Again, I refer to the draft statutory guidance that already has early intervention running throughout it. Indeed, we plan to add case studies before formal consultation, to help explain and guide multi-agency partners.
On amendment 93, children’s social care authorities have a crucial role to play and significant insights to share, particularly for those young people at risk of becoming involved in serious violence, child criminal exploitation or other harms. However, local authorities that are already named as a specified authority under the duty are responsible for children’s social care services. Therefore, for the reasons I have already outlined, we do not believe it necessary for the clause to contain the explicit requirement to consult such services, because they are within the definition of local authority. Again, we will make it clear, as part of our draft statutory guidance on the duty, that social care services, among other vital services for which local authorities hold responsibility, must be included.
We believe that amendment 82 is also unnecessary, given the functions conferred on local policing bodies by clause 13, which are intended to assist specified authorities in the exercise of their functions under the duty and to monitor the effectiveness of local strategies.
I turn to new clause 17 and the important issue of child criminal exploitation. I thank the hon. Member for Rotherham for setting out the case for providing in statute a definition of child criminal exploitation. Child criminal exploitation in all its forms is a heinous crime, with the perpetrators often targeting and exploiting the most vulnerable children in our society. We are determined to tackle it. There is already a formal definition of child criminal exploitation included in statutory guidance for frontline practitioners working with children, including “Keeping children safe in education” and “Working Together to Safeguard Children”. In addition, as the hon. Lady noted, the definition is also included in the serious violence strategy, published in 2018, the Home Office’s “Child exploitation disruption toolkit” for frontline practitioners, and the county lines guidance for prosecutors and youth offending teams.
We have discussed the introduction of a further statutory definition with a range of organisations and heard a range of views. On balance, the Government have concluded that there are risks with a statutory definition. Some partners highlighted the changing nature of child criminal exploitation. Inherent to such exploitation is that it evolves and responds to changes in the criminal landscape and the environment. As such, there are concerns that a statutory definition could prove inflexible as the nature of child criminal exploitation adapts.
In addition, as the hon. Lady has rightly noted, the independent review of the Modern Slavery Act, conducted by Frank Field—now Lord Field—and by my right hon. Friend the Member for Basingstoke (Mrs Miller) and Baroness Butler-Sloss, considered the definition of child criminal exploitation under the Act and concluded that it should not be amended, as the definition currently in place is sufficiently flexible to meet a range of new and emerging forms of modern slavery.
We believe that our focus should be on improving local safeguarding arrangements to identify and support victims of child criminal exploitation, and on working to ensure that the right support is in place locally to protect these very vulnerable children.
Sarah Champion
I appreciate, foresaw and understand all the objections that the Minister raises. As she is a former barrister and someone who uses the law, does she agree that it would help to have a definition, as our witnesses said?
Victoria Atkins
Well, we do have the definition in the Modern Slavery Act. Modern slavery cases are notoriously difficult to prosecute because, as with other hidden harms, they require the involvement of often very vulnerable people, including adults as well as children. They include people who might not have English as a language at all, let alone as a first language, and people who might be targeted precisely because of their vulnerability. Although we are looking very much at the context of children, we know that vulnerable adults have their homes taken over by county lines gangs to cuckoo and sell their drugs from, with all the horrendous violence and exploitation that vulnerable adults have to endure as part of that.
We will continue to look at this. As evidence develops, we will be open to that, but, on balance, we have concluded that it is preferable at this stage to focus on the local multi-agency safeguarding arrangements, and to work on the serious violence duty to get a level of understanding of all the good practice taking place at the local level, which the hon. Lady and others have talked about.
One should not view the Bill as being the only thing that the Government or safeguarding partners are doing to address concerns. We have increased the dedicated support available to those at risk and involved in county lines exploitation, and have provided funding to provide one-to-one caseworker support from the St Giles Trust to support young people involved in county lines exploitation. We are funding the Children’s Society’s prevention programme, which works to tackle and prevent child criminal exploitation, child sexual abuse and exploitation, and modern-day slavery and human trafficking on a regional and national basis.
We are also working on a public awareness campaign, #LookCloser, which was rolled out nationally in September and focuses on increasing awareness of the signs and indicators of child exploitation so that the public and frontline services report concerns quickly to the police. As I say, on balance, at this point, we do not believe that a statutory definition is the correct approach, but we are focusing on practical responses to exploitation.
On new clause 47, I have great understanding as to why the hon. Member for Croydon Central tabled it. It would require specified authorities to prepare and implement a strategy to prevent and reduce child criminal exploitation and to safeguard affected children. We have, however, built flexibility into the duty to allow areas to decide which specific crime types are a priority locally. We have done that deliberately so that local areas can react to what is needed in their areas. Indeed, the draft statutory guidance sets that out. Under the duty as drafted, the specified authorities will already be able to include child criminal exploitation in their local serious violence strategies, should that be of particular concern to them. I very much understand the motivation behind the new clause, but we are not convinced that a separate strategy is necessary.
Alex Cunningham
I am interested to hear the Minister say that there is training to address local issues. I accept that that is a factor. Surely, though, there should be a consistent training programme across all professions to ensure that everybody is approaching these matters in the same way, albeit taking account of local factors as well.
Victoria Atkins
I do not assume that the duty and the draft statutory guidance preclude that consistency of standard; but in this arena and also with other crime types that are hidden and which prey upon vulnerable people, I am very keen that we encourage innovation. We are seeing some really interesting work being conducted through the Youth Endowment Fund. The hon. Gentleman may be familiar with that; it is a fund that stretches over a decade. It is protected money of £200 million that is being invested across the country and is evaluated very carefully in order to build a library of programmes that work—and also programmes that do not work: we need to know both those things, to help local commissioners make good decisions about what they should be funding with taxpayers’ money. I am keen that we enable that sort of innovation.
Of course, consistency of standards is one of the reasons why we want to introduce the duty—precisely because we are aware that those areas that have VRUs may well be a few steps ahead of other parts of the country that do not have them because they do not suffer the same rates of serious violence as London or Manchester, for example. I very much take the point about consistency, but we believe that that can be addressed through the duty itself and the draft statutory guidance.
I am going to come to an end soon, Sir Charles. There is a requirement to include how inter-agency training will be commissioned, delivered and monitored for impact in the published local safeguarding arrangements. That is relevant to the point that the hon. Member for Stockton North just made. Safeguarding partners must also publish an annual report on their safeguarding arrangements, which should include evidence of the impact of the work of the safeguarding partners and relevant agencies, including training.
I am pleased that the Committee has had the opportunity to debate this duty. We have more debates ahead of us, I suspect. We believe that the three safeguarding partners already in place, through the multi-agency safeguarding arrangements that came into being in 2019, are the way to address some of the important issues raised by hon. Members in this part of the debate.
Sarah Jones
Sir Charles, I am sorry about turning my back previously. It was a very appealing amendment and it is hard not to look.
The Chair
It is a great debate, and I do not want to stop anyone. I totally appreciate that.
Sarah Jones
I thank the Minister for her response. In many ways, we are in the same place. We are trying to make this new duty as effective as it can be. I would like to test the will of the Committee on amendment 78, because it is important that, when we are trying to prevent and tackle serious violence, we safeguard children. I understand the Minister’s point about duplication, but not to have that in the Bill would be a huge loss.
The Minister talked about the Home Office funding that goes to the Children’s Society and the St Giles Trust for their incredibly important work. They are the advocates of this; they are the organisations saying to us that this is what we need to do. The Minister gives them money but should also listen to their argument, because it is fundamental and important. On the other amendments, I appreciate that the Minister is doing what she can through the guidance and other means.
Question put, That the amendment be made.
Sarah Jones
I beg to move amendment 50, in clause 7, page 8, line 4, at end insert—
“(3A) Specified authorities which are housing authorities must have particular regard to their housing duties when performing their duties under this section.”
The Chair
With this it will be convenient to discuss the following:
Amendment 52, in clause 7, page 8, line 10, at end insert—
“(d) each registered provider of social housing in the area.”
Amendment 53, in clause 7, page 8, line 15, at end insert—
“(d) each registered provider of social housing in the area.”
Amendment 51, in clause 8, page 9, line 11, at end insert—
‘(3A) Specified authorities which are housing authorities must have particular regard to their housing duties when performing their duties under this section.”
Amendment 54, in clause 8, page 9, line 18, at end insert—
“(e) each registered provider of social housing in the area.”
Amendment 55, in clause 8, page 9, line 23, at end insert—
“(d) any registered provider of social housing in the area.”
Amendment 56, in clause 9, page 10, line 45, at end insert—
“(f) a registered provider of social housing.”
Amendment 57, in clause 15, page 15, line 5, at end insert—
“(f) a registered provider of social housing.”
Amendment 58, in clause 16, page 15, line 37, at end insert—
“(e) a registered provider of social housing.”
Amendment 59, in clause 17, page 16, line 19, at end insert “or registered provider of social housing”
Amendment 60, in clause 17, page 16, line 22, after “authority”, insert “or provider”
Amendment 61, in clause 18, page 17, line 3, at end insert—
“(g) a registered provider of social housing.”
Amendment 62, in clause 19, page 17, line 10, at end insert—
“(1A) In section 5 (Authorities responsible for strategies)—
(a) after subsection (1F) insert—
(1G) Responsible authorities which are housing authorities must have particular regard to their housing duties when exercising the functions conferred by or under section 6 or section 7.”
(b) in subsection (2), after paragraph (d), insert—
“(e) every registered provider of social housing in the area.””
New clause 28—Provision of accommodation to reduce or prevent risk of serious violence—
In the Housing Act 1996, section 189, after subsection (d), insert—
“(e) a person at risk of serious violence, if the provision of accommodation would reduce or prevent the risk of that person becoming a victim of serious violence.”
This new clause amends the Housing Act 1996 to add those at risk of serious violence to the list of those who have a priority need for accommodation, if the provision of accommodation would reduce or prevent the risk of that person becoming a victim of serious violence.
New clause 29—Code of practice on application of section 177 of the Housing Act 1996: prevention and reduction of serious violence—
“The Secretary of State must, before the end of the period of 3 months beginning with the day on which this Act is passed, issue a code of practice under Section 214A of the Housing Act 1996 on preventing serious violence to provide—
(a) that the application of section 177 of the Housing Act 1996 is to be applied to those at risk of serious violence so as to ensure that it is not deemed reasonable for a person to continue to occupy accommodation if the provision of alternative accommodation would prevent or reduce the risk of serious violence against that person;
(b) for the Homelessness Code of Guidance for Local Authorities to be updated to include a new chapter on the duties of local authorities under subsections 7(3A) and 8(3A) of this Act, with particular reference to preventing and reducing serious violence and safeguarding young people at risk of serious violence;
(c) that the police shall be responsible for timely collaboration with housing providers on the reduction of the risk of serious violence to individuals where the exercise of housing duties may reduce or prevent the risk of serious violence; and
(d) guidance on the disclosure of information in accordance with regulations under section (9)(2) of this Act by and to specified authorities which are housing authorities to prevent and reduce serious violence in a prescribed area, with particular reference to assisting the housing authority with the prevention and reduction of serious violence in the exercise of its duties under part 7 of the Housing Act 1996.”
Sarah Jones
These amendments have been tabled by my hon. Friend the Member for Walthamstow (Stella Creasy). They are supported by a vast array of very sensible organisations, from Redthread to Shelter, from the St Giles Trust to Barnardo’s. This section of the Bill sets out the Government’s ambition to reduce violent crime and address the root causes of serious violence by making sure that public bodies work together to stop serious violence. The amendments seek to protect young people and their families from the growing problem of gang grooming, harassment and violence.
Many young people, including children in their early teenage years, experience serious violence and harm as a direct result of being groomed by criminal gangs in their neighbourhood. The common factor in these cases is the need for families and young people to be moved urgently to a suitable home away from the area of gang activity to mitigate the risk of harm. The Government’s serious violence strategy in 2018 identified homelessness as a risk factor for being a victim or perpetrator of violent crime and highlighted the significant growth in vulnerable populations, such as those facing homelessness, over the past decade.
In communities across the country, a lack of suitable and affordable housing options and difficulties in accessing alternative accommodation in a timely manner mean that vulnerable victims are at risk from serious violence and exploitation and have no way of escaping. Too often, desperate pleas by families to social landlords and local housing authorities to move a household to safety are not addressed. Housing providers are not part of planning, with either the police or social services, for the safety of their tenants, even when they hold vital information to help. I have sadly experienced several times in my relatively short time as a Member of Parliament a family coming to me and saying that they feel that their son is at risk of being attacked. They want to move, and the police support the move, but they feel that there is nowhere for them to move to, or there is no mechanism for them to be moved in an emergency. On two occasions, a child has ended up being stabbed because they were not moved away as quickly as they should have been, and in one case, before I became an MP in Croydon, a family who were desperate to move were not moved and the child ended up being stabbed and killed.
We see this in communities across the country—it is not only in London—but in areas of acute housing need it is particularly acute, as Members would expect. The amendments tabled by my hon. Friend the Member for Walthamstow address these challenges, learning from the way in which domestic violence victims have been prioritised for housing to keep them safe, and ensuring that housing providers are statutorily required to play their part in tackling serious violence.
Research by Centrepoint in 2019 highlighted the links between youth violence and homelessness. Violence and exploitation drive homelessness and housing insecurity, and the experience of homelessness increases vulnerable young people’s exposure to criminality and risk. A survey of 227 young people with experience of homelessness in England and Wales found that one in six had taken part in criminal activity, such as selling or preparing drugs, in order to access a place to stay. The London charity, New Horizon Youth Centre, found that, of a sample of 102 young people accessing its specialist youth violence outreach programme, 95% had been or were currently homeless. Shelter has documented the fact that stable accommodation has long been linked to success in reducing reoffending and supporting rehabilitation. This is not new; I worked for Shelter years ago and we used to have the same debate on the impact of homelessness and bad housing. It is significant, and the likelihood of offending increases significantly if someone is homeless.
Two recent serious case reviews of 14-year-old children who were killed as a result of gang violence highlighted the failings in safeguarding them with regard to housing. In the case of one, an offer of accommodation made to his mother was withdrawn shortly before he was shot dead in a children’s playground in Newham in September 2017. The serious case review into his death found that there were
“clear gaps in risk assessments and risk management plans for Chris”,
including the failure to update the housing manager of the need to relocate Chris out of the area, and that
“there was a significant missed opportunity in the absence of a referral to access the Pan-London Reciprocal Housing Agreement. There were also significant gaps in information sharing between Children’s Social Care, the Police and the Youth Offending Team in relation to risk information that could have triggered such a referral.”
Chris’s mother has spoken of how she struggled to get housing outside the area where he was at risk:
“When it came to help, there was not much help. I was scared for him and he was scared for himself. It was just me and him left to sort this out. The most important one for me was housing, to get us out of the area. To be out of the clutches of the gangs so he could continue being a child.”
Mr Goodwill
When the hon. Lady talks about poor-quality housing, would she say that some of the appalling housing in Croydon—for example, in the Regina Road block—is an example of the sort of housing that we should be trying to improve?
Sarah Jones
I congratulate the right hon. Gentleman on his political jibe. He is correct to say there are examples of bad housing in Croydon, as there are in other parts of the country. It has a massively serious effect on people’s lives. [Interruption.] I can hear the hon. Member for Croydon South muttering about it from a sedentary position.
I will move on to the issue that we are talking about. When an urgent move is required because of gang violence, temporary accommodation is often the only realistic option. The law currently does not prioritise families in this situation, in contrast with the requirement for victims of domestic abuse to be treated as a priority for rehousing. Section 189(1) of the Housing Act 1996 gives victims automatic priority need, so that victims fleeing domestic abuse are moved urgently and thus protected. That is not the case when the threat of violence is external, which means that families are often forced to choose between giving up a secure tenancy and making a homeless application to their local authority, or keeping their secure tenancy and staying somewhere where they are in danger. The child safeguarding practice review published last year notes a case where a family moved back to an area where they were at risk in order to prevent the loss of their right to permanent housing. Within months, their son was killed.
The problems do not stop there. Evidence from practitioners shows how people at risk of violence who approach their local authorities are often not given adequate support due to their not being categorised as priority need under section 189(1) of the Housing Act. Youth workers who work with victims of gang violence often try to identify mental or physical health needs in the family in order to create a workaround. This shows that the system is not responding to the needs of victims of violence because of their status as victims. Support workers at New Horizon Youth Centre in London state that when young people are found in priority need, it is often as a result of any mental health conditions that they have managed to have diagnosed during the centre’s work with them following a serious incident of violence—it is not on the basis of being a victim or being at risk of such violence. In most cases, there is police evidence of risk, but the support workers have found that this is not enough to secure a positive priority need decision.
Kate Bond, the youth outreach project manager at New Horizon Youth Centre, explains: “We have seen so many cases where violence or the threat of violence is rejected as a reason for young people to be seen in priority need under the Housing Act. We have cases where even though there is clear evidence that someone’s life is at risk—not only because of their current injuries, hospital letters and police reports, but also proof from a range of other relevant services—they are not found in priority need. Too often, we end up having to pay for these young people in emergency accommodation and spend a long time gathering proof under other grounds for priority need, keeping the young person in limbo. Traumatised young people are further demotivated by this process and the sense that their lives being at risk is not enough to secure them somewhere safe to live. This continues to put lives and communities at unnecessary risk. However, even that threshold for proof required by local authorities before they will place young people in temporary accommodation can be difficult to reach. Often, for example, young people cannot go to their GP because it is in an area where they feel unsafe, so securing medical proof becomes more challenging and the diagnosis of mental health conditions more difficult.”
Under sections 177(1) and 177(1A) of the Housing Act, a person is legally homeless if violence or the threat of violence means that they cannot be reasonably expected to remain in their current accommodation, but the homelessness code of guidance for local authorities currently provides no guidance for local authorities on how to consider whether an applicant might be in priority need because their current home puts them at risk of gang violence, harassment or grooming. Currently, there is only general advice on the assessment of violence in paragraph 8.36, whereas the assessment of domestic abuse is dealt with in some detail by the statutory guidance. The guidance also says that a shortage of housing could be taken into account when considering whether a family should be moved.
Housing providers such as local authorities or housing associations may also hold critical information that can be used as evidence to support the homelessness application, safeguarding, or police investigations. They may be able to support young people and families to access alternative accommodation. Practitioners are reporting, however, that housing representatives are often not included in relevant case forums and discussions on families at risk of harm. Similarly, when people fleeing violence present at their local authority for rehousing, there is currently no duty on the local authority to seek information from the police to ascertain the level of risk when assessing the housing application.
As I said, amendments 50 to 62, and new clauses 28 and 29, were drafted by my hon. Friend the Member for Walthamstow in collaboration with the co-chairs of the Housing Law Practitioners Association and Garden Court Chambers, and with the backing of many organisations such as Centrepoint, New Horizons Youth Centre, Shelter, Crisis, Barnardo’s, the Big Issue Foundation, St Basils, Catch-22, Redthread, Homeless Link, Nacro, the Revolving Doors Agency, Fair Trials and the St Giles Trust.
New clause 28 would ensure that we learn from best practice of housing support services for victims of domestic violence, and that those who are at risk of violence owing to gang behaviour are prioritised for rehousing away from harm. For children and adults affected by and at risk of serious violence, seeking support to secure a safe place to live can be extremely difficult. Evidence from practitioners shows how young people, care leavers, people with multiple needs, and families facing threats of violence are not given adequate support when approaching their local authorities to seek help moving out of harmful situations because, despite meeting the threshold for vulnerability, given that they have fled violence or threats of violence, they are not seen as in priority need. In many cases, they do not receive the initial duties and assessment to which they are entitled under the Homelessness Reduction Act 2017. New clause 28 is designed to remove that hurdle and set outs clearly that anyone at risk of violence is in priority need, whether the violence takes place inside or outside the home.
New clause 29 would ensure that the current homelessness code of guidance is updated to take into account the specific needs of those fleeing gang violence and exploitation. Serious cases reviews have shown that the current guidance is not sufficient and young people are paying the price with their lives. Victims of serious violence are often forced to choose between remaining in an area where they are at risk or making a homeless application and giving up a secure tenancy. In the financial year 2019-20, more than 7,000 households were recognised as being at risk of or experiencing non-domestic violence and abuse and seeking homelessness support. It is right that the departmental guidance provides specific guidance for people in that situation.
Homelessness and housing precarity are significant contributing factors to children and adults becoming vulnerable to violence as they respond to offers of accommodation from those seeking to exploit them. Prevention of that trend and early intervention to reduce the harm they may face requires their housing needs to be met quickly and appropriately. The current homelessness code of guidance highlights certain vulnerabilities faced by groups such as young people, care leavers and victims of trafficking, who should be considered as part of the housing application, but there is little guidance around young people at risk of violence and exploitation. By enhancing the current code of guidance so that local authorities take into account the needs of people at risk from serious violence, the Government would ensure that the needs of that vulnerable group specifically are considered by local housing authorities to protect them from further risk of violence. Amendments 50 to 62 would ensure that registered social landlords are involved and consulted in local efforts to reduce serious violence, and that there is timely co-operation between the police and local housing authorities to prevent serious violence.
Part 2 of the Bill outlines the model for multi-agency working to prevent serious violence. The horrific cases in the serious case reviews tell us that there is no effective multi-agency response to preventing serious violence that does not include housing. These amendments will ensure that registered social landlords are included in the new duty and ensure that there is timely information sharing between the police and RSLs for the purpose of preventing serious violence. By supporting effective multi-agency working between all partners, the Government can ensure that housing is considered as an essential part of a comprehensive public health approach to tackling and preventing the serious use of violence.
As I have said, there is provision in law and in practice for people fleeing domestic violence to have a route out of that violent situation, through their local authority and the definition of priority needs. There is not the same route out for those at risk of gang violence in their area, and I have seen the consequences of that. These amendments would put those at risk of serious violence on the same footing as those at risk of domestic violence. I would be grateful if the Minister could consider these amendments.
Victoria Atkins
We very much recognise the valuable contribution that local authorities and housing associations are able to make as part of local efforts to prevent and reduce serious violence. Local authorities are responsible for the delivery of a range of vital services for people and businesses in a local area, including housing and community safety. It is expected that such responsibilities will be key to the role they play in local partnership arrangements as they contribute to the development and implementation of the duty. As such, they will be best placed to provide a strategic overview of and information about housing and associated issues in the local area.
The statutory guidance for the duty makes clear that such duties are relevant and should be considered as part of the work to meet the requirements of the serious violence duty. We therefore do not consider it necessary to stipulate in legislation that such authorities must have due regard to their housing duties when meeting the requirements of the serious violence duty, as there will be a requirement for them to have due regard to the statutory guidance in any case.
Moreover, existing legislation is already designed to ensure that social housing is prioritised for those who need it most. The Ministry of Housing, Communities and Local Government will continue to work with the relevant sectors to ensure that the guidance is clear and fit for purpose, in relation to this crucial point, ahead of the duty provisions coming into force. When it comes to recognising and protecting the groups of people most at risk of involvement in serious violence, we are aware that housing and risk of homelessness are factors to be borne in mind, but we remain to be persuaded that an explicit reference to registered providers of social housing within the provisions for the duty is the correct approach to take in this instance.
One of the key requirements of the serious violence duty will be for specified authorities in a local area to work together to identify the causes of serious violence and, in doing so, ascertain which groups of people are most at risk locally. Legislation already dictates that, where a local housing authority requests it, a private registered provider of social housing or registered social landlord shall co-operate to such extent as is reasonable in the circumstances in offering accommodation to people with priority under the authority’s allocation scheme. That includes lettings allocated to those in priority need and those requiring urgent rehousing as a result of violence or threats of violence. Statutory guidance on allocations was issued in 2012, and local authorities must pay due regard to it.
Furthermore, the Regulator of Social Housing’s tenancy standards make clear that private registered providers of social housing must co-operate with local authority strategic housing functions. Those who are at risk of violence should already receive support if they are in need of social housing and/or if they are at risk of homelessness. However, it is important that local authorities are able to respond according to the needs of the specific local area and of the particular person. We are concerned that the amendment, which applies only to the social housing sector and not the private rental sector, may inadvertently single out and potentially stigmatise social tenants as being associated with serious violence, which I am sure nobody wants to flow from that.
Sarah Jones
It is unusual for housing and the Home Office to be in the same conversation, which is possibly why the Minister was using strange terminology more akin to the MHCLG.
Sarah Jones
That is something that we need to try and shift over the long term and that is the point of the clauses and amendments.
I understand the Minister’s points. On new clause 28, there is a clear argument that there is provision on domestic abuse but not a provision for violence outside of the home in a similar way. Now is not the time to press the new clauses to a vote, because that comes at the end of the Bill’s time in Committee, and I am happy to leave the amendments. However, I hope the Minister will encourage housing organisations, through the process of the new duty, to be part of the conversation because they are absolutely crucial, as I have seen for myself. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Sarah Jones
I beg to move amendment 116, in clause 7, page 8, line 10, at end insert—
“(d) the local voluntary sector and local businesses.”
This amendment would create a duty to consult the voluntary sector and local businesses in preparing a strategy to prevent and reduce serious violence in an area.
The Chair
With this it will be convenient to discuss the following:
Amendment 81, in clause 7, page 8, line 30, leave out “from time to time” and insert “every two years,”.
This amendment would require the specified authorities for an area to prepare and implement a revised strategy every two years.
Amendment 87, in clause 8, page 10, line 4, leave out “from time to time” and insert “every two years,”.
This amendment would require collaborating specified authorities for an area to prepare and implement a revised strategy every two years.
New clause 59—National Serious Violence Oversight Board—
“(1) The Secretary of State must appoint a board, to be known as the National Serious Violence Oversight Board.
(2) The Board will be comprised of the Secretary of State, who will be the chair of the Board, and such other people as the Secretary of State considers appropriate.
(3) The duties of the Board are—
(a) to review local serious violence strategies,
(b) to share relevant data relating to such strategies, and
(c) to share good practice in the preparation and implementation of those strategies.
(4) Not later than two years after the date on which this Act is passed, and every two years thereafter, the Secretary of State must lay before Parliament a report from the Board on the progress of the duty to collaborate and plan to prevent and reduce serious violence.”
Sarah Jones
Amendment 116 would create a duty to consult the voluntary sector and local businesses in preparing a strategy to prevent and reduce serious violence in an area. As part of the new duty, several public authorities are required to consult each other, but some agencies are missed out, including the voluntary sector and local businesses. The amendment was tabled by my hon. Friend the Member for Vauxhall (Florence Eshalomi). It comes from the all-party group on knife crime, who worked with Barnardo’s on this amendment.
The voluntary sector holds crucial information and intelligence about what really happens in families and communities. The sector includes organisations that directly support victims and offenders and can help to bring their voices and experiences into policy making. They often know what works and what does not. Local areas will not be able to tackle serious violence without engaging with the voluntary sector’s knowledge and local intelligence.
Local businesses are also crucial in tackling serious youth violence. If we have learned anything from our work in child sexual exploitation, places are just as important to safeguarding as people—shopping centres, cafés, taxi ranks and gyms. Preventing violence cannot be done without their input.
Sarah Champion
I appreciate that my hon. Friend is making that point because, when it comes to Rotherham and what happened in child sexual exploitation, the community did know about it and did try to report it at the time, but to very little effect, unfortunately. Crucially, the voluntary sector stepped up, with much of the work done through charitable funds to try and support the young people. That needs recognition in the Bill, not least so that some resources will flow through afterwards, because the voluntary sector has its arms around the community. It is the eyes and ears of the community. We ought to embrace that, and the statutory bodies ought to have a duty to negotiate, engage and listen to and respond to the voluntary community’s wishes.
Sarah Jones
I thank my hon. Friend for her intervention and for her points about Rotherham. It is absolutely clear that the voluntary sector and local businesses are part of the solution and should therefore be part of the conversation and strategy. Their kind of preventive work will make the serious violence partnerships effective. Local businesses and the voluntary sector are a crucial part of that type of safeguarding.
Amendments 81 and 87 are straightforward. We felt that the language in the Bill was rather loose. For instance, it states that the specified authorities for an area must “from time to time” implement a revised strategy. Quite a lot of the organisations that we spoke to felt that “from time to time” could mean “not really ever at all” if they do not fancy it. Although I appreciate that the Minister might say that she wants local organisations to do what is right for them, “from time to time” felt too loose, so we suggested that the strategies should be refined every two years.
New clause 59, tabled by my hon. Friend the Member for Vauxhall, would require the Government to establish a national serious violence oversight board. The duties of the board would be to review local serious violence strategies, to share relevant data at a national level in relation to such strategies, and to share good practice in the preparation and implementation of those strategies. The board should be fed into by individual strategies for each local area to take into account the different patterns of risk, crime, vulnerability and exploitation found across the country. The oversight board could then feed in the relevant information across different Departments to achieve a joined-up approach to preventing serious violence.
Sarah Champion
The Minister has not said that the door is closed on the definition of child criminal exploitation. To take that one particular example: we would be looking at a range of definitions to which the local authority serious crime board could respond, meaning that we would again be in the dark days of a postcode lottery. Does my hon. Friend agree that, unless these definitions are in place, something like she is proposing makes absolute sense in order to get that uniformity of service? We are trying to prevent crime and support victims, so a simple measure would be to have an oversight body to make sure it happens.
Sarah Jones
I agree with my hon. Friend. It is always good to look back at what has worked in the past, and I go back to the example I cited earlier of the teenage pregnancy strategy. There was a defined strategy from central Government that was overseen centrally but delivered locally, so that there was room for local flexibility according to what was needed. However, there was also a clear set of parameters within which people should be operating, and an expectation of what they should be delivering with what was actually quite a targeted approach. The Prime Minister used to receive daily data on what was happening in each local area. I am quite a fan of gathering data centrally and trying to push change as much as possible, so I agree with my hon. Friend.
Similarly, a national serious violence oversight board would be able to analyse national trends and provide real scrutiny of what is and is not working across the country. Strategies need to feed into somewhere central so that the national landscape can be understood and that good and bad practice can be shared. The Minister talked earlier about that balance between what we allow local police authorities to do and what we set nationally. That conversation about how much we control from the centre and how much we allow people to feed in locally is always happening. The change suggested by new clause 59 is for a local and national mechanism in which at least the information can be gathered and analysed, so that we can see who is doing well and who is not doing well, and then respond appropriately.
Serious violence inevitably crosses boundaries. Effective responses to child exploitation, for example, are often hampered by the fact that it is a form of abuse that takes place across the boundaries of all the different police forces and local authorities in England and Wales. That creates inevitable fragmentation.
While the National County Lines Co-ordination Centre has helped to deliver a more joined-up approach to policing of child exploitation, the same joined-up approach is not found between the police and other agencies, or between different local authority areas. It would be impossible to tackle serious violence without some form of national oversight of the strategies. Learning and best practice can be shared at a national level. We see from the findings of the serious case reviews that sharing is still not effective, resulting in the same failings occurring again and again. We do not want that to happen with the serious violence partnerships as well.
Under the previous Prime Minister there was a serious violence taskforce, which was disbanded and replaced with the National Policing Board, but the National Policing Board looks at all parts of the policing system and has a different function altogether. We need some oversight that specifically addresses serious violence. When the right hon. Member for Maidenhead (Theresa May) was Prime Minister, a unit to tackle violence was set up in the Cabinet Office, but I am unsure whether it still exists. Does the Minister know? Either way, she might consider the amendments suggested by my hon. Friend the Member for Vauxhall and consider a kind of national co-ordination of the strategies to ensure that they are as effective as possible.
Victoria Atkins
We very much agree that voluntary and community sector organisations and local businesses are key to working with young people to tackle issues relating to serious violence and crime, and indeed to offering alternative opportunities to young people. One of the non-legislative measures that I am working on at the moment is bringing together the private and public sectors to offer opportunities by way of training, work placements and so on to young people who at the moment may believe that their life chances involve joining a gang and earning their money that way. We have to give young people a range of alternatives, so I very much agree with the motivations behind all these amendments, but particularly those that seek to involve charities and businesses.
I should point out that clause 9—“Power to authorise collaboration etc. with other persons”—is very much intended to include charitable organisations in the serious violence duty. We did not feel that it was right to put a duty on charities, but we did very much want to reference their ability to be included and involved in both the drawing up and the implementation of the strategy.
We are not persuaded that amendment 116 is necessary, because of the way it is drafted. It would potentially create significant new burdens if specified authorities were required to consult all voluntary sector organisations and businesses in the local area, as opposed to those that they considered to be most relevant to the local strategy for preventing and reducing serious violence.
I will shamelessly take this opportunity to mention, by way of example, the wonderful Louth Navigation Trust in my constituency. Wonderful charity though it is, I think it would itself accept that it is probably not able to assist in the drawing together of a serious violence duty in the way that specialist charities, such as St Giles Trust, Redthread and the other organisations that we all know and work with. will be able to do. That was a flippant example—forgive me—at 4 o’clock on a Tuesday afternoon.
Turning to amendments 81 and 87, we very much agree that it is important for serious violence strategies, required by chapter 1 of part 2 of the Bill, to be kept under review to ensure that they remain relevant and address the current issues affecting local areas at the time when they are being implemented. However, we are concerned as to whether an explicit requirement for revised strategies to be prepared and implemented every two years is the correct approach to take.
The duty is a key part of our work to prevent and reduce serious violence, focusing very much on prevention and early intervention, and informed by the evidence. We have been clear that a key focus of the duty, as I have said, should be on early intervention and prevention. That is why we have included a requirement for specified authorities to identify the kinds and causes of serious violence in the local area and the work that flows from that. It is therefore clear that local strategies should include a combination of short-term as well as longer-term initiatives aimed at preventing and reducing serious violence.
The draft statutory guidance for the duty makes it clear that local partnerships should review their strategy on an annual basis. Such reviews should consider how the interventions and solutions have affected serious violence in their area—considering, for example, crime statistics, and accident and emergency data. A review may well highlight the need for a refreshed strategy, for example where new and emerging crime types are identified—there may be the emergence of a new county line in their area—but we do not expect that to be the case every time.
We know that specific initiatives and actions that focus primarily on early intervention may not have a discernible effect on serious violence levels immediately. An assessment of the effectiveness of a local strategy conducted only two years after the strategy is first prepared may not capture the potential long-term impact and, therefore, may render it ineffective and in need of revision. Perhaps there would be a fairer analysis if a little more time were permitted to enable the interventions to take hold.
We want to ensure that local area resources are directed towards delivering on the strategies that they have prepared, instead of being diverted towards the preparation of revised strategies because there is a calendar they must keep to. I am reminded of a phrase about being driven by data and not dates, and wonder whether it is appropriate here.
I believe that specified authorities in local areas will be best placed to determine the necessary frequency of revisions in their own strategies, and that the existing requirement for strategies to be kept under review will ensure that a revision will be necessary and timely, rather than simply a formality. I see a role for hon. Members in that. I hope that they will watch closely what their areas are doing under this duty, and they will be able to highlight any concerns they have about the appropriateness, timeliness and so on of strategies and their revisions.
Finally, new clause 59 would require the creation of a statutory national serious violence oversight board, to be appointed and chaired by the Secretary of State. There will need to be a system in place to monitor progress in relation to the duty. There may be a useful role for the Government to support the process, but we question whether it is necessary to include the detail of such arrangements in the Bill. We will consider non-legislative options, which will in all likelihood feature in our statutory guidance for the duty. That will ensure that specified authorities are able to have a say in the arrangements, through a public consultation, following Royal Assent, including any proposed role for central Government, before they are established.
We expect to detail any role for Government in monitoring progress and activity in relation to the requirements of the serious violence duty to be included in the version of the draft statutory guidance, to be consulted on following Royal Assent. It is worth noting that specified authorities will already be expected to monitor their own progress, through the requirement to keep their strategy under review. Police and crime commissioners and those areas where mayoral offices have responsibility for policing will also have the discretionary power to monitor the performance of the specified authorities against their shared objectives.
Furthermore, community safety partnerships have a statutory requirement to keep the implementation of their strategies under review, for the purposes of monitoring effectiveness and to make any changes to strategies where necessary or expedient, and to publish the outcomes of each review. In the light of the explanations I have given, I ask the hon. Member for Croydon Central to withdraw her amendment.
Sarah Jones
I heard what the Minister said, in particular about amendments 81 and 87. She said that she did not want to push organisations towards having to prepare revised strategies all the time. She also said that the guidance advises them to review their strategies on an annual basis. We are in the position of having both things at the same time.
I hear what she says and am reassured by the need to look at it on an annual basis. I do think the phrase “from time to time” is slightly too loose to be in the Bill. We have seen the need for both short-term and long-term planning and we need to get that balance right. A lot of the violence reduction units, within PCC areas, say they want to be able to plan and get money beyond a year. At the moment, their money is given annually, which is very prohibitive. That is worth bearing in mind.
I heard the Minister say that there will be systems in place to monitor success and that she will look at what such systems could be. I was reassured by that and hope that she will ensure they have the teeth and resources to analyse what is happening across the country. On that basis, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss the following:
Clauses 8 to 10 stand part.
That schedule 1 be the First schedule to the Bill.
Clause 11 stand part.
That schedule 2 be the Second schedule to the Bill.
Sarah Jones
As I said, the Opposition welcome the intention behind the serious violence duty, which is to facilitate that multi-agency response to tackling and responding to violence in a local area. However, we have concerns about how the duty will operate in practice and how it will instruct local partners to respond, in particular to vulnerable children. As has been said in the Committee today and by a number of organisations, the duty as drafted will not facilitate a safeguarding response to children experiencing serious violence. I hope that the Minister will build and reflect on our debate on that.
I will take this opportunity to thank all the organisations that have attended so many meetings and done so much work in this area, particularly the Children’s Society, which helped draft several of the safeguarding amendments. Safeguarding and protecting children and vulnerable young people from harm should be the first priority of statutory agencies and any subsequent duty for these agencies to co-operate with one another. If a young person is found to be at risk of or experiencing serious violence, any responsible adult is duty bound to report that to child protection. Clauses 7 to 11, which set out the duty, do not mention the word “safeguarding” once, and nor do they signal the need for the specific involvement of children’s social care teams in creating a strategy to prevent violence in a local area.
It remains unclear what activity the Government want to see flowing from the duty to co-operate. Three measures of success identified in the guidance are homicide rates, hospital admissions for knife or sharp object assaults, and police-recorded knife crime. Having just those measures might have a short-term impact, but that will not address the underlying drivers of serious violence and therefore might not have the long-lasting impact we are hoping for.
The duty is clearly framed as a crime reduction initiative, and it is right that it should be, but it is not a safeguarding tool, and the Opposition believe that it must focus on both. As we know, violence drives violence, and if the Government want properly to follow a public health approach to tackling serious violence, they cannot treat violence as if it happens in a vacuum.
Improving children’s safety and the wider safeguarding of children are integral to tackling the drivers of serious violence. The Opposition believe that without that focus, the Government risk those well-intentioned measures leading to a more punitive approach to vulnerable children. It would be good if the Minister reflected on our points about safeguarding and perhaps thought again about that work as well as the child criminal exploitation points made so well by my hon. Friend the Member for Rotherham and supported by so many.
Without enough funding for this work to take place, it will be very difficult for local authorities, whose resources are already very squeezed, to put in place strategies that will have an impact on the likelihood of children getting involved in violence. One example that the all-party parliamentary group on knife crime and violence reduction looked at a lot was youth services, which on average have been cut by about 40% across the country. It is possible to map a correlation—we did this work with Barnardo’s—between those areas that have made the largest cuts to youth services and those with the largest increase in knife crime. Obviously, we cannot point to an immediate cause and say that a violent crime occurred because a youth centre closed, but there is a correlation between those areas with the highest cuts and those with the fastest increases in knife crime. With the wider issues of funding and supporting local authorities, whether that is children’s social services or youth work—all that important work—it will be difficult for the Government to achieve what they want.
Mr Goodwill
As a former Children’s Minister, I know that there is no direct correlation between funding and outcomes. Indeed, some of the most cost-effective local authorities in terms of children’s services are those that do not use a lot of agency work, which is cheaper than some of the least effective, which tend to spend more in some cases.
Sarah Jones
The right hon. Gentleman makes an interesting point. I can provide the evidence that maps those areas that have made the largest cuts to youth work and the areas that have seen the largest increase in violence. There was not a direct causation, but there was a pattern and a trend. Although these things are not absolute, the evidence for every local authority shows that there was an impact. Youth work is known to be effective as an adult intervention with young people who perhaps do not have parental involvement in the way that we would want.
Mr Goodwill
I understand the hon. Lady’s point, but often it is the local authorities that are failing, with a big backlog of work, that find they cannot recruit, and therefore have to rely on agency social workers and foster carers. That means they are spending a lot more money. Some of the better ones, such as North Yorkshire, have very few agency workers because they can keep it in house and delivery it cost-effectively.
Sarah Jones
Yes, that is a separate point that the right hon. Gentleman is right to make. Agency workers are not invested in the organisation they work for; they do not know the area; they are more expensive and often not as effective. My point is that the significant reduction in funding for local authorities will inevitably have an impact on their ability to implement this duty. I hope that the Minister and the Home Office will push forward the argument for more funding for local authorities.
Victoria Atkins
I hope that the Committee feels that, in my responses to the amendments, I have dealt with the substance of most of the clauses. I want to emphasise that clause 8 is included to reflect the fact that, particularly in the instance of county lines gangs, criminal gangs do not respect county boundaries, police force areas or local authority areas. They will reach their tentacles across the country, wherever they think there is a market and they can do their harm. The clause encourages and requires authorities to collaborate to address those concerns.
Sarah Champion
Does the Minister agree that they are keen to look at the legislation to see where it is weakest, and to target accordingly?
Victoria Atkins
Very much so. Criminal gangs are very adept at spotting Government and local priorities and adjusting their behaviours. During the global pandemic, still some county lines were adjusting their methodology to evade detection when they were moving around the country. It is disgraceful, disgusting behaviour, and I hope that this duty and the requirement to collaborate will help to address that.
On the point that the hon. Member for Croydon Central made about housing priority need and the comparison with domestic abuse dealings in the Domestic Abuse Act 2021, I will arrange for a letter to be written to her on that point. Unless there are any more interventions, I will sit down.
Question put and agreed to.
Clause 7 accordingly ordered to stand part of the Bill.
Clauses 8 to 10 ordered to stand part of the Bill.
Schedule 1 agreed to.
Clause 11 ordered to stand part of the Bill.
Schedule 2 agreed to.
Clause 12
Preventing and reducing serious violence
Sarah Jones
I beg to move amendment 91, in clause 12, page 12, line 34, at end insert—
“(5) In exercising their functions under this Chapter, specified authorities must have particular regard to reducing serious violence against women and girls, including street harassment, and reducing instances of hidden harm resulting from serious violence.”.
Sarah Jones
Clause 12(4) states that the duty introduced in chapter 1 will predominantly be focused on the most serious forms of violence, which are marked by:
“(a) the maximum penalty which could be imposed for any offence involved in the violence,
(b) the impact of the violence on any victim,
(c) the prevalence of the violence in the area, and
(d) the impact of the violence on the community in the area.”
While those are all extremely important, we would like the Government to emphasise in the duty protection and support for women and girls. It should be in the Bill that violence against women and girls counts as serious violence. We know that women are more likely to be victims of hidden harm and domestic abuse, which does not conspicuously contribute to the prevalence of violence or the impact of violence on the community in an area. During covid, we saw an increase in domestic abuse. I spoke to a primary school head in my constituency who said that in a year they would usually deal with one or two cases of domestic violence affecting their pupils, but at that point they were dealing with seven family cases. Those issues are often hidden and so, as I say, do not necessarily impact on the community in an area in the same way as violent street crime would.
Sarah Champion
Does my hon. Friend agree that some violence is gendered, and that recognition of that in the Bill is a necessary inclusion?
Sarah Jones
I thank my hon. Friend for that point, which is exactly the point I was about to make. She is completely right. This is in some senses an addition. Perhaps the Minister will say it is for local organisations and agencies to decide what to prioritise, but the reality—this is not a criticism—is that this duty was conceived at the height of concerns about street violence, violent crime and knife crime, and we may all be a little bit to blame for not focusing as well on the gendered violence and hidden violence that does not make the headlines in the same way, but is equally important. One feeds the other: if there is violence in the home, there is often more violent behaviour from children because they learn that behaviour. Gendered violence is just as important but is perhaps not as highlighted and talked about as it should be.
Women from all parts of the country, from all backgrounds, young and old, are killed every week. Last year, the number of female homicide victims in England and Wales reached its highest level since 2006, up 10% on the previous year. That is true of not only murder but all kinds of violence against women and girls. For the year ending March 2020, the crime survey for England and Wales estimated that 7.1% of adults aged 16 to 74 years had experienced sexual assault by rape or penetration. Domestic violence, already endemic across Britain, increased significantly during the covid pandemic, with 260,000 domestic abuse offences between March 2020 and June 2020 alone.
Amendment 91 would ensure that specified authorities have particular regard to reducing serious violence against women and girls, including street harassment, and reducing instances of hidden harm resulting from serious violence. I hope that the Minister will consider the amendment in the spirit in which it is presented. This would be a very useful thing for local agencies to do. It is incredibly important and is part of the wider violence picture and should therefore be included in the Bill.
Victoria Atkins
As hon. Members will be aware, tackling violence against women and girls is one of the Government’s key priorities. These abhorrent crimes have no place in our society. This Government are committed to ensuring that more perpetrators feel the force of the law and to improving our support for those who suffer at the hands of abusers.
We have taken action to tackle all forms of violence against women and girls by introducing legislation around forced marriage, female genital mutilation and the disclosing of private sexual photographs. More recently, the landmark Domestic Abuse Act 2021 will bolster our response to domestic abuse at every level. The Act includes placing a duty on local authorities to provide support to victims of domestic abuse and their children in refuges and other safe accommodation, as well as many other things. What I have said about here it does not do justice to the Act, but we recognise also that legislation is not the only answer. Local authorities and others have a role to play in tackling violence against women and girls, which is why we provide funding to support victims of such crimes.
We have refrained from including in the duty set out in the Bill a specific list of crime types that must be included in a serious violence strategy for a local area. We have also refrained from prioritising one type of victim over another. This is to allow local strategies to take account of the most prevalent forms of serious violence in the locality, and the impact on all potential victims. Forms of serious violence will vary between geographical areas and we want to enable partners to adapt and respond to new and emerging forms of serious violence as they develop and are identified. That could include domestic abuse or others forms of violence against women and girls, but the Government believe, as set out in the duty, that it should be for authorities to determine what their specific priorities should be for their area. That is consistent with the model of police and crime commissioners and mayors who have policing responsibilities for setting priorities for policing.
In making any such determinations, they must consider the maximum penalty that could be imposed for any offence involved in the violence, the impact of the violence on any victim, the prevalence of the violence in the area and the impact of the violence on the community in the area. It is anticipated that work to answer these questions would form part of the development of a strategic needs assessment and strategy. The approach of including a specific offence, as is urged in the amendment, is not consistent with the wider approach.
We are committed to going further in our efforts to tackle violence against women and girls, which is why we will be publishing a new cross-Government strategy tackling violence against women and girls, which will be followed by a complementary domestic abuse strategy. I look forward to their publication to set out our approach to tackling all forms of violence against women and girls, including street harassment.
I hope these assurances and our commitments to future work in this area mean that the hon. Lady will be content to withdraw her amendment.
Sarah Jones
I hear what the Minister is saying and I applaud the work that has been done thus far on violence against women and girls, but I believe that the list in clause 12(4) that she just read out steers the whole process in the direction of serious street violence and youth violence, without a nod to the incredibly point about violence against women and girls, so I would like to test the will of the Committee on amendment 91.
Question put, That the amendment be made.
Sarah Jones
I would be very happy for my colleague to speak, as I am slightly fed up of my own voice, but I will carry on.
Sarah Jones
I just wanted to raise a couple of concerns. We have not tabled amendments to the clauses, but I want to bring some issues that have been raised to the attention of the Committee.
Clause 14 would give the Secretary of State powers to make regulations regarding how PCCs or mayors can assist serious violence partnerships. It would allow education, prison and youth custody services to collaborate in order to prevent and reduce serious violence; it would also allow them to collaborate with SVPs. Subsection (5) places a duty on a relevant authority to collaborate with other relevant authorities for the purpose of preventing and reducing violence, if requested to do so by another relevant authority. The example provided in the explanatory notes is that
“a local young offenders’ institution may choose to collaborate with a secure children’s home located in the same area if they are experiencing similar issues with serious violence within their institutions.”
That makes sense, but we believe that there needs to be some nod in that process towards the focus on the safeguarding responsibility for children. It is important that the duty does not just become an intelligence-gathering exercise instead of a proper data-sharing exercise, so we want to ensure that people can be protected and prevented from getting involved in serious violence.
Clause 15 would impose a duty on education, prison and youth custody services to collaborate together and with SVPs when one partner organisation requests it, as long as complying with the request does not infringe on any of their existing legal duties. The explanatory notes call this a “permissive gateway” that
“would permit but would not require the sharing of information.”
The example given is that
“a clinical commissioning group could disclose management information about hospital attendances where serious violence was suspected, which could support the development of a local problem profile/strategic needs assessment.”
Again, that makes sense. However, the notes go on to say that
“any disclosure of information under this clause may be made notwithstanding any obligation of confidence or any other restriction on the disclosure of the information, save that disclosure would not be permitted if it would contravene the data protection legislation or the prohibitions on disclosure provided for in any Parts 1 to 7 or Chapter 1 of Part 9 of the Investigatory Powers Act 2016.”
We have talked to organisations that are concerned that the need not to uphold any obligation of confidence or any other restriction on the disclosure of information could undermine some of the trust that children, particularly those who are vulnerable or who are being criminally exploited, have with teachers and educators. Will the Minister talk through what any other restriction on the disclosure of information means in this context, particularly when applied to an individual child in a school setting? Will she set out the key difference between the “permissive gateway” of information sharing and the multi-agency structures—for example, referrals to children’s social care—that already exist for information sharing about individual children?
Overall, there is no question but that information sharing between agencies and police forces is vital to achieving a proper understanding of serious violence, particularly involving the county lines drug network and the many vulnerable children who have been swept into it, but it is also important that the objective of information sharing is about the safeguarding of vulnerable people and children, as well as crime prevention and reduction.
Victoria Atkins
I will deal straightaway with the point about information sharing, as it would seem to me that the other clauses are understood.
Clause 15 provides a new permissive information sharing gateway for specified authorities, including local policing bodies and education, prison and youth custody authorities, to disclose information to each other. Sadly, we know that information sharing between agencies is not always as full and as timely as we would like, because of concerns that they are not allowed to share information. We do not want those concerns to get in the way of preventing serious violence.
Of course, we must operate within the law, so the clause ensures that there is a legislative framework in place to enable information to be shared between all authorities exercising functions under chapter 1 of part 2 of the Bill. In doing so, the clause permits but does not mandate authorities to disclose information. I reassure the Committee that, as required by article 36(4) of the UK General Data Protection Regulation, my officials have consulted the Information Commissioner’s Office on the proposed provisions within this clause and clauses 9 and 16, and no concerns were raised.
To be clear, clause 15 does not replace existing data-sharing arrangements or existing protocols that are already working well, including those under the Crime and Disorder Act 1998. Through the clause we are simply ensuring that all the specified authorities—local policing bodies and education, prison and youth custody authorities—are able to share relevant information with each other for the purposes of the recipient of the information exercising their functions to prevent or reduce serious violence. Such bodies should already have arrangements in place that set out clearly the processes and the principles for sharing information and data internally. Examples of data that could be shared include hospital data on knife injuries, the number of exclusions and truancies in local schools, police recorded crime, local crime data, anonymised prison data, areas of high social services interventions and intelligence on threats such as county lines, including about the activities of serious organised crime gangs and about drugs markets.
An important element of the duty would be to establish the local problem profile, and data sharing between the duty holders would be a crucial part of that process. By virtue of this clause, the authorities I have mentioned would be able to share information freely, providing it does not contravene data protection legislation or the provisions of the Investigatory Powers Act 2016. I hope that reassures the Committee.
Sarah Jones
That is reassuring. I wanted to raise the point to ensure that we were all aware of that concern, which was raised to us by several organisations. I am grateful for the Minister’s response.
Question put and agreed to.
Clause 13 accordingly ordered to stand part of the Bill.
Clauses 14 and 15 ordered to stand part of the Bill.
Sarah Jones
I beg to move amendment 90, in clause 16, page 16, line 14, at end insert—
“(8) A local policing body must report annually on the requests made under this section, including information on the bodies the request were made to and the use of information provided.”
This amendment would require local policing bodies to report on requests for information made to specified authorities, educational authorities, prison authorities and youth custody authorities for the purpose of assisting with its functions under section 13.
The amendment would ensure that when information was shared between partners, the local policing bodies reported back to their partners to explain how they were using the information. That would in turn help the partners better to understand the wider context to the issues raised.
The Children’s Society has pointed out that clauses 15 and 16 raise questions as to what information will be collected about individual young people and how that information may be used. It is keen that additional information sharing requirements do not result for some children in a more punitive response instead of a response that balances safeguarding and the prevention of violence escalating.
I will end my comments by asking the Minister further questions on the issue of data collection. Will the information and data collected through the duty be strictly management-level data, or case-level data? Will police forces be able to request information on specific vulnerable young people, and will policing bodies be able to request from specified authorities such as schools case-level information on children at risk of or experiencing serious violence? If so, how will the police use that information?
Victoria Atkins
The hon. Lady asks a specific question—namely, will local policing bodies be able to request case-level information on children at risk and how will they use it? Police and crime commissioners and, in London, the Mayor’s Office for Policing and Crime, and the Common Council of the City of London, will have powers to work with the specified authorities to support multi-agency working. The specified authorities will need to co-operate with a local policing body when required to do so.
However, we will make it clear in guidance that the local policing body should consider the proportionality of additional requests and anticipated costs to specified authorities before making any such requests. That includes specific requests for data, which may be made only in order to fulfil its role of monitoring the effectiveness of local strategies. Such requests for data must relate only to the organisation that has generated it, except where functions are contracted out. Sufficient safeguards must be in place to ensure that information, including that which pertains to individuals, is disclosed in line with relevant data protection legislation.
Arrangements must also be in place to clearly set out the processes and principles for sharing information and data. Such arrangements should cover the sharing of information and data within the local partnership and with external bodies and should include the purpose of sharing the data, what is to happen to the data at relevant points, and clarity on respective roles. I hope that answers the hon. Lady’s questions.
Sarah Jones
I am pleased that that will be in the guidance. I think that issues flow from things such as the gangs matrix in London. There were concerns that information that was gathered in order to support people actually ended up being used as a way of profiling people—that the data was perhaps not used in the way in which people had thought it would be. That was the basis for the amendment. Given that that will be in the guidance, however, I am reassured that the purposes for which the information should be used should be clear. On that basis, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 16 ordered to stand part of the Bill.
Clause 17
Directions
Question proposed, That the clause stand part of the Bill.
Victoria Atkins
Again, if it will assist the Committee, I am content to hear the hon. Member for Croydon Central set out her stall, as it were, and I will then respond.
Hywel Williams (Arfon) (PC)
My concern is about clause 17(4), and indeed clauses 18(3) and 19(7), which all say that the Secretary of State must “consult” Welsh Ministers, rather than “seek the consent of”. This is an issue of long-standing concern for me, my party and, indeed, the Welsh Government. Given that it is long-standing and has been discussed before, I will not seek to press a vote on this tonight, although I may consider doing so on Report.
What are we talking about here? Clause 14(3) says:
“A relevant authority and a specified authority must collaborate”
with these requests. Clause 14(4) says:
“A relevant authority must carry out any actions which are specified”,
for example regarding strategy. Clause 14(5)(b) says that local governments “must collaborate”. Clause 16(4) says that a person must supply information to a policing body. I have no particular problems with these provisions, save for that it is the Secretary of State who has those powers in Wales, not the Welsh Government. The point is, of course, that the Welsh Government have responsibility for very relevant areas of government and policy in Wales in respect of the Bill—health, social services, education, local government and a good deal on top of that. Clause 17(4) says that the Secretary of State “must consult” Welsh Ministers before giving directions; clause 18(3) says they “must consult” before giving guidance; and clause 19(7) says they “must consult” before making regulations.
The Secretary of State has duties that must be carried out and powers to compel, but they must only consult, rather than seek the consent of, the Welsh Government or the Senedd. What will happen if there is divergence between Wales and England in policy or law? Of course, the Senedd is now a law-making body. There is a certain body of law—for example, on social services—that is different from that in England. That divergence may be accentuated and grow into the future as the Senedd flexes its muscles, as any half-competent democratic institution will seek to do, so we may have a situation whereby there is a good deal of divergence on the crucial matters that are relevant to the Bill.
Sarah Jones
I will be brief. I have three questions for the Minister, just to get a bit of clarity. The first is on clause 17, which, according to the Library briefing, gives the Secretary of State
“powers to issue directions to any SVP member, education, prison or youth custody service it thinks is failing to discharge its duties to prevent serious violence.”
It would be helpful if the Minister could provide an example of what that means. What direction will the Secretary of State be issuing? What is envisaged by that clause?
Secondly, the amendments in clause 19 require community safety partnerships to have regard to
“preventing people from becoming involved in serious violence”,
and to
“reducing incidences of serious violence”
when assessing crime and disorder in their area and formulating their strategies. It would be helpful if the Minister explained how that differs from what their strategies are doing already. Will there be a bit of an overlap of strategies there?
My final point is one that has been raised by the Local Government Association and has been drawn to my attention elsewhere. The community safety partnerships have had their funding steadily withdrawn since 2010, which has had an impact on their resources and their capacity to do things. It would be helpful if the Government could review the impact of those funding reductions on community safety partnerships—perhaps with a view to increasing that core funding—and on the ability of councils to address the range of crime issues they are expected to assist other partners in tackling.
Victoria Atkins
Serious violence has a devastating impact on victims and their families, instils fear in communities and is extremely costly to society, as I have already said. I hope the Government’s intention is clear from the discussions we have had today, but it is crucial that there are consequences if some authorities are not focused on what we are trying to achieve through the duty. On the rare occasion when a specified authority or educational, prison or youth custody authority does not fulfil its requirements under the duty, thereby risking the success of the whole partnership, clause 17 provides the Secretary of State with the power to issue a direction to secure compliance.
This power does not apply to probation services provided by the Secretary of State or to publicly managed prisons, young offender institutions, secure training centres or secure colleges. For such authorities, existing mechanisms will be available to ensure they are meeting the requirements of the duty, so we are trying to get consistency across them all.
For any directions relating to a devolved Welsh authority, the Welsh Ministers must be consulted before a direction is issued. We are continuing to engage with the Welsh Government on the operation of the direction, as far as it relates to devolved Welsh authorities, and I will be writing further to Minister Hutt shortly.
I was asked for examples of when we envisage that a direction may be given. It is very much expected that these powers will be used infrequently—I hope never—but we must have this ability to ensure compliance if that situation were to arise. It is very much a matter of last resort when all other attempts to work effectively in partnership with an authority have failed. Where necessary, we must have this backstop mechanism to ensure that all relevant authorities comply with the duty and play their part in reducing and preventing serious violence.
A direction may include requiring authorities to take the necessary steps set out by the Secretary of State in order to comply with the duty. If necessary, to ensure an authority complies, a direction can be enforced by a mandatory order granted on application to the administrative court in England and Wales. We very much hope that this power will be used rarely, if at all, but if, for example, an authority refuses to provide information that it is required to provide under the Bill, it is available as a last resort when all other attempts to work effectively have failed.
Question put and agreed to.
Clauses 17 accordingly ordered to stand part of the Bill.
Clauses 18 to 22 ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned. —(Tom Pursglove.)
Police, Crime, Sentencing and Courts Bill (Seventh sitting)
Thursday 27th May 2021
(2 years, 11 months ago)
Public Bill CommitteesRead Full debate Police, Crime, Sentencing and Courts Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 27 May 2021 - (27 May 2021)
The Chair
Good morning. Before we begin, there are a few preliminaries. Can you switch your phones and electronic devices to silent please? The Speaker does not permit food or drink to be consumed during Committee. Please make sure you are observing social distancing and sitting in the appropriate places as marked. People should wear face masks when they are not speaking, unless they are medically exempt. Hansard would be grateful if you could email your speaking notes.
We will now resume line-by-line consideration of the Bill. The selection list for today’s sitting is available in the room. I remind Members wishing to press a grouped amendment or new clause to a Division that they should indicate that intention when speaking to their amendment. The temperature is wonderful in here, so feel free to remove your jacket if you so wish.
Clause 23
Duty to arrange a review
Question proposed, That the clause stand part of the Bill.
Sarah Jones (Croydon Central) (Lab)
It is a pleasure to be back here today. Before I get into the detail of the clauses, I want to put some questions to the Minister, to reflect on the importance of reviews when there have been homicides or unexplained deaths and to give an example.
I was reading the serious case review about Child Q, who was aged 16 when he died following a moped crash. One might think, “There’s a child who died following a moped crash. End of story.” but because he was a vulnerable adolescent there was a comprehensive serious case review into his life, his death and what happened.
At the time of his death, he was a looked-after child in children’s services and was living in the midlands with members of his extended family. On the day of the collision, he had been released on conditional bail from a remand court for breach of his court order. Family members and professionals had requested that he be made the subject of a curfew and tagging, but that, for whatever reason, was not put in place and he returned to London, where the fatal accident occurred.
He started his life as an aspirational boy and had wanted to be a professional footballer. His first conviction ended those aspirations and the motivation to play football. Throughout his life he lived with various family members and foster carers. He was often missing and was both a victim and a perpetrator of various offences. He was involved in high-risk behaviour and believed to be a gang member. When interventions were made, he appeared to understand that his life was very high risk, but seemed almost resigned to the inevitable risks that he was facing. During the latter stages of professional involvement, Child Q asked the professionals, “Where were you when I was six?”
This 16-year-old died because of a moped crash, but because of this review we can learn that bail conditions and tagging would have helped him to make the decision not to travel to London. We have learned that this child was in and out of care and often went missing, that interventions were not made and that the problems started very early. Although that could not in itself have prevented that death, there is a story behind that child that we can learn from.
Sarah Champion (Rotherham) (Lab)
My hon. Friend may not know that I used to run a children’s hospice. Child deaths are very rare, but a review such as this enables the family to have the closure that they need to move on, enables the lessons to be learned and enables the whole community to grieve and draw a line under something. Of course it is important to understand the failings that occurred so that they never happen again, but also in the broader context, conducting a review is a really important thing to do. In terms of costs and resources, these deaths are not that common; this does not happen that often, but when it does, it destroys a community, not to mention the family.
Sarah Jones
I thank my hon. Friend for that intervention. She speaks with great experience, and she is absolutely right: doing these reviews has wider benefits. Reading the review on Child Q and hearing the stories from the father, mother and family members about him, we can see, hopefully, some form of the beginnings of closure from the review. Therefore we are very much in favour of extending homicide reviews in the way provided for under the Bill. We have some amendments, but they come later, so I will not speak to them now.
To do the victims and their families and friends justice, we need to ensure that the lessons are learned. Part 2, chapter 2 of the Bill will require police, local authorities and clinical commissioning groups to conduct offensive weapon homicide reviews when an adult’s death involves the use of an offensive weapon. Police recorded 625 homicide offences in the year ending December 2020. Of all homicides recorded in the last year—the latest year that we have information for—37% were knife-enabled crimes. A large proportion of homicides involve offensive weapons. In the year ending March 2020, 275 homicides involved a sharp instrument, 49 involved a blunt instrument and 30 were homicides involving shooting. It is therefore absolutely right that the Government look to learn the lessons from those homicides not currently reviewed by multi-agency partners.
In my constituency, there have been incidents in which adults have been killed and an offensive weapon was involved. In one instance, there were incidents in the same area within weeks of each other. Those cases were not linked together, but actually, when people looked into the background and how those murders occurred, it turned out that they were linked.
It is therefore important that the pathways that lead people to be involved in homicides, whether as victims or perpetrators, can be understood and the knowledge can be shared. Offensive weapon homicide reviews will be similar to the domestic homicide reviews that already take place. Domestic homicide reviews are carried out when someone over the age of 16 dies as a result of domestic violence, abuse or neglect. The Government have committed to taking action to address homicide, but have not previously committed to introducing offensive weapon homicide reviews specifically.
Clause 23 will require an offensive weapon homicide review to be carried out when a qualifying homicide has taken place. A qualifying homicide occurs when an adult’s death or the circumstances or history of the person who has died meet conditions set by the Secretary of State in regulations. In accordance with clause 27, the purpose will be to identify lessons to learn from the death and to decide on actions to take in response to those lessons.
Clauses 24 to 35 do a number of things, including giving the Secretary of State the power to specify the relevant review partners in regulations and which of the listed public bodies will need to carry out the review in these circumstances, and to clarify when offensive weapon homicide reviews do not need to be carried out. Importantly, review partners must report on the outcome of their review to the Secretary of State. In addition, there are other key regulations about the obligations of offensive weapon homicide review partners.
Clause 33 is important, as it will require offensive weapon homicide reviews to be piloted before they are brought into force. The Secretary of State will be required to report to Parliament on the pilot. It is vital that offensive weapon homicide reviews are piloted before being rolled out nationally, but the provisions are fairly light on detail. It would be helpful if the Minister could provide any further information on the piloting. Can she clarify how many local authorities or police forces they will work with to pilot the reviews?
Standing Together, a domestic abuse charity, recently reviewed domestic homicide review processes in London boroughs. Its 2019 report identified several areas for improvement, including how domestic homicide reviews are stored and retrieved, how chairs are appointed, and how appropriate funding is secured. It also highlighted that not enough sharing of knowledge is happening.
We are glad that the pilot partners will report on these reviews before they are implemented, but could the Minister explain in a bit more detail what those reports will include? Will there be regular reporting and evaluation of these offensive weapons homicide reviews once they are implemented? Where there is an overlap, and a homicide fits into two different categories—for example, if there is a domestic homicide review and an offensive weapons homicide review—how will the lessons be learned? Will there be two reviews, or just one? I am also keen to hear how the lessons from all existing homicide reviews can be better understood and shared between partners to ultimately make our streets safer and save lives.
The Secretary of State is given the power to make regulations on offensive weapons homicide reviews, to provide information on how to identify which local services are relevant to the review and how local services can negotiate who carries out the review when the circumstances are not clear. This is defined in regulatory powers, not on the face of the Bill; perhaps the Minister could explain why, and also explain what her expected timeframe is for these powers. If the duty to conduct these reviews will not be carried out until the criteria are defined in regulation, will there be a delay? What period of time is the Minister expecting that to be—because those regulations will need to go through Parliament—and what will happen after the regulations are published? Can she provide any data on how many more homicide reviews this change will actually bring; what expected number of reviews will need to be undertaken? Finally, what are the plans for budgets to cover local safeguarding partners’ costs for the delivery of these reviews? That question was raised in evidence from the Local Government Association, so will the Home Office be submitting a case to increase the funding for local authorities? If not, how does it envisage that these reviews will be funded? I will leave it there.
The Parliamentary Under-Secretary of State for the Home Department (Victoria Atkins)
It continues to be a pleasure to serve under your chairmanship, Mr McCabe. I am very grateful to the hon. Member for Croydon Central for setting out some of the background to these clauses. Through the clauses relating to offensive weapons homicide reviews, we want to tackle the growing proportion of homicides that involve offensive weapons, for all the reasons that one can imagine: for communities, and for the families affected. As the hon. Lady has set out, there is at the moment no legal requirement to review such homicides unless they are already subject to review: if, for example, the victim is a child or a vulnerable adult, or the homicide has happened in a domestic setting. As such, we want to introduce these offensive weapons homicide reviews to ensure that local agencies consider the circumstances of both victims and perpetrators, and identify lessons from these homicides that could help prevent future deaths.
Taking a step back and looking at the Bill as a whole, this work will form part of the local authorities’ work on the serious violence duties. I hope there will be much cross-learning between those duties and the homicide reviews that may occur in local areas, as part of a joined-up approach to tackling such homicides. All persons, bodies and organisations with information relevant to the decision to conduct a review or to identifying lessons, such as schools and probation services, will be legally required to provide information deemed relevant to the review.
The hon. Member for Croydon Central has understandably asked where these reviews fit in with existing homicide reviews: child death and adult safeguarding reviews in England, and their equivalents in Wales, as well as domestic homicide reviews. To avoid duplication of work, the Bill provides that these new offensive weapons homicide reviews will be required only where there is not an existing statutory requirement to review the homicide, which I hope answers her question.
Maria Eagle (Garston and Halewood) (Lab)
Given that the Minister is determined to learn the lessons of these reviews and given the importance of properly funding local agencies to carry out any such improvements, can she confirm today that additional resource will go along with this additional focus from the Home Office on implementation?
Victoria Atkins
I am very pleased to confirm that the Home Office will provide funding for the relevant review partners to cover the costs of the reviews during the pilot stage, and will meet the cost of the Home Office homicide oversight board. If the policy is rolled out nationally, funding arrangements will be confirmed after the pilot, but in that initial period that is certainly the approach.
I am trying to see whether I have further details about the pilots that I can assist the Committee with. Clause 33 requires that a pilot of the reviews takes place for one or more purpose, or in at least one area. We intend to pilot reviews in at least three areas and are currently in discussions to enable that to happen. We will announce the pilot areas in due course. We want to pilot the reviews in areas that have high levels of homicide and in areas that have low levels, and that represent regions in both England and Wales.
We will also specify in regulations the length of time that the pilot will last. We currently intend to run the pilot for 18 months to ensure that the review process can be tested properly in each of the pilot areas, but clause 23 allows us to extend the length of the pilot for a further period, which may be useful if further test cases are needed. Our approach is to ensure that the pilot provides us with the greatest insight and information as to how the reviews would work if we roll them out across the whole of England and Wales. In the interests of transparency, clause 33 also requires the Secretary of State to lay before Parliament a report on the operation of the pilot before the reviews can come fully into force across England and Wales.
Question put and agreed to.
Clause 23 accordingly ordered to stand part of the Bill.
Clauses 24 to 35 ordered to stand part of the Bill.
Clause 36
Extraction of information from electronic devices: investigations of crime etc
Sarah Jones
I beg to move amendment 94, in clause 36, page 29, line 5, at end insert—
“(c) the user who has given agreement under subsection (1)(b) was offered free independent legal advice on issues relating to their human rights before that agreement was given.”
This amendment would ensure that users of electronic devices were offered free independent legal advice before information on their device could be accessed.
The Chair
With this it will be convenient to discuss the following:
Clause 36 stand part.
Government amendment 63.
Clauses 37 to 42 stand part.
Amendment 115, in schedule 3, page 198, line 29, leave out
“A person appointed as an immigration officer under paragraph 1 of Schedule 2 to the Immigration Act 1971.”
This amendment would remove immigration officers from the list of authorised persons who may carry out a digital extraction.
That schedule 3 be the Third schedule to the Bill.
New clause 49—Extraction of information from electronic devices—
“(1) Subject to Conditions A to D below, insofar as applicable, an authorised person may extract information stored on an electronic device from that device if—
(a) a user of the device has voluntarily provided the device to an authorised person, and
(b) that user has agreed to the extraction of specified information from the device by an authorised person.
(2) Condition A for the exercise of the power in subsection (1) is that it may be exercised only for the purposes of—
(a) preventing, detecting, investigating or prosecuting an offence,
(b) helping to locate a missing person, or
(c) protecting a child or an at-risk adult from neglect or physical, mental or emotional harm.
(3) For the purposes of subsection (2) an adult is an at-risk adult if the authorised person reasonably believes that the adult—
(a) is experiencing, or at risk of, neglect or physical, mental or emotional harm, and
(b) is unable to protect themselves against the neglect or harm or the risk of it.
(4) Condition B for the exercise of the power in subsection (1) is that the power may only be exercised if—
(a) the authorised person reasonably believes that information stored on the electronic device is relevant to a purpose within subsection (2) for which the authorised person may exercise the power, and
(b) the authorised person is satisfied that exercise of the power is strictly necessary and proportionate to achieve that purpose.
(5) For the purposes of subsection (4)(a), information is relevant for the purposes within subsection (2)(a) in circumstances where the information is relevant to a reasonable line of enquiry.
(6) Condition C as set out in subsection (7) applies if the authorised person thinks that, in exercising the power, there is a risk of obtaining information other than information necessary for a purpose within subsection (2) for which the authorised person may exercise the power.
(7) Condition C is that the authorised person must, to be satisfied that the exercise of the power in the circumstances set out in subsection (6) is strictly necessary and proportionate, be satisfied that there are no other less intrusive means available of obtaining the information sought by the authorised person which avoid that risk.
(8) Condition D is that an authorised person must have regard to the code of practice for the time being in force under section [Code of practice] in accordance with section [Effect of code of practice] below.
(9) This section does not affect any power relating to the extraction or production of information, or any power to seize any item or obtain any information, conferred by or under an enactment.
(10) In this section and section [Application of section [Extraction of information from electronic devices] to children and adults without capacity]—
‘adult’ means a person aged 18 or over;
‘authorised person’ means a person specified in subsection (1) of section [Application of section [Extraction of information from electronic devices] to children and adults without capacity] (subject to subsection (2) of that section);
‘child’ means a person aged under 18;
‘agreement’ means that the user has confirmed explicitly and unambiguously in writing that they agree—
(a) to provide their device, and
(b) to the extraction of specified data from that device.
Such an explicit written confirmation can only constitute agreement for these purposes if, in accordance with the Code of Practice issued pursuant to section [Effect of code of practice], the user—
(a) has been provided with appropriate information and guidance about why the extraction is considered strictly necessary (including, where relevant, the identification of the reasonable line of enquiring relied upon);
(b) has been provided with appropriate information as to (a) how the data will or will not be used in accordance with the authorized person’s legal obligations and (b) any potential consequences arising from their decision;
(c) has confirmed their agreement in the absence of any inappropriate pressure or coercion;
‘electronic device’ means any device on which information is capable of being stored electronically and includes any component of such a device;
‘enactment’ includes—
(a) an Act of the Scottish Parliament,
(b) an Act or Measure of Senedd Cymru, and
(c) Northern Ireland legislation;
‘information’ includes moving or still images and sounds;
‘offence’ means an offence under the law of any part of the United Kingdom;
‘user, in relation to an electronic device, means a person who ordinarily uses the device.
(11) References in this section and sections [Application of section [Extraction of information from electronic devices] to children and adults without capacity] to the extraction of information include its reproduction in any form.
(12) This section is subject to sections [Application of section [Extraction of information from electronic devices] to children and adults without capacity] and [Application of section [Extraction of information from electronic devices] where user has died etc].”
New clause 50—Application of section [Extraction of information from electronic devices] to children and adults without capacity—
“(1) A child is not to be treated for the purposes of subsection (1) of section [Extraction of information from electronic devices] as being capable of—
(a) voluntarily providing an electronic device to an authorised person for those purposes, or
(b) agreeing for those purposes to the extraction of information from the device by an authorised person.
(2) If a child is a user of an electronic device, a person who is not a user of the device but is listed in subsection (3) may—
(a) voluntarily provide the device to an authorised person for the purposes of subsection (1) of section [Extraction of information from electronic devices], and
(b) agreement for those purposes to the extraction of information from the device by an authorised person.
(3) The persons mentioned in subsection (2) are—
(a) the child’s parent or guardian or, if the child is in the care of a relevant authority or voluntary organisation, a person representing that authority or organisation,
(b) a registered social worker, or
(c) if no person falling within paragraph (a) or (b) is available, any responsible person aged 18 or over other than an authorised person.
(4) The agreement of persons listed in subsection (3) further to subsection 2(b) should only be accepted where, if it is appropriate, the child has been consulted on whether such agreement should be provided and the authorised person is satisfied those views have been taken into account.
(5) An adult without capacity is not to be treated for the purposes of section [Extraction of information from electronic devices] as being capable of—
(a) voluntarily providing an electronic device to an authorised person for those purposes, or
(b) agreeing for those purposes to the extraction of information from the device by an authorised person.
(6) If a user of an electronic device is an adult without capacity, a person who is not a user of the device but is listed in subsection (7) may—
(a) voluntarily provide the device to an authorised person for the purposes of subsection (1) of section [Extraction of information from electronic devices], and
(b) agreement for those purposes to the extraction of information from the device by an authorised person.
(7) The persons mentioned in subsection (6) are—
(a) a parent or guardian of the adult without capacity,
(b) a registered social worker,
(c) a person who has a power of attorney in relation to the adult without capacity, or
(d) if no person falling within paragraph (a), (b) or (c) is available, any responsible person aged 18 other than an authorised person.
(8) The agreement of persons listed in subsection (7) further to subsection (6)(b) should only be accepted where, if it is appropriate, the adult without capacity has been consulted on whether such agreement should be provided and the authorised person is satisfied those views have been taken into account.
(9) Nothing in this section prevents any other user of an electronic device who is not a child or an adult without capacity from—
(a) voluntarily providing the device to an authorised person for the purposes of subsection (1) of section [Extraction of information from electronic devices], or
(b) agreeing for those purposes to the extraction of information from the device by an authorised person.
(10) In this section and section and [Application of section [Extraction of information from electronic devices] where user has died etc]—
‘adult without capacity’ means an adult who, by reason of any impairment of their physical or mental condition, is incapable of making decisions for the purposes of subsection (1) of section [Extraction of information from electronic devices];
‘local authority’—
(a) in relation to England, means a county council, a district council for an area for which there is no county council, a London borough council or the Common Council of the City of London,
(b) in relation to Wales, means a county council or a county borough council, and
(c) in relation to Scotland, means a council constituted under section 2 of the Local Government etc (Scotland) Act 1994;
‘registered social worker’ means a person registered as a social worker in a register maintained by—
(a) Social Work England,
(b) the Care Council for Wales,
(c) the Scottish Social Services Council, or
(d) the Northern Ireland Social Care Council;
‘relevant authority’—
(a) in relation to England and Wales and Scotland, means a local authority;
(b) in relation to Northern Ireland, means an authority within the meaning of the Children (Northern Ireland) Order 1995 (S.I. 1995/755 (N.I. 2));
‘voluntary organisation’—
(a) in relation to England and Wales and Scotland, has the same meaning as in the Children Act 1989;
(b) in relation to Northern Ireland, has the same meaning as in the Children (Northern Ireland) Order 1995.
(11) Subsections (10) and (11) of section [Extraction of information from electronic devices] also contain definitions for the purposes of this section.”
New clause 51—Application of section [Extraction of information from electronic devices] where user has died etc—
“(1) If any of conditions A to C is met, an authorised person may exercise the power in subsection (1) of section [Extraction of information from electronic devices] to extract information stored on an electronic device from that device even though—
(a) the device has not been voluntarily provided to an authorised person by a user of the device, or
(b) no user of the device has agreed to the extraction of information from the device by an authorised person.
(2) Condition A is that—
(a) a person who was a user of the electronic device has died, and
(b) the person was a user of the device immediately before their death.
(3) Condition B is that—
(a) a user of the electronic device is a child or an adult without capacity, and
(b) an authorised person reasonably believes that the user’s life is at risk or there is a risk of serious harm to the user.
(4) Condition C is that—
(a) a person who was a user of the electronic device is missing,
(b) the person was a user of the device immediately before they went missing, and
(c) an authorised person reasonably believes that the person’s life is at risk or there is a risk of serious harm to the person.
(5) The exercise of the power in subsection (1) of section [Extraction of information from electronic devices] by virtue of this section is subject to subsections (2) to (8) of that section.
(6) Subsections (10) and (11) of section [Extraction of information from electronic devices] and subsection (9) of section [Application of section [Extraction of information from electronic devices] to children and adults without capacity] contain definitions for the purposes of this section.”
New clause 52—Code of practice—
“(1) The Secretary of State must prepare a code of practice containing guidance about the exercise of the power in subsection (1) of section [Extraction of information from electronic devices].
(2) In preparing the code, the Secretary of State must consult—
(a) the Information Commissioner,
(b) the Scottish Ministers,
(c) the Welsh Government,
(d) the Department of Justice in Northern Ireland,
(e) the Victims Commissioner,
(f) the Domestic Abuse Commissioner,
(g) any regional Victims Champion including the London Victims Commissioner,
(h) persons who appear to the Secretary of State to represent the interests of victims, witnesses and other individuals likely to be affected by the use of the power granted in subsection (1) of section [Extraction of information from electronic devices], and
(i) such other persons as the Secretary of State considers appropriate.
(3) After preparing the code, the Secretary of State must lay it before Parliament and publish it.
(4) The code is to be brought into force by regulations made by statutory instrument.
(5) The code must address, amongst other matters—
(a) the procedure by which an authorised person must obtain and record confirmation that a device has been provided voluntarily;
(b) the procedure by which an authorised person must obtain and record confirmation that agreement has been provided for the extraction of specified information, including the information which must be provided to the user about—
(i) how long the device will be retained;
(ii) what specific information is to be extracted from the device and why, including the identification of the reasonable line of enquiry to be pursued and the scope of information which will be extracted, reviewed and/or retained;
(iii) how the extracted information will be kept secure;
(iv) how the extracted information will or may be used in a criminal process;
(v) how they can be kept informed about who their information is to be shared with and the use of their information in the criminal process;
(vi) their right to refuse to agree to provide their device and/or to the proposed extraction in whole or in part and the potential consequences of that refusal; and
(vii) the circumstances in which a further extraction may be required, and what will happen to the information after the case has been considered;
(c) the different types of extraction processes available, and the parameters which should be considered in defining the scope of any proposed extraction from a user’s device;
(d) the circumstances in which the extraction of information should and should not be considered strictly necessary and proportionate;
(e) the considerations to be taken into account in determining whether there are less intrusive alternatives available to extraction for the purposes of subsection (7) of section [Extraction of information from electronic devices];
(f) the process by which the authorised person should identify and delete data which is not responsive to a reasonable line of enquiry and/or has been assessed as not relevant to the purposes for which the extraction was conducted; and
(g) the records which must be maintained documenting for each extraction or proposed extraction, including—
(i) the specific information to be extracted;
(ii) the reasonable lines of enquiry pursued;
(iii) the basis upon which the extraction is considered strictly necessary, including any alternatives considered and why they were not pursued;
(iv) confirmation that appropriate information was provided to the user and, if applicable, agreement obtained;
(v) the reasons why the user was not willing to agree to a proposed extraction.
(6) A statutory instrument containing regulations under subsection (4) is subject to annulment in pursuance of a resolution of either House of Parliament.
(7) After the code has come into force the Secretary of State may from time to time revise it.
(8) References in subsections (2) to (7) to the code include a revised code.”
New clause 53—Effect of code of practice—
“(1) An authorised person must in the exercise of the power granted under section [Extraction of information from electronic devices] have regard to the code of practice issued under section [Code of practice] in deciding whether to exercise, or in the exercise of that power.
(2) A failure on the part of any person to comply with any provision of a code of practice for the time being in force under section [Code of practice] shall not of itself render him liable to any criminal or civil proceedings.
(3) A code of practice in force at any time under section [Code of practice] shall be admissible in evidence in any criminal or civil proceedings.
(4) In all criminal and civil proceedings any code in force under section [Code of practice] shall be admissible in evidence; and if any provision of the code appears to the court or tribunal conducting the proceedings to be relevant to any question arising in the proceedings it shall be taken into account in determining that question.”
Sarah Jones
As more and more crimes take place online or are enabled through digital devices and the internet, the extraction of information from electronic devices has increasingly become a routine part of criminal investigations, but the way in which such information can be made available to law enforcement, prosecutors and the defence has rightly received a great deal of attention and scrutiny in recent years, particularly in rape cases. It has become the norm for rape complainants to be asked to hand over digital devices and for most or all of the material to be checked through in detail. The Victims’ Commissioner said in her excellent evidence to the Committee last week that, through her recent survey of rape complainants and her network of stakeholders, she had heard that
“the CPS frequently seeks a level of material straight away, before it charges, and if a complainant refuses, the case just does not get considered for charge. That is very, very troubling, and it has a chilling effect not only on current victims, but on reporting, and it could impact victim attrition.”––[Official Report, Police, Crime, Sentencing and Courts Public Bill Committee, 20 May 2021; c. 110, Q174.]
I will give some examples that have come to light and that reflect many people’s experience. These are the words of Courtney:
“After a two-and-a-half-year investigation into my sexual assault case, which had witnesses and a potential second victim, the police told me the CPS was going to drop my case if I didn’t give them a download of my phone. When I asked them what was the reasonable line of inquiry, they told me that I could be lying. There could be something that discredits me on there. I could be hiding something. And to me, that’s not reasonable. I was asked why I was concerned, but actually it’s totally rational to fear giving your phone over to the police. I think most people would not want to give the contents of their phone to their mother”—
I certainly would not—
“let alone the government or the person who attacked them who may, because of rules around disclosure, get access to it. When I refused my case was immediately dropped.
The CPS turned its back on me and treated me as a suspect—they made it so clear that I was alone and I was powerless. That anyone can rape me with impunity unless I submit to the court’s illegal demands.
And it became clear to me that I needed to work to change that, because it can’t go on. I had my power taken away from me from the assault, I had my power taken away from me from the criminal justice system. I was left in a really bad place. There were times, you know, I didn’t want to be here anymore. But taking up this case, working with the Centre for Women’s Justice, it’s been so important for my mental wellbeing. I feel like, for the first time in a while, I’m coming to terms with everything that happened to me.”
A woman who was raped by a stranger in London told The Independent newspaper that she dropped her case after the police demanded access to her mobile phone. She said:
“It made me very angry, it made me feel like I was the one on trial and they were trying to seek out ways it was my fault.”
She added that she was concerned that evidence of past one-night stands could be used against her in court. Another woman who faced the same demand after the Metropolitan police had identified her attacker using DNA told that paper that the investigation felt like “one intrusion after another”. She said:
“I’m not actually sure I would have gone ahead with the case if I’d known what was part of the process.”
In another case, the CPS demanded to search the phone of a 12-year-old rape victim despite the fact that the perpetrator had admitted the crime. The case was delayed for months as a result. Finally, a different woman reported being drugged and then attacked by a group of strangers, but the case was dropped after she refused to hand over seven years of phone data.
Analysis of a rape crisis administrative dataset conducted by the office of the Victims’ Commissioner showed that one in five victims withdrew complaints at least in part because of disclosure and privacy concerns. Victims in 21% of cases had concerns about digital downloads, about disclosing GP, hospital, school and employment records, and about a combination of negative press coverage. Home Office data also shows an increase in pre-charge withdrawal of rape complaints. In the year ending December 2020, 42.8% of rape offences were closed as part of what is called the “evidential difficulties” category—where the victim did not support further police action against a suspect—compared with 25.6% in 2015. As we know, the charge rate for sexual offences is just 3.6%, and for rape it is 1.6%.
Such stark figures will not help with the concerns of many senior police chiefs that there has been a fall in public and victim confidence in the police in relation to rape cases, in particular. The issue of digital data extraction plays a big role in that, which is why we have tabled amendments. I am sure the Minister will say that clause 36 is required to tidy up the law so that it is clear about what the police can and cannot do, but with our amendments we are seeking to define and improve the rights of victims so that it is clearer to them when data should and should not be extracted.
Amendment 94 would ensure that users of electronic devices are offered free, independent legal advice before information on their device could be accessed, and it was recommended by the Victims’ Commissioner. It is vital that victims understand their rights so that they can make an informed decision on whether to agree to handing over their device for digital download.
Sarah Champion
I can only speak from my constituency experience, but many women have come to me having gone to report offences against them in childhood or rape offences against them. They are not in a position to give consent; they are not even in a position to understand what is going on—they are in a highly traumatised state. Walking into a police station is a very shocking thing. They go up to the front desk, get a meeting—one hopes—with an officer, and they are then told to hand over their phones or the police cannot proceed. Will my hon. Friend comment on that inherent power imbalance and the vulnerability of people in that situation—they were all women in those cases—who are expected to make an informed choice?
Sarah Jones
My hon. Friend makes an excellent point about that power imbalance. I have not been in that situation myself, but I can only imagine the bravery that it would take for someone just to take those first steps into a police station and recount what has happened to them, given how awful that would make them feel, let alone potentially handing over everything on their phones.
We were all watching Dominic Cummings yesterday—well, some of us were. [Interruption.] Whatever we think of him, right or wrong, he commented, “Well, I would not just hand my phone over so you could look, just to fish to see if there was anything on it that you thought might be relevant.” It is the same situation here. If people have past sexual history, which most people have, the idea that that would be used against someone in that vulnerable position—
Maria Eagle
My hon. Friend referred to a fishing expedition. Generally speaking in the criminal law, fishing expeditions are not encouraged, and court rules generally seek to discourage them and to prevent information gathered in that way from being used at trial. Is this any different?
Sarah Jones
That is completely right and why we think that having some advice would help in both directions. It would help be clear about when a phone should or should not be handed over, but it would also hopefully help give people confidence when handing it over is the right thing to do, because it is reasonable and proportionate for the police to ask for it, for whatever reason they have given. We hope that that legal advice and support at that stage would help stop anything from being just a fishing expedition, while also giving people confidence to hand over their phones when that is the appropriate thing to do.
I am grateful to the Home Office for funding a pilot of independent legal advice for rape complainants dealing with digital download in Northumbria. The Sexual Violence Complainants’ Advocate scheme pilot engaged local solicitors to provide legal advice and support to rape complainants in Northumbria, related to the complainants’ article 8 rights to privacy. The pilot demonstrated what was happening in practice and found that about 50% of requests were not strictly necessary or proportionate. Some police officers who participated in the scheme expressed concern about this culture. One said:
“I could talk all day about third-party material, and it is the real bone of contention. It’s one of the things that has given me sleepless nights over the years.”
They go on:
“I had a rape team investigator say to me on one occasion, or a former rape team investigator, say to me, ‘I had to like leave the rape team because of what I was asked to do, in relation to victims, I couldn’t do it’. And I think, you know, that, for me just spoke volumes. And lots of people were expressing their concerns, including me, but when that officer said that to me, I kind of thought, d’you know what, there’s something sadly wrong here.”
Another contributor said:
“I would love to see a document where somebody who has looked at third-party material has actually considered the Article 8 rights of the victim. ’Cos I don’t think you’ll find that anywhere.”
Furthermore, another said:
“In terms of the 3rd party material: I have obtained as much as I need from her phone. I have just received her Local Authority Records from [Council] and I am awaiting her medical records and school records. Once I have reviewed this material, I will be able to go to the CPS for a decision. Unfortunately, as you are no doubt aware, the CPS will not entertain any files for charging decision unless this material is reviewed without exception regardless of the circumstances.”
Sarah Champion
I think we all—well, most of us—got a fantastic briefing from Big Brother Watch, Amnesty, End Violence Against Women and so on. Within that, they refer to these things as digital strip searches, which tend to be carried out more often on women than men.
Perhaps I can read something out and ask for my hon. Friend’s opinion:
“The scale and depth of the police’s mobile phone searches are incomparable with the police’s legislative powers to carry out physical searches.”
An average phone
“would amount to police searching someone’s property and taking copies of all photographs, documents, letters, films, albums, books and files.”
Furthermore, some
“phones can contain over 200,000 messages and over 100,000 photos”,
and the information
“can run to many thousands of pages. An average individual’s mobile phone can contain the equivalent of 35,000 A4 pages of data.”
Will my hon. Friend, and indeed the Minister when she speaks, comment, first, on the relevance of that; secondly, on why, digitally, police have so much further reach, without the necessary applications to court in place; and, thirdly, on the impact—my hon. Friend rightly mentioned this—that that is having on court and CPS time, and the costs associated with it, in an already highly clogged-up court system?
Sarah Jones
My hon. Friend has made a series of correct points. Across the board, in the digital and the online worlds, when it comes to laws, we are behind what is happening in the real world. A significant number of changes need to be looked at to come up to date with what is already happening. We would argue that this is one of those examples.
As well as impacting victim attrition, this issue is a factor in deciding whether to even report a rape or a crime in the first place. The Victims’ Commissioner survey of rape complainants showed that, for some, scrutiny of their personal lives—including their digital lives—was a consideration in their decision not to report. For those who did report, the experience was felt to be “invasive” and “traumatic”, with many feeling that the process was not properly explained. The survey stated:
“Just 33% agreed that the police clearly explained why any request to access mobile phone and other personal data were necessary and 22% that they explained how they would ensure that data would only be accessed if relevant and necessary. Requests for these data were often considered invasive and intrusive, and survivors had serious concerns about this.”
A female is quoted as saying:
“I was also reluctant to do so because I felt my [F]acebook data and mobile phone information would not have supported my account as I had been friendly with the perpetrator before the incident.”
Another said:
“I was happy to provide my mobile phone for them to download all the vile messages that supported my assaults. The police said they would download all messages between me and my ex-husband but they actually downloaded all of my phone every message…and all my privacy was gone.”
Many respondents felt that they had no choice but to hand over devices for scrutiny, and that raises issues around what is meant by “voluntary” in the context of a police power. Arguably, it confirms the need for safeguards in legislation, which speaks to what my hon. Friend the Member for Rotherham said about the power balance and what “voluntary” means. The Victims’ Commissioner said:
“Many survivors said they wanted to help with the investigation and achieve a positive outcome. Some did not believe that they could refuse such requests, that they did not have anything to hide, or thought the request was simply part of normal investigation procedures. However, most survivors had concerns around the disclosure of personal data and access to records.”
A 2020 report by the Information Commissioner on mobile phone data extraction outlined that the way in which police were operating did not comply in a number of respects with data protection legislation, and argued that the gateway of consent that police had been reliant on was not open to them for a number of reasons. They could rely on “strict necessity” for law enforcement purposes, but that comes with a number of prior conditions that must also be met. The report also outlined concerns about the realities of such downloading and how it impacts on other’s rights to privacy, such as family and friends, whose sensitive data may also be contained on the complainant’s mobile, but from whom consent is never sought.
A great deal of work has been done at policy level to address some of the issues, but none of the work to date has sought to alter police powers to obtain and scrutinise a digital device. Existing case law legislation and guidance make it clear that agreement to digital extraction can be sought only if the officer believes that relevant material can be extracted from a phone for criminal investigations—that means that it is relevant to a reasonable line of inquiry.
Sarah Champion
My hon. Friend would be making an incredibly powerful argument if she was making it on behalf of the criminals, but she is actually making it on behalf of the victims of crime. Surely, this level of invasive behaviour as regards their most private and personal things, after they have been the victim of a crime, is truly shocking.
Sarah Jones
I completely agree. The issue of people having things on their phone that relate to their family or friends, which they feel it would be terrible for others to see, has not been thought through.
In the Bater-James Court of Appeal judgment, the judges were clear that there should not be speculative searches, and that there must be specificity based on a reasonable line of inquiry. The information should be extracted only in so far as it is strictly necessary and proportionate to the investigation, and the officer must be satisfied that there are no other, less intrusive means available to them of pursuing that line of inquiry. It is vital that the police can rely on “strict necessity” for law enforcement purposes from the perspective of data protection, but it is also vital that the victims agree to the download, meaning that they fully understand what is being sought, and that the agreement is freely given.
In an evidence session last week, we heard from Martin Hewitt of the National Police Chiefs’ Council that there is an ever-increasing
“volume of digital evidence that is required for almost every investigation.”
He said:
“That has created real pressure on the time limits of investigations and our ability to gather the evidence that we need to take an investigation forward. We have increased the capability. It is partly about equipment and having the right equipment to be able to extract digital evidence. It is also about having officers and staff who have the right capabilities to assess that evidence and produce it in an evidential form…However, the flip side and the really important point is making sure that what is being done is lawful, proportionate and necessary. Again, that side of the work is equally important…So we need the legal framework to allow us to do that properly and we then also need the resourcing and the capabilities to do it within the right time limits.”––[Official Report, Police, Crime, Sentencing and Courts Public Bill Committee, 18 May 2021; c.16, Q21.]
Alex Cunningham (Stockton North) (Lab)
My hon. Friend is making a very clear argument. She will recollect clause 36(10), which relates to the age of an adult. It suggests that in the context of extraction for information, an “adult” is someone who is 16 years old. Is it not all the more important that we have legal protections for children, if the Government insist that they are adults at the age of 16?
Sarah Jones
My hon. Friend makes a very good point, which was raised last week, and which I know the Minister has clocked. We have an amendment to shift the age from 16 to 18, but my hon. Friend is absolutely right to say that if the age remains that low, we need to make even more sure that we protect victims.
Police forces carry out digital data extraction from victims’ phones in kiosks. In the police forces that have kiosks—not all of them do—the police often have to queue and wait to download their information. Martin Hewitt’s point about time limits is crucial; the police clearly do not have the right equipment for the new power to be used in the way that the law says it should be used. The police do not have the technology to draw out specific information from people’s phones, and the risk of incriminating family or friends can prevent cases from going ahead. I know that the guidance from the College of Policing says that police must immediately delete all data that are not relevant, but there is a big problem, in that so many cases brought to them do not go ahead. Will the Minister provide assurances as to how the Government will provide the police with the resources and capacity that they need to enforce what they need to do with digital extraction?
In the evidence sessions, we also heard from Dame Vera Baird that
“The police have now done a lot of work to try to shift policy backwards, and this new power—which has no obvious nod, even, in the direction of the protection of complainants—came out of the blue from a different Department of the Home Office, and has absolutely none of the protections that, in policy terms, the police have been looking towards for quite some time.”––[Official Report, Police, Crime, Sentencing and Courts Public Bill Committee, 20 May 2021; c.111, Q174.]
New clauses 49 to 53, on the power to extract data from electronic devices, would protect the rights of complainants under article 8 of the European convention on human rights, particularly in sexual assault and rape cases. They would more clearly define that “agreement” in the legislation means informed and freely given agreement, to avoid abuse of this power. The new clauses would ensure that alternatives were considered before a request was made to a victim, and that only specified persons could agree and provide a device on behalf of children, who must be consulted before a decision is made. The same would apply to adults without capacity. The new clauses would oblige the code of practice to address a number of points about exercising the power, in order to better protect the rights and experience of victims.
I will run through the issues that we are seeking to correct through the new clauses. The first is that there is no definition of “agreement” in the legislation. As we have said, police all too often seek the agreement of complainants of sexual violence in circumstances where they are not fully informed—sometimes they are being coerced—so it is really important that the primary legislation defines “agreement”, which means agreement that is informed and freely given. Linked to agreement is the need for the police to be specific about what data they are seeking. Only if the police are specific can the data owner give informed agreement to extraction.
The second issue is that a reasonable line of inquiry is not clearly defined in the legislation. It nods to that by using the word “relevant”, but material sought from a suspect or complainant for the purposes of investigating and prosecuting crime will be relevant only inasmuch as it is part of a reasonable line of inquiry. It is vital that that be clearly defined in the legislation. Without a clear definition, the legal hoop for police is merely reasonable belief and relevance. This risks further embedding a culture of wholescale downloads and intrusion into privacy.
Sarah Champion
My hon. Friend talks about the being able to access the device only if there is a reasonable line of inquiry. Should the police or investigating body also look to follow that reasonable line of inquiry through other methods, rather than automatically making a call on that digital device?
Sarah Jones
My hon. Friend is absolutely right: other means of investigating should be pursued before there is that intrusion of taking people’s phones. The Victims’ Commissioner has recommended that guidance be issued mandating that a record be made of the decision-making process of the authorised person in identifying a reasonable line of inquiry, so that it can be scrutinised at a later date.
The next problem is that clause 36(5)(b) states that an authorised person using the power should be
“satisfied that exercise of the power is necessary and proportionate to achieve that purpose.”
The Victims’ Commissioner advises that the test should be that the authorised person is satisfied that exercise of the power is strictly necessary and proportionate to achieve that purpose, and we have incorporated that language into our new clauses. Statute and case law insist on strict necessity as the only appropriate test in circumstances where sensitive data—such as health data, sexuality data, or information about others—will be processed. A complainant’s phone will nearly always contain such information, and as such will automatically require sensitive processing. In their clauses, the Government have removed “strictly” from the test, creating a far lower threshold than the one that the Data Protection Act 2018 intended for processing this type of material, and meaning that victims’ article 8 rights are less protected.
The next problem is that the phrase “reasonably practicable” in clause 36(7)(b) is incompatible with the data protection legislation, and there are concerns that this gives police a means of easily dismissing other options. The term
“strictly necessary for the law enforcement purpose”
under the Data Protection Act places a higher threshold on processing based on this condition. As my hon. Friend the Member for Rotherham said, controllers need to demonstrate that they have considered other, less intrusive means, and have found that they do not meet the objective of the processing. The test does not ensure that. Under the clauses, police could decide, having considered alternative means, that it is not practical to get the information via those means. The risk for rape victims is that, both culturally and due to operational constraints, the most practical or easiest path to obtaining the information sought will nearly always be the victim’s phone. Again, normal practice is being bolstered by this legislative power, and there are limited safeguards for victims.
The final point of concern for the Opposition is that in the clauses, as my hon. Friend the Member for Stockton North said, the authorised person has no obligation to obtain the views of children and those without capacity when seeking to obtain information from their phones. Neither the police nor the person giving agreement in those people’s stead is obliged to ensure that their views are considered.
Sarah Champion
This relates to amendments of mine that will be debated later. I wonder whether something needs to be inserted about language competency. My amendments deal with asylum seekers who do not have English as their first language. Should language competency also be a consideration, so that we ensure that people actually understand their rights?
Sarah Jones
Yes. Whenever people hand over personal information, they need to know why they are doing so, and the implications. That is as important for a child as for an adult, and we need to make sure that principle is enshrined properly in law.
It is important to safeguard the human rights of children, and to ensure that only specified persons can agree to handing over information and providing a device on behalf of children, who must be consulted before a decision is made. The same should apply to adults without capacity, and we have effected this principle in our new clauses.
Another issue—the Minister was looking at this last week —is that for the purposes of this chapter, clause 36(10) defines an adult as a person aged 16 or over, and a child as a person under 16. Hazel Williamson, chair of the Association of Youth Offending Team Managers, said in evidence to us last week:
“We should treat children as children until they are 18 and they should be sentenced as a child until they reach the age of 18. In an ideal world, we would look beyond that, because many people do not develop fully, in terms of brain development, until they are in their mid-20s.”––[Official Report, Police, Crime, Sentencing and Courts Public Bill Committee, 20 May 2021; c.136, Q223.]
Our amendments would change the age from 16 to 18. I would like to learn from the Minister why the Government chose to define “adult” in that way.
While we welcome the code of practice attached to this legislation, there is no detail yet about what it may contain, and there is no duty on the Secretary of State to consult victims’ representatives or champions in creating it. Our new clause would require the Secretary of State, when preparing the code of practice, to consult a range of parties, including the Information Commissioner, the Victims’ Commissioner, the Domestic Abuse Commissioner and other regional and national bodies.
Our new clauses also list matters that the code of practice should address, because protection for victims should be in the Bill. Clauses 36 to 42 provide the police with a wide-ranging power to obtain and scrutinise victims’ phones, with virtually no safeguards for victims. It is said that some protections are intended to be put into the code of practice, but the police will not be obliged to follow it. There are concerns that the clauses will provide the police—and the Crown Prosecution Service, via the police—with a legal basis for carrying on as they have been. The police accept that the Victims’ Commissioner’s proposals are appropriate for their purpose, and would give a better balance as regards victim protection. I thank the Victims’ Commissioner and her team for all their work to guide us though this tricky area of law. I hope that the Minister will listen to the concerns we have raised.
Sarah Champion
I thank my hon. Friend for all the points she made, which, to be quite honest, are common sense, but would cause a huge shift in victims’ and survivors’ perceptions of their rights. I have questions for the Minister.
On data storage and security, I am sure we were all pretty shocked and disgusted to hear that images relating to Sarah Everard were not secure in the police system. While I have a very high regard for the police, they can be a leaky sieve—let us be honest. Why do we not simply clone phones at the point of taking them? Why is it months, or usually years, before the victim gets their phone back? Would it be possible to put in legislation or guidance a timeframe on how long that phone can be held for? Having spoken to officers, it seems that cloning a phone is complicated and geeky; it tends to be put in a back drawer until they absolutely have to do it. A timeframe would give a lot of comfort to victims and survivors; they would know it was only a week until they got their photos back, for example.
Finally, a myth has been perpetuated that victims and survivors have to hand over their phone or mobile data to the police or their case will not be taken forward. I have heard examples of victims and survivors being told expressly that if they do not hand it over, they are withholding evidence and could be prosecuted. At that point, unfortunately, a number of survivors drop out of the process and withdraw their charges altogether. If the Minister is able to give reassurance on that, that would be hugely appreciated.
I turn to amendment 115, on the list of people who may extract data. The list is pretty extensive, but one group stood out: immigration officers may request a mobile phone. A few months ago, I went to a large asylum hospital in my constituency, where there were 50 to 100 men—I do not know how many—and what concerned them most was that, literally as they entered the country, their mobile devices and indeed clothes were taken off them. There was no debate or explanation; it is just part of the process.
I completely understand the argument that very bad people, such as gangmasters, who come into the country may have a lot of contacts that are relevant to police inquiries. The police and transport police are already on the extensive list of people who may access electronic devices, so if an immigration officer was concerned, they could get a police officer to take the digital device away. That is not a problem. Extracting data is a complex process that requires specialist experience, and it ought to be managed under the law. I am concerned that we are asking immigration officers to be incredibly mindful, and to be trained and resourced, and to have all the skills, to request that device.
The people I met fell into three camps: economic migrants, who have paid to come over here; people who have been trafficked over here; and those brought in specifically for modern slavery. All the men I spoke to wanted to see pictures of their loved ones. They wanted those memories from home, and a mobile phone may be the best way to hold those memories and connections.
I do not know anyone’s telephone number aside from my parents’—it was the one I grew up with. I can call the police, the NHS helpline and my mum, but everything else is stored on my phone. If I lost it, I would not know how to respond—and I have back-ups that I can access, and English as my first language. When I changed phones, I did not download properly and lost five years of photos. That was so painful. Imagine someone being trafficked into this country, and probably horrifically abused on the way in. The one thing they can hold on to is their memories on that digital device, but that is taken away. They have no information about why it was taken, or when it will be returned, and all their contacts have been lost.
All the points that my hon. Friend the Member for Croydon Central made apply in this case. Immigration officers are one of the groups who may take these devices—this is not a dig against immigration officers, who do a difficult job—but in any other situation a police officer or a court order would be required to take such detailed data. I ask the Minister please to remove immigration officers from the list.
Victoria Atkins
I welcome the discussion about this chapter of the Bill, because the framework we are setting out is a really important step forward in improving the expectations about and management of digital data that victims and complainants may have on their digital devices. Of course, completely understandably, the focus has been on complainants in sexual violence cases—I will go into some detail on that in due course—but the chapter applies across the board. If, for example, in cases that do not relate to sexual violence, a mobile phone is deemed to be relevant and the authorised person is satisfied that the exercise of the power is necessary and proportionate, this chapter will apply.
Victoria Atkins
Thank you. The Minister for Crime and Policing, my hon. Friend Member for North West Hampshire (Kit Malthouse) answered the urgent question on the timing of the rape review. Colleagues will know that for the last two years, the Government have commissioned intensive research into each stage of the process within the criminal justice system of a rape case or a sexual violence investigation, from the moment of reporting through to the moment when the case finishes, whether by way of a verdict or if a trial does not go ahead for any number of reasons. We had very much hoped to publish that review by the end of last year. However, we were very understanding of the fact that the Victims’ Commissioner and women’s charities wanted to make representations, in particular looking at the shadow report by EVAW—End Violence Against Women. We were mindful that there was a super-complaint under way as well. Therefore, we have paused publication in order to take into account some of those factors.
The Minister for Crime and Policing informed the House this week that we plan to publish the review after the Whitsun recess. It will show the Government’s intentions in relation to this particular category of cases, sexual violence cases, and will of course sit alongside this Bill, but will go much further than the Bill. On some of the situations, scenarios and experiences that were described today and last week in evidence, I just urge caution until the rape review is published, because there may be answers in that document.
In terms of the legal framework, I think it is really important that we have this in the Bill and that the rights of victims and of suspects and defendants are set out and clarified and that we introduce consistency where that has been alleged in the past to be missing.
I note just as an example that one of the other ways in which we are really trying to help victims of sexual violence is through support for independent sexual violence advisers. We already have ISVAs working with victims across the country. This year, we have been able to announce the creation of 700 new posts, with some £27 million of funding. I give that just as an example. This is an important part of our work, but it is not the only piece of work that we are doing to address some of these very genuine concerns.
Sarah Champion
I am hearing everything that the Minister is saying. Knowing that the review is coming out—I assume it is something that she has been working on or very closely with, because of her intense involvement and support in this area—does she feel that the measures in the Bill are proportionate or are they something that, once the review comes out, she may look at changing, to ensure that the safeguards that she speaks of are embedded in the final Act that we see?
Victoria Atkins
We have been working together on this. We must not not forget that the background to the legal framework has to take into account the Criminal Procedure and Investigations Act 1996 and the more general disclosure rules, for example. But this has been very much a piece of work across Government, because we want this framework to give confidence and clarity to victims and to suspects, but also, importantly, to the police and the Crown Prosecution Service, because they are the ones who must administer and work within the legal framework and the code of practice.
If I may, Mr McCabe, I will take a bit of time, because this is such an important measure and I am mindful that there are questions about it, to set out some of the detailed thinking behind the way in which the clauses have been drafted. The current approach to the extraction of information from digital devices has indeed been criticised by some as feeling like a “digital strip-search” where devices have been taken as a matter of course and where, in many cases, all the sensitive personal data belonging to a device user was extracted and processed even where it was not relevant to the offence under investigation. We absolutely understand the concerns that have been raised in relation to that.
Alex Cunningham
I think this is an appropriate point for me to lay the challenge on the Government about the decision to classify children as adults at the age of 16 in clause 36(10). The Minister has just used the expression “digital strip-search”. Is it really appropriate for a 16-year-old girl, or boy for that matter, to have a digital strip-search, giving up all their little secrets and everything else, because the Government think that they should be classified as an adult and that adult factors should be applied directly to them?
Victoria Atkins
I will deal with that in detail in due course. Just so that colleagues understand how that age was settled upon, in the drafting we carefully considered people’s views, including the Information Commissioner, about the freedoms and the feelings of power and authority that users of devices have. We settled on the age of 16 because we understand that a 16-year-old is different from a 12 or 13-year-old, if their parents have allowed them mobile phones, although I am banning my son from having a mobile phone until he is at least 35, but there we go. A moment of lightness, sorry.
I will deal with the point in more detail later, because it is important, but there is a difficult balance to maintain between rights of victims, suspects and defendants but also rights of users, particularly under the European convention, so that has been the Government’s motivation in this. However, we are alive to scrutiny.
Sarah Champion
I think this involves the focus that I hope the Minister is going to come to. I hear everything she has just said about the justification and I am going along with that, but it is clear in subsection (10):
“In this Chapter—
‘adult’ means a person aged 16 or over”.
Why was that specific wording chosen rather than “the remit of the clause covers people from the age of 16 onwards”, for example?
Victoria Atkins
I will come to that later, but the hon. Lady knows that I am in listening mode on this. The Bill includes requirements to obtain agreement to extract information; to ensure there is reasonable belief that the required information is held on the device; and, before using this information, to consider whether there are less intrusive means of obtaining it. That is an important point that I know hon. Members have focused on. The clauses will ensure that the victim’s right to privacy will be respected and will be at the centre of all investigations where there is a need to extract information from a digital device.
The Bill also includes a new code of practice. This will give clear guidance to all authorities exercising the power. It will address how the information may be obtained using other, less intrusive means; how to ensure that agreement is freely given, and how the device user’s rights are understood. All authorised persons will have a duty to have regard to the code when exercising or deciding whether to exercise the power. The clauses are also clear that the code is admissible in evidence in criminal or civil proceedings and that a failure to act in accordance with it may be taken into account by the court. It will give up-to-date, best practice guidance for selectively extracting data considering existing technological limitations. That will be updated as and when further capabilities are developed and extended to all authorities able to use this power.
Sarah Jones
The Minister is outlining how important the code of practice is. Is she therefore sympathetic to the view that we have put forward in our new clauses that that code of practice should be pulled together with a list of eminently sensible and professional organisations and people, and that we should define in the Bill some of what that should include because it is so important?
Victoria Atkins
We are going to be even more ambitious than that. We aim to publish a draft on Report, which means the House and the other place will be able to scrutinise the draft code of practice during the scrutiny of the Bill as a whole. Once the Bill receives Royal Assent, we will consult formally on the code of practice, including with the relevant commissioners, to enable a more detailed draft to be laid before the House. Again, we are in listening mode on the ways in which the code of practice should be drafted, because we understand how important it is and how important it is that victims, the police and the Crown Prosecution Service, among others, have confidence in the document.
Sarah Champion
I hear what the Minister says about cloning and the risk that it is not suitable for admission in court. Will the Minister comment on a kindness that could be done—giving a clone of photos to an asylum seeker, for example?
Victoria Atkins
I am so sorry—I have not quite understood the hon. Lady. On the taking of a phone, if I have just been told that we are concerned about the ramifications of cloning it, I do not see why we would clone it despite those reservations in order to provide photographs. I would be very uneasy about having differences in how the police handle digital data depending on the personal circumstances of the person from whom they have taken a phone, including nationality. I would be very cautious about going down that road.
Sarah Champion
I did not mean to be used in court. I meant for the individual who has lost their one contact with home—that they could get a copy or a print-out of photos, rather than the device just being taken away with no explanation of when they are going to get it back again.
Victoria Atkins
I am very cautious about distinguishing between different victims. Perhaps the hon. Lady is alleging that the person she is talking about is a victim. The framework is about consistency and clarity, and I would be concerned about having caveats here and there in order to fit individual facts. Part of this test is about relevance, necessity and proportionality. Those are the tests that we are asking officers to apply, and we would have to apply them across the board.
There are situations within the framework whereby the power can be used without agreement, such as to locate a missing person where the police reasonably believe that the person’s life is at risk. Under clause 36, the police may have good reason to believe that a device has information that will help to locate the person. In such circumstances, clearly the person is not available to give their consent, so clause 36 ensures that officers can extract data, if it is necessary and proportionate, to protect the privacy of the user. That also applies in relation to children who need to be protected.
New clause 49 raises the bar for the exercise of the power in clause 36(1). The necessity test under new clause 49 is one of strict necessity. I am not persuaded that adopting the phrase, “strictly necessary and proportionate”, instead of “necessary and proportionate”, will make a material difference. This phrase is well used in the Bill. I note that article 8.2 of the European convention on human rights—the very article that people are relying on in relation to the framework—permits interference with the right to respect for private and family life. Such interference is permitted where it is necessary to achieve various specified objectives.
Sarah Jones
I understand what the Minister is saying. The review in Northumbria showed that about 50% of requests were not strictly necessary and proportionate. That must be wrong, and we are trying to make sure that people know what they are giving over, that they do it voluntarily and that it is absolutely necessary that such information is requested. Apart from trying to be clear about what is proportionate and necessary, what solution can the Minister put in place to make sure we do not have 50% of cases involving asking for information where it is not necessary and proportionate?
Victoria Atkins
On what the hon. Lady has described, I am not sure what difference it would make. I am trying to put myself in the boots of a police officer. Would a police officer ask for data if they read the words, “strictly necessary”, but not if they read the word, “necessary”? Actually, the problem that has been identified by the figure quoted by the hon. Lady is police officers’ understanding of the legislation, which comes back to training. Article 8, on which many rely in this context and in this part of the Bill, refers to “necessary” interference, and I am not clear what “strictly necessary” would add to that.
New clause 49 seeks to provide that information may be extracted only for the purpose of a criminal investigation
“where the information is relevant to a reasonable line of enquiry.”
There are safeguards within the clauses to ensure that information is not extracted as a matter of course, and they have been drafted with respect for victims’ privacy in mind. They include a requirement that the authorised person has a reasonable belief that the device contains information that is relevant to a purpose for which they may extract information, and that the exercise of the power is necessary and proportionate to achieve that purpose.
Sarah Champion
I hear everything the Minister is saying and it is very plausible, but I want to challenge her assertions on necessary, proportionate and clear lines of inquiry, based on the answer I received to a written question to the Home Office on 11 November. I asked about the process of extracting mobile phones. The Under-Secretary of State for the Home Department, the hon. Member for Croydon South replied:
“Immigration Enforcement search all migrants”—
at this point, “all migrants”, so we do not know yet whether they are an asylum seeker, being trafficked or are here for nefarious purposes—
“upon arrival at the Tug Haven at Dover. In the event that a mobile phone is discovered it will be seized as part of an investigation into the organised crime group involved in the facilitation.”
Again, we do not know if they are a criminal or a victim at this point, but the phone will be seized regardless.
“The migrant will be informed verbally that the phone will be kept for evidential purpose for three to six months. They are provided with a receipt and contact details. Attempts will be made to communicate this in their first language, although this can be challenging due to external factors.”
So people arrive here, immediately their phone is taken away from them and they might not even know why. It is great that within “three to six months”, they are meant to have that response—
Sarah Champion
Sorry, Minister? I do not think that the reality on the ground—the reality that the Home Office acknowledges—backs up what the other Minister is saying about reasonable, proportionate and lines of inquiry, because it is happening to every migrant coming into this country.
The Chair
I know this is important detail, but I remind the hon. Lady that interventions should not be too long.
Victoria Atkins
I cannot hope to do justice to a parliamentary question answered by my hon. Friend the Member for Croydon South, the Immigration Minister, because I know the care and attention he gives to answering such PQs. However, over lunch, I will attempt to extract an answer that will do justice to his response. I make the point that the hon. Member for Rotherham is referring to practice at the moment. Again, the point of this legal framework is to ensure that we have consistency and clarity of approach. I will try to do my hon. Friend justice when we return at 2 o’clock.
I will now move on to the Criminal Procedure and Investigations Act 1996 and its code of practice, because those provisions on “reasonable lines of inquiry” will continue to apply to the investigation of criminal offences in England and Wales. We cannot—must not—view the extraction of digital data in a vacuum, apart from the rest of the powers of, and duties on, police officers and the CPS when it comes to a criminal trial.
In the context of mobile phones, iPads and so on, police forces will continue to use the digital processing notice developed by the National Police Chiefs’ Council for this purpose. It explains in lay language how the police extract the information, which information might be extracted, how long the device might be retained for and what happens to irrelevant material found on the device or devices. The notice makes it clear that investigators must respect an individual’s right to privacy and must not go beyond the reasonable lines of inquiry. That is the golden thread that runs throughout the Act.
It is imperative that the existing procedures for investigations set out in the 1996 Act are followed. Although the clauses in the Bill concern a broader range of activity than just criminal investigation, helping as they do in investigations for missing persons or to protect children, we do not want to introduce any ambiguity. I will therefore reflect on that, but we are clear that the CPIA provisions must continue in the context of criminal investigations.
I note that new clause 49 would omit subsection (7)(b) of clause 36. We are clear that police officers and others using the extraction power should always seek to obtain the information required in the least intrusive way possible. There are situations in which it may not be reasonably practicable to utilise the least intrusive means of obtaining information, and this clause ensures that authorised persons may make that judgment. That could be because the time it would take to gather the information might affect the investigation or increase the risk of harm to an individual, or because those methods would mean intruding on the privacy of a wider number of people.
I will give one example and then I will sit down. When searching for a missing person, information such as an image on a witness’s device might also be captured on CCTV. Identifying all cameras, and downloading and reviewing many hours of CCTV footage is a time-consuming process. The authorised person may decide that it is more appropriate to extract the information from the device in order to speed up the inquiry and to try to locate the missing person before they come to harm.
Police, Crime, Sentencing and Courts Bill (Eighth sitting)
Thursday 27th May 2021
(2 years, 11 months ago)
Public Bill CommitteesRead Full debate Police, Crime, Sentencing and Courts Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 27 May 2021 - (27 May 2021)
The Chair
As you all undoubtedly observed, the Minister was just having a quick breather. We will now resume.
Clause 36
Extraction of information from electronic devices: investigations of crime etc
Amendment proposed (this day): 94, in clause 36, page 29, line 5, at end insert—
“(c) the user who has given agreement under subsection (1)(b) was offered free independent legal advice on issues relating to their human rights before that agreement was given.”—(Sarah Jones.)
This amendment would ensure that users of electronic devices were offered free independent legal advice before information on their device could be accessed.
Question again proposed, That the amendment be made.
The Chair
I remind the Committee that with this we are discussing the following:
Clause stand part.
Government amendment 63.
Clause 37 stand part.
Clauses 38 to 42 stand part.
Amendment 115, in schedule 3, page 198, line 29, leave out
“A person appointed as an immigration officer under paragraph 1 of Schedule 2 to the Immigration Act 1971.”
This amendment would remove immigration officers from the list of authorised persons who may carry out a digital extraction.
That schedule 3 be the Third schedule to the Bill.
New clause 49—Extraction of information from electronic devices—
“(1) Subject to Conditions A to D below, insofar as applicable, an authorised person may extract information stored on an electronic device from that device if—
(a) a user of the device has voluntarily provided the device to an authorised person, and
(b) that user has agreed to the extraction of specified information from the device by an authorised person.
(2) Condition A for the exercise of the power in subsection (1) is that it may be exercised only for the purposes of—
(a) preventing, detecting, investigating or prosecuting an offence,
(b) helping to locate a missing person, or
(c) protecting a child or an at-risk adult from neglect or physical, mental or emotional harm.
(3) For the purposes of subsection (2) an adult is an at-risk adult if the authorised person reasonably believes that the adult—
(a) is experiencing, or at risk of, neglect or physical, mental or emotional harm, and
(b) is unable to protect themselves against the neglect or harm or the risk of it.
(4) Condition B for the exercise of the power in subsection (1) is that the power may only be exercised if—
(a) the authorised person reasonably believes that information stored on the electronic device is relevant to a purpose within subsection (2) for which the authorised person may exercise the power, and
(b) the authorised person is satisfied that exercise of the power is strictly necessary and proportionate to achieve that purpose.
(5) For the purposes of subsection (4)(a), information is relevant for the purposes within subsection (2)(a) in circumstances where the information is relevant to a reasonable line of enquiry.
(6) Condition C as set out in subsection (7) applies if the authorised person thinks that, in exercising the power, there is a risk of obtaining information other than information necessary for a purpose within subsection (2) for which the authorised person may exercise the power.
(7) Condition C is that the authorised person must, to be satisfied that the exercise of the power in the circumstances set out in subsection (6) is strictly necessary and proportionate, be satisfied that there are no other less intrusive means available of obtaining the information sought by the authorised person which avoid that risk.
(8) Condition D is that an authorised person must have regard to the code of practice for the time being in force under section [Code of practice] in accordance with section [Effect of code of practice] below.
(9) This section does not affect any power relating to the extraction or production of information, or any power to seize any item or obtain any information, conferred by or under an enactment.
(10) In this section and section [Application of section [Extraction of information from electronic devices] to children and adults without capacity]—
“adult” means a person aged 18 or over;
“authorised person” means a person specified in subsection (1) of section [Application of section [Extraction of information from electronic devices] to children and adults without capacity] (subject to subsection (2) of that section);
“child” means a person aged under 18;
“agreement” means that the user has confirmed explicitly and unambiguously in writing that they agree—
(a) to provide their device, and
(b) to the extraction of specified data from that device.
Such an explicit written confirmation can only constitute agreement for these purposes if, in accordance with the Code of Practice issued pursuant to section [Effect of code of practice], the user—
(i) has been provided with appropriate information and guidance about why the extraction is considered strictly necessary (including, where relevant, the identification of the reasonable line of enquiring relied upon);
(ii) has been provided with appropriate information as to (a) how the data will or will not be used in accordance with the authorized person’s legal obligations and (b) any potential consequences arising from their decision;
(iii) has confirmed their agreement in the absence of any inappropriate pressure or coercion;
“electronic device” means any device on which information is capable of being stored electronically and includes any component of such a device;
“enactment” includes—
(a) an Act of the Scottish Parliament,
(b) an Act or Measure of Senedd Cymru, and
(c) Northern Ireland legislation;
“information” includes moving or still images and sounds;
“offence” means an offence under the law of any part of the United Kingdom;
“user”, in relation to an electronic device, means a person who ordinarily uses the device.
(11) References in this section and sections [Application of section [Extraction of information from electronic devices] to children and adults without capacity] to the extraction of information include its reproduction in any form.
(12) This section is subject to sections [Application of section [Extraction of information from electronic devices] to children and adults without capacity] and [Application of section [Extraction of information from electronic devices] where user has died etc].”
New clause 50—Application of section [Extraction of information from electronic devices] to children and adults without capacity—
“(1) A child is not to be treated for the purposes of subsection (1) of section [Extraction of information from electronic devices] as being capable of—
(a) voluntarily providing an electronic device to an authorised person for those purposes, or
(b) agreeing for those purposes to the extraction of information from the device by an authorised person.
(2) If a child is a user of an electronic device, a person who is not a user of the device but is listed in subsection (3) may—
(a) voluntarily provide the device to an authorised person for the purposes of subsection (1) of section [Extraction of information from electronic devices], and
(b) agreement for those purposes to the extraction of information from the device by an authorised person.
(3) The persons mentioned in subsection (2) are—
(a) the child’s parent or guardian or, if the child is in the care of a relevant authority or voluntary organisation, a person representing that authority or organisation,
(b) a registered social worker, or
(c) if no person falling within paragraph (a) or (b) is available, any responsible person aged 18 or over other than an authorised person.
(4) The agreement of persons listed in subsection (3) further to subsection 2(b) should only be accepted where, if it is appropriate, the child has been consulted on whether such agreement should be provided and the authorised person is satisfied those views have been taken into account.
(5) An adult without capacity is not to be treated for the purposes of section [Extraction of information from electronic devices] as being capable of—
(a) voluntarily providing an electronic device to an authorised person for those purposes, or
(b) agreeing for those purposes to the extraction of information from the device by an authorised person.
(6) If a user of an electronic device is an adult without capacity, a person who is not a user of the device but is listed in subsection (7) may—
(a) voluntarily provide the device to an authorised person for the purposes of subsection (1) of section [Extraction of information from electronic devices], and
(b) agreement for those purposes to the extraction of information from the device by an authorised person.
(7) The persons mentioned in subsection (6) are—
(a) a parent or guardian of the adult without capacity,
(b) a registered social worker,
(c) a person who has a power of attorney in relation to the adult without capacity, or
(d) if no person falling within paragraph (a), (b) or (c) is available, any responsible person aged 18 other than an authorised person.
(8) The agreement of persons listed in subsection (7) further to subsection (6)(b) should only be accepted where, if it is appropriate, the adult without capacity has been consulted on whether such agreement should be provided and the authorised person is satisfied those views have been taken into account.
(9) Nothing in this section prevents any other user of an electronic device who is not a child or an adult without capacity from—
(a) voluntarily providing the device to an authorised person for the purposes of subsection (1) of section [Extraction of information from electronic devices], or
(b) agreeing for those purposes to the extraction of information from the device by an authorised person.
(10) In this section and section and [Application of section [Extraction of information from electronic devices] where user has died etc]—
“adult without capacity” means an adult who, by reason of any impairment of their physical or mental condition, is incapable of making decisions for the purposes of subsection (1) of section [Extraction of information from electronic devices];
“local authority”—
(a) in relation to England, means a county council, a district council for an area for which there is no county council, a London borough council or the Common Council of the City of London,
(b) in relation to Wales, means a county council or a county borough council, and
(c) in relation to Scotland, means a council constituted under section 2 of the Local Government etc (Scotland) Act 1994;
“registered social worker” means a person registered as a social worker in a register maintained by—
(a) Social Work England,
(b) the Care Council for Wales,
(c) the Scottish Social Services Council, or
(d) the Northern Ireland Social Care Council;
“relevant authority”—
(a) in relation to England and Wales and Scotland, means a local authority;
(b) in relation to Northern Ireland, means an authority within the meaning of the Children (Northern Ireland) Order 1995 (S.I. 1995/755 (N.I. 2));
“voluntary organisation”—
(a) in relation to England and Wales and Scotland, has the same meaning as in the Children Act 1989;
(b) in relation to Northern Ireland, has the same meaning as in the Children (Northern Ireland) Order 1995.
(11) Subsections (10) and (11) of section [Extraction of information from electronic devices] also contain definitions for the purposes of this section.”
New clause 51—Application of section [Extraction of information from electronic devices] where user has died etc—
“(1) If any of conditions A to C is met, an authorised person may exercise the power in subsection (1) of section [Extraction of information from electronic devices] to extract information stored on an electronic device from that device even though—
(a) the device has not been voluntarily provided to an authorised person by a user of the device, or
(b) no user of the device has agreed to the extraction of information from the device by an authorised person.
(2) Condition A is that—
(a) a person who was a user of the electronic device has died, and
(b) the person was a user of the device immediately before their death.
(3) Condition B is that—
(a) a user of the electronic device is a child or an adult without capacity, and
(b) an authorised person reasonably believes that the user’s life is at risk or there is a risk of serious harm to the user.
(4) Condition C is that—
(a) a person who was a user of the electronic device is missing,
(b) the person was a user of the device immediately before they went missing, and
(c) an authorised person reasonably believes that the person’s life is at risk or there is a risk of serious harm to the person.
(5) The exercise of the power in subsection (1) of section [Extraction of information from electronic devices] by virtue of this section is subject to subsections (2) to (8) of that section.
(6) Subsections (10) and (11) of section [Extraction of information from electronic devices] and subsection (9) of section [Application of section [Extraction of information from electronic devices] to children and adults without capacity] contain definitions for the purposes of this section.”
New clause 52—Code of practice—
“(1) The Secretary of State must prepare a code of practice containing guidance about the exercise of the power in subsection (1) of section [Extraction of information from electronic devices].
(2) In preparing the code, the Secretary of State must consult—
(a) the Information Commissioner,
(b) the Scottish Ministers,
(c) the Welsh Government,
(d) the Department of Justice in Northern Ireland,
(e) the Victims Commissioner,
(f) the Domestic Abuse Commissioner,
(g) any regional Victims Champion including the London Victims Commissioner,
(h) persons who appear to the Secretary of State to represent the interests of victims, witnesses and other individuals likely to be affected by the use of the power granted in subsection (1) of section [Extraction of information from electronic devices], and
(i) such other persons as the Secretary of State considers appropriate.
(3) After preparing the code, the Secretary of State must lay it before Parliament and publish it.
(4) The code is to be brought into force by regulations made by statutory instrument.
(5) The code must address, amongst other matters—
(a) the procedure by which an authorised person must obtain and record confirmation that a device has been provided voluntarily;
(b) the procedure by which an authorised person must obtain and record confirmation that agreement has been provided for the extraction of specified information, including the information which must be provided to the user about—
(i) how long the device will be retained;
(ii) what specific information is to be extracted from the device and why, including the identification of the reasonable line of enquiry to be pursued and the scope of information which will be extracted, reviewed and/or retained;
(iii) how the extracted information will be kept secure;
(iv) how the extracted information will or may be used in a criminal process;
(v) how they can be kept informed about who their information is to be shared with and the use of their information in the criminal process;
(vi) their right to refuse to agree to provide their device and/or to the proposed extraction in whole or in part and the potential consequences of that refusal; and
(vii) the circumstances in which a further extraction may be required, and what will happen to the information after the case has been considered;
(c) the different types of extraction processes available, and the parameters which should be considered in defining the scope of any proposed extraction from a user’s device;
(d) the circumstances in which the extraction of information should and should not be considered strictly necessary and proportionate;
(e) the considerations to be taken into account in determining whether there are less intrusive alternatives available to extraction for the purposes of subsection (7) of section [Extraction of information from electronic devices];
(f) the process by which the authorised person should identify and delete data which is not responsive to a reasonable line of enquiry and/or has been assessed as not relevant to the purposes for which the extraction was conducted; and
(g) the records which must be maintained documenting for each extraction or proposed extraction, including—
(i) the specific information to be extracted;
(ii) the reasonable lines of enquiry pursued;
(iii) the basis upon which the extraction is considered strictly necessary, including any alternatives considered and why they were not pursued;
(iv) confirmation that appropriate information was provided to the user and, if applicable, agreement obtained;
(v) the reasons why the user was not willing to agree to a proposed extraction.
(6) A statutory instrument containing regulations under subsection (4) is subject to annulment in pursuance of a resolution of either House of Parliament.
(7) After the code has come into force the Secretary of State may from time to time revise it.
(8) References in subsections (2) to (7) to the code include a revised code.”
New clause 53—Effect of code of practice—
“(1) An authorised person must in the exercise of the power granted under section [Extraction of information from electronic devices] have regard to the code of practice issued under section [Code of practice] in deciding whether to exercise, or in the exercise of that power.
(2) A failure on the part of any person to comply with any provision of a code of practice for the time being in force under section [Code of practice] shall not of itself render him liable to any criminal or civil proceedings.
(3) A code of practice in force at any time under section [Code of practice] shall be admissible in evidence in any criminal or civil proceedings.
(4) In all criminal and civil proceedings any code in force under section [Code of practice] shall be admissible in evidence; and if any provision of the code appears to the court or tribunal conducting the proceedings to be relevant to any question arising in the proceedings it shall be taken into account in determining that question.”
The Parliamentary Under-Secretary of State for the Home Department (Victoria Atkins)
As the Committee will remember, I gave a very quick example of circumstances in which it would be appropriate for the authorised person to use information extracted from a digital device: when a person is missing, it would be appropriate to do that rather than wait for a review of many hours of closed circuit television footage. I hope that has dealt with that part of new clause 49.
New clause 49 also incorporates a definition of “agreement”. In order for authorised persons to exercise the power to extract information from digital devices, device users other than children or adults without capacity must voluntarily hand over their device and agree to the extraction of information. Authorised persons must explicitly ask device users for their agreement. The code of practice will provide guidance on: how agreement is to be obtained by the authorised person; ensuring it is freely given; and how the device user is made of aware of their right to refuse. The code will set out the best practice that authorised persons should follow when obtaining agreement, such as providing a copy of the digital processing notice for the device user to read and sign.
The final change made by new clause 49 is that it would define an adult as a person aged 18 or over, rather than 16 or over, as set out in chapter 3 of part 2. I understand this was not raised by the Victims’ Commissioner, but we have listened, and have thought very carefully about the imposition of that age in the Bill. In setting the age at 16, we were keen to ensure that those aged 16 to 17 were given appropriate control over their personal devices. That is not dissimilar from the position in other legislation, such as the Mental Capacity Act 2005, which recognises the rights of young people aged 16 and 17. However, we note the concerns raised in the debate, and we will reflect on them.
Sarah Champion (Rotherham) (Lab)
May I say how grateful I am that the Minister is clearly in listening mode on this issue? The difference with the Mental Capacity Act 2005 is that it does not define 16 and 17-year-olds as adults. It is that particular word, not the inclusion of that age bracket, that we are concerned about.
Victoria Atkins
I thank the hon. Lady. As I say, we will reflect on the issue.
New clause 50 would provide that, where the user of a device was a child or adult without capacity, their views were sought and taken into account when someone else was making a decision on their behalf regarding the extraction of information from their device. We agree on the point about children. Indeed, clause 37(4) makes an equivalent provision, so we are not sure there is much between us on this point. We rely on clause 37(4) to ensure that the views of the child are taken into account.
We do not, however, agree that it is appropriate to include equivalent provision for adults without capacity. With such people, it is the capacity of the individual user that is relevant, and that is determined on the basis of a case-specific assessment. It is only if, as a result of that assessment, the person is deemed not capable of making the decisions that someone else is asked to make it. Authorised persons using that power will still have to comply with their existing responsibilities under the Mental Capacity Act 2005 and the associated code of practice or equivalent provisions in Scotland and Northern Ireland. We will, however, include guidance and direct authorised persons to the relevant statutory responsibilities in the code of practice.
New clause 52 seeks to expand the list of statutory consultees in respect of the code of practice to include the Victims’ Commissioner, the Domestic Abuse Commissioner and representatives of victims and witnesses, but clause 40 already places a duty on the Secretary of State to consult
“(a) the Information Commissioner,
(b) the Scottish Ministers,
(c) the Department of Justice in Northern Ireland, and
(d) such other persons as the Secretary of State considers appropriate.”
We believe this last line affords sufficient flexibility to capture those other persons listed in new clause 52. I can assure the Committee that we will work closely with the Victims’ and Domestic Abuse Commissioners, and other relevant groups, as we develop the code.
The new clause also lists matters to be addressed in the code of practice. We do not dispute the relevance of many of the matters listed in new clause 52(5), but putting such a list in the Bill is unnecessary. The code needs to be comprehensive and fit for purpose, and it will be prepared in consultation with interested parties and subject to parliamentary scrutiny.
Amendment 94 seeks to provide for independent legal advice for device users. Ensuring that victims are properly supported is a priority for this Government. The code of practice will make it clear that investigators should inform people about the use of the power, and ensure that they are fully aware of their rights. This information will include: why they are asking for agreement, what will happen to the individual’s device, what information will be extracted from the device, how long it may be retained for, and what will happen to any irrelevant material found on the device.
We are aware of the impact that requests for personal information can have on victims of sexual violence, and we believe that individuals should be supported in the process. We are fully committed to giving support to victims of crime, including access to independent sexual violence advisers, who we believe have a role in helping to explain the power to victims; as I have said, we are investing in 700 more of these posts this year.
We are exploring the findings of the sexual violence complainants’ advocate scheme, piloted in Northumbria, as part of the rape review, which will be published shortly. We do not think that chapter 3 of part 2 of this Bill is the right place to address this broader issue about the provision of legal advice to victims and witnesses, given the wider impact across the criminal justice system.
Amendment 115 to schedule 3 seeks to exclude immigration officers from the list of persons authorised to carry out a digital extraction. Immigration officers play a vital role in protecting vulnerable people, particularly those who may be victims of trafficking, and it is important that they are able to obtain information that may be vital in those and other investigations. The power in schedule 3 ensures that all authorities extract information in a consistent way, and put the needs and privacy of the user at the forefront of any request. Any person being asked to provide a device will be made aware of their rights, including their right to refuse.
The hon. Member for Rotherham asked about a parliamentary question that the Under-Secretary of State for the Home Department, the hon. Member for Croydon South, answered. I am told that mobile phones are seized under statutory powers where there is a reasonable belief that evidence of a criminal offence will be found. The subsequent examination of the device will be conducted in forensic conditions, and in such a way as to target only the relevant material. The handset will be retained for as long as is required to support any criminal proceedings before being returned to the owner.
Finally, there is also a Government amendment in this group: amendment 63, which ensures that the definition of the common council of the City of London is used consistently throughout the Bill. The City of London Corporation has both public and private functions, and it is therefore appropriate that public legislation applies to the corporation only in respect of its public functions. Government amendment 63 provides that the reference to the common council relates to
“its capacity as a local authority”,
which brings clause 37 into line with other provisions in the Bill referencing the common council.
To sum up, this is the first time that a clear and consistent approach to the extraction of information from digital devices with the device user’s agreement has been written into primary legislation. The provisions remove legal ambiguity around the practice and, for the first time, enshrine the protections and safeguards that authorised persons must adhere to when exercising that power. It is a significant step forward in driving a consistent approach across the Union for the law enforcement authorities that exercise these powers, and for victims and witnesses in the criminal justice system. Of course, there is more to do outside the Bill in a range of areas, but we are committed to working with victims and survivors and with charities and commissioners to ensure that when implemented, the provisions command the trust and confidence of victims and witnesses. Many of the issues raised in the new clauses can and will be addressed through the code of practice, so I hope that the hon. Member for Croydon Central will feel able to withdraw her amendments and support Government amendment 63 and clauses 36 to 42 standing part of the Bill.
Sarah Jones (Croydon Central) (Lab)
We all agree on the problems here; we have suggested some solutions and the Minister has explained why she is not convinced. I think it would be hard for the Minister not to agree with quite a lot of what Vera Baird said when giving evidence. We will have to come back to some of those new clauses and decide how we vote at an another time.
Given what the Minister said on three points—first, that she would look at the age issue and the definition of an adult; secondly, that there would be a draft code of practice by Report, and that she would incorporate some of the measures we discussed into that; and thirdly, that the rape review will be published soon, and that in it, the Government are looking at work such as that done in Northumbria, and at police training—I am content not to push the amendment to a vote. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 36 ordered to stand part of the Bill.
Clause 37
Application of section 36 to children and adults without capacity
Amendment made: 63, in clause 37, page 31, line 35, after “London” insert
“in its capacity as a local authority”.—(Victoria Atkins.)
This amendment clarifies that the reference in clause 37(11) to the Common Council of the City of London is to the Common Council in its capacity as a local authority.
Clause 37, as amended, ordered to stand part of the Bill.
Clauses 38 to 42 ordered to stand part of the Bill.
Schedule 3 agreed to.
Clause 43
Pre-charge bail
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss the following:
Amendment 95, in schedule 4, page 203, line 33, leave out
“If it is reasonably practicable to do so”
and insert
“Unless there is an exceptional reason not to”.
Amendment 96, in schedule 4, page 203, line 38, at end insert—
“(4AA) If it is reasonably practicable to do so, the investigating officer must consider the personal situation and the needs, as they appear to the investigating officer given all the circumstances of the case, of the alleged victim (if any) of the relevant offence on—
(a) whether any of the conditions that are relevant conditions should be varied under subsection (1), and
(b) if so, what variations should be made to those conditions.”
Amendment 97, in schedule 4, page 203, line 40, at end insert “and (4AA)”.
That schedule 4 be the Fourth schedule to the Bill.
New clause 54—Offence of breach of conditions of pre-charge bail—
“(1) The Police and Criminal Evidence Act 1984 is amended as follows.
(2) After Section 37 insert—
“37ZA Offence of breach of conditions of pre-charge bail
(1) Where a person has been arrested and released on pre-charge bail under subsection 37(7), that person commits an offence if they breach any condition attached to that pre-charge bail.
(2) A person guilty of an offence under this Section will be liable on summary conviction to a fine not exceeding level 3 on the standard scale.””
Sarah Jones
The full package of these reforms will be named “Kay’s law” in memory of Kay Richardson, who was murdered by her ex-partner following his release under investigation despite evidence of previous domestic abuse. No conditions were imposed and the police gave Martin the keys back to the home he had shared with Ms Richardson. Martin let himself into the house and waited for Ms Richardson, who was 49, before attacking her with a hammer and strangling her. Kay’s mother Audrey Richardson said:
“They might as well have gone and opened the door for him”.
I think we will all want to keep in mind Kay and her family, and all victims of perpetrators who have caused harmed while on RUI, as in Kay’s case, or while continually in breach of bail conditions.
We are all largely pleased with the provisions on pre-charge bail, in that they reverse what amounted to mistakes made in the 2017 reforms, but it is important, if we want to achieve justice that is fair and efficient, that it comes alongside the Government investing in every part of our criminal justice system and tackling some of the many challenges that it faces.
To set the context, the reforms pursued by the Government in 2015 to 2017 introduced the presumption against the use of pre-charge bail. These reforms also introduced strict time limits on the use of pre-charge bail. They were designed to reduce both the numbers of individuals subject to, and the average duration of, pre-charge bail. That was supposed to address concerns that unconvicted individuals were being subjected to pre-charge bail conditions for long periods of time without due process.
The House of Commons Library says:
“There is no official data about who is released from police custody and how they are released. However, data obtained from various freedom of information requests suggest that the number of suspects released on pre-charge bail fell substantially following the 2017 reforms.”
The use of RUI
“increased rapidly as a result.”
A BBC investigation found that in one three-month period, 12 forces released more than 3,000 suspects of violent crime, murder, rape and sexual offences. Officers use RUI when they want more time to gather evidence and when the preconditions for pre-charge bail have not been met. There is no requirement for RUI suspects to report to the police, and the police have no power to place conditions on their movements or activities—although some RUI suspects will voluntarily attend further questioning at the request of the police. There are no time limits within which officers must conclude their investigations against RUI suspects and the police are under no obligation to keep them informed about the progress of their investigation.
Many stakeholders from across the criminal justice system have been critical of these 2017 reforms. The use of RUI, particularly in cases involving violent and sexual offences, puts vulnerable victims at risk because pre-charge bail conditions are not imposed on suspects. There are also concerns that the rights of RUI suspects are being undermined. Investigations against RUI suspects, on average, take longer and the police are not required to inform suspects about their progress while investigations are ongoing.
Zoë Billingham of Her Majesty’s inspectorate of constabulary said in December 2020, on the police and Crown Prosecution Services’ response to the changes, that the full consequences
“had not been thought through”.
The report said that of 140 cases examined, in 62 cases a suspect was released under investigation when bail with restrictions should have been used. The inspector said:
“These cases included domestic abuse, sexual offences and offences against children—serious crimes. This is extremely worrying, especially for the victims in these cases, who had no bail conditions in place to keep them safe.”
The report found one case where a suspected paedophile was arrested and, after three months, the bail restrictions lapsed. This was because delays in getting digital evidence from the suspect’s devices meant police feared they would fall short of meeting the threshold to get bail extended. The report also raised particular concerns about domestic abuse cases. Billingham said:
“It has a profound effect on victims’ confidence that they are being taken seriously and staying with cases that can drag on for months and years.”
We welcome the changes, but have suggested some amendments; I will talk about amendment 95 first. Part 3 of schedule 4 would impose a duty on officers to seek the victim’s views on whether pre-charge bail or street bail should be applied, and their views on what conditions should be attached, when it is reasonably practical to do so. Amendment 95 simply strengthens that wording, so that the views of victims must be sought by the investigating officer when setting pre-charge bail conditions, not
“if it is reasonably practical to do so”,
but unless there is an exceptional reason not to do so; it tilts the balance in favour of seeking the views of a victim. It is vital that there be greater consideration of the needs of the victim in setting bail conditions, to protect them and ensure that they are able to continue through the criminal justice process safely and with full confidence.
Amendments 96 and 97 would ensure that the personal situation and needs of the victim, as well as all the circumstances, are taken into account to ensure that any variations necessary to the conditions can be put in place to protect the victim. The needs and situation of the victims must be taken into account when setting pre-charge bail.
It has, sadly, often been the case that victims—largely female victims of rape, domestic abuse or sexual exploitation—are hesitant to provide complete evidence of their personal situation or needs due to fear that the perpetrator will find out and put them, or their family, at risk. It is not right that victims do not feel that the police can protect them enough. Pre-charge bail can be broken and, as this is not a specific criminal offence, the custody clock can currently be run down by continuous breaches of pre-charge bail conditions.
I will talk about the measures in the specific context of domestic abuse, which represents one third of violent crime recorded by the police, and approximately one fifth of all adult homicides—half of all adult homicides when the victim is female. It affected 2.3 million adults in the last year. The criminal justice system still has a long way to go in bringing perpetrators to justice and in providing a consistently good response for domestic abuse survivors.
Over the past couple of years, there has been a notable decline in the number of offences prosecuted by the CPS relating to domestic abuse, despite there being no reduction in prevalence and an increase in offences recorded by the police. Between April 2014 and March 2020, the annual number of domestic abuse-flagged cases referred to the CPS by the police fell by 37%, with similar declines in prosecutions and convictions. In the year ending March 2020, only 9% of domestic abuse-related crimes recorded by the police led to a charge or summons, and the CPS convicted 47,000 domestic abuse cases, compared to 758,000 police-recorded offences relating to domestic abuse.
As incidents of domestic abuse often take place in private, the complainant may be the only witness. CPS guidelines for prosecutors state that:
“Giving evidence may be very difficult for them, or may cause additional difficulties (for example, fear of reprisals; safety of their children; increased family pressures or serious financial repercussions; fear of being 'outed'; fear of a lack of support by the criminal justice system, or specialist support organisations; or, an emotional attachment or loyalty towards the defendant), leading to uncertainty about the course of action they should take.”
Sarah Champion
I support the amendments that my hon. Friend is putting forward, because the intention is to put the victim at the absolute centre of all of this. Does she agree that we also need the resources to enable the police to back that up, and to enable the voluntary sector and social workers to put in place the support that she is talking about?
Sarah Jones
My hon. Friend is absolutely right. Nearly 5,000 women are turned away from refuges each year, because the support just is not there and so much provision has been taken away. That applies across all kinds of different aspects of the support that should be in place.
It is well known that separation and reporting to police are periods of heightened risk in abusive relationships, and the effectiveness of bail conditions can be critical. The Centre for Women’s Justice has said that it hears from frontline women’s services that breaches of bail are extremely common, and that women often cease to report them once they find that nothing is done by the police after their initial reports. Some victims withdraw support for prosecution in such situations and sometimes disengage from the domestic abuse service. In its briefing, the Centre for Women’s Justice says that
“in the worst case scenarios women feel so unprotected that they reconcile with suspects and return to abusive relationships, because the separation has increased the dangers they face in the short term. As the only power available to police following a breach of pre-charge bail is to arrest the suspect and release him again on bail, officers sometimes say there is nothing they can do. Police often don’t contact a victim until some time has passed since the reported breach, and many breaches are by phone or electronic communications. In these situations there is little purpose in arresting and releasing the suspect on bail again, and it is understandable that officers take no action.”
New clause 54 has been tabled to probe the Minister and to seek some clarifications and assurances on a number of problems that the police deal with and that have been brought to my attention by several police organisations. New clause 54 would make a breach of any condition of pre-charge bail, such as not being allowed to go to someone’s house, to turn up at the school gates or to visit a certain restaurant, a criminal offence. That would prevent the custody clock being run down by purposeful breaches of bail, and it would particularly protect victims in domestic abuse cases, so that abusers are less likely to breach conditions by returning to the home of the victim. If the enforcement around breach of bail could be strengthened, it would likely drive down the number of offenders who breach bail conditions, and it would allow the police to focus on the worst offenders. It is a straightforward amendment, which was drafted with victims in mind but was recommended to us, as I say, by senior members of the police.
The Police Superintendents Association has spoken to us about making the breach of pre-charge bail conditions a stand-alone criminal offence. Paul Griffiths was clear about this in the evidence session. He said that the PSA has concerns about breach of police bail and that
“bail conditions are imposed and then suspects continue to breach those bails. Of course, those bail conditions would be there to protect victims or even the wider public. It could be extremely useful to us for that to be an offence in its own right. I note that there is an introduction to prevent the start of the custody clock, which was another risk that we thought may come from somebody who would consistently breach their bail, risking an impact on the investigation custody time limits for other aspects for which they were under investigation. The Bill suggests that three hours is sufficient to deal with that breach of bail, and that seems appropriate, but it could be beneficial to the police service for that to be an offence in its own right in terms of processing individuals for such breaches.”––[Official Report, Police, Crime, Sentencing and Courts Public Bill Committee, 18 May 2021; c. 30-31, Q45.]
Could the Minister give us her views on that opinion and on the problem that we are seeking to overcome?
I appreciate that part 5 of schedule 4 would make amendments to the functions of the PACE clock, as it would suspend a detention clock for three hours when someone is arrested for failure to comply with bail. The amendments are supposed to prevent suspects from running down their PACE clock by repeatedly breaching bail. However, the view of many senior police whom I have met is that it is not long enough and that they would prefer the breach of pre-charge bail conditions to be a separate offence. I am aware that the Minister might say that to make the breach of pre-charge bail conditions a stand-alone offence could create an imbalance whereby the breach of post-charge bail conditions is not a stand-alone criminal offence, but I would appreciate her giving her views on how we can tackle this issue.
The Centre for Women’s Justice had a slightly different proposal, which is a two-stage process whereby a breach of bail conditions triggers a presumption that the police will impose a domestic abuse protection notice and apply for a domestic abuse protection order. Once the order is in place, a further breach would be a criminal offence, so it creates a “two strikes and you’re out” process. Perhaps the Minister will give us her view on that.
I reiterate that we very much welcome these much-needed reforms to pre-charge bail. Can the Minister talk us through what plans the Government have to monitor the changes to ensure they are effective and how they will ensure that the data on how each police force deals with suspects after they have been released from custody is clear and can be sufficiently reviewed so that victims across the country can be better protected?
Sarah Champion
I am in the unusual position of having found out that things were going wrong with pre-charge bail at the same time that the Minister did. We were both in Rotherham with the National Crime Agency, to learn more about how it was investigating past cases of child sexual exploitation. There was a throwaway line by the officer about how things had got a lot more complicated since pre-charge bail was brought in through the Police and Crime Act 2017, and I have to say that I did not know anything about it.
Pre-charge bail does exactly what it says. Before 2017, the police were able to put in place restrictions on a person before they were charged, such as “You cannot leave the country” or “You cannot go within 100 yards of the victim.” This is really important in a place such as Rotherham, because the victims—the survivors—and the perpetrators are sometimes both still living on the same street, or their children may still be going to the same school, but also because a number of the perpetrators are dual nationality and there is a flight risk. The problem the police had was that there was a window of 28 days during which they had to make the charge, and with child abuse cases, particularly past child abuse cases, it can take months if not years to gather all of the evidence they need to make that charge. We found in Rotherham that the police were having to sit on their hands and hope that the perpetrator did not either flee or—as unfortunately happened in a number of well-documented cases—engage in intimidation. There was a lot of intimidation of victims and witnesses because the police were not, for example, able to put distance restrictions on the then alleged perpetrators.
I really welcome that these restrictions are back. I do not want to reflect on the omission in the intervening years—the fact that they were not in place. I am grateful that the police were creative and used release under investigation, because that was really all that they had, but it was not good enough, and it is not good enough. I am proud to support my hon. Friend’s amendments on this topic, which I think strengthen the Bill and make it even more victim-centred. However, I thank the Minister for listening to the women of Rotherham, the National Crime Agency, and all the other forces up and down the country. These events demonstrate to me that we make legislation with the best of intentions, but sometimes the unintended consequences are severe, so I am grateful that the Government have recognised that mistake and redressed it through this Bill.
What I would say, though—I have to say something, Minister—is that child abuse cases and many sexual offence cases are, by necessity, resource-heavy. If she can do more to put resources within the reach of officers so that they can speed up these cases as much as possible in order to eliminate the ongoing trauma that survivors go through, that would be deeply appreciated.
Victoria Atkins
Before I explain the clauses, we should remind ourselves why the 2017 Act was passed. Colleagues may remember that in the first half of the past decade, there were several very high-profile investigations into very serious allegations of child sexual abuse and exploitation. There was an understanding that in some cases—not all—we had to look at bail conditions and so on to ensure that these complex investigations were carried out as efficiently and quickly as possible. That was the driving sentiment behind the 2017 legislation. We have listened to the police and to victims and survivors and charities that work with them. We want to improve the efficiency of the pre-charge bail system and encourage the use of bail where necessary and proportionate.
The hon. Member for Croydon Central explained the background to this clause and schedule and its reference to Kay Richardson, whose murder has already been described. When we scrutinised the Domestic Abuse Bill, I said that the experiences of individual victims and their families were behind many of the measures introduced to improve court processes, for example, and to help with services and refuges. This is such an example. Colleagues will understand that we wanted to take time to work through the measures in this Bill and this schedule in order to ensure they were as effective as possible in helping victims. It could not be included in the Domestic Abuse Bill, but I am pleased it is in this Bill.
The motivation behind Kay’s law is to provide better protection for victims through the anticipated increased use of pre-charge bail and to refocus the system, with victims at its heart. The hon. Lady’s amendments and new clause allow us to discuss two significant elements of this reform package: the duty to seek views from alleged victims on pre-charge bail conditions and the consequences for a suspect who breaches those conditions.
As with other measures in the Bill, our reforms to pre-charge bail put victims at the centre of the changes we are making, to help ensure that they are better protected and involved in decisions that affect them. The views of victims on bail conditions and how these can best safeguard them are vital to enable the police to build a full picture of all the relevant circumstances.
I hope we can all agree that this must be balanced against the need for operational flexibility within policing and the need to balance victims’ rights against those of the suspect. While I would expect officers to seek the views of victims in the vast majority of pre-charge bail cases, that may not always be practicable. For a variety of reasons, a victim may be uncontactable by the police. The duties imposed by the legislation must be proportionate within the investigation. It would not be right, and could be disproportionate, to require officers to hold a suspect in custody longer than appropriate until that contact is made. The current wording goes far enough to ensure that the duty is followed in all cases where it is practical to contact the victim.
We are not of the view that the Bill should be amended to require that officers discharge this duty in every case, unless there are exceptional circumstances. We need this change to work in practice for the benefit of victims and the wider public. I make it very clear that this is the expectation within this legislation, but we have to reflect operational practicalities and the balancing act of ensuring the rights of both victims and suspects.
Amendments 96 and 97 seek to provide that the personal circumstances of the victim are taken into account where bail conditions are varied. I agree with this view but believe that the drafting of the Bill as is, coupled with the current legislation in this area, already provides for this. When imposing or varying conditions, custody officers must take into account a number of considerations, including the need to ensure that the suspect does not interfere with witnesses or obstruct the course of justice, and that will include consideration of the victim’s circumstances and needs. The duty set out in the Bill also requires further consideration by the investigating officer to determine which of the bail conditions are relevant conditions—conditions that relate to safeguarding the victim. I anticipate that that will also require consideration of the victim’s personal circumstances and needs as part of this overall assessment.
Finally in this group, new clause 54 aims to create a criminal offence of breach of pre-charge bail conditions. I understand that there is a long-held concern about the sanctions available when a suspect on pre-charge bail breaches their bail conditions. We should remember that officers will, in the first instance, consider whether the behaviour or actions that breached the conditions amount to a separate offence, such as harassment or intimidation. Equally, there are civil orders that can be put in place, breaches of which constitute an offence. I am thinking of a sexual risk order, a stalking protection order and when in due course they are piloted, the new domestic abuse protection orders. I also have concerns around creating an offence without an understanding of the number of people that it would be likely to affect. I am pleased to say that data collection in this area is being improved, but we do not yet have a full picture of what the effects of such an offence are likely to be on suspects, victims and the wider criminal justice system.
To support the increased data collection around breaches, the Bill includes provision for a pause on the detention clock following arrest for breach of conditions to encourage the police to arrest in those instances. The issues raised by the amendments are all ones that we would expect the College of Policing to address in the statutory guidance provided for in the new section 50(b) of the Police and Criminal Evidence Act 1984. In the longer term, across the board of Home Office policy, we will keep under review the case for any additional sanction where pre-charge bail conditions are breached as the reforms provided for in the Bill settle in and we have better data on which to make a decision. For now, however, I invite the hon. Member to withdraw her amendment.
Question put and agreed to.
Clause 43, accordingly, ordered to stand part of the Bill.
Alex Cunningham (Stockton North) (Lab)
On a point of order, Mr McCabe. The Opposition have an opportunity to respond to the Minister about whether to withdraw the new clause.
The Chair
I think you are just one step ahead of me, Mr Cunningham. We now come to amendments 95 to 97 for schedule 4, which have already been debated. Do you wish to press the amendments?
Sarah Jones
I will not press the amendments on the basis of what the Minister said on those ones. I was also pleased to hear that there is going to be better data gathering—she might come to that in a minute, I am not sure—on whether it should be a separate offence. I understand the point that we need more data about what is happening before we take a view on that. I therefore ask that the Minister keep an eye on that situation as the data emerges and keep an eye on the fact that the police are concerned about that.
Schedule 4 agreed to.
Clause 44
Arranging or facilitating commission of a child sex offence
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss the following:
New clause 37—Retrial for child sexual offences—
“(1) Schedule 5 of The Criminal Justice Act 2003 is amended as follows.
(2) After paragraph 14, insert—
‘Sexual assault of a child under 13
14A An offence under section 7 of the Sexual Offences Act 2003.’
(3) In paragraph 15, leave out from ‘where’ to the end of the paragraph.
(4) After paragraph 15, insert—
‘Sexual activity with a child
15A An offence under section 9 of the Sexual Offences Act 2003.
Causing or inciting a child to engage in sexual activity
15B An offence under section 10 of the Sexual Offences Act 2003.
Indecent assault against a child under 16
15C An offence under section 14 or 15 of the Sexual Offences Act 1956 where it is alleged that the assault was against a child under 16 by a person over 18.’”
New clause 39—Aggravated child sexual offences—
“(1) The Sexual Offences Act 2003 is amended in accordance with this section.
(2) In section 14—
(a) in subsection (4), at the beginning, insert ‘Subject to subsection (5),’; and
(b) after subsection (4), insert—
‘(5) If one or more of the following applies, a person guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for life—
(a) the child has a mental impairment at the time of the offence;
(b) the child is subjected to inhuman or degrading treatment in connection with the offence;
(c) the child dies as a result of physical harm suffered in connection with the offence;
(d) as a consequence of the offence the child is forced to engage in sexual activity with another child;
(e) as a consequence of the offence the child is forced to engage in sexual activity with a family member;
(f) more than 500 pounds were paid in aggregate for the commission of the offence or related offences.’
(3) In section 48—
(a) in subsection (2), at the beginning, insert ‘Subject to subsection (3),’; and
(b) after subsection (2), insert—
‘(3) If one or more of the following applies, a person guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for life—
(a) the child has a mental impairment at the time of the offence;
(b) the child is subjected to inhuman or degrading treatment in connection with the offence;
(c) the child dies as a result of physical harm suffered in connection with the offence;
(d) as a consequence of the offence the child is forced to engage in sexual activity with another child;
(e) as a consequence of the offence the child is forced to engage in sexual activity with a family member;
(f) more than 500 pounds were paid in aggregate for the commission of the offence or related offences.’”
New clause 40—Communication for the purpose of causing or inciting sexual exploitation of a child—
“(none) Section 48 of the Sexual Offences Act 2003 (Causing or inciting sexual exploitation of a child) is amended by the insertion of the following subsection after subsection (1)—
‘(1A) A person commits an offence if he communicates with another person, whether in person or remotely via electronic communication through the internet or other telecommunications, for the purpose of committing an offence under subsection (1), regardless of whether the sexual exploitation takes place.’”
New clause 41—Causing or inciting a child under 13 to engage in sexual activity—
“(1) Section 8 of the Sexual Offences Act 2003 (Causing or inciting a child under 13 to engage in sexual activity) is amended in accordance with sections (2) and (3).
(2) In paragraph (1)(a), leave out ‘to engage in an activity’ and insert ‘, having communicated with B by any means, to engage in an activity in any part of the world’.
(3) After subsection (1), insert—
‘(1A) For the purposes of this section “by any means” includes, but is not limited to—
(a) in person, and
(b) remotely via electronic communication through the internet or other telecommunications.’”
Sarah Champion
I will start with new clause 37 on extending double jeopardy. I start with a quote from Dean Radford in the Metro in 2019,
“Like many young boys who grew up with a dream of becoming a footballer, the sport was my whole life. It was the be-all and end-all. I didn’t even want to think about not being offered a contract. That dream looked like it could become reality when I made it to Southampton Football Club at 13 years old. They had produced some of my favourite football heroes and I was given the amazing opportunity to train with boys like myself, who wanted to be the next big thing in football. All of this came to a halt when I was subjected to sexual abuse at the hands of a coach I trusted and looked up to.”
In the 1980s, Radford was one of six boys allegedly abused by their football coach and scout Bob Higgins at Southampton football club. Higgins was acquitted of all charges in the ’90s and continued in same line of work. In 2016 the football abuse scandal rightly erupted, and more than 100 people came forward in relation to Higgins. Higgins was convicted of 45 counts of indecent assault involving 23 victims over a period from 1971 to 1996.
The Criminal Justice Act 2003 sets out exceptions to the law of double jeopardy if the offences are considered “severe” or “serious”. Murder, kidnapping, serious drug offences, serious criminal damage offences, and penetrative child sex offences all come under that definition. The schedule does not exempt any offences relating to non-penetrative sexual assault or sexual activity with a child. Due to double jeopardy exemptions not applying in sexual assault or indecent assault, the original six complainants against Higgins from the 1990s were prevented from having their case reheard. I find it shocking that the law does not deem non-penetrative child abuse as serious or severe enough for retrial.
The Government is right to acknowledge that extending the list of qualifying offences is not something to be undertaken lightly, but any form of child sexual abuse, whether it involves penetration or not, should be considered a serious or severe offence. Survivors do not differentiate between the severity of different forms of sexual abuse; they do not have a hierarchy. They judge it by the impact on their lives, which tends to be both devastating and lifelong. Abuse of a child should be the very definition of a serious crime, regardless of whether penetration has taken place. I return to the quote from Dean Radford in 2019. He says:
“even though Higgins is in jail right now, he spends no time in his cell for the abuse he [allegedly] subjected us to. He sits in jail knowing he got away with it when it comes to us. He took away years of my childhood and ruined my adult life, without paying any consequences for it. There isn’t one day that I don’t feel sick to the stomach, or sleep through one night without waking up and thinking of what he did to me.”
New clause 37 would amend schedule 5 to the Criminal Justice Act to include child sex offences set out in sections 7 to 10 of the Sexual Offences Act 2003 and sections 14 and 15 of the Sexual Offences Act 1956. Will the Government at the very least commit to a review of the law in this area? It has been 20 years since the Law Commission conducted such a review. The proposed changes to the double jeopardy laws have received widespread support, including from the Victims’ Commissioner, the all-party parliamentary group for adult survivors of child sexual abuse, and over 15,000 people who have signed a change.org petition.
The case of Dean Radford, who was abused by Bob Higgins, is just one that devalues the fairness that should exist in our criminal justice system. Higgins was convicted of abusing a total of 24 boys, but the police, Crown Prosecution Service and clearly the criminal jury and judge appreciated the veracity and importance of Radford’s evidence, because as he was a witness at Higgins’ trial in respect of the abuse—but he did not get the conviction in relation to Higgins’ abuse of him.
Bambos Charalambous (Enfield, Southgate) (Lab)
My hon. Friend is making an excellent speech. My constituent Ian Ackley was also abused, by Barry Bennell. He was one of the first whistleblowers on the sexual abuse of young men by football coaches, but because he was one of the first, he did not get the support that others got subsequently. As a result, he was encouraged to allow certain offences not to be pursued as much as he would have liked. Does she think that, with additional support, that would change—and how does that relate to her new clause?
Sarah Champion
My hon. Friend knows that I have the great privilege of knowing and working with Ian. He is a remarkable survivor, who does everything he can both to prevent and to seek justice for child abuse. The problem in a lot of these cases is that the abuse happened in the past. As technology has moved forward—in the use of DNA, for example—the evidence available now will be so comprehensively different from that available to those brave enough and successful enough to try to get a case to court in, say, the ’70s or ’80s, that not to allow double jeopardy in the case of child abuse seems a really poor and morally reprehensible decision. We have the opportunity to change that now for these specific cases.
As I said, the last review into double jeopardy was conducted 20 years ago by the Law Commission. Since then, the disclosure in 2017 of abuse by Jimmy Savile and in 2016 of abuse within football, and disclosures in other parts of society have changed the societal landscape so radically that I ask the Minister to consider at the very least initiating such a review.
I will end with a question that I put to the Victims’ Commissioner:
“Non-penetrative child abuse offences are not seen as serious crime; therefore, they do not fall under the double jeopardy rule. Should they be?”––[Official Report, Police, Crime, Sentencing and Courts Public Bill Committee, 20 May 2021; c. 113, Q178.]
Her answer, in a word, was yes. I urge the Minister, if she will not accept the new clause, to consider a review into this important topic, which is widely supported by the public and a number of bodies.
I will now speak to new clauses 39, 40 and 41 together, while giving a little bit more detail on each one. They all relate to online sexual abuse of children. It might seem silly to say, but people seem to see online abuse as not as severe as abuse in a room, which is nonsense, because online abuse is a child being abused; they are just not in the same room as the abuser. I have to put a health warning on some of the examples that I will give, but I need to give them to explain. Hopefully no one in this room has any knowledge about what is going on out there on the internet, but unfortunately some of us work in this field and so do know. It is pretty chilling, hence my earlier attempt to put “trauma” into the police covenant.
I have worked really closely on these new clauses with the International Justice Mission, which is a fantastic organisation.
Sarah Champion
The Minister is nodding. The IJM is leading the way in working collaboratively with international justice departments, police departments and local voluntary organisations around the world. It gave me one example from its recent work in the Philippines, where it has been spending a lot of time. Recently, Philippines police rescued a three-month-old baby in an operation to free children from online sexual exploitation, and weeks later they brought a two-year-old to safety. This is what we are talking about when we talk about online abuse.
The International Justice Mission reports that children it has helped to rescue have been abused by family members. It has been supporting children who have, for example, contracted sexually transmitted diseases as a result of their abuse. Online sexual exploitation includes creating, possessing or distributing child sexual exploitation material such as photos or videos. Traffickers livestream the exploitation to satisfy the online demand of child sex offenders paying to direct the abuse in real time. That crime has been growing internationally, particularly during the covid pandemic, as online offenders have been at home with greater access to the internet and with fewer eyes on them, while victims have been locked into the same environment as their traffickers.
The National Crime Agency has stated its belief that the UK is the world’s third largest consumer of livestreamed abuse. That means that people here are sat in their homes directing the abuse of a child in another country. We must strengthen our criminal legal framework for apprehending those offenders in the UK. They may not physically not carry out the act, but they are directing it, and as far as I am concerned, that is as good as.
The International Justice Mission research shows a trend of relatively lenient sentencing for sex offenders in the UK convicted of abusing children in the Philippines, for example. Offenders serve on average only two years and four months in prison, even though they spent several years and thousands of pounds directing the sexual abuse of children. Those sentences do not represent justice for the survivors and, probably just as important, they do not deter the perpetrators. Prevention is vital, but a framework must be in place to give law enforcement the tools they need to act effectively.
I welcome some of the changes in the Bill, which will really help to deal with the problem, including clause 44 and the positive shifts on sentencing for those convicted of arranging or facilitating sexual abuse. We could go further simply by including online offences.
Sarah Jones
I cannot really argue with the points my hon. Friend makes, which seem completely correct. At the bottom of my road was the Shirley Oaks home, which was the scene of massively severe child abuse decades ago. Victims are still coming forward and being compensated for it. The internet now makes it possible for huge numbers of people to be involved in that kind of awful activity, so it is even more important not only that we catch up and stop seeing online offences as different criminal offences, but that we ensure that our response to that crime and our sentencing are such that we can stem the tide. We need to go even further, because that kind of abuse is so widely available that perpetrators can abuse children in any country around the world.
Sarah Champion
My hon. Friend makes absolutely the right point. I am talking about UK offenders abusing children internationally, but hon. Members, particularly the Minister, will also be very aware of the rapid escalation of abuse of UK children through online means.
I remember when I first started to research the issue. Simon Bailey, the National Police Chiefs’ Council lead for child protection, said, “Sarah, what you need to understand is that when a family is sat down watching ‘Antiques Roadshow’ on a Sunday night, and the six-year-old is there playing on their iPad, they could be being groomed and abused in the same room as the parents, and the parents just don’t understand that.” It always chills me. If I may deviate very slightly, Chair, it frustrates me enormously that the Government’s legislation for mandatory relationship education for all children from primary school age, which should have been introduced in September, still has not been brought forward. We have to address that because covid has really escalated the abuse faced by children in this country and internationally.
Alex Cunningham
It is a pleasure to serve under your chairmanship, Mr McCabe, and I do recognise that you know what you are doing. I tend to have a big mouth at times, and I am often the first one to jump in, maybe a little bit prematurely.
I pay tribute to the Clerks of this Committee, just as my hon. Friend the Member for Croydon Central did. We all know that their professionalism is first class, but my greatest admiration is for their patience, which they have had to demonstrate daily in helping us prepare for this particular Bill. I also apologise to you, Chair, and to the Minister, the hon. Member for Louth and Horncastle, that I was a couple of minutes late to the Committee this afternoon. I gather that the Minister mentioned that she is going to address the issue of 16-year-olds being designated as adults in clause 36 of the Bill.
I am sure that Members on both sides of the Committee will join me in paying tribute to my hon. Friend the Member for Rotherham for the tremendous amount of dedicated work she has done on child exploitation since arriving in this House. Her experience and ability to pull together Members from across the House not just to champion the rights of children but to help educate us on what is happening in our society, is admirable to say the least. Today, she has finally had that most important opportunity: the chance to propose a series of amendments to legislation to help address some of those issues and, above all, better protect young people from the predators who would ruin their lives.
As Members will have seen, we are supportive of what the Government are trying to do in this space, but it is important that we do not lose this opportunity to strengthen this work in the best interests of our children and young people. We hope that Ministers will remain in listening mode, ready to adopt the revisions that we are suggesting, in relation to not just clause 44 but the following clause 45. There is very little that I can add to the detail outlined by my hon. Friend, so I will address clause 44 and new clauses 39 to 41 in relatively brief fashion.
As has been said, clause 44 addresses the need to strengthen section 14 of the Sexual Offences Act 2003, with subsection (2) extending the offence so that it covers acts preparatory to the offences in sections 5 to 8 of that Act: among other things, the rape of a child under 13, assault of a child under 13 by penetration, and causing or inciting a child under 13 to engage in sexual activity. The proposed sentence changes are to be welcomed as a step in the right direction, and the new clauses proposed by my hon. Friend are designed to bolster what the Government are trying to achieve while, more importantly, demonstrating a much tougher approach to those who would commit the most heinous of crimes against children.
As outlined by my hon. Friend the Member for Rotherham, new clause 39 will introduce aggravated offences to cover the most serious cases such as those involving particularly degrading treatment of a child, or where a family member or the family are involved in the contact abuse. This reflects landmark legislation that has been introduced in Australia, as my hon. Friend has set out in more detail. Each of the aggravating factors listed in this new clause—I am pleased that my hon. Friend read them out—is an example of the most depraved and horrifying offending that can be imagined. We strongly believe that these instances of extreme abuse and exploitation should be captured in legislation, and I am sure the Government agree that offending of this nature needs to feel the full force of the law.
New clause 40 will criminalise online communications or activity that are intended to enable sexual abuse and exploitation. As abuse moves online, it is so important that we ensure our legislation keeps place with emerging criminal activities so that these abusers are still held to account for their crimes. This new clause will address the initial steps taken by the sex offender who is intent on committing an offence, and will ensure that law enforcement has a framework through which it can tackle this horrendous behaviour at the earliest point possible.
Finally, new clause 41 will make it clear that offences of inciting, arranging, or facilitating child sexual abuse can take place in person or online, in the UK or in any other part of the world. My hon. Friend the Member for Rotherham spoke of the important work of the International Justice Mission. As she said, the IJM’s teams in the Philippines work with local and international law enforcement to address situations in which sex offenders pay to direct and livestream sexual abuse of Filipino children. Sadly, and to our shame as a nation, it is often sex offenders in the UK who are driving the demand for such abuse. The National Crime Agency believes that the UK is the third-largest consumer of livestreamed abuse in the world. The harm that the demand causes cannot be overstated. Many of the children whom IJM has assisted are very young: around half were under 12 years of age when they were helped to safety. The severity of the harm caused by online offenders here in the UK must be recognised.
Currently, UK offenders who directed and paid for the livestreamed sexual abuse of Filipino children will serve an average of just two years and four months in prison. Are the Government content with that? I would hope not. The new clauses will go some way to addressing the injustice and will help hold UK online offenders accountable for the abuse and trauma they cause. We need the abusers to know that they cannot hide behind their computer screens and access extreme material without knowing that when they are caught—modern technology is improving the chances of that tremendously —they will not just get a slap on the wrist but will go to prison for a considerable length of time. I hope the Government will support the amendments.
The Chair
No need for apologies, Mr Cunningham. It is important that the Bill is properly scrutinised and that the parliamentary procedure is complied with. I call Minister Philp.
The Parliamentary Under-Secretary of State for the Home Department (Chris Philp)
It is a great pleasure, once again, to serve under your chairmanship, Mr McCabe. I join the hon. Member for Stockton North in paying tribute to the hon. Member for Rotherham for the work that she has been doing in this area for so many years. I am sure the entire Committee, and anyone listening, will have been deeply moved by her speech a few minutes ago, in which she described the most appalling abuse that I know all of us, as a House, can come together to combat and fight. I know she has been tirelessly working in this area for many years, and the whole House is grateful to her for the work and leadership she has shown.
The provisions in the Bill that we are discussing form only a small part of what the Government are doing to combat these terrible crimes, and I pay particular tribute to the Minister for Safeguarding, my hon. Friend the Member for Louth and Horncastle, who leads the Government’s work. Before talking about the provisions in the Bill, I want to draw attention to some non-legislative work that is going on, particularly the work that is being done internationally, including through the “Tackling Child Sexual Abuse Strategy”, which I think was published earlier this year. The hon. Member for Rotherham talked a few moments ago about a separate piece of legislation—the forthcoming online safety Bill, which aims to tackle many of the issues that we have been discussing. We are of course also working internationally with other states and with international organisations and charities, such as the International Justice Alliance and the International Watch Foundation, to make sure that we protect children overseas. Legislation is important, but so is action. The Minister for Safeguarding and others in Government are committed to taking that action, and we welcome the support from Members of different parties in doing that.
Let me pick up some of the points that the hon. Members for Rotherham and for Stockton North raised in their comments. A question was posed by the hon. Member for Stockton North in his excellent speech: he asked whether we were content with some of the sentences being handed down to people in the United Kingdom who go online and cause a deeply traumatising offence to be committed in another country, such as the Philippines or elsewhere. The answer is no, we are not.
Clause 44 aims to address the lacuna that currently exists in this area and that we think needs to be closed. Clause 44 is a critical part of doing that.
Sarah Champion
The Minister’s speech is incredibly reassuring, and I am glad that it will now be in black and white in the transcript, because it gives the comfort that we need. However, hearing everything that he is saying, is there any objection to putting the words “online” or “international” in the Bill, just for clarity and just because there is a change? The likelihood of people reading through all the guidance when they are making a decision is slender, whereas they will go to the Act and it would be there in black and white, which would give a lot of comfort.
Chris Philp
I thank the hon. Lady for her question. My clear understanding is that the police already prosecute for these offences. I will go away and double-check with colleagues to make sure that there is no scope for misunderstanding by law enforcement authorities: the police; the National Crime Agency; and the Crown Prosecution Service. Having investigated that question further, I will write to her with the reply to her question. The law permits it, and the law is being used. However, I will just seek that assurance that there is no misunderstanding by practitioners. My understanding, as I say, is that they are prosecuting and getting some convictions, but I will double-check her point and get back to her in writing.
I think that speaks to the issues raised in new clauses 40 and 41. In relation to new clause 39, I think that the essence of what the hon. Lady is seeking to achieve is delivered by clause 44, as it is drafted, by making the maximum penalty the maximum sentence for the underlying act that is committed. To take the most extreme and distressing example, if someone is being raped and that has been incited, facilitated or arranged online, that facilitation will now—if we pass this clause—lead to that maximum sentence applying. It will be the underlying offence that triggers the maximum sentence, which I think addresses the point that she is quite rightly making in new clause 39. I believe that clause 44 addresses that issue.
Finally, there is the question of new clause 37, which is concerned with double jeopardy. I completely accept, and I think the Government accept, that this is an incredibly difficult area, where a very difficult balance has to be struck, because on the one hand we have long-standing interests of natural justice, which say that someone can only be tried for a given offence once for reasons of fairness, natural justice and finality, but on the other hand there are the points that the hon. Lady has very powerfully made concerning these very distressing offences.
As the hon. Lady said, this issue was looked at by the Law Commission in the early 2000s and then legislated for via the 2003 Act. In fact, the Law Commission initially only recommended that the exemption to double jeopardy should apply to murder. However, when Parliament debated this question, it decided to expand the range of exemptions, which were covered in schedule 5 to the 2003 Act, to cover, in addition to homicide, other offences, as she said, such as rape, penetrative sexual offences, kidnapping and war crimes. Such offences are generally punishable by a term of life imprisonment, or in one or two cases by the exceptionally high standard determinate sentence of 30 years.
A line has to be drawn as these things are balanced, which is an extremely difficult line to draw, because there will always be offences that are just over the non- exception side of that schedule 5 line, which are very grave offences. The hon. Lady very powerfully described why those offences are so appalling, offensive and terrible. She is right—they are—but we have to try to strike a balance in deciding where that line is drawn. Clearly, offences of rape and sexual assault involving penetration are exempted—they can be tried again—but those that do not involve penetration are not in schedule 5, so the rules on double jeopardy apply.
The Bill does not change that, and there are no plans to change where the line is drawn. As the hon. Lady raised the question in such powerful terms, I will raise it with more senior colleagues in Government to test their opinion—I can make no stronger undertaking than that—to ensure that her point, which she articulated so powerfully, gets voiced. I will let her know the response. I do understand her point, but there is a balance to be struck and considerations of natural justice that need to be weighed as well.
Sarah Champion
I appreciate what the Minister is saying. In that discussion, will he throw in the potential of another review? In relation to this crime, things have moved on so much, not in the last 20 years, but in the last five years, so it would be good to hear his colleagues’ thoughts on that as well.
Maria Eagle (Garston and Halewood) (Lab)
I have been listening carefully to the Minister’s response. Will he undertake to get back to Opposition Members and indeed the whole Committee before Report?
Chris Philp
I almost said that without being prompted, but, since I have now been prompted, yes, I will.
I hope that the commentary I have given on the operation of the clause addresses the many points quite rightly and properly raised by the hon. Member for Rotherham and the shadow Minister. I have undertaken further to investigate two points, and I hope that on that basis the Committee is content to see the clause stand part of the Bill.
The Chair
I know that members of the public get a little confused by this, so I remind them that the new clauses were debated as part of our discussion on clause 44 because that is where they sit most logically, but we will vote on them at the end of our consideration.
Question put and agreed to.
Clause 44 accordingly ordered to stand part of the Bill.
Clause 45
Positions of trust
Sarah Champion (Rotherham) (Lab)
I beg to move amendment 7, in clause 45, page 37, line 1, leave out subsections (2) and (3) and insert—
“(2) In section 21, after subsection (5), insert—
(5A) This subsection applies if A is regularly involved in caring for, training, supervising or being in sole charge of B and none of subsections (2) to (13) of this section otherwise applies.”
(3) In section 16—
(a) in subsection (2)(a), leave out ‘or (5)’ and insert ‘, (5) or (5A)’;
(b) in subsection (4)(a), leave out ‘or (5)’ and insert ‘, (5) or (5A)’.
(4) In section 17—
(a) in subsection (2)(a), leave out ‘or (5)’ and insert ‘, (5) or (5A)’;
(b) in subsection (4)(a), leave out ‘or (5)’ and insert ‘, (5) or (5A)’.
(5) In section 18—
(a) in subsection (2)(a), leave out ‘or (5)’ and insert ‘, (5) or (5A)’;
(b) in subsection (4)(a), leave out ‘or (5)’ and insert ‘, (5) or (5A)’.
(6) In section 19—
(a) in subsection (2)(a), leave out ‘or (5)’ and insert ‘, (5) or (5A)’;
(b) in subsection (4)(a), leave out ‘or (5)’ and insert ‘, (5) or (5A)’.”
This amendment aims to ensure that all adults who are in a position of trust are subject to the child sexual abuse offences provided for by section 16 to 19 of the Sexual Offences Act 2003, rather than simply extending the definition to those who coach, teach, train, supervise or instruct children in a sport or a religion.
I am sorry; everyone must be sick of my voice now. I must say that I am sick of giving this speech on positions of trust, because I have given it so many times. I will start, somewhat cheekily, by quoting the Under-Secretary of State for the Home Department, the hon. Member for Louth and Horncastle, back to herself on clause 1 and the police covenant. On Tuesday, she said:
“We have kept the wording deliberately broad to ensure that there is room within the legislation to allow the Secretary of State to consider issues of importance as they arise, and the issues that have been raised here will be included in those considerations.”—[Official Report, Police, Crime Sentencing and Courts Public Bill Committee, 25 May 2021; c. 198.]
I ask her to take a similar approach on positions of trust. I am hugely—[Interruption.] Oh. I will ask the Under-Secretary of State for the Home Department, the hon. Member for Croydon South, to listen to the other Minister’s wise words when it comes to considering positions of trust. It is a real collaborative effort when it comes to tackling child abuse, and I do appreciate that.
Let me set out my stall. At the time of the Sexual Offences Act 2003, it was rightly identified that certain adults had a position of trust over a child that made it all the more inappropriate for them to have sexual relations with that child. I am talking specifically about children aged 16 or 17 who are able to have sex within the law, and who are able to give consent. Because of the adult’s position of trust, they have a disproportionate amount of power over that child, which brings into debate the free gift of consent that a child could give because of that power imbalance. Clause 22(2) of the Sexual Offences Act defines someone in a position of trust, saying,
“a person looks after persons under 18 if he is regularly”—
that is a key word—
“involved in caring for, training, supervising or being in sole charge of such persons.”
I think we would all agree on that.
Alex Cunningham
My mum is a wise older woman who will be 88 on 1 August. She has offered me many a statement, and sometimes direction, that has given me food for thought and helped me form opinions or even take action to work for change. One expression she would use in the past was, “We all come into the world the same way, and we all leave it the same way.” She knew, as we all do, that opportunities between and birth and death vary tremendously for our people. We need to work for equality wherever we can, particularly for our children and young people. We need to apply that work on equality to this Bill, to ensure that all young people are protected from adults in a position of trust over them and, where they are exploited, to ensure that the full weight of the law is felt by those who have betrayed that position and possibly ruined young persons’ lives.
The Opposition have worked for months with the police and policing and justice stakeholders from across the field in drawing together our various amendments. It has been extremely heartening that Ministers have already shown a great willingness to work together to improve the Bill. That has been extremely welcome thus far, and I hope it will extend to our discussion on clause 45.
This matter has strong cross-party support, and I am sure hon. Members join me in giving wholehearted thanks to my hon. Friend the Member for Rotherham and those she paid tribute to earlier—the hon. Member for Chatham and Aylesford and Baroness Grey-Thompson—for their tireless work prosecuting the case and campaigning for wider protections for our children.
The proposed extension to the definition of “position of trust” is very much welcomed by the Opposition, but it is vital that we do not miss this opportunity to introduce a comprehensive solution that protects children from potentially abusive adults in positions of influence over them in all activities and settings. It is time to Close the Loophole, as the NSPCC has called its campaign.
Before I discuss the excellent amendment from my hon. Friend the Member for Rotherham, on which she made an outstanding and meaningful speech, I would like to seek some clarity about who is covered by the definition currently in the Bill, to eliminate confusion. Can the Minister confirm that, with regard to sports, the current wording covers those adults who are instructing and training children in recreational physical activity that is not directly leading to a specific competitive event or display—for example, swimming lessons or dance classes? Can he also confirm that, with regard to religion, the current wording covers adults who are leading activities that have a religious ethos, or who are operating under the auspices of a specific religious organisation or denomination, but where the activities are not directly related to religious practice—for instance, a temple youth group, a church camp or outdoor activities? What happens there? I would welcome clarity on all those points. The possible confusion in the current wording, which has been pointed out by the NSPCC, means that the clause as it stands may not cover all sporting and religious activity.
The lack of clarity about the Government’s proposals goes to illustrate the issue at hand. Why are we excluding children from the protections of this clause in some settings, but not in others? I will repeat that point a few times. Why have the Government chosen to draw the line here? Why are some children being safeguarded and others left at risk? As it stands, the Government will be excluding children from this new protection in many settings, such as music, creative and performing arts, tutoring, cadets, driving lessons and youth clubs.
Sarah Champion
My hon. Friend is making a very strong point. I am thinking about this from a parent’s point of view. At the moment, they assume that everybody in a position of trust over their child, as they would see it, is covered by this legislation. It seems ridiculous that, when we are talking about a child in school—I will stay with the example of the maths teacher—the maths teacher would be convicted if they had sex with a 16-year-old, but if the child leaves school and goes to a maths tutor, the maths tutor could have sex with them and would not be prosecuted. The issue is just about getting clarity for everyone on this.
Alex Cunningham
I thank my hon. Friend for making that point. It illustrates exactly what we are about here, which is that everybody should be treated the same. Incidentally, I had an excellent maths teacher; I do not remember his first name, but he was Mr Fielding, and he was a first-class maths teacher.
I am sure that we all agree that extracurricular activities such as those that I have outlined are vital for children’s development. They provide opportunities for children to learn new skills, make new friends and develop self-confidence. But why should those young people not be afforded the same level of protection when doing them?
I discussed this issue recently with my hon. Friend the Member for York Central (Rachael Maskell), and she shared with me a number of horrendous cases of abuse by adults in positions of trust that have arisen in her constituency, yet the definition proposed by the Government would not cover these horrific abuses. I understand that she discussed one particular case in meetings with Justice and Home Office Ministers, so she was surprised, as I am, that no action was taken in this legislation to deal with people in similar situations in the future.
I am sharing details of the case here with my hon. Friend’s permission. She said:
“With regard to tutors, we had a dreadful case of grooming and then assault on a teenager who was a music student, by her private tutor.
She was groomed from the age of 14, was a rising talent, which he nurtured and there came a relationship of dependency in the light of this.
He then raped her when she turned 16.
The case went to the CPS but they did not proceed with the case despite the support of the local police.
It destroyed her.
Music lessons were conducted in private. He held her future career in his hands.
He was in a position of trust and abused that trust.”
Can the Government explain why they have chosen not to extend the positions of trust laws to cover all situations like this, where the adult holds the power to influence a young person’s future and is in close contact with the child? If we fail to close this loophole, we will fail young victims like the young woman in the case I just described.
Sarah Champion
Like my hon. Friend, I am somewhat perplexed. He is right: subsection (2) suggests that the Government recognise that additional careers may need to come under the legislation, now or in the future, so why are they closing the door now when they recognise that they will need to open it again in a year or in 10 years? NSPCC research on the cases it already knows have been prosecuted identifies—as well as the teaching professions, faith and sport—transport, youth work, scouts, cadets, charities and the performing arts as the most prevalent careers for cases. We know that there are more cases.
Alex Cunningham
Yes, and that seems so obvious. The briefings we have received from different organisations outline that the fact that this is the case across all the activity that my hon. Friend describes. How will the Minister determine what is to be added or removed in future? What criteria will be used to determine which child should be protected and which should not?
No doubt a robust mechanism will be required to monitor the implementation and to ensure that no child is placed at unnecessary risk, but the legal framework makes it difficult to collect comprehensive data on the scale of abuse by those in positions of trust. We have insight to the scale of the problem, and I thank the NSPCC for providing these figures and pay tribute to it. The NSPCC is probably one of the clearest about what it is trying to achieve; when it sends me a brief, I know exactly what it wants, and I trust it tremendously when it tells me things.
The NSPCC tells me that the Office for National Statistics has analysed child sexual abuse data from the Crime Survey for England and Wales, which asks people over 16 to report on their experiences of abuse in childhood. It found that in 9.7% of all contact child abuse cases, and in 4.4% of all non-contact child abuse cases, the perpetrator was an adult in a position of trust or authority over the child. For males—this actually surprised me—19% of contact abuse was by a person in a position of trust or authority.
In the data from the Crime Survey for England and Wales, the definition of a person in a position of trust or authority included positions currently included in the definition of positions of trust, such as teachers and social workers, and persons included within the Government’s proposals in clause 45, such as sports coaches and religious leaders, as well as positions that remain outside the Government’s proposals, including private tutors, youth workers and those leading music and creative activities, which we have covered.
Chris Philp
I thank the shadow Minister for giving way and for sharing those figures. Does he have, or was he provided with, a breakdown of them? On the 19%—I think that was the figure he gave—of males reporting contact abuse perpetrated by someone in a position of trust, does he have a breakdown of what proportion of those offences were committed by people who either met the current definition or who meet the definition as expanded by clause 45, as opposed to people who do not meet either of those definitions? That would be interesting information if he has it to hand.
Alex Cunningham
Indeed it would be good information to have to hand, but I do not know the answer to the question. Perhaps we can discuss the issue in a future debate.
If data on those instances of abuse is collected, even in the Crime Survey for England and Wales, why do the Government not think that the law should recognise the activity as criminal?
Sarah Jones
I worked for six months at Addenbrooke’s Hospital. That happened to be when things were coming to light about a doctor called Myles Bradbury, who had abused many, many children. Part of what I had to do was put together the plan for how we would go to the parents of children who had died of cancer, having been treated by that doctor. We will never know how many people he managed to abuse; he abused many children. He was an abuser. If he had not been a doctor, he might have been a driving instructor. If he had not been a driving instructor, he might have been a football coach. He was intent on abusing young people and he would always have found a position of trust to do so.
Does my hon. Friend agree that it makes no sense to list certain things and exclude others when we are talking about perpetrators who will find the means to do these things if they want to?
Alex Cunningham
Indeed I do. People say, “It doesn’t matter what laws you pass; people will find a way.” That is one of the terrible things in our society.
Having heard what both my hon. Friends have said, I reflect on the parents and the trauma that parents face when they realise that they have allowed their child—their daughter—to be tutored by a particular person to learn the piano, or entrusted them to a sports coach working with 20 children, who goes on to abuse them. The parents have that guilt—guilt they have to live with. It is not their fault, but they still have to live with the guilt.
We must strengthen the law as much as possible, so that if such cases come to light the perpetrators face the full force of the law, and we must not allow any loopholes whatever to protect any of those people.
The figures from the NSPCC that I mentioned come from a series of freedom of information requests on all local authority children’s services in England and Wales between 2014 and 2018. The NSPCC found that over a four-year period there were 653 complaints about adults who were not covered by the criminal law having sex with 16 and 17-year-olds in their care. That compares to 1,025 criminal offences of abuse of a position of trust of a sexual nature in the same period.
The NSPCC also asked local authorities to provide information about the fields of work of the referrals: 26% were cases in sport and leisure settings; 12% were in religious group settings; 11% were cases involving transport or involving drivers—my hon. Friend the Member for Croydon Central referred to cases involving driving instructors; 5.7% were in settings of voluntary or charity work; and another 5.7% were in cadet organisations. That is 653 cases where our law did not protect vulnerable young people.
We have a chance to extend that provision to protect children in those settings future and I urge the Government to take it—please do not lose the opportunity. Those figures are deeply disturbing, but statistics alone do not convey the impact that abuse of a position of trust has on children and young people, including the truly devastating impact when someone is told that what happened to them is not a criminal offence and nothing can be done about it. Too many young victims are being given the message that the adult who abused their position did nothing wrong and that to have prevented it from happening the young person should not have consented.
With support from the NSPCC, “Hannah”, whose name has been changed, and two other brave young women directly affected by that form of abuse wrote directly to the Lord Chancellor and Secretary of State for Justice. “Hannah” told the NSPCC, “When I turned 16, ‘Jeff’, my swimming coach, began to comment on my appearance. He would tell me that I looked nice or that clothes looked good on me. No one had ever said these things to me before, and I wasn’t sure how to feel. Soon he started pushing the boundaries. Initially he would just give me a hug. Then one day he gave me a hug and put his hand on my bottom. ‘Jeff’ spent a long time making me feel comfortable. I remember the first time we kissed. After training, we started to be intimate in that way a couple would. After some time, we started having sex. This was my first sexual experience. ‘Jeff’ told me to keep this a secret. I was under the impression when ‘Jeff’ told me not to tell anyone that it would be for the best for my swimming, and this would develop into a proper relationship and we could tell everyone. I wanted to tell my friends, but I knew I couldn’t. When this relationship came tumbling down, I changed with it. I was left feeling really angry, I was a difficult person to be around. It took me a long time to trust friends and family, to let them hug me again.”
Hearing the devastating impact of that horrific abuse is absolutely heartrending. I want to put on record the great debt of gratitude that we as parliamentarians owe to the courageous young people, such as “Hannah”, who work with the NSPCC to lobby the Government on the issue. Their civic-mindedness in the wake of such dreadful abuse is so very admirable, and because of their work, alongside others, the law will be improved to protect more young people.
In the event that the Government do not support my hon. Friend’s excellent amendment, will the Minister say how the risks associated with positions that remain outside the definition—for example, private music tutor or cadet leader—will be monitored? The consistent collection and monitoring of data relating to the implementation and effectiveness of clause 45 are vital if it is to protect the full range of young people who may come into contact with personal abusers. If the Minister will not do what the Opposition consider the right thing, will he please provide clarity on the review mechanisms the Government will put in place to decide whether further extensions of the definition of “positions of trust” in clause 45(2) should take place?
I want to consider some of the Government’s previous objections to the extension of the ambit of the “positions of trust” definition. In March 2020, during a Westminster Hall debate on sports coaches in positions of trust, the Under-Secretary of State for Justice, the hon. Member for Cheltenham (Alex Chalk), said:
“What is at stake here is a need to balance the legal right, as prescribed by Parliament, for young persons aged 16 and over to consent to sexual activity, with the proper desire to protect vulnerable young people from manipulation.”
Although I agree that it is not our place to deny age-appropriate rights as prescribed by Parliament, this is not an attempt to raise the age of consent by stealth. It is an attempt to offer extra protection to young people when they are specifically in a context where there is a disproportionate power imbalance.
Sarah Champion
I hear that the Government use that excuse a lot, and my rebuttal is always that it has not been an issue for the past 18 years when it has been in place for teachers, so why would it suddenly be an issue with different professions?
Alex Cunningham
Again, my hon. Friend makes it very clear that we are bamboozled by the approach that the Government are taking. Surely the figures that I mentioned earlier show that there is significant prevalence of abuse in such settings, and that Parliament should step in and offer protections to our young people. Later today, we will be talking about memorials. Apparently, the law could be changed, and one person extra might go to prison as a result of the new legislation, yet here is a serious situation whereby many people could be sent to prison for the abuse of young people, but the Government are not making the necessary changes. We hope that the Minister is actually listening.
In Westminster Hall, the hon. Member for Cheltenham said:
“Another complicating feature is the evolving case law in the area. In certain situations, the criminal division of the Court of Appeal has already been clear that supposed consent may be vitiated or even negated, thereby creating a criminal offence in any event… That is important because, as the Crown Prosecution Service now indicates in its charging decisions, in certain circumstances that ruling could apply where perpetrators were in a position of power in which they could abuse their trust over a victim. If we look at the CPS charging decision—in other words, when making a decision about whether there truly was consent in a relationship—one of the matters that has to be considered is:
‘Where the suspect was in a position of power where they could abuse their trust, especially because of their position or status’”—
including, as he said himself—
“‘a family member, teacher, religious leader, employer, gang member, carer, doctor.’”
He continued:
“The point is that it is no longer necessarily automatically good enough for the defendant to say, ‘Look, she consented’, if in fact that will was suborned in some way. That might well be a very proper reason why the CPS could conclude that there had been no consent.”—[Official Report, 4 March 2020; Vol. 672, c. 304WH.]
Chris Philp
I thank the hon. Member for Rotherham for introducing her amendment and the hon. Member for Stockton North for his thoughtful speech. I think we are all united in our horror and disgust at people who abuse positions of authority or trust to do the sorts of thing that we have been discussing—there is agreement on that. The debate is really about how we can best implement the solutions that we would like to see.
This is obviously a complicated and delicate area. As Parliament has legislated that the age of consent is 16, when we deviate from that by defining circumstances where the age of consent is effectively raised to 18, we need to be careful and ensure that we are doing it in a thoughtful and well-considered way. As the hon. Member for Rotherham said, the existing legislation—sections 16 to 19 of the Sexual Offences Act 2003—defines some very specific roles, such as teacher and social worker. That is the law as it has stood for the last 18 years.
The Government have listened to the campaigns of the hon. Lady, of my hon. Friend the Member for Chatham and Aylesford, and of many others, and we have decided to change the law in response to the very powerful case that has been made. However, in doing so, we have tried to be thoughtful, careful and proportionate. As Members will see from the drafting of clause 45, the Government propose to extend the current “positions of trust” legislation to cover where a person is coaching, teaching, training, supervising or instructing someone on a regular basis in either sport or religion, as then subsequently defined. To answer the shadow Minister’s question, the definition of sport in this context would certainly cover things like gymnastics, swimming and so on. Therefore, the case that he powerfully made out—the awful case of Hannah that he mentioned—would of course be covered by this legislation as drafted, because it was in the context of swimming, which is a sport. I hope that reassures the shadow Minister that that awful case would be addressed by this legislation.
Alex Cunningham
It does reassure me on that point, but I wanted the Minister to reassure me about the individual music teacher as well.
Chris Philp
I think that was the constituency case raised by the hon. Member for York Central. In that case, the victim alleged rape—she was saying that there was no consent—and in cases where there is no consent, it is obviously appropriate that it is investigated as rape and prosecution is sought for rape. The legislation we are discussing today deals with cases where there is consent. I do not know the particulars of the case—the shadow Minister said that it was not subsequently proceeded with—but that is a non-consent case. We are discussing cases where, even with consent, it is still held that an offence has been committed.
I think we are agreed about the need for reform. We have listened carefully to the cases that have been made, and have made these proposals. The shadow Minister and the hon. Member for Rotherham have raised a number of questions through their amendments and in their speeches, the first of which is, “Why shouldn’t this be much broader? Rather than specifying sports and religion, why not—as amendment 7 does—have a very broad clause that says
‘if A is regularly involved in caring for, training, supervising or being in sole charge of B’?”
That is an extremely broad set of definitions, and it is not completely clear from that very broad drafting who might or might not be included in them. The shadow Minister asked, “Why be specific? Why not be general?” The first reason for wanting to be specific rather than general—specifying these two roles, religion and sport, to start with—is so that people have certainty about which side of the line they are on. If the clause is drafted very broadly—“caring, training, supervising”—supervising is an extraordinarily broad term, so it would not be immediately obvious who is included and who is not included. One of the features of good law is that the people who might be subject to it have some pretty good degree of certainty about whether they are going to be affected or not. The Government’s concern about terms as broad as “supervising” is the question of what is covered by them. What is included, and what is excluded? There are a lot of things that could be covered by the term “supervising”.
Sarah Champion
As I am sure the Minister is aware, amendment 7 is a direct lift from the Sexual Offences Act 2003, so the definition that he is pulling apart now is already law. The bit that we are challenging is adding the specific job titles to the legislation, which I think is already fit for purpose.
Chris Philp
I understand the hon. Lady’s point. However, the point about providing some degree of certainty for someone in a particular role in this context, which is at the edge of the law—where the law is evolving—none the less has some validity.
Having said that we want to be specific rather than general for the reason just outlined, the question that then arises—which the shadow Minister and the hon. Lady have asked—is, “Why these two roles? Why sports and religion to start with?” I stress the words “start with”. The reason is twofold: first, those particular roles carry an unusual degree of influence.
Religion is a powerful force. Ministers of religion or people who lead religious congregations often wield very extreme and high levels of influence over their congregations and their followers. It therefore seems appropriate to recognise the high degree of influence that flows from that particular religious context.
In the case of sports coaches, there is clearly a degree of physical proximity. In fact, the shadow Minister, powerfully and eloquently illustrated in describing the case of Hannah—the case of the swimming coach—how it is that sports settings are so easily abused. That is why sport was selected as one of the two specific areas. It also flows from the data. In fact, the shadow Minister referred to the January 2020 report of the all-party parliamentary group on safeguarding in faith settings, chaired by the hon. Member for Rotherham. It analysed the 653 complaints mentioned by the shadow Minister and, in 495 of those, the type of role that the person was discharging was identified. The figures I have are slightly different from the shadow Minister’s—they are broadly similar, though—and the top two categories were sport, at 31%, and faith, at 14%. Therefore, the two roles here are the two top roles revealed by that survey. Of course, there were other roles with smaller percentages.
Sarah Champion
The frustration of wearing a mask is that the Minister cannot see that I am smiling. He is quoting back all the arguments I have been making for the last five years—I am grateful that they have sunk in. He is right that we went for the most obvious and biggest offenders, but that is now. As I said in my speech, I am concerned that in five years it may be counsellors, whom we have not mentioned today but have a huge influence over the people they support, or an online form that turns online grooming into real abuse. I completely agree with him, but this measure needs to be future-proofed so that we do not keep having the same arguments as the professions and influences change.
Chris Philp
I pay tribute again to the work done by the hon. Member in this area over many years and the work done by her all-party parliamentary group. I am glad that we agree on the starting point, because she has called for it and the data of her all-party parliamentary group points to it as well. The question is how it is best future-proofed and whether one tries to do so with the general provisions in amendment 7, which would run the risk of giving us a lack of clarity and potentially inadvertently criminalising some situations that hon. Members may not feel appropriate, or with the other approach of starting with these two specifics—I think we agree they are the right starting point, because the evidence points there—and adding further positions as the evidence base develops. That is what proposed new section 22A(4) of the 2003 Act will do: it will give the Secretary of State power to add other specific roles as that evidence base develops.
Chris Philp
I will say a word on that because the shadow Minister asked about it. But, before I do, I give way to him.
Alex Cunningham
There is considerable evidence to cover some of the other categories of people in a position of trust. The Minister said that we may have a different interpretation of some of the statistics, but, even if I agree with his numbers, the Bill’s provisions cover only half the children, and half would still be at risk. Should I start drafting amendments for Report that say, “Let’s include people who provide home facilities for overseas students or, perhaps, cadet force leaders”? If anyone has a strong influence over a young person, it is a cadet force leader. Should we start coming up with a list based on evidence that he might accept on Report?
Chris Philp
There may well be evidence in those areas, but the shadow Minister does not need to draft amendments for Report, because, if the Bill in its current form is passed, it will not require primary legislation to add those other categories; it will simply require a statutory instrument. Therefore, once passed—if passed in this form—the Secretary of State will of course keep this under constant review.
It will then be open to anyone, including organisations such as the APPG or people such as the shadow Minister or anyone else, to make representations to the Department—the Department will also keep it under review—that there is evidence that group X, Y or Z should be added. The case might be that they have an unusual degree of influence, capable of being abused, and that an evidence base supports that, so they should be added to the list. By virtue of a statutory instrument under subsection (4), that can be done.
Alex Cunningham
Those reassurances are helpful, but will the Minister tell us what criteria we should apply if we are to bring forward suggestions of other groupings to be included in the legislation?
Chris Philp
The criteria are not specified in subsection (4), which simply says:
“The Secretary of State may by regulations amend subsections (1) and (2) to add or remove an activity in which a person may be coached, taught, trained, supervised or instructed.”
However, providing the profession or category of person being added is involved in coaching, teaching, training, supervision or instruction—provided they do one of those things—they are capable of being added.
On the criteria that might be applied, that would be for the Secretary of State and a Delegated Legislation Committee to determine. I suggest that what would make sense is for the criteria to consider two or three things: first, the degree of influence that the person has—that case has been met in the case of sports’ coaches and religious ministers or practitioners—and, secondly, that there is an evidence base to demonstrate that abuse of that position of authority is occurring. Again, that case has been made for sports and ministers or practitioners of religion, because the data that the APPG received shows that.
I suggest to the Committee—this is not in the legislation—that if those two criteria are met, it might be appropriate to make further additions, but that would be for the Secretary of State and a Delegated Legislation Committee to decide, case by case. I have no doubt that the hon. Member for Rotherham, the APPG and others will make that case. The mechanism is there to add things pretty quickly from month to month, or year to year, as the cases get laid out.
In conclusion, it strikes the Government that the provision is the best way of protecting vulnerable people—we have started with sports and religion—but we have also created the facility to expand the list quickly and easily by delegated legislation, as the case gets made by campaigners over time. On that basis, I hope that the Committee will be content to see clause 45 stand part of the Bill. I hope that the provisions that I have been explaining mean that amendment 7 does not need to be pressed to a vote.
Sarah Champion
I have heard everything that the Minister said. I 100% put on the record my gratitude that our work to research and prove the case around faith leaders was heard and listened to. However, my concern is the clarity. No legislation is effective unless it is out in the public domain, whether that is for the professionals who need to use it or, for example, the victims or families who need to know it is there.
As the Bill stands, my concern is that, were we to go to for the
“regularly involved in caring for, training, supervising or being in sole charge of”
persons as the definition that means it is a crime, any parent or individual would know what that meant. I do not want to press the amendment to a vote now, but I will reserve the right to later, because 21 MPs spoke on this in the Chamber, so I think it needs to be heard by the Minister. We need that clarity so that any parent or child knows what their rights are. Just having certain professions defined muddies the waters further rather than a blanket definition based on role and responsibility. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Chair
We have had a fairly thorough debate, so I am not sure there is any need for a clause stand part debate.
Clause 45 ordered to stand part of the Bill.
Clause 46
Criminal damage to memorials: mode of trial
Question proposed, That the clause stand part of the Bill.
Chris Philp
I will briefly introduce the clause. At present, when someone commits an act of criminal damage, where the value of that damage is less than £5,000, the matter is triable summarily only, with a maximum penalty of three months’ imprisonment or a fine of up to £2,500. The clause makes a change and says that where the item being damaged is a memorial, where it commemorates someone, the offence of criminal damage is triable as an either-way offence and potentially, although not necessarily, can be heard in the Crown court with a higher sanction.
The reason for that is that there are some occasions when criminal damage is committed against, for example, a war memorial and although the financial value of the damage may be less than £5,000, the symbolic damage to society is far higher. We have particularly in mind acts that desecrate war memories; memorials to people who have sacrificed their lives for our freedom—the ultimate sacrifice. We and, I think, most of the public take the view that where their memory is desecrated in that way, it is appropriate that the courts have open to them a higher criminal sanction. It does not mean the judge has to use it. We still have judicial discretion so the judge can make a determination based on the facts of the case, but we believe that things such as desecrating war memorials and dishonouring those who have sacrificed so much should, in some circumstances, be punishable by more than just a fine and three months in prison.
Alex Cunningham
I am absolutely gobsmacked that after the Government made such a tremendous fuss in the media, with announcements in Parliament and all manner of things, that the Minister has just dismissed his clause in a matter of a couple of minutes.
Alex Cunningham
The Minister did not dismiss it, but he addressed it for two minutes after everything that went before.
Chris Philp
A point is no less powerful for brevity. In fact, some of the most powerful points are brief.
Alex Cunningham
I will not reply to the Minister by applying brevity to my speech, because we need seek reassurances from the Government on several things. It is fair to say that clause 46 generated much discussion on Second Reading, and I am glad that we are now able to discuss it a lot more fully in this focused forum. I am sure it is no surprise to the Minister to hear that we have some serious reservations about the clause.
First, we do not believe that it in any way helpfully adds to the existing law on criminal damage. Much has been made by the Government about how those who vandalise statues will feel a greater force of law in relation to their actions and could face up to 10 years in prison. Speaking in support of the proposed changes, the Home Secretary said:
“My message today is simple: actions have consequences. I want vicious individuals held to account for the violence and criminality that they perpetrate.”—[Official Report, 15 June 2020; Vol. 677, c. 542.]
That sounds very serious indeed. However, the Government’s impact assessment states:
“No additional prison capacity needs to be built because the expected prison caseload increases are less than 1 place per annum. Prison construction costs are thus treated as negligible.”
If the legislation will result in less than one prison place a year, why bother changing the mode of trial at all?
The impact assessment goes on to say:
“The number of cases that will be sentenced for this offence every year range from 10 to 60, with a best estimate of 35…These figures are based on a mixture of published research and internal projections.”
Let us say that we do get 35 cases a year. We then need to know how many would be for damage worth less than £5,000. Then, within that even smaller subsection of cases, we need to work out how many cases it would really be appropriate to send to the Crown court for sentencing. Perhaps the Minister can tell us, but my guess is that it would probably be none at all.
Then there is the issue of the utter randomness of increasing penalties for some vandalism offences in this wide-ranging crime Bill—a Bill that completely omits to make changes in the criminal law to offer more protection to victims of other types of offences, victims who are actual living breathing people, whom we believe the public at large, and Members of the House, think pose a more pressing concern to legislators. Child criminal exploitation and sexual offences are just a couple of examples that spring to mind. As the Secret Barrister has noted:
“While in practice the maximum of 10 years would rarely, if ever, be imposed, the new cross-party consensus appears to be that displaying disrespect—not even quantifiable damage—to an inanimate object is worthy of a higher maximum sentence than inflicting grievous bodily harm, violent disorder, affray, theft, carrying knives, acid or offensive weapons, voyeurism, upskirting and causing death by careless driving, to name but a few offences that cause tangible harm to real people. It would inject criminal sentencing, which already suffers from wild incoherence and inconsistency between offence types, with another dose of gratuitous disproportionality.”
I agree with the Secret Barrister on all but one part of that: there is no cross-party consensus.
The Government have done much good work to simplify the vexed and confusing world of criminal sentencing by overseeing the implementation of the sentencing code last year. Yet in clause 46—and in so many other parts of the Bill—the Government seem enthusiastic to trample across the good progress that has been made.
I would particularly welcome some information from the Minister on what guidance will be used to quantify the level of sentimental and emotional impact necessary for the case to be sent to the Crown court. Whose emotions will be measured, and how? Surely clear guidance would provide at least some protection against the “gratuitous disproportionality” about which the Secret Barrister warns.
The Sentencing Council has already helpfully provided detailed sentencing guidance on that very topic. In fact, for the offences of
“Criminal damage (other than by fire) value exceeding £5,000”
and of
“Criminal damage (other than by fire) value not exceeding £5,000”,
the guidance refers to damage to
“heritage and/or cultural assets”.
It is, therefore, already covered in law. I am no lawyer, but I strongly presume that that includes war memorials and that the sentencing court should treat that as an aggravating factor when passing sentence.
I ask again: how does clause 46 helpfully add to the law? The Opposition’s position is that it does not. It goes way beyond the anticipated proposals to address protection for war memorials. Instead of working with us to address the concerns of their Back Benchers, the Government have tried to make this a wedge issue across the political divide, to the detriment of the law. We would have been happy to engage on provisions in relation to war memorials and protections for our communal symbols of such great national sacrifice and pride, but we are certainly not happy to do so on the wide scope covered by the clause.
The clause defines a memorial as
“a building or other structure, or any other thing, erected or installed on land (or in or on any building or other structure on land)”.
That is weird: “any other thing”. Why have the Government drafted the clause so widely? I would be grateful for guidance from the Minister on what type of serious offending the Government hope to catch with that capacious definition.
Proposed new section 2(11B) reads:
“For the purposes of that paragraph, any moveable thing (such as a bunch of flowers)”.
The Bar Council notes:
“This raises the prospect that the removal of a bunch of flowers could result in proceedings in the Crown Court.”
It goes on to say:
“Putting aside questions of whether one would need to get permission to remove old bunches of flowers, such an allegation could be sent to the Crown Court if either a magistrates’ court considered the offence to be particularly serious”—
I do not think that it would—
“and beyond their maximum sentencing powers of six months’ imprisonment, or if the defendant”
opted for trial by jury. That means that somebody who has removed a bunch of flowers from a graveside could opt for a trial at the Crown court.
I know that the following example is from Scotland, but it comes from my childhood. Let us imagine that an old bunch of flowers left for commemorative purposes at the memorial for a dog such as Greyfriars Bobby—a delightful memorial that is well loved in its community—is picked up and put in the bin. Does the Minister think that the person who put the flowers in the bin should end up answering a case in the Crown court? I am sure he does not. I am sure that the intention behind the clause is not to cover that type of incident, but the fact that we could even ask the question strikes me as absurd.
Chris Philp
Let me start by answering some of the points the shadow Minister has just made. First, he questions why the measures are necessary when the Sentencing Council guidelines already have, as aggravating factors, things such as “emotional importance”. In reading out those guidelines, he acknowledged their title:
“Criminal damage (other than by fire) value exceeding £5,000”.
The whole point of this new clause is that it addresses circumstances where the value is less than £5,000. That is precisely its purpose. There may be cases where the monetary value of the damage may be less than £5,000 and therefore not subject to the Sentencing Council guidelines that he read out, but the damage to our national discourse—our national state—is significant, because war memorials represent all of those hundreds of thousands of people who gave their lives for our freedom. Even if the value of the damage is less than £5,000, the disrespect and dishonour done to those who sacrificed and secured our freedom is a matter that this Government take seriously. I am disappointed to hear that that is not something that interests him.
Alex Cunningham
The Minister is relying on these war memorials again. He is talking about them, but this is an extremely wide provision, covering all manner of memorials and of places, from individual gravestones all the way through to the Cenotaph. How on earth will a prosecutor determine the emotional value of one crime against that of another? Is the emotional value of a small grave desecrated the same as the Cenotaph?
Chris Philp
First, it is not the prosecutor who makes that determination; it is the judge. Secondly, the judge makes such determinations the whole time. Indeed, judges already make those determinations under existing sentencing guidelines for the more serious either-way offences. It will be for the judge to decide whether the nature of the damage merits a higher sentence or a lower one. That is why we have judicial discretion. I have confidence in our country’s judiciary to be able to draw the distinction between desecrating the Cenotaph, which honours the memory of hundreds of thousands of servicemen and women, versus something else.
The point is that, at present, the judiciary do not have that discretion open to them, because where the value of the damage falls under £5,000, the matter is triable summarily only, with a very low maximum penalty. The clause gives the judiciary the discretion to take into account such considerations and to sentence as appropriate. The Government’s view, clearly, is that desecrating the memory of brave servicemen and women who have given their lives in defence of our freedom is something we should stand up against. This Government are standing up against it; I do not know why the Opposition are not.
Alex Cunningham
The Minister is being unkind. In no way are we against some of the things in the Bill. We do not want to be in a position in which we are not supportive, respectful and everything else. I think he should withdraw that remark.
Chris Philp
I will be happy to withdraw my remark when the shadow Minister joins us in supporting the clause. If he does so, of course I will withdraw it.
Mr Robert Goodwill (Scarborough and Whitby) (Con)
Surely when something is stolen, damaged or desecrated, it is about not just its monetary value but the effect on the victim. In this case, the victim could be the children or grandchildren of the person commemorated on that war memorial. A stolen photograph album has no monetary value, but the actual value to the family is very strong.
Chris Philp
My right hon. Friend makes a powerful point. That is exactly the purpose of the clause. The monetary value, the £5,000, does not reflect the profound emotional damage that can be caused when something like a war memorial is desecrated.
The shadow Minister asked how it will be decided whether a matter is heard in the Crown court or in the magistrates court. As he rightly said, the defendant always has the right of election for an either-way offence but, generally, the allocation decision is set out in the allocation guidelines of 2016. A decision is based on whether the anticipated sentence will exceed the magistrates’ sentencing powers—if the magistrates think that it might exceed their sentencing power, they will send up to the Crown court—or if the case is of unusual legal or factual complexity.
There is therefore a flexible system for deciding where a case is heard. Some of the cases might be heard in the Crown court and some in the magistrates court, depending on the facts of the case, so by no means does it follow that everything will end up in the Crown court. It is true that the number of anticipated offences is low— between 10 and 60 a year—but we are talking about acts that desecrate the memory of servicemen and women. I hope that that the Committee can agree on that in supporting the clause.
Alex Cunningham
Will the Minister confirm that all the offences captured in those statistics were against war memorials?
Chris Philp
The impact assessment covered all offences that might be caught by the clause, clearly many of which might well be war memorials. We have seen examples of war memorials being desecrated and the Cenotaph was attacked last July. A war memorial in the constituency of my hon. Friend the Member for Corby was desecrated—indeed, it was possibly even destroyed—and he led a campaign to get it replaced. Sadly, such things happen, and it is important that we as a House send out a message that we stand with our servicemen and women when their memory is attacked in that way.
The Chair
With this, it will be convenient to discuss the following:
Clause 51 stand part.
That schedule 6 be the Sixth schedule to the Bill.
Clause 52 stand part.
Victoria Atkins
Very quickly, I just want to put on the record a point about clauses 50, 51 and 52, and schedule 6. Their background is, as my right hon. Friend the Home Secretary said on Second Reading, the horrific case of Keith Bennett and the Moors murderers, which brought to light the need for new powers to search for material that may relate to the location of human remains.
In 2017, the police believed that they had a further lead to assist Keith’s family in finding his body, when it was discovered that Ian Brady had committed papers to secure storage before his death. However, the existing law would not allow the police to obtain a search warrant to seize the papers, because there was no prospect of them being used in criminal proceedings, as Brady was dead.
These new powers will build on the existing law and enable officers to seize material that may help them to locate human remains outside criminal proceedings. As well as cases such as Keith’s, where a homicide suspect has been identified but cannot be prosecuted, these powers could be useful for the police in missing persons cases, or suicides where there is no indication that criminal behaviour has taken place.
These are terrible circumstances that lead to the need for this law, but we very much hope that passing these measures will bring a small crumb of closure and comfort to the Bennett family and others.
Sarah Jones
The Opposition support these clauses, for exactly the reasons the Minister has outlined. The case of Keith Bennett was incredibly awful. Today we saw the news about the ongoing search for remains in a Gloucester café. Mary Bastholm was 15 when she went missing in 1968. She is a suspected victim of Fred West. That search, for various legal reasons, was able to go ahead. Unfortunately, the police have today said that they have not found any human remains, so for Mary’s family the ordeal goes on, to try and get some kind of closure. However, for that family at least we were able to look for remains, but in the case of Keith Bennett the law did not allow the police to look. Therefore, it is absolutely right that we correct the law.
Question put and agreed to.
Clause 50 accordingly ordered to stand part of the Bill.
Clause 51 ordered to stand part of the Bill.
Schedule 6 agreed to.
Clause 52 ordered to stand part of the Bill.
Clause 53
Functions of prisoner custody officers in relation to live link hearings
Chris Philp
I beg to move amendment 64, in clause 53, page 44, line 33, leave out “and (4)” and insert “to (4A)”.
This amendment and Amendments 65 to 67 ensure that the references to live audio links and live video links in clause 53(3) are consistent with the provisions made about live links in clause 168 of, and Part 3 of Schedule 19 to, the Bill.
Chris Philp
Clause 53 seeks to extend to prison escort and custody service officers the right to accompany prisoners in police stations, such as for the purpose of conducting video remand hearings. Owing to an historical anomaly, they are unable to discharge that function at the moment. It became clear during the coronavirus, where video remand hearings were used quite widely to avoid having to take a prisoner to court, that PECS officers did not have those powers, so we had to ask police officers to do that instead, which took up a lot of police time. The police did that, and I pay tribute to them for doing so, but that took up police officer time that could have been spent out on patrol arresting criminals.
The clause amends the Criminal Justice Act 1991 to provide PECS officers with those powers to have custody over prisoners in police stations, for the purpose of overseeing preliminary sentencing enforcement hearings by way of live links. It is a good operational improvement that I hope will make things more efficient where it is appropriate to use it.
Amendments 64 to 67 make some small technical amendments to the clause, because there were some references to a piece of legislation that is being repealed. They simply replace those reference with the correct ones.
Alex Cunningham
We understand what the Government are trying to achieve in this clause, but we have a number of concerns about what it will lead to in the longer term. I would welcome some ministerial assurances that those concerns will be considered.
Before that, I thank Transform Justice for its energetic scrutiny of the amendment, which I am sure will add much value to the debate. The Government’s fact sheet describes clause 53 as
“enabling legislation to ensure that any future VRH rollout is not reliant on police resource, which would be an ineffective and inefficient use of their training and skills”.
It also notes that the implementation plan for rolling out video remand hearings across police stations
“is being developed and not yet finalised”,
and that
“A solution to the long-term structural and resourcing issues is required”
to facilitate the roll-out. In that case, it does not seem necessary to include it in the Bill.
If there is so much work to be done to have proper functioning video remand hearings, why are the Government bringing that forward at this time? We take a similar position to that of the Law Society, which says that although it supports the use of prisoner custody officers to facilitate video remand hearings during the pandemic, it does not believe it should be a permanent feature of the justice system.
The rationale for legislating to increase the use of audio and video live links across the Bill seems somewhat confused. On the one hand, the need for covid-19 protection is mentioned; on the other, the measures are justified on the grounds of efficiency and modernisation. The covid-19 motivation is particularly confusing, given that the Bill will not be enacted for some time, when the covid safety of courts will, we hope, no longer be an issue. Can the Minister tell the Committee the motivation for video remand hearings beyond the pandemic?
Even more problematic is the lack of evidence to back up the functioning of the proposals. Even now that we have been living with the pandemic measures for a year, we still have no evidence beyond the anecdotal about the extremely significant changes to how we run hearings. This is one of a number of remand changes made during the pandemic for which we are seriously lacking detail. The other, more concerning, one is that in September 2020 the Government increased the length of time they are legally allowed to hold people on remand from six to eight months, a provision in place until 28 June 2021. While I am on the topic, I would welcome an assurance from the Minister that the custody time limit extension will lapse, and he will stick to his word in the SI Committee some months ago and it will not be extended again.
To go back to clause 53, before the pandemic very few police forces ran video remand courts. Where they did, defendants detained by the police post charge would not be taken to court for their first appearance, but would appear from police custody by video link, with their lawyer, the judge, the prosecutor and so on in the physical courtroom. When the pandemic hit, PECS contractors, who usually transport these remanded defendants to the court, said that courts and court cells were not covid-safe enough and refused to transport all the prisoners who needed to go to court, so police forces in almost every area agreed to set up makeshift courtrooms in police custody suites that would be video linked to the magistrates court. The police agreed to run these courts purely on an emergency basis and were not paid to do so by Her Majesty’s Courts and Tribunals Service. As the first wave eased and the courts implemented their own covid-19 safety procedures, police stopped running video remand courts and most areas reverted to the traditional arrangement.
We are not aware of any significant concerns with the traditional arrangement, so again I ask: why do we need this clause, which lays the groundwork for even more video remand courts in the future? There are significant cost implications to running the hearings in this way. The Government have published an economic impact assessment for the use of PECS staff in police custody. This shows a positive cost-benefit, but the assumptions need some further scrutiny.
To quote from the material provided by Transform Justice:
“PECS staff would only be used in custody if the police agreed to run video remand courts permanently. Despite the government stating ‘VRHs will indeed be rolled out at some point in the future’…no such agreement has been reached—police forces have given no commitment to running and hosting video remand courts. Given that most police forces are not running video remand courts currently, the installation of video remand courts nationwide would incur considerable costs for the police, including premises costs, IT infrastructure costs, costs of keeping defendants in cells for longer, and staff costs. During the first months of the pandemic the costs incurred by police in running emergency video remand courts were considerable—the Met had to use 45 staff to manage the process and estimated the operation cost the equivalent of £2 million a year. Though some police costs would be offset through the support of PECS, it would still cost police staff time to liaise with PECS staff and would incur the other costs. The ‘Do nothing’ option in the economic assessment assumes that the police costs of running video remand hearings have already been budgeted for by local forces—but this is not the case.”
I know it is a very long quote, Mr McCabe, but it continues:
“The economic impact assessment suggests that the PECS staff in police custody are in addition to existing PECS staff. PECS staff will still need to transport defendants from police custody to court and to supervise prisoners at court. Therefore, if PECS staff allocated to police custody for video remand hearings are additional, PECS costs will be greater, police will incur significant costs and the courts will still need to be able to accommodate some of those who have been detained by the police in court cells. We therefore suggest that the economic impact assessment does not encompass any of the costs associated with having PECS staff in police custody, so the cost-benefit cannot be judged.”
I would welcome the Minister’s comments on Transform Justice’s analysis because, as far as I can see, the economic justification for the measure goes to the root of why it is being proposed. Furthermore, will the Minister accept that the implementation of the PECS staff in police custody proposal should be contingent on a full cost-benefit analysis of video remand hearings versus the physical equivalents? If he is not prepared to do that, why not?
We have reservations about the impact that this change would have on justice. It is vital that changes to our justice system that would impact on the very principles that underlie it, such as the right to a fair trial, are properly tested before they are introduced. The stakes are too high for us to get it wrong, so will the Minister consider safeguards to make sure we get this right? These include that every defendant who may be assigned a video remand hearing should be subject to full health and mental health screening, and if necessary an assessment, by a health professional before the case is listed; that this screening information and needs assessments from police custody are made available to the bench or judge before that day’s court hearings start; that a simple system is set up to bring those defendants immediately to court whom the bench or judge deems need face-to-face hearings; and that all those who are deemed vulnerable—vulnerable adults and all children—should automatically be assigned a physical hearing.
We do not really see the need for the provisions in the clause, but I stand open to hear the Minister’s justification for it. If need can be demonstrated for it, we would welcome the Government’s commitment to the safeguards to access to justice that I have just raised, alongside the further cost-benefit analysis.
Chris Philp
I thank the shadow Minister for his speech, and for the thoughtful questions that he has posed in it. As he says, this is enabling legislation to create the option of using PECS officers this way in the future. We were rather caught by surprise during the pandemic when it transpired that these powers did not exist at a time when we wanted to use lots of video remand hearings for obvious, covid-related reasons. As the shadow Minister said, this Bill will hopefully receive Royal Assent some time after coronavirus has become a memory and is behind us. None the less, these enabling powers are worth taking, because it is conceivable that in future, even after coronavirus, we may want to use video remand hearings more than was done previously, which was essentially not at all.
Police, Crime, Sentencing and Courts Bill (Ninth sitting)
Tuesday 8th June 2021
(2 years, 11 months ago)
Public Bill CommitteesRead Full debate Police, Crime, Sentencing and Courts Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 8 June 2021 - (8 Jun 2021)
The Chair
Good morning. Before we begin, let me do the usual preliminary reminders. Please switch your phones and electronic devices to silent. Mr Speaker does not allow tea or coffee in the Committee Room. Members should observe social distancing and sit only in the marked places. Members should wear face coverings when not speaking, unless they are exempt. If you could hand your notes to Hansard colleagues, that would be very helpful indeed.
We will now resume line-by-line consideration of the Bill. The selection list for today’s sittings is available in the room. I remind Members wishing to press a grouped amendment or new clause to a Division that they should indicate their intention to do so when speaking.
Clause 54
Imposing conditions on public processions
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss the following:
Clause 55 stand part.
Clause 56 stand part.
Clause 60 stand part.
Bambos Charalambous (Enfield, Southgate) (Lab)
Clauses 54 to 60 make up one of the most controversial parts of the Bill. We have seen fierce debates in Parliament and in the media, and protests up and down the country. Beneath the hyped-up culture wars is the very real issue that we will debate again today: what is the balance between our democratic right to protest and the rights of those around us? That is a legitimate question for the Government to ask.
How do we ensure that protests are peaceful? How do we balance the rights of others to go about their daily business? How do we, as parliamentarians, set the framework within which the police can do their jobs? The Opposition believe that the Government’s plans do not answer those questions and we reject the attempts to amend the Public Order Act 1986 with this loosely drafted legislation that would restrict democratic rights to peaceful protest.
Clause 54 imposes conditions on public processions, including powers for the Secretary of State to define serious disruption to the life of a community or the activities of an organisation carried out “in the vicinity” of a public procession, as well as powers for the police to impose conditions when they believe that noise might have
“a significant impact on persons in the vicinity”
or may result in
“serious disruption to the activities of an organisation”.
Alex Cunningham (Stockton North) (Lab)
We probably all have our favourite demonstration from our past. Mine was in the 1970s, when I was a student at Darlington College of Technology. It is lamentable that nowadays students do not spend more time on the streets demonstrating. I remember that day well, because we were going down the streets, shouting, “Heath out! Heath out!” That was the day that Heath resigned. We were very pleased with ourselves—a tremendous result from that demonstration. Does my hon. Friend agree that these restrictions could mean that students will feel even more inhibited about demonstrating in future?
Bambos Charalambous
My hon. Friend makes an excellent point. I remember going on the “grants not loans” demonstrations in the late ’80s. He clearly had incredible persuasion in the demonstration he went on, resulting in the desired outcome, and I congratulate him on bringing about that change.
Maria Eagle (Garston and Halewood) (Lab)
I am pleased to hear that one of us at least had an extremely effective demonstration technique. I can recall many people on our side of the debate going on demonstrations and chanting, “Maggie, Maggie, Maggie! Out, out, out!” for years, and she did not move.
Bambos Charalambous
Not all demonstrations are successful, but that does not mean that people should not protest.
Clause 55 allows the police to place any necessary condition on a public assembly, as they can do now with a public procession. Clause 56 removes the need for an organiser or participants to have knowingly breached a condition, and it increases the maximum sentences for the offence. Clause 60 imposes conditions on one-person protests. Clauses 54 to 56, and clause 60, would make significant changes to the police powers, contained in the Public Order Act 1986, to respond to protests.
Mr Robert Goodwill (Scarborough and Whitby) (Con)
The hon. Gentleman mentioned one-person protests. Would he include in that the unacceptable behaviour of Labour’s Scarborough Borough Councillor Theresa Norton, who on 1 May sat in the middle of St Nicholas Street in Scarborough and caused widespread disruption to people going about their everyday business?
Bambos Charalambous
I am not aware of the situation that the right hon. Gentleman is talking about or the circumstances that brought it about. Clearly, people need to be respectful of the people around them when they protest, and they must do so in a lawful way.
Taken together, clauses 54 to 56 and clause 60 make amendments to the 1986 Act that will significantly expand the types of protest on which the police could impose conditions.
Lee Anderson (Ashfield) (Con)
Can the hon. Gentleman cast his mind back about 12 or 13 months to the Black Lives Matter demonstrations on Whitehall, when several of his colleagues—Labour MPs—were out there with the rioters? Is that an acceptable level of protest?
Bambos Charalambous
Parliamentarians have a long history of protesting with many different organisations, so I encourage those who feel strongly willed to join protests, if they are appropriate. Clearly, such protests need to be within the scope of the law. If they are breaking the law, the protests need to be dealt with. That is why we have the law, and that is why the law is in place. People need to be respectful of the law in all circumstances.
Sarah Champion (Rotherham) (Lab)
I wonder whether my hon. Friend was as struck as I was when we had the witnesses in front of us and the police said that, actually, they feel that they have enough powers. They might not be used evenly across the country, which is obviously something on which we need more robust guidance. I remember that when I was very young, in ’89, I came down from the University of Sheffield to protest against the poll tax. We had big demonstrations here in London, and the police felt completely able to charge us on horses. We were kettled, and it was terrifying. Multiple arrests were made without the due process going through. In my opinion, and in the opinion of the witnesses, the police seem to have the powers. Is he as concerned as I am about where these changes are coming from, what the motivation is, and whether they are actually necessary?
Bambos Charalambous
My hon. Friend makes an excellent point. These are operational matters for the police. The police currently have the powers, and they have to be mindful of the impact of their powers on a demonstration and whether they will inflame the situation. Good policing will err on the side of caution on some occasions, but sometimes the police need to deal with a situation that they think will get out of hand. Trying to legislate for what is in the discretion of police officers is wrong, and we should actually trust the police in using their powers of discretion.
The clauses would also widen the types of conditions that the police could place on static protests. The clauses would significantly lower the legal test that must be met for the police to issue conditions on protests. The police would be able to issue conditions on protests where they are noisy enough to cause “intimidation or harassment” or
“serious unease, alarm or distress”
to bystanders. Before using their amended section 12 powers to issue conditions on a protest, the police would have to consider the “likely number of persons” affected by the protest, the “likely duration” of the impact, and the “likely intensity” of the impact. The clauses would also widen the types of conditions that police can issue on static protests to match their powers relating to protest marches. The police would also be able to issue any condition on static protests that they think is necessary
“to prevent…disorder, damage, disruption, impact or intimidation”.
Alex Cunningham
Has my hon. Friend had a chance to see the written evidence submitted by Zoe Everett? She describes herself as
“a member and supporter of ACORN for several years.”
In her written evidence, she said:
“Any peaceful assembly of members of the public, be they large-scale political demonstrations and marches, one-person protests, or local campaign actions by community organisations, are likely to be considered disruptive by those who are the intended object of the protest, be they state actors, private businesses and other organisations, or private individuals.”
The point that she makes in her submission is that these increased powers could drive more and more people directly into the criminal justice system. Does my hon. Friend agree that it would be lamentable if people who simply want to protest about something very close to their heart could find themselves criminalised as a result of this new legislation?
Bambos Charalambous
Again, my hon. Friend makes an excellent point. The people who want to impose these conditions are the very people who the protesters are trying to change; they do not like that, which is why they want to impose these conditions upon them. It is a suppression of people’s rights.
Mr Goodwill
The protest in Scarborough was all about building a third runway at Heathrow and climate change. The holidaymakers taking advantage of the first opportunity to come to the coast were not people directly responsible for making that decision. Their lives were being disrupted and they were not the people directly responsible for the issue that Councillor Norton was concerned about.
Bambos Charalambous
Again, I cannot comment on that individual protest, but the issue of climate change is a very important one; it affects us all, irrespective of where we live. The issue of a third runway may have also been about a wider issue that would have affected everybody, irrespective of where they live. As I say, I cannot comment on that individual protest, but we have to appreciate that certain protests have a wider significance than just the locality where they happen.
Alex Cunningham
The right hon. Member for Scarborough and Whitby makes a really interesting point, because people were demonstrating in his constituency and it came to the notice of the local MP, so he has been directly influenced because of the demonstration that took place in his constituency, and he is the decision maker in relation to this particular issue.
Bambos Charalambous
Again, my hon. Friend makes an excellent point, and that demonstration is now going to be in the parliamentary record, so I think the person making the demonstration will have achieved her objective.
Mr Goodwill
I have to say that the correspondence I received in relation to this protest was not from people sympathetic to it. The correspondence was from people whose lives were being disrupted and who wished that something could have been done more quickly to stop that one person from sitting in the middle of the street, disrupting the whole town centre and affecting people’s jobs and livelihoods in Scarborough.
Bambos Charalambous
I accept the point that the right hon. Gentleman is making. However, if the purpose of the protest was to create greater publicity for the issue, then the person making the protest will have achieved her objective. That is not to say that disruption was not caused by the person making the protest.
Maria Eagle
I am listening to this exchange with some care. Does my hon. Friend agree that the context of all of this is that there is a fundamental right to freedom of expression and freedom of assembly in this country, which is protected by articles 10 and 11 of the European convention on human rights? It is only lawful to interfere with that where it is necessary and proportionate to do so. And it is within that context, of our having those rights as citizens, that any measures proposed in the Bill should be judged.
Bambos Charalambous
My hon. Friend makes an excellent point. These are human rights that have been fundamentally fought for and won. We need to do everything we can to secure them, and they should not be watered down as easily as is being proposed in the Bill.
These powers would also amend the offence of failing to comply with a condition imposed by the police on a protest. It would remove the legal test that requires protesters knowingly to breach a condition to commit an offence. People would commit the amended offence if they disobeyed a condition that they ought to have known was in force. Finally, these powers would allow the police to issue conditions on one-person protests. Currently, protests must involve at least two people in order to engage police powers.
The question we raised about how to ensure that protests are peaceful and how to balance the rights of others to go about their daily business is an important one as the covid crisis eases. We know that the emergency legislation introduced by this place shifted the balance of power away from citizens and towards the state. Organisations such as Liberty, Members across the House, lawyers and others have been concerned throughout that those powers are too great. We gladly handed over those powers, which was the right thing to do, but it is crucial, as we move out of the covid crisis, that we restore those rights with equal enthusiasm.
We need to remember that covid and public health formed the context within which many of the arguments over protests during the past year have occurred. Things have not been as they normally are. Decisions about allowing protests have had an extra layer of complexity, because of the need to protect public health. Decisions have been hampered by the inevitable problems of interpreting exactly what new laws mean, or should mean, in terms of protest. The fact that covid laws did not ban protests has meant that each decision has in part been subjective, putting the police in the firing line for every decision made.
I have heard many times from the police over the past year that they have struggled to be the ones interpreting the law, without the leadership from Government that they needed. The lack of the promised direction from the Home Secretary over the weekend of the Sarah Everard vigil is a stark case in point. The police were seen to be the ones making the political decisions because there was too much ambiguity in the law. That must be a firm lesson for us going forward. It is our job to define the law in a clear way, so that the police are not the ones getting the blame for our law making.
Sarah Champion
My hon. Friend has got to the nub of the problem, which was highlighted by a number of the witnesses, as I will come to in my speech. This is ambiguous and lacks the clarity that the police need. There is no drive from the police that they need this measure, so why is it in the Bill? What is the motivation behind it? I support my hon. Friend in saying that it should not be there.
Bambos Charalambous
My hon. Friend makes an excellent point, which I will come to later. The Bill includes many ambiguous clauses that will no doubt cause lots of legal argument in the effort to define what they mean. That puts the police in an impossible situation.
A good starting point for this debate are the Peelian principles expressed by Sir Robert Peel when he set out ethical policing in the early 19th century:
“To recognise always that the power of the police to fulfil their functions and duties is dependent on public approval of their existence, actions and behaviour and on their ability to secure and maintain public respect. To recognise always that to secure and maintain the respect and approval of the public means also the securing of the willing co-operation of the public in the task of securing observance of laws. To recognise always that the extent to which the co-operation of the public can be secured diminishes proportionately the necessity of the use of physical force and compulsion for achieving police objectives.”
Alex Cunningham
I do not know what my hon. Friend’s postbag or email account has been like over recent weeks, but I have been inundated by emails from individuals and organisations asking me to oppose these measures proposed by the Government. Not one person or organisation has contacted me in favour of these measures. He talked of the importance of the police having the approval of the public for what they are doing, but the public do not want this change. Surely the Government do not have the approval of the people for this piece of legislation.
Bambos Charalambous
My hon. Friend makes a good point: policing is done primarily by consent. If the consent is not there and the police do not have the approval of the people, it is a recipe for more disorder. That tips the balance—
Mrs Heather Wheeler (South Derbyshire) (Con)
I wonder where the constituents are coming from for the hon. Member for Stockton North.
I can assure him that in South Derbyshire my mailbag is full of mail from people saying, “Please get on with this. We don’t believe that the police use the police powers that they have already, so we need new police powers to make sure that they have those powers and will use them,” in the sure knowledge that their MP backs the Minister putting this through, but also that I am on the side of my residents.
Bambos Charalambous
The hon. Member makes an excellent point, but the point is that the police are the ones making the decision, and they should make the decision, because they are in the firing line. They are the ones who actually have to deal with the situation, and they have to call it as they see it. What they do not need is more legislation from Parliament, because they already have the powers in place. They are the ones who have to decide how those powers are used.
Maria Eagle
Does my hon. Friend agree that the police already have significant powers under the Public Order Act 1986 to impose conditions and to prohibit protests, that they have broad discretion as to how those powers are applied and that that can enable individual officers in charge of these matters to use their judgment? Is it not the case that this Bill is seeking to plug gaps that do not appear to exist?
Bambos Charalambous
Again, my hon. Friend makes an excellent point. Good policing is done with discretion. What the Bill tries to do is to look at different ways of making the police do certain things that they may not want to do. I think that discretion is a great tool that the police have at their disposal, and they use it very well in what are often very difficult situations.
The Peelian principles are also:
“To seek and preserve public favour, not by pandering to public opinion, but by constantly demonstrating absolutely impartial service to law, in complete independence of policy, and without regard to the justice or injustice of the substance of individual laws, by ready offering of individual service and friendship to all members of the public without regard to their wealth or social standing, by ready exercise of courtesy and friendly good humour, and by ready offering of individual sacrifice in protecting and preserving life. To use physical force only when the exercise of persuasion, advice and warning is found to be insufficient to obtain public co-operation to an extent necessary to secure observance of law or to restore order, and to use only the minimum degree of physical force which is necessary on any particular occasion for achieving a police objective. To maintain at all times a relationship with the public that gives reality to the historic tradition that the police are the public and that the public are the police, the police being only members of the public who are paid to give full-time attention to duties which are incumbent on every citizen in the interests of community welfare and existence. To recognise always the need for strict adherence to police-executive functions, and to refrain from even seeming to usurp the powers of the judiciary of avenging individuals or the State, and of authoritatively judging guilt and punishing the guilty. To recognise always that the test of police efficiency is the absence of crime and disorder, and not the visible evidence of police action in dealing with them.”
Every word of the Peelian principles holds true today.
It is our belief that the powers in this Bill threaten the fundamental balance between the police and the people. The most draconian clauses are not actually what the police asked for. We believe that these new broad and vague powers will impede the ability of the police rather than helping them to do their job, that these clauses put way too much power into the hands of the Home Secretary and that the powers threaten our fundamental right to peaceful protest. We know that hundreds of thousands of people are very concerned that their democratic right to protest is threatened by these new provisions on public order.
Alex Cunningham
Has my hon. Friend seen the written evidence submitted by Leeds for Europe? It addresses some of the points that he has just outlined. It says:
“The proposals risk making protests ineffective and…curtail fundamental rights of citizens in a democracy, which allow people to express their concerns about the government of the day or other issues that they feel passionately about.”
I am sure that my hon. Friend agrees that for the Home Secretary to have these new extensive powers proves that this objection is well founded.
Bambos Charalambous
Again, my hon. Friend makes an excellent point. This measure puts more power in the hands of the Home Secretary. The Home Secretary may have different views in the future and use the powers in an authoritarian way, which may have a further impact on people’s rights.
Lee Anderson
Does the hon. Gentleman agree that the best way to protest is through the ballot box?
Bambos Charalambous
That is one way to protest, but elections only come every three or four years. In the intervening period, people have no way to exercise their right to protest via the ballot box and so have other means. The ballot box is also a vote on a whole range of things, while a protest might be for an individual issue not covered by an election.
A few weeks ago, we debated a petition signed by more than 250,000 people. The right to protest is a fundamental freedom and a hard-won democratic tradition that we are deeply proud of. Throughout our history, protests have led to significant changes for the better in this country. Suffragette protests put an end to the discrimination against women in our democracy. Historic trade union protests led to outlawing exploitative employment practices in factories, lifting health and safety standards for workers. Such protests have forced Governments to make the significant changes that we now recognise as fundamental parts of a civilised society.
If the public order provisions in the Bill had been in place when the suffragettes marched for the right to vote, would the women who shouted and screamed noisily for their future have been arrested? Does the Minister think that the marchers for the right to work or those on the anti-apartheid protests should have been stopped for causing annoyance or being too noisy? Do the Government want to stop the children who are shouting loudly for action on climate change or to prevent people across the country from marching to remind people in the establishment that black lives matter?
I support the police 100%; we in the Opposition listen every day to what they tell us. This is a most serious issue, but it is not quite as cut and dried as the Government would have us believe. Her Majesty’s inspectorate of constabulary and fire and rescue services reported on public order measures in its inspection report, “Getting the balance right?” On public order legislation, the inspectorate called for
“a modest reset of the scales”.
By any measure, this is not a modest reset.
The support for new powers on public order was qualified support for the five Government proposals the inspectorate was asked to respond to. What Matt Parr’s report actually said was that the vast majority of police forces were happy with the existing legislation. It was mainly the Met that wanted new powers to deal with very specific events—mainly large-scale, peaceful, Extinction Rebellion protests. What the police have asked for, they have not been given.
In the evidence session, Matt Parr said:
“We were very clear in what we said that any reset should be modest. We also said that, because of article 10 and article 11 rights, some degree of disruption is not just an inevitable by-product, it is sometimes the whole point of the exercise of protest, and on that basis, it has to be encouraged.”
He went on to say that the proposal—these clauses—
“clearly aims to set a lower bar. Personally, when I reviewed it, I did not think the bar was necessarily the problem. There is just as much of a problem with educating and training the police officers and making sure they understand how article 10 and 11 rights can be properly tempered. It was a question of training and understanding as much as it was of where the bar was for disruption.”––[Official Report, Police, Crime, Sentencing and Courts Public Bill Committee, 18 May 2021; c. 52-53, Q77.]
Alex Cunningham
I know this makes me a very old person, but I go back to the 1970s again and police and the exercise of their powers. I was a reporter at a sister paper of The Northern Echo, which had a strike that lasted for some 12 months. Eventually, the company managed to start producing a paper. We demonstrated outside every night and attempted to stop them getting the paper out of the building. It was very successful. The police were using existing powers to arrest many people, but there were very few, if any, convictions. Does my hon. Friend share my concern that the new powers here, which we do not really know how the police are going to interpret, could lead to more people being arrested and ending up in the criminal justice system?
Bambos Charalambous
My hon. Friend again makes a very good point. The Government clearly have a desire to imprison more people, because they are embarking on a prison-building programme—I do not know whether that is part of the reason why they are introducing these powers. Good policing is using discretion, dealing with each occasion as it arises and policing in a sensitive way. Arresting people should be a last resort, albeit one that the police should use when appropriate.
To quote Matt Parr further:
“I think there are dangers and, as ever, the bar for measuring what was significant or what was serious should be a high one. We all recognise that. It should not be done on the flimsiest of pretexts. Again, it would then be open to challenge, and I think police officers would only wish to use it when they were confident.”—(Official Report, Police, Crime, Sentencing and Courts Public Bill Committee, 18 May 2021; c. 53, Q77.]
Matt Parr made some important points that should serve as a reminder to Ministers of the problems with clauses 54 to 60. He did not want a lower threshold; he wanted more training for police officers so that they can better understand how articles 10 and 11 might be adhered to. However, the clauses widen the legislation significantly. Does that not make the job of the police in enforcing the legislation more complex?
Lochlinn Parker, the head of civil liberties at ITN Solicitors, said:
“It is going to be down to police officers to try and determine a highly nebulous idea: what is annoying? Everybody is annoyed when a protest takes over the street, but lowering that [threshold] significantly is creating a situation where, if minded to, there will be very little protest that would be lawfully allowed.”
He continued:
“Police will be asked, as they frequently are by the government and the press, why wasn’t more done to stop this protest which caused disruption and problems”.
He also said:
“The political pressure on the police, and potentially their own inclinations in terms of keeping control and order, is going to come to the fore.”
Bob Broadhurst was gold command for the policing of the 2009 G20 protests and now lectures at the London Policing College. Apparently, he choked on his coffee when reading the explanatory notes for the Bill. He said:
“They’re saying protestors are now using new tactics—they’re locking themselves in, they’re gluing themselves down, they’re blocking roads. They were doing that 30 years ago.”
He went on to say:
“None of these tactics are new.”
Clifford Stott, a professor of social psychology at Keele University and expert in protest and police behaviour, argues that, although he vehemently disagrees with the proposals,
“under the Human Rights Act, the police will not be able to enforce any elements of the legislation which interfere with Articles 10 and 11 of the European Convention on Human Rights—freedom of expression and freedom of assembly and association.”
Sarah Champion
Does my hon. Friend share my concerns that the people who are absolutely set on protesting are going to do it regardless of the legislation, in that getting arrested is almost part of their MO? Does he also share my concern that the Bill will have a chilling effect on people’s right to protest, full stop? Secondly, there will be people who are, in their understanding, at completely lawful protests, and will, without any intention on their part, get caught up when the bar is lowered. A whole group of people who should not be arrested will, as my hon. Friend said, be clogging up the police system.
Bambos Charalambous
Again, my hon. Friend makes an excellent point. The lowering of the bar will mean that innocent people will be caught up in something when they have gone to protest about a perfectly valid issue that they are concerned about. They may get caught up in this unwittingly and could end up being criminalised as a result .
Maria Eagle
My hon. Friend is being most generous in giving way. Does he agree that this unnecessary criminalisation of dissent, which would happen if the Bill were enacted, goes against the very best traditions of our history and democracy? We have always prided ourselves on enabling people to dissent and on allowing people to express their views in the public space about current laws and things they wish to change. If these provisions were enacted, it would go completely against that tradition.
Bambos Charalambous
Again, my hon. Friend makes an excellent point. Many of the rights we have today are hard won and came about through protest. If it were not for those protests, we would not be here today—certainly, there would not be any female MPs if those rights had not been won.
The Parliamentary Under-Secretary of State for the Home Department (Victoria Atkins)
Forgive me. I do please want to place on the record the enormous contribution that the suffragists made. Indeed, some would argue that while the suffragettes did powerful work in raising awareness, it was the suffragists who worked with male Members of Parliament to pass the very laws that were needed to enable women to sit in this place.
Bambos Charalambous
I acknowledge the huge contribution that the suffragists made, but the suffragettes brought the campaign to prominence. The words displayed by the statue of Millicent Fawcett in Parliament Square are the words that she delivered in a speech about Emily Davison, who threw herself under the King’s horse in 1913, which was another act of protest.
Let me conclude what I was saying about the comments of Clifford Stott, professor of social psychology at Keele University. Professor Stott said:
“If then subsequently this government or a subsequent government scraps the Human Rights Act, then those protections”—
that is articles 10 and 11—
“would no longer exist, and the government and police could interfere with those protected rights.”
Furthermore, Matt Parr was clear in his recommendations. They are about training and resources, which he asked the Government to ensure were in place for policing.
Alex Cunningham
I want to quote again the evidence of Leeds for Europe because there is a real reputational issue here for our country and our Government:
“Such draconian laws seem to align E&W to regimes such as those in Turkey, Hungary and Belarus, rather than those that we were aligned with when part of the EU. The police will have scope to expand their powers against the citizens and to use more active intervention, which might result in more draconian measures… There is a significant risk that the police would be regarded as a hostile agency and individuals seen as enemies of the state rather than people with genuine concerns and causes that they want to promote.”
Surely my hon. Friend agrees that we do not want to be seen as a country that oppresses its people in such a way.
Bambos Charalambous
I thank my hon. Friend for his comments. Absolutely, we do not want to be a country that is seen to be oppressing its people. Those rights to protest are at first lost gradually, then quickly, so the transition from what is seen to be a democracy to authoritarian state happens very quickly and we need to be wary of that. We cannot go down that path.
Sarah Champion
I am grateful that the Foreign Secretary has been very good on protecting the right to protest internationally. It seems somewhat hypocritical that we are reducing the right to protest here while on the international stage we are advocating for it.
Bambos Charalambous
Again, my hon. Friend makes an excellent point. We cannot be seen to be criticising other Governments for the way they suppress the right to protest when we are doing the same here. That weakens our global standing and we should not go down that path.
The College of Policing has authorised professional practice, or APP, that contains 30 tactical options to deal with public disorder and protest. It is out of date. It does not include recent relevant case law or information on certain new and emerging tactical options. The college is planning a review. The inspectorate states:
“By 30 June 2022, the College of Policing, through its planned review, should bring the public order authorised professional practice (APP) up to date and make arrangements to keep it current, with more regular revisions as they become necessary. It would also be beneficial to consolidate the APP, protest operational advice and aide memoire into a single source (or a linked series of documents).”
The inspectorate notes:
“We found that forces do not do enough to share legal opinion or case law on protest policing. And officers and staff rarely use Knowledge Hub’s ‘Specialist Operational Support—Public Order Public Safety’ group… By 31 December 2021, chief constables should make sure that their legal services teams subscribe to the College of Policing Knowledge Hub’s Association of Police Lawyers group.
By 31 December 2021, the College of Policing should ensure that all Public Order Public Safety commander and adviser students attending its licensed training are enrolled in the College of Policing Knowledge Hub’s Specialist Operational Support—Public Order Public Safety group, before they leave the training event…
In making decisions about how to respond to a protest, public order commanders need to consider domestic human rights legislation. And they must also consider a patchwork of European case law. These have established precedents on issues such as how long protests can reasonably go on for, and the level of disruption that protests can reasonably cause.”
The inspectorate stated:
“Examining the gold strategies and silver plans submitted as part of our document review, we found that commanders generally showed a grasp of human rights legislation. However, we did not see evidence that they consistently considered the wider legal picture.”
The inspectorate also recommended:
“By 30 June 2022, the National Police Chiefs’ Council, working with the College of Policing, should provide additional support to gold commanders to improve the quality of gold strategies for protest policing. This support should include the creation and operation of a quality assurance process; and/or the provision of more focused continuous professional development. The additional support should ensure that gold commanders for protest operations include an appropriate level of detail within their gold strategies. This may include the levels of disruption or disorder above which enforcement action will be considered…
By 30 June 2022, the National Police Coordination Centre should revise the national post-event learning review form so that it contains a section to report on the policing operation’s impact on the community…
Forces usually have good protest-related briefing processes and commanders’ decisions generally reach the front line effectively. However, gold strategies often do not set out the limits of acceptable behaviour from the protesters. Better explanations of these limits would help officers to understand what is expected of them and empower them to take appropriate action.
Non-specialist officers receive limited training in protest policing. As a result, they often lack confidence in using police powers. Some officers are anxious about attracting complaints and being filmed in protest situations. It is important that forces provide good-quality training and briefing before deploying officers into these situations.
Forces should make better use of community impact assessments to evaluate the impact of protests on those who live in, work in or visit an area. The process should include regular reviews and updates, so the police can respond to changing circumstances. Only seven of the ten forces we inspected submitted any community impact assessments for examination, and some of those we examined were of a poor standard”.
With the covid legislation, we have seen the difficulty that rushing through new police powers can bring for the police. They have managed to do a brilliant job of enforcing the new laws, but they have faced a number of difficult decisions owing to the loose drafting of the law, and they have received criticism where they have got it wrong. The new protest powers will force the police to make political decisions about which protests they deem unlawful. That is extremely concerning and will put the police and the public in a difficult position.
Why do the Government want to make the police the gatekeepers for public protests? The Government are choosing to ignore the many peaceful protests that go ahead and are attended by police. The public order measures in the Bill risk putting the police in a trying position more often, and they risk creating more disorder and disruption. The Government should be putting the police in a position whereby the rules are not too confusing or too broad. If they do not do so, that will only create more flashpoints.
It is clear that police support for the Bill is not what the Government are saying it is. The Metropolitan police want more clarity on ways to manage very disruptive protests that go on and on, and to make sure that emergency services can get through roads. That is understandable, but the police want more clarity and certainty, which is what they said in the evidence sessions. These provisions bring the opposite. Instead of a modest reset, we have in front of us clauses that significantly widen police powers on public order.
Clauses 54 to 60 mark a substantial change in the approach to policing protest, which has the potential to be applied disproportionately and could curtail article 10 and article 11 rights that the inspectorate of constabulary is keen to protect. The police already have the powers to break up protests that cause harm, serious public disorder, serious damage to property or serious disruption to the life of a community. Many of the country’s best lawyers are telling us that the Public Order Act 1986 and the many other powers on the statute book to police protests are enough.
Alex Cunningham
One of the things that troubles me most about the Bill is the stuff in relation to this place—this Parliament of ours, and this democracy—and the fact that people could be prevented from protesting on our doorstep and disrupting our lives. People should have a right to disrupt the lives of MPs and those who work in this place, in order to get their point across. Does my hon. Friend agree that, for all the things that the Government want to do with the Bill, one thing they should not deny the people is the right to protest at the seat of our democracy?
Bambos Charalambous
Again, my hon. Friend makes an excellent point. We are the decision makers in this Parliament. We are the ones who make decisions that impact on people’s lives, so if we do not hear and are not aware of the protests, how will that change be brought about?
Mr Goodwill
Surely the point is that as elected representatives, it is our responsibility to cast our votes in this place on behalf of those people. If a protest outside prevents us from coming here, that is acting against democracy, not in favour of it.
Bambos Charalambous
The right hon. Gentleman makes a good point. Yes, we should be allowed to come here. Nobody has prevented MPs from coming to Parliament since the civil war, and that right has existed and will continue to exist. We have the right to be here as elected representatives, and nothing should infringe on that right. That does not mean, however, that people should not be allowed to protest outside Parliament. We should be able to hear their voices and hear what they have to say. They should be allowed to make that protest.
Mr Goodwill
I thank the hon. Gentleman for giving way again. The point I am trying to make is that many of us drive here from distant parts of the country, which was particularly the case during lockdown. If we could not drive through Parliament Square and arrive at this building, we could not do the job on behalf of our constituents. That is tantamount to people blocking a polling station on polling day. I am sure he would condemn that as well.
Bambos Charalambous
I use public transport—I am a London MP, so it is easier for me to do that to get here—but clearly MPs should have access to Parliament. I am not disputing that at all because we need to be able to get here to act on behalf of our constituents, but I disagree with what the right hon. Gentleman is saying.
Maria Eagle
I understand the point made by the right hon. Member for Scarborough and Whitby. That is a concern, of course. Does my hon. Friend agree that there have been many protests outside here? I have been a Member 24 years and have seen a lot of protests outside Parliament. The vast majority did not in any way at all threaten my ability to get here to vote in Divisions. The issue is proportionality.
Is it right to ban protests because there may have been an occasion when hon. Members were prevented from being able to drive to their place of work because of the way a protest in Parliament Square had been policed? That is an important point. It is about proportionality. We do not ban everything to prevent one instance of an undoubtedly undesirable effect at the far end of the spectrum. Is that not correct?
Bambos Charalambous
My hon. Friend is entirely correct. It is a question of proportionality, and we need to make sure that we are allowed to get here as parliamentarians, but also that protesters are allowed to air their views. It is about striking that balance. The legislation goes too far the other way, and does not strike such a balance. It is too much against the right to protest.
The reports by the inspectorate ask for modest changes, but the Government decided to go much further. The Bill targets protesters causing “serious unease”, those being too noisy and those causing serious annoyance. Clause 54 amends section 12 of the Public Order Act 1986 so that police officers can issue conditions on protest marches that generate noise, but may have significant relevant impact on persons “in the vicinity” or that may result in “serious disruption” to the activities of an organisation in the vicinity.
Sarah Champion
I do not know whether it was recorded properly, but I do not think we ever got to the bottom of what “serious noise” was. During our evidence session, a drill was going in the next room. I suffer from tinnitus and it was driving me insane. I could not concentrate and I wanted it to stop, but there are examples of protests at which I would be chanting and would think that that was acceptable. Did we ever get to the bottom of what “serious noise” was?
Bambos Charalambous
My hon. Friend makes an excellent point. I do not think that we ever did, and that is part of the problem because there will be a disparity in how the Bill is implemented, which will lead to confusion because what one person regards as noise may not be what another person regards as noise. The last thing we want is confusion when protests are being policed.
Under clause 54, noise would have to have a relevant impact, resulting in intimidation, harassment, serious unease, alarm or distress to bystanders. The vague term “serious unease” is a very low threshold for police-imposed conditions.
Sarah Champion
Owing to the areas I campaign on, I have had protests against me and that does cause me serious unease—it is horrible. They have led to death threats and all manner of things, but I would not stop people’s right to protest because we all have our rights and I find it incredibly chilling that people’s rights are going to be stopped.
Bambos Charalambous
My hon. Friend makes an excellent point. The term “serious unease” is vague. As MPs, we get, as the Minister has said, death threats and abuse, which we should not get, but “serious unease” is a very low threshold.
Victoria Atkins
Let me make a genuine effort to help Her Majesty’s official Opposition. They are surely not saying that death threats are an acceptable form of protest. Death threats are terrifying for those who are victims. Indeed, I would say they impede democracy in this country precisely because people worry about the threats to their personal safety. I just want to clarify.
Sarah Champion
On a point of order, Mr McCabe. I think the Minister has misinterpreted what I said. I had protests against me that were rallying the crowds, which led to the exact same phraseology that went into death threats. I am saying that that was incredibly chilling and uncomfortable. Of course I wanted it to stop, but I do not try to deny people’s right to protest.
Bambos Charalambous
My understanding is that the clauses will not affect people’s right to picket, but will the Minister provide reassurance that people’s right to picket or attend demonstrations will not be affected? There is also a penalty for someone who breaches a police-imposed condition on a protest when they ought to have known the condition existed. If someone attends a protest and the police have placed conditions on the number of people allowed to attend, how will the attendee know whether they are the 101st person to join a demonstration that has a limit of 100?
Alex Cunningham
I want to take my hon. Friend back to the issue of noise. Paragraph 546 of the explanatory notes to the Bill states:
“Where a senior police officer reasonably believes, having had regard to various factors, that the noise generated by a one-person protest may have a relevant impact on persons in its vicinity or may result in serious disruption to the activities of an organisation which are carried on in the vicinity of the one-person protest, the senior police officer may give directions imposing on the person organising or carrying on the protest such conditions as appear to them necessary to prevent such disruption or impact.”
The Government give us that explanation, but they still do not define what a disruptive noise is. It would be helpful if the Minister told us.
Bambos Charalambous
My hon. Friend makes an excellent point. It would be helpful if we had an idea of the definition of “disruptive noise”. If we are to pass the Bill, we should know what we are passing.
There have been problems when the police have not satisfactorily communicated conditions to protesters. Will the Minister provide the Committee with evidence to justify the proposed widening of criminal responsibility in clause 56? The HMICFRS report talked about a slight shift in the legal test on that, but what the Government propose goes way too far. Sir Peter Fahy, former chief constable of Greater Manchester police, said that the legislation includes “some really dodgy definitions” that the police are supposed to make sense of. The point of protest is to capture people’s and the Government’s attention. Sometimes protests are noisy and sometimes annoying, but they are as fundamental to our democracy as Parliament is and as the courts are.
On 6 October last year, I had the pleasure of witnessing an impressive and effective protest outside Parliament, which was organised by the Let Music Live campaign to highlight the plight of freelance musicians who received very little support from the Government during the coronavirus pandemic. The protest involved 400 socially-distanced musicians, all dressed in black, playing 90 seconds, or 20%, of Gustav Holst’s “Mars”. Not only was the demonstration eye-catching, but it used the sound and the loudness of Holst’s piece to convey the message.
The demonstration consisted of 90 seconds of sound building until it came to an abrupt stop. Would such a protest fall foul of clause 54? I fear it might, but who would be qualified to assess whether a 90-second blast of Holst’s “Mars” constituted noise that might have a “significant” or “relevant” impact on “persons in the vicinity”? The phraseology is so vague and devoid of precise meaning that it will be a legal nightmare for the police to determine what the terms “significant”, “relevant” and “impact” mean for the purposes of the Bill.
Sarah Champion
I wonder whether the bar would be set at exactly the same level if the music were not classical, but heavy metal. Are we getting into a really subjective area here?
Bambos Charalambous
My hon. Friend is absolutely right that this will be very subjective. I used to play rugby, and this is what we would have called a hospital pass. It is going to put the police in an impossible situation, and they will have to make judgments about what constitutes “significant”, “relevant” and “impact.”
Maria Eagle
Does my hon. Friend agree that in addition to putting the police in an invidious position, the measure will promote different interpretations across different forces, and possibly within the same force? The officer on duty who has the obligation to make the call may well have a different view from another officer, on another day. What we are promoting here is confusion rather than clarity.
Bambos Charalambous
My hon. Friend makes an excellent point. This is going to be subjective. What one person considers noise might not be the same for another person. There may be a different view from different officers in the same force, which will lead to confusion.
Alex Cunningham
My hon. Friend makes an interesting point. There is the potential for the Bill to have unintended consequences. In my Stockton-on-Tees constituency, all the churches come together once a year in the parish gardens, although they have not been able to do that in recent times. They have loud music, guitars, drums and all manner of things going on. Backing on to the parish gardens is the Royal Oak pub. Under this legislation, people in the Royal Oak may think that the people demonstrating their faith in the parish gardens are a public nuisance and are getting on their nerves as they enjoy a pint, and they could complain to the police.
Bambos Charalambous
I do not know whether that would be captured by the legislation, but if it would be captured, that would be wrong. I mentioned the Let Music Live protest. Even if such a protest were deemed permissible, it would still cause many problems of interpretation for the police, who would have to use the Bill to define whether the protest had “significant” or “relevant impact.”
Aside from music, what about singing? Singing songs and chanting have been a feature of every protest or demonstration that I have ever been on. Would singing be captured by the clause? The hymn “We Shall Overcome” was adopted as an anthem and sung as a protest song. In 1963, the folk singer Joan Baez led 300,000 protestors in song as they sang “We Shall Overcome” at the Lincoln Memorial as part of the civil rights movement march on Washington. Some 300,000 people singing “We Shall Overcome” must have made a fair bit of noise. Imagine a crowd of 300,000 outside the Houses of Parliament singing “We Shall Overcome.” Who would determine whether that constituted noise having a “significant” or “relevant” impact on “persons in the vicinity”?
Lee Anderson
There is another chant, “What a load of rubbish,” and that is pretty much what I am hearing today. Does the hon. Gentleman realistically expect that the police could stop 300,000 people singing a song?
Bambos Charalambous
I thank the hon. Gentleman for his intervention, and ask, well, why not? Does he not think that is a noise? If it is not a noise, why is that not set out in the legislation? Where is the guidance on it? The legislation is badly worded and wrong, and its vagueness will cause confusion. The hon. Gentleman has demonstrated the point I am making; he says it is a load of rubbish, but in my view that would be captured under the legislation. Are songs and music exempt? Perhaps the Minister will tell us.
Some protests and processions are loud, colourful and joyful. I am sure the Minister is aware of the explosion of colour and sound that is the Pride parade, which takes place in towns and cities across the country. Pride in London is a wonderful event, and the procession is a joy to watch. It is also very noisy. There are drums, whistles, sound systems and cheering crowds; it is quite something. Will the London Pride parade, which passes down the top part of Whitehall, constitute noise and have a significant and relevant impact on persons in the vicinity? Part of the point of Pride is to be noisy. Could Pride be outlawed for being noisy? If not, why not? Let me put on record my support and solidarity of the LGBT+ community during this Pride month.
Even if the Minister brushes off music, song and noise made by the Pride parade as not constituting noise for the purposes of the Bill, does she concede that noise can be an integral part of protest? Earlier this year, we watched in horror as the military staged a coup against the democratically elected Government of Myanmar. There was outrage among people as the military clamped down on protest and imposed curfews. Faced with the prospect of curfews and armed brutality against street protests, protestors found other ways to make their protest heard. In February, in the city of Yangon, ordinary citizens staged a noisy protest, by banging pots and pans and anything they could lay their hands on from their balconies and homes, to create an almighty din and show civil disobedience and anger against the coup. Those same protestors in the UK, banging their pots and pans, would fall foul of clause 54. Noise is part of protests; whoever drew up the proposals clearly has not thought through the dilemma that the police will face, putting them in an invidious position as they try to enforce these sloppily drafted clauses.
I am surprised that the Government, who pride themselves so much on their libertarian values, are so prescriptive and authoritarian in trying to pass the legislation. The right to protest is a fundamental freedom, as is freedom of speech. The former Prime Minister and Home Secretary, the right hon. Member for Maidenhead (Mrs May), was right when she said on Second Reading that the legislation is concerning and risks going against the right of freedom of speech. On the power of the Home Secretary to make regulations on the meaning of serious disruption to the activities of an organisation or the life of the community, the right hon. Member made another important point, saying:
“It is tempting when Home Secretary to think that giving powers to the Home Secretary is very reasonable, because we all think we are reasonable, but future Home Secretaries may not be so reasonable.”—[Official Report, 15 March 2021; Vol. 691, c. 78.]
If there were a peaceful protest outside the Home Office that the Home Secretary did not like, everyone could be criminalised for shouting too loud, so that people working were not disturbed. Does the Minister have a cause that she cares deeply about and may want to protest about? The Home Secretary would have the ultimate say on whether what she was saying was right or wrong. I know that I would not want the Home Secretary to have that power.
Michael Barton, the former chief constable of Durham police, compared the measures in the Bill to those of a paramilitary-style police force, and asked if the Government are
“happy to be linked to the repressive regimes currently flexing their muscles via their police forces?”
I reiterate his question to the Minister, and I hope she will answer it. The very same Home Office that is offering Hong Kongers British national overseas visas to escape the oppressive regime that last week banned the annual vigil to commemorate the Tiananmen Square massacre in 1989 would criminalise those Hong Kongers for demonstrating loudly outside the Houses of Parliament. Once again, the Government are on the wrong side of the argument; instead, they find themselves on the same side as those who curtail the right to protest and silence the voices of the people.
Sarah Champion
The march in Hong Kong that my hon. Friend refers to shut down the city. We, as a country, have been very outspoken about China’s action towards those protestors, for criminalising them in such a mass brutal manner. I bring my hon. Friend back to the hypocrisy that we might see should we welcome those protestors with welcome arms while, as he says, criminalising them in this country.
Bambos Charalambous
My hon. Friend makes an excellent point. Why do we criticise the regime in Hong Kong when we are going to be imposing limitations on the right to protest here? It just does not make any sense. It does not add up.
Sarah Champion
It is very obvious that this is a contentious topic, and the one that has gained the most media attention for this Bill. I am very grateful to my hon. Friend the Member for Enfield, Southgate for making a very persuasive case. I must challenge my friend the hon. Member for Ashfield because I think his criticism was unjust, but it does highlight that what one person thinks is nonsense can be a very passionate thing for another, and we all deserve the right to protest.
I would like to start by making the argument, again, that the police already have wide powers to impose conditions on both static assemblies and marches, as well as broad discretion in how those powers are applied. Let me quote from the Liberty briefing:
“The cumulative effect of these measures—which target the tools that make protest rights meaningful – constitute an attack on a fundamental building block of our democracy.”
Liberty say that the clauses are fundamental block on our democracy. They say that these are draconian measures that impose disproportionate controls on free expression and the right to protest; measures that will have an unfair impact on black, Asian and ethnic minority people.
It is unfortunate that the amendments tabled by Labour have not been selected. I would like to state that Labour is very supportive of the measures that allow access for emergency services, but overall I personally think that the clauses go far too far, and I support my honourable colleagues in wanting to vote against this clause. It should not be in this Bill.
I am interested to hear from the Minister whether she agrees with the witnesses we heard from that the police already have sufficient powers to deal with protests. In the evidence session, Matt Parr said,
“there is quite a stark difference between London, which obviously gets a disproportionately large number of protests, and elsewhere.”
He said that senior police officers outside London
“tended to think they had sufficient powers”—[Official Report, Police, Crime, Sentencing and Courts Public Bill Committee, 18 May 2021; c. 53, Q77.]
Again, I would be very interested to hear from the Minister if she thinks that these measures are actually London-centric, and not needed in places like Rotherham—I see the Minister grimace, and I share that—or if they are needed across the country. Furthermore, how will she make sure that police forces across the country handle them at the same level, and will there be training and support to enable them to understand exactly where to apply them?
I ask that because in Rotherham, after the scale of the child abuse in the town became known, the far right would come and basically put the town into lockdown every month. It was incredibly intimidating. It stopped businesses being able to trade and basically drove people off the streets and out of the town centre because they were too scared to go in. We then had a change in the police officer in control of the protests. He swiftly applied different measures on the route they could take—they could not meet in the centre of town—the level of planning and the level of security that the protestors had to put in place, and quickly the protests started to diminish to the point at which they stopped. It was clear to me at that point that the police do have the powers; it is about whether they know about them and have the ability and indeed the resources to enforce them.
Rotherham has a long and proud but also bloody history of protest. I think in particular of the battle of Orgreave, which was a pivotal event in the UK miners’ strike and has been described as a brutal example of legalised state violence. That was just one event of many in the mid-1980s that led to the Public Order Act 1986. Why has it taken from 1986 until now for Ministers to feel that we need new legislation? I also raise that because the brutal way in which the police dealt with those protestors has led to mistrust and suspicion towards our police forces and I really do not want to see this legislation, if it goes forward, building on that level of mistrust not just in Rotherham but across the country, because once trust is lost it is almost impossible to bring it back.
I turn to some of the key organisations that submitted written evidence or were witnesses and spoke against these measures. Liberty has said that
“the Bill drastically limits the right to protest.”
The Good Law Project said:
“The provisions threaten to neuter protests in ways that would render them ineffective—effectively taking away one of the only ways in which people can express their dissatisfaction in a democratic society.”
It went on to say:
“The Bill renders the UK an outlier when it comes to international human rights norms around the right to peaceful assembly.”
I find it really disturbing—not least as Chair of the International Development Committee—that we are stepping away from our international obligations and doing so on the right to protest, which I know the Foreign Secretary is really keen to uphold internationally. The movement we see in the Bill is disturbing.
Rights of Women said:
“The Bill is a further dangerous extension to police powers that exemplifies the rolling back of our human rights and ignores a history of violence against women at the hands of the police.”
A petition entitled “Do not restrict our rights to peaceful protest” in response to the Bill has more than 250,000 signatures. Two hundred and forty-five organisations signed a letter co-ordinated by Liberty and Friends of the Earth to the Government on 15 March, which said that the Government’s proposals were cause for “profound concern”. The organisations highlighted “draconian…police powers” to restrict protest. Organisations who signed the letter include Amnesty International, Greenpeace, the Royal Society for the Protection of Birds, Unite, Rights of Women, Inquest and the Northern Police Monitoring Project.
The Bar Council said:
“There are clear tensions between this section and the freedom of protest and expression (both protected under the European Convention on Human Rights). It gives expansive powers to the police, which encompass the arrest of one individual who is independently protesting. There are legitimate concerns that it would allow the Government to prevent protests with which it does not agree.”
That is one of my biggest concerns. Let us look at former and current Government Ministers who are against the proposals.
Alex Cunningham
The written evidence from Leeds for Europe quotes Mr Justice Laws saying that a margin must be given to protests. He also said:
“Rights worth having are unruly things. Demonstrations and protests are liable to be a nuisance. They are liable to be inconvenient and tiresome, or at least perceived as such by others who are out of sympathy with them.”
However, under the new powers in the Bill, if the Home Secretary is out of sympathy with a particular protest or protest group, she could ban them from protesting. Surely that is an affront to our democracy.
Sarah Champion
It absolutely is. My hon. Friend lays a very startling future before us. It might not even get to the Home Secretary—it might be an individual police officer who makes the call, or a chief constable or a police and crime commissioner. That is what concerns me.
By their very nature, protests are designed to be annoying, to be loud, to raise their views. When we look back at our history, where would we be without protest? It is inconceivable. This country has a proud history of protest—however annoying, however much of a nuisance protests are. That is what moves us forward as a democracy. To lose that, or to have it chipped away, is a very disturbing position.
That view is echoed by former and current Government Ministers. On 7 September 2020, the Minister for Crime and Policing, the hon. Member for North West Hampshire (Kit Malthouse), affirmed:
“The right to peaceful protest is a fundamental tool of civic expression”
and promised that protest
“will never be curtailed by the Government.”—[Official Report, 7 September 2020; Vol. 679, c. 384.]
What has changed in the intervening nine months?
The former Attorney General, Dominic Grieve QC, said that
“no new laws were required if the police used the substantial powers they already have”.
On Second Reading, the right hon. Member for Maidenhead said:
“I do have some concerns about some of the aspects of the public order provisions in the Bill. I absolutely accept that the police have certain challenges...but freedom of speech is an important right in our democracy, however annoying or uncomfortable that might sometimes be…Protests have to be under the rule of law, but the law has to be proportionate.”—[Official Report, 15 March 2021; Vol. 691, c. 78.]
We would all agree that protests have to be under the rule of law, but I think we would disagree on the proportionality.
Also on Second Reading, the right hon. Member for Chingford and Woodford Green (Sir Iain Duncan Smith) said:
“Is the Bill perfect? No, it is by no means perfect. I hope that it will be corrected as it goes through. Will that happen? Certainly. I accept that there are issues around freedom of speech and the right to assemble, and I think that these will be dealt with during the course of the debate.”—[Official Report, 15 March 2021; Vol. 691, c. 90.]
I hope that that is true.
Let us turn to the ambiguities in the proposed legislation. Evidence given by witnesses in the Joint Committee on Human Rights session on the proposed police powers showed that the terms
“serious unease, alarm and distress”
are not sufficiently clear for protesters to predict when conditions might be imposed on demonstrations. I reiterate the call from my hon. Friend the Member for Enfield, Southgate: the Minister needs to set out exactly what serious unease, alarm and distress is, as well as what serious noise is. Jules Carey from Bindmans LLP said the terms are
“too vague in law to have any meaningful impact or sensible interpretation. They also create a threshold that is too low.”
The Good Law Project says of the clauses that,
“the cumulative effect is likely to be deeply damaging”
because of their ambiguity, and because the police
“will have considerable scope to test the limits of their own powers.”
The Bar Council said:
“The present drafting is also vague and will require interpretation by the senior courts before the precise meaning of the law becomes settled. We consider this to be undesirable in legislation which limits fundamental civic rights.”
The Good Law Project, the Bar Council and witnesses from evidence sessions for the Bill Committee and the Joint Committee on Human Rights say the wording is too vague for protesters to interpret. How will the Minister ensure protesters will not get arrested at peaceful protests due to their understanding of current legislation?
In our evidence sessions, Matt Parr, Her Majesty’s inspector of constabulary, said:
“We were very clear in what we said that any reset should be modest.”
We seem to have drifted a long way from modest—most organisations who have given evidence have argued that the changes in this part of the Bill are not modest. He continued:
“We also said that, because of article 10 and article 11 rights, some degree of disruption is not just an inevitable by-product, it is sometimes the whole point of the exercise of protest, and on that basis, it has to be encouraged.”––[Official Report, Police, Crime, Sentencing and Courts Public Bill Committee, 18 May 2021; c. 52, Q77.]
Councillor Caliskan, from the Local Government Association, said:
“In my experience, from having spoken to council leaders from across the country, the best way that peaceful protest is facilitated is planning in advance. That means the community and organisers having a good relationship with the police, and local forces working closely with local authorities”.––[Official Report, Police, Crime, Sentencing and Courts Public Bill Committee, 18 May 2021; c. 60, Q92.]
That is another concern—that these parts of the Bill will undermine the good working relationships and trust, and that will go on to make it even more difficult to organise peaceful protests.
Maria Eagle
I have already made a number of interventions and do not intend to make an extremely long speech. I want to make some points about what I consider to be wholly unnecessary proposed changes to our right to protest in this country. While it is nice and quiet in this Committee Room while we consider the Bill line by line, it is certainly not the case that these proposals have been greeted quietly in any sense of the word outside in the society on which the Bill seeks to impose its new arrangements.
This part of the Bill has attracted extremely, broad, wide and deep condemnation across a number of sectors. It is important to bear that in mind when we consider whether the Bill offers a reasonable balance. There always has to be a balance between the right to protest and our rights as individual members of society in this democracy, and the wider, broader interests of society in getting on with its business. That has always been a balance that the Government of the day in any democracy have to strike. There is no difference between our current Government seeking to strike that balance now and any Government in the past seeking to do that, because there does have to be a balance.
The question is whether or not the proposals in the Bill that are being brought forward by the Minister are necessary and proportionate; whether or not they actually strike that balance; whether or not our existing arrangements, which have been ongoing for some time, are wholly inadequate enough to need altering. I do not think there is any doubt about the fact that the Bill, as proposed, would make it harder to protest. The question, then, is this: if one accepts that there is a need to alter the situation—which I do not—are these proposals proportionate and do they do what is necessary, even from the point of view of the Government?
The first thing that we need to take into account, as I have said, is that there is a broad set of people and civil society organisations—academics, former Home Secretaries, police chiefs and lots of individuals—who have signed petitions to say that this is entirely wrong and an unwarranted interference in our democratic freedoms. The Bill has been condemned by hundreds of civil society organisations and 700 or so legal scholars who urged the Prime Minister to ditch draconian restrictions on the right to protest, as was reported in the Independent. Some of those 700 legal scholars might be renowned for being able to interpret the proposed wording of the statute in front of us. To find 700 legal scholars saying that this is draconian and unnecessary is something we should consider and take into account.
Petitions organised by various civil society organisations—my hon. Friend the Member for Rotherham referred to at least one of them—have received more than half a million signatures from fellow citizens, calling for this part of the Bill to be removed. That is significant dissent that should be considered and taken into account. Former Home Secretaries and Prime Ministers have expressed concern from across the political parties, not all of them opponents of the current Government and some from within their own ranks. They have expressed, at the very least, concern about the extent of the proposed measures.
The starting point ought to be our democratic rights as individuals to freedom of expression and assembly, protected at present by articles 10 and 11 of the European convention on human rights. The fundamental provision is the right to say what one wants and protest. Obviously, that is always subject to the law, but the starting point is that those rights should be infringed or curtailed only where necessary and proportionate. The presumption ought to be that we protect those rights. The authorities in a democracy such as ours that signed up to the European convention on human rights should have a positive obligation to facilitate those rights for individual citizens.
We have all come across protests that we do not agree with. Members on the Government side might have come across more protests that they do not agree with than I might have. That does not give us the right to ban them. In fact, it is an essential part of our democracy that we should facilitate such activities, particularly if we do not agree with them.
Mr Goodwill
I thank the hon. Lady for giving way. Could she point out where the Bill differentiates between protests we agree with and those we do not agree with?
Maria Eagle
I am not saying that the Bill does. I am not looking at any particular Member, but I know the attitude of some Members is somewhat determined by whether they agree with the protest in front of them. I have been inconvenienced by protests I agreed with and protests that I did not; the inconvenience is the same. Because of the democratic nature of our society, we ought to try to protect the right to protest and freedom of expression, and subject them only to necessary and proportionate restrictions. We should not let our individual natural feelings impinge on our views on whether they are proportionate and necessary.
Mr Goodwill
The hon. Lady makes some reasonable points, but would she agree that, in the case of some of the Extinction Rebellion protests, people who were possibly sympathetic to their views were turned against them by the disruption and problems caused by people climbing on the roofs of trains or gluing themselves to buildings?
Maria Eagle
I do agree with that point. One might then have an argument with the organisers about whether the nature of those protests is appropriate. I still do not think that it is a reason to remove people’s fundamental right to protest just because some protests are inconvenient, annoying and noisy.
Alex Cunningham
I do not think that the provisions were covered by the European convention on human rights. We have a proud history of demonstrations being effective in this country. May I refer my hon. Friend to the Tolpuddle martyrs? In the 1830s, seven men were arrested for secretly signing up to a trade union, and were eventually transported to Australia. Thousands of people took to the streets across the country, and marched through London demanding that that unlawful conviction be overturned. The seven men who were transported to Australia were eventually pardoned and brought home. Demonstrations bring about change, and we must not interfere with them.
Maria Eagle
I agree. I do not accept that we must not interfere at all, but we must interfere in a proportionate and necessary manner. There is always a balance: freedom of expression is not absolute; freedom to protest is not absolute. There is always a grey area. I am trying to be helpful and not just condemn what the Government are seeking to do out of hand, although I disagree fundamentally with the provisions, which go too far.
Clause 54 amends the Public Order Act 1986 to allow the police to impose conditions if they have a reasonable belief that the
“noise generated by persons taking part in the procession may”—
not “will”—
“result in serious disruption to the activities of an organisation which are carried on in the vicinity”
or
“may have a relevant impact on persons in the vicinity”.
The clause confers a power on the Home Secretary to make regulations. There has been some to-ing and fro-ing in Committee about the meaning of
“serious disruption to the activities of an organisation which are carried on in the vicinity”.
We all have views—and there are different views—about what “a relevant impact” is, and what “serious disruption” amounts to.
We may have a subjectively different understanding of what noise is. My hon. Friend the Member for Rotherham revealed that she has tinnitus, and noise for her is different from noise for me. That is almost certainly the case for all of us, so inherently noise is a subjective issue, which makes it difficult for those charged with these decisions to make them in a coherent, objective—they cannot be objective if they are subjective—and sensible way that means that these laws will not fall immediately into disrepute for being contrary and different when interpreted by different people in different places. Having utterly subjective interpretations that can lead to something as serious as the banning of a demonstration or an arrest or conviction for an offence, when all that the person was seeking to do was protest, which is a democratic right in a fundamentally democratic society, can cause all kinds of difficulties.
That is why I am concerned about some of the provisions. My hon. Friend the Member for Enfield, Southgate has made the point that the provisions tend to lower the threshold at which some kind of action is likely to be taken by the officer in charge of policing the demonstration. That can drag into criminality what was merely righteous anger or proper dissent in a democracy. That is dangerous too.
The power to regulate protests simply because they generate noise presents an existential threat to the right to protest. When it applies even to a single-person protest, it appears to be an attempt to snuff out protest or to enable the police to have the powers to snuff out a protest, even if it is protest by only one person. The police already have powers to impose conditions on protests and to divert, stop or ban protests. I am not arguing that that is wrong. Over time, it has proven to work quite well. We can all come up with instances where the police went too far or did not go far enough and things went wrong, but that is the messy business of living in a democracy, the advantages of which much outweigh the disadvantages. In that sense, I do not mind the grey area.
Victoria Atkins
It is, as always, a pleasure to serve under your chairmanship, Mr McCabe. It is a pleasure to appear opposite the hon. Member for Enfield, Southgate. He did a fine job in the temporary absence of the hon. Member for Croydon Central.
I welcome this debate because it is only in a Public Bill Committee that we get the chance to scrutinise a piece of legislation line by line, word by word, as has been amply demonstrated this morning. Second Reading is important, of course, but it simply does not provide the time for this sort of back and forth about the Government’s intentions behind each line of legislation, and indeed the intended consequences, so I genuinely welcome this approach..
I also very much welcome the constructive views that have been put forward by Opposition Members in relation to this part of the Bill, because it goes without saying, of course, that it is our job as a Public Bill Committee to do this. It also demonstrates the important role that this place plays in scrutinising legislation and holding the Executive to account.
I note that there are some misunderstandings about what the Bill entails, and I very much welcome the opportunity to correct some of those, in a way that I hope and expect will reassure Committee members. Hon. Members have made very fair points about the right to peaceful protest being part of living in a democracy, and part of the social contract between the state and citizens. As part of that social contract, there are constraints both on citizens—we are expected, as members of this society, to observe and abide by the rule of law—and on the state.
That is why, for example, we have this process in Parliament, and not just in relation to this piece of legislation; it is for every single piece of legislation introduced by any Government of any colour. We have measures such as the European convention on human rights, an incredibly important document whose influence runs throughout this part of the Bill and other relevant parts. I say this because I very much want to approach this discussion with a constructive tone, to try to clear up some of the misunderstandings that have emerged about what the Bill encompasses.
I have enjoyed hearing some of the recollections of hon. Members about attending protests, particularly that of the hon. Member for Stockton, North, who I think is claiming credit for a Prime Minister standing down because he went out protesting—perhaps I am being mischievous. In a mischievous tone, I also note that nobody has yet mentioned the Iraq protests and how those massive protests did not change the course set by the Government who were then in power.
The first misunderstanding that I want to clear up—first and foremost—is that this Bill is not about banning peaceful protest, and nor can the measures within it enable the police, or indeed the Home Secretary, to ban peaceful protest. Nothing in the Bill does that. I state that clearly and proudly on the record, so that people listening to this debate from outside this Committee Room understand that that is simply not the case. That is a misunderstanding and I am very keen to clarify it.
Siobhan Baillie (Stroud) (Con)
We have probably all received emails suggesting that the Bill will ban protest. Indeed, we have not just seen emails but violence, and protests that have led to violence and attacks on the police. I think that it is incumbent on all of us to ensure that we use language in such a way that, while we are challenging the provisions of the Bill and talking about churches and noises and having all those debates, we make it absolutely clear that we are not stopping protests with this legislation.
Victoria Atkins
My hon. Friend makes a very important point. There is a responsibility on all of us in the language we use. I know that in the heat of debate and the joy of advocacy, one can sometimes get a little bit carried away. But I am really keen that in this Committee we understand that the Bill is not about banning peaceful protest, particularly because of the unrest that we have seen in some parts of the country, which I will come on to in a moment.
Another perhaps colourful piece of advocacy that seems to have crept into the debate this morning is that the Bill is somehow about imprisoning more people. That is simply not correct. Indeed, anyone making such allegations should be mindful of the fact that, of course, as with any other criminal offence, the standard and burden of proof remains the same: namely, that it is for the Crown to prove the case beyond reasonable doubt. Those fundamentals of our criminal justice system remain throughout this process.
Maria Eagle
I am not saying that clause 56 will send more people to prison, but the Minister will accept that it increases the maximum penalties.
Victoria Atkins
It does. I will come to that, if I may, but there is a difference between increasing the maximum and doing this, as some have claimed—I accept that it is in the heat of debate—in order to put more people in prison. That is not the intention.
Alex Cunningham
But the Minister will accept that the provisions in the Bill will criminalise more people who participate in protests.
Victoria Atkins
Again—forgive me; I am tackling this as if I were prosecuting. The hon. Gentleman is making several leaps of assumptions before he arrives at that destination. I will go through the clause in great detail and lead him through it so that he understands the checks and balances in the legislation. There is an extraordinary leap in his assertion, which I hope to answer in due course.
Peaceful protest is absolutely fundamental to a free society. The right to peaceful protest will not be, and will never be, in question by this Government. The measures in part 3 of the Bill will not suppress the right to protest. To refer again to the European convention on human rights, the Lord Chancellor—as any Secretary of State must—has signed a statement to the effect that, in his view, all the provisions in the Bill are compatible with the rights under the convention. The Bill is about updating the Public Order Act 1986, which is some 35 years old, by enabling the police to impose conditions in careful sets of circumstances as set out in the Bill, which we are scrutinising.
We all stand up and share the value of free speech and freedom of assembly. However, under articles 10 and 11 of the convention, those are not absolute rights, as the hon. Member for Garston and Halewood fairly agreed. There is a balancing act between the rights and freedoms of protestors and of those who are not joining in the protest. We know, sadly, that in recent years some of the tactics used in the course of protests have chipped away at that balance. For example, some protestors delayed an ambulance reaching an A&E ward, putting lives at risk. Some protestors disrupted the transport system during rush hour, delaying hundreds of hard-working people.
Interestingly—this is where we see the real tension between competing rights—some protestors have blockaded printing presses, thereby disrupting the freedom of the press, which I am sure we all acknowledge is a fundamental right. We have been talking about protests with which we may not agree, and I am sure we are all familiar with newspaper articles or depictions in the media with which we may not agree, but it is the right of the free media in our country to report in accordance with that freedom and independence. In fairness to the Opposition, I know that they agree with that, because in the wake of the blockade of printing presses last year, the Leader of the Opposition said:
“The tactics and action of Extinction Rebellion, particularly blockading newspapers, was just wrong in my view and counterproductive.”
As the hon. Member for Garston and Halewood eloquently described, there is this grey, messy area in which we try to address that balance of competing rights between protestors and people who are not joining in the protests but may be affected by them. We know, however, sadly, that not every protest is peaceful. I would like to take a moment to reflect on the danger in which police officers can find themselves when they are policing a protest that goes wrong.
In recent months, we have seen protests outside London. The hon. Member for Rotherham rightly challenged me about this being London-centric, and a smile came to my lips because I was thinking, “We can never assume that the sorts of protests we see in central London will not happen elsewhere in the country.” Indeed, the great city of Bristol has in recent months seen for itself, through the so-called “Kill the Bill” protests, which apparently aim to bring this piece of legislation to a halt, the impact that protest can have on police officers, who are trying to do their job in balancing the rights of protestors and safeguarding the social contract to which I have referred.
Sarah Champion
Would those actions not already be criminal activity under existing legislation?
Victoria Atkins
They would. The hon. Lady may remember that I questioned Mr Wagner about his interpretation of the Public Order Act. We acknowledge, and I think the police have said, how dynamic a public protest can be; it changes very quickly and they have to make decisions very quickly, on the ground. I asked Mr Wagner, because I was slightly concerned about some of the evidence he had given earlier:
“Do you accept that the Public Order Act 1986 is a piece of legislation that has stood the test of time and should remain in law?”
He said:
“I think I would be neutral on that. It is a very wide piece of legislation. Every time I read it, I am pretty surprised at how wide it is already. What I am pretty clear about is that section 12 does not need to be widened.”––[Official Report, Police, Crime, Sentencing and Courts Public Bill Committee, 18 May 2021; c. 76, Q109.]
Then I asked whether that meant the Public Order Act went too far for his liking. He replied:
“Well, potentially. The proof is often in the pudding. It depends on how the police use it and whether they are using it effectively.”––[Official Report, Police, Crime, Sentencing and Courts Public Bill Committee, 18 May 2021; c. 76, Q110.]
I agree wholeheartedly with his summation that it is about how the police employ the powers, but we need to just have in mind the range of views that have been expressed by witnesses giving evidence to the Bill Committee, whether in writing or orally. It would appear that there are some for whom the current legislation goes too far, yet we hear of instances such as the “Kill the Bill” protests where very significant harm has been done to police officers. Hon. Members will be able to draw on their own memories of other protests that have resulted in police officers being very badly injured and hurt by the protests of a minority. It shows, again, the need for a balance.
Maria Eagle
Is what the Minister says not an argument for banning all protest? It is not at all clear, at the beginning of a protest, which protests are going to go wrong in that way. She said herself that things can change very quickly. It cannot be predicted.
Victoria Atkins
The hon. Lady has summarised the very great responsibilities borne by senior officers in charge of protests. Of course protest should not be banned—I said at the beginning that that is not what the Bill is about—but the point does show the very fine judgments that senior police officers have to make in the moment of the protest. Where there are organisers, they will have been able to have discussions beforehand, but where protests spring up on social media and it is not clear who the organisers are, police officers are having to make decisions on the ground very quickly.
I am asked what has changed in the 35 years since the Public Order Act came into force. The role of social media in getting the message out, and protests being organised at very short notice, means that it can be difficult for police officers to identify to whom they should be speaking when it comes to how these protests or gatherings are policed and managed.
The hon. Member for Enfield, Southgate mentioned Pride. I would not call Pride a protest, although it may have had its roots in protest. I hope we now see it as a glorious celebration enjoyed, from the photographs I have seen in newspapers, by the police as much as by other people in attendance. That is an example of a gathering where the organisers are very clear, and they work extremely well with the police to ensure that the procession, the celebration, is enjoyed by all and is safe for all.
Sarah Champion
First, people all around the world are being murdered for being gay, so there is the element of protest. Secondly, can the Minister confirm that the measures she is putting in the Bill would address the fire-starting protests that come up? If that is the nub of what she is trying to address, it seems to me that the clauses go a lot further than that.
Victoria Atkins
That is one of the things addressed by the Bill’s clauses. If I may, I will go methodically through the examination of the clauses.
There is a reason why we are trying to draw consistency between processions and assemblies. In 1986, the distinction between the two might have been very clear, but we heard evidence from the police that nowadays a protest can become an assembly and an assembly can become a protest. They change, so we are trying to bring consistency between the two forms of gathering, irrespective of the mobility of the participants, so that we have clarity of law as to what applies to participants when they gather together.
At this stage in my submission, I am going to introduce some context. Again, the misunderstanding might have arisen that the measures will apply to every single protest that ever takes place, which is not the case. In his oral evidence to the Joint Committee on Human Rights on 28 April this year, Chief Constable Harrington said that between 21 January and 21 April this year, more than 2,500 protests were reported to the National Police Chiefs’ Council, and of those 2,500 protests, conditions were imposed on 12.
As I develop my argument and talk about these powers being used very carefully by the police, and about the checks and balances within the legislation, I point to how rarely the conditions are imposed in the range of protests that go ahead. Indeed, my right hon. Friend the Member for Scarborough and Whitby might have wished that conditions were imposed in other protests, but we foresee the legislation being deployed rarely and very carefully.
Maria Eagle
Does the Minister believe that, were the provision to be enacted and the thresholds reduced, as some of us have argued, more protests would have conditions imposed? Does she have a view on how many more or fewer protests would have conditions imposed?
Victoria Atkins
Again, this comes to the checks and balances in the clauses that I will go through in detail. It will be for the officer to make decisions, either on the ground or ahead of the procession, but there have been instances where the police do not have the confidence under the current legislation to impose conditions in relation to noise specifically. When one hears about the problems that residents and others in the vicinity of the noise experience, one can see why they would wish that conditions were imposed. As I say, I will go into more detail in a moment.
To set the context, the recent report on the policing of protests, produced by Her Majesty’s inspectorate of constabulary and fire and rescue services, found that the balance between protesters’ rights and the rights of local residents and businesses, and those who hold opposing views, leans in favour of the protesters and that a modest reset of the scales is needed. Again, this is the messy, grey area that the hon. Member for Garston and Halewood referred to. As with all existing public order legislation, we are making use of the new powers. The police will continue to be required to demonstrate that their use is necessary and proportionate and compliant with the Human Rights Act.
Police, Crime, Sentencing and Courts Bill (Tenth sitting)
Tuesday 8th June 2021
(2 years, 11 months ago)
Public Bill CommitteesRead Full debate Police, Crime, Sentencing and Courts Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 8 June 2021 - (8 Jun 2021)
The Committee divided: - Ayes: 8 / Noes: 4 - Question accordingly agreed to.
The Committee divided: - Ayes: 8 / Noes: 4 - Question accordingly agreed to.
The Committee divided: - Ayes: 8 / Noes: 4 - Question accordingly agreed to.
The Committee divided: - Ayes: 8 / Noes: 2 - Question accordingly agreed to.
The Committee divided: - Ayes: 8 / Noes: 2 - Question accordingly agreed to.
The Committee divided: - Ayes: 8 / Noes: 2 - Question accordingly agreed to.
The Committee divided: - Ayes: 8 / Noes: 2 - Question accordingly agreed to.
The Committee divided: - Ayes: 7 / Noes: 2 - Question accordingly agreed to.
The Committee divided: - Ayes: 7 / Noes: 2 - Question accordingly agreed to.
The Committee divided: - Ayes: 7 / Noes: 2 - Question accordingly agreed to.
The Chair
Good afternoon. I remind Committee members about the usual things: turn your phones and electronic devices to silent, remember to wear face coverings and observe social distance. Please remove your jackets if you feel so inclined.
Clause 54
Imposing conditions on public processions
Question (this day) again proposed, That the clause stand part of the Bill.
The Chair
I remind the Committee that with this we are discussing the following:
Clause 55 stand part.
Clause 56 stand part.
Clause 60 stand part.
The Parliamentary Under-Secretary of State for the Home Department (Victoria Atkins)
I now turn to the detail of clauses 54, 55, 56 and 60, which all relate to the conditions that the police can place on public processions, public assemblies and, by virtue of clause 60, single-person protests.
The police are able to place conditions on planned or ongoing protests to prevent serious public disorder, serious damage to property or serious disruption to the life of the community. Conditions may also be imposed on a protest if the purpose of the person organising it is the intimidation of others in order to compel them to do or not to do an act that they have the right to do or not to do. The four clauses will ensure that the police are better placed to prevent protests that cause those harms. They will achieve that in the following ways.
Clause 55 will widen the range of conditions that the police can impose on public assemblies, to match existing powers to impose conditions on public processions. Clause 56 will prevent protesters from exploiting a loophole to evade conviction should they breach conditions at a protest and will increase sentences for such offences. Clauses 54, 55 and 60 will enable the police to impose conditions on a public procession, public assembly or single-person protest where noise may have a significant impact on those in the vicinity or may result in serious disruption to the activities of an organisation. These same clauses will also confer on the Home Secretary the power, through secondary legislation, to define the meaning of
“serious disruption to the life of the community”
and
“serious disruption to the activities of an organisation which are carried out in the vicinity of a public procession”,
assembly or single-person protest.
Hywel Williams (Arfon) (PC)
It appears that some of the Bill’s provisions intersect with the Welsh Government’s responsibilities. For example, the responsibility for public order is reserved to the UK Parliament, while the provisions relating to noise generated by persons taking part in a procession look set to overlap with the devolved Government’s responsibilities for environmental health. How have the Government addressed those particular concerns, and have they been resolved?
Victoria Atkins
I am so sorry; I do not understand the hon. Gentleman’s concerns. Are they that this matter is reserved?
Hywel Williams
I will explain again. As Dr Robert Jones of the University of South Wales points out, the Welsh Government have responsibilities that seem to overlap with provisions in the Bill; their environmental health responsibility on noise is a particular case in point. The Bill says that demonstrations should not be noisy if they cause alarm and so on, but the Welsh Government have those sorts of responsibilities as well. How have those overlapping responsibilities been addressed and how have they been resolved?
Victoria Atkins
I am told that all the provisions relate to reserved matters, so they fall within that framework.
Hywel Williams
I will not pursue this matter further, but is it not clear that the Welsh Government have responsibilities on an environmental basis for noise reduction?
Victoria Atkins
I cannot add to what I said earlier. These are all reserved matters.
I move on to public assemblies. I will explain why it is necessary for the police to be able to place the same conditions on public assemblies as they can on public processions. The case for the changes in clause 55 was made by Her Majesty’s inspector Matt Parr in his report on policing protest, published in March. The report included the following observation:
“there have been some conspicuously disruptive protests in recent years, both static (assemblies) and moving (processions). Protests are fluid, and it is not always possible to make this distinction. Some begin as assemblies and become processions, and vice versa. The practical challenges of safely policing a protest are not necessarily greater in the case of processions than in the case of assemblies, so this would not justify making a wider range of conditions available for processions than for assemblies.”
It is clear that the challenges of safely policing a protest are not necessarily greater for processions than they are for assemblies. The clause will therefore enable the police to impose conditions such as start times on public assemblies, and prevent excessive noise levels.
Mr Robert Goodwill (Scarborough and Whitby) (Con)
Does the Minister agree that, contrary to what the Opposition say, the measures are about facilitating peaceful protest, not stopping protest? Obviously, if a protest breaches other people’s right to carry out their normal lives, that is different, but this is about making sure that protests can take place.
Victoria Atkins
Very much so. This is about ensuring that the rights that we have spoken about so far are protected, and that the integral balance of the social contract is maintained. My right hon. Friend is absolutely right.
The police already have the power to impose any necessary conditions on marches. If it is acceptable for the police to impose any such conditions on processions, as they have been able to do since the 1930s, it is difficult to see the basis for the Opposition’s objection to affording equivalent powers to impose conditions on an assembly when it presents an equivalent public order risk.
In his evidence, Chief Constable Harrington said words to this effect—my apologies to Hansard: “We asked for consistency between processions and assembly, which this Bill does.” The police will impose those conditions only where they are necessary and proportionate, complying with their obligations under the Human Rights Act 1998. In fairness, Chief Constable Harrington set out the care and training that the police receive to ensure that they can carry out their obligations carefully.
Clause 56 closes the loophole in the offence of failing to comply with a condition attached to a procession or assembly. When the police impose conditions on a protest to prevent serious public disorder, serious damage to property or serious disruption to the life of the community, they ensure that protesters are made aware of those conditions through various means. Those can include communicating with protesters via loudspeakers or handing out written leaflets.
Some protesters take active measures, such as covering their ears and tearing up leaflets without reading them, to ensure that they are not aware—or to complain that they were not aware—of the conditions being placed. Should they go on to breach the conditions, they will avoid conviction as, under current law, an offence is committed only if a protester knowingly fails to comply with the condition.
Clause 56 will change the threshold for the offence to include where a protester ought to have known of the conditions imposed, closing the loophole in the current law. That is a commonly used fault element in criminal law—indeed, I note that the hon. Members for Stockton North and for Rotherham use it in new clause 23, which provides for a new street harassment offence. The police will continue to ensure that protesters are made aware of the conditions, as they currently do. The onus on the prosecution would change from having to show that an individual was fully aware of conditions, to showing that the police took all reasonable steps to notify them. As I said earlier, the standards and burdens of proof apply, as they do in any other criminal case: it is for the Crown to prove the case beyond reasonable doubt.
This particular proposal was examined by the policing inspectorate and it is again worth quoting from its report in March. It said:
“Our view is that the fault element in sections 12(4) and (5) and sections 14(4) and (5) of the Public Order Act 1986 is currently set too high. The loophole in the current law could be closed with a slight shift in the legal test that is applied to whether protesters should have known about the conditions imposed on them. On balance, we see no good reason not to close this loophole.”
The clause will also increase the maximum penalties for offences under sections 12 and 14 of the Public Order Act 1986.
Due to the increasingly disruptive tactics used by protesters, existing sentences are no longer proportionate to the harm that can be caused. Organisers of public processions and assemblies who go on to breach conditions placed by the police, as well as individuals who incite others to breach conditions, will see maximum custodial sentences increase from three to six months. Others who breach conditions will see maximum penalties increase from level 3 to level 4 on the standard scale, which are respectively set at £1,000 and £2,500.
Sarah Champion (Rotherham) (Lab)
Can the Minister give an example of an occasion when the current sentence has not been proportionate, in her opinion? Is she looking at custodial sentences and considering the impact they would have on the courts and on the Prison Service?
Victoria Atkins
The custodial aspect has been increased from three months to six months in relation to organisers of public processions and assemblies who go on to breach conditions, as well as those who incite others to breach conditions. The sentence in relation to the fine is for those who breach conditions. They go in a different category from organisers and those who incite others to breach conditions.
I do not have any examples to hand immediately, but I imagine some will find themselves in my file in due course. We are looking at maximum sentences, but it is still for the independent judiciary to impose sentences in court on the facts of the case that they have before them. That is another safeguard and another check and balance within this legislation. It will be for the judiciary to impose individual sentences, but it is right that Parliament look at the maximum term.
Alex Cunningham (Stockton North) (Lab)
What evidence does the Minister have for the need for tougher sentences in this area? Are the judiciary saying that they are ill equipped to sentence people appropriately when they have been convicted of this type of activity?
Victoria Atkins
Again, I point to the disruption and to the tactics that have been developing over recent years, which have grown not just more disruptive but, in some cases, more distressing. There are examples of an ambulance being blocked from an A&E department and of commuters being prevented from getting on the train to go to work in the morning by people who had attempted to climb on to the train carriage. We are seeing more and more of these instances, so it is right that the maximum sentence is commensurate.
If protesters feel that such measures are disproportionate, they will presumably put that defence forward in court. It will be for the Crown to prove its case beyond reasonable doubt and for their counsel to mitigate on their behalf. We are trying to show the seriousness with which we take these small instances, where the balance between the rights of protesters and the rights of the community that is not protesting is disproportionate within the checks and balances that we have already discussed in the course of this debate.
I turn now to the measures relating to noise. The provisions will broaden the range of circumstances in which the police may impose conditions on a public procession or a public assembly to include circumstances where noise may have a significant impact on those in the vicinity, or may result in serious disruption to the activities of an organisation. These circumstances will also apply to single-person protests.
The hon. Member for Rotherham asked whether the noise provision was London-centric, with the biggest protests happening in London. As I said earlier, one would not want to assume that some of the protests that we have seen on the news could not happen outside London, as with the “Kill the Bill” protests in Bristol. It is right that we have clarity and consistency in law across the country so that if a group of protesters behaved in the way people appear to have behaved in the Bristol protests—injuring many, many police officers who were just acting in the line of duty—one would expect the law to apply as clearly in Rotherham as in central London.
Sarah Champion
I thank the Minister for her clarity on that. I completely support her point when violence is being done or emergency services are being blocked and the disruption is in no way proportionate to the nature of the protest, but I would like her to give some clarity on the issue of noise. Is it a decibel thing? Is it an irritation thing? Who decides what the irritation is? What is and is not acceptable? Would the threshold be lower in a small village because noise would not normally be heard, whereas in a big city with lots of industrial sites it would be a lot higher? It is that subjectivity that I put to the Minister.
Victoria Atkins
That is precisely why we are introducing an objective test in clause 54(3). The hon. Lady will see the wording:
“For the purposes of subsection (1)(ab)(i), the noise generated by persons taking part in a public procession may have a relevant impact on persons in the vicinity of the procession if—
(a) it may result in the intimidation or harassment of persons of reasonable firmness with the characteristics of persons likely to be in the vicinity.”
That is consistent with other parts of the criminal law. The wording continues:
“or (b) it may cause such persons”––
that is, persons of reasonable firmness––
“to suffer serious unease, alarm or distress.”
We have been very mindful of trying to help the police because it would be a matter for the police to weigh up during a procession, assembly or one-person protest or before one starts. It would be for the senior officer to make that assessment, but it is an objective test.
I hope that the hon. Lady will not mind my raising it, but the example she gave of the impact that hearing a drill had on her personally was her personal, subjective experience; we are saying that this would have to be an objective test—the reasonable firmness of people in the vicinity of that noise.
Sarah Champion
Let me give an example that I am sure everyone in this room will have experience of, as I have. An MP might be speaking at a demo or rally and a group of people feel the need to say, “See you next Tuesday” during the speech. That distresses the church group being addressed. Would that reach the threshold? Is it more of a decibel thing rather than it being directed to the MP? For example, in Rotherham the community came together to hold peaceful vigils but the far right held counter-protests in which they felt the need to call us paedophiles.
I appreciate that I am being annoying on this, but I just do not get it. These particular cases feel subjective and that is why I would like to get the clarity bedded down.
Victoria Atkins
First and foremost, the hon. Lady is certainly not being annoying; she is doing her job and her duty on the Committee. I am feeling my way here carefully because obviously Ministers should not comment on individual cases, but, on her example, in a scenario where someone is being at shouted at or spoken to as she described, there is a very good argument for saying that the person doing the shouting is committing a public order offence under the 1986 Act—that could be a section 5 offence of causing harassment, alarm or distress at the moment.
Again, I read across to other parts of public order legislation. That is why the objective test is an important one. We want first to be consistent with other public order measures. However, we recognise that there may be some instances in which an individual, for whatever reason—medical or otherwise—may have a particular sensitivity. In the criminal law, we say, “Look, we have got to deal with this on an objective basis, because it is the criminal law and the consequences of being convicted of a criminal offence are as serious as they are.” I have some hypothetical examples to give a bit of colour in due course, but, if I may, I want to complete outlining the checks and balances as written in the Bill so that everyone has a clear picture of the steps that a senior officer will have to go through to satisfy herself or himself that a condition can be imposed on the grounds of noise.
The senior officer must decide whether the impact is significant. In doing so, they must have regard to the likely number of people who may be affected, the likely duration and the likely intensity of that impact. The threshold at which police officers will be able to impose conditions on the use of noise is rightly very high. The examples I have been provided with—I am sure the Committee will understand that I am not citing any particular protest or assembly—are that a noisy protest in a town centre may not meet the threshold, but a protest creating the same amount of noise outside a school might, given the age of those likely to be affected and how those in the school are trying to sit down to learn on an average day. A noisy protest outside an office with double glazing may not meet the threshold, but a protest creating the same amount of noise outside a care home for elderly people, a GP surgery or small, street-level businesses might, given the level of disruption likely to be caused. Again, that refers to the conditions in clause 54(3) about the likely number of people, the likely duration and the likely intensity of that impact on such persons.
Siobhan Baillie (Stroud) (Con)
We have heard an awful lot about the police having to apply judgment and make decisions quickly, but, given the examples that the Minister has just read out, does she agree that there is a good dollop of common sense in much of what we need to apply with this legislation?
Victoria Atkins
Indeed. Of course, we are rightly sitting here scrutinising every single word of the Bill carefully, but a senior police officer on the ground will have had a great deal of training and years of experience as an officer working in their local communities. They will also have the knowledge of their local communities. I imagine that policing a quiet village and policing the centre of Westminster are two very different experiences, and the officers making such decisions will be well versed in the needs of their local areas. None the less, officers across the country will be bound by the terms of subsection (3)—those checks and balances I have referred to throughout—and the European convention on human rights.
Sarah Champion
I thank the Minister for being generous; it is appreciated. On the examples I supplied, her response was that the existing legislation ought to be covering the point. She mentioned a case study in which a protest could reach the threshold if there was no double-glazing. What concerns me is the organiser who could now face up to six months in jail. Are they meant to know whether properties do or do not have double-glazing, and therefore instruct the march to be silent for a specific 100 yards, as they could otherwise fall foul of the earlier clause? I say to the Minister that I just do not like subjectivity when it comes to the law.
Victoria Atkins
The organiser in those circumstances would, of course, be liable to having a committed an offence only if they breached the order. Indeed, this is the important point. It is for the police to make that assessment. If the police have a conversation with an organiser and say, “We believe that using your very high-level amplification system in this residential street meets the criteria under subsection (3) such that we are going to impose a condition asking you to turn it down,” the organiser, or the person deemed to be the organiser, will have had that conversation with an officer, and I very much hope that they will abide by the condition. If they do not, that is where the offence comes in, and that is a choice for the organiser.
As is already the case with processions, those conversations will happen and it will be a matter for the organiser as to what course of action they choose to take. One hopes that they will take the advice and guidance of the police, adapt and therefore be able to continue with their protest in a way that meets the expectations of the local community or local businesses. I appreciate that the detail is incredibly technical, and I am trying to work through every set of factual circumstances. I understand absolutely why people want to work through those, but there are checks and balances that run throughout the Bill.
Alex Cunningham
First, does the Minister agree that we must therefore have specific training for the police? She has referred many times to senior officers making decisions, but senior officers might not be available in Stockton-on-Tees or Rotherham, and certainly not in the local village, when there is some form of demonstration. The local PC may well be the person who has to turn up and make some form of decision in this situation. Secondly, on the issue of noise itself, how can a police officer be fair and objective where there are different groups of people who will be suffering differently as a direct result of a demonstration? A bunch of teenagers standing on Whitehall might find the noise and the robustness of the conversation tremendously exciting, but the pensioners group that has gone for tea at the local café might be very distressed. How on earth does the police officer make a balanced decision in that sort of situation?
Victoria Atkins
I can help the hon. Gentleman on the officer point. Pre-procession—in other words, in respect of processions that are yet to happen—the conditions must be assessed, and if ordered, ordered by a chief officer. That is a chief constable outside London, and in London an assistant commissioner. That is the highest rank in a police force. Mid-procession, conditions are imposed by a senior officer, which is an inspector or above, at the scene. So I do not think that the circumstances that the hon. Gentleman describes will arise. It is another example of the checks and balances that we have tried to put in place throughout this part of the Bill to ensure that these decisions are taken by very experienced and specialised officers.
I have been given another example to help demonstrate the point. A noisy protest that lasts only a short time may not meet the threshold, so the 90 seconds of—I forget the piece of music—
Victoria Atkins
Thank you, Holst. But a protest creating the same amount of noise over several days might meet it, given the extended duration of the protest.
Bambos Charalambous
For clarification, is the senior officer expected to know the area and the types of buildings where the protest will be, as well as the nature of the demonstration—whether it will have lots of sound systems, or involve lots of whistles and chants? Is it expected that that will be known beforehand, or is there scope to act if that were to occur during a demonstration?
Victoria Atkins
That serves to demonstrate the dynamic nature of different forms of protest. If a decision is to be made during the course of a protest, it will be made by a senior officer of inspector rank or above, on the ground and assessing the situation. Let me try to provide a practical example. The inspector may assess the situation in Hyde Park, then walk through to an area where there is lots of high-density housing and consider that the circumstances there are different. It is about being able to react to circumstances as they change and evolve in the course of a protest. That is why we are trying to bring consistency between processions and assemblies—because of the dynamic nature of protests—but it will be for the senior officer, working of course with his or her colleagues, to assess the factors laid out in subsection (3).
The police will impose conditions on the use of noise only in the exceptional circumstances where noise causes unjustifiable disruption or impact. I emphasise that in doing so they will have to have regard to the number of people affected and the intensity and duration of the noise, and act compatibly with the rights of freedom of expression and so on within the convention.
The shadow Minister prayed in aid the non-legislative recommendations from HMIC. I want to place on the record that the National Police Chiefs’ Council has established a programme board to consider and implement those. I hope that helps.
Mr Goodwill
Does the Minister agree that not only is it a judgment or decision for the police to make in this situation, but that if a prosecution were to follow, the Director of Public Prosecutions and ultimately a jury would decide whether, on balance, they thought a breach of these provisions had occurred?
Victoria Atkins
Exactly right. The police will first have to satisfy themselves and the CPS that a charge should be brought, and from that all the usual safeguards and standards that we expect in the criminal justice system will apply. For example, the CPS will have to apply the code for Crown prosecutors in relation to the public interest and evidential tests. We will then have the mechanisms in the trial process—perhaps a submission at half-time by defence counsel if they feel the evidence is not there. There are many mechanisms that apply in criminal trials up and down the country every single day, and those mechanisms will be available for offences under the Bill as they are for any other criminal offence.
I have been asked for clarification of the terms: annoyance, alarm, distress and unease. Many of those terms are already used in the Public Order Act 1986 and in common law. They are well understood by the judiciary, and the Law Commission—this is particularly in reference to the public nuisance point, which we will come on to in a moment—recommends retaining the word “annoyance”, as it provides continuity with previous legal cases and is well understood in this context. We understand the concerns about this, but as I say, through the introduction of these words, we are trying to be consistent with the approach that has long applied in the Public Order Act.
It is necessary to apply the measure in relation to noise to single-person protests because they can, of course, create just as much noise through the use of amplification equipment as a large protest using such equipment. Again, the police will be able to impose conditions on a single-person protest for reasons relating only to noise, not for any other reason.
Forgive me: I have just been corrected regarding the briefing I received about the rank of the officer at the scene. It is the most senior officer at the scene, so there is no minimum rank, but it is anticipated in the use of the word that it will be an officer of great seniority. Any protest on which it may be necessary to impose conditions is likely to have an officer present of at least the rank of inspector.
Alex Cunningham
I am grateful to the Minister for clarifying that point, but it does mean that the local sergeant or PC in a village or a town centre is going to have to make decisions about these matters. My point was that surely, this means that there needs to be some very specific training on how police should react to demonstrations or other activities of that nature.
Victoria Atkins
I would give the police some credit. First, if it is a protest of any serious size, or the organisers have contacted the police or the other way around, this can and should be dealt with ahead of the protest. In the event of a protest taking people by surprise in a quieter area than a huge metropolis, the police will react as they are very used to reacting in circumstances that need them to be flexible and move quickly, and I am sure they will have people on the scene very quickly who can assist with this. We want to ensure that the expectation is that a senior officer, and certainly the most senior officer at the scene, will be the one imposing these conditions.
I now turn to the parts of the clauses that set out that the Home Secretary will have the power, through secondary legislation, to define the meaning of
“serious disruption to the life of the community”
and
“serious disruption to the activities of an organisation which are carried on in the vicinity of the procession”,
or assembly or single-person protest. Again, to clear up any misunderstandings, this is not about the Home Secretary of the day banning protests. Opposition Members have understandably called for clearer definitions wherever possible, which is what this delegated power is intended to achieve. Any definition created through this power will need to fall within what can reasonably be understood as “serious disruption”. The threshold will be clarified, not changed: such definitions will be used to clarify the threshold beyond which the police can impose conditions on protests, should they believe them necessary to avoid serious disruption. This is about putting the framework in place to help the police on the ground.
The regulations will be subject to the draft affirmative procedure, which means that they must be scrutinised, debated, and approved by both Houses before they can be made. It will, of course, be for the police in an individual case to apply that definition operationally. They can apply that definition only if the criteria in the Bill are met. This is not about the Home Secretary outlawing particular protests or individual demonstrations; it is about setting a framework for a definition, to help the police operation on the ground to understand the criteria in the Bill. To assist in scrutiny of the Bill, we aim to publish further details of the content of the regulation before consideration on Report.
The clauses relating to protest, public assemblies, marches, processions and demonstrations, as well as other terms that have been used to describe this, represent a modest updating of legislation that is more than 35 years old. They do not enable the police or, for that matter, the Home Secretary of the day to ban any protest. Interestingly, we will come to debates in Committee on new clause 43, which relates to interference with access to or the provision of abortion services. That provision does, in fact, seek to ban such protests, so, again, there is a balancing act, or the grey area that has been referred to in this very debate.
Alex Cunningham
I am interested in what the Minister has to say about new clause 43. Is she indicating Government support for the measures that we are trying to introduce?
Victoria Atkins
No, I am drawing out an apparent contradiction. I do not say that in a pejorative sense. The hon. Member and others have expressed strong reservations and complaints about the Bill. I understand that they will vote against the measures, but it seems that discussions about freedom of speech and expression—that balancing act—will be part of the consideration of the Opposition’s new clause. I am not laying out a position either way; I am observing the difficulty in achieving that balancing act and an apparent contradiction. It is for individual Members to decide matters of scrutiny.
These clauses provide for a sensible alignment of police powers to attach conditions to an assembly or a public procession, and extend those powers to deal with particularly egregious cases of disruption due to unacceptable levels of noise. The measures are supported by the police, who will, as now, have to exercise the powers within the framework of the Human Rights Act. On that basis, and with that detailed analysis, I commend the clauses to the Committee.
Question put, That the clause stand part of the Bill.
Bambos Charalambous
The clause is designed to protect vehicular access to Parliament, and it will amend the Police Reform and Social Responsibility Act 2011. That will ensure that preventing access to the parliamentary estate is prohibited, but it will not give the police powers to arrest those who contravene it.
Clause 58 requires a new controlled area around the temporary locations of Parliament, and the central rules around protests may be imposed around the temporary home of Parliament during restoration and renewal of the Palace of Westminster, whenever that may occur.
Clause 59 replaces the common law offence of public nuisance with the statutory offence of intentionally or recklessly causing a public nuisance. The new statutory offence of intentionally or recklessly causing a nuisance includes the term “serious annoyance”, and it is unclear what will constitute a serious annoyance or serious inconvenience. A person does not have to actually suffer any of the above consequences, but only be at risk of suffering them.
The Minister said in the evidence sessions that the term “annoyance” was not dreamed up on the back of an envelope, but follows many centuries of legal development, culminating in the 2015 Law Commission report. However, that does not help to explain or to guide the police as to how to enforce conditions on a protest that puts someone at risk of suffering “serious annoyance”. During the evidence session, Chief Constable Harrington, the public order and public safety portfolio lead for the National Police Chiefs’ Council, said:
“On serious annoyance, we need to see what Parliament’s decision on the definition of that is and to interpret that accordingly… We will have to see what Parliament decides and whether it is able to give us some clarity about what that means”.––[Official Report, Police, Crime, Sentencing and Courts Public Bill Committee, 18 May 2021; c. 10, Q8.]
Can the Minister reassure us today by providing some clarity on what “serious annoyance” might mean and what is the threshold for “serious annoyance”?
I will finish on this point: the designated area for Parliament includes Parliament Square, where can be found a number of statues of celebrated pioneers of struggle and protest, including Nelson Mandela, Mahatma Gandhi and the suffragist Millicent Fawcett. I wonder what they would think about the state limiting people’s rights of protest in this way. I think we can all guess.
Victoria Atkins
If I may, Mr McCabe, I shall confine my remarks to clause 57, which deals with “Obstruction of vehicular access to Parliament”. I will take up the challenge on annoyance when it comes to clause 59.
Clause 57 delivers a clear recommendation from the Joint Committee on Human Rights, chaired by the right hon. and learned Member for Camberwell and Peckham (Ms Harman). Its 2019 report, “Democracy, freedom of expression and freedom of association: Threats to MPs”, refers to
“unimpeded access to the Palace of Westminster for all who have business in either House, or wish to meet their representatives”,
and to how vital that is. The report continues:
“Even though there is a special legal regime for the area around Parliament, it is clear that those responsible for policing and controlling that area have not always given the need for access without impediment or harassment the importance it requires. This must change.”
We are acting on the recommendations of the Joint Committee and, through clause 57, strengthening and extending the Palace of Westminster controlled area in relation to section 142A of the Police Reform and Social Responsibility Act 2011.
Mr Goodwill
Would my hon. Friend be interested to know that, more than a century ago, precedent was set by the grandfather of the current Lord Montagu? He arrived in a motorcar and the police tried to prevent it from entering the precincts of the Palace, but he insisted that it came in. Precedent was therefore set well over a century ago at the dawn of the age of the motorcar, and I hope that that precedent will be followed.
Victoria Atkins
That is a wonderful example to explain how that fundamental right of our democracy was introduced. I note, of course, that my right hon. Friend has great knowledge and expertise in all matters vehicular, to which I defer.
Question put, That the clause stand part of the Bill.
Victoria Atkins
The clause provides the Secretary of State with a regulation-making power to designate new “controlled areas” for the purposes of part 3 of the Police Reform and Social Responsibility Act 2011, should Parliament relocate due to restoration and renewal works, or for any other reason. That would include, for example––I am sure we all hope that it does not happen––the House needing to relocate because of a fire or other emergency. We hope fervently that this will not be required for those reasons, but it is the will of the Government, working with the parliamentary authorities, to ensure that the measures relating to controlled areas can be extended to wherever Parliament relocates to ensure the security and safety of parliamentarians in the event of a temporary relocation.
Question put, That the clause stand part of the Bill:
Victoria Atkins
The hon. Member for Enfield, Southgate has made his remarks on the clause, for which I am grateful.
The clause enshrines in statute the long-standing common law offence of public nuisance. As we heard from a number of our policing and other witnesses, codifying the criminal law in this area will provide clarity to the public, the police, prosecutors and others as to the scope of the offence, giving clear notice of what conduct is covered.
The new offence of intentionally or recklessly causing public nuisance has been drafted in line with the recommendations of the 2015 Law Commission report “Simplification of Criminal Law: Public Nuisance and Outraging Public Decency”. The Law Commission held a public consultation, which informed the recommendations of its report. It found that it is necessary to keep this offence, as
“human inventiveness being so great, it is desirable to have a general offence for culpable acts that injure the public but do not fall within any specialised offences.”
The intention of the clause is to codify an existing offence, not to create a new one. That is in keeping with the intention of the Law Commission. As such, it is appropriate to mirror the language from the common law offence as much as possible. For that reason, we have retained the use of the terms “annoyance” and “inconvenience” while adding the caveat of “serious”, so raising the bar for securing a conviction.
It is clear from case law relating to the existing common law offence that those terms connote something more than merely feeling annoyed or inconvenienced. The term “annoyance” has been applied to acts such as allowing a field to be used for holding an all-night rave or conspiring to switch off the floodlights at a football match so as to cause it to be abandoned––certain colleagues will prick up their ears at my mention of that—and to noise, dirt, fumes, noxious smells and vibrations.
The Law Commission provides the further example of vexatious calls to the emergency services’ 999 number or to Childline. Repeated vexatious calls can affect the ability of a local force to respond to genuine emergencies. That gives a flavour of the examples that have long been understood under the common law offence as annoying or inconvenient.
Many of the terms used are well established in law, including criminal law. Indeed, the term “inconvenienced” appears in the Metropolitan Streets Act 1867, “loss of amenity” is used in the Railway Fires Act 1905, and “annoyance” features in the Town Police Clauses Act 1847 —statutes with which I am sure we are all very familiar. These are not vague, untried or untested terms, and I note that the hon. Member for Garston and Halewood is happy to put her name to new clause 2, which concerns kerb-crawling and uses the term “annoyance”.
Bambos Charalambous
I stand to speak out against clauses 61 to 63. In doing so, I am reflecting the views of the Gypsy and Traveller community, the police, and organisations as diverse as the Ramblers Association and Liberty.
I want to start by thanking Abbie Kirkby from Friends, Families & Travellers for all its help on part 4 of the Bill. Part 4—clauses 61 to 63—would amend the Criminal Justice and Public Order Act 1994 to create a new offence of
“residing on land without consent in or with a vehicle”.
It would also amend the police powers associated with unauthorised encampments in the Act to lower the threshold at which they can be used, allow the police to remove unauthorised encampments on or partly on highways, and prohibit unauthorised encampments that are moved from a site from returning within 12 months.
Like the clauses we have just debated on public order, this part of the Bill is controversial and has generated a number of organised campaigns in opposition to it, including an e-petition that garnered 134,932 signatures. The petition called the Government’s proposed criminal offence “extreme, illiberal and unnecessary”.
Mr Goodwill
Would any of the people who live near one of these illegal camps have signed that petition?
Bambos Charalambous
I do not know who signed the petition, but I am sure it is available. The right hon. Gentleman will have to explore the petition himself to see who signed it.
A broad coalition, from the National Society for the Prevention of Cruelty to Children to Liberty, from Gypsy, Roma and Traveller communities to the Ramblers Association and from the police to Shelter, is united in the view that the proposals put forward by the Government would be wrong and unhelpful, and go against our basic rights.
Lee Anderson (Ashfield) (Con)
We have a big problem in Ashfield with the travelling community. They come two or three times a year. I did my own poll of about 2,000 constituents, and 95% agreed with me that the Travellers were creating a massive problem—crime was going up, pets were going missing, antisocial behaviour was going through the roof and properties were getting broken into. My constituents do not want them in our area anymore. That was a survey of 2,000 people, and that was the response from 95% of them. That evidence from my area is a bit more compelling than the petition the hon. Gentleman mentioned, which has probably been signed by 100,000 Travellers.
Bambos Charalambous
One of the problems is that there is less local authority provision for Travellers to go to. That loss of provision, which is partly due to cuts to local government, has caused more problems, meaning that more people are on the road at any given time. However, this issue does not affect just the Traveller community, as the hon. Gentleman will see when I go on to make further points. It also impacts people such as ramblers, birdwatchers and others who want to stay out and sleep in their vehicles while enjoying countryside activities.
Alex Cunningham
My hon. Friend has made the point that there is a failure in our society to provide sufficient facilities for people from the travelling community, be they traditional Gypsies or people who choose to go on the road. Does he agree that the Government, rather than bringing in legislation such as this, should turn their attention to providing local authorities with the resources they need to provide facilities for travelling communities? Does he also agree that that should not be left just to some communities; communities across the country should take a share in providing such facilities so that Travellers can live with them cheek by jowl in a peaceful way?
Bambos Charalambous
My hon. Friend makes an excellent point. That was highlighted by the representative from the LGA in her evidence to the Committee.
As one of the respondents to the Petition Committee’s survey on the criminalisation of trespass put it:
“The criminalisation of trespass will simply exacerbate an already fraught relationship.”
Ian Levy (Blyth Valley) (Con)
Next to my constituency is a Traveller site that has spaces that could be used by people who choose to live a nomadic lifestyle, yet we still have people turning up and using public car parks. People going to do their shopping at the Keel Row shopping centre found that really intimidating and the police had to ask the Travellers to move on. When they did move on, they left a lot of rubbish and the place was really untidy. There was space at the Traveller site, but the Travellers chose not to use it. Does the hon. Gentleman agree that that was wrong?
Bambos Charalambous
I agree that there is no excuse for antisocial behaviour or criminal activity, such as fly-tipping, which is wrong and needs to stop. Equally, where sites are provided, they should be made use of.
Mr Goodwill
Does the hon. Gentleman agree that we must listen to local people in this respect? When sites were proposed in Stockton-on-Tees in 2014, there were 565 individual representations against them, four petitions signed by 850 people and a letter of objection supported by 55 neighbours, so even in Stockton-on-Tees, the constituency of the hon. Member for Stockton North, there is great opposition to having these Traveller sites in their communities.
Bambos Charalambous
Therein lies the problem: many people do not want to have Travellers anywhere near them, and that is partly why there are so few sites. If more sites were made available, that would potentially solve the problem.
Lee Anderson
We have already established that in places where Traveller communities set up, such as Ashfield, crime goes up; we know that there is a direct correlation between Travellers being in the area and crime going up. Does the hon. Gentleman think that crime will come down if we have a permanent site in Ashfield?
Bambos Charalambous
As I have said, there is no excuse for criminality, and the Gypsy and Traveller community is already overrepresented in the prison population, but I do not think that the two issues are necessarily related to what the clause is trying to achieve. The hon. Gentleman is trying to say that the Gypsy and Traveller community is responsible for crime in Ashfield. I do not know the facts and figures in relation to that, but what the clause does is criminalise communities for being in vehicles on public land. While each Member has a concern about their individual constituents, we need to get back to what the Bill is focusing on, which is criminalising anyone in a vehicle, even on their own. I think that is what we need to focus on.
Alex Cunningham
In Stockton, we have had facilities for travelling communities for many years. I am sure my hon. Friend will agree that this is about having proper facilities. Perhaps I can point him to the example of the Appleby horse fair, which attracts thousands of people every year. We see them travelling up, and they stay on the byways and all sorts of places along the way, but when they get to the site they are properly catered for. There is proper rubbish removal, proper facilities for animals, toilets and all manner of facilities, and they are put in place to provide for that particular need. Perhaps if other local authorities across the country took that approach, we would not have the problems that Government Members have described.
Bambos Charalambous
Again, my hon. Friend makes an excellent point. He is right: if more facilities were provided, that would help to solve the problem.
Allan Dorans (Ayr, Carrick and Cumnock) (SNP)
Although these clauses do not apply in Scotland, does the hon. Member agree that a significant number of Gypsy Travellers cross the border daily for work, to maintain family ties and for cultural reasons, and that these measures will cause further discrimination and harassment of this ethnic group, which is protected under the Equality Act 2010 as a recognised ethnic group?
Bambos Charalambous
I entirely agree with the hon. Member’s comments. He is right: this measure is targeting a particular group for criminalisation, and that has to be totally wrong. As one respondent to the Petitions Committee’s survey on criminalisation of trespass put it:
“The criminalisation of trespass will simply exacerbate an already fraught relationship. Travellers will still camp but there’ll be more prosecutions, more distrust, more public money spent on legalities”.
Other people with nomadic lifestyles have told me that they feel that they will no longer be able to live on the road in the way that has been seen in this country since the 16th century, and that the Bill risks criminalising their way of life. At a recent meeting of the all-party parliamentary group on Gypsies, Travellers and Roma, we heard from the community about what might happen to them if these clauses become law. It was absolutely heartbreaking to hear from those people that they fear that their whole way of life will be taken from them if the clauses become law.
Can the Minister tell the House this? Under the provisions in the Police, Crime, Sentencing and Courts Bill, what will happen to a Traveller family in a single vehicle who are residing on a highway and have nowhere else to go? Failure to comply with a police direction to leave land occupied as part of an unauthorised encampment is already a criminal offence, but the proposals create a new offence of residing on land without consent in or with a vehicle. The broad way in which it is drafted seems to capture the intention to do that as well as actually doing it, with penalties of imprisonment of up to three months or a fine of up to £2,500, or both. The loose drafting of this legislation invites problems with its interpretation, and it is simply not fair to put that on to the police.
The Opposition’s major concern about this aspect of the Bill is that it is clearly targeted at Gypsy, Roma and Traveller communities, and the criminalisation would potentially breach the Human Rights Act 1998 and the Equality Act 2010. When the powers in the Criminal Justice and Public Order Act 1994 were first debated in Parliament, it was stated that the powers were intended to deal with “mass trespass”. However, under the Bill even a single Gypsy or Traveller travelling in a single vehicle will be caught by this offence.
These measures to increase police powers in relation to unauthorised encampments are not even backed by the police. When Friends, Families & Travellers researched the consultation responses that the Government had received, it found that 84% of the police responses did not support the criminalisation of unauthorised encampments. Senior police are telling us that the changes in the Bill that relate to unauthorised encampments would only make matters worse: they would add considerable extra cost for the already overstretched police and risk breaching the Human Rights Act.
The views of the National Police Chiefs’ Council were clearly put in its submission to the 2018 Government consultation. It wrote:
“Trespass is a civil offence and our view is that it should remain so. The possibility of creating a new criminal offence of ‘intentional trespass’…has been raised at various times over the years but the NPCC position has been—and remains—that no new criminal trespass offence is required.
The co-ordinated use of the powers already available under the Criminal Justice and Public Order Act 1994 allows for a proportionate response to encampments based on the behaviour of the trespassers.”
At an evidence session of this Bill Committee, Martin Hewitt said on behalf of the NPCC that the group
“strongly believes that the fundamental problem is insufficient provision of sites for Gypsy Travellers to occupy, and that that causes the relatively small percentage of unlawful encampments, which obviously create real challenges for the people who are responsible for that land and for those living around… The view of our group is that the existing legislation is sufficient to allow that to be dealt with, and we have some concerns about the additional power and the new criminal provision and how that will draw policing further into that situation.”—[Official Report, Police, Crime, Sentencing and Courts Public Bill Committee, 18 May 2021; c. 15, Q20.]
Siobhan Baillie
I have been listening to evidence about whether the existing powers are sufficient, which I challenge. I put it to the hon. Gentleman that if they were sufficient, we would not also have heard evidence about the tens of thousands of pounds that the case in Dartmoor cost. That was a huge cost to the council, thus making the taxpayer pay twice in having to deal with the issues beside them and through the public purse. We also heard countless other examples of what has been happening in communities. Does the shadow Minister think that our current legislation is truly sufficient? I think we need to look again, which is what the Bill is doing.
Bambos Charalambous
Civil remedies would still be available for people who engage in antisocial behaviour, fly-tipping and so on. All we would be doing is criminalising a particular group of people. In my view, the civil remedies would still be there and the cost to the council would still be there if proper facilities were not provided. To me, just criminalising a particular group of people is wrong.
To continue, the NPCC witness said:
“Really, our point fundamentally as the NPCC group is that the issue here is the lack of provision that theoretically should be made, which means that we have this percentage of Travellers who are on unlawful spaces and you end up in the situations that we end up with. Our view is that the current legislation is sufficient to deal with that issue.”––[Official Report, Police, Crime, Sentencing and Courts Public Bill Committee, 18 May 2021; c. 15, Q20.]
We have to ask: why are the Government determined to lock up Gypsies and Travellers, even against the advice of their own police? As Martin Hewitt clearly stated, existing legislation on police powers and unauthorised encampments is enough to tackle the problem. The police already have extensive powers to move on unauthorised encampments in the Criminal Justice and Public Order Act 1994, and as of January 2020, just 3% of Gypsy and Traveller caravans—694—in England were in unauthorised encampments. Of those, 419 were on sites not tolerated and 275 were on tolerated sites. The police and campaigners tell us the evidence is not there that the new powers are necessary and that many more authorised encampment sites should be provided instead.
Alex Cunningham
I sometimes wonder whether the power to discourage Travellers from moving in is in the hands of communities. Travellers move around the country for work—to pick up scrap, to do all manner of gardening work, such as taking down trees for people, and so on. I have had many an argument with people living in communities who say, “We don’t want Travellers here,” but they put out their fridge or their scrap metal for them, they let them cut down their trees. They provide them with work and an incentive to be in the area. So perhaps people have it in their own power. Travellers will not come if there is no incentive for them.
Bambos Charalambous
My hon. Friend makes an interesting point, which is worthy of further discussion.
I will run through a series of points the Minister for Crime and Policing made when responding to a Westminster Hall debate on this question. On concerns about the right to roam being threatened, he said the measures will not affect anyone who wants to enjoy the countryside for leisure purposes, but many organisations, such as the Ramblers Association and CPRE the Countryside Charity, are concerned that although the Government might not intend to capture others enjoying the countryside, they could still do so. The legislation is so open to interpretation that it could easily be applied to anyone with a vehicle. For example, how do the Government propose to ensure that the police distinguish between a modified Transit van or Volkswagen camper used at the weekends and one that is lived in? How will they distinguish between a family going on a caravan holiday and a Gypsy or Traveller family with an identical caravan before stopping them and seizing their property because the police suspect that they might stop somewhere they do not have permission to do so?
The Minister for Policing and Crime also said that there is a high threshold to be met before the new powers kick in, but only one vehicle need be involved, whereas section 61 of the Criminal Justice and Public Order Act requires six vehicles. The bar seems to have been significantly lowered in the Bill. The police currently have discretion to decide whether to use their powers under sections 61, 62 and 62A to 62E, in the latter cases where a suitable alternative pitch is available, but under the proposals in part 4 of the Bill, police will be dutybound to act when they are informed that a criminal offence has taken place.
The term “significant distress” is highly subjective. Given the high levels of prejudice and hatred towards Gypsy and Traveller communities, we are likely to see countless reports of criminal offences being committed, based on someone saying that they are significantly distressed by an encampment. Marc Willers QC, of Garden Court Chambers, said in the evidence sessions:
‘It seems to me that a lot of the language used is vague and uncertain. There is a reference to causing “significant distress” as one of the conditions that could lead to the criminalisation of an individual who refuses to leave a piece of land. That, in itself, brings inherent problems, because a private citizen could very easily invoke the power and leave a police officer with a fait accompli—in other words, they have no option but to arrest an individual who refuses to leave land in circumstances where the occupier says, “I am being caused significant distress by the very fact that this individual is parking on land that I occupy.”’
Alex Cunningham
I am never happier than when I am in my own caravan—always on an official site—travelling around the country and into Europe. I have seen tremendous growth in the number of people driving motor homes, and I see them parked up all over the country, on private land, public land and elsewhere. Those people are also going to get caught up in this particular legislation, are they not?
Bambos Charalambous
Again, my hon. Friend makes a very good point. We want to make sure that people are free to enjoy the beautiful countryside we are lucky to have in the UK without fear of being criminalised in such a way.
Marc Willers QC went on to say:
“That distress can be engendered or underpinned by the prejudice that Gypsies and Travellers face in our society today. It is a widespread and long-standing prejudice, dating back to the first time that Romani Gypsies came to these shores in the 1500s… There may well be unwarranted and unjustified concerns on the part of the occupier, which could lead to the criminalisation of an individual who has nowhere else to go.” —[Official Report, Police, Crime, Sentencing and Courts Public Bill Committee, 18 May 2021; c. 72, Q104.]
Lee Anderson
At the beginning, the hon. Gentleman made an interesting point about Romani Gypsies coming here more than 500 years ago, but the Gypsy encampments that we are talking about in places such as Ashfield are not the traditional, old-fashioned Gypsies sat there playing the mandolin, flogging lucky heather and telling fortunes. The Travellers I am talking about are more likely to be seen leaving your garden shed at 3 o’clock in the morning, probably with your lawnmower and half of your tools. That happens every single time they come to Ashfield. Does he agree that there is some confusion on the Opposition side as to who these people actually are?
Bambos Charalambous
I have said previously that we certainly do not condone any antisocial behaviour or criminal activity, but this is one of the many prejudices that exist about the Gypsy, Roma and Traveller communities, and it is these sorts of problems that would lead to people invoking some of the clauses in the Bill in order to criminalise people.
Mr Goodwill
Trying to describe this as some sort of inherent prejudice misses the point, in that the activities of some of these people are what cause concern to a community—for example, leaving a load of rubbish behind on a lay-by. In Whitby, we get a lot of Travellers coming for the regatta, and it is quite common for restaurateurs to complain to me that they just walk out of restaurants without paying the bill, or haggle over the price and pay only half, and there is nothing they can do about it. That is the problem. It is based not on inherent prejudice, but on actual experiences of dealing with some of these people. They may be only a small minority of the travelling population, but they do tend to spoil it for the rest.
Bambos Charalambous
The situation that the right hon. Gentleman mentions would not be caught by the clause in this Bill anyway. On his wider point, it is using a sledgehammer to crack a nut. If there is a problem, there is legislation currently available to deal with it. This is entirely unnecessary, and it ends up criminalising a community when the powers to deal with the problem already exist.
Lee Anderson
About five years ago, we had Travellers come to a car park in my village and they left a load of rubbish there, which cost the council over £1,000 to clean up. A few weeks later, they came back again, left another load of rubbish that cost another £1,000. I got that fed up with the local council that I hired a JCB and put two concrete blocks there, to stop the Travellers coming back and to keep the beauty spot tidy, and I got a £100 fixed penalty notice from my local Labour authority. Does the hon. Gentleman think that that was the right course of action?
Bambos Charalambous
As I have said, there are powers in place to deal with fly-tipping. Where people feel the need to secure certain sites, it is down to the local authority to deal with those issues. I am certainly not encouraging people to take the law into their own hands and deal with things in the ways they see fit. That would be the road to chaos. I have heard what the hon. Gentleman said, but I am not going to comment on individual situations. The law is there, it is available and it can be used. It has been used quite successfully by many local authorities and the police.
There are other solutions for managing unauthorised encampments such as negotiated stopping whereby arrangements are made on agreed permitted times of stopping and to ensure the provision of basic needs such as water, sanitation and refuse collection. The manifesto commitment and the Government response referred to littering as a problem, but then why do the Government not consider providing more authorised camping sites with proper refuse facilities? Why do the Government think that confiscating someone’s home, putting them in prison and fining them is the answer? Why do the Government not instead consider the proposals of my hon. Friend the Member for Chesterfield (Mr Perkins), whose private Member’s Bill would make it an offence to demand money to vacate an unauthorised encampment? That, along with a significant increase in permanent site provision, could prevent Gypsy and Traveller communities from being forced to make unauthorised encampments, having nowhere to go, and prevent the small minority of Travellers who demand money to leave sites where they are not entitled to be.
I acknowledge the difficulty that people or businesses can face with unauthorised encampments on their land. The Victims’ Commissioner put it well when she said that
“unless there is proper provision of authorised encampments, you have two sets of victims. I quite agree with you that the people who are distressed, damaged or whatever by an unauthorised encampment are victims of that. There is no doubt of it…but I want you to take into account the difficulty of finding somewhere to camp in a lot of places, which forces people into an unlawful place.” ––[Official Report, Police, Crime, Sentencing and Courts Public Bill Committee, 21 May 2021; c. 120, Q193.]
The Policing Minister also claimed that money for sites was available in the £150 million affordable homes programme pot, but the last shared ownership affordable homes programme in 2016 to 2021, with a budget of £4.7 billion, awarded grants for just two Traveller sites across the whole country in the scheme’s entire period. They were both just transit sites in Birmingham and Cornwall. That was revealed by Friends, Families & Travellers, which FOI-ed Homes England to find that information. Funding for Traveller sites must be more than warm words.
The Minister also claimed that there has been an increase in the number of caravans on sites from 14,000 in 2010 to 20,000 in 2019, but she failed to point out that the number of caravans counted on sites is different from the actual number of pitches. The 14,000 and 20,000 figures are the total number of caravans counted that are listed as on authorised sites in the caravan count. While there has indeed been a rise from 14,730 in January 2010 to 19,967 in January 2020, the number of caravans on socially rented sites fell by 364.
Small-scale, family-run sites are great for those who have the resources to pull this off, but they are incredibly problematic and inaccessible for those who live in areas where land is at a premium and who have limited finances. It is the number of permanent pitches that can really improve things for Travellers, residents, local authorities and the police. Although there has been a 39.9% increase in transit pitches alone, it amounts to an increase of only 101 pitches—the equivalent of 10 per year over 10 years—with an overall decrease of 11.1% in permanent pitches on local authority and registered social landlord sites. In fact, the Government’s published figures show that there has been an overall 8.4% decrease of pitches on local authority Traveller sites. Nesil Caliskan, the chair of the Local Government Association, told us in the evidence sessions:
“There has to be a commitment from local authorities that those sites are allocated. The statutory legislation that already exists for these protected characteristics needs to be taken seriously. We should be meeting the obligations that are already set in statute, which says that we should have adequate sites for these communities, but we just do not.”––[Official Report, Police, Crime, Sentencing and Courts Public Bill Committee, 18 May 2021; c. 68, Q99.]
The Government should focus on ensuring that local authorities have the resources they need to provide more space for Traveller communities to legally reside. By taking an enforcement approach to address the number of unauthorised encampments, the Government are overlooking the issue of the lack of site provision.
Part 4 of the Bill would cause harm to Gypsy and Traveller communities for generations. Gypsies and Travellers are already the most disproportionally represented group in the criminal justice system. Part 4 would compound the inequalities already experienced by Gypsies and Travellers and further push them into the criminal justice system, just for existing nomadically. I urge the Government to rethink these harmful proposals.
Victoria Atkins
I am very grateful to Opposition Members for debating this matter, because it gives me the opportunity to clear up some of the misunderstandings that appear to have arisen during the course of the Bill being debated and scrutinised by Parliament, and indeed by organisations outside Parliament.
We know that the vast majority of Travellers are law-abiding citizens, but when damage, disruption or distress is caused where a person resides on land without consent, it can affect local communities as well as landowners. Residents often feel helpless as their land or local amenities are damaged or disrupted, and councils are left with huge clean-up bills in some cases. In 2016, Birmingham City Council incurred costs of £700,000 due to evictions and clean-up costs resulting from harmful unauthorised encampments—that is £700,000 of taxpayers’ money. It is only right that the Government seek to protect citizens who are adversely affected by harmful unauthorised encampments, and to deter them from being set up in the first instance.
We have held consultations on this issue. In the 2018 Government consultation on enforcement powers for unauthorised encampments, it was made clear that people want to see greater protection for local communities, and for the police to be given greater powers to crack down on unauthorised encampments. In 2019, we ran a further consultation in which we asked how we should extend those powers. Some 66% of the people responding on behalf of local authorities were in favour of a new criminal offence for intentional trespass. At the start of our proceedings in oral evidence, we heard powerful accounts from PCC Alison Hernandez about the impact of unauthorised encampments in her area of Devon and Cornwall. Only today we have heard from my right hon. Friend the Member for Scarborough and Whitby, and from my hon. Friends the Members for Ashfield and for Blyth Valley, about the impact that unauthorised encampments and harmful behaviour within those encampments have had on their constituencies.
It is that caveat that is critical when we are looking at these clauses. Clause 61 introduces a new criminal offence for people residing on private or public land with vehicles who refuse to leave, without a reasonable excuse, when asked to do so, but only when they have caused, or are likely to cause, significant damage, disruption or distress. That is the key: that is what I kept asking those who spoke against these provisions during the evidence sessions. It is clear that for this offence to be committed, the conditions set out in subsection (4) of the proposed new section must be met: in other words, in a case where the person is residing on the land, significant damage or disruption has been caused or is likely to be caused as a result of P’s residence.
Ian Levy
Would the Minister clear a point up for me, just so I can get straight in my head what this Bill is setting out to do? A few years ago, we had the tall ships regatta in Blyth, and all the caravan sites were full, the bed and breakfasts were full, the hotels were full—it was a fantastic time. We had a massive influx of people coming to Blyth Valley. My cousin is a landowner, and he was asked by a group of people who were coming down whether he could turn over part of a field so that people could put their caravans there. About 50 caravans turned up in total. They stayed, they enjoyed the weekend, and they cleared up after themselves—they had a litter pick when they left, putting all the rubbish to one side. My cousin did not charge the group, but they brought toys for the kids and flowers for his wife. The Bill is not setting out to stop tourism, is it? It is not setting out to stop that guy in his caravan or that man with his camper van. It is to stop the unlawful things that go on: litter, breaking into houses, and anything like that. If the Minister could clear that up for me, that would be fantastic.
Victoria Atkins
I thank my hon. Friend for his contribution, and I am really happy to clarify this. I understand the concerns that have been voiced, but there is clearly a great deal of misunderstanding as to how these provisions are intended to act. They are intended to address the criminal, damaging, disrupting or distressing behaviour that arises from some unauthorised encampments—certainly not all; we are caveating this very carefully. Where there are unauthorised encampments in which people are behaving in a way that is causing, or is likely to cause, significant disruption, damage or distress, that is the behaviour we are trying to target.
I have listened very carefully to the arguments from the Opposition, particularly those regarding the provision of authorised encampments, and I am going to come on to the details of the Government’s plans for that in due course. However, to say that the answer to this behaviour is to provide authorised encampments is to miss the intention and, indeed, the very drafting of this clause. People can go on to a piece of land without agreement, but this offence will not be committed unless the conditions in subsection (4) are met. That is why I asked some of the witnesses, “What is an acceptable level of distress?” We as constituency MPs need to be able to look our constituents in the eye when we are voting on this legislation and say, “We have weighed up what may be significant disruption, what may be significant damage and what may be significant distress, and have tried to ensure that we are representing your views when we are opining on this piece of legislation.”
Mr Goodwill
The Minister will be aware that quite often, this land is agricultural land, which is needed for farmers and landowners to graze their stock. In a dry season, as it was earlier in this season, the last thing that farmers want is land that they can use for their own livestock being taken over and possibly used for the grazing of the horses of people who have come on to their land.
Victoria Atkins
Of course, it will not just be a question of horses. My farmers have the pleasure of farming some of the greatest, highest-quality agricultural land in the country, and they go to great efforts to ensure that their arable fields are ploughed, sowed, and treated to ensure optimum production of crop yields in each and every field that they farm. The use of a large vehicle—or, indeed, many large vehicles—which is not farm machinery and therefore not driven by the person who tends to a field going on to that field can cause damage. At this time of year, when driving around agricultural areas, one will see entrances to fields blockaded with all sorts of large items to try to ensure that they are not trespassed upon in the way that we are trying to tackle in the Bill.
Alex Cunningham
The Minister places a lot of stock in the word “significant”. To play devil’s advocate—perhaps against myself—she may be holding out a false promise to some of the communities we have heard described today. If a gang of Travellers turn up with 10 caravans, move on to someone’s land illegally—or it would be illegal under the Bill—take their rubbish away and do the work they want to do in the area, they will not be caught by the provision because they will not have caused “significant damage”. Communities across the country think that the Conservative Government are about to deliver all-encompassing, “we can move the Travellers on” legislation, but it is simply not the case.
Victoria Atkins
In that scenario, the hon. Gentleman is right, in that we are addressing the behaviour that is set out in proposed new section 60C(4). In the event of a travelling community behaving as he describes, all the existing civil measures that a landowner can rely upon are there to move them on. We are trying to deal with behaviour that causes significant damage, distress and disruption where encampments are unauthorised. We are balancing things carefully because we want to address the serious scenarios that my hon. Friends have described in their constituencies.
As we have touched on in other contexts, the word “significant” is widely used in legislation, for example in section 14A of the Public Order Act 1986 on “Prohibiting trespassory assemblies”, which refers to “significant damage”. The criminal offence is committed only when a person resides or intends to reside on the land without consent with a vehicle. That avoids criminalising other forms of trespass, for example, the offence does not apply to a hiker, someone who is homeless or someone who inadvertently strays on to private land. I know that many colleagues of all parties have received communications from clubs, associations and people who have taken the time to write to their Member of Parliament or the Home Office on the issue and we very much hope that this will provide them with welcome reassurance. We all have the right to enjoy the beautiful national parks and green spaces that this great country has to offer and we will be able to continue to exercise that right.
The types of harms caught by the offence are defined in clause 61 and cover many of the problems we have been told that residents and landowners face through some unauthorised encampments. These include significant damage to land, property and the environment, as well as threatening behaviour to residents and landowners. Regarding distress, an offence is committed only if significant distress has been caused or is likely to be caused as a result of offensive conduct, which is then defined within the Bill. It is therefore not possible for an offence to be caught if a person is distressed by the mere presence of an unauthorised encampment on the land. That is where the civil measures I referred to earlier will come into play.
I was challenged with an example where a landowner is distressed and demands the police arrest someone. As with every other criminal offence, the police will only arrest someone if they are doing so in the course of their duties under the Police and Criminal Evidence Act 1984. They cannot and must not arrest someone just because a landowner or anyone else happens to demand it. It is important as we are discussing the Bill that we bear in mind the wider checks and balances within the criminal justice system and the wider principles that apply across all criminal offences.
If someone has met the previously mentioned conditions, to be guilty of the offence, they must fail to comply with the request to leave as soon as reasonably practicable and without reasonable excuse. The duties of the police in relation to safeguarding the vulnerable when taking enforcement decisions will continue to apply, as with any other criminal investigation.
The penalties are consistent with squatting legislation and existing powers to tackle unauthorised encampments. The offence is also accompanied by a power for the police to seize the vehicle and other property of the person committing the offence, which ensures that enforcement action is effective and could also have a deterrent effect. Seizure powers are already conferred on the police in relation to failure to comply with a police direction under the 1994 Act. It is right that the police should have equivalent powers in the context of the new criminal offence.
The seizure power is proportionate. Where possible, police decisions to arrest and seize vehicles should continue to be taken in consultation with the local authority which, where possible, would need to offer assurance that it has relevant measures in place to meet any welfare and safeguarding needs of those affected by the loss of their accommodation. The police will continue to undertake any enforcement action in compliance with their equality and human rights obligations.
The shadow Minister set out the police evidence on these new powers. The responses to the 2018 consultation showed a clear desire from the public for the police to be given more powers to tackle unauthorised encampments, but unauthorised Traveller sites require a locally driven, multi-agency response, led by local authorities and supported by the police. There are incentives in place for local authorities to encourage the provision of authorised Traveller pitches. Local planning authorities should continue to assess the need for Traveller accommodation and identify land for sites.
It is only right that the police are given the powers to tackle instances of unauthorised encampments that meet the conditions of proposed new subsection (4). We are very pleased that the Opposition are adopting the position that we should legislate for changes to police powers when requested by the police, because that gives us hope that they will support the measures in part 3, which we have just debated and which have been requested by the police.
This new offence is not targeted at any particular group. Rather, anyone who causes significant damage, disruption or distress in the specified conditions and who refuses to leave without reasonable excuse when asked to do so will be caught by the offence.
Section 61 of the 1994 Act is currently exercisable where any of the trespassers has caused damage to the land or to property on the land or used threatening, abusive or insulting words or behaviour towards the occupier, Under the amendments in clause 62, the relevant harms comprise damage, disruption or distress, including environmental damage, such as excessive noise and litter. The harms do not need to be significant for police to be able to direct trespassers away in the first instance. That will make it easier for the police to direct trespassers away where encampments are causing problems for landowners, communities or businesses.
We have also increased the period in which trespassers directed away from the land must not return, from three months to 12 months. That is designed to strengthen enforcement powers, acting as a greater deterrent in the first place, and to protect more proportionately the rights of landowners and local communities. We are also enabling the police to direct trespassers away from land that forms part of a highway, to ensure that directions can be given to trespassers on roads.
Our overarching aim is to ensure fair and equal treatment for Travellers in a way that facilitates their traditional nomadic way of life while respecting the interests of local residents and the settled community. We recognise that the vast majority of Travellers are law-abiding citizens, but unauthorised sites can often give an unfair negative image of nomadic communities, and cause distress and misery to residents who live nearby. We are equally clear that we will not tolerate law breaking.
Statutory guidance will be issued, as provided for in clause 63, and will outline examples of what might constitute a reasonable excuse for not complying with the request to leave. That guidance will be vital to support the police in discharging those functions and will help to ensure a consistent application of the powers across England and Wales. The police must have regard to the guidance when exercising the relevant functions. We envisage that the guidance will set out, for example, what might constitute significant damage, disruption and distress, and what might constitute a reasonable excuse, where someone fails to comply with a request to leave the land. It will be up to the police and courts to decide whether someone has a reasonable excuse for not complying, depending on the specific facts of that case.
We recognise the rights of Travellers to follow a nomadic way of life, in line with their cultural heritage. Our aim is for settled and Traveller communities to be able to live side by side harmoniously, and we hope that the clear rules and boundaries that we are putting in place will facilitate that. We remain committed to delivering a cross-Government strategy to tackle the inequalities faced by Gypsy, Roma and Traveller communities. The planning policy for Traveller sites is clear that local planning authorities should assess the need for Traveller accommodation and identify land for sites. Local housing authorities are required to assess their housing and accommodation needs under the Housing Act 1985, including for those who reside in caravans. There is wider Government support for the provision of Traveller sites via the new homes bonus, which provides an incentive for local authorities to encourage housing growth in their areas, and rewards net increases in effective housing stock, including the provision of authorised Traveller pitches.
Alex Cunningham
Does the Minister have an idea what the Government’s plans are in terms of the number of sites that are likely to be created over the next three to five years?
Victoria Atkins
That is a matter for local authorities. We have the planning policy for Traveller sites, which is down to the local planning authority. In the hon. Gentleman’s area, I know not whether his local council agrees with him that there should be more sites, but it would be a matter for the local authority to address with local residents.
We remain committed to delivering the strategy to tackle the inequalities faced by the communities that we have discussed. There is the additional affordable homes programme for local authorities to deliver a wide range of affordable homes to meet the housing needs of people in different circumstances and different housing markets, including funding for new Traveller pitches.
We believe that we have struck the right balance between the rights of those who live a nomadic way of life and the rights of local communities to go about their lives without the significant damage, disruption and distress outlined in proposed new section 60C(4), which, regrettably, some unauthorised encampments cause. I therefore commend clauses 61 to 63 to the Committee.
The Parliamentary Under-Secretary of State for the Home Department (Chris Philp)
It is, as always, a great pleasure to serve under your chairmanship, Mr McCabe. The clause fulfils the Government’s long-standing commitment to increase the maximum penalty for the offences of, first, causing death by dangerous driving and, secondly, causing death by careless driving while under the influence of drink or drugs from, in both cases, the current maximum sentence of 14 years to life imprisonment.
As members of the Committee will know, in response to the consultation on driving offences and penalties some time ago, the Government proposed to take forward various changes in the law, including these, and all of them received overwhelming public support and support from other consultees. By enacting this clause we are delivering on the result of that consultation and on a long-standing commitment. That means that when sentencing people for these very serious offences, the courts can sentence up to life imprisonment if the judge sees fit.
Many hon. Members will have constituency cases where families have suffered the terrible trauma of a loved one being killed by a dangerous or careless driver who was driving when drunk. I have certainly encountered a number of such cases in the last six years as a constituency MP, as I am sure each and every Member here has. The criminal justice system can never adequately compensate for the grief caused by the loss of a loved one in such terrible circumstances, but these changes will mean that courts now have the power to make sure that the punishment truly fits the crime.
It is appropriate that the maximum sentences for causing death by dangerous driving and causing death by careless driving while under the influence are increased from 14 years to life imprisonment. I commend these measures to the Committee.
Alex Cunningham
I am pleased to offer the Opposition’s enthusiastic support for clauses 64 to 66, and particularly for clause 64, which will increase the maximum penalties for the offences of causing death by dangerous driving and causing death by careless driving while under the influence of drink or drugs from 14 years’ imprisonment to imprisonment for life.
I pay tribute to my hon. Friends the Members for Barnsley East (Stephanie Peacock) and for Barnsley Central (Dan Jarvis) for their committed work to increase the penalty for those guilty of causing death by dangerous driving to life imprisonment and for the Bill they have promoted and supported. My hon. Friend the Member for Barnsley East has worked alongside the family of Jaqueline Wileman, from Grimethorpe, who was 58 when she was struck and tragically killed by a stolen heavy goods vehicle in September 2018. I offer my sincerest thanks to the Wileman family for their tireless campaign for change, which they are now able to see become a reality.
Other families of victims of these awful crimes have also long campaigned to see these changes, such as the family of Violet-Grace, who died from injuries inflicted as a result of a car crash caused by individuals driving dangerously in March 2017. I hope that this change in the law, which they have fought to bring forward, will provide some small solace that dangerous drivers who kill will, in future, feel the full force of the law.
Work to address this important issue has been energetic on both sides of the House, and it was the right hon. Member for Maidenhead (Mrs May) who introduced the Death by Dangerous Driving (Sentencing) Bill in July 2020, as a private Member’s Bill co-sponsored by my hon. Friends the Members for Barnsley East and for Barnsley Central. We are therefore fully supportive of the Government’s proposal to provide the court with a wider range of penalties to ensure that sentences are proportionate and reflect the seriousness of the offending.
The urgent need for this change is illustrated by the fact that, in 2019, over 150 people were sentenced for causing death by dangerous driving. Of those offenders, around 95% received an immediate custodial sentence, of which over 15 received a sentence of more than 10 years. If 10% of offenders are already being sentenced near the maximum threshold, it seems the time is ripe to provide the court with wider sentencing powers for these offences so that offenders are dealt with consistently and fairly.
Although we are fully supportive of these changes, I note that there has been some delay in introducing them. The Government committed to changing the law on causing death by dangerous driving following a review in 2014—seven years ago. As the Minster said, it has been a long-standing commitment. There was also a consultation in 2016, which the Government responded to in 2017, committing to the legislative changes that are now in the Bill. The private Member’s Bill brought forward by the right hon. Member for Maidenhead last year was a real nudge along to the Government, following a perceived dropping of the ball. I would normally say, “Better late than never,” but for a measure as serious as this, and with hundreds of families losing loved ones to dangerous drivers in the intervening years, I wonder what held the Government up for so long.
Speaking of delays, Cycling UK said that, although it cautiously supports these proposals, it fears they will do very little to address the many serious problems with the framework of road traffic offences and penalties. I understand that the Government promised a full review of the framework back in 2014, but it has never happened. I would welcome an update from the Minister on the wider review, which could look at the utilisation of driving bans.
We fully support the proposals in clause 65, which introduces the new offence of causing serious injury by careless or inconsiderate driving, and sets the maximum penalty for the offence on indictment at two years’ imprisonment.
Alex Cunningham
In that case, I will sit down and address that point later.
Chris Philp
I have nothing further to add to my earlier answers. We keep these matters under continual review. There are no plans to make changes just at the moment, but we do of course keep an eye on these matters.
Alex Cunningham
A review was promised in 2014. Is that review likely to be held soon?
Chris Philp
I am afraid that I have no specific information on that, other than to say that we keep an eye on these matters on an ongoing basis.
Question put and agreed to.
Clause 64 accordingly ordered to stand part of the Bill.
Clause 65
Causing serious injury by careless, or inconsiderate, driving
Chris Philp
This clause has a very similar intention to the previous clause, in that it introduces a new section 2C offence into the Road Traffic Act 1988 to fill a lacuna in the existing legislation. It does that by introducing a new offence of causing serious injury by careless or inconsiderate driving. There is currently no offence that covers this, so we are filling a gap that exists in the current legislation.
The new offence created by the clause is committed if a person causes serious injury by driving a car or another mechanically propelled vehicle on a road or public place without due care and attention or without reasonable consideration for other road users and, while doing so, causes serious injury.
The maximum custodial penalty for the offence on indictment will be two years’ imprisonment or a fine. The maximum custodial penalty on summary conviction will be 12 months or a fine. Until such time as section 224 of the sentencing code is commenced, the maximum penalty on summary conviction in England and Wales will be read as six months.
This is an important clause, which fills a gap in the current law and ensures that, where serious injury is caused by someone who is driving carelessly or inconsiderately, there will be an offence that can be prosecuted with an appropriate penalty—in this case, a maximum of two years if tried on indictment. I hope the Committee will agree that this is a sensible measure and will support the clause.
Alex Cunningham
As I prematurely said some minutes ago, we fully support the proposals in clause 65, which introduces the new offence of causing serious injury by careless or inconsiderate driving and sets the maximum penalty for the offence on indictment, as the Minister said, at two years’ imprisonment.
The Legal Aid, Sentencing and Punishment of Offenders Act 2012 and the Criminal Justice and Courts Act 2015 made provision for new offences for dangerous and disqualified driving, but left the gap the Minister referred to in the law, relating to careless driving that results in serious injury. As I said before, we welcome the sensible proposal in clause 65, which fills that gap and will allow for a penalty that recognises the high level of harm caused by these incidents. As a result, the Opposition support clause 66 and schedule 7, which make minor consequential amendments as a result of clauses 64 and 65.
Chris Philp
Debates about conditions in prisons are probably somewhat outside the scope of our discussion, save to say that the Prisons Minister works on a daily basis to ensure that our prisons provide the right sort of environment, including for rehabilitative purposes.
The shadow Minister asked about the prison population and drew attention to the overall impact assessment for the Bill. As he said, the impact assessment, in which these measures are listed as measures A to C for driving offences, estimates that 1,300 offenders may be affected. The impact on prison places obviously depends on how judges sentence the new offence—measure C in the impact assessment—and how sentences vary under clause 64, which we discussed previously, given that the maximum is being increased from 14 years to life. However, that is all included in the overall figure of 700 places that covers the entire Bill.
The shadow Minister asked about the availability of prison places in the light of the pandemic. That again is more a matter for the Prisons Minister, but the overall prison population today is materially lower than prior to the pandemic—I speak from memory, but I think it is 5,000 or 6,000 lower—for a variety of reasons that I am sure the shadow Minister is aware of. Therefore, the pressures on the prison population coming out of the pandemic may be a little less severe than one might have feared.
I repeat my support for the clause, which fills an important gap in the law.
Question put and agreed to.
Clause 65 accordingly ordered to stand part of the Bill.
Clause 66
Road traffic offences: minor and consequential amendments
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to consider that schedule 7 be the Seventh schedule to the Bill.
Chris Philp
Clause 66 and schedule 7 introduce a number of minor consequential amendments to be made to other Acts as a result of the offence we discussed in the previous clause. The consequential amendments to proposed new section 2C to the Road Traffic Act 1988 —causing serious injury by careless, or inconsiderate, driving—are among those. It inserts a new section 3ZB and 3ZC into that Act, and tidies up various other anomalies. In essence, they are minor, inconsequential amendments that follow the previous clause.
Question put and agreed to.
Clause 66 accordingly ordered to stand part of the Bill.
Schedule 7 agreed to.
Clause 67
Courses offered as alternative to prosecution: fees etc
Question proposed, That the clause stand part of the Bill.
Victoria Atkins
Clause 67 provides a specific statutory power for the current charging arrangements for education courses offered for minor driving offences as an alternative to a fixed penalty or prosecution. Those courses help to improve road safety and reduce the burden on the criminal justice system. The provisions in this clause will not change the way in which courses are offered, administered or run, but will provide greater transparency over the way that fees are set. A local policing body may charge a fee to cover the cost of the approved course, but also include an uplift as a contribution towards the cost of promoting road safety, including road safety partnerships and speed cameras.
The clause will also allow the Home Secretary to prescribe in secondary legislation the types of courses in which motorists may be charged, the maximum amount that may be charged and the way that the charge can be used. It will allow provision to be made to prevent courses from being offered to repeat offenders. That means that any potential repeat offenders will face the deterrent of fixed penalty fines and penalty points on their licence. Equivalent provisions are made for Northern Ireland, and there are allowances for corresponding or similar provision for Scotland, following consultation with the Lord Advocate.
Bambos Charalambous
We support clause 67 and welcome that the charging regime for courses offered as an alternative to prosecution will be placed on a statutory footing. It makes a lot of sense that a course cannot be offered to repeat offenders, but I would like to ask the Minister a question about proposed new part 4B, section 91G, which states:
“A fee may be set at a level that exceeds the cost of an approved course and related administrative expenses, but any excess must be used for the purpose of promoting road safety.”
Can the Minister provide an example of why a fee would be set at a level that exceeds the cost, and how much that could be? How much do the fees vary across police forces? Police forces can decide which courses to offer, so not all courses will be available in all areas. The same offence committed in different force areas may be dealt with in different ways.
What will the clause do to ensure that there is a consistent application of diversionary courses across the country? If the courses are to be effective methods of deterrence and rehabilitation of offenders, it is important that their use be consistent. In its 2016 report, the Transport Committee said of diversionary courses:
“There are clearly concerns about the transparency of the operation and funding of diversionary courses, reinforced by the variations in fees between force areas and the profits earned by providers.”
It also recommended that:
“the costs for diversionary courses should be standardised nationwide unless there is a clear and convincing reason not to do so…so that the public can be confident in the transparency of these courses.”
Although clause 67 allows the Secretary of State to specify in regulations the level of fees, use of fee income and how fees are to be calculated, can the Minister tell us whether a standardised cost may be considered in secondary regulations?
Victoria Atkins
As I said, the clause permits charges to be laid in excess of the cost of the approved course, but will also permit a contribution towards the cost of promoting road safety, including road safety partnerships and speed cameras. In principle, that seems to be a good approach; if one falls foul of driving legislation, a contribution to the costs of keeping our streets safe locally seems to be a proportionate response.
The current course fee is approximately £100, but that can vary according to local course arrangements. The types of course offered and course costs can be found on the national driver offender retraining scheme, which is available online at www.ukroed.org.uk. The type of course offered and the costs can vary by police force and supplier, but we want to ensure that there is greater transparency in the way that fees are set, enabling the setting of maximum amounts that can be charged to provide, run and administer such courses. There is no immediate intention to introduce standard fees unless it is considered appropriate after consultation with relevant stakeholders.
Question put and agreed to.
Clause 67 accordingly ordered to stand part of the Bill.
Clause 68
Charges for removal, storage and disposal of vehicles
Question proposed, That the clause stand part of the Bill.
Victoria Atkins
The police have the power to remove vehicles that are illegally, dangerously or obstructively parked, broken down or abandoned, including after theft or a road traffic collision. The cost of the recovery, storage and disposal of such vehicles should not fall to the police or the taxpayer.
Clause 68 will clarify the legal basis for the police’s charging for vehicle recovery under the Road Traffic Regulation Act 1984. That will ensure that the police can continue to recover the cost of removing, storing and disposing of vehicles, including those causing an obstruction or danger—for example, vehicles damaged in a road traffic collision. The clause will also ensure that all appropriate authorities covered under the 1984 Act can continue to recover such costs, which includes the Secretary of State and Highways England.
Bambos Charalambous
Clause 68 is described in the explanatory notes as being intended
“to return to a statutory footing”
the legal basis for charging for removing or impounding vehicles. However, in an article in the Daily Mail, it has been described as fixing an “incredible legal gaffe”.
The powers to charge for vehicle removal, storage and disposal were actually introduced in 1984, but the explanatory notes explain that
“the police’s power to charge for the removal, storage and disposal of vehicles within the meaning of ‘civil enforcement areas for parking contraventions’”
seems to have been inadvertently removed due to a drafting error. At the same time, the power of local authorities, the Secretary of State and strategic highways companies to charge for the removal, storage and disposal of vehicles were also inadvertently removed.
I want to ask the Minister about the implications of the error, and what changes or problems the passing of clause 68 might bring. Will the many drivers who for the past 30 years have been charged when the legal basis for that charge did not actually exist be able to take legal action? Will the Government review what has happened?
Howard Cox, of the motoring pressure group FairFuelUK, has said:
“Drivers who in the last 30 years have been charged illegally should demand their vehicle confiscation costs be repaid in full. They should be checking that they have the historic paperwork to mount a legal challenge. This is not a question of their offences being right or wrong—it is down to the government’s incompetence that is off the scale. The authorities and those responsible must pay for this idiocy.”
Jeanette Miller, of the Association of Motor Offence Lawyers, told the Daily Mail that it was
“a major error in the legislation that has resulted in goodness knows how many millions being charged to motorists without any lawful basis”.
She added:
“Where this leaves motorists in terms of seeking refunds is difficult to say. There is a limitation period of six years in pursuing civil claims, but this can start from the date of the breach or, crucially, the date of knowledge.”
The fees for storage and release of vehicles can be hundreds of pounds. The police and other bodies can charge £150 to tow a vehicle, and car-owners can also be charged up to £20 a day for storage of a car and up to £75 to dispose of it. The Government’s impact assessment says:
“There are no impacts associated with this measure. The new provision returns to a statutory footing the position as it applied before the inadvertent removal of these powers due to a drafting error. There will be no additional impact beyond that.”
It is hard to believe that there will be no impact if potentially millions of people have been charged for the storage and release of vehicles when there was no legal basis for that charge.
There is not simple data collection on the number of impounded vehicles, so could the Minister provide us with some figures for how many people she estimates have been affected by this error since 1991?
I also ask the Minister what this will mean for our cash-strapped police forces, local authorities and highways agencies. They could face huge bills if they are forced to compensate drivers for their legal costs, so this error could have serious, wide-ranging consequences. I hope the Minister can reassure the Committee that the Government will be taking swift action to come up with a solution, so that this mistake does not become a national scandal.
Victoria Atkins
I thank the hon. Gentleman for setting out the history of the regulation and its drafting. The police have other powers to charge for the removal of vehicles used in a manner that is causing alarm, distress or annoyance, or being driven without a driving licence or insurance. The only power affected was the power to charge for the removal of vehicles that were abandoned or broken down.
This provision clarifies the statutory basis of the ability of the police, Secretary of State or strategic highways companies to charge for vehicle recovery. Local authorities were not affected, as the amendment to the 1984 Act focused on the powers of local authorities and inadvertently removed other powers to charge. We believe it has been right for the police to continue to charge for vehicle recovery: that has avoided costs being borne by the taxpayer, and has allowed the police to continue removing abandoned vehicles to keep roads safe for other drivers and pedestrians. If the police were unable to deal with vehicle removal, significant inconvenience would be caused to the travelling public and commerce by the obstruction of highways by vehicles.
The hon. Gentleman stated some of the fees that can be charged. It is important to explain the thinking behind those: police contracts require operators to deal with a range of different vehicles, provide a guaranteed speedy response, and to have specialist equipment and secure storage facilities. Vehicles are often accident-damaged, do not free-wheel and are difficult to access—or they may require forensic examination, and must therefore be removed and stored with the highest standards of professionalism. I believe that is all I can do to assist the hon. Gentleman with his queries.
Question put and agreed to.
Clause 68 accordingly ordered to stand part of the Bill.
Clause 69
Production of licence to the court
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to consider the following:
Clauses 70 to 73 stand part.
That schedule 8 be the Eighth schedule to the Bill.
Clause 74 stand part.
That schedule 9 be the Ninth schedule to the Bill.
Clause 75 stand part.
Victoria Atkins
Clauses 69 to 74 and schedules 8 and 9 update the law in relation to the production and surrender of driving licences, so as to streamline the processes for the electronic endorsement of driving licences by removing the need for the physical licence to be produced. They also strengthen the rules for the surrender of driving licences where a driver faces disqualification.
The current legal requirement to produce and surrender the driving licence as part of the endorsement process is now outdated. In 2015, the paper driving licence counterpart, which previously recorded the endorsement, was abolished, and the information is now only recorded on Driver and Vehicle Licensing Agency electronic drivers’ records. There is therefore no need for a physical driving licence to be produced and surrendered for an endorsement to be recorded on an individual’s driving record. The only need for a licence to be produced and surrendered is when the driver may be sentenced to disqualification or is actually disqualified. The clauses and schedules bring the law up to date, removing any need for individuals to deliver or post their licence before a hearing, and leaving only a duty to take their licence to court if there is a hearing and if they attend.
Clause 70 provides the Secretary of State—in practice, the Driver and Vehicle Licensing Agency—with the power to require the surrender of a driving licence to the agency where a court has ordered disqualification. Failure to do so would be a summary offence, carrying a maximum penalty of a level 3 fine—currently £1,000. Where an individual is disqualified, the court will notify the DVLA and forward the licence to it when it has been surrendered at court. When it has not been surrendered at court, the DVLA will follow up production of the licence with the disqualified driver using the new power.
The clauses also remove the need for the production and surrender of the driving licence and allow police constables and vehicle examiners to issue a fixed penalty notice without checking and retaining a physical driving licence.
Clause 75 is included at the request of the Scottish Government. Its objective is to make better use of police and judicial resources in Scotland. Currently, the police throughout Great Britain have the power to issue a conditional offer of a fixed penalty notice under sections 75 to 77A of the Road Traffic Offenders Act 1988. The scheme was introduced in 1989 as an alternative to prosecution for certain low-level road traffic offences. Once a conditional offer of a fixed penalty is issued, an individual has 28 days to accept the offer and make payment. In Scotland, if the offer is not accepted or the recipient fails to take any action, the police will submit a standard prosecution report to the Crown Office and Procurator Fiscal Service for consideration of whether a prosecution should take place.
Clause 75 grants the power to issue fixed penalty notices on the spot in Scotland for minor road traffic offences. That power is already available in England and Wales. In contrast to the position with conditional offers of fixed penalty notices, when the recipient of a fixed penalty notice fails to respond it simply becomes a registered fine at one and a half times the original penalty. That approach is attractive to the Scottish Government as a means of reducing the burden on the police, prosecutors and courts while preserving the recipient’s right to challenge a fixed penalty notice, should they wish to do so.
The clause will apply in the first instance to the police, but the Scottish Government want to be able to consider its potential extension to traffic wardens and vehicle examiners at their own pace and following further consideration.
I commend the clauses and schedules to the Committee.
Alex Cunningham
The Opposition also support the remaining clauses in part 5. They are sensible, helpful and well evidenced, and we are glad to offer our support for them. Currently, when a fixed penalty notice has been issued, a driver must surrender their licence to the relevant authority, but since the paper counterpart licence was abolished in 2015, there is no need for a driving licence to be produced for an endorsement to be recorded against a driver’s driving record.
Clauses 69 to 74 will finally remove the redundant requirement for a physical driving licence to be produced when a fixed penalty notice has been issued and they will also strengthen the rules for the surrender of driving licences when a driver faces disqualification.
Clause 69 will amend section 27(1) of the Road Traffic Offenders Act 1988 to provide that courts are no longer required to oblige licence production. Instead, the courts will be provided with powers that they may exercise at their discretion. This power will apply both where the court proposes to disqualify and where it disqualifies a licence.
Clauses 70 and 71 make further amendments to the 1988 Act, the effect of which, when taken together with clause 69, is to remove the need to produce a driving licence from the fixed penalty process. This streamlining is welcome and hopefully will in some small way reduce the administrative burden on our under-resourced and overstretched courts system, as it will no longer need to handle the physical licence where a driver faces endorsement, but not disqualification.
In recent years, attempts have been made to update the law in this area through private Members’ Bills, which have had Government support. The attempt made by the hon. Member for Mid Dorset and North Poole (Michael Tomlinson) fell after its Committee stage because of the 2017 general election. The attempt made in the 2017-to-2019 Session by the right hon. Member for Dumfries and Galloway (Mr Jack) did not even manage to progress past its First Reading. I am glad that the Government are at last introducing the measure in a Government Bill in Government time.
We are also content with clause 75, which extends the police power that the police in England and Wales currently have to issue on-the-spot fines for certain moving traffic offences to police in Scotland. I am aware of the Department for Transport’s joint consultation with the Scottish Government on this topic from 2018. Doesn’t it take a long time for things to happen in law? The majority of the responses to the consultation supported the proposed changes and seemed to indicate the need for fixed penalty notice reform in Scotland for suspected road traffic offences, which the Government are sensibly introducing here.
Allan Dorans
I wish to confirm that the Scottish Government welcome the clauses that affect Scotland.
Question put and agreed to.
Clause 69 accordingly ordered to stand part of the Bill.
Clauses 70 to 73 ordered to stand part of the Bill.
Schedule 8 agreed to.
Clause 74 ordered to stand part of the Bill.
Schedule 9 agreed to.
Clause 75 ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned. —(Tom Pursglove.)
Police, Crime, Sentencing and Courts Bill (Eleventh sitting)
Thursday 10th June 2021
(2 years, 11 months ago)
Public Bill CommitteesRead Full debate Police, Crime, Sentencing and Courts Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 10 June 2021 - (10 Jun 2021)
The Committee divided: - Ayes: 2 / Noes: 7 - Question accordingly negatived.
The Chair
Before we begin, I have a few preliminary reminders for the Committee. Please switch electronic devices to silent. No food or drink is permitted during sittings of the Committee, except the water provided. I remind Members to observe physical distancing. Members should sit only in the places that are clearly marked, and it is important that they find their seats and leave the room promptly to avoid delays for other Members and staff. Members should wear face coverings in Committee unless they are speaking or medically exempt. Hansard colleagues would be grateful if Members emailed their speaking notes to hansardnotes@parliament.uk.
We now resume line-by-line consideration of the Bill. The selection list for today’s sitting is available in the Room. I remind Members wishing to press a grouped amendment or new clause to a Division that they should indicate their intention when speaking to their amendment.
Clause 76
Diversionary and community cautions
Alex Cunningham (Stockton North) (Lab)
I beg to move amendment 11, in clause 76, page 70, line 38, leave out “diversionary” and insert “conditional”.
The Chair
With this it will be convenient to discuss the following amendments:
12, in clause 76, page 71, line 2, leave out “diversionary” and insert “conditional”.
13, in clause 76, page 71, line 7, leave out “Diversionary” and insert “Conditional”.
14, in clause 76, page 71, line 10, leave out “diversionary” and insert “conditional”.
15, in clause 76, page 71, line 16, leave out “diversionary” and insert “conditional”.
18, in clause 77, page 71, line 24, leave out “diversionary” and insert “conditional”.
19, in clause 77, page 71, line 31, leave out “diversionary” and insert “conditional”.
20, in clause 77, page 72, line 3, leave out “diversionary” and insert “conditional”.
21, in clause 77, page 72, line 6, leave out “diversionary” and insert “conditional”.
22, in clause 77, page 72, line 8, leave out “diversionary” and insert “conditional”.
23, in clause 78, page 72, line 11, leave out “diversionary” and insert “conditional”.
24, in clause 78, page 72, line 15, leave out “diversionary” and insert “conditional”.
25, in clause 78, page 72, line 20, leave out “diversionary” and insert “conditional”.
26, in clause 78, page 72, line 34, leave out “diversionary” and insert “conditional”.
27, in clause 79, page 72, line 38, leave out “diversionary” and insert “conditional”.
28, in clause 79, page 72, line 42, leave out “diversionary” and insert “conditional”.
29, in clause 80, page 73, line 36, leave out “diversionary” and insert “conditional”.
30, in clause 81, page 74, line 7, leave out “diversionary” and insert “conditional”.
31, in clause 81, page 74, line 14, leave out “diversionary” and insert “conditional”.
32, in clause 82, page 74, line 25, leave out “diversionary” and insert “conditional”.
34, in clause 83, page 74, line 29, leave out “diversionary” and insert “conditional”.
35, in clause 83, page 74, line 34, leave out “diversionary” and insert “conditional”.
36, in clause 84, page 74, line 39, leave out “diversionary” and insert “conditional”.
37, in clause 84, page 75, line 36, leave out “diversionary” and insert “conditional”.
38, in clause 84, page 75, line 42, leave out “diversionary” and insert “conditional”.
39, in clause 85, page 76, line 23, leave out “diversionary” and insert “conditional”.
40, in clause 85, page 76, line 26, leave out “diversionary” and insert “conditional”.
41, in clause 85, page 76, line 31, leave out “diversionary” and insert “conditional”.
42, in clause 85, page 76, line 34, leave out “diversionary” and insert “conditional”.
43, in clause 85, page 76, line 39, leave out “diversionary” and insert “conditional”.
44, in clause 85, page 77, line 15, leave out “diversionary” and insert “conditional”.
45, in clause 85, page 77, line 18, leave out “diversionary” and insert “conditional”.
47, in clause 86, page 77, line 36, leave out “of the”.
This amendment is consequential on Amendment 13.
48, in clause 86, page 77, line 41, leave out first “the” and insert “any”.
This amendment is consequential on Amendment 13.
Alex Cunningham
It is a pleasure to serve under your chairmanship this morning, Sir Charles. First, I especially thank Unlock, Transform Justice, and the Centre for Justice Innovation for their considerate and constructive scrutiny of the proposals.
The Opposition are generally supportive of the changes to the statutory framework for out-of-court disposals, and we recognise the work that the Government have done to move in that direction. Three forces took part in a year-long pilot of the two-tier framework in 2014, and the Ministry of Justice commissioned an independent evaluation of that pilot, which was published in 2018. Fourteen police forces—a third of all forces in England and Wales—have already adopted the two-tier framework, and the National Police Chiefs’ Council has endorsed the two-tier framework through its strategy for charging and out-of-court disposals.
We do appreciate the need to simplify the six-option cautions menu, and we recognise the Government’s attempt to streamline the use of out-of-court disposals for police forces. We would like those reforms to go further, however, and I will go on to discuss those areas in speaking to our amendments. We would like much more to be done to incentivise the use of out-of-court disposals in appropriate cases. It is important to note that although the Government hope that the new system will reduce reoffending, current data does not suggest that short-term reoffending rates are likely to go down. The evaluation of the 2014 pilot found no statistically significant difference between the short-term reoffending rates of prisoners who were given out-of-court disposals in two-tier framework areas and those in comparable areas that were not using the new framework.
I understand that the Government also hope that the new system will improve victim satisfaction because more victims will be involved in the process, but it is important to recognise that victim satisfaction with the current out-of-court-disposal framework is already good. In 2019-20, 84% of victims whose offender was issued a caution said that they were satisfied with the police action. That is a similar rate to victims whose offenders were charged, 83% of whom said that they were satisfied with the police.
Although we support the principle of simplification for the purposes of enabling the police to work more effectively, we have to be realistic about the likely impact of that change to the system.
Bambos Charalambous (Enfield, Southgate) (Lab)
Does my hon. Friend agree that the greater involvement of victims in the process, particularly for out-of-court disposals, is much better for reaching a satisfactory conclusion for everybody concerned?
Alex Cunningham
I most certainly agree: the more that victims are involved, the easier the process is for them. Talking about victims goes well beyond what we are debating today. The Opposition have published a victims’ Bill and hope that one day soon, the Government will finally come up with their victims’ Bill to address some of the issues that need to be addressed if life is to be just a little easier for the people who fall victim to criminals in our society.
Although we support the simplification of the cautions system, we have concerns about the removal of the simple caution, which seems to be an extremely effective and non-resource-intensive disposal for police officers to choose to use. Indeed, the simple caution has the lowest rate of reoffending of any sentence or sanction.
The Bar Council has said that it, too, is concerned about the removal of the simple warning:
“The existence of a simple warning, which the Bill proposes to abolish, is useful in many ways, not least because it requires fewer resources from police forces.”
The Bar Council went on:
“To insist that cautions are imposed in all cases does not give sufficient flexibility to the judiciary. A national framework that is too rigid is likely to be unworkable in a courtroom.”
As the Chair of the Bar Council—Derek Sweeting, QC —said in one of the evidence sessions on the Bill:
“It would be useful to have something that was a more general tool that the police could use, that would not turn up in criminal records later on and so on, and that would give the police the option effectively just to give what is now the simple caution.”––[Official Report, Police, Crime, Sentencing and Courts Public Bill Public Bill Committee, 18 May 2021; c. 87, Q141.]
There is a range of low-level offences for which the simple caution is supremely suitable and in response to which it would not necessarily be appropriate to initiate a more formal engagement with the justice system, so how does the Minister envisage this very low-level offending now being dealt with?
Another area on which we would appreciate further reassurance from the Minister is the funding system. The system being proposed is likely to be significantly more costly than the existing system. The evaluation of the 2014 pilot found that the criminal justice system in pilot areas was estimated to have spent around 70% more on administering out-of-court disposals than the system in non-pilot areas. It concluded that the increased spending was the result of using conditional cautions in place of simple cautions, because conditional cautions require more police time to administer and monitor.
The Government estimate that this change will cost around £109 million over 10 years and think the criminal justice system will incur extra operational costs of around £15.58 million every year. They further estimate that the new cautions system will cost the police around £30.7 million to implement over the first two years.
The actual costs are likely to be even higher than those estimates, because the estimates are based on data from a pilot of the current two-tier framework carried out in 2014, which did not include some of the costly features of the proposed system set out in the Bill, such as proposed restrictions on the use of out-of-court disposals for certain offences. That is a significant cost and, as I noted earlier, it does not necessarily come with the offsetting benefit of reduced reoffending rates.
The impact assessment refers to £1.5 million for a three-year programme aimed at supporting police forces to access local intervention services, identify gaps in available provision and help to prioritise what services are needed that are not currently available.
Bambos Charalambous
Does my hon. Friend agree that it would be better to use some of the money that will be spent on this change for more community policing and more youth services, which would actually make a difference in diverting young people from crime?
Alex Cunningham
I certainly do agree with my hon. Friend, particularly when it comes to youth services. We have seen youth services being devastated over the last 10 or 11 years, and all manner of other services in the community have also gone, all of which could have contributed to reducing crime, better engaging young people and diverting them from crime. Nevertheless, this three-year programme is welcome all the same, and I am glad that the Government are providing some resource to identify and fill support gaps, which can help to keep people out of the criminal justice system all together.
However, as my hon. Friend has suggested, £1.5 million seems a small amount of money indeed when stretched across our 43 police forces, which all serve different and diverse community needs. I would be grateful if the Minister told us more about how his Department sees that £1.5 million being spent and what criteria he will set for its allocation.
I am interested to know whether there are any plans to boost funding for these types of programme, especially as they might save the Government significant amounts of money by diverting appropriate low-level cases from prosecution altogether.
I would appreciate further information from the Minister on training officers in this particular area. Adrian Crossley, head of the criminal justice policy unit at the Centre for Social Justice, raised that issue at an evidence session:
“Drawing from the 2014 audit, there are some learnings from the two-tier system, most notably the training of officers so that they can refer people to the intervention that is appropriate and useful, better inter-agency communication, and sufficient time for implementation.”––[Official Report, Police, Crime, Sentencing and Courts Bill Public Bill Committee, 18 May 2021; c. 45, Q63.]
Will the Minister tell us what resources will be made available to train officers in such a way? Or will that also come out of the £1.5 million?
We know that keeping people out of the formal justice system can have a really positive impact, so the Opposition would like to see growing use of out-of-court disposals, but the matter needs to be dealt with across Government—everything from youth services to the development of support services in the community.
Given the energy and time that the Minister’s Department has put into the proposals, I know it recognises the need for greater numbers of out-of-court disposals. However, I have reservations about the fact that the available evidence suggests that the proposals might result in a further decline in the use of out-of-court disposals. In 2019, approximately 192,000 out-of-court disposals were issued in England and Wales. That is the lowest number in a year since 1984 and around 28,000 fewer than in 2018.
The Ministry of Justice evaluation of the 2014 pilot found no change in the volume of out-of-court disposals issued by police forces using the system. It seems that officers in the pilots switched to the disposing of offences with conditional cautions when they would have used a simple caution, so we can assume that police officers will not make significant changes to their use of those disposals as a result of the proposed changes.
Features introduced in the proposals were not in the two-tier framework pilot, which I worry will contribute to an even greater decline in the use of out-of-court disposals. For example, under the new system there will be more restrictions on the use of out-of-court disposals for certain offences, as police officers will need the consent of the Director of Public Prosecutions to issue out-of-court disposals for indictable-only offences. They will also be prohibited from disposing of some cases involving repeat offenders by out-of-court disposal.
While data is not available on how many cautions are issued for indictable-only offences or repeat offenders, we cannot estimate exactly how the changes might affect out-of-court disposal volumes, but we do have data to show that 55% of cautions issued in 2019 were for indictable and either-way offences, which suggests that restricting their use for those offences is likely to have some impact on out-of-court disposal volumes.
I am sure the Minister recognises the value of out-of-court disposals and would not want to see a further serious decline in their use, so it would be good to hear of any plans he has to safeguard against any such decline. Perhaps he has other data that we are not aware of that demonstrates the fact that he would expect the decline to be not only halted, but even reversed. I look forward to hearing his thoughts on that.
I will come to other concerns when I speak to the Opposition amendments with respect to other clauses, but there is one other issue that I want to deal with here and now: the admission of guilt. First, this requirement will place a further administrative burden on police officers by preventing them from administering community cautions on-street, which could restrict their use in otherwise suitable cases. It is important that in simplifying the system for the police’s use, we also ensure that the flexibility needed to deal with the range of offending across England and Wales is retained and that we do not cause difficulties for the police by putting in place restrictions that would be unhelpful.
More importantly, many organisations, including EQUAL, have raised concerns about the impact that requiring an admission of guilt will have on disproportionality in our already extremely disproportionate justice system. In the current framework, a person has to make a formal admission of guilt to receive an out-of-court disposal. If someone does not admit guilt, they will be charged and sent to court. Evidence cited in the Lammy review shows that black, Asian and minority ethnic people are more likely to plead not guilty owing to a lack of trust in the criminal justice system among BAME communities, which makes suspects less likely to co-operate with the police.
Bambos Charalambous
On that point, does my hon. Friend agree that more needs to be done to engage with the BAME community to ensure that those discrepancies do not occur in the future?
Alex Cunningham
That is most certainly the case. We have seen a breakdown in those relationships in recent years, but funding for work in that area has also suffered considerably. The real point of this—I do not think we can say it often enough—is that BAME individuals are less likely to admit guilt and receive an out-of-court disposal. They are more likely to face prosecution; if they face prosecution, they are more likely to end up in prison; and if they end up in prison, they could be there for much longer under some of the legislation that the Government are promoting.
During the evidence sessions, that issue was raised by a series of witnesses as an area of concern. Phil Bowen of the Centre for Justice Innovation said that
“we would strongly argue that it should be possible to offer the community caution—the lower tier of the two tiers—to individuals who accept responsibility for their behaviour, rather than requiring a formal admission of guilt. This is an idea that was raised in the Lammy review and has subsequently been raised in the Sewell report. We think it would be better if that lower tier could be offered to people, who are required only to accept responsibility for their actions. As the Lammy review suggests, that may encourage the participation of people from groups who tend to have less trust in the police and the criminal justice system.”––[Official Report, Police Crime Sentencing and Courts Public Bill Committee, 18 May 2021; c. 44-45, Q63.]
Allan Dorans (Ayr, Carrick and Cumnock) (SNP)
Does the hon. Gentleman agree that where the offence is not admitted, it is only right and proper that the matter be referred to a court in the interests of justice?
Alex Cunningham
The hon. Gentleman makes an interesting point. Yes, if the police believe that they need to proceed to court because someone refuses to take responsibility, the case should be moved on. However, the fact remains that if the person admits responsibility rather than making a formal guilty plea at that stage, they could have an out-of-court disposal rather than having to be dragged through the criminal justice system again. The Victims Commissioner told us that this was one reservation she had about the proposed changes to the caution system, saying that
“something needing a bit of looking at is the obligation to admit guilt in order to get an out-of-court disposal. Sometimes something like a deferred prosecution might be something that a person would be readier to accept, and it should be no more of a problem for a victim.”––[Official Report, Police, Crime, Sentencing and Courts Public Bill Committee, 20 May 2021; c. 114, Q180.]
Perhaps the Government might consider out-of-court disposals that do not require a formal admission of guilt, only individuals to accept responsibility. That might encourage the participation of people from groups that tend to have less trust in the criminal justice system, and who might therefore be more reluctant to make a more formal admission of guilt.
Bambos Charalambous
On the issue of deferred prosecutions, there is an excellent organisation in Lambeth called Juvenis that gets referrals from people in agreement with the police, via a panel. Those people are referred to Juvenis for help, and if they keep safe, prosecution does not follow. Is that not a good way to divert people from being criminalised and processed in the criminal justice system?
Alex Cunningham
It most certainly is. The Government should be looking at examples of that best practice and rolling it out across the country, because in the longer term, support for organisations such as that will reduce the number of people who end up in the formal criminal justice system. That will mean fewer people in prison, and the cost to society will be all the lower as a result. The Opposition share the serious concerns that have been raised, and would like to hear the Minister’s thoughts on the issue, because I know that tackling inequalities in our justice system and crime outcomes is something he takes very seriously. We would particularly like to hear his thoughts on the possibility of removing the requirement of an admission of guilt from the lower-tier disposal, at the very least.
Let me turn my attention to the amendments standing in my name. These amendments might seem rather cosmetic, but they address an important issue as to how we think about the handling of lower-level offending. Amendments 11 to 15, 18 to 32, and 34 to 45 would change the name of the diversionary caution to the conditional caution, while amendments 47 and 48 are minor consequential amendments that would result from that change. The Opposition are concerned that calling the upper-tier disposal the diversionary caution is potentially and unnecessarily confusing. Diversion is commonly used as a term to describe specific activity moving people away from any contact with the formal justice system altogether, regardless of whether that means diverting them from a prosecution or from a statutory out-of-court disposal. It matters what we call these things, because the diversionary caution is not diversion as the term is currently used across the criminal justice system. A third of police forces are already using the two-tier framework, which includes the conditional caution.
We are concerned that the name change will needlessly confuse police forces, even though the intention is to simplify the framework. It could also cause needless confusion for others who work in, engage with or come into contact with the justice system, but who are not consistently involved with it as police officers are. It is a small change, and I hope the Government can see the sense in it. I would be grateful for the Minister’s thoughts on it. If the Government are set on opposing the measure, I would welcome a further explanation as to why “diversionary” was chosen as the name for the upper-tier statutory out-of-court disposal.
The Chair
Do any other Members wish to speak before the Minister rises to his feet? I do not see you all jumping up and down, so I call the Minister.
The Parliamentary Under-Secretary of State for the Home Department (Chris Philp)
It is a pleasure, as always, to serve under your chairmanship, Sir Charles, and it is a pleasure, as always, to respond to the shadow Minister. Let me start by saying how glad I am to hear that he and the Opposition generally welcome the principles that lie behind the changes in these clauses. We intend to reduce the number of cautions from the current six to the two contemplated in the Bill, following, as he rightly said, the initial pilot with three police forces, which has now expanded to 14 or 15 police forces. The feedback that we received from those police forces is that they find the simpler structure of cautions much easier to follow and much more helpful. Broadly speaking, it sounds as though we are all on the same page—both sides of the House, and the police as well. I am glad that we are starting from a very similar place.
The shadow Minister asked a number of questions about the involvement of victims in the administration of cautions. Of course, victims should be at the heart of the criminal justice system—we all believe very strongly in that. On victims, I draw the Committee’s attention to paragraph 6.7 of the victims’ code, which says:
“Where the police or the Crown Prosecution Service are considering an out of court disposal you”—
the victim—
“have the Right to be asked for your views and to have these views taken into account when a decision is made.”
The police and CPS must make reasonable efforts to obtain the views of victims, and they must communicate with victims on the topic. As the shadow Minister rightly said, it is clear that victims need to be part of this endeavour, and paragraph 6.7 of the victims’ code ensures that.
The shadow Minister asked a second series of questions about the fact that both levels of caution—the diversionary caution and the community caution—have a requirement for conditions to be attached. He expressed some concern that that might impose additional bureaucracy on police forces. He also asked about the cost of the whole scheme more generally and mentioned the estimate that the whole of the criminal justice system cost might be in the order of £15 million a year.
On the conditions, it is important that the cautions have some effect. It is important that where someone has committed an offence and admitted guilt—I will come to the point about admission of guilt in a moment—there should be some sort of follow-up action to ensure remedial activity and that an appropriate step is taken. If we simply let someone go with no follow-up step, it undermines and diminishes the seriousness of the fact that they have committed an offence and admitted to it. It perhaps misses an opportunity to take a step that will reduce reoffending in future. In general, taking steps to stop people reoffending is a good thing. There are some opportunities that we are very keen to embrace via these conditions and sentences passed by the court. For example, if someone has a drug addiction, an alcohol addiction or a mental health problem, we want that to get treated. These cautions are an opportunity to impose a condition—seeking treatment, for example. Of course, in a court setting, there are community sentence treatment requirements, alternative dispute resolutions, mental health treatment requirements and so on. These cautions have an important role to play in ensuring that the underlying causes of offending get addressed.
Chris Philp
I will just finish the point, and then I will take the intervention in a moment.
There are opportunities to take a more calibrated approach if police officers or the Crown Prosecution Service think it is appropriate. First, in the code of practice that we will be tabling to accompany these new diversionary and community cautions, there will be significant latitude and quite a lot of flexibility for police officers and the CPS to set appropriate conditions. They could be quite low level. For a low-level offender, where it is not appropriate to impose an onerous condition, or where the police feel it would impose an unreasonable burden on police officers themselves, a much lower, light-touch condition could be applied. That would address the concern that the shadow Minister raised.
There is also the option of a community resolution, which the NPCC says it will retain. There will be the two cautions set out in statute, and there will be the community resolution option too. Although the community resolution comes with conditions, there is not an obligation for them to be followed up, so the administrative burden would not apply.
On the cost point, of course we should be aware that the police are generally receiving a great deal of extra funding as part of the recent police settlements in order to support the police uplift programme—the extra 23,000 police officers. It would be a good use of a bit of that time if it were spent on following up the conditions that have been imposed to try to prevent reoffending. We all agree that reoffending is too high; that is bad for the individual and society as a whole. That is a good use of a bit of the additional police resources.
Chris Philp
Perhaps I should give way to the hon. Member for Enfield, Southgate first, and then I will give way to the shadow Minister.
Bambos Charalambous
I am grateful to the Minister. On the issue of addressing the root of the offending in the first place, I am chair of the all-party parliamentary group on attention deficit hyperactive disorder, and people with ADHD are disproportionally represented in the prison population. That is partly because of screening—they are not screened early enough and are sometimes not aware that they have ADHD. Has the Minister given any thought to whether some of the conditions could involve screening for people with ADHD if that is one of the roots of the offending?
Chris Philp
That is an extremely good point. That is the sort of issue that we should take up in the code of practice that accompanies the statutory framework. That is exactly the kind of thing that should be picked up. Where someone has a need for treatment of some kind, whether for drugs, mental health—ADHD in that example—or alcohol addiction, we need to try to get the underlying cause of the offending sorted out. That is something that we can and should pick up in the accompanying code of practice, and I am very grateful to the hon. Gentleman for raising it.
Alex Cunningham
The Minister is talking a lot of good sense, and I take issue with very little of what he has to say. I am keen to understand whether he is content that we are seeing lower numbers of out-of-court disposals. He talks about reoffending, which we all want to see reduced, but there is no evidence that this measure will contribute to that. Would he suggest otherwise?
Chris Philp
Clearly recent data, over the past 15 months or so, has been significantly distorted because of the effect of the pandemic on the criminal justice system, policing and everything else, so we need to be careful about post-dating data from February or March 2020.
The reoffending point links to the comments of the hon. Member for Enfield, Southgate. We need to ensure that, in the code of practice, we are guiding police forces and the CPS to the follow-up activities and conditions that are most likely to deliver a reduction in reoffending. The shadow Minister is right that, although the police preferred the new system that we are introducing, there was not evidence of a reduction of reoffending in the pilots areas. We have an opportunity via the code of practice to ensure that the conditions are proposed and designed, like the one that the hon. Member for Enfield, Southgate just proposed, with the purpose of reducing reoffending. This is an opportunity that we should seize, along the lines just suggested.
Allan Dorans
Does the Minister agree that the regulatory framework of diversionary and community cautions will prevent many young people from entering the formal criminal justice system—including having their fingerprints and photographs taken—which could affect their life chances and employment chances in later years for a mistake that they made at a very young age; that these measures will be welcomed by the parents who see their children perhaps having a second opportunity to live a crime-free life; and that this will allow rehabilitation within the family and the community?
Chris Philp
I do agree. Of course, I know that the hon. Gentleman had a long and distinguished career with, I think, the Metropolitan police.
Chris Philp
Therefore the hon. Gentleman’s comments are based on that long experience of public service in the police force. It is clearly better if we can get people to stop their offending by way of early intervention such as this, rather than having them end up in a young offenders institution or somewhere similar, which often leads to a pretty bad outcome. We should take this opportunity to stop that pattern of behaviour developing and worsening. That is why these conditions are important —to ensure that that prevention and rehabilitation take place. I fear that otherwise we are missing an opportunity —an opportunity that the shadow Minister is poised to grasp.
Alex Cunningham
I am really interested in what the Minister said about working with ethnic minority and BME communities. We have seen a tremendous cut in services over the last 10 or 11 years, so does he see the potential of legislation such as this to increase even further the need for the Government to think again and invest more in organisations that can help people to understand what the Government are about and how young men in particular—it is young black men who tend to be affected most—can avoid the criminal justice system and move on with their lives?
Chris Philp
Exactly—avoid the criminal justice system by desisting from criminal behaviour.
Obviously, a lot of initiatives are under way, particularly via the funding for serious violence reduction units, which has increased a great deal in the last couple of years. The work of serious violence reduction units with those communities, talking about issues exactly like this, is the right way to do that. I will make sure that my colleague the Minister for Policing is appraised of our discussions this morning—this afternoon, now—so that he can ensure that that is reflected as he works with SVRUs and the police on issues such as this.
Alex Cunningham
I am very grateful to the Minister for giving way, and I am sure that he will excuse me for being parochial about this. In Cleveland, we have the third-highest rate of serious violent crime in the country, but the Cleveland Police force has been passed over in the past when it has come to funding for the initiatives he is talking about. Will he remind the Policing Minister of the particular issues that we face in Cleveland, and perhaps secure us some more funding?
Chris Philp
It sounds like I have been engaged to act as a lobbyist on behalf of Cleveland, but I will pass that on, and while I am at it, I will mention the needs of Croydon, my own borough.
The Parliamentary Under-Secretary of State for the Home Department (Victoria Atkins)
And Lincolnshire!
Chris Philp
I will not forget the fine county of Lincolnshire, represented by the Minister for Safeguarding.
Chris Philp
Well, I am afraid that in the case of Croydon, there is quite a lot of crime. I will add Cleveland to my communication.
I turn to the large group of amendments starting with amendment 11, which the shadow Minister moved. He proposes replacing the word “diversionary” with the word “conditional”. I understand entirely what he is trying to do with that amendment, but unfortunately there are technical and legal reasons why that does not work. Essentially, the reason—as he touched on when moving the amendment—is that the concept of a conditional caution already exists in the current form of statutory out-of-court disposals for adults, which were enshrined in part 3 of the Criminal Justice Act 2003.
We cannot change the name because there would be transitional provisions when the old cautions may still apply, and that may lead to confusion about which type of caution is being referred to, whether that be the old conditional caution, which may still apply in some cases—depending on the time of the offence—or the new conditional caution, which would be called a “conditional caution” if we adopted the amendment. It would lead to confusion about which caution was in force. As the new diversionary caution is different from the old conditional caution, we think that, both for legal reasons and for reasons of general confusion and clarity, the use of a different word—“diversionary”, in this case—is the right thing to do.
Amendments 46 and 48 are in the shadow Minister’s name but I do not think that he moved them. Should I defer replying to them?
Chris Philp
In that case, I will not speak to those now—I will hold back for a subsequent opportunity—and I trust that I have answered the shadow Minister’s excellent questions.
Alex Cunningham
I appreciate the Minister’s response. As far as the amendment is concerned, I accept that we are perhaps all looking at different levels of confusion within the system. It is just a shame that we have to have any confusion at all. I do not intend to press the amendment to a vote, but I repeat to the Minster what I said before: we need to address disproportionality across the whole justice system. There is no doubt that these particular measures will add to that, and it is important that the Government take measures to ensure that young people—and even older people—coming into the system have a full understanding of what they are getting into as a result of the Government’s proposed changes to the law. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Alex Cunningham
I beg to move amendment 46, in clause 76, page 71, line 7, leave out from “Diversionary” to end of line 8 and insert—
“cautions must have one or more conditions attached to them.
(4A) Community cautions may have one or more conditions attached to them.”
This amendment would remove the requirement for community cautions to have conditions attached to them, and instead make such conditions discretionary.
The amendment would remove the necessity to attach conditions to the community caution, which is the lower-tier disposal. The Opposition are concerned that the provision in clause 76 means that both the diversionary and community cautions must have conditions attached to them. We believe it should be possible to offer the community caution to individuals without the imposition of conditions. There are a range of circumstances in which an offence has occurred but in which the police may judge that no conditions should be imposed.
I will reiterate what I said earlier: in simplifying the process to help police forces, we need to ensure that we do not unhelpfully restrict them by removing useful tools. The current framework contains the simple caution, in which no conditions are attached. As I mentioned earlier, the current simple caution is a very effective sanction, with the lowest reoffending rate of any sentence or sanction.
In the Government’s evaluation of the two-tier system, the conditional caution was shown to be effective in reducing reoffending, but it was no more effective than the simple caution. We are concerned that if all cautions have to have conditions imposed on them it may unhelpfully limit the police’s ability to effectively dispose of offending. The effect, at least in the adult regime, is that only conditional cautions are available. Conditional cautions are more expensive to administer and monitor than disposals with no conditions attached. There is a relatively in-depth process of paperwork to set and monitor conditions and to ensure compliance.
This is an issue that police forces are concerned about too. In an evidence session, Phil Bowen of the Centre for Justice Innovation said that
“in consultation events that we have already held with a number of police forces, they strongly suggested that they wanted to retain the flexibility to issue the community caution—the lower tier—without conditions. In the existing framework, they are able to issue a simple caution that does not involve conditions. Police forces want that flexibility, and the new framework proposed by the Government does not allow that in the lower tier.”––[Official Report, Police, Crime, Sentencing and Courts Public Bill Committee, 18 May 2021; c. 44, Q63.]
Does the Minister think it is necessary to always have the additional stringent burden of necessary conditions on the lower-tier disposal, in spite of the fact that the police would welcome flexibility in this area?
Another issue of serious concern for the Opposition was raised in the evidence sessions by Sam Doohan from Unlock. On the additional administrative and time burden placed on the lower-tier disposal, he said:
“As a result, forces will be much more hesitant to use a caution. Whereas in the past, they might have been quite content to give a simple caution and send someone on their way with a formal warning or reprimand, now the force in question will have to take on the burden of monitoring, compliance and potentially re-arresting someone if they breach conditions. They will be forced either to go above the caution and see more cases through to prosecution, even though it would not necessarily be in the public interest to do so, or not to take action at all.
As we know with the criminal justice system as a whole, when we start having these slightly weighted decisions about who falls into what tier of disposal, those who are from disadvantaged backgrounds, along the lines of race and religion, almost universally fall into the harsher end, and those who are not do not. We are creating a system that incentivises busy working police officers to say, ‘Actually, I am going to make this the CPS’s problem, not mine, and I have the choice of who to do it to.’ Is that going to lead to good criminal justice outcomes? We think it may not. We do not know yet—I stress that—because it has not been studied, but it does have the characteristics of a system that will not have the desired outcomes.”––[Official Report, Police, Crime, Sentencing and Courts Public Bill Committee, 20 May 2021; c. 104, Q164.]
I have already raised some of the serious issues of disproportionality that may come from the proposed system, but I would welcome reassurances from the Minister that his Department plans to monitor, and safeguard against, any such unintended perverse outcomes. Far more of our concerns will be allayed if the Government agree to retain a level of flexibility in the lower-tier disposal. We are not asking for there to be no conditions attached to the community caution; the amendment would still allow for police to attach conditions in appropriate cases, but it would provide an important safeguard against further disproportionality in the criminal justice system and allow police forces to retain the flexibility they need to properly serve their community needs, which we believe they are best placed to know about.
The Chair
Right, who would like to speak? Are there any colleagues catching my eye or touching their face masks to indicate that they wish to speak? No. It is the Minister, smiling, who wants to speak.
Chris Philp
Smiling as always, Sir Charles. I thank the shadow Minister for his speech. I made a number of the points that I would make in response in my comments a few minutes ago, so I do not want to re-elaborate on them at too much length, lest I wear thin the patience of colleagues. I will just reiterate briefly the two or three key points in response to the shadow Minister.
First, the Government think that having some level of conditions is an inherently good thing because it means there is a mechanism by which follow-up can take place, and it provides an opportunity for rehabilitation. Secondly, in the code of practice, which we have discussed already, there will be considerable latitude over how the conditions are calibrated. It could therefore be possible to have quite light-touch conditions. What we will take away is that, in the code of practice that gets drafted, and subsequently tabled and approved by Parliament, there is a wide range of conditions, including some at the lower end that are not unduly onerous on the police to monitor and follow up. Thirdly, the community resolution is still an option available to the police, and although it has conditions, it does not require follow-up.
A combination of those three considerations makes the approach being taken the right one. The key point is that the code of practice is very important. We will no doubt debate it when it gets tabled and voted on in a Delegated Legislation Committee. I hear the shadow Minister’s point, and the code of practice will reflect that.
On the final point, about disproportionality, which the shadow Minister and the hon. Member for Enfield, Southgate raised, we will certainly be mindful of disproportionality considerations. As the hon. Member for—help me out—
The Chair
There we go. Mr Dorans, are you happy with that description of your constituency?
Chris Philp
As the hon. Gentleman said in his intervention, this is an opportunity to divert people from a path towards more serious crime and into a regular life. That is important for everyone, including some of these communities, which get themselves into more trouble than we would like. That point is well made.
Alex Cunningham
I am grateful for the Minister’s response. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Alex Cunningham
I beg to move amendment 8, in clause 76, page 71, line 21, at end insert—
“(8) The Secretary of State must, within the period of 12 months beginning with the day on which this Act is passed, and every 12 months thereafter, lay before Parliament a report on the use of cautions in accordance with this Part.”
I will not keep the Committee long on this simple amendment, which would compel the Secretary of State to report annually to Parliament on the use of cautions, as established under this clause. As I said earlier, in 2019 only about 192,000 out-of-court disposals were issued in England and Wales, which is the lowest number in a year since 1984. I bear in mind what the Minister said but, of course, those figures refer to 2019, not the time covered by the pandemic.
The use of out-of-court disposals has been in decline since 2008, after it peaked at 670,000 disposals in 2007. Their use has fallen nearly three quarters since then. In 2008, community resolutions were introduced, and they remain the only type of out-of-court disposal that has been used at a similar rate in each of the past five years. That has happened while recorded crime has increased by more than 1 million offences, from about 4.3 million in 2010 to about 6 million last year. I mentioned earlier that we have concerns that the new restrictions on using out-of-court disposals for certain offences are likely to have some impact on out-of-court disposal volumes, driving down their use further. I again ask the Minister to clarify whether he thinks there will be more or fewer out-of-court disposals in the future.
It is all the more important that we monitor the new system to ensure that the use of out-of-court disposals does not continue to decline significantly. Although I appreciate that there has been a pilot and evaluation done of a two-tier framework, this is the one that is already in use. There has not been such an assessment of this new proposed two-tier framework. I have already mentioned the reservations that we have about attaching conditions to all cautions and the potential impact that that will have on disproportionality. Again, these changes need to be monitored to ensure that they do not have unwanted, perverse consequences. We are all keen to see the use of effective out-of-court disposals increase, not decrease. They can allow police to deal quickly and proportionately with low-level, often first-time offending and help to keep people out of the formal criminal justice system, which in many cases is preferable for their communities and for the Government in the long run.
An annual report to Parliament would allow for the necessary scrutiny of the new system and help to stem the decline in the use of out-of-court disposals. I hope that the Minister agrees that that would be a useful exercise. It will be good to hear more generally from him about Government plans to monitor and scrutinise the new system.
Chris Philp
On the review of how out-of-court disposals are used and are going, they are, as the shadow Minister said, already recorded by all forces in England and Wales and reported to the Home Office and the MOJ for statistical purposes. The figures appear in criminal justice statistics, published quarterly, which include performance data tables for each individual police force, as well as trends in use—figures from which the shadow Minister was likely quoting a few minutes ago.
There is therefore already complete transparency on the numbers, which enable Parliament, the Opposition and the Departments—the Ministry of Justice and the Home Office—to look at them, take action, call parliamentary debates and so on. Those figures are all in the public domain.
In addition to that, however, all police forces are already required to have an out-of-court disposal scrutiny panel, led by an independent chairperson. Those panels are extremely important in holding the police to account and ensuring that disposals are being used appropriately, to provide assurances that difficult decisions are being made properly and to provide effective feedback to police officers and their forces.
Already, therefore, we have two levels of scrutiny: the data being reported, aggregated by police force and reported nationally to the Home Office and the MOJ, so we can debate it in Parliament; and, for each individual force area, a scrutiny panel. In addition, a standard review of legislation takes place after a Bill receives Royal Assent. I suggest to the Committee that those three mechanisms between them are sufficient.
The shadow Minister, however, is right to point to the figures. We in Parliament should be vigilant about them. If we, the Opposition or any Member of Parliament are concerned about how those quarterly figures look, there are a lot of ways to express those concerns in Parliament—by way of a Westminster Hall debate, an Opposition day debate or any of the usual mechanisms. I suggest that the existing mechanisms are adequate. I invite everyone in Government and in Parliament to use them.
Alex Cunningham
On this occasion, we are in a different place. I appreciate what the Minister said about the various methods through which information is available and about the opportunities to debate the issues, but I cannot understand why the Government are reluctant to have a formal report on the new system. We have discussed at some length the considerable reduction in the number of cautions used over the past 10 or 15 years. That decline is continuing. There is no evidence that the new system will result in any increase in the use of the cautions. For that matter, it is important for us to hold the Government particularly to account, so I will press for a vote on the amendment.
Question put, That the amendment be made.
Chris Philp
Clauses 77 to 85 essentially provide for the statutory basis on which the diversionary caution—the higher of the two new cautions—will be introduced. We have already discussed at some length the principles that underpin the diversionary caution, and clauses 77 to 85 simply provide for the details necessary to facilitate their introduction. Given that we have already had a fairly extensive discussion on the principles, I will go through the clauses relatively quickly.
Clause 77 specifies the criteria for giving a diversionary caution, as introduced in clause 76, which we have just agreed. An authorised person may give a diversionary caution to a person over 18 years of age, subject to the specified conditions being met. The clause specifies key safeguards whereby an authorised person or prosecuting agency can authorise the use of this caution. They must establish that there is sufficient evidence to charge, that the recipient admits the offence and that the recipient signs and accepts the caution, along with understanding the effect of non-compliance. Those requirements mirror the provisions in the Criminal Justice Act 2003 that apply to existing conditional cautions. The requirements are important safeguards, given the consequences that can flow from the breach of a condition attached to a diversionary caution, as we have discussed.
Clause 78 establishes the types of conditions that may be attached to a diversionary caution. We will expand on that in the code of practice that we discussed. The provision is similar to the existing conditional caution. Again, as we have already discussed, it requires reasonable efforts to be made to ensure that the victim’s views are sought before the conditions are set out. We have talked about the importance of taking victims’ views into account.
Clause 79 provides for the rehabilitation and reparation conditions that may be attached to a diversionary caution. Further to the point made by the hon. Member for Ayr, Carrick and Cumnock, we talked about the importance of rehabilitation as well as reparation. The clause specifies the sort of activities that may be undertaken.
Clause 80 introduces a financial penalty condition. Clause 81 deals particularly with conditions that might attach when the offender is a foreign national. Clause 82 introduces a method whereby an authorised person or prosecution authority may, with the offender’s consent—should that be necessary subsequently—vary the conditions attached to a diversionary caution.
Clause 83 deals with the effect of failure to comply with a condition attached to a diversionary caution. As I said earlier, criminal proceedings can be instituted against the offender for the index offence in the event of any breach. That is why a formal admission of guilt is so important.
Clause 84 grants a constable power to arrest the offender without a warrant where the constable has reasonable grounds for believing that the offender has failed, without reasonable excuse, to comply with any condition attached to a diversionary caution. Clause 85 clarifies how the Police and Criminal Evidence Act 1984 will be applied in the event that an offender is arrested under clause 84 if a breach has occurred.
The clauses essentially implement the principles that we discussed when we considered clause 76 a few moments ago.
Alex Cunningham
The new diversionary caution that these clauses introduce is extremely similar to the existing conditional caution. The same authorised persons would be able to issue them, issuing officers would have to meet the same requirements before applying them, and the range of conditions that could be attached would be extremely similar. They will still be used only in cases where officers have sufficient evidence and offenders admit guilt—we still have a problem with that—and the consequence of breaching conditions would be the same, in that the offender would be arrested and prosecuted for the initial offence.
However, there are two differences that would be helpful for the Committee to consider. The first is the range of offences for which the diversionary caution can be given. I raised this as a point of concern earlier when discussing whether we might see a further decline in the use of out-of-court disposals in appropriate cases as a result of clause 77, which sets out the restrictions on giving diversionary cautions for indictable-only offences. I will not repeat our concerns, but now that we are looking at the specific clauses, I would be grateful for some further information from the Minister.
Clause 77(3)(a) allows a diversionary caution to be given to an offender for an indictable-only offence
“in exceptional circumstances relating to the person or the offence”.
It would be helpful if the Minister could provide some illustrative examples of what such an exceptional case might be. The restriction for indictable-only offences existed only for the simple caution before, but it did not apply to conditional cautions. Has the Minister made any assessment of what impact the change might have with regards to up-tariffing for disposals given at this level of offending?
The second key difference is a change in the maximum amount that an offender can be fined through a financial penalty condition. For the current conditional caution, fine levels are set by the Secretary of State but cannot be above £250, and this limit is set in primary legislation. However, the Bill will not provide a limit for diversionary caution fines, and the value of any such fine will be set using rules from future secondary legislation made under the powers in the Bill. Although I appreciate that the secondary legislation would require parliamentary approval by a yes/no vote, and so Parliament could reject the fine limit, it would not be able to amend the proposals for the fine value.
Bambos Charalambous
The issue of fines disproport- ionately affects younger people, who may not have much money. That also needs to be taken into consideration when assessing the level of the fines.
Alex Cunningham
The summary that my hon. Friend offers is certainly to the point. Young people could find themselves unable to meet a fine and end up in court or with further fines as a result—poverty heaped upon poverty in that situation.
It would be helpful at this stage to hear any more information that the Minister has about what level the Government may intend to set the fines at. Perhaps he could just tell us what the motivation is behind changing the limit.
The Chair
I am sure it is the Minister’s intention to be helpful. Does he want to respond to the shadow Minister in winding up this part of the debate?
Chris Philp
I have already made the points that I wanted to make, but I will respond to one or two of the shadow Minister’s questions.
Indictable-only offences are by definition extremely serious. They are the most serious offences, so there would be an expectation of proper prosecution in such cases.
The shadow Minister asked what the exceptional circumstances might comprise. I cannot give him speculative examples, but the meaning of the term “exceptional circumstances” is well understood in law, and it is a very high bar. It is not a test that would be met readily or easily.
On the fact that the limit on the fine may be specified by a statutory instrument, there is a desire to retain a certain measure of flexibility. I understand the shadow Minister’s concern that the fine may end up escalating to an unreasonably high level, but as he acknowledged in his questions, it is subject to a vote in Parliament. If Parliament feels that the level of fine is inappropriately high, it is open to Parliament to simply vote it down. Then the Government would have to think again and come back to the House with a fine at a more reasonable level. On that basis, I recommend that the clauses stand part of the Bill.
Question put and agreed to.
Clause 77 accordingly ordered to stand part of the Bill.
Clauses 78 to 85 ordered to stand part of the Bill.
Clause 86
Giving a community caution
Question proposed, That the clause stand part of the Bill.
Chris Philp
Rather like the previous group of clauses, which implemented the diversionary cautions, clauses 86 to 93 lay out the details of the proposed scheme for community cautions, implementing the principles that we have already debated pursuant to clause 76. As I did a few minutes ago, I will go through each clause quickly.
Clause 86 specifies the criteria for giving a community caution. It must be given by an authorised person to someone over the age of 18. The clause specifies the key safeguards whereby an authorised person or prosecuting authority can authorise the use of the caution: establishing sufficient evidence to charge, and an admission of guilt from the offender, who signs and accepts the caution and understands the effect of non-compliance. That mirrors precisely the provisions of clause 77, which we discussed a few minutes ago.
Clause 87 establishes the type of conditions that can be attached, specifying that they should be rehabilitative or reparative—that is very important for the reasons that we have already discussed. It requires that reasonable efforts are made to ascertain victims’ views.
Clause 88 introduces the permissible rehabilitation and reparation conditions, which must have the objective of facilitating rehabilitation in those cases. The clause provides that such conditions may be restricted in some cases and contain unpaid work conditions or attendance conditions.
Clause 89—again, mirroring the previous group—introduces the financial penalty condition. Clause 90 provides the framework for registering and enforcing financial penalties as part of this regime.
Clause 91 provides a framework for court proceedings arising from the enforcement of the financial penalty, essentially to ensure that it gets paid if someone does not pay it. Clause 92 introduces a method for an authorised person or prosecuting authority to vary the conditions, which, again, mirrors the previous group of clauses.
Clause 93 deals with the effect of community cautions where criminal proceedings may not be instituted against the offender for the offence. In particular, if the offender fails to comply with the condition under community caution without a reasonable excuse, the condition may be rescinded and a financial penalty order may be imposed instead, so the consequence of breach here is financial penalty rather than prosecution.
I hope that gives the Committee adequate oversight of the effect of clauses 86 to 93.
Alex Cunningham
Although we were on relatively familiar ground with the new diversionary cautions, the community cautions, on which clauses 86 to 93 set out the detail, are very different from the lower-tier out-of-court disposals currently in use. In fact, they are much more similar to the existing conditional cautions that the diversionary cautions are already designed to replace. There are lots of cautions here—cautions and cautions and cautions.
I spoke earlier about our concerns about the necessity of attaching conditions to the community cautions, so I will not tread the same ground again, but that is an important point. We very much support the simplification of the out-of-court disposal system and the introduction of the two-tier framework, but why are the Government introducing two tiers that are so similar? We should be able to get rid of the confusion of the current system of six out-of-court disposals without so severely restricting the choices of police officers who deal with such a wide range of low-level offending for which a range of penalties may be appropriate.
I understand that the community caution is intended to replace the community resolution. There are two major differences between the two. A community caution will be formally administered by the police, like other cautions, so it will appear on an offender’s criminal record in the same way that other cautions do. There will be a clear statutory rule about the conditions that can be attached to it. That is quite a jump from the community resolution. Community resolutions are voluntary agreements between the police and an accused person. They do not appear on an offender’s criminal record, and the actions agreed to are not legally enforceable.
Bambos Charalambous
Again, on the impact on the black and minority ethnic community, I wonder what thoughts my hon. Friend has on the fact that this would appear on their record if they were to be served a community caution.
Alex Cunningham
My colleague is right to raise the issue of disproportionality in the system. Anything that increases that is not good for us as a country and is certainly not good for the young people involved. It is important that the Government bear that in mind as they bring the measure forward. More importantly, as I said, the Government can get into a situation where they recognise that communities—ethnic minority communities, call them what we will—need to have an understanding of the changes that the Government are proposing, so that we do not find more young people, young black men in particular, with criminal records when that is not necessary.
Secondly, the community cautions will now involve financial penalties. Officers will be able to attach a fine to a community caution as a punitive condition. Failure to meet any of the conditions, including a financial penalty condition, could result in a police-issued fine. Again, that would be quite a departure from the community resolution. Offenders might be asked to pay damages to their victims as part of a resolution, but community resolutions are not used to fine individuals.
Will the Minister tell me, therefore, whether the intention is to replace the community resolution entirely with community cautions? I ask, because Transform Justice has rightly called for some clarity in this area:
“The status of community resolutions under the proposed legislation is not clear. Clause 96 ‘Abolition of other cautions and out-of-court disposals’ states that ‘No caution other than a diversionary or community caution may be given to a person aged 18 or over who admits to having committed an offence’. We are unsure what this means for community resolutions, although we understand the intention is that they will remain available to police if they wish to use them.
Given the value of community resolutions, as an out of court disposal that does not require a formal admission of guilt, the legislation and accompanying regulation should make clear in Clause 96 that use of community resolutions will not be prohibited under the new framework.”
I have already discussed our concerns about the need for a formal admission of guilt for the community caution and the potential that has to deepen disproportionality in our criminal justice system. My hon. Friend the Member for Enfield, Southgate just raised that issue. We all know that there are benefits to having a light-touch disposal to deal with low-level offending in some cases where appropriate. Keeping people out of the formal justice system at this level can help keep them out of it for good and so I wonder whether the Minister thinks that we might be losing a helpful method of disposal here. Finally, how does he anticipate that the low-level offences that benefited from community resolutions before will now be handled?
Chris Philp
I thank the shadow Minister for his speech and his questions. For clarity, in answer to his principal question, the community resolution will still be available to use. It will not be removed by the Bill. As he said, community resolutions have conditions attached to them, but they do not require the admission of guilt— they simply require someone to take responsibility—and, should the conditions not be adhered to, there is in essence no consequence to follow that.
That low-level entry provision will therefore still exist and be available to police officers to use. Because that will still exist, it is appropriate to pitch the community cautions—the ones we are debating—somewhere in between the community resolution, which will remain, and the diversionary caution that we just debated. That is why it is pitched where it is.
There are three principal differences between the diversionary caution and the community caution. The first is on disclosure. We will talk about this when we consider an amendment later, but the community caution is not disclosable in a criminal record check and so on from the moment that the condition ceases, whereas for the diversionary caution a spending period goes beyond that.
The second difference is that, as the shadow Minister said, the consequence of breaching the community caution is the imposition of a fine, whereas for the diversionary caution it can lead to substantive prosecution. Thirdly, the range of offences is somewhat different.
I hope that reassures the shadow Minister that the community resolution will remain—it is not being abolished—and therefore we have a sensible hierarchy of provisions available for the police to choose from. I hope that provides him with the reassurance that he was asking for.
Question put and agreed to.
Clause 86 accordingly ordered to stand part of the Bill.
Clauses 87 to 93 ordered to stand part of the Bill.
Clause 94
Code of practice
Question proposed, That the clause stand part of the Bill.
Chris Philp
The clauses in this group apply to both types of caution and provide an overarching framework in which the new cautions will sit. Each clause has a particular function, and I will address them in turn.
Clause 94 introduces a general code of practice and requires the Secretary of State to prepare it—we have talked about that already. It specifies the kind of matters that such a code will include, such as the circumstances within the clauses, the procedure, the conditions that may be imposed and the period of time. We talked about that earlier. It is very important that we get that right for the rehabilitative purposes that we have discussed and to cover issues such as the one that the hon. Member for Enfield, Southgate mentioned. That includes who may give the cautions, the manner in which they may be given, the places where they will be given, how the financial penalty should be paid, how we monitor compliance, the circumstances in which a power of arrest may arise, and so on. I should add that the code cannot be published or amended without the prior consent of the Attorney General. We need this clause to ensure the code can exist.
Clause 95 enables the Secretary of State to make regulations placing restrictions on the multiple use of diversionary and community cautions. They should have reference to the number of times a particular individual has received cautions previously. The regulations made under this clause will be laid in draft form before Parliament for scrutiny and will be subject to an approval resolution of both Houses. That provides a key safeguard and ensures that the out-of-court disposal framework is being used as intended and is not being used inappropriately—for example, where there is repeat offending that should be handled through more serious means, such as prosecution.
Clause 96 abolishes the previous caution regime, as the shadow Minister said, but does not abolish community resolutions. That obviously follows the widespread consultation that we had previously and lays the groundwork for the new system that we debated in the previous two groups.
Question put and agreed to.
Clause 94 accordingly ordered to stand part of the Bill.
Clauses 95 and 96 ordered to stand part of the Bill.
Clause 97
Consequential amendments relating to Part 6
Question proposed, That the clause stand part of the Bill.
Chris Philp
Clause 97 introduces schedule 10, which makes various consequential amendments to existing legislation to ensure the proper operation of the new two-tier system, which we have just discussed, and the removal of the existing out-of-court disposals. Clause 97 and schedule 10 make those technical changes.
Question put and agreed to.
Clause 97 accordingly ordered to stand part of the Bill.
Schedule 10
Cautions: consequential amendments
Alex Cunningham
I beg to move amendment 117, page 228, line 15, in schedule 10, leave out sub-paragraphs (2) and (3) and insert—
‘(2) In paragraph 1(1)—
(a) for “—“ substitute “at the time the caution is given.”, and
(b) omit sub-sub-paragraphs (a) and (b).”
This amendment would remove the spending period for cautions.
We have discussed a number of important matters over the course of the morning, all of which impact on the lives of young people and older people. They have all been extremely important issues, but for me this amendment is particularly important, because it would make life a lot easier for a lot of people, and probably contribute more than some of the other things that we have discussed to keeping them out of the criminal justice system.
Amendment 117 would remove the spending period for cautions. It would revise the text of the Rehabilitation of Offenders Act 1974 to the following:
“For the purposes of this Schedule a caution shall be regarded as a spent caution at the time the caution is given.”
Currently the upper-tier disposal of a conditional caution has a spending period that is the earlier of three months or the completion of the caution, and the Bill will maintain that spending period for the diversionary caution. We believe that the spending period associated with diversionary cautions should be removed so that those who receive one are not forced to disclose this record to potential employers. The effect of the spending period attached to cautions is to increase the barriers to employment for those who are diverted from court.
Given the Government’s commitment to reform of rehabilitation periods elsewhere in the Bill—at part 11—we believe that this is a good opportunity to continue the direction of travel that the Government are on, make another positive change in this area and remove the rehabilitation period for cautions as well. The Government may believe that a three-month spending period is required for a diversionary caution in order to support public protection. However, there is strong evidence, of which I am sure the Minister is aware, that employment is one of the most important factors, if not the most important, in enabling people to cease offending. Research has also found that employers discriminate against people with criminal records and that many do not differentiate between a caution and a conviction.
A three-month rehabilitation period is short enough to have little impact on public protection, but its existence requires people in employment to declare the caution and so risk losing their job. It acts as a barrier to those seeking work, education, insurance and volunteering opportunities. It is also important to remember that criminal record disclosure in itself is not really a public protection measure: the general public cannot check a person’s record or require them to disclose it. In any event, under present guidance, if the police or CPS believe that someone is a legitimate risk to others, they would never meet the public interest test for caution instead of charge.
Bambos Charalambous
On the issue of accepting a caution, if people think that it might lead to this being on the criminal record, they might be less inclined to accept a caution and might therefore take their chances by going to court. Does my hon. Friend think that it would potentially lead to more cases going to court if this matter stayed on the criminal record?
Alex Cunningham
Indeed. My hon. Friend is correct in saying that it could lead to greater congestion in the courts system, but the most important thing in all this is that it removes the person’s opportunity to move on with their life in an appropriate way. If they are able to have a caution and they do not have to tell their employer that they have had their knuckles rapped in such a way, they will be able to continue in employment, whereas otherwise they may well lose their job.
In some cases, cautions are appropriate for individuals who pose a low level of risk, but only when combined with other supervision measures. In such cases, that often means the sex offenders register. But in these cases, it is the sex offenders register—or other supervision measure—that acts as the public protection measure, not the spending period attached to the caution.
The spending period also introduces unnecessary confusion for those given cautions. The rehabilitation period will be the same as for the conditional caution, so it will be the earlier of three months or when the diversionary caution ceases to have effect. This is quite a perplexing element of the current system, because those who receive conditional cautions often do not understand the disclosure regime and have no way of knowing whether their conditions are judged as completed before three months. Officers often do not explain disclosure related to cautions comprehensively and offenders do not know that there is a link between meeting conditions and their becoming spent. The situation is so confusing that some third sector organisations that support offenders universally tell them that the spending period is three months from caution, because this is the only way for them to be certain that the caution is completely spent and, therefore, that the offender will not unintentionally fall foul of the disclosure process.
We think it would be preferable to have a “cautions are spent when given” standard. Otherwise, we will end up with a situation in which the criminal justice system is giving out more of the new cautions than prison sentences, but Parliament will have given the cautions a more complex disclosure regime. Perhaps the Government think that a spending period is necessary because of the seriousness of the diversionary caution, but we must remember that rehabilitation periods are not part of the punitive aspect of a disposal, and the knock-on effect on someone’s life from having to disclose should not be used as a punishment. Under current guidance, magistrates and judges are specifically precluded from considering disclosure periods when giving sentences, and they must always give the correct disposal, regardless of the criminal record impact.
With all that said, I would welcome the Minister’s thoughts on the need for the spending period for the diversionary caution and other cautions outside the adult regime. We believe that introducing a spending period for the diversionary caution will hamper people’s efforts to gain employment, while doing little for public protection. That is true for the spending period for all cautions. The Government are doing good work in reforming the criminal records disclosure regime and, by extension, helping people to stay out of the offending cycle and rebuild their lives. The amendment has been tabled with the same intention, and I sincerely hope that the Government can support it.
The Chair
Can I just look a Whip in the eye? We are making good progress, and it is nearly 1 o’clock. Some of us—perhaps even myself—would like to have lunch. We do not want to cut the Minister off in full flow, so perhaps it is now time for a break.
Tom Pursglove (Corby) (Con)
Given your generosity, Sir Charles, I would be delighted to move that the Committee do now adjourn.
Ordered, That the debate be now adjourned.—(Tom Pursglove.)
Police, Crime, Sentencing and Courts Bill (Twelfth sitting)
Thursday 10th June 2021
(2 years, 11 months ago)
Public Bill CommitteesRead Full debate Police, Crime, Sentencing and Courts Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 10 June 2021 - (10 Jun 2021)
The Committee divided: - Ayes: 3 / Noes: 6 - Question accordingly negatived.
The Committee divided: - Ayes: 6 / Noes: 3 - Question accordingly agreed to.
The Committee divided: - Ayes: 3 / Noes: 6 - Question accordingly negatived.
The Committee divided: - Ayes: 2 / Noes: 5 - Question accordingly negatived.
The Committee divided: - Ayes: 5 / Noes: 2 - Question accordingly agreed to.
The Parliamentary Under-Secretary of State for the Home Department (Chris Philp)
I trust that everyone has returned from lunch re-energised and refreshed. I want to respond to one or two of the points made prior to lunch by the shadow Minister, the hon. Member for Stockton North. In moving the amendment, he argued that the diversionary caution should not have a rehabilitation period of three months from the date of the caution being given or, if earlier, the date on which the caution ceases to have effect because the conditions have been met.
I understand the hon. Gentleman’s point, but none the less I respectfully disagree with him, for the following reasons. First, the offences for which a diversionary caution might be given include offences of a certain degree of gravity. They are offences where there was sufficient evidence available to prosecute, and had that prosecution proceeded, a far more serious penalty, including a longer spending period, would have been applicable. There is a balance to strike between a desire to let the offender move on with their lives and public protection, and the relatively short spending period—only three months, which is not very long—aims to strike that balance.
Secondly, it is important that we distinguish between the diversionary caution and the community caution. One of the ways in which we do so is the fact that the diversionary caution has a three-month spending period until rehabilitation, whereas the community caution does not. Were we to remove that, it would diminish the difference between those two forms of caution. That sort of hierarchy, as I put it before lunch, is important, and we should seek to preserve it, reflecting the fact that diversionary cautions are more serious that community cautions.
There is also a third reason, which occurred to me during the shadow Minister’s speech. Given that the caution can be extinguished, in terms of the need to disclose it, the offender has an incentive to meet the conditions early within the three months. The conditions might include the need to attend a particular training course or to commence a treatment programme if they have a drug or alcohol problem. Saying that the offender has been rehabilitated at the point at which they meet the condition creates an incentive for them to meet it sooner rather than later. We should bear that in mind. Although I understand where the shadow Minister is coming from, for all those reasons I urge the Opposition to withdraw the amendment.
Alex Cunningham (Stockton North) (Lab)
I am a little saddened and disappointed that, for all he has said, the Minister does not recognise the real impact that disclosure can have on people, perhaps preventing them from getting a job or even resulting in them losing their job. That is a great sadness. He says that three months is not a very long time, but a person has to report a caution to their employer on the day they receive it, and it could result in their dismissal. Similarly, anyone applying for a job would have to disclose it to the employer, which may well result in them losing that employment opportunity and the chance to turn their life around. Moreover, if an officer is content that a caution is appropriate, why on earth is the additional punishment of a disclosure period being sought? I intend to press the amendment to a Division, simply because I think it is in people’s best interests and represents for the individual given a caution the best chance to change for the better.
Question put, That the amendment be made.
Chris Philp
These clauses essentially assist with the implementation of the measures we have debated. Clause 98 sets out that regulations under part 6 are to be made by statutory instrument and the parliamentary procedure applicable. It also provides that regulations may make different provisions for purposes and consequential, supplementary, incidental, transitional and transitory provisions and savings. It would not be possible, or indeed appropriate, for all the detail to be set out in the Bill; there is simply too much, and doing so would entail a certain lack of flexibility, as we often discuss. The clause provides the appropriate parliamentary procedure to fill in those details as appropriate, which we will of course debate as they arise. However, the key principles are clearly set out in the Bill, as we have debated.
Clause 99 sets out certain definitions that are relevant for part 6 of the Bill—the out-of-court disposal provisions. The clause is essential to provide clarity in making sure that the new framework, which we spent this morning debating, is properly, accurately and precisely interpreted.
Question put and agreed to.
Clause 98 accordingly ordered to stand part of the Bill.
Clause 99 ordered to stand part of the Bill.
Clause 100
Minimum sentences for particular offences
Chris Philp
Clause 100 amends the criteria applied for when a court may depart from imposing a minimum sentence. Minimum sentences are rare in this jurisdiction, and generally speaking, but not always, they apply to repeat offences. These minimum sentences are not, technically or legally speaking, mandatory or completely binding on the court, but it is mandatory that the court must consider passing that minimum sentence. The court may depart from imposing that minimum sentence only by having regard to the particular circumstances of the offender and the nature of the case, so an element of judicial discretion is retained.
However, given that Parliament has legislated to set out these minimum sentences, we think it right that the court should depart from the minimum sentences specified by Parliament not by having regard to the particular circumstances of the case but only in exceptional circumstances. In effect, the clause raises the bar for when a judge can depart from these minimum sentences; it tells the judge that circumstances must be exceptional before the minimum sentence is disregarded, to make sure that Parliament’s will in this area is better reflected by the sentences the court hands down.
Clause 100 will cover four offences: threatening a person with a weapon or bladed article, which carries a minimum sentence of four years; a third offence in relation to trafficking a class A drug, which carries a minimum sentence of seven years; a third domestic burglary offence, which carries a minimum sentence of three years; and a repeat offence—a second or higher offence—involving a weapon or bladed article. The clause strengthens the minimum sentences in those cases and makes it harder for the judge to depart from the minimum, or reduces the range of circumstances in which such a departure might occur. Three of the four offences are repeat offences; the fourth is a first-time offence. They are fairly clearly defined offences for drug trafficking or domestic burglary, where Parliament clearly decided in the past that there was less necessity for judicial discretion.
Schedule 11 makes consequential amendments to existing legislation as a result of clause 11, to give effect to what we have just discussed. The amendments are to section 37 of the Mental Health Act 1983 and to the Armed Forces Act 2006.
These offences are serious. In the past, Parliament has taken a view that a minimum sentence is appropriate, particularly for repeat offences. It is therefore appropriate that we today make sure that the courts follow Parliament’s view as often as possible.
I asked for figures on how often judges depart from the minimum sentences. For the burglary offence, the data is a couple of years old, but it looks like the court departed from the minimum sentence in that year in about 37% of cases, so in quite a wide range of cases. It is on that basis—to tighten up the strength of minimum sentences—that we are introducing clause 100 and schedule 11 today.
Alex Cunningham
As the Minister said, clause 100 would change the law so that for certain offences a court is required to impose a custodial sentence of at least the statutory minimum term unless there are “exceptional” reasons not to. This is a change from allowing the court to impose a custodial sentence of at least the minimum unless there are “particular” reasons not to.
The offences and their statutory minimums are: a third-strike importation of class A drugs, with a seven-year minimum sentence; a third-strike domestic burglary, with a three-year minimum sentence; a second-strike possession of a knife or offensive weapon, with a six-month minimum; and threatening a person with a blade or offensive weapon in public, with a six-month minimum.
As the Minister has pointed out, the effect of clause 100 is relatively simple, although the Opposition are concerned that it will also be profound. The law currently allows for minimum custodial sentences to be handed down to those who repeatedly offend. As things stand, judges can depart from the minimum sentences when they are of the opinion that there are particular circumstances that would make it unjust not to do so.
Despite what the Minister says about judicial discretion, the proposition put forward by the Government seems to be that the Government are concerned that the judiciary has been too lenient when imposing minimum sentences, and therefore the law needs to be strengthened in this area. The Government’s solution is to change the law so that for certain repeat offences, a court is required to impose a minimum term unless there are exceptional circumstances not to. In a nutshell, clause 100 seeks to make it harder for judges to exercise their discretion and moves away from the statutory minimum sentence for a small number of offences.
Bambos Charalambous (Enfield, Southgate) (Lab)
My hon. Friend is making an excellent point. Judges know the case and the circumstances of it, so they are better placed to use their discretion, taking into account the particular set of circumstances, which we cannot know about when we are passing something that gives carte blanche on a particular sentence minimum.
Alex Cunningham
Yes, that is very much the case. These organisations all make the same point: we are limiting the judges’ discretion. We are limiting the discretion of the individual who best knows the case, as they have actually heard the case, so it is certainly worrying. In fact, in the sentencing White Paper, the Government note that “concerns have been raised”, and that some repeat offenders are receiving too-lenient sentences, but they fall short of naming a single body that supports that view.
In the same vein, rather than presenting the evidence for change, the White Paper highlights only a single statistic in relation to those convicted of a burglary who receive a sentence lower than the minimum three-year term. I am sure I do not have to remind the Minister that that is as single statistic relating to a single offence out of his list of four. I ask him a very simple question: what evidence has he brought to the Committee today to show that judges have been unduly lenient when sentencing repeat offenders in relation to the importation of class A drugs, possession of a knife or offensive weapon or threatening a person with a blade or offensive weapon in public?
The second of the Opposition’s concerns is how the proposed changes to clause 100 will further entrench the already shameful levels of racial disparity in our criminal justice system. As the Minister is all too aware, since the Lammy review was published in September 2017, racial disparity in the criminal justice system has got considerably worse. The statistics speak for themselves. Black offenders are 26% more likely than white offenders to be remanded in custody, while the figure for black women is 29% more likely. Offenders from black, Asian and minority ethnic backgrounds are 81% more likely than white offenders to be sent to prison for indictable offences, even when factoring in higher not guilty plea rates. Over one quarter—27%—of people in prison are from a minority ethnic group, despite the fact that they make up 14% of the total population of England and Wales. If our prison population reflected the ethnic make-up of England and Wales, we would have over 9,000 fewer people in prison—a truly staggering figure.
That is before we even begin to touch on disproportionality in the youth system, which is even more pronounced. For the first time, young people from a BAME background now make up 51%—over half—of those in custody, despite that group making up only 14% of the population. The proportion of black children who are arrested, cautioned or sentenced is now twice what it was 10 years ago, and the proportion of black children on remand in youth custody has increased to over a third.
When my right hon. Friend the Member for Tottenham (Mr Lammy) was asked by the then Conservative Government to carry out his review, he did so in the belief that that Government, and successive Governments, would implement the recommendations he made. Sadly, that was not the case. At the last count, fewer than 10 of the 35 recommendations had been fully implemented. Perhaps the Minister will explain whether that is still the case today and, if so, why the Government have made so little progress on that in the last four years.
The picture emerging from this Government is that they do not care about reducing racial disparities in our criminal justice system, which is not an accusation I make lightly. Statement after statement recognising the disparities and promising change appears to be no more than lip service. Worse still, many of the measures in the Bill will further entrench racial inequality in the criminal justice system—one of them being the introduction of clause 100. It is abundantly clear that the clause will have a disproportionate impact on offenders from a black, Asian or minority ethnic background.
We know from a Government report published in 2016 that for drugs offences the odds of receiving a prison sentence were around 240% higher for black, Asian and minority ethnic offenders than for white offenders. Even the equalities impact assessment that accompanies the Bill acknowledges an over-representation of certain ethnic groups and the increased likelihood of their being sentenced to custody and given a longer sentence. It states:
“We recognise that some individuals with protected characteristics are likely to be over-represented in the groups of people this policy will affect, by virtue of the demographics of the existing offender population.”
Mr Robert Goodwill (Scarborough and Whitby) (Con)
The figures the hon. Gentleman quotes are of great concern. Is he suggesting that judges show bias and discrimination in the sentences they give?
Alex Cunningham
I am not. The point I am making is that the Government are driving an agenda that will result in more black, Asian and ethnic minority people ending up in the criminal justice system and suffering even greater sentences.
The Government’s own equalities impact assessment goes on:
“BAME individuals appear to have high representation in the Class A drug trafficking cohort and possession of or threatening with a blade… As a result, the proposal may put people with these protected characteristics at a particular disadvantage when compared to persons who do not share these characteristics since they may be more likely to be given a custodial sentence and serve longer sentences than before.”
The Minister could do no better than looking to America to see how three-strike drug laws have had a horrific impact on disproportionality rates in the criminal justice system. As he will no doubt be aware, the three-strikes crime Bill that was introduced by Bill Clinton in the 1990s has been roundly criticised by all sides of the American political spectrum. Democrats, Republicans and even Bill Clinton himself have spoken of how the Bill was a grave mistake that contributed to overpopulated prisons and a mass incarceration of BAME offenders in particular.
What makes this all the more astonishing is that this Government have gone to some lengths in recent times to state their commitment to reducing racial disparity in the justice system. In his foreword to the latest update on tackling race disparity in the criminal justice system, the Lord Chancellor made it clear that addressing the over-representation of people from ethnic and racial minorities was a personal focus for him—that was very welcome. Will the Minister explain, then, why the Government chose not to undertake a full equalities impact assessment of how measures in the Bill could have a detrimental impact on minority groups? Given that many of the measures in the sentencing White Paper involve serious sentence uplifts, it is absolutely critical that the Government fully understand how those from minority backgrounds could be disproportionately impacted. As I have explained, failing to do so runs the risk of further exacerbating the already horrendous disparities that we see in the system today. Is the Minister content to see such disparities widen even further, or will he outline today just what the Government will do to address this issue?
Maria Eagle (Garston and Halewood) (Lab)
Does my hon. Friend agree that being against this kind of disparity is all well and good, but the only way one can reduce it, which I believe is the Government’s policy, is to be very careful—moving policy initiative by policy initiative, and change in the law by change in the law —that new measures take into account the impact of such changes on that disparity?
Alex Cunningham
I most certainly do agree with my hon. Friend. That is why we posed the question: why has there not been a full impact assessment of the impact of these measures on the BAME community? I would go so far as to challenge the Minister and his Government not just to outline the measures they will take to end these disparities but to set themselves some targets to end this injustice once and for all.
The final point I will touch on is how the Government came to a decision on which of the four offences they have included under the scope of clause 100. I remind the Committee that they are trafficking of class A drugs, domestic burglary, possession of a knife or offensive weapon, and threatening a person with a blade or offensive weapon in public. Although those are undoubtedly serious crimes, we have some concerns that focusing on such a small cohort of crimes risks missing the larger criminal forces that are at work in our country.
Take possession of a knife or offensive weapon, for example. All too often when we think of knife crime, the focus of our thoughts is on young men—often young BAME men from a disadvantaged background—carrying knives as part of a gang. Yet this image is deeply simplistic and misses the greater criminal forces at play. As my right hon. Friend the Member for Tottenham pointed out, most of the time knife crime is not being driven by youths but by a sophisticated network of veteran organised criminals. As he wrote in The Guardian so eloquently:
“Young people falling into the wrong crowd in Tottenham, Salford or Croydon know nothing about the trafficking of tonnes of cocaine across our borders every single year. They know nothing of the shipment routes from Central and South America that have made London a cocaine capital of Europe. They know nothing of the lorries, container vessels, luxury yachts and private jets that supply our nation’s £11bn-a-year drug market….This isn’t about kids in tracksuits carrying knives, it’s about men in suits carrying briefcases. It is serious criminal networks that are exploiting our young people, arming them to the teeth and sending them out to fight turf wars.”
Mr Goodwill
The hon. Gentleman makes some very valid points. Does he agree that this issue is also about middle-class people taking illegal drugs and fuelling this terrible trade?
Alex Cunningham
I certainly agree with the right hon. Member for Scarborough and Whitby, and I have given his constituency its full title—how on earth could I ever forget Whitby, when it is one of my favourite destinations for a day out? I am sure he will understand why that is the case. For me, this issue is about how we tackle the guys with the briefcases and not just the young men on the streets? How do we make sure that we deal with organised crime? We have seen some great results recently in my own constituency and across the Cleveland police area, where there have been raids on individual houses and the police found large amounts of drugs. However, those drugs are finding their way in through Teesport and through the Tyneside ports as well. We are failing to get to the people who are driving the entire trade and we need to do much, much more to do so.
With the National Crime Agency currently prioritising cyber-crime, child sexual exploitation and terrorism, and the Serious Violence Taskforce having been disbanded recently, I would be grateful if the Minister could explain how anything in clause 100 will tackle serious organised criminality.
To conclude, the Opposition have deep concerns about the introduction of the power in clause 100. We worry that it has been introduced without an evidential basis, without consultation with impacted groups, and without a full equalities impact assessment. Even more importantly, we worry that it will further entrench the already shameful levels of racial disparity in our criminal justice system while failing to tackle the underlying causes of the crimes that we have been discussing. I look forward to hearing the Minister’s response, which I hope will address the issues that I have raised.
Chris Philp
Let me respond to some of the questions and points that the shadow Minister raised in his speech. First, I should be clear that in forming the proposals the Government have considered carefully, in accordance with the public sector equality duty under the Equality Act 2010, the impact that these changes in the law might have on people with protected characteristics, including race. The full equality impact assessment was published alongside the draft legislation, and I can confirm that it is publicly available should anybody want to scrutinise it.
Maria Eagle
Does the Minister accept that despite the Government’s intentions, good as they may be, to reduce disparity, the reality is that it is not reducing and has not reduced since the report was published? Does he therefore accept that the Government need to do more?
Chris Philp
I have not seen the up-to-date data for the past year, but I accept that we need to pay continuous attention to these issues. We need to make sure that the justice system always behaves in a fair and even-handed manner. Clearly, we accept that we need to be eternally vigilant on that front.
To return to the topic of this clause, it is simply about making sure that the decisions taken by previous Parliaments are reflected in the way in which judges take their decisions. We also need to ensure that departing from what Parliament has specified happens only in exceptional cases. Believing as I do in parliamentary sovereignty, that seems reasonable to me.
Question put, That the clause stand part of the Bill.
Alex Cunningham
I beg to move amendment 1, in clause 101, page 86, line 41, at end insert—
“(bb) the abduction, sexual assault and murder of a person not previously known to the offender,”.
The amendment would extend the whole life tariff captured by the clause to someone guilty of the murder, abduction and sexual assault of a stranger. Later in my speech I will provide substantial detail on why we should do that.
First, I want to demonstrate the Opposition’s support for what the Government are tyring to do with this particular clause. As the Minister will no doubt point out later, a whole life order is the most severe sentencing option available to members of the judiciary in England and Wales. Only a small number of criminals a year will ever be convicted of a crime so exceptionally terrible that it warrants such a punishment. The effect of a whole life order is as simple as it is final. Once sentenced, the offender loses any right of a sentence review. They will spend the rest of their lives in prison, without any possibility of hope or release. From the moment they are sentenced, they will never again set foot outside prison.
The decision to deprive someone of their liberty indefinitely is a daunting one, and I do not envy the enormous responsibility placed at the door of the judges who hear these types of cases. None the less, as an Opposition we are pragmatic. Although we are strong believers in the power and importance of rehabilitation, we accept that some offenders are so uniquely evil that even our greatest attempts to reform them would most likely be in vain.
One only has to consider some of the handful of offenders who have received a whole life order to realise the type of criminality we are dealing with. Ian Brady and Myra Hindley, the Moors murderers, were convicted of the torture and murder of three innocent children between 1963 and 1965. I was eight, nine and 10 years old during that time, and I actually remember the television reports. Dennis Nielsen was a former policeman who murdered and dismembered at least 12 young men and boys between 1978 and 1983. Rose West collaborated with her husband in the torture and murder of at least nine young women between 1973 and 1987, including her eight-year-old stepdaughter. Harold Shipman, the infamous GP, is thought to have been responsible for the murder of over 200 women who trusted him with their care and wellbeing. Peter Sutcliffe, the Yorkshire Ripper, murdered 13 women and attacked seven others in a killing spree that terrified the nation between 1975 and 1980—the list goes on. Each of those names will live in the consciousness of the nation for evermore. Each was found guilty of crimes so extraordinarily evil that their actions cannot, and should not, be forgotten.
Today, we have before us the question whether to extend the list of crimes for which a whole-life order can be handed down. Under the current sentencing framework, a whole-life order can be given only for
“the murder of two or more persons where each murder involves a substantial degree of premeditation, the abduction of the victim, or sexual or sadistic conduct… the murder of a child if involving the abduction of the child or sexual or sadistic motivation… the murder of a police or prison officer in the course of his duty… a murder done for the purpose of advancing a political, religious or ideological cause; or… a murder by an offender previously convicted of murder.”
The clause will widen that list to cover the murder of a child if that murder can be shown to have involved a substantial degree of premeditation or planning.
In coming to a decision on whether that is a proposal the Opposition can support, we must first understand how many additional offenders the Government estimate will be caught by such a change in the law. The Government’s impact assessment acknowledges that whole-life orders are
“an exceptionally rare sentence, with fewer than 5 given out per year on average over the past decade.”
It goes on to note that the measure is expected to increase the number of whole-life orders handed out by
“a maximum of about 10 offenders per year”.
The Sentencing Academy response to the sentencing White Paper noted that the requirement of a substantial degree of premeditation or planning should mean that the number of offenders caught by that charge would be relatively small.
None the less, the Government must face the fact that widening the list of offences that can attract whole-life orders will naturally put an already overstretched prison system under even greater strain. As the Minister will have seen, only last week, an internal survey by the Prison Officers Association showed just how precarious the system is in our prisons. That survey showed that 85% of prison officers report feeling burned out; more than 40% of prison staff are suffering moderate or severe anxiety symptoms; and more than 80% feel that their mental and physical health have got worse during the pandemic. That is on top of what we already know—that our prisons are already overcrowded and understaffed, and are hotbeds of crime, as I said in my contribution to the driving offences debate earlier this week. Therefore, I would be grateful if the Minister today committed himself and the Government to ensuring that all the toughest sentences in the Bill—not just in the clause—will be properly resourced and funded. Can we have an assurance that whole-life orders will remain a sentencing option only for those who have committed the worst offences?
We must now consider whether the premeditated murder of a child is as heinous a crime as the other crimes that can attract a whole-life order. On that point, the Opposition are clear: it certainly is. The law allows for whole-life sentences to be handed down to those who murder a child following the child’s abduction, or if the murder involves sexual or sadistic motivation. However, the Opposition agree with the Government’s point that any murder of a child committed with a high degree of premeditation should also warrant a whole-life order. What we are talking about here is a purely evil act—killing someone in the prime of life, taking away their opportunity to go to university and to forge a career, and taking away their hopes of settling down and having a family.
For a whole-life order to be handed down, the current legal framework requires the killing of a child to involve abduction or a sexual or sadistic motivation. That raises the question, how can it be possible for the murder of a child not to involve a sadistic intention? When someone chooses to take the life of a child, they do so in the knowledge of the immense pain it will cause the loved ones of the victim for the rest of their lives. Thankfully, the number of offenders who commit the murder of a child with a high degree of premeditation is relatively small, but Labour fully agrees that those in that group of offenders deserve to spend the rest of their life in prison, not only to protect society, but to ensure that their sentence reflects the horrendous nature of their crime.
The Chair
Before we continue, can we be a little careful here? I have been in discussion with the Clerk and others, and I am not sure that we need to be careful, but let us be careful because there is still not a sentence yet. I am sorry—
Chris Philp
The shadow Minister has given a comprehensive and thorough introduction to the topic of whole-life orders, which I had intended to give the Committee myself. As he has laid out the background, I do not propose to repeat it. He accurately described how they operate and the categories of offender to which they apply. As he said, a whole-life order is the most severe punishment that a court can hand down, ensuring that the person so sentenced never leaves prison under any circumstances.
The shadow Minister illustrated the gravity and seriousness of such sentences by listing some of the terrible cases from the past 30 or 40 years, or indeed the past 50 years, in which whole-life orders have been imposed. The clause proposes to add to the small list of offences that qualify for a whole-life order as a starting point the heinous case of premeditated child murder—a crime so awful and appalling that I think all hon. Members agree it should be added to the list.
The murder of a child is particularly appalling, and whether we are parents or not, we all feel deeply, particularly when there is a degree of premeditation—when it is not just in the moment, but planned and intended for some time—that the crime is truly terrible and enormous. That is why the Government propose to expand the whole-life order. I think there is unanimity on that point.
The shadow Minister raised the important question of violence against women and girls, both in general terms and in the context of a particular case, which Sir Charles has asked us to be careful about because it is subject to live legal proceedings. The matter is not concluded before the courts, so of course we should be a little careful. Let me start with the wider issue of violence against women and girls.
For many years, the Government have had an unshakable commitment to protecting women and girls from the completely unacceptable violence and harassment that they all too often suffer at the hands of men. My hon. Friend the Member for Louth and Horncastle, the safeguarding Minister, has been at the forefront in recent years—introducing the Domestic Abuse Bill, which reached the statute book as the Domestic Abuse Act 2021 a short time ago, and leading and taking forward our work in this area. In the relatively near future—certainly in the next few months—we will publish a refreshed violence against women and girls strategy and a domestic abuse strategy, both of which will take further our work in this area.
A great deal of work has been done in the last five or 10 years, almost always with cross-party support. For example, banning upskirting started off as a private Member’s Bill and the measure was then passed by the Government. There are also recent measures on non-fatal strangulation, which are critical to protecting women, and work on the rough sex defence, which is part of the Domestic Abuse Act. We have introduced additional stalking offences over the last few years and increased sentences for such offences. A huge amount of work has been done, is being done and will be done to protect women and girls from attack. As the shadow Minister rightly said, women and girls have the right to walk the streets any time of day or night without fear. That is not the case at the moment, and we all need to make sure that changes.
In relation to the terrible crime of rape, it is worth mentioning, by way of context, that sentences have been increasing over the past few years. The average adult rape sentence rose from 79 months in 2010 to 109 months in 2020, an increase of approximately two and a half years—and quite right, too. However, it is not just the sentence that matters, but how long the offender spends in prison.
Via a statutory instrument that we introduced last year, and a clause that we will come to later in the Bill, we are ensuring that rapists spend longer in prison. Those sentenced to a standard determinate sentence of over seven years will now, for the first time, serve two thirds of their sentence in prison, not half, as was previously the case. It was wrong that rapists, when given a standard determinate sentence, served only half of it in prison. It is right that that is now two thirds, when the sentence is over seven years. The Bill goes further, moving the release back to two thirds of the sentence for those convicted of rape and given a standard determinate sentence of over four years, ensuring that rapists spend longer in prison.
I hope that gives the Committee a high level of assurance about the work that has been done already, is being done through the Bill and will be done in future in this critical area. We discussed that extensively in yesterday’s Opposition day debate, which the Lord Chancellor opened and I closed. Labour’s Front-Bench spokesman made the point, fairly and rightly, that rape conviction rates are too low and must get higher. The rape review, which I am told will be published in days not weeks, will propose decisive action to address that serious problem.
I hope that lays out the Government’s firm commitment on the issue and our track record historically—
Alex Cunningham
It sounds as though the Minister is about to wind up without addressing my specific points.
Chris Philp
No, I certainly was not planning to ignore the hon. Gentleman’s amendment. I was simply setting out the wider context and the work that the Government have done, are doing and will do.
I have a couple of things to say about the amendment. First, the offence it describes is obviously horrendous and very serious. It currently carries a mandatory sentence of life imprisonment. Where the murder involves sexual or sadistic conduct, the starting point for the tariff—the minimum term to be served in prison—is 30 years, so a very long time. It is important to note, however, that judges have the discretion to depart from that tariff where they see fit and, if necessary, increase it, including by giving a whole-life order. It is important to be clear that the law already allows for such an offence to receive a whole-life order where the judge thinks that appropriate.
Secondly, the amendment refers in particular to strangers. It would essentially move the tariff’s starting point from 30 years to a whole-life order, the maximum sentence being life in both cases—it would not change the maximum sentence—but it aims that change in minimum sentence only at cases where a stranger has perpetrated the abduction, sexual assault and murder. It strikes the Government as surprising that that distinction is drawn, because the crime described—abduction, sexual assault and murder—is as egregious and horrendous whether committed by a stranger or by someone known to the victim.
Alex Cunningham
I am grateful to the Minister for his response. It is very easy for us all to determine our own shopping list of changes to the legislation. I take his point that crime committed by somebody who is known to the victim is not any less severe than crime committed by someone who is not known to the victim. However, rather than dismiss what the Opposition are saying, perhaps the Government should say that there is an opportunity here to look at whole life orders and some of the wider aspects. Perhaps other cases should attract a whole life order. The Government have quite a tight group currently, and there is a need for that to be reviewed.
Given the specific things that have happened in recent times, the amendment is about sending a message to women and girls that we are on their side and that we recognise the difficulties that they often face. We recognise their fear of walking home in the evening, particularly if they are on their own. Although society needs to do more to tackle the causes of this type of crime, we should still go ahead with the amendment and ensure that there is a clear message to strangers, or anybody out there, that if they abduct, murder or sexually assault a woman, they will face the full weight of the law. For me, that means the mandatory whole life order, except in exceptional circumstances.
The Chair
Minister, do you wish to come back? I saw you in discussions with another Minister, so I will give you the option. It is not normal to do this, but is there anything further that you would like to add in response?
Chris Philp
I will just say that we are always happy to talk to the Opposition about a matter of this sensitivity, but I remain of the view that we should not single out murders involving a stranger and exclude domestic cases from the Bill, because that would diminish those equally appalling offences in which the victim is known to the offender. It may even be a partner; it may even have happened in her house—yet that is not in the amendment. I ask that we think again about putting it to a vote. I am happy to sit down with the shadow Minister to talk about the issue and about the whole life order question, but I repeat the point that I made earlier.
Alex Cunningham
I appreciate that, but I still intend to divide the Committee on the amendment.
Question put, That the amendment be made.
Chris Philp
Clause 102 relates to whole life orders, which we discussed fairly extensively a few moments ago. It will give judges the opportunity, in rare and exceptional cases, to use a whole life order on people who are convicted when they are aged between 18 and 20. At the moment, whole life orders can be imposed only on offenders aged 21 or over, but occasionally there are some very unusual cases in which offenders aged 18, 19 or 20 commit heinous offences and a whole life order might be appropriate. For example, an offence of murder, rape and abduction such as the shadow Minister described might be committed by someone aged 20. We think, as I hope the Opposition do, that the judge should be free to impose a whole life order; in fact, the shadow Minister himself made that case very compellingly a short while ago.
I will give an example in which a judge called for precisely that: the notorious, infamous case of Hashem Abedi, the brother of the Manchester Arena bomber. In sentencing him, the presiding judge, Mr Justice Baker, described the actions of the two bombers as
“atrocious crimes: large in their scale, deadly in their intent and appalling in their consequences.”
The judge said that he was satisfied that they had appeared to deliberately target the young audience in attendance at the arena’s Ariana Grande concert in order to heighten the risk of injury and death. He said in his sentencing remarks that
“If the defendant…had been aged 21 or over”
and if a whole life order had been available,
“the appropriate starting point…would have been a whole life order”,
given the seriousness of the crime.
I am sure that every member of the Committee, and indeed every Member of the House, will agree that for crimes as abhorrent as Hashem Abedi’s—murdering so many people in cold blood, many of them young—or in cases of the kind that the shadow Minister spoke about in our debate on clause 101, involving the murder, rape and abduction of a woman, where the offender is 19 or 20 years old, the whole life order should be available to the judge in those exceptional and thankfully rare circumstances.
I think that this extension to the whole life order regime is appropriate. On that basis, I urge that clause 102 stand part of the Bill.
Alex Cunningham
I am getting a little confused now with some of the things that the Minister has said in relation to the last debate and the imposition of whole life orders. I assume that he was referring to the fact that judges have that flexibility rather than being compelled to impose such a sentence.
Chris Philp
The shadow Minister is right. I was saying that, for the kind of offences that he described in the last debate, judges have the ability to impose a whole life order. For murders involving sexual assault and abduction, the starting point currently is a tariff of 30 years. However, the judge has the freedom to go up to a whole life order. But at the moment, the judge cannot do that if the offender is aged 18, 19 or 20. The clause will give judges that freedom.
Alex Cunningham
I am grateful to the Minister for his clarification. As he said, clause 102 will allow judges to impose, in exceptional circumstances, a whole life order on offenders who were aged 18 to 20 when the offence was committed. Currently, a whole life order can be imposed only on offenders who were aged 21 or over when they committed the offence; we both recognise that. The court will be able to impose a whole life order
“only if it considers that the seriousness of the offence, or combination of offences, is exceptionally high even by the standard of offences”
that would normally attract a whole life order for an offender aged 21 or over.
I start by paying tribute to those who lost their lives on 22 May 2017 at the Manchester Arena. That evening was supposed to be one of fun. Instead, a truly wicked act claimed 22 innocent young lives and left many more lives shattered. As the Minister said, it is only right that Hashem Abedi received the longest sentence in history for his part in the atrocity that night. It is also right that he will spend the rest of his life in jail. Neither of those points has ever been in doubt.
Labour’s overarching commitment is to keeping the British public safe and to ensuring that horrific terrorist attacks such as the one at Manchester Arena cannot be repeated. For that reason, Labour will support the introduction of clause 102. We do, however, seek assurances that the Government will think carefully about their approach to young adults when making sentencing changes in the future.
As the Minister explained, since 2003 the law has provided that whole life orders can be handed down only to offenders who were aged 21 or over at the time of their offence. Clause 102 will make an exception to that rule, so that in exceptional circumstances whole life orders can be given to those who were aged 18 or over but under 21 at the time they committed their offence.
In its briefing on the Bill, the Sentencing Academy indicated that the inclusion of clause 102 seemed to be a response triggered by the trial of Hashem Abedi for his involvement in the Manchester Arena bombing. As many people will know, Hashem Abedi was the brother of Salman Ramadan Abedi and was found guilty of assisting his brother to order, stockpile and transport the deadly materials needed for the attack. In total, he was found guilty of 22 counts of murder, attempted murder and conspiring to cause explosions.
In his sentencing remarks, Mr Justice Jeremy Baker indicated that Hashem Abedi’s actions were so grave that if he had been aged 21 or over, he would have sentenced him to a whole life order. Given that Hashem was under the age of 21 at the time of his offences, the judge was precluded from sentencing him to a whole life order. Instead, he was sentenced to at least 55 years—the longest determinate sentence in British criminal history. Mr Justice Baker made it clear that Abedi would leave prison only if the Parole Board was convinced that he was no longer a risk to society. Even then, he would spend the remainder of his life on licence, with the risk of being recalled to prison. In all likelihood, he concluded, Abedi could expect to spend the rest of his life in prison.
This, to a certain extent, represents the first concern that the Opposition have about clause 102. If the current sentencing regime already allows courts to sentence someone to almost certainly spend the rest of their natural life behind bars, what does clause 102 actually add to the law? As Mr Justice Baker pointed out, the only way Hashem Abedi could conceivably be released from prison is if the Parole Board deemed him no longer to be a risk to society. I am sure that the Minister will agree that after committing such a heinous and fanatical crime, and while refusing to show any remorse for his actions, the chances of his being deemed safe to be released are close to zero. Moreover, given that he will be at least 78 years old before his minimum sentence comes to an end, the chances that he will die before appearing before the Parole Board are considerable.
The other reason why we have concerns in this area was neatly summed up by the Sentencing Academy, which pointed out that, since the current sentencing regime for murder came into force in 2003, the issue of a sentencing judge being prohibited from imposing a whole life order on someone aged 18 to 20 arose for the first time only in 2020. For the avoidance of any doubt, the event referred to in 2020 is that trial of Hashem Abedi.
Chris Philp
I will be brief in my reply. On the need for the sentence, we have already discussed the Abedi case. We have seen that, in his case, it is conceivable that the whole-life order might have made a difference. He would be eligible for Parole Board consideration at the age of 78. In that circumstance, a whole-life order would make a difference because, under one, such a consideration would not take place.
The shadow Minister said that such cases are very rare because, by definition, people who are 18, 19 or 20 have many years of life ahead of them. None the less, they occasionally occur, and it is important that we give judges the ability to deal with that. The fact that we have whole-life orders illustrates that there are limited circumstances in which they are appropriate.
I thought that there was a slight inconsistency in the shadow Minister’s arguments. On the previous clause, he argued for the expansion of whole-life orders, and on this clause—I know he will support it, so I do not want to push this too hard—he raised doubts about the appropriateness of the expansion of whole-life orders. It struck me that there was a slight tension in those arguments.
Alex Cunningham
The Minister must not misunderstand or misinterpret what I was saying. We are fully supportive of what he is trying to achieve here, but we want to make sure the Government recognise that such orders should be used only in the most extreme cases, and maturity has to be an issue.
Chris Philp
We do recognise that. The orders are intended to be used in exceptional circumstances. The phrase “exceptional circumstances” is well established and well known by judges and in law.
On the shadow Minister’s point about accounting for maturity more generally, of course judges take it into account at the point of sentencing. At about this time last year, during the passage of the Counter-Terrorism and Sentencing Act 2021, we discussed extensively the use of pre-sentence reports when someone who is just over the age of maturity but still maturing is sentenced. The fact is that pre-sentence reports can comment on maturity, and judges can take that into account.
I can give the shadow Minister the assurance he asked for. First, the Government are mindful of the issue generally, and, secondly, we expect this to be rare and exceptional. I have a great deal of confidence that the judiciary will apply the flexibility that we are providing in a way that reflects that. As the shadow Minister said, I would not expect the power to be used in very many circumstances, but where terrible cases arise, such as the appalling Abedi case, or a case in which a 19 or 20-year-old abducts, rapes and murders a woman, the whole-life order might be appropriate. It is right that judges have them available to use. I am glad to have the shadow Minister’s support on this clause.
Question put and agreed to.
Clause 102 accordingly ordered to stand part of the Bill.
Clause 103
Starting points for murder committed when under 18
Question proposed, That the clause stand part of the Bill.
Chris Philp
We come now to the sentencing regime for children who commit murder. Thankfully, that is a very rare occurrence, but it does sadly happen. Clause 103 amends the sentencing code to replace the current 12-year tariff point for all children who commit murder, with a sliding scale of starting points. The sliding scale takes into account the age of the child and the seriousness of the offence. It means that the older the child and the more serious the murder, the higher the starting point.
Detention at Her Majesty’s pleasure is the mandatory life sentence for children who commit murder. Starting points are used by the judge to determine the minimum amount of time to be served in custody before the offender can be considered for release by the Parole Board. Judges can set a minimum term that is higher or lower than the starting point by taking into account aggravating or mitigating factors. Rather than having a flat 12-year starting point, as we have at the moment, which does not account for the age of the child—it could be 12 or 17—or the relative seriousness of the offence, instead we will have a sliding scale based on a more nuanced system.
The new starting points represent the approximate percentages of the equivalent sentence for an adult, which of course reflects the seriousness of the particular offence. If the child who has been convicted of murder is aged between 10 and 14, the tariff—the minimum amount to be served—will be set at half the adult equivalent. If they are 15 or 16 years old, it will be set at 66%, and if they are 17 years old—almost an adult but not quite—it will be set at 90%.
The introduction of this sliding scale recognises that children go through different stages of development and that a child of 17 is manifestly different from a child of 10. It seeks to reduce the gap in starting points between someone who is 17 versus someone who is 18, say, but increase it when the person is a lot younger. By linking it to the equivalent sentence for the same offence committed by an adult, it also seeks to reflect the different levels of seriousness that might apply.
This is a sensible and proportionate measure that reflects both age and seriousness. That is not currently reflected in the starting point, and we have to rely wholly on judicial discretion to correct that. This measure makes the provision a little more predictable and transparent, so that everyone can see how the system works.
Alex Cunningham
On 3 May 2019, Ellie Gould was murdered by her former boyfriend in the kitchen of her family home. She was strangled, and stabbed 13 times, in a brutal and frenzied attack. She was only 17 years old and was looking forward to university. Her whole life should have been ahead of her, but it was snatched away in the most horrendous way imaginable.
When Ellie’s former boyfriend was sentenced for his appalling crime, he received only 12 and a half years in prison, meaning he could be eligible for parole before his 30th birthday. If he had committed his crime a year later, after he had turned 18, he could have received a much longer sentence. As a dad and a grandad, I can only imagine the enormous life-changing pain of having a child taken away in such appalling circumstances, while knowing that the perpetrator will be released within a relatively short period.
On behalf of the Opposition and, I am sure, of the whole Committee, I praise the enormous fortitude and dignity that Carole Gould has shown amid such horrendous loss. It is thanks to her tireless campaigning for Ellie’s law that we are discussing the clause. As my right hon. Friend the Member for Tottenham made clear in the Chamber some time ago, there is no doubt that Thomas Griffiths received too short a sentence for the crime he committed, and Labour stands firmly behind the Gould family.
As the Minister pointed out, under the current sentencing framework, if a child commits murder before they turn 18, they are sentenced to detention at Her Majesty’s pleasure, with a starting point of 12 years, as opposed to the starting point of life imprisonment for an adult found guilty of the same offence. As such, the way that starting points are currently calculated means that a 17-year-old who, like Thomas Griffiths, commits murder, can receive a much shorter tariff than someone who has just turned 18, even if the crime is more serious.
Clause 103 would rectify that by replacing the 12-year starting point with a sliding scale of different starting points based on the age of the child, as the Minister outlined. The aim is to ensure that sentences given to children who commit murder are closely aligned to the sentences handed down to adults who commit the same offence.
As I set out at some length during the debate on clause 102, the Opposition are naturally cautious when it comes to the age of maturity and increasing the sentencing regime that applies to children. As I have said, that concern is held not only by the Opposition, but by the Justice Committee, which set out unequivocally that:
“Both age and maturity should be taken into significantly greater account within the criminal justice system.”
None the less, as I have said in the past, the Opposition are also pragmatic and recognise that on some occasions, such as the death of Ellie Gould, the sentences that are currently available do not properly reflect the severity of the offence committed.
As Carole Gould has described so movingly, the families of victims of these atrocious crimes often feel that they have faced two gross injustices: first, when the act is carried out, and secondly, when the sentence is delivered. Labour agrees with the Government that in the darkest days of grief, it is deeply unfair that the families of victims feel that they have been cheated of justice when a perpetrator receives a far shorter sentence because of an age difference of a matter of weeks or months.
That is why we, along with the Gould family, were quite appalled when the sentencing White Paper was published with proposals that would have seen Thomas Griffiths receive an even lighter sentence of only 10 years. I am glad that the Government have now seen sense and corrected that point, but not before Labour brought the anomaly to the Government’s attention back in October last year. Labour will support the Government on clause 103 today, but we feel that much more could be done in this area.
As Carole Gould has pointed out, clause 103 deals with the issue of older children being sentenced in a way that is closer to young adults. Another important issue, however, remains to be resolved: the sentencing gap which exists between those who murder within the domestic home and those who murder a stranger in the street. The point made by Carole is a poignant one:
“Why should a life taken in the home by someone you know be valued less than a life taken by a stranger in the streets?”
Alex Cunningham
I beg to move amendment 131, in clause 104, page 89, line 1, leave out “18” and insert “26”.
This amendment would make provision for minimum term reviews for those who are serving a sentence of detention at Her Majesty’s pleasure to continue to take place up to the age of 26.
As has been pointed out, the purpose of the clause is to alter the way in which sentence reviews are conducted for those serving detention at Her Majesty’s pleasure. As the law stands, a child sentenced to detention at Her Majesty’s pleasure may apply to the High Court to seek a review of their sentence once they have reached the halfway point of the sentence. The purpose of the review is to establish whether the offender has made sufficient progress while in prison for their sentence to be reconsidered. If the offender’s application for a review is unsuccessful, he or she may make a further application every two years until the sentence comes to an end.
The effect of the clause is twofold: first, those who have reached the age of 18 at the time of sentencing will no longer be entitled to a review of their sentence. Secondly, those who are entitled to reviews—in other words, those who were sentenced when a child—will be restricted to a single review at the halfway point and, if they have reached the age of 18 by that stage, they will be entitled to no further reviews.
In their White Paper, the Government set out that the intention behind clause 104 was to spare victims’ families the trauma of having to continually revisit the events that led to the loss of their loved one each time an offender applies for a review. Although we sympathise wholeheartedly with that sentiment, we are also mindful of the need to balance it with the right of young offenders to have their sentence reviewed in the light of good behaviour while in prison.
The Opposition’s first major concern with clause 104 is that we believe that those who commit an offence as a child should be treated as a child by the criminal justice system, irrespective of whether they turn 18 by the time they are sentenced. That view is widely held by stakeholders across the justice sector, as well as by Members across the House. As the Minister will be aware, the hon. Member for Aylesbury (Rob Butler) has promoted a ten-minute rule Bill to achieve just that.
The Labour party is clear that no child should be put at a disadvantage by turning 18 before being sentenced, especially if the delay has been caused by the record-breaking court backlog. That concern is shared by the Sentencing Academy, which notes:
“We have grave concerns about the removal of reviews from people simply because they have reached the age of 18 at the time of sentencing—particularly at a time when cases are taking so long to reach court due to the backlog of cases that has been exacerbated by the pandemic.”
Bambos Charalambous
Obviously, delays are not particularly satisfactory for anybody, particularly in the criminal justice system. Long delays are not fair for victims, either, or for young people. As the maxim says, justice delayed is justice denied. Does my hon. Friend agree that the criminal justice system needs more investment so that things are speeded up and young people do not end up being sentenced as adults?
Alex Cunningham
I understand exactly what my hon. Friend is saying. However, I know from discussions with the Lord Chancellor that he is very shy about addressing the issue of people receiving an adult sentence for crimes committed under the age of 18 because their case did not get to court until after they had turned 18. He does not appear to have any sympathy for that. I hope that over time we can work with the Government on what happens to children who commit crimes. They should not be disadvantaged by not having their case heard until they become an adult.
The concept of basing minimum term reviews on age at sentencing, rather than on age at the time the crime was committed, has also been rejected by the courts as contrary to the purpose and rationale of the sentence of detention at Her Majesty’s pleasure. As the great Lord Bingham set out in the case of Smith:
“The requirement to impose a sentence of HMP detention is based not on the age of the offender when sentenced but on the age of the offender when the murder was committed, and it reflects the humane principle that an offender deemed by statute to be not fully mature when committing his crime should not be punished as if he were. As he grows into maturity a more reliable judgment may be made, perhaps of what punishment he deserves and certainly of what period of detention will best promote his rehabilitation.”
With that in mind, what guarantees can the Minister provide that no child will be put at a disadvantage because of court delays caused by the huge backlog that has accrued on the Conservative Government’s watch? Similarly, does he agree that it would be hugely unfair for children to be worse off because of something completely out of their control?
The Opposition’s second concern with clause 104 is the cliff edge created by the offender turning 18. As I set out at some length during our discussion of clause 102, the Opposition are very mindful of the significant advances made during the past 20 years relating to the age of maturity. As the Minister is all too aware, it is now widely recognised that young adults are still developing their decision making and impulse control skills well into their mid-20s. As I have said before, that is acknowledged not just by the Opposition but by the Justice Committee, neuroscientists, criminologists and, until recently, this very Government. It is somewhat disappointing, then, that the Government have chosen to create a cliff edge whereby anyone who turns 18 suddenly loses the right to have the High Court review their sentence.
That concern is shared by the Sentencing Academy, which points out:
“The accompanying ‘factsheet’ justifies removing reviews from those aged 18 by the time of sentencing on the grounds that: ‘This is because their age and maturity will have been taken into account at their sentencing’. However, it is an accepted feature of sentencing law that the passing of an offender’s 18th birthday is not a cliff edge in terms of their emotional and developmental maturity.”
I must therefore ask the Minister why, when the Government have previously accepted that
“the system…should presume that up to the age of 25 young adults are typically still maturing”,
they have chosen to create this cliff edge at the age of 18. Not only does this seem unfair; it also seems counterproductive. By removing an offender’s right to a review of their sentence based on good behaviour, the Government are also removing any incentive for that offender to behave well in prison. As the Howard League points out, minimum term reviews are infrequent but important, as they
“offer a rare source of hope and can powerfully motivate young people to make and maintain positive change.”
The Sentencing Academy points out that since 2010 fewer than 10% of offenders serving detention at Her Majesty’s pleasure applied for a second review of their sentence. It says of the proposed change:
“this restriction will merely remove the opportunity of review from a small handful of cases in which exceptional progress has been achieved after the halfway point in the sentence”.
Is the Minister not worried that by removing the right to these reviews, he could be putting overworked prison staff at increased risk of harm?
Although we sympathise with the stated goal that the Government are seeking to achieve through clause 104—to prevent unnecessary distress to the families of victims of crime—in its present form we are unable to support it. Instead, we have tabled amendment 131, which we believe balances the need to protect the families of victims of crime from distress with preserving the rehabilitative benefits of being able to request a sentence review. The mechanics of the amendment are simple. Instead of ending the right to a sentence review at the age of 18, the amendment would make provision for minimum term reviews up to the age of 26, reflecting the widely held view that young adults are still developing in maturity well into their twenties, while also providing a powerful incentive to motivate young offenders to reform and rehabilitate while in custody.
I look forward to hearing the Minister’s response.
Chris Philp
Once again, the shadow Minister has helpfully laid out the context and the background to the clause. I will not irritate or detain the Committee—or perhaps both—by repeating the information that he has given.
These reviews provide an opportunity to look again at the minimum term handed down, but it is important to remember that we are talking about a cohort of people who have committed a very serious offence: murder. As the shadow Minister said, when sentence is first passed on a child, the judge passing the sentence will include in their consideration the maturity of the person at that point. There is an acceptance that further maturing may occur subsequently, which is why the review mechanism exists. Even with the reform proposed in clause 104 there can still be a single review once the individual is over 18; it is only subsequent reviews—a second, third or fourth review—that the clause would preclude. Given the likely length of sentences or of minimum terms, as well as the fact that most people receiving a first sentence will probably be in their mid or late teens, it is very likely that in almost all cases there will be one review after the age of 18. We are simply precluding those further reviews.
The shadow Minister says the clause might affect incentives. Once the minimum term has been reached, whether it has been reduced or not reduced, the Parole Board still has to consider whether release is appropriate, so even if the minimum term is not reduced, there is still an incentive to behave in prison and to engage in rehabilitation and so on, in the hope of getting the Parole Board release once the minimum term has been reached. So I do not accept the argument that the clause changes the incentives to behave well in prison.
On the point about people maturing beyond the age of 18, for first sentences, that is reflected in the sentence passed by the judge, informed by pre-sentencing reports. As I have said previously, the law as we propose to amend it will still allow—most likely in almost every case, or very many cases—a single review after the age of 18. That is analogous to the judge, when sentencing someone for the first time at the age of 20, 21 or 22, or even slightly older, taking into account maturity at the point of sentencing.
Alex Cunningham
I am sorry, but I do not accept the Minister’s argument. He himself talked about the small number of applications under the existing system, but he is choosing to remove that opportunity for all, with the exception of the one opportunity. I refer him again to the quote from the Sentencing Academy:
“We have grave concerns about the removal of reviews from people simply because they have reached the age of 18 at the time of sentencing—particularly at a time when cases are taking so long to reach court”.
The very fact that young people can be denied further reviews because they have reached the age of 18, and their case has not reached court through no fault of their own, is deeply unfair. For that reason, I will push the amendment to a Division.
Question put, That the amendment be made.
Chris Philp
The clause will increase the amount of time that an offender sentenced to a discretionary life sentence will be required to serve in custody before they can be considered for release. A discretionary life sentence can be imposed for any offence that has a maximum period of life where the court believes that the high seriousness of the offending is such that a life sentence should be imposed, rather than a lesser determinate sentence. Such offences include manslaughter, rape, and grievous bodily harm with intent.
When imposing such a sentence, the court must set a minimum term, or tariff, that must be served in full in custody before the prisoner can be considered for release by the Parole Board. At present, when setting a discretionary life tariff, the sentencing judge will identify a notional determinate sentence that reflects the seriousness of the offence as well as time spent in custody on remand and the early release provisions that apply to that notional determinate sentence in order to calculate the tariff. In practice, the standard approach applied by the court is to decide what the notional determinate sentence would be for the offence committed and then calculate the tariff based on half that notional determinate sentence, reflecting the release provision requiring automatic release at the halfway point for prisoners sentenced to a standard determinate sentence.
That is no longer fit for purpose, because the Government have legislated to remove automatic halfway release for serious sexual and violent offenders serving a standard determinate sentence of seven years or more. In fact the next clause, 106, will extend that principle further to many standard determinate sentences of four years or more. That means—anomalously—that the most serious offenders given a standard determinate sentence will serve longer in prison and be released only after serving two thirds of their sentence, but the people I have just described with a discretionary life sentence will not. The Government’s proposal will align the automatic release point for serious offenders serving standard determinate sentences with the earliest possible point at which the Parole Board may direct release for those serving sentences of particular concern or extended determinate sentences, namely two thirds of the custodial term of such sentences.
For the most serious terrorist offences, through the Counter-Terrorism and Sentencing Act 2021 we brought in new provisions meaning that offenders must serve their custodial term in full. The clause will ensure that the approach to release for those serving determinate sentences for serious offences is reflected in the way in which minimum terms for those serving discretionary life sentences are calculated. They will be brought into alignment, avoiding any anomalies. Judges will, of course, retain discretion to depart from the starting point as they consider appropriate in the cases before them.
The clause will bring discretionary life sentences into line with the broader approach for dangerous offenders, so that the most serious offenders will serve longer in prison before they become eligible to be considered for release by the Parole Board, thereby ensuring that the punishment better reflects the severity of the crime. In effect, it introduces consistency between the discretionary life sentences release provisions and those we introduced in the Counter-Terrorism and Sentencing Act this year, which we are expanding in the Bill. It is a measure that brings consistency and keeps serious offenders in prison for longer. I therefore hope that the Committee will agree to the clause standing part of the Bill.
Alex Cunningham
As the Minister said, the clause will change the way in which the minimum terms of discretionary life sentences are calculated. As the law currently stands, and has stood for quite some time, discretionary life sentences are calculated at one half of what the equivalent determinate sentence would be. The clause enacts a proposal in the sentencing White Paper to change the way in which life sentences are calculated, so that they are based on two thirds of the equivalent determinate sentence rather than one half.
The Government’s rationale is set out in the explanatory notes accompanying the Bill, which say:
“This change is necessary because most serious violent and sexual offenders who receive determinate sentences—including those who may receive an extended determinate sentence—are required to serve two-thirds of their custodial term before they may be released.”
That refers, of course, to other recent changes to release arrangements that mean that certain categories of offender must now serve two thirds of their sentence, rather than half, before they can be released.
Like the previous sentencing changes, the clause will make an already complicated sentencing regime even more complex by changing the way in which sentences have long been calculated. It is somewhat ironic that the Government on the one hand claim to want to make sentencing simpler, and on the other hand make a series of reforms that do the exact opposite. I will develop that point in more detail when we come to clause 106, but let me give a broad overview of what I mean.
In advance of the publication of the sentencing White Paper in September 2020, the Lord Chancellor set out in a column for The Times—sorry, for the The Sun on Sunday, which is quite a different paper—that
“Sentences are too complicated and often confusing to the public—the very people they are supposed to protect.”
The Lord Chancellor returns to this point in his foreword to the White Paper, stating that
“The system we have today can be complex and is too often ineffectual. Victims and the public often find it difficult to understand, and have little faith that sentences are imposed with their safety sufficiently in mind. The courts can find it cumbersome and difficult to navigate, with judges’ hands too often tied in passing sentences that seem to make little sense. The new Sentencing Code is a good start in tidying up the system, however we must be mindful not just of how sentences are handed down, but also how they are put into effect.”
The Opposition agree wholeheartedly with the Lord Chancellor’s sentiment, which is why we welcome the new sentencing code with open arms and why we are a bit puzzled by some of the measures in the Bill.
I am not from a legal background, so perhaps I am missing something here. Can the Minister explain in simple terms how the myriad changes to release arrangements for certain offences will make sentencing simpler, rather than more complicated? If the Government’s objective is to keep dangerous offenders in prison for longer, why do they not simply legislate for longer custodial sentences, rather than moving the date at which prisoners are either automatically released or released by the Parole Board? Not only would it be a simpler approach, but it would ensure that offenders still serve 50% of their sentence in the community, which we know will significantly reduce their risk of reoffending. Again, this a point that I will draw on further when discussing the next clause.
The other concern we have about clause 105 is that it fails to recognise the fundamental difference between discretionary life sentences and determinate sentences. As the Howard League sets out in its briefing:
“In contrast with the determinate serious sentences, a person serving a discretionary life sentence will be liable to detention until the day he or she dies and there is no automatic release date. The blanket increase in the punitive period therefore cannot be grounded in protecting the public as that is covered by the jurisdiction of the Parole Board: it is simply a hike in the punitiveness and there is no evidence to justify this in terms of reducing long-term harm or increasing public safety.”
In other words, the Government cannot rely on the rationale that clause 105 and the extension in the way discretionary life sentences are calculated is for the purposes of public protection.
When discretionary life sentences are handed down, the offender knows that he or she will be released from prison only if the Parole Board considers it safe to do so. This is a decision made by the Parole Board, regardless of whether it is taken at the halfway point or two-thirds point of a sentence. Instead, we are inclined to agree with the Sentencing Academy, which suggests the clause is all about
“solving a problem of the Government’s own making”
as a result of previous changes to the point of automatic early release.
To wrap up, the Opposition are concerned that the clause will make an already overcomplicated sentencing regime even more complicated, contrary to the Government’s desire for simpler system. It will also have no impact at all on the decisions made by the Parole Board, which remains the ultimate decision maker as to when somebody on a discretionary life sentence is safe to be released. For those reasons, we cannot support the clause.
Question proposed, That the clause stand part of the Bill.
Police, Crime, Sentencing and Courts Bill (Thirteenth sitting)
Tuesday 15th June 2021
(2 years, 10 months ago)
Public Bill CommitteesRead Full debate Police, Crime, Sentencing and Courts Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 15 June 2021 - (15 Jun 2021)
The Committee divided: - Ayes: 8 / Noes: 6 - Question accordingly agreed to.
The Committee divided: - Ayes: 8 / Noes: 5 - Question accordingly agreed to.
The Committee divided: - Ayes: 8 / Noes: 6 - Question accordingly agreed to.
The Chair
Before we begin, I have a few preliminary reminders for the Committee. Please switch electronic devices to silent mode. No food or drink except the water provided is permitted during sittings of the Committee. I remind hon. Members to observe physical distancing. They should sit only in places that are clearly marked. It is important that Members find their seats and leave the room promptly in order to avoid delays for other Members and staff—that is not actually an issue for us because we have the room for the day. Members should wear face coverings in Committee unless they are speaking or medically exempt. Hansard colleagues would be grateful if Members emailed their speaking notes to hansardnotes@parliament.uk.
We now resume line-by-line consideration of the Bill. The selection list for today’s sittings is available in the room. I remind Members wishing to press to a Division grouped amendments or new clauses that they should indicate their intention when speaking to their amendment. I think that, before we start, there is a point of order from the shadow Minister.
Alex Cunningham (Stockton North) (Lab)
On a point of order, Sir Charles. Good morning to you. I made a small but significant and totally unintentional mistake in one of my speeches last week. In the debate relating to clause 100, I referenced the Sentencing Council and said that it had expressed concern about the reasoning behind the proposed provision. The council had not; the comments made should have been attributed to the Sentencing Academy. I apologise to both organisations for the error, and I am pleased to set the record straight.
The Chair
That was a very generous and lovely apology.
Clause 106
Increase in requisite custodial period for certain violent or sexual offenders
Question proposed, That the clause stand part of the Bill.
The Parliamentary Under-Secretary of State for the Home Department (Chris Philp)
Good morning, Sir Charles. It is, as always, a pleasure to serve under your chairmanship. Clause 106 is an extremely important clause of the Bill, because it forms a critical part of the Government’s commitment to ensuring that the most serious offenders spend more time in prison, properly reflecting the gravity of their offences, protecting the public and building confidence in our sentencing regime. It does that by abolishing the automatic halfway release point for certain serious violent or sexual offenders and instead requiring them to serve two thirds of their sentence in prison.
This builds on changes made throughout 2020. First, in February of last year, we changed the release provisions for terrorists and terrorist-connected offenders receiving a standard determinate sentence in order to ensure that they serve at least two thirds of their sentence in custody and thereafter are released only when the Parole Board is satisfied that it is safe to release them. Colleagues will recall the Bill that became the Terrorist Offenders (Restriction of Early Release) Act 2020, which we passed in a day in February of last year to prevent repeats of the Fishmongers’ Hall and Streatham attacks. In fact, the first terrorist who might otherwise have been released early was kept in prison just a few weeks after we passed that Bill. The measure was tested in the High Court last summer and found to be lawful when measured against the European convention on human rights. I thought that the Committee might appreciate an update on that.
Then, in April of last year, we laid before the House a statutory instrument—the Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2020. I will explain what that did. For the most serious sexual or violent offenders with a standard determinate sentence of more than seven years, the automatic release point was moved from half to two thirds, ensuring that those serious offenders spend longer in prison. This clause puts the provisions of that order—a statutory instrument—into primary legislation. Critically, however, it goes further and says that serious sexual offenders and certain violent offenders receiving a standard determinate sentence not just of more than seven years but of between four and seven years will also automatically spend two thirds of their sentence in custody, rather than being automatically released at the halfway point; the release at the two-thirds point will still be automatic. It applies to any sexual offence carrying a maximum life sentence, including rape. I know that rape and related sexual offences are rightly of concern to the Committee, so it is worth stressing that this clause will ensure that rapists spend longer in prison.
Hywel Williams (Arfon) (PC)
What assessment has the Minister made of the effect on the prison population, particularly in Wales, which already has the highest rate of imprisonment in western Europe with 154 prisoners per 100,000 of the population of Wales, compared with 141 per 100,000 in England? Given the possible effects of inflation on the length of sentences, what provision will he make specifically for Welsh prisons to cope with that?
Chris Philp
We have indeed made such an assessment. We have done it for the whole jurisdiction, and the steady-state impact on the prison population is 255 prisoners. I do not have a breakdown for Wales, but I estimate—this is simply my off-the-cuff estimate—that the portion of that 255 that applies to Wales might be in the range of 10 to 20 prisoners in Wales. That is just my off-the-cuff estimate, not an official figure, so it carries quite an important health warning.
On the prison population impact and prison capacity more generally, the hon. Gentleman will be aware that the Government are committed to building an extra 10,000 prison places to make sure we can cater to increased demands in the Prison Service as we make sure dangerous criminals spend longer incarcerated.
Sarah Champion (Rotherham) (Lab)
Building an extra 10,000 prison cells is very costly. Does the Minister agree that investing more in rehabilitation and preventive programmes might be a better use of the money?
Chris Philp
Of course, we do believe in rehabilitation and prevention, and a lot of work is going on in that area, but we are talking about people who have been convicted of offences such as rape and murder. On Second Reading, Members made the point about making sure that particularly sexual offenders, including rapists, spend longer in prison. There were different views on how that could be achieved, but there seemed to be broad unanimity across the House that such offenders should spend longer in prison, and the clause does exactly that. However, it in no way detracts from the importance of prevention and rehabilitation that the hon. Lady mentioned a second ago.
I should say that caught in this clause are not just sexual offenders who commit offences, including rape, with a life sentence, but also the most serious violent offenders, which includes those who commit manslaughter, attempted murder, soliciting murder, and wounding with intent to cause grievous bodily harm, so I think our constituents up and down the country will welcome the fact that these serious offenders will spend two thirds of their sentence in prison and not just a half.
Provision is also made in this clause for the two-thirds release requirement to apply to those under the age of 18 who were given a youth standard determinate sentence of seven years or more for a sexual offence with a maximum penalty of life, and for the other very serious violent offences just referred to. The changes are made by inserting new section 244ZA into the Criminal Justice Act 2003 to make the necessary provisions. The measures will ensure that the proportion of the sentence reflects the gravity of the offence committed, and are intended to address long-held concerns, both in Parliament and among the public, about the automatic halfway release for serious offenders.
The two-thirds point also aligns with the release point for offenders found to be dangerous and therefore serving an extended determinate sentence, whose eligibility for release by the Parole Board commences from the two-thirds point, so it introduces consistency and coherence into the sentencing regime as well. On that basis, I commend this very important clause to the Committee.
Alex Cunningham
Clause 106, as we have heard, follows the Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2020, which altered the automatic release point for offenders who have committed a specific sexual or violent offence. As the Minister said, the effect of the release of prisoners order was to move the automatic release point from halfway to two thirds of an eligible prisoner’s sentence, and would apply to those found guilty of specific sexual or violent offences for which the penalty is life, and who were sentenced to seven years or more in prison.
Clause 106 implements the proposal in the “A Smarter Approach to Sentencing” White Paper to extend these changes to include sentences of between four and seven years for any of the sexual offences already specified, but only to some of the specified violent offences. That raises a point of concern for the Opposition. Why does the clause apply to all the sexual offences covered by the release of prisoners order, but only some of the violent offences?
Clause 106 will apply only to manslaughter, soliciting murder, attempted murder, and wounding causing grievous bodily harm with intent. This is precisely the point that the Opposition are trying to make. First, the release of prisoners order fundamentally changed the sentencing and release regime. Now the Government propose to extend the regime, but only to some of the original offences, with the other offences remaining the same. How on earth can that do anything but confuse an already notoriously confused system? I have asked before, what is the point of the remarkable work of the Law Commission on producing a much simplified sentencing code if the Government continue to tinker with sentencing and release provisions?
It is not only the Opposition who are concerned by the direction of travel the Government are taking on sentencing complexity. After considering clause 106, the Sentencing Academy agreed that its inclusion,
“unquestionably makes sentencing more complex and less intelligible to the public. Anecdotal evidence suggests that the judiciary are already struggling in discharging their statutory duty to explain the effect of the sentence as a result of the SI 2020/158 change. This proposal will make this task more difficult and result in a greater number of errors.”
The academy goes on to express its concerns in full:
“We expressed concerns about the reforms last year and this provision exacerbates our concern. Proportionate sentencing is not well-served by a system in which identical sentence lengths have a significantly diverging impact in practice: two nine year sentences should carry the same penal weight; it should not mean six years in custody for one offence and four-and-a-half years in custody for another. The decision to exclude some violent offences from this proposal makes the system yet more perplexing: how can a seven year sentence for kidnapping justify four years and eight months in prison when a six year sentence for the same offence merits three years?”
I wonder if the Minister could explain that point to the Committee.
Let me be clear: Labour supports moves to ensure that the most serious and violent criminals receive longer sentences when there is evidence that their sentences do not match the severity of their crimes. That is why the Opposition supported the Government’s moves to introduce clause 101 to extend whole-life orders for the premeditated murder of a child; clause 102 to extend whole-life orders to those who are 18 to 20 and have committed particularly heinous crimes; and clause 103 to increase the starting points for murder committed as a child. However, we cannot support a series of yet more changes to sentencing and release, which will only further confuse the system and make the task of members of the judiciary even more difficult, resulting in a greater number of sentencing errors.
The Prison Reform Trust makes a good point on the Government’s proposed changes to sentencing and release when it says,
“that only serves to demonstrate the complexity of sentencing law in this area, and the extent to which the government adds to that complexity every time it responds to an individual crime by promising a change in sentencing law.”
If the Government want to ensure that serious violent and sex offenders spend longer in prison, they can easily do so simply by increasing the maximum sentence length for the relevant offences. Taking that route rather than what the Sentencing Academy describes as,
“sentence inflation via the back door”
would not lead to judges being confused and making sentencing errors. Moreover, it would not lead to the public being confused and losing faith in our sentencing system. Taking that route would also mean that prisoners spend longer in jail without having to lose out on the rehabilitative properties of spending half their sentence in the community.
That brings me to another fundamental concern that the Opposition have with clause 106. By requiring an offender to spend additional time in prison, the amount of time that they would spend in the community under supervision would decrease significantly. As the Howard League notes, we know that reducing
“the amount of time which people who have committed serious offences spend under the supervision of probation services in the community…is likely to undermine public safety rather than helping to keep victims and the public safe. Though there is no single model of probation supervision, a rapid evidence review across jurisdictions and models suggests that community supervision in itself reduces reoffending—unlike time in prison, which increases reoffending rates.”
To sum up, the Opposition agree with the Government that where evidence exists that sentences do not properly reflect the severity of the crimes committed, sentencing reform should absolutely be an option. None the less, sentencing reform should be properly considered and guided by the principles set out by the Lord Chancellor in his foreword to the White Paper. Sentences should make sense to victims, members of the judiciary and legal practitioners. More importantly, sentences should make sense to the general public. Only when the general public and victims of crime understand our sentencing regime will they have full faith in it. We believe clause 106 goes against those principles, and for that reason we cannot support it.
The Chair
Are there any colleagues who would like to participate before I call the Minister? If not, I call the Minister.
Chris Philp
I feel bound to reply to some of the points that the shadow Minister has just made. First, he said that the provisions make sentencing more complicated and that it will be harder for the judiciary to understand. I will pass over the implied slight on the judiciary’s ability to absorb complicated sentencing, but the measures relate exclusively to release provisions; they make no changes to the way that sentencing works. As such, this does not change anything a judge will do in passing sentence. The release decisions, and the administration of that, are obviously done by the Prison Service and the National Probation Service down the track. The release provisions have nothing at all to do with sentencing, so let me assure the shadow Minister on that point.
Secondly, the shadow Minister said that if we want people to spend longer in prison, we should increase the maximum sentence. By definition, the way that the provisions are constructed mean that they relate only to offences where the maximum sentence is life. It is not possible to increase a sentence beyond life—life already is the maximum. The only way to increase the sentencing is for the Sentencing Council to change its guidelines, and as the shadow Minister knows, the Sentencing Council is independent of Government and is chaired by Lord Justice Holroyde. However, I note in passing that average sentence lengths passed down by judges for serious offences have been increasing. Since 2010—a date that I choose arbitrarily—the average sentence for rape has gone up by about two and a half years, so judges have chosen to increase sentence lengths in the past 10 years.
The shadow Minister asked why the selection of violent offences with sentences between four and seven years is narrower than those above seven years. To be completely clear, the list of sexual offences is the same: between four and seven years, and seven-plus. I think the shadow Minister did say that, but I repeat it for clarity. The reason is that we are trying to calibrate the provisions in order to target the most serious offences, which include all serious violent and sexual offences where the sentence is more than seven years, and all serious sexual offences where the sentence is between four and seven years, but just that smaller selection of violent offences, such as manslaughter and so on, which we talked about earlier. We are attempting to calibrate this to the most serious offences.
Finally, the shadow Minister asked about public perception. Over the past 10 or 20 years, the public have been both confused and angered that a court hands down a sentence to a very serious offender—we are talking about sentences that carry a maximum of life, such as manslaughter and rape—and the offender then walks out halfway through a sentence, or less than halfway when time on remand in taken into account. The public are angered by that. In fact, as a Minister in the Ministry of Justice, I get quite a lot of correspondence from members of the public who are angry about serious offenders getting released inappropriately early, as they see it. I agree, which is why we will ensure that the most serious offenders spend longer in prison. If the Opposition vote against this measure, as it would appear they are about to do, they are voting to say that they do not think those serious offenders should spend longer in prison. They are voting for people who have committed manslaughter or rape to be released from prison earlier than would be the case if the clause were passed. I think the public expect us to do something different, and I ask the Opposition to think again—particularly given that, on Second Reading, both sides of the House seemed to be arguing that people who commit very serious offences, including rape, should spend longer in prison. The clause does exactly that. On that basis, I commend it to the Committee.
Chris Philp
Clause 107 makes some changes to SOPC—sentences for offenders of particular concern—essentially to tidy up an anomaly that arose from the changes made last year. As Members will recall, under the changes we made last year to terrorism sentencing, when a terrorist offender had a SOPC sentence the release point was moved to two thirds, at which point they became eligible for consideration for release by the Parole Board. However, two child sexual offences also carry a mandatory SOPC sentence where there are different release provisions.
In this clause, we are simply making a change to make the release provisions for those two child sex offences in relation to the SOPC sentence the same as those for the terrorist sentence—that is to say, they will serve two thirds, following which they will be eligible for consideration for release by the Parole Board. That makes the sentence the same as for the other terrorism SOPC offences and the same as the extended determinate sentences. In his last speech, the shadow Minister spoke in a spirit of simplification and consistency, and this change is consistent with that principle. I commend the clause to the Committee.
Alex Cunningham
The Minister likes to have his little digs; I think he quite enjoys them. I assure the Committee and everybody else that I have full confidence in the judiciary. If the Minister had as much confidence as I do, perhaps he would not be mucking about so much with the system and would leave the judiciary to sentence within the regime that exists.
As we have heard, as with clause 106 the purpose of clause 107 is to increase the proportion of the time certain offenders spend their sentence in jail. In this case, we are talking about offenders of particular concern, meaning those who have been convicted of one or two child sexual offences or certain terrorist offences. As set out by the Minister, as things currently stand different release arrangements apply to offenders of particular concern convicted of terror offences and those convicted of child sexual offences.
Clause 107 would change that by ensuring that all offenders of particular concern would serve two thirds rather than one half of their sentence in prison, before applying to the Parole Board to be released. Given that I have spoken extensively on the same matter, or very similar matters, in clauses 105 and 106, this speech will be very short. For the reasons I set out in relation to those clauses, we cannot support clause 107. Although the Opposition agree that those who have committed the most serious violent and sexual offences should spend longer in prison, we do not believe that the method set out in clauses 105 to 107 is the best vehicle to meet this policy objective.
The Opposition cannot support more changes to the sentencing and release regimes. Contrary to what the Minister says, that will further complicate our sentencing system and risk victims of crime and members of the public losing faith in it. If the Government want to ensure that offenders spend longer in prison, where the evidence base suggests they should, we believe there are better ways of achieving that goal.
Chris Philp
I have nothing to add, except one point that I should have made in my earlier speech. If someone with a SOPC serves their entire sentence in custody, they get a year on licence after release. That is an important point to add to my previous remarks, but I have nothing further to add to my speech on clause 106: the same points apply.
-Question put, That the clause stand part of the Bill.
Chris Philp
Sorry, Sir Charles; I was momentarily moved to speechlessness by the fact that the Opposition have just voted to let child rapists out of jail earlier than the clause proposes.
Chris Philp
Let us move on to clause 108, which relates to a new power for the Secretary of State to prevent the automatic release of offenders serving a standard determinate sentence, where release is ordinarily automatic, and instead refer them to the Parole Board in certain, very limited circumstances.
With a standard determinate sentence at the moment, there is automatic release at either the halfway point or, for more serious offences, at the two-thirds point, as per clauses 105 and 106. Clause 108 creates a new power to allow the Secretary of State to refer a prisoner who is in custody and assessed as dangerous to the Parole Board, to decide whether or not they are safe to release. Prisoners who are serving a standard determinate sentence, for any offence, who have become dangerous or who are identified as being dangerous while they are in prison get this referral.
To be clear, we are not creating a new kind of indeterminate sentence like the old imprisonment for public protection sentences, created in 2003, in which the sentence could carry on forever if someone were considered to be dangerous. The maximum sentence originally passed by the court on conviction and sentencing still applies.
We are not overriding the sentence of the court, but we are saying that if an offender is identified as dangerous they may continue to serve their determinate sentence until its end, unless and until the Parole Board, after the release point, decides that they are safe to release. It means that if someone becomes dangerous, they do not automatically get released early.
Sarah Champion
The Minister will see from an upcoming amendment that I am interested in this clause. Can he give some clarification? Will he define “dangerous”? I assume that is within the prison context, as opposed to the crime being served for.
Will the Minister give some details on when and why the Secretary of State might intervene? At the moment, depending on the Parole Board’s decision, the Secretary of State already has 21 days to intervene. Will he explain what the clause will bring to the table?
Chris Philp
I am happy to answer all those questions, which are good questions. The 21-days provision that allows the Parole Board to think again has nothing to do with this; it is completely separate. It is a live issue in the terrible Pitchfork case, which Members will be aware of.
The provision in which the Parole Board takes a decision to release and the Secretary of State may ask it to think again, within 21 days, applies to any Parole Board release and is a matter currently being considered. That is wholly separate from this provision. It relates to any Parole Board release decision and was prompted by the awful Worboys case two or three years ago.
Here we are talking about where a prisoner is serving a standard determinate sentence and would ordinarily be released automatically without any Parole Board involvement at all, and the Secretary of State says, “Well, I think actually they are now dangerous”—I will come on to what that means in a minute—“and instead of automatic release, can the Parole Board look at the case and decide whether they are suitable for release, once their release point is passed?” That is different from the 21-days reconsideration.
The hon. Member for Rotherham asked for the definition of becoming dangerous and whether it means dangerous in a prison context. The answer is no. It does not mean dangerous in a prison context; it means dangerous to the public. One might ask what “dangerous to the public” means. The definition of “dangerous” in this context has a high threshold—we anticipate this provision will be used extremely rarely; it is not going to be a commonly used provision. It is that an offender is at “significant risk” of causing “serious harm” to the public by committing murder or one of the serious offences listed in schedule 18 of the Sentencing Act 2020, such as manslaughter, rape or terrorist offences, and that the risk cannot be sufficiently managed through the use of licence conditions.
If a referral is made, the Parole Board will consider it. It may say, “We will release them anyway” or, “We think there is a danger; we are going to keep them inside.” It can only keep them inside prison until the end of the original sentence that the court handed down.
I will give an example not caught by our new provisions. To take the example the shadow Minister used, let us say there is a six-year sentence for kidnapping. Currently, there would ordinarily be automatic release after three years. If for some reason there is evidence that the person who has been committed for kidnap might commit a terrorist offence or might kill someone, the Secretary of State can refer and the Parole Board will then consider, “Are they dangerous? Can we release them?” If it decides to keep them in prison, they can be kept in prison up to the six years of the original sentence, but no later. During the final three-year period in my example, the Parole Board will look at the case periodically.
If, after reference to the Parole Board, the prisoner thinks there has been an unreasonable delay—“I should have been released after three years, but it is now three years and six months and no one has looked at it; this is unreasonable”—they can refer the matter to the High Court to get it sorted out. There is a safety mechanism so that there cannot be an unreasonable delay.
Alex Cunningham
Will the Minister confirm something? In the event of a dangerous person—a radicalised person—being required to serve their full sentence, will they be released into the community without any supervision or licence conditions when they get to the end of the sentence?
Chris Philp
That already happens, of course, with extended determinate sentences, where it is possible that the person will spend all their sentence in prison. If the Parole Board does that, there is no subsequent period on licence—unlike the SOPC that we just talked about, where there is a minimum of one year on licence afterwards.
Of course, when the Parole Board makes decisions about whether to release in the final half or third of a sentence, it will be aware of the point that the shadow Minister made. If it thinks that public safety is best served by releasing a little bit before the end of the sentence to allow that one year, or whatever it may be, on licence at the end, it is within its power to consider and do that—so instead of the individual serving all the sentence inside, there would be a bit of release on licence at the end. The Parole Board can think about that at the end if it chooses to.
Alex Cunningham
But surely the point remains that this person, who is said to be a danger to the public although there may not be sufficient evidence to convict him of another charge, will be released into the community at the end of their sentence—after six years, 10 years or whatever—and will still be the same dangerous person he was thought to be by the Lord Chancellor, through the Parole Board, when he was in prison.
Chris Philp
Under ECHR and common-law provisions, we cannot extend a sentence beyond what was handed down by the court. Of course, that was the big problem with the old IPP sentences, where people could stay in prison forever; indeed, there are still people in prison under IPP sentences.
We have to work within the envelope—within the maximum sentence handed down by the court originally for the offence originally committed. The judgment is essentially to be exercised by the Parole Board on how best to protect the public, by striking a balance. Do we leave people in prison for the whole time or do we release them a bit early with a period on licence? That is a judgment that the Parole Board has to make to best protect the public. In some cases, if it thinks that the risk is very high, it may consider that the whole term in prison is the best way.
Take the example of the six years. The Parole Board may say, “Well, six years in prison is better than five years in prison followed by one year on licence”. It is a judgment that the Parole Board must make. We cannot reasonably go beyond that six years, because that would be potentially unjust: we would be punishing someone and imposing a sentence that was longer than that originally handed down by the court for the offence of which they were convicted. That would be contrary to natural justice, common law and ECHR provisions.
That is why the measure is designed as it is, and I hope that makes sense.
Maria Eagle (Garston and Halewood) (Lab)
The old IPP sentences had their problems; they were much too widely used and were not originally intended to be that widely used. There was an issue about them, certainly. However, would not that kind of sentence—one that was indeterminate but able to be cut short when the individual concerned could demonstrate that they were no longer dangerous—be the answer in some of the kinds of tangents that the Minister is talking about?
The Minister seems to be tying himself in knots, to say, “Well, it’s going to be either three years or six years, but we all know that the person is coming out at the end”. Originally, IPP sentences were legislated for to deal with this very issue, but of course they ended up being too widely used. Is there not a better way of reintroducing some kind of IPP sentences that would enable greater safety but be much more narrowly used?
Chris Philp
Can I clarify whether the hon. Member is talking about potentially indeterminate sentences?
Chris Philp
She is. Okay.
We debated this issue internally, when we were designing the clause. Clearly, one of the options considered was reintroducing some form of IPP sentence, which is, as the hon. Lady said, indeterminate, meaning that it could go on forever. That was not done because there is potentially an inherent injustice. We have been using the example of kidnap, so let us keep using it. If someone commits that offence and the judge decides that six years is the right sentence, to then say that that person, having been given a fixed sentence, could spend the rest of their life in prison because of a risk that they might offend later—they had not committed a more serious offence; it is just that they might—struck us as being inherently unjust.
Do hon. Members remember the film “Minority Report”, where people were incarcerated because it was judged that they might commit an offence in the future? If we get into the territory of imposing a penalty, which could be imprisonment forever, because someone might commit an offence rather than because they actually have committed an offence, we are straying into potentially slightly dangerous territory.
Maria Eagle
I was not suggesting that; I was not suggesting that people who have been given determinate sentences should then arbitrarily suddenly find themselves with an indeterminate sentence. What I was suggesting was that perhaps there are a small number of cases for which it would be appropriate to reintroduce the possibility for judges to give indeterminate sentences again. The problem with the IPP was that it was much too widely used; I think the wording was too broad and it was much too widely used by sentencers. But the purpose of it was to deal with just these cases that the Minister is talking about.
I am not suggesting that somebody who has been given a determinate sentence should then arbitrarily be given an indeterminate sentence. However, if an indeterminate sentence for public protection was available in very narrow circumstances to judges, would that not fill this gap in a more coherent way than the way in which the Minister is trying to do it?
Chris Philp
Clearly, if the original offence for which the offender is sentenced is one of the more serious ones that we have been talking about—for example, even offences that we consider to be moderately serious, such as committing grievous bodily harm with intent, have life sentences—the judge can, if he or she chooses, impose a life sentence and set a tariff for consideration for release, so there is flexibility. We are talking about cases where the original offence is not one of those very serious ones that has a life sentence, but one that has a fixed determinate sentence. I think the hon. Member is asking if we can give the judge the power to say that, even though the original offence has a fixed maximum sentence of, for example, only five years, they will override that and say, “Actually, for some reason that is not to do with the original offence, but is just to do with some other assessment of public risk, I will give you an indeterminate sentence.” I think that is the question.
Maria Eagle
Not quite. I was suggesting that perhaps the Minister should legislate for indeterminate sentences in particular circumstances and give the judge that discretion, but in a much narrower band of offences than those that ended up getting indeterminate sentences in the past. Indeterminate sentences have all been abolished now—they cannot be used. If I might say so, it seems that the Minister is trying to deal with the very issue that they were introduced to deal with in a very convoluted manner.
Chris Philp
No, we are trying to do deal with the issue of prisoners who become dangerous, or who clearly pose a danger to the public, while they are in prison, but without doing what IPPs did. IPPs were abolished for a reason in 2012: people who committed a particular offence with a fixed sentence of, say, five years could end up in prison forever. As I have said, for more serious offenders the judge has the option of a life sentence, but we do not think it is right that someone could commit an offence with a fixed sentence, such as five years, and end up in prison for life, not for an offence they have committed, but for one that they might commit in the future.
This is the best way of balancing that public protection consideration against natural justice—that the punishment should fit the crime—and avoid a “Minority report”-type situation where someone is incarcerated for a crime that they may commit in the future, but have not yet committed. This strikes the right balance. We stay within the envelope of the sentence handed down by the judge. The judge has the option in serious cases to hand down a life sentence already, but we have just changed the release provisions.
We have debated the clause relatively extensively, Sir Charles. It strikes the right balance between natural justice and protecting the public. On that basis, I commend it to the Committee.
Alex Cunningham
As we have heard, clause 108 would create a new power to allow the Lord Chancellor to refer a prisoner to the Parole Board who would otherwise be eligible for automatic release, if he believes that they have become a significant danger to the public while in prison. Rather than being freed at the halfway or two-thirds point of a sentence, they would be released only if the Parole Board thought it was safe. If the Parole Board did not believe it was safe, they would continue to serve the rest of their sentence in prison, unless the Parole Board consequently changed its mind. As the Minister has confirmed, if they served the whole of their sentence in prison, they would then be released into the community without any licence conditions or supervision.
It is safe to say that the Opposition have several serious concerns with clause 108, and largely agree with the Prison Reform Trust in believing that
“this clause creates a constitutional and legal mess”.
Let us start with the basics. As is set out in the explanatory notes to the Bill, this is a brand new power, the beneficiary of whom is the Lord Chancellor.
Chris Philp
I say with great respect to the shadow Minister that the beneficiary of this clause is not the Lord Chancellor, but the general public, who might be protected from dangerous offenders who would otherwise be released.
Alex Cunningham
The Lord Chancellor is the beneficiary, because he is given a new power to change things and refer.
The effect of the clause is that, for the first time for these types of prisoners, the Lord Chancellor will have the power effectively to refer a prisoner to have their sentence conditions varied, should the Parole Board agree. We all understand that. For example, if a prisoner is sentenced to five years for shoplifting, under current legislation they would become eligible to be automatically released on licence at the halfway point of their sentence. Under the new provision, if the Lord Chancellor believes that the shoplifter had become radicalised in prison, he could refer the prisoner to the Parole Board, which could prevent his automatic release. That would, of course, be without the prisoner ever having been charged or found guilty of any further offence while in prison.
That raises two fundamental questions. First, is it right or proper for the Lord Chancellor to be involved in the management of individual prisoners? How will he make the decision to refer somebody to the Parole Board? What criteria will be used for the Lord Chancellor to make such a referral decision? Secondly, is this not a case of punishment without due process, and therefore unlawful?
On the first point, I note the remarks of the Sentencing Academy on clause 108:
“giving the Secretary of State for Justice the power to intervene in the management of an individual offender’s sentence gives rise to concern about undue political interference in the sentences of individual offenders.”
I accept that the final decision rests with the Parole Board. That raises the all-important question of whether the Secretary of State for Justice, who is after all a member of the Government, is really the right person to decide who should be referred to the Parole Board in a prison that could be hundreds of miles away.
That is by no means the only question provoked by clause 108, as currently drafted. The questions go on and on. Perhaps the Minister will be good enough to provide clarity on at least the following points today. What evidential tests will have to be satisfied for the Secretary of State to make a referral to the Parole Board, and who will be responsible for collecting that evidence? What standard of proof will the Secretary of State use when deciding to make a referral or not? Will he have to be satisfied that someone has become a significant danger on the balance of probabilities, or beyond reasonable doubt? If the Secretary of State is so concerned that someone has become radicalised or poses a serious threat, why not simply take that person to court and allow a judge to consider the evidence? Are the Government simply trying to avoid the inconvenience of having to provide evidence and have it tested in open court? Is it not a dangerous precedent for the Secretary of State to become involved in determinations made about individual cases?
That brings me to my next concern. What happens to a prisoner who, after being referred by the Secretary of State to the Parole Board, is refused their automatic release? As I understand it, if the offender is denied automatic release, he or she could spend the rest of their custodial sentence in prison, rather than some of it on licence in the community. Those prisoners will be released before the end of their sentence only if and when the Parole Board authorises it.
That raises two further concerns. First, it would create what Jonathan Hall, the independent reviewer of terrorism legislation, has described as a “cliff-edge effect”, which is where an offender who has specifically been identified as being a significant danger to the public while in prison spends their entire sentence in custody and is released into the community without any licence or monitoring conditions. Let us think about a possible scenario. A prisoner has been convicted for non-terrorist or non-violent crime and is sentenced in court to, say, five years. They are specifically told by the court that they can expect to be automatically released from prison at the halfway point of their sentence—in that case, two and a half years. Instead, they receive the news that the Secretary of State has reason to believe that they have become a danger to society while in prison. The Parole Board agrees, and their sentence is retrospectively changed so that they can spend the whole sentence in prison.
I am sure the Minister will agree that that offender would have some right to be angry with the criminal justice system and society at large. They would then be released, harbouring that anger, without any licence conditions or supervision. Does the Minister not see what the consequences of that could be? Would it not be better simply to collect any evidence and allow a court to come to a determination? Surely, if the evidence of what is effectively an offence exists, the person should be charged and sentenced for that offence.
During the evidence session on 18 May, the Minister tried to convince the Committee that clause 108 would not create that cliff-edge effect by indicating that if the authorities were particularly concerned about an individual offender, the Home Secretary could impose a terrorism prevention and investigation measure on them. However, that excuse simply does not stack up. As Jonathan Hall, QC, pointed out, TPIMs are extremely resource-intensive and very rarely used, especially in these circumstances. As the Minister will be aware, for each of the three-month periods between 1 December 2018 and 30 November 2019, only three to five TPIMs were in place nationally.
Sarah Champion
It was not my intention to make a speech on this clause, but more questions are being raised than answered, and I hope that the Minister will be able to answer a few of them.
I share the concerns raised by my hon. Friend the Member for Stockton North, and there are many questions, but I have always had a problem with the idea of someone being given a sentence and serving only a third or two thirds of it. I would much rather that it were clear that a sentence was for this amount of time in prison and that amount of time under licence in the community, because I think that would give clarity. My concern about the clause is that it almost creates a hierarchy of sentencing, which I find confusing.
I know well only the behaviour of sexual offenders, and I am yet to find any form of rehabilitation or punishment that effectively changes their behaviour, so I could argue persuasively here that they will always be a danger and that there is always a potential risk. I also believe, however, that we need a justice system that is fair and transparent so that we can follow it, and I am not sure that the clause would allow us to do that. I am concerned that if someone is released at the end of their sentence after serving a full term, the probation, rehabilitation and limits that a licence would put around them might not be there, meaning that their transition into the community is abrupt and does not have the level of support that is needed to curb some people’s behaviour.
I am concerned that the Minister did not once mention whether victims would be consulted. My amendment 145 deals with that. Who could be better than victims and survivors to say whether a person is a danger and to influence the decision of the Lord Chancellor? I am also concerned that there may be subjectivity in decisions made by this Lord Chancellor and future Lord Chancellors—that cannot be allowed to happen. I really hope that the Minister will give some reassurances on the points that I have raised, because at the moment the clause would not be a successful one.
Hywel Williams
I want to raise one particular point. Is the Minister aware of the Welsh Government’s recently published race equality action plan, which states its commitment to developing a race equality delivery plan that will address the over-representation of black, Asian and minority ethnic people in the criminal justice system? Indeed, in Wales, more black and minority ethnic people are in prison than elsewhere in the United Kingdom. Does he share my concern that this and other clauses might militate against the policy of the Senedd in Cardiff, a legislative public body that has been democratically elected?
Chris Philp
I will try briefly to respond to some of the points raised by Opposition Members in relation to clause 108.
First, on whether the clause somehow infringes natural justice or the ECHR, or imposes a penalty without due process, as the shadow Minister put it, I can categorically say that it does not, because under no circumstances can anyone spend a longer period in prison than the original sentence handed down by the judge. The clause relates to the administration of the release provisions. It is a long-established legal principle that the administration of a sentence—whether it is spent inside or outside prison, for example—is a matter that can be varied in the course of the sentence being served.
This matter was tested in the courts relatively recently when we passed the Terrorist Offenders (Restriction of Early Release) Act 2020. The very first person who was effectively kept in prison longer than they ordinarily would have been, because their release point was basically moved by that Act, went to the High Court and tried to make the case that that was an infringement of their rights because they thought they were going to get released automatically at two thirds, but were instead referred to the Parole Board, which did not let them out. Because of TORA, that has been tested in the High Court and found to be lawful—that is to say, the administration of the sentence can be varied.
The reason we have gone no further than that and have said that someone cannot be kept in prison for longer than the original sentence—the hon. Member for Garston and Halewood was probing on this in her interventions—was that we think that would infringe the principle of natural justice. The shadow Minister questions whether we have gone too far and the hon. Member for Garston and Halewood thinks we have not gone far enough, which might suggest that we have landed in around the right place.
There was then the question from the shadow Minister on the cliff edge issue: if someone serves all of their sentence in prison, they then spend no time on licence, by definition. That does, of course, apply to any of the existing extended determinate sentences if the Parole Board decide to keep the prisoner inside prison for the whole of their sentence. The potential for the cliff edge does exist, but when deciding whether to release early the Parole Board can, of course, take into account whether the public are better served by the whole sentence being spent in prison, or most of it in prison and a bit of licence at the end. In no sense are the public any less safe if the prisoner spends all of the sentence in prison, given that the sentence is a maximum. The prisoner is in prison, clearly, and cannot commit an offence during that period.
On rehabilitation, it can of course take place, it does take place, and it should take place in prison as much as in the community. Significant resources are being invested in that rehabilitation process in prison, led by the Under-Secretary of State for Justice, my hon. Friend the Member for Cheltenham (Alex Chalk).
On the matter of the propriety of the Lord Chancellor making the referral, as raised by the shadow Minister and by the hon. Member for Rotherham, the power is the power of referral. The Secretary of State for Justice, the Lord Chancellor, is not making any final decision himself or herself about release, and is simply referring a prisoner to the Parole Board to make that determination and that decision. That does not constitute undue political interference in the process.
Chris Philp
I am anxious to make progress, but I will take an intervention.
Alex Cunningham
I am grateful to the Minister for giving way. For me, the issue is the basis on which the Lord Chancellor makes the decision to refer. What evidence test is used and who gathers that particular evidence?
Chris Philp
Most likely, as a matter of practice, that would be the prison governor or prison authorities who see behaviour of concern, and might draw the matter to the attention of the Ministry of Justice and the Secretary of State.
The shadow minister asked what test was applied. The test is whether there is a significant risk of serious harm to the public by the offender potentially committing a serious offence, such as murder, in the future, as listed in section 18 of the Sentencing Act 2020, and that the risk cannot be sufficiently managed through the use of licence conditions. That is the test that will be applied by those making decisions, but ultimately the decision is for the Parole Board.
The concept of the Parole Board making a discretionary decision about whether to release already exists, and has done for years. Currently it exists in the contest of extended determinate sentences, and in the past it existed—in theory at least—for every single sentence passed. It already happens for thousands and thousands of extended determinate sentences, so what is proposed here is not a radical departure from current practice for extended determinate sentences, nor indeed for people on a life sentence with a tariff. The referral process can add to the criteria taken into account for those offenders. We would expect that to involve small numbers.
In answer to the issue relating to Wales raised by the hon. Member for Arfon, we are expecting the numbers to be extremely low. It will not have a significant impact on overall numbers. It is, mercifully, pretty rare for that sort of evidence to come to light. If the evidence is at the level that it merits prosecution—planning, preparing or inciting an offence, which was asked about—obviously prosecution is the first option. Prosecution for the offence will always be the first option, but if we cannot establish that an offence has been committed to the required criminal standard, a Parole Board referral is the next best thing up to the maximum sentence, but no further. I hope that address the questions—
Alex Cunningham
I asked the Minister to address the issue of the number of TPIMs likely to be applied in the event of somebody considered to be dangerous when leaving prison.
Chris Philp
I cannot speculate on what may happen in the future. The shadow Minister pointed out that the number of TPIMs in use is pretty small and that is most certainly true. Equally, the number of people likely to be referred in that way will be small, albeit likely to be larger than the number of TPIMs. As I said, there is the option for the Parole Board not to have the person serve the full sentence but to have a little bit at the end served on licence. There is that option, as well as the TPIM, plus the option for the police and security services to keep people under observation more generally, if they are concerned. I hope that answers the point.
Alex Cunningham
The Minister has given a full response to some of the issues I raised but not a sufficient one. I am worried about the evidential test in relation to this matter. The Minister said if there is sufficient evidence for a prosecution while the person remains in prison, there will be a prosecution, but if that evidence does not meet a criminal test, there can be no prosecution and this legislation will be relied on to retain the person in prison following a referral to the Parole Board. We remain very concerned about that and about the standard of proof, which we also talked about.
Ultimately, this issue is about how prisoners are managed in the longer term and their rehabilitation. The fact remains that someone who is considered dangerous, though not dangerous enough to be prosecuted, can be released into the community at the end of their sentence without any supervision or conditions. I accept that the Minister says the security services or police might keep an eye on them. That is insufficient if somebody is considered to be so dangerous. On that basis, we still oppose the clause.
Question put, That the clause stand part of the Bill.
The Chair
Before we move on, I remind the Committee that it was notified to the Chair that the Whips wish to get to clause 138 by close of play today. We are moving at glacial pace. I know these are important matters but, if we continue to move at that pace, the Whips may want to recalibrate their lofty ambitions over lunch.
Clause 109
Power to make provision for reconsideration and setting aside of Parole Board decisions
Sarah Champion
I beg to move amendment 145, in clause 109, page 98, line 41, at beginning insert—
‘(1) In subsection (3) of section 239 of the Criminal Justice Act 2003 (the Parole Board), after 3(b) insert—
“(c) the views of the victim or victims of the crime to which the case relates””
This amendment would amend the Criminal Justice Act 2003 to ensure victims/survivors are consulted in parole decisions which will affect them.
I have tabled the amendment because two survivors have raised this as an issue with me this year. I have briefly spoken to the Minister because I am not sure that the amendment will achieve the job I hope it will. By raising it, I hope the Minister will work with me to come up with a solution, because we have a real problem here.
The amendment aims to amend the Criminal Justice Act 2003, to ensure that victims and survivors are consulted on parole decisions that affect them. Currently, victims of crime, such as child abuse, can submit a victim impact statement before it is decided whether the abuser will receive parole. Victims should be informed when their abuser is released from prison or is on parole. However, too often that process is not carried out and victims are unaware that their abuser has been released from prison, or has been moved to a different category of prison.
The all-party parliamentary group for adult survivors of childhood sexual abuse found in its survey that as many as 75% of victims are not informed about their perpetrator being released on parole. One survivor who contributed to the report said:
“I found out my abuser was living nearby. In a town I visited regularly with my children for their sports club. And nobody bothered to inform me. I found this completely unacceptable.”
The shock and fear of finding out unexpectedly can be incredibly distressing for victims. Another survivor said:
“I was petrified because they gave him my name and all he’s got to do is look on the electoral roll and he could find me.”
Including victims and survivors in the parole decision-making process would let them understand how and why decisions are made. In discussion of the previous clause, the Minister presented an argument around the word “dangerous” and what makes an offender dangerous. Who better to feed in that information to the Parole Board’s decisions or the Lord Chancellor’s decisions than the victims and survivors themselves? Furthermore, allowing survivors to contribute to the process would ensure their voice is heard and the terror they have experienced in the past will not be relived—if they are listened to.
My amendment would ensure the Parole Board must consult with the victim during any decisions that would give recommendations resulting in parole for the offender. It would amend the Criminal Justice Act 2003, so the Parole Board must take account of the views of the person to whom the case is related. If it becomes a legal necessity for the Parole Board to consult with the victim, the potential for them to not be informed would not be an issue.
In 2019, the Government pledged to allow victims into parole hearings and, in 2020, they also consulted on making some parole hearings open to victims. Both of those followed the Worboys case, which exposed the failures of the parole process. At the time, the Government said they wanted to increase survivors’ ability to challenge release decisions if they felt the decision was flawed. That would save time and resources by consulting with the victim before the decision is made. The current system is not working for victims. We need a justice system that puts victims at the heart of its decisions.
This is not me just making a speech. As I said earlier, this is because I have two cases at the moment where the parole process has completely failed. Both relate to Rotherham survivors of past historic child sexual exploitation, and the first case is a survivor who I will call Elizabeth. The perpetrator was sentenced to nine years for two counts of rape of a girl under 16 in 2018. They were transferred after two and a half years to a category D prison, which we would view as an open prison. They were also told they could have day release but for covid-19.
The victim had signed up to the victim contact scheme, which should have ensured she was notified and provided with information about key stages in the offender’s sentence, including for those cases where release falls to the Parole Board. She should have been consulted on the timing of the Parole Board’s review and whether the offender was released or moved to open conditions. All of that should have been relayed to her. The victim should have been notified that the transfer to open conditions was being considered, and then she should have been told of the outcome. At the moment, victims have only a right of notification, and notification took place, in this case, after the decision was made.
I raised the issue with the Minister, who responded, explaining the legal position that, in accordance with legislation at the time, the offender is required to serve half of the sentence in custody, with the remaining period served in the community on licence and subject to supervision by the National Probation Service. During the custodial period, offenders must be held in the lowest security conditions necessary to manage the safety of their identified risk of escape or absconding, the risk of harm to the public and the risk of any serious disorder. Those are the considerations, not the impact on the victims.
The errors in the case, as identified by the Minister, were that the prison is responsible for managing a case. The prison offender manager should have contacted the victim liaison officer directly to let them know that the move to open conditions was under consideration, but they failed to do so. The senior manager has spoken to the staff at the prison, and a reminder has been sent to all of the staff reminding them to follow the correct procedure. The requirement has been raised with the National Probation Service regional implementation managers to take forward and ensure other prisons follow the correct process.
I will quote from the letter from the Solicitor General dated 21 October 2020.
“The reason for informing victims before the decision is taken, is to ensure that victims are kept updated with developments, so that a move to open conditions does not come as a total shock, and also to ensure the prison is aware of any exclusion zones which the victim has requested. This can help to inform which open prison an offender is moved to. I should like to underline that the Government shares the concerns about offenders who commit very serious crimes, and yet are released automatically at the halfway point in their sentence. We have taken action to address this through legislation we introduced earlier this year. We are committed to ensure that serious offenders spend the time in prison that reflects the gravity of their crimes and intend to bring forward proposals to further strengthen the law in this area”—
the Bill that we are all serving on.
So we got an apology, commitments and managers and staff spoken to. It was never going to happen again, and then, lo and behold, two months later, I got a near identical case—case B. The perpetrator was sentenced to nine years on three counts of sexual activity with a child in 2018. The offender was transferred to a category D prison in February 2021—again, two and a half years after the sentence—but the victim was not notified until April, three months after the offender was moved to a category D prison. Again, the victim was signed up to the victim contact scheme, but was not notified until after the transfer had taken place.
Again, I contacted the Minister, and in January 2021 the prison offender manager told the victim liaison officer that the offender had been assessed as suitable for open conditions in October and that an open prison had confirmed they would accept the offender, but the date of transfer had not been finalised. The POM should then have informed the victim liaison officer when the open conditions were considered, not just about the decision. Once the victim liaison officer was notified, the victim should have been notified, but that did not happen. The victim liaison officer asked to be notified when the transfer had taken place, but the prison, whose responsibility this was, failed to inform her. The victim liaison officer became aware themselves only in April when the community offender manager made inquiries about the conditions that the victim would wish to request for temporary release of the prisoner who raped her three times when she was a child.
Something is going horribly wrong. We have a system in which, twice in six months, victims of the most serious crime have been let down by the state. The system that the Minister currently has in place is not working, so how can we make sure that this does not keep on happening again and again? I am one MP and I have had two cases in the past six months, so it concerns me that this is happening all over the country, but survivors would not think to go to their MP to get it raised. The transfer of offenders guilty of serious offences to open conditions after just a quarter of their sentence is deeply wrong. The thought of an offender being back in the community is deeply traumatising for victims who have already been through both the crime and also the ordeal of a trial only comparatively recently. Notification is vital, as should be consultation. However, consultation is not offered and the system for notification is clearly dysfunctional.
As I said to the Minister, I am not sure that my amendment is the correct amendment, but I really need some reassurances to make sure that victims are both notified and consulted. To refer back to the previous clause, how are we meant to know whether an offender is dangerous and a risk unless we actually hear from the people who have been subjected to the horror that that person can wreak?
Alex Cunningham
I congratulate my hon. Friend the Member for Rotherham on tabling amendment 145, which has been crafted with her characteristic care and has won support from colleagues across the House. Contrary to what she might think, I think it is the right amendment. The Opposition fully support the principle behind amendment 145 that victims and survivors deserve to be at the heart of criminal justice and, in this case, to be consulted on decisions made by the Parole Board that affect them. The amendment is a simple one, and I will not detain the Committee by repeating the words of my hon. Friend the Member for Rotherham on the technical aspects of how it would work
Chris Philp
I thank the hon. Member for Rotherham for moving her amendment and for her remarks, the spirit of which I certainly completely agree with. Amendment 145 covers only moves to open prisons rather than Parole Board release decisions more generally. I think it is worth making it clear to the Committee that the victim’s rights to participate in the parole process are clearly enshrined already in the victims’ code, published again recently. Under the Parole Board’s existing rules, there is a requirement for the Secretary of State to provide the board with a current victim personal statement if one has been prepared, and that must be taken into account by the panel considering the case. The statement sets out the impact that the offence has had on the victim and their family and any concerns that the victim and their family may have about the potential release. Victims are, as part of that, entitled to request that specific licence conditions, including exclusion zones and non-contact requirements, be imposed on the offender. The victims’ code enshrines a number of entitlements relating to parole, including the right to present a victim personal statement in the way that has just been described. A root-and-branch review of the parole system is going on to try to improve these different things further.
As I said, this amendment relates only and specifically to open prison transfers. But I think that the general point that the hon. Member for Rotherham has raised is important. It is important that we do more to ensure that the victim’s voice is heard in these Parole Board decisions, for all the reasons that the hon. Member eloquently laid out. I will suggest that the Under-Secretary of State for Justice, my hon. Friend the Member for Cheltenham, who has the responsibility for this area, meet with the hon. Member for Rotherham to discuss these important issues. The matter is obviously in the rules already: it is in the victims’ code; it is in the Parole Board rules. But clearly, what is written down needs then to translate into action, and the hon. Member has raised a couple of cases in which that did not seem to happen in the way it ought to have done. She has clearly had correspondence with the previous Minister with responsibility for prisons and probation. My hon. Friend the Member for Cheltenham took over that portfolio only three or four months ago. I know he will want to meet her to discuss these important issues and make sure that it is happening in practice as it should do, so I make that commitment on his behalf.
Government amendment 132 to clause 109 makes some simple provisions and creates a mechanism for the Parole Board to change a decision where there has manifestly been an error. This follows a recent court case.
The Chair
You have been very generous, so do not regard that as an admonishment. Just temper your keenness to canter on.
Chris Philp
I will take that as a check on the reins. I have nothing further to say on amendment 145, Sir Charles.
Sarah Champion
I am grateful for the Minister’s comments. I have worked extensively with the Government’s victims team and it is fantastic. The victims code is great, but only if it is implemented. The problem we find is that people are not notified when the offender is coming up for parole consideration, so their rights are not activated because they do not know that that situation is occurring.
I accept his generous offer of meeting the hon. Member for Cheltenham, which I will take up. With that reassurance, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Chris Philp
I beg to move amendment 132, in clause 109, page 99, line 11, leave out
“resulted from a clear mistake”
and insert
“it would not have given or made but for an error”.
This amendment ensures that the language used in the new provision about when the Parole Board can set aside decisions aligns with a recent High Court judgment which ruled on the circumstances when a Parole Board decision can be revisited and makes a drafting clarification.
I am sorry to have spoiled the anticipation by jumping early. May I speak to clause 109 as well?
Chris Philp
Very briefly, clause 109 makes provision for manifest errors in Parole Board release decisions to be corrected. Government amendment 132 implements a recent court judgment where the language was changed and says that reconsideration will happen where there has been
“a clear mistake of law or fact”.
It makes that change following the High Court judgment in the case of Dickins, with which I am sure the Committee is familiar.
Alex Cunningham
I have nothing to add.
Amendment 132 agreed to.
Clause 109, as amended, ordered to stand part of the Bill.
Clause 110
Responsibility for setting licence conditions for fixed-term prisoners
Question proposed, That the clause stand part of the Bill.
Chris Philp
I have relatively little to say on these clauses, which are technical in nature. Clause 110 covers responsibility for setting licence conditions for fixed-term prisoners. Clause 111 repeals some uncommenced provisions dating back many years that have never been used, and simply removes them from the statute book because they have never been commenced. Clause 112 covers the release at the direction of the Parole Board after recall for fixed-term prisoners. Clause 113 is about changing the release test for the release of fixed-term prisoners following recall. Clause 114 covers release at the direction of the Parole Board in relation to timing.
They are technical changes, and I do not propose to add anything beyond these brief remarks, Sir Charles.
Question put and agreed to.
Clause 110 accordingly ordered to stand part of the Bill.
Clauses 111 to 114 ordered to stand part of the Bill.
Clause 115
Extension of driving disqualification where custodial sentence imposed: England and Wales
Chris Philp
I beg to move amendment 68, in clause 115, page 104, line 21, at end insert—
“(2A) The amendments made by subsection (2)(a)(i) do not have effect in relation to an offender who—
(a) is sentenced before the coming into force of section 107 (increase in requisite custodial period for certain offenders of particular concern), and
(b) on being sentenced, will be a prisoner to whom section 244A of the Criminal Justice Act 2003 (release on licence of prisoners serving sentence under 278 of the Sentencing Code etc) applies.”.
This amendment ensures that the amendments made by clause 115(2)(a)(i) do not apply to a person who is sentenced between the passing of the Bill (when clause 115 comes into force) and the coming into force of clause 107 two months later and who will be a person to whom section 244A of the Criminal Justice Act 2003 applies.
Chris Philp
Amendment 68 is a technical amendment that introduces a transitional provision that has been identified as necessary to address a short two-month gap before different, but inter-connected, provisions in the Bill come into force. Sir Charles, will I briefly speak to clauses 115 to 118?
Chris Philp
Okay. I will not refer to them again, so I will do so.
Clause 115 relates to England and Wales and makes some changes to the driving disqualification provisions where we have changed the automatic release points. Colleagues will recall that we have moved the release point from a half to two thirds for certain offences, including in changes made last year. We want to make sure that, where a driving disqualification is imposed, it takes account of the change in release point. The clause makes simple consequential amendments to those release points.
Clauses 116 and 117 do similar things to make sure that driving disqualifications properly intermesh with the changes to release provisions. Clause 118 does similar things in relation to Scotland.
Alex Cunningham
The House briefing paper on the Bill explains that when a driver receives a driving disqualification alongside a custodial sentence, the court must also impose an extension period to ensure that the disqualification period is not entirely spent during the time the offender is in prison. The explanatory notes explain that clause 115 would change the law so that the length of the extension period reflects a succession of other changes made by the Government to the release points for certain offenders.
The notes refer to changes made by the Terrorist Offenders (Restriction of Early Release) Act 2020, the Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2020, changes in the Counter-Terrorism and Sentencing Act 2021 and further changes proposed by this Bill. These pieces of legislation all change the point at which an offender is automatically released or becomes eligible to be released if the Parole Board agrees they are no longer a danger to the public. Rather than being at the halfway point of the sentence, that release point will now move to the two-thirds point.
As I explained at some length in the debate on clause 106, the Opposition cannot wholeheartedly support changes to the release point of certain offenders. Not only do the changes make a notoriously complicated sentencing regime even more complicated but they also substantially limit the amount of time an offender spends on licence in the community, significantly increasing their chances of reoffending.
The Opposition do not support the Government’s logic in adapting other pieces of legislation, in this case driving offences, to reflect those changes. For that reason, we are opposed to clauses 115 to 118 and urge the Government to use caution before committing to any further changes that would further complicate an already overcomplicated sentencing system. That said, I do not intend to press the clauses to a vote, but let the record show that we are opposed to the provisions.
Chris Philp
No.
Amendment agreed to.
Clause 115, as amended, agreed to.
Clauses 116 to 118 ordered to stand part of the Bill.
Clause 119
Calculation of period before release or parole board referral where multiple sentences being served
Question proposed, That the clause stand part of the Bill.
Chris Philp
I will speak extremely briefly to clauses 119 to 123. They simply set out minor amendments to existing legislation that part 7, chapter 1 of the Bill makes. In brief, clause 119 provides clarification on when a prisoner must be automatically released and when referral to the Parole Board is required in cases where concurrent or consecutive sentences are being served, so it provides clarification around how those sentences interact with one another.
Clause 120 addresses the application of release provisions to repatriated prisoners, reflecting some recent alterations that have been made domestically, which we have talked about already—making sure that works with repatriated prisoners.
The Chair
With this it will be convenient to debate the following:
Clauses 125 to 127 stand part.
That schedule 12 be the Twelfth schedule to the Bill.
Clause 128 stand part.
That schedule 13 be the Thirteenth schedule to the Bill.
Clause 129 stand part.
That schedule 14 be the Fourteenth schedule to the Bill.
Chris Philp
Let me start with clause 124, which would give responsible officers the power to compel offenders to attend an appointment at any point in a community order or during the supervision period of a suspended sentence, in exceptional circumstances.
The responsible officer is the statutory term for the probation practitioner who is overseeing the order. Section 198 of the Criminal Justice Act 2003 requires the responsible officer to make any arrangements that are necessary in connection with the requirements imposed by the order, and to promote the offender’s compliance with those requirements.
In some cases, the responsible officer might be delivering those requirements directly. In other cases, they might be working with the offender to develop a sentence plan and monitor their progress against it, but referring them to colleagues or to other organisations to deliver particular requirements, for example, educational or treatment requirements.
The current legislation lacks clarity on the extent of a responsible officer’s power to compel an offender, who is subject to a community or suspended sentence order, to attend supervision appointments—meetings, essentially. Offenders serving community sentences have a duty to keep in touch with their responsible officer, and responsible officers also have the power to make any arrangements that are necessary in connection with the requirements imposed by the Order. But it is not currently clear what powers probation officers have if they are concerned about a new or escalated risk that an offender presents, which is not necessarily related to the delivery of what the court has ordered. Hence this measure, which enables the responsible officer to require the offender to participate in a meeting. It simply clarifies that that can happen. I think we all agree that contact between the responsible officer, for example, the probation officer, and the offender is a good thing to make sure that that relationship is being properly managed.
Clause 125 is one of a number of measures in the Bill that seek to strengthen community sentences. In the Sentencing White Paper last September, we set out a new vision for community supervision combining robust punishment and management of risk with a new focus on addressing rehabilitation needs to break the cycle of reoffending. Clause 125 therefore increases the maximum length of time a curfew can be imposed to make it potentially more effective and increases the maximum number of hours that a curfew could be imposed in any given 24-hour period. At the moment, a curfew can be imposed for a maximum of 12 months and we will increase this to up to two years, to give the court a little more flexibility and, we hope, encourage the use of community sentences more often.
The clause will also increase the potential of a curfew to support rehabilitation by providing a longer period during which some of the positive effects of the curfew can be established. It can, for example, reduce interaction with criminal associates. Again, that will hopefully enable the courts to use those sentences more as an alternative to short custodial sentences, which we are all keen to avoid where possible.
At the moment, a community order or suspended sentence order may specify a maximum of 16 hours of curfew per day, which provides in practice a weekly maximum of 112 hours. The clause will increase the daily maximum to 20 hours, but we will not move the seven-day maximum of 112. The number of curfew hours per day can be moved around if, for example, somebody gets a job, or something like that, and that needs to be taken into account, but the weekly maximum does not change. It is important to make the point that we are not altering that.
Clause 126 will give greater powers to the responsible officer to vary electronically monitored curfews on community sentences. Again, we think that will be helpful. To be clear, the responsible officer will not be able to change the number of curfew hours. That is an important point to emphasise.
Clause 127 removes senior attendance centres from the menu of options available. They are not very widely used, and in fact in some parts of the country they are not used at all. These days, there are various other means that are used to provide rehabilitation and so on, rather than senior attendance centres. Schedule 12 contains further amendments relating to the removal of the attendance centre requirements, as I have just described.
Clause 128 simply introduces schedule 13, which makes provision for courts to have powers to review community and suspended sentence orders and commit an offender to custody for breach. Without this clause, schedule 13 would not form part of the Bill. Part 1 of schedule 13 contains provisions relating to the review, which is a crucial element of the problem-solving court approach. As Members know, we are keen to run pilots of problem-solving courts. We think they have an important role to play where offenders have a drug, alcohol or mental health problem, and where the judge can have repeated interaction with the person concerned. We think that could hopefully contribute to the addiction or mental health problem being dealt with. They were piloted in the past—I think they were piloted in Liverpool a few years ago—and they were perhaps not as effective as we had hoped. This pilot is therefore important to try to get the model right. If we can get the model right, we will obviously look to roll it out.
Clause 129 introduces schedule 14. Schedule 14 itself provides the legislative changes required for the problem-solving court pilot that I have just described. We think that problem-solving courts are really important, so the pilots will be important as we have to get the model right. There are lots of different ways of running problem-solving courts. The Americans and the Australians do them differently. We want to get this right. As I say, if we can find a way of tackling the root cause of offending behaviour, whether it is drug addiction, alcohol addiction or mental health, that will help everybody—the community, society and the offender—so I am really pleased that these schedules are in this Bill, laying the groundwork for the things that I have described. I commend these clauses and schedules to the Committee.
Alex Cunningham
As the Minister set out, clause 124 provides legal clarity about what a probation officer or responsible officer can instruct an offender who has been released from custody to do. Specifically, it will give probation officers the legal power to compel offenders serving a community or suspended sentence order to attend supervision appointments. Those appointments can be either for the purpose of ensuring the offender complies with rehabilitative requirements or where there are public protection concerns. If an offender refuses to comply with directions made under clause 124, they can be found to be in breach of their licence conditions and punished accordingly.
On the whole, this is a clause that the Opposition can support. If there is legislative uncertainty about what a probation officer can and cannot do, it is important, for the benefit of probation officers and offenders themselves, that it is ironed out. We accept that. The Opposition also accept the importance of offenders attending the appointments they need to rehabilitate and reform in the community. I have spoken at length about how Labour fully appreciates the importance of time spent in the community when it comes to reforming an offender and reducing the risk of reoffending. We are also keen to support amendments that will make the life of probation officers easier by providing legislative clarity.
However, although we are supportive of clause 124, we have some concerns, which I hope the Minister can respond to today. First, given that failing to attend appointments under the clause could result in an offender being found to be in breach of their licence and possibly recalled to prison, can the Minister set out the procedure that offenders can use to challenge orders made under clause 124?
Secondly, we must also consider the impact that the powers in clause 124 could have on offenders who have learning disabilities or are neurodivergent. As the Prison Reform Trust explains:
“People with learning disabilities can find it particularly difficult to comply with measures such as additional appointments or reporting requirements, and so special attention will need to be given to ensuring they are not unfairly disadvantaged by these provisions.”
In addition to addressing the system for offenders to challenge orders under the clause, will Minister set out what safeguards will exist to ensure that no offender is unfairly disadvantaged by clause 124 due to circumstances beyond their control?
I now turn to clause 125, the effect of which is similar to 124. Clause 124 gives probation officers greater powers to compel offenders to attend appointments in the community, and clause 125 gives probation officers greater powers with regard to curfews. Under current legislation, offenders subject to a community order or suspended sentence order can be subject to a curfew for up to 16 hours a day for a maximum of 12 months. Clause 125 would increase the daily curfew to 20 hours and increase the total period over which curfews can be imposed from one year to two years.
The Government set out in the explanatory notes that this change will increase the punitive weight of a curfew requirement, but also has the potential to support rehabilitation by providing a longer period during which some of the positive effects of curfew could be established. As with clause 124, the Opposition are keen to give our hard-working probation officers the tools, powers and legal clarity they need to do their job properly. We are satisfied that clause 125 is a proportionate means of achieving that goal, particularly as the Government have chosen to retain the maximum number of curfew hours that can be imposed per week.
None the less, as with clause 124, we seek some assurances from the Minister about how these extended powers will be used in practice. As with clause 124, our main concern is about the potential of clause 125 to increase the number of offenders found to be in breach of their licence due to circumstances they cannot control, or because of technical breaches. I will discuss one aspect of this in more detail when we come to amendment 122, but we know that offenders are wrongly accused of breaching their licence conditions, including those relating to curfews, due to electronic tags malfunctioning. What assurances can the Minister give that extending the powers of probation officers in this area will not lead to more offenders accused of being in breach due to malfunctioning tags?
I also repeat my concern in relation to clause 124 about how this power could impact offenders who suffer from learning difficulties or are neurodivergent. What steps will the Minister take to ensure that these offenders are not unfairly disadvantaged by clause 125? Will probation officers be given additional discretionary powers to ensure that these offenders are not punished for a breach that they did not intend to make?
Finally, how does the Minister respond to concerns expressed by the Howard League that allowing probation officers to place strict restrictions on leisure days could prevent people on licence from building the positive social relationships that would help them to desist from crime?
Let us move to clause 126, which, like clause 125, extends the power of probation officers in relation to curfews. As the Government explanatory notes point out, currently, changes to a curfew cannot take place unless they have been authorised by a court. Clause 126 would amend the sentencing code by enabling probation officers to vary a curfew requirement made on a community order or suspended sentence order. Specifically, the clause would allow the probation officer or responsible person to change the curfew requirement in one of two ways: changing the time a curfew starts or ends over the course of 24 hours, or changing the residence of the offender as set out in the order.
The explanatory notes suggest that these additional changes will be beneficial not only for probation officers but for Her Majesty’s Courts and Tribunals Service and offenders:
“This legislative change seeks to reduce the burden on the courts, freeing up time for other matters and saving probation resource by reducing the volumes of papers prepared for court and court visits. There will also be advantages for offenders, allowing for variations where typically there are alterations to work hours or location that make compliance impossible, or where an offender’s curfew residence address needs to be changed in a timely way.”
While the Opposition stand firmly behind any proposal to reduce the horrendous burden currently on our courts, I am somewhat perplexed that the Government’s first thought in this area is to give probation officers the power to vary curfew requirements.
As the Minister will no doubt be aware, the backlog in the Crown court is at record levels, sitting at almost 40,000 cases before the pandemic even began. As we said before, victims of rape and other serious offences face a wait of up to four years for their day in court. While it is true that the backlog has been exacerbated by the pandemic, it was created by the Conservatives closing half of all courts in England and Wales between 2010 and 2019, and allowing 27,000 fewer sitting days than in 2016. If the Government were serious about reducing the burden on our courts, they would have adopted Labour’s package of emergency measures during the pandemic, including mass testing in courts, the extension of Nightingale courts and reduced juries until restrictions are lifted, but they did not, and the result is the catastrophe we see today.
Maria Eagle
Of course, there was also the North Liverpool community justice centre, which I think the Minister may have referred to, which extended the problem-solving court technique to all kinds of offences, not only specifically drug or alcohol offences, domestic violence or mental health issues, and it was very successful.
Alex Cunningham
Indeed, that was the case. We have so much to learn from the best practice around the country, but also from what happened before this Government varied those types of courts when they came to power in 2010.
In total, the Government have committed to piloting five problem-solving courts, targeted at repeat offenders who would otherwise have been sent to custody. The Bill builds on those proposals by laying the legislative framework for the pilots to take place—specifically, clause 128 introduces schedule 13, which will give problem-solving courts the power to periodically review community and suspended sentence orders, and to commit an offender to custody for a breach. The pilot of problem-solving courts is welcome.
The evidence is clear that problem-solving courts have proven hugely effective—for example, in restoring confidence in the criminal justice system among marginal communities. As the Government’s own response to the Lammy review set out:
“Trusted figures in the CJS were described as those who had taken the time to get to know an individual, their background and specific needs and vulnerabilities.”
Moreover, if rolled out nationally, the pilot of problem-solving courts would also play an important role in reducing the huge burden on our courts system, while ensuring short custodial sentences are used only if completely necessary.
Although the Opposition support the powers in clause 128, we have some concerns, and I would be grateful if the Minister responded to them this afternoon—sorry, this morning. It is still morning!
First, as Women in Prison points out in its helpful briefing:
“In order to be considered for a problem-solving court approach, a person must first enter an admission of guilt for the alleged offence.”
The briefing goes on to note that the review conducted by my right hon. Friend the Member for Tottenham (Mr Lammy) found:
“Black, Asian and minority ethnic people are more likely to plead not guilty to alleged offences. We know that experience of racism and lack of trust in the criminal justice system prevents people from feeling that they will be treated fairly if they plead guilty.”
I know that we have already raised this issue in debate, but therein lies a difficulty that the Government will have to contend with as they pursue their pilot of problem-solving courts. As the Prison Reform Trust explains, while, on one hand, problem-solving courts have been useful at restoring confidence in the criminal justice system for those in marginalised communities, for them to be wholly successful,
“pilots must work with people who enter not guilty pleas, and on added measures that are likely to increase confidence in the process.”
I know the Minister said that the Government would do what they could to overcome that problem, but what that is, or could be, is still far from clear. Can he be more specific by explaining what steps the Government are taking on the issue of not guilty pleas and to avoid exacerbating the disproportionality that already exists for black, Asian and minority ethnic people in the criminal justice system?
Secondly, if problem-solving courts have already shown themselves to be effective in providing rehabilitative alternatives to custody, why have the Government chosen to pursue such a limited pilot rather than a larger national roll-out? Thirdly, what will the Government do to resource properly the probation and other services that work with offenders who are dealt with through problem-solving courts? The Minister knows, as I do, that resources are thin. If they are not there, the system will fail. Finally, will he report back to Parliament on the success rate of the pilots, and if so, what would the Government look for before they could commit to a national roll-out?
I will be very brief on clause 129. While clause 128 and schedule 13 provide the legislative foundation for the pilot of problem-solving courts, clause 129 and schedule 14 would enable the courts involved in the pilot to impose drug-testing requirements as part of a community sentence or a suspended sentence order. As the House briefing sets out, a court would be able to impose drug-testing requirements only where the two following conditions are met: substance misuse has contributed to the offence to which the relevant order related, or is likely to contribute towards further offending behaviour; and the Secretary of State has notified the court that arrangements to implement drug-testing requirements are available in the offender’s local area. Taken hand in hand with clause 128, the Opposition are happy to support clause 129.
The Chair
It being 11.24 am, it is not fair to get the Minister to respond, so I will ask the Government Whip to move the motion to adjourn.
Ordered, That the debate be now adjourned.—(Tom Pursglove.)
Police, Crime, Sentencing and Courts Bill (Fourteenth sitting)
Tuesday 15th June 2021
(2 years, 10 months ago)
Public Bill CommitteesRead Full debate Police, Crime, Sentencing and Courts Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 15 June 2021 - (15 Jun 2021)
The Committee divided: - Ayes: 5 / Noes: 8 - Question accordingly negatived.
The Committee divided: - Ayes: 5 / Noes: 8 - Question accordingly negatived.
The Committee divided: - Ayes: 5 / Noes: 8 - Question accordingly negatived.
The Committee divided: - Ayes: 5 / Noes: 8 - Question accordingly negatived.
The Committee divided: - Ayes: 5 / Noes: 8 - Question accordingly negatived.
The Chair
I remind the Committee that with this it will be convenient to discuss the following:
Clauses 125 to 127 stand part.
That schedule 12 be the Twelfth schedule to the Bill.
Clause 128 stand part.
That schedule 13 be the Thirteenth schedule to the Bill.
Clause 129 stand part.
That schedule 14 be the Fourteenth schedule to the Bill.
Before we adjourned, the Opposition spokesman, the hon. Member for Stockton North, gave a lengthy speech, which we were all grateful to hear. We paused to allow the Minister to prepare himself. I believe he is now prepared, so I call the Minister.
The Parliamentary Under-Secretary of State for the Home Department (Chris Philp)
Thank you, Sir Charles. I trust everyone has had a refreshing and congenial break for lunch. Prior to the break, the shadow Minister raised a number of questions relating to clauses 124 to 128 and to schedules 12 to 14. I will endeavour to answer as many of those questions as I can. He asked what procedure offenders could use to challenge orders made under clauses 124 and 125, particularly to ensure that they were not unduly penalised if they then breached the conditions that had been imposed. If a breach does occur and some serious consequence follows, it is always open to the offender to make a representation when attending their hearing at court to either make the case that the breach was technical or minor in nature, or that the condition itself was not varied in a reasonable way. A significant penalty can never be imposed without the intervention of the court.
Questions were asked about circumstances beyond the control of the offender. We heard about the possibility of a device malfunctioning and about particular circumstances relating to disability that might disadvantage certain people. We envisage the power laid out in section 124 being used only in rare circumstances, certainly not routinely.
I confirm that it is the intention to provide clear advice to probation staff, setting out the rare circumstances in which additional supervision may be warranted, to ensure, for example, that disabled offenders are not unfairly or unduly disadvantaged, and to avoid the purpose of these supervision appointments going beyond the very specific purposes that the order has been imposed by the sentencing court.
The same applies to people with learning difficulties. Courts sentence on a case-by-case basis and, where electronic monitoring has been imposed as one element of that sentence, the officer supervising the offender is already able to review notifications of apparent violations and take a reasonable view, on a case-by-case basis. If someone has been genuinely unable to understand how to operate the equipment or had a genuine technical problem, we would expect probation officers to exercise reasonable discretion.
As I said at the very beginning, if a breach did follow and the court was invited to impose some penalty, it would be open to the offender to make a representation at that point to explain the mitigating circumstances. My expectation is that it would never get that far, because I would expect the supervising officer to be reasonable in the meantime.
Alex Cunningham (Stockton North) (Lab)
I recognise what the Minister is saying. I raised the point that people should be able to make representations after their hearings, but some of the people we are talking about have particular challenges in life and special needs. How will the Minister ensure that their problem—their malfunctioning equipment or otherwise—is properly communicated to a court to ensure that they are not penalised?
Chris Philp
Clearly, in the first instance we would expect the responsible officer to exercise these powers in a reasonable way and to exercise discretion. Hopefully, as I said a few minutes ago, these cases would not get as far as court because the probation officer would act in a reasonable and proportionate way in the first place. The guidance will reflect that. If someone does get to court, there is the possibility of their being represented in proceedings. However, I also would expect the judge to ask a reasonable question of the person appearing before the court, such as whether there were any mitigating circumstances or technical problems or whether they had failed to understand how to operate the equipment. If there is a vulnerability, the pre-sentence report written prior to the original sentencing would be expected to pick up those issues.
The shadow Minister asked whether the powers in clause 126 were too wide and gave the responsible officer excessive latitude and leeway to vary curfew requirements that a court had previously imposed—to dispense summary justice without proper reference to the courts. To be clear, clause 126 is very limited in the powers that it provides probation officers, and they will be able to amend the requirement in only two limited ways, and only if those changes do not undermine the weight or purpose of the requirement imposed by the court. The power in clause 126 is restricted to two areas: a shift in the start and/or end times of the curfew periods—but no change to the total number of hours imposed—and a change to the offender’s curfew address, where the address was not part of the order in the first place. So they are very limited powers to vary, which I hope provides the reassurance asked for.
The hon. Member for Garston and Halewood, who unfortunately is not in her place, referred to the problem-solving courts in Liverpool. I understand that the results from that have been a little mixed, but we are committed on both sides of the House to the principle of problem-solving courts, and I noted the shadow Minister’s recitation of the history of these going back as far as 1999. Both sides recognise the important role that problem-solving courts can play. Other jurisdictions have used them, with the United States being an obvious example. We are starting on a pilot basis rather than a big-bang roll-out because the details of how the model operates is important. The details make a big difference, and the design of the way it works—when the reviews takes place, what they are reviewing and what actions are taken—make a difference to whether the thing is successful or not.
While across the House we are committed to the principle of problem-solving courts to tackle the underlying causes of offending, we have to make sure that they work in practice and the details are right before rolling them out. To answer another of the shadow Minister’s questions, I am sure we will be coming back to Parliament and reporting on the progress of these problem-solving courts. My hope is that we find a way quickly to make these work in practice and can then roll them out. I am committed to community sentence treatment requirements, which are a form of disposal that provides for mental health, alcohol and drug addiction treatment. Quite a lot of money has gone into that recently—£80 million for drug addiction earlier this year. Problem-solving courts are a critical way of supporting the delivery of treatment under community sentence treatment requirements. It is something I want to push, and I am glad that there is agreement across the House on that.
The final question that the shadow Minister asked was whether a guilty plea was needed to qualify for an appearance before a problem-solving court. Problem-solving courts do not require a guilty plea, and this Bill does not stipulate that as a prerequisite, but a willingness to engage with the court and comply with the community interventions will be an important factor. The problem-solving courts working group in 2016 considered making a guilty plea a key factor in creating the engagement necessary, but we recognised the number of complexities across the cohorts targeted, and did not think it was necessarily required. People who plead not guilty, and are then convicted, would be eligible for the problem-solving court, and I hope they can be helped as much as anyone else. On that basis, I commend these provisions to the Committee.
Question put and agreed to.
Clause 124 accordingly ordered to stand part of the Bill.
Clauses 125 to 127 ordered to stand part of the Bill.
Schedule 12 agreed to.
Clause 128 ordered to stand part of the Bill.
Schedule 13 agreed to.
Clause 129 ordered to stand part of the Bill.
Schedule 14 agreed to.
Clause 130
Duty to consult on unpaid work requirements
Question proposed, That the clause stand part of the Bill.
Chris Philp
I will follow your direction, Sir Charles, by saying just a few words on this clause, which is relatively straightforward and, I think, pretty inoffensive.
Clause 130 simply creates a requirement for probation officials to consult key local and regional stakeholders on the delivery of unpaid work. Unpaid work—or community payback, as it is sometimes known—combines the sentencing purposes of punishment with reparation to communities. We believe that, where possible, unpaid work requirements should benefit the local communities in which they are carried out. Nominated local projects are already popular with sentencers and the public, but there is currently no requirement for probation officials to consult stakeholders on the design or delivery of unpaid work, so members of communities and organisations within particular local areas that are best placed to understand the impact of crime and what might be useful in the local area do not necessarily have their say.
Clause 130 simply seeks to address the gap by ensuring that key local stakeholders are consulted, so that they can suggest to the probation service what kind of unpaid work might be useful in their local area. We hope that local community groups and stakeholders come up with some good ideas that the probation service can then respond to. That seems to be a pretty sensible idea. The probation service in some areas may do it already. This clause simply creates a proper duty, or a requirement, for the probation service to do it. Of course, if we understand the needs of local communities and their thoughts, we can improve the way unpaid work placements operate to support rehabilitation and also help the local community. If the local community can visibly see offenders doing unpaid work in their local area, whether it is cleaning off graffiti, cleaning the place up or whatever else it may be, that will, we hope, demonstrate that the programme is giving back to and improving the local community, but delivering a punitive element as well.
Chris Philp
I was about to conclude, but of course I will take the intervention.
Sarah Champion
When I used to run a children’s hospice, we had offenders under probation supervision come in. They were meant to be doing gardening at the children’s hospice, but instead they sat around smoking cigarettes. We kept on raising that with the probation worker, because we had invited the offenders there to give them a second chance, to help with their rehabilitation, to enable them to contribute to the community and so on. But the probation officer said, “What do you want me to do? I can’t beat them; I can’t make them work, but they have to come on these schemes.” Could the Minister give some examples of how the probation service will have the resources and the influence to ensure that people who are out in their local community are actually—
The Chair
Order. This is meant to be an intervention, not a speech. The hon. Lady is entitled to make a speech and could have made a speech, but can we treat this as an intervention?
Chris Philp
The hon. Lady makes a very good point. First, I am extremely disappointed and somewhat shocked to hear that people who were supposed to be doing work at a hospice in Rotherham in fact sat around smoking cigarettes. That is obviously shocking and not what the orders are supposed to be about. The hon. Lady says that the probation officer shrugged their shoulders and said, “Well, what can I do about it?” Of course, if the person, the offender, was not doing the work that they were supposed to be doing, that would amount to a breach of the unpaid work requirement, and they could be taken back to court to account for their breach, so I am extremely disappointed by the attitude of the probation officer that the hon. Lady just described.
The hon. Lady asked about resources. Extra resources are going into the probation service for it to supervise exactly these kinds of activities, and I would expect them to be supervised and policed properly. I will certainly pass on her concern to the relevant Minister. I have already made contact about fixing a meeting for the hon. Lady and the Prisons Minister that we talked about in this morning’s session, in relation to victims being consulted about probable decisions. The same Minister, my hon. Friend the Under-Secretary of State for Justice, is responsible for the probation service as well—I am just adding to his workload. I will raise it with him, but I would certainly urge the hon. Member for Rotherham to raise this issue in the same meeting, because I know that the account she just gave will concern my hon. Friend as much as it concerns me.
Mr Robert Goodwill (Scarborough and Whitby) (Con)
I echo the points made by the hon. Member for Rotherham in that there is a variation in the enthusiasm that some of those who conduct this work display, on both sides. I was told, for example, that a lad who came from a farming family had thrown his back into it very strongly and was encouraging others to join him. I would add that we do consult with the local community, and many of the jobs that are done in my constituency are at the behest of either a local authority or other local groups.
Chris Philp
Wonderful. We would like to see the kind of consultation that already takes place in Scarborough and Whitby take place across the country as a whole, and that is precisely the intention behind clause 130. Where Scarborough has led, the rest of the nation, thanks to this clause, will follow.
Question put and agreed to.
Clause 130 accordingly ordered to stand part of the Bill.
Clause 131
Youth Remand
Alex Cunningham
I beg to move amendment 128, in clause 131, page 122, line 12, at end insert—
“(ba) after subsection (5) insert—
(5A) For the purposes of subsections (5) and (6) “recent” is defined as having occurred in the previous six weeks.””
The Chair
With this it will be convenient to discuss the following:
Amendment 129, in clause 131, page 122, line 16, at end insert—
“(ca) in subsection (7)(b) insert “serious” before “imprisonable offences”;”
Amendment 130, in clause 131, page 123, line 3, at end insert—
“(aa) after subsection (4)(b) insert—
“(c) state in open court the age, gender and ethnicity of the child.””
Alex Cunningham
I am pleased to speak to amendments 128, 129 and 130 in the name of my hon. Friend the Member for Rotherham and myself. However, before I do that, if the Minister could give me a list of where he has influence, perhaps he could fix a few meetings with Ministers for me as well.
Alex Cunningham
I thank the Minister very much for that—it will, of course, be on the record, which I am very pleased to note. Before I get into my speech, I would like to thank Transform Justice and the Alliance for Youth Justice for the extremely helpful work they have done on this part of the Bill. I also thank my hon. Friend the Member for Hove (Peter Kyle), the former shadow Justice Minister, who worked extremely hard on these particular issues. I am grateful to him.
Clause 131 amends the legislative threshold for remanding a child to custody. It will mean that remand to youth detention accommodation can be imposed only in the most serious cases, where a custodial sentence is the only option and the risk posed by the child cannot be safely managed within the community. It will introduce a statutory duty which states that courts must consider the interests and welfare of the child before deciding whether to remand them to youth detention. It also imposes a statutory requirement for the courts to record the reasons for the decision.
First, let me say that we are pleased with the direction of travel that this clause indicates, and we are keen for the Government’s work in this area to succeed. We are in complete agreement with the Government that custodial remand should be used only as a last resort for children. However, we do think that there is scope for these proposals to go further in tightening the threshold for remanding a child into custody. I will speak more on that when we discuss our amendments.
The current youth remand provisions were introduced in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and I well remember the Public Bill Committee, where I had the privilege of serving as Parliamentary Private Secretary to Sadiq Khan, now our excellent Mayor of London, and also my good friend. By 2019, the independent inquiry into child sexual abuse noted a significant increase in the use of custodial remand for children. The Opposition warmly welcomes measures which aim to reduce the number of children remanded into custody, especially in light of the fact that in 2018/19 only a third of children remanded to custody or local authority accommodation later received a custodial sentence.
Our concerns about the use of custodial remands for children are compounded by the extreme racial disproportionality on remand, and the record proportion of children in custody who have not yet been tried in court.
Against the backdrop of the record court backlog and the waiting times for trial, there could not be a more opportune moment to address these issues. We particularly welcome the introduction of the statutory duty to consider the welfare and best interests of the child. We believe that, while these proposals can go further—I know that the Minister will listen carefully to our proposals shortly—these changes will help to reduce the number of children who are unnecessarily remanded to custody, so we are pleased to support them.
However, there are a couple of points on which I would welcome the Minister’s thoughts. Has he any further information to share with the Committee on his Department’s considerations of the impact that police remand has on custodial remand? Are there any plans to address that? Research by Transform Justice shows that police remand, where the child is detained by the police until court either in a police cell or in a local authority PACE bed—under the Police and Criminal Evidence Act 1984—is a driver of custodial remand. Transform Justice explains that point:
“This is because any child remanded by the police has to be presented in court within 24 hours, meaning Youth Offending Team staff often don’t have enough time to develop a bail package that will satisfy the court. Children who appear from police custody also usually appear in the secure dock, which can bias courts to view the child as more ‘dangerous’ and therefore more suitable for custodial remand.”
The criteria for police remand are spelled out in section 38 of the Police and Criminal Evidence Act and are very different from those used by the court for remand. In fact, the criteria for police remand of children are almost identical to those for adults, unlike the child-first approach taken in so many other areas of the justice system.
We know that the police remand more children than the courts. Of the 4,500 children who appeared in court from police custody in 2019, only 12% went on to be remanded by the court. Some 31% of those remanded by the police went on to be discharged, dismissed or have their case withdrawn, while 37% went on to get a fine or community sentence. The figures illustrate that police use of remand is seriously out of synch with the courts already. This clause may further widen that gap.
Is the Minister not concerned that the police may continue to overuse post-charge detention, undermining the positive efforts of the clause to reduce unnecessary custodial remand for children? Will the Government consider updating the police remand criteria, so they are in line with the new court remand criteria, to ensure consistent decision making across the whole criminal justice system?
I am greatly supportive of the provision in the clause that requires courts to record their reasons for remanding a child, not least because it will provide valuable data on the use of remand, which will enable us to continue to make improvements in this area. For that to be most effective in informing future policy decisions, we would need to have some sort of centralised monitoring system. Will we have such a system? It would mean that the need to record reasons would not only focus the mind of the court in a specific case; it would also benefit the system as a whole, as each case can inform our ongoing learning process about the use of remand and its effectiveness. Has the Minister considered the possibility of such a centralised monitoring system?
It has been suggested that the obligation on the court to record reasons would be most effective if courts had to specify why non-custodial alternatives were deemed unsuitable and how each of the custodial remand conditions has been met. Is that the kind of detail that the Minister envisages the obligation should entail? I am sure we all agree that it would be helpful for that level of information to be provided, so I am interested to hear the Minister’s thoughts.
Turning to the amendments, as I said earlier, the reforms to the threshold for remanding a child in custody are welcome, but there are a couple of areas where we believe they should go further. The Opposition amendments, if adopted, would get us closer to the goal of custodial remand being used only as a truly last resort.
Amendment 128 seeks to tighten the history test by defining a recent history of breaching bail or offending while on bail as having been committed within the last six weeks. The clause currently makes provision to amend the history condition so that the previous instances of breach or offending while on bail must be “significant”, “relevant” and “recent”. In order to reduce the number of children held unnecessarily on remand, it would be helpful to amend the clause so that there is a clear definition of “recent”.
In defining recent, we have to be mindful of what that means to a child. As the Alliance for Youth Justice notes:
“If we are to take a child-centred approach, we must consider how children experience time, and recognise the well-established principle that children change and develop in a shorter time than adults.”
The Youth Justice Board for England and Wales has recommended that “recent” be no longer than within a six-week period. I hope that the Minister will agree that clarity on that point would be of great assistance to the courts. I would be interested to hear from him what discussions his Ministry of Justice colleagues have had regarding defining a time limit for this condition.
Amendment 129 is a straightforward amendment to the necessity condition that would again help achieve the aim of using custodial remand for children only as a last resort. Although we welcome the strengthened wording of the necessity condition included in the Bill, which would require remand to be used only when the risk posed by a child cannot be safely managed in the community, we share the concerns of the sector that the benefits arising from this change may be undermined by its drafting. The amendment would therefore tighten and strengthen the wording. Transform Justice says that these benefits of the current proposed change to the necessity condition
“will be undermined by the loose wording of one of the other necessity conditions: that remand to YDA is necessary to prevent further imprisonable offences. This condition is highly subjective and casts a wide net, which may be widened further by youth sentencing provisions elsewhere in the bill.”
We share the concern expressed by the Alliance for Youth Justice that
“the latter part of the condition (to prevent the commission of an imprisonable offence) sets such a low threshold for meeting the Condition as to render the first threshold (to protect the public from death or serious personal injury) somewhat redundant.”
The amendment would tighten the latter part of the condition by ensuring that it applies only to serious imprisonable offences, which we think better reflects the intention of the clause.
Finally, amendment 130 would compel the court to record the age, gender and ethnicity of a child remanded in custody in order to provide better data on remand, particularly on disproportionality. We believe that this could be a helpful tool in addressing the deeply concerning and increasing levels of disproportionality at this point in our justice system. The numbers beggar belief. Nine out of 10 London children who are remanded are from black, Asian and minority ethnic communities. A deeply comprehensive report that was published by the Youth Justice Board in January shows that race alone is a factor in remand outcomes for children. The researchers gathered data on thousands of English and Welsh cases, and information provided in practitioner assessments. Even when other related factors were controlled for mixed ethnicity black children, they were, as the Youth Justice Board notes,
“still more likely to be remanded in custody and, if not remanded, more likely to be subject to restrictions on bail.”
This is a serious injustice in our system that needs to be urgently addressed. More needs to be done than this amendment makes provision for, but it would be a helpful tool in breaking down the disproportionate outcomes that we are seeing. The amendment would at the very least provide accurate data to help understand this disparity, in line with the “explain or reform” principle outlined in the Lammy review, which I think is an eminently sensible step in the right direction. I hope that the Minister agrees and look forward to hearing his thoughts. I would also be grateful if he could share with the Committee any other initiatives his Department is working on to address this flagrant disproportionality in youth remand.
Sarah Champion
I fully support the arguments made by my hon. Friend the Member for Stockton North on the amendments. I have a fundamental concern about remanding children. It impacts on them disproportionately in terms of their future outlook, opportunities and potential. We see within the remand youth justice system some of the highest levels of disproportionality in the criminal justice system. Although Labour Members welcome the measures in the Bill to tighten the tests that the courts must satisfy to decide whether to remand a child in custody, we still have concerns about this section of the Bill.
We agree with the policy to encourage the courts to impose a custodial remand only when absolutely necessary while ensuring the public remain safe, but as my hon. Friend stated, there are real concerns about the overrepresentation of black, Asian and minority ethnic people, who make up only 12% of the UK population but half the youth prison population. I would be much more comfortable if we were using the Bill to look at the reasons for that disproportionate make-up, rather than at further punitive measures. We have to take steps to ensure that all people, particularly all children, can reach their potential. I am very mindful of the fact that the literacy rate of the prison population is so much lower than that of the rest of the population. Why are we not investing more to address those underlying issues?
Chris Philp
As the shadow Minister said, clause 131 aims to ensure that children are remanded into youth detention accommodation only where absolutely necessary and as a last resort. As the hon. Member for Rotherham and the shadow Minister said, that is something that we can all agree on. We do not want to remand children into custody prior to conviction unless it is absolutely necessary.
The hon. Member for Rotherham said that prevention was important, and of course we agree, although it is outside the scope of these clauses. Money is being invested, significantly, in serious violence reduction units that aim to prevent, but also to divert young people who might otherwise get into serious crime on to a better path.
We are mindful that over a third of children in custody are on remand and that, of those, only around a third go on to receive a custodial sentence. While custodial remand is perfectly justified in some cases, the threshold for confining an unconvicted child to a secure environment must, rightly, be set very high indeed. It sounds like we broadly agree on these principles, and that is why we are amending the provisions of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which sets out the test that the courts must satisfy when deciding whether to remand a child into custody. I think everyone agrees with the aim of the clause, which is to make sure that remand custody for a child is an absolute last resort. The shadow Minister welcomed this direction of travel and the steps that are being taken.
The clause introduces a statutory duty for the court to consider the welfare and best interests of the child when making remand decisions and a statutory requirement for the court to record its reasons for imposing custodial remand to ensure that the welfare of the child is at the forefront of the court’s mind and promote a child-first approach to decision making. We are also strengthening the sentencing condition to ensure that the mere possibility of a custodial sentence would not on its own necessarily warrant custodial remand. Similarly, a relatively minor or fairly recent breach should not, on its own, justify remand. We are reinforcing the history condition so that only a recent, significant and relevant history of breaching while on bail should be taken into account to justify custodial remand. The current tests already require the court to satisfy itself that a child can be remanded to custody only where it is necessary to protect the public from death or serious harm. We are reinforcing that necessity condition by making it clear that it means when the risk posed by the child cannot be managed safely in the community. These measures, taken together, significantly elevate and strengthen the test for child remand to custody.
Alex Cunningham
Will the Minister confirm whether there is likely to be some form of time limit relating to the recent history of the child?
Chris Philp
The shadow Minister leads me to his amendment 128, to which I was going to speak in a moment, but I shall address it now as he has raised it. There will not be a hard or specific time limit in the way that his amendment specifies six weeks. We think that a hard-edged limit of six weeks specified so precisely would unduly fetter judicial discretion. The judge should be able to make a judgment in the round, taking into account all the considerations. A hard cut-off of six weeks is too binary. It is made clear that the judge needs only to look at circumstances where there is a history of breach or offending while on bail that is recent, significant and relevant. That is quite a high test, but we do not propose to go as far as amendment 128 does in specifying six weeks. We do not support the amendment for that reason, although, in spirit, our clause as drafted is pushing in a very similar direction. We just think that six weeks is too precise and that the judge should have some residual discretion.
Before moving to amendments 129 and 130, I would like to touch on a question that the shadow Minister raised about whether police remand almost inevitably and inappropriately leads to custodial remand. He said that could be because there is not enough time to consider bail arrangements and that it could create a sense of bias because, if the judge sees the person in the dock, it may lead them to believe that they are a more serious offender. I do not accept either argument. The statistics that he himself gave a minute or two later support that. He said that only 12% of children going into police remand end up in custodial remand. That demonstrates that 88% of children on police remand do not go into custodial remand, which suggests that there is not a strong linkage in the way that he feared there might be.
Alex Cunningham
We need some clarity around the 12% and the 88%. My point is that the police are remanding into custody a very high proportion of children who do not then go on to receive a custodial sentence. That is the problem, not the other way round.
Chris Philp
I think that the shadow Minister also pointed out to the Committee that there is a 24-hour time limit on police remand for children, so it is an extremely short period of time. For that very short window before the court appearance, it ensures that the police do not lose control of the person in their care. Clearly, if that was going on for days or weeks, it would be a matter of concern, but it is a very short time window, as he said.
The shadow Minister’s amendment 129, on the necessity condition, proposes the insertion of the single word “serious”. I contend that any imprisonable offence is in itself serious but, more broadly, we are again relying on judicial discretion. We do not want to unduly fetter the judge’s discretion. The provisions in clause 131 as drafted will send a fairly clear signal to the judiciary that this is something that should be taken very seriously in making these decisions and that Parliament does not want children remanded to custody lightly or inappropriately. The clause as drafted makes that pretty clear. It also makes it clear that not only do the conditions that we have talked about have to be met but, in the opinion of the court, the risk posed cannot be managed safely in the community. Clause 131 as drafted sends a very clear message that custodial remand should indeed be a last resort.
Amendment 130, proposed by the shadow Minister, would require the court to state in open court the age, sex and ethnicity of a child remanded to custody. In all honesty, we believe that the amendment is unnecessary because the data is already collected and published, so the information is there already. The important point about the new record being created is that the reasons for custodial remand have to be spelt out expressly to ensure that the court is properly considering those things. We can then be absolutely assured that the court has to consider those matters and record them so that they are there to look at subsequently and be reviewed, not forgotten in the rush of a court appearance. The substance is captured already by the requirements in clause 131. It seems that both sides of the Committee broadly agree on this, so I do not think that amendments 128 to 130 are particularly necessary, although I do understand the spirit in which they are moved.
Alex Cunningham
I am grateful to the Minister for his response. I am prepared to withdraw amendment 128, given his explanation, but I ask that he look seriously at time limits, whether in some form of guidance from the Department or otherwise.
On police remand, I am still very concerned that the police are far, far more likely to remand a child in custody than a court is. I ask that the Minister think again and review the advice given to police officers to try to reduce the number of children who are automatically remanded to custody. I am content with the Minister’s explanation on amendment 129 and I will not press it.
When it comes to data, as the Minister will know because I assume that he signs them all off, I get lots of answers to written parliamentary questions saying that the information cannot be provided because it is not available or it can be provided only at disproportionate cost. If we do not gather the data, I will get more of those answers from the Minister, so I intend to press amendment 130. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment proposed: 130, in clause 131, page 123, line 3, at end insert—
“(aa) after subsection (4)(b) insert—
“(c) state in open court the age, gender and ethnicity of the child.””––[Alex Cunningham.]
Question put, That the amendment be made.
The Chair
I have a suspicion, but I could be wrong, that we had quite a broad canter round the principles of clause 131. Does anybody want to debate it again, or are we happy to dispose of it? Excellent.
Clause 131 ordered to stand part of the Bill.
Clause 132
Discretion as to Length of Term
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss the following:
Clause 133 stand part.
Clause 134 stand part.
That schedule 15 be the Fifteenth schedule to the Bill.
Chris Philp
We want a youth justice system that recognises the unique needs of children, tackles the underlying reasons why children offend and intervenes early to provide support and divert them where possible. There is a distinct and separate sentencing framework for children aged 10 to 17, which recognises that children have their own specific needs that require a different and tailored approach.
The clauses and schedule amend existing legislation to enable us to make the necessary changes to the most common youth custodial sentence, the detention and training order, or DTO. The changes are to make the DTO more flexible, fairer and more in line with other youth custodial sentences.
In that spirit, clause 132 amends the sentencing code to remove the fixed lengths of the DTO, meaning that any length of DTO between four months and 12 months can be given. The court can pass the right sentence instead of being constrained to give only sentences of DTOs of four, six, eight, 10, 12, 18 or 24 months. Removing those very fixed lengths does not change the maximum or minimum sentence but just means that any length of sentence can be given between the limits of four and 24 months. Removing the fixed lengths also means that the reductions made for time spent on remand that we have just been talking about, or bail, which is subject to a qualifying curfew condition and an electronic monitoring condition, and for a guilty plea, will be more accurate. At the moment, there is not always a DTO length that directly fits once remand, bail or guilty pleas have been considered, and the court must instead refer the sentence to one of the fixed lengths of four, six, eight, 10, 12, 18 or 24 months. With the proposed changes, the court may go between those sentence lengths, if it needs to, to fit in with the reductions for time spent on remand and so on. It is a fairly straightforward change, which makes a great deal of sense.
Clause 133 amends the sentencing code and the Criminal Justice Act 2003 to fix a current inconsistency in relation to early release. That inconsistency means that different lengths of early release are available for offenders sentenced consecutively to a DTO and another sentence, depending on the order in which they receive those sentences. The change means that where an offender is serving a DTO and another sentence consecutively, the offender may benefit from the same amount of early release, regardless of the order in which sentences are given. I think that is a fairly innocuous and sensible technical change to the 2003 Act.
Clause 134 introduces schedule 15, and that schedule amends the 2003 Act and the sentencing code, so that time spent on remand and bail, where that bail is subject to a qualifying curfew condition and an electronic monitoring condition—a tag—is counted as time served and credited accurately against the custodial part of the DTO. That is a change to the current approach, where time on remand or bail is taken into account when determining the length of the DTO, rather than being credited as time served. The schedule also makes further amendments where an offender is given two or more sentences, of which one is a DTO. Those sentences are treated as being a single term for the purposes of crediting the days spent on remand or bail. The schedule also makes changes to the Armed Forces Act 2006 to make sure that there is consistency.
Those are relatively technical and, I hope, relatively straightforward changes.
Alex Cunningham
We all recognise that DTOs are the most common custodial sentence for children. Between 2010 and 2019, 20,000 offenders under the age of 18 were sentenced to a DTO. It is important that we get this right. We are tentatively supportive of the proposals in the clauses, and I look forward to the Minister’s response, which will I hope will be able to allay some of our concerns.
As the Minister has outlined, DTOs currently have to be of a fixed length. I have some sympathy with the Government’s view that having such fixed periods restricts the courts in deciding the most appropriate length of sentences. Clause 132 will address that by removing the fixed length and providing that a DTO must be for at least four months and no longer than 24 months. We agree with the Government that is important that the minimum period for a DTO is retained to ensure that extremely short, unhelpful and, indeed, counterproductive custodial terms are not given out.
I do wonder, however, whether four months is still too short, and I question the real benefits of such a short sentence. Clause 133 provides that where an offender is given two or more sentences, one of which is a DTO, those sentences are to be treated as a single term for the purposes of crediting days spent in custody, or in qualifying for bail. The explanatory notes state that this clause is intended to
“fix an existing discrepancy in relation to early release which meant that different lengths of early release were available for offenders sentenced to a DTO and another sentence consecutively, depending on the order in which they received those sentences.”
The clause aims to ensure that
“where an offender is serving a DTO and another sentence consecutively, the offender is able to benefit from the same amount of early release regardless of the order in which the sentences are given.”
Clause 134 and schedule 15 provide that time spent on remand or bail subject to a qualifying curfew condition and an electronic monitoring condition is counted as time served and credited against the custodial part of the DTO.
Taken together, the clauses increase the flexibility in the system for sentencers and should mean that the sentence length can accurately account for remand episodes already served, electronically monitored bail or a guilty plea, rather than nearest permissible length based on the fixed tariffs that currently exist.
I note that the Youth Justice Board for England and Wales broadly welcomes these proposals as well. It notes that the changes may help to solve the issue whereby the fixed lengths of the DTO sentences held the potential to create a barrier to resettlement—for example, where a fixed sentence length would mean that a child would be released just after September and therefore miss out on the intake of a new school or college year. In this instance, the fixed terms would push children out of education for longer than necessary. The more flexible approach proposed here by the Government can help to address such issues.
On the face of it, these reforms seem sensible, and like something we would support. However, the impact assessment contains some concerning projections, on which I would welcome the Minister’s thoughts. The impact assessment notes an unfortunate adverse impact of removing the fixed-term nature of DTOs, in that individuals who receive early guilty plea discounts under the current system may receive longer sentences than they currently do. While there will be no additional children sentenced to DTOs under this option, the Youth Justice Board has said that it anticipates that the increase in average sentence length may lead to a steady-state increase in the youth custody population of around 30 to 50 places, costing around £5.3 million to £8.5 million per year. It has said that there would also be an equivalent uplift in the number of children supervised in the community at any one time at a cost of around £0.4 million to £0.6 million a year.
The Government’s impact assessment predicts that the proposals will increase the steady-state number of children in custody by up to 50 children by 2023-24, costing the youth custody service between £38.6 million and £61.4 million. That is of very serious concern to the Opposition. We share the Government’s stated vision of reducing the number of children in custody, and there has been great progress in that area over the past decade. The number of children in custody has decreased by about 75%, for which the Government ought to be applauded. It would be a terrible shame if we were to roll back any of the progress that has been made in this area, especially as I know how proud the Justice Secretary is of the work that has been done.
I would be grateful for the Minister’s thoughts on how these proposals can be introduced without increasing the number of children in custody. Let us remember that it is the Youth Justice Board that is saying this will happen. Does the Department intend to introduce any safeguards in this area? The Opposition would like safeguards to be put in place to help to avoid the possibility of children spending longer than necessary in custody, which could also mean an increase in the number of children in a secure establishment at any one time.
I would also welcome a reassurance from the Minister on a further point raised by the Youth Justice Board in its briefing. It notes that the impact assessment states:
“Time spent on remand will be taken away from time to serve in custody as opposed to from the overall sentence length. There will be some individuals that spend longer on supervision in the community under this option, which would incur additional YOT costs. It has not proved possible to quantify these additional costs.”
We recognise that it might be beneficial for children to spend longer with the support of the youth offending team as opposed to being in custody, but there is of course an attendant impact on youth offending team budgets, which are already stretched. The Youth Justice Board says:
“Some children may spend longer on the community part of the order which gives youth offending teams more time to work with them but there is no evidence to support this as a benefit.”
The Youth Justice Board also notes that a cost-benefit analysis of these proposals, in terms of the additional spend for youth offending teams, would be helpful. Will the Minister provide such a cost-benefit analysis? Will he also confirm whether youth offending teams will be provided with appropriate further resource to handle any increased workload as a result of these proposals?
Chris Philp
I am glad that the shadow Minister welcomes the broad thrust of these changes. That is very welcome indeed. In response to his questions about the impact assessment, it is important to say that it makes it clear on the second page that
“there will be no additional children sentenced to DTOs”.
The question therefore arises: why, then, will there be this very slight increase in the population, of between 30 and 50 places? The reason, as far as I can see, is that where the DTO sentence length falls between the two fixed points, at the moment it gets rounded down to the lower of the two, whereas under these proposals it can be calculated precisely. No additional people will be subject to a DTO; however, we will no longer have this rounding-down effect. In a sense, when we account for the time served and so on, and particularly the early plea discount, at the moment there is an inappropriate rounding down, because of the fixed points, which will now be eliminated. The time served will therefore better reflect the law and the court’s intention, and that will lead to a very slight increase in the number of people subject to these orders at any given point. However, the total number receiving the order will not change.
Alex Cunningham
I accept that the total number receiving the orders will not change, but does the Minister not accept, and regret, that these proposals will lead to some children—it might only be a handful—being subjected to more time in custody than they would be under the current system? If he does accept that, what will he do to try to change it?
Chris Philp
It is more that, owing to an anomaly in the current system that is a consequence of the fixed points, people are being let out slightly early. This change really means, among other things, that the law as written can be fully implemented, rather than this little rounding anomaly occurring. However, I stress that the effect is very slight.
Chris Philp
By the way, I should take this opportunity to thank the shadow Minister for his earlier commendation of the Government’s record on reducing unnecessary child imprisonment.
In answer to the shadow Minister’s last question, which was about youth offending teams and longer time potentially being spent under their care, clearly it is our hope and expectation that youth offending teams will be effective—indeed, they are effective—in helping to divert young people on to a better path in life. We are generally increasing resources in this area, and I hope that that will have precisely that effect.
Question put and agreed to.
Clause 132 accordingly ordered to stand part of the Bill.
Clauses 133 and 134 ordered to stand part of the Bill.
Schedule 15 agreed to.
Clause 135
Youth rehabilitation orders
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss the following:
Amendment 122, in schedule 16, page 255, line 26, at end insert—
“(2A)After sub-paragraph 4(1) (Duty to give warning or lay information relating to breach of order), insert—
“4 (1A) For the purposes of this paragraph, a reasonable excuse for breach of an electronic compliance monitoring requirement shall include design faults in any necessary electronic apparatus, including (but not limited to) poor battery life; but shall not include intentional failure by the offender to charge necessary electronic apparatus.””
This amendment would introduce a safeguard to prevent children from being criminalised due to design faults, including poor battery life, on electronic monitoring devices.
Amendment 120, in schedule 16, page 258, line 34, at end insert—
“24(1) Paragraph 35 of Schedule 1 (Further provisions about youth rehabilitation orders) of the Criminal Justice and Immigration Act 2008 is amended as follows.
(2) In sub-paragraph (1), for “The Secretary of State may by order” substitute “The Secretary of State must by order”.
(3) In sub-sub-paragraph (1)(a), omit “enable or”.”
This amendment would make panel reviews of youth rehabilitation orders routine by amending Paragraph 35, Schedule 1 of the Criminal Justice and Immigration Act 2008.
Amendment 121, in schedule 16, page 258, line 34, at end insert—
“24(1) Paragraph 3 of Schedule 1 (Further provisions about youth rehabilitation orders) of the Criminal Justice and Immigration Act 2008 is amended as follows.
(2) At end insert—
“(6) The Secretary of State shall take steps to ensure that there are sufficient resources in place to allow for a court to make a youth rehabilitation order with intensive supervision and surveillance in all appropriate cases.””
This amendment would require the Secretary of State to ensure that intensive supervision and surveillance is available in all youth offending areas.
That schedule 16 be the Sixteenth schedule to the Bill.
I call the Minister.
The Chair
There are amendments, so if you wish to start, Mr Cunningham, by all means fire away.
Alex Cunningham
I am sure you will be sending out for ice creams within the next half hour.
Alex Cunningham
I rise to speak to amendments 120, 121 and 122, standing in my name. Youth rehabilitation orders currently permit courts to impose a choice of 18 requirements from which a sentence can be designed. This also provides for two high-intensity requirements, intensive supervision and surveillance, or ISS, or intensive fostering, as alternatives to custody. The proposals in the Bill would make several changes to youth rehabilitation orders which I will consider in turn.
Chris Philp
As we have said previously, and as I think the Opposition would agree, we believe that, wherever possible, children who offend should be managed in the community, as it is better for their rehabilitation and therefore wider society, as it is less likely that they will reoffend. In that spirit, clause 135 introduces and refers to schedule 16, which makes amendments to YRO provisions set out in the Criminal Justice and Immigration Act 2008 and in the sentencing code, which we believe will give the courts and the public confidence in YROs as an alternative to custody. The amendments are listed in schedule 16 and include the introduction of a new electronic whereabouts monitoring requirement and changes to the YRO with intensive supervision and surveillance, ISS, a high-intensity alternative to custody, with mandatory extended activities, supervision and curfew requirements.
Alex Cunningham
I understand the Minister’s explanation on amendment 120 but feel that there should be an opportunity for far more reviews in this space. I hope that the system out there will look at that far more closely.
In relation to the intensive supervision and surveillance provisions, it is nonsense that a child in London may be subject to a completely different set of penalties from those facing a child in Sunderland. There should be consistency in the availability of orders. For me, that means that the Government should be directing the development of these orders across the country.
While the £7 million increase is very welcome, I am sure that it will have to do many, many things in the system. We keep getting referred to the same sums of money but more tasks have to be covered within that particular budget. I intend to test the Committee on amendments 121 and 122 because the Government have a long way to go to sort out faulty monitoring systems. We want to be on the side of the child. We do not want them criminalised through no fault of their own.
Question put and agreed to.
Clause 135 accordingly ordered to stand part of the Bill.
Amendment proposed: 122, page 255, line 26, in schedule 16, at end insert—
“(2A) After sub-paragraph 4(1) (Duty to give warning or lay information relating to breach of order), insert—
‘4 (1A) For the purposes of this paragraph, a reasonable excuse for breach of an electronic compliance monitoring requirement shall include design faults in any necessary electronic apparatus, including (but not limited to) poor battery life; but shall not include intentional failure by the offender to charge necessary electronic apparatus.’”—(Alex Cunningham.)
This amendment would introduce a safeguard to prevent children from being criminalised due to design faults, including poor battery life, on electronic monitoring devices.
Question put, That the amendment be made.
The Chair
Before we move on, it has come to my attention, courtesy of the Whips, that there will be a vote in the House at 4.30 pm. I am sure that none of you want to come back afterwards. It is up to you if you do, but I thought I would bring the Whips’ discussion to a wider audience, so we know what their ambition is for the Committee.
Clause 136
Abolition of reparation orders
Question proposed, That the clause stand part of the Bill.
Chris Philp
Given your suggestion, Sir Charles, I will place a premium on brevity. Clause 136 is straightforward. We believe that restorative justice is an important part of the justice system. However, the reparation order itself has been made redundant, having been overtaken by the evolution of the wider youth justice sentencing framework. Instead, referral orders and youth rehabilitation orders now provide a wider range of interventions, including elements of restorative justice, and are more flexible than a reparation order. They have essentially replaced reparation orders.
Also, reparation orders cannot be given in conjunction with a referral order or a youth rehabilitation order, which significantly reduces the circumstances in which they can be used. As a consequence, reparation orders have dropped out of usage—they dropped by 98% over the last decade because the other disposals have taken up the slack. Only 51 have been handed down in the year to March 2020. It is by far the least-used non-custodial disposal. Therefore, in the interests of clarity and simplicity, the clause abolishes the reparation order to enable those other forms of disposal to be used, as they are used anyway.
Alex Cunningham
As the Minister explained, the clause would abolish reparation orders, which require the child to make practical amends to the victim or other affected party. The Government White Paper noted that the orders are little used, probably as they have been replaced by some of the more widely used sentencing options, and so have become redundant.
Reparation orders are the least used orders in the children’s sentencing regime, too. Between 2010 and 2019, around 5,000 offenders under the age of 18 were sentenced to reparation orders. The number of reparation orders handed down fell in each year during that period. In 2019, 66 of those sentences were passed, compared with 2,400 in 2010. In the year ending March 2020, there were just under 16,900 occasions where children were sentenced at court; only 51 of these were reparation orders.
While it is not clear why the use of the order has fallen so sharply, it has been suggested that it is as a result of changes in the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which removed restrictions on the use of cautions and conditional cautions, which means that children who may have proceeded to court are possibly now receiving out-of-court disposals, which is a good thing. Do the Government plan to do any research to confirm this suggestion? I think it could be helpful if they did so, since this is quite a significant change in sentencing patterns, and it would be helpful to better understand how restorative justice processes are now manifesting themselves, given that usage is low and that reparation can also be included in other sentences, such as the referral order and youth rehabilitation order.
We support the removal of reparation orders and support the clause.
Question put and agreed to.
Clause 136 ordered to stand part of the Bill.
Clause 137
Temporary release from secure children’s homes
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to consider:
Amendment 123, in clause 138, page 126, line 40, at end insert—
‘(8) A secure 16 to 19 Academy will be subject to annual inspection by Her Majesty’s Chief Inspector of Prisons.”
This amendment would make secure 16 to 19 academies subject to annual inspection by Her Majesty‘s Chief Inspector of Prisons.
Amendment 133, in page 126, line 40, at end insert—
‘(8) A secure 16 to 19 Academy will be subject to annual inspection by Ofsted.”
This amendment would make secure 16 to 19 academies subject to annual inspection by Ofsted.
Amendment 146, in page 126, line 40, at end insert—
‘(8) A local authority may establish and maintain a secure 16 to 19 Academy.
(9) A body corporate (including any of its subsidiaries) that is carried on for profit may not be a party to an arrangement to establish and maintain a secure 16 to 19 Academy.”
This amendment would enable local authorities to run Secure 16 to 19 Academies, either alone or in consortia, and to prevent these establishments being run for profit.
Clause 138 stand part.
Alex Cunningham
Secure children’s homes accommodate boys and girls aged 10 to 17 assessed as particularly vulnerable. As well as children held on justice grounds, secure children’s homes accommodate children detained on welfare grounds for their protection or the protection of others. The explanatory notes state that they
“currently rely on inherent powers to make arrangements for the ‘mobility’ of children detained in such accommodation to help address their offending behaviour and to support the integration of children back into the community at the end of their sentence. Clause 137 would provide a statutory power for the temporary release of children detained in SCHs. The Secretary of State or the registered manager of the home would be able to temporarily release a child to whom the clause applies. Temporary release under this clause could be granted under conditions. The Secretary of State and registered managers would have concurrent powers to recall children temporarily released…If the period for which the child is temporarily released expires or if the child has been recalled, the child would be deemed to be unlawfully at large.”
Overall, we are supportive of the Government’s proposals in this area and recognise that a good balance has to be struck between allowing temporary release of children from secure children’s homes to support their reintegration into society, and close monitoring of children on temporary release for risk management purposes.
The Opposition understand that temporary release is an important part of the rehabilitation process for children sentenced to custody, and that some child sentence plan objectives will require them to attend meetings or participate in activities outside the secure establishment. As the Youth Justice Board notes in its briefing,
“Allowing children to be released temporarily supports their constructive resettlement into their community both in maintaining family ties and allowing children to start or maintain education placements.”
While the clause is effectively just putting into statute practice that is already in place, we are pleased to see the Government conferring authority for these decisions and processes to the secure school provider, as they will be best placed to support the child in question.
Research published by the Department for Education comparing children on justice placements and those on welfare placements in secure children’s homes concluded that children on justice and welfare placements are fundamentally the same children. The research found that the level of risk posed by individual children was not related to whether they were on a justice or welfare pathway. The report examined whether there was a need to separate children on justice and welfare placements, but concluded that, rather than separating them, if anything the children would benefit from greater integration. While secure children’s homes managers already have powers under section 25 of the Children Act 1989 to consider and approve temporary release for children on welfare placements, we are pleased that the new provisions will put those managers in the same position for sentenced children on justice placements.
We note the concerns of the Howard League, however, that the clause applies only to children who have been sentenced and therefore excludes children who are held in secure children’s homes on remand from being able to access temporary release. The Howard League points out that this change will therefore create a disparity between children who are in secure children’s homes and children who are in secure training centres. Rule 5 of the Secure Training Centre Rules allows children who are on remand to be temporarily released. It explains that unless temporary release also applies to children on remand in secure children’s homes and schools,
“there is a risk that this will undermine the ‘seamless service’ between custody and the community which the Government envisions for secure schools”
We agree with the Howard League that all children remanded to custody should have access to temporary release where appropriate, as they do in secure training centres.
The Bill’s fact sheet on this provision says temporary release is “not a relevant factor” for children on remand. I find this surprising given that we know that, as a result of court delays, children are sometimes subject to quite lengthy custodial remands. The Alliance for Youth Justice further points out:
“introducing new legislation which restricts temporary release in Secure Children’s Homes to sentenced children would be detrimental, particularly to the development of Secure Schools, which we know have ambitious plans for transitions into the community.”
I would be interested to hear the Minister’s thoughts on this and wonder why this distinction has been maintained. Will he consider including children on remand in these provisions? It would be helpful to be reassured on that point, but on the whole we are pleased with the proposal and will offer it our support.
As we have heard, clause 138 would amend the Academies Act 2010 so that 16-to-19 academies can provide secure accommodation for the purpose of restricting liberty but only if approved to do so by the Secretary of State. On the whole, the Opposition support the principle of secure academies and we do not strongly object to these academies being run by charitable entities. But, as ever, there are some areas in which I seek the Minister’s reassurances, especially with this clause, as comprehensive information is not available from the Government.
The Alliance for Youth Justice briefing on this clause says:
“We are aware of concerns that have been prompted by this section of the Bill around the lack of clarity on the status of Secure Schools, in particular what legislation, regulation and guidance will govern and oversee their activities. It has been confirmed to the AYJ by the Youth Custody Service and Oasis Charitable Trust, that Oasis Restore, the first Secure School pilot, will be registered as a Secure Children’s Home and regulated by Ofsted. It has also been confirmed that 12-to-18-year-olds may be placed in Oasis Restore.”
There is clear discomfort in the sector about the limited information available on the plans for Oasis Restore and how the model will operate in practice. Can the Minister confirm that his Department will publish more information on this? Can he provide a timeframe for publication?
Another issue raised by the sector is that it is unclear how the introduction of secure schools fits into the long-term strategy for the youth secure estate. I understand that it is the Government’s stated intention for secure schools to replace young offender institutions and secure training centres, but we have not yet seen any proposed timeline for such changes. Can the Minister provide more information on his Department’s intended timeline for the changeover to secure schools for the Committee today?
The first secure school is being established in Medway, but I understand that children from across the UK can be sent there. Hazel Williamson put it very well in our evidence session when she said:
“As an association of YOT managers, we believe that children in custody…should be placed in small, secure units close to their homes. We do not advocate large custodial establishments where children are placed far away from their home; we would advocate small custodial units.”––[Official Report, Police, Crime, Sentencing and Courts Public Bill Committee, 20 May 2021; c. 133, Q212.]
Can the Minister confirm that the Government’s timetable for delivering secure schools will not entail children being detained hundreds of miles from their homes while still only a small number of these establishments are available?
The Youth Justice Board has shared its concerns about the links to children entering the youth justice system from practices such as off-rolling children. Indeed, there is a high prevalence of expelled children in the children’s secure estate. For instance, in 2018 in HMYOI Feltham, 89% of children had been excluded from school.
Can the Minister confirm that any academy trusts selected through the tendering process to open or run a secure school have got, as the Youth Justice Board put it
“the necessary skills, expertise, structures and ethos to support children in a secure setting”?
I know that the Howard League wrote to the Secretary of State on this issue last year, and its briefing says:
“This clause provides a legal basis for the ‘secure school’ model of youth custody: it allows academies to provide secure accommodation for their pupils if they have been approved to do so and establishes that running a secure academy is to be treated as fulfilling the charitable purpose of ‘advancement of education’ under s3(1) of the Charities Act 2011. In April 2020, the Charity Commission noted that ‘the proposed purposes of secure schools, as we understand them, do not wholly fall within the descriptions of purpose in s3(1) of the Charities Act 2011’ and that ‘we do not think the operation of a secure school can be exclusively charitable’. In November 2020, the Howard League wrote to the Secretary of State outlining the concerns that locking children up does not fall within charitable objectives. The proposal compounds this issue.”
It would be helpful if the Minister could share with the Committee his discussions with the Charity Commission, so that we all better understand the position that has been reached on this knotty issue.
Amendments 123 and 133 both relate to the inspection regime for secure 16-to-19 academies. Amendment 123 would make secure 16-to-19 academies subject to annual inspection by Her Majesty’s chief inspector of prisons, and amendment 133 would make them subject to annual inspection by Ofsted. I understand that the current inspection framework will come from Ofsted. However, I am sure the Government would agree that a secure school is a very different entity from a standard school. We therefore believe that such schools would benefit from a different inspection regime, to ensure that no aspects of their running are overlooked. Although it is true that it is not a prison, a secure school is still part of the secure estate, so there is expertise that Her Majesty’s Inspectorate of Prisons can provide. Indeed, when Ofsted does inspections on the secure estate, HMIP is part of the broader inspection team. We think the inclusion of HMIP is important and should be put on a statutory footing. I hope the Government agree that it would add value to the monitoring and running of the secure school system as it is rolled out, so I hope they will be able to support our amendment 123.
As I outlined in my earlier speech, there is still much that is unknown and has yet to be decided in relation to secure schools. For that reason, we think it would be important for there to be regular inspections, especially in the early years of operation. That is why our amendment 133 provides for annual inspection by Ofsted, to ensure that nothing slips through the cracks. Furthermore, we are entrusting such schools with the care of some of our most vulnerable children at a point in their lives when positive and engaged care can have the most impact, so it is only right that the schools are subject to the most rigorous monitoring while they do so. I hope that the Government agree and can support amendment 133.
Amendment 146, which was tabled by my hon. Friend the Member for Rotherham, allows for local authorities to establish and maintain a secure 16-to-19 academy, and to exclude profit-making bodies from doing likewise. I am sure she will address her amendment in detail, but she has our support.
Sarah Champion
My amendment 146 is designed to ensure that local authorities are able to run secure 16-to-19 academies, either alone or in consortia, and to prevent such establishments from being run for profit. I will go into the detail of why, but, fundamentally, I do not think profit should be made from keeping our children safe. We are seeing some pretty gross examples of that at the moment.
In December 2016, the Government committed to phase out child prisons—by that, I mean juvenile young offenders institutions and secure training centres—and to replace them with a network of secure schools and children’s homes. I hope that this is not just the Government playing semantics and that they really are going to get rid of these institutions, because it is very clear, and the Youth Justice Board concedes, that secure training centres are not fit for purpose.
The Government must speed up the phasing out of secure training centres. When introducing secure schools and academies, they must ensure that they will meet high standards of care. We must ensure that secure children’s homes take an approach that fulfils all of a child’s needs and that they are not seen as cash cows for the private firms who run them to make huge profits.
The Chair
The vote might come at quarter past 4, although the Whips will be better informed of that than me, and the Whip cannot move the adjournment while someone is speaking, I just remind him of that.
Chris Philp
With that thought in mind, I will try to deal with the important points raised as quickly as I can.
We recognise that young people in detained accommodation or in custodial settings need a lot of support. Secure schools are being developed to do precisely this.
To support this, we think it is important that secure schools are provided by people who have a certain level of autonomy. Many charities have the necessary skills to do this. That is why, starting with clause 138, we are ensuring that providing a secure 16-to-19 academy can be counted as a charitable activity, enabling charitable secure school providers to improve outcomes in youth custody.
We always take changes to charities law seriously. We have to ensure that charities are properly regulated. The Ministry of Justice has worked closely with the Charity Commission and the Department for Digital, Culture, Media and Sport to make sure that is done in a way that preserves the integrity of charity law.
Clause 137 ensures that there is a clear statutory power to enable providers to allow for temporary release where someone is sentenced to custody, which applies to secure schools as well. It is important that these children can be released into the community as part of the rehabilitation that we want to do with them. This clause puts that release provision on a statutory footing. We think that temporary release provisions are an essential tool in the rehabilitation journey, and this makes sure that can happen.
The Youth Custody Service and secure children’s homes that make temporary release decisions always do so subject to proper risk assessments. The YCS will develop formal guidance for SCH managers, outlining the necessary steps to be taken when making a balanced temporary release decision. Both these measures are helpful in ensuring that charities are able to come into this space to provide these services and that temporary release can be facilitated as part of the rehabilitation package, all of which is important.
Amendments 123 and 133 speak to the inspection regime. Like other academies and children’s homes, secure schools will be jointly inspected by Ofsted and the Care Quality Commission. They will also be inspected monthly, not annually, by independent visitors. As co-commissioners for secure schools, the Youth Custody Service and NHS England will be responsible for ensuring high standards of performance. The minimum frequency of inspection is also set out in the regulations.
As secure 16-to-19 academies will fall under the definition of a children’s home in the Care Standards Act 2000, they will be inspected on an annual basis in any case. The definition of children’s home in the Children’s Home (England) Regulations 2015 makes it clear that they will fall under the frequency of inspections regulations, so they will be annually inspected in any case, making amendment 123 unnecessary.
We have consulted HMCIP on the question of inviting it into the inspection regime, and it agrees with the Government’s position. Although secure schools are a secure environment, they are essentially schools and children’s homes, and so should be inspected by Ofsted and the CQC. Involving the prisons inspectorate in these institutions would run counter to the ethos we are trying to develop.
In speaking to amendment 146, the hon. Member for Rotherham made a compelling contribution on some of the failings that have occurred in the past, which we all agree we want to avoid. We are clearly talking about the new secure 16-to-19 academies. I want to speak to the concern about the profit motive, which amendment 146 addresses. As part of the existing academies legislation, an academy trust is, by definition, a not-for-profit charitable company, so I can confirm to the hon. Member and other members of the Committee that because academy trusts have to be not-for-profit by their nature, this new provision does not open up the possibility of introducing the profit motive into the provision of these secure schools.
I hope that my remarks achieve the twin objectives of giving commitment and assurance on these clauses, as well as avoiding a clashing with a vote that may be imminent.
The Chair
The hon. Member for Rotherham looks happy. I will ask her if she is happy in relation to her amendment, but I will first go to the shadow Minister.
Alex Cunningham
I think we have to be very clear that we are talking about the incarceration of some of the most vulnerable young people in our society. I believe that we owe them a duty of care. When I was a local councillor and a lead member for children, I was a corporate parent for looked-after children, and I was responsible for them. We as MPs should be responsible for children in our society, particularly when we are dealing with such issues. I cannot understand for one minute why the Government would not want the most rigorous inspection regime possible.
What the Government are proposing is actually a testbed on how we look after those vulnerable children in future. It is a testbed; it has not been sorted, nothing has happened, and there here have been no pilots—nothing. Yet the Government are quite content to rely on independent visitors and inspections by different organisations. The most robust possible inspection of those establishments would certainly by conducted by HMIs and Ofsted.
History shows us—my hon. Friend the Member for Rotherham gave some examples—that if we do not get this right, in future, the responsibility for that child who dies, or that child who gets abused, will lie at our door and with nobody else, because we may not have made sure that they had the most rigorous inspection regime possible. For that reason, even though Her Majesty’s inspectors do not wish to get involved in this, I think their expertise should be put to good use, and I intend to press both amendments to a vote.
Sarah Champion
I do not wish to divide the Committee. I am content with what the Minister said about profit, but I would be grateful if he could write to me about why local authorities cannot apply.
The Chair
Excellent.
Question put and agreed to.
Clause 137 accordingly ordered to stand part of the Bill.
Amendment proposed: 123, in clause 138, page 126, line 40, at end insert—
“(8) A secure 16 to 19 Academy will be subject to annual inspection by Her Majesty’s Chief Inspector of Prisons.”—(Alex Cunningham.)
This amendment would make secure 16 to 19 academies subject to annual inspection by Her Majesty’s Chief Inspector of Prisons.
Question put, That the amendment be made.
Police, Crime, Sentencing and Courts Bill (Fifteenth sitting)
Thursday 17th June 2021
(2 years, 10 months ago)
Public Bill CommitteesRead Full debate Police, Crime, Sentencing and Courts Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 17 June 2021 - (17 Jun 2021)
The Chair
Good morning. Before we begin, let me remind you of the preliminaries. I remind Members to switch electronic devices to silent; that Mr Speaker does not permit food or drink during the Committee; to observe social distancing and only sit in the appropriate seats; and to wear face coverings in Committee unless you are speaking, obviously, or are exempt. If you could pass any speaking notes to Hansard, they would be very grateful.
The selection list for today’s sitting is available in the room. I remind Members wishing to press a grouped amendment or a new clause to a Division to indicate their intention when speaking to their amendment.
The Parliamentary Under-Secretary of State for the Home Department (Chris Philp)
On a point of order, Mr McCabe. Colleagues will recall that I made the point on Tuesday that the cliff edge for an extended determinate sentence, referred to by the hon. Member for Stockton North, can occur where an EDS prisoner is recalled and then serves the remainder of their custodial sentence and licence period in prison. I am sure Committee members knew that, but for absolute clarity I thought I would put it on the record.
Sarah Jones (Croydon Central) (Lab)
I beg to move amendment 101, in clause 139, page 128, line 42, at end insert—
“(9A) If the order is made before regulations have been made under section 175(1) of the Police, Crime, Sentencing and Courts Bill for the coming into force of section 139 of that Act for all purposes and in relation to the whole of England and Wales, the court must, in every case where the prosecution makes an application under paragraph (b) of section 342A(1) for a serious violence reduction order to be made, set out in writing its reasons for making, or not making, such an order.”
This amendment would require the court, during any pilot of serious violence reduction orders, to set out in writing its reasons for making or not making such an order.
The Chair
With this it will be convenient to discuss the following:
Amendment 103, in clause 139, page 133, line 43, at end insert—
“(3A) Guidance under this section must include guidance on the intelligence, community information and risk factors that are to be considered before an application is made for the imposition of a serious violence reduction order.”
Clause stand part.
Amendment 99, in clause 140, page 134, line 33, leave out “and (3)” and insert “(3) and (3A)”
Amendment 98, in clause 140, page 134, line 42, at end insert—
“(3A) The report under subsection (3) must include—
(a) information on the ethnicity of people made subject to a serious violence reduction order;
(b) information on the number of people made subject to a serious violence reduction order where there is no evidence of their having handled a weapon, either in the incident resulting in the imposition of the order or previously;
(c) information on the number of people stopped by a police officer in the belief that they are subject to a serious violence reduction order, broken down by ethnicity (collected on the basis of self-identification by the person stopped), and including information on the number of times any one individual is stopped;
(d) analysis of the distribution of serious violence reduction orders in relation to the ethnic make-up of the population;
(e) an equality impact assessment including an assessment of the impact of the pilot on the groups mentioned in the equality statement produced before the pilot is commenced;
(f) analysis of data assessing the extent to which the pilot has reduced serious violent crime and reoffending by comparison with other areas;
(g) an assessment by the Sentencing Council of the proportionality of the distribution of the imposition of serious violence reduction orders;
(h) analysis of (i) the impact of the length of time for which a serious violence reduction order is imposed on reoffending and (ii) the extent to which the length of time for which a serious violence reduction order is imposed has harmful impacts on the life of the individual who is subject to it;
(i) an assessment of the impact of the imposition of serious violence reduction orders on the use of ‘stop and account’ in the pilot area or areas;
(j) feedback from Community Scrutiny Panels on scrutiny of body-worn video of all stops of people subject to, or believed to be subject to, a serious violence reduction order;
(k) analysis of any adverse impact of the imposition of serious violence reduction orders, undertaken on the basis of interviews with (i) people subject to a serious violence reduction order and (ii) organisations working with young people, in addition to any other information considered relevant by the person conducting the analysis;
(l) analysis of who is made subject to a serious violence reduction order, what evidence is relied on to justify the imposition of such orders, and whether there is any bias in the decision-making process;
(m) analysis of information on the reason for each breach of a serious violence reduction order;
(n) analysis of the extent to which searches made under the powers granted by this Part could have been carried out under other powers.
(3B) Statistical information collected for the purposes of section (3A) from different pilot areas must be collected and presented in a form which enables direct comparison between those areas.”
Amendment 100, in clause 140, page 134, line 42, at end insert—
“(3A) The condition in this subsection is that consultation on the report under subsection (3) has been undertaken with anyone the Secretary of State considers appropriate, including—
(a) representatives of the voluntary sector, and
(b) representatives of communities disproportionately represented in the criminal justice system.”
Amendment 102, in clause 140, page 135, line 2, at end insert—
“(4A) Regulations under section 175(1) which bring section 139 into force only for a specified purpose or in relation to a specified area—
(a) must include provision bringing into force section 342J of the Sentencing Code (Guidance); and
(b) must provide that section 139 may come into force for other specified purposes or in relation to specified areas only once guidance has been issued under section 342J of the Sentencing Code.”
This amendment would require the Secretary of State to issue guidance on serious violence reduction orders before any pilot could commence.
Amendment 104, in clause 140, page 135, line 2, at end insert—
“(4A) The powers under section 342A(2) of the Sentencing Code are exercisable before the power in section 175(1) has been exercised so as to bring section 139 into force for all purposes and in relation to the whole of England and Wales only if every officer of any police force in an area in relation to which section 139 has been brought into force has completed the College of Policing two-day training on stop and search.”
This amendment would require all police officers in a pilot force area to have completed the College of Policing training on stop and search before the power to impose serious violence reduction orders could be used.
Clause 140 stand part.
Sarah Jones
It is a pleasure to serve under your chairmanship again, Mr McCabe. Part 10, chapter 1, introduces serious violence reduction orders. Officers would be allowed to search people with an SVRO without reasonable grounds and without authorisation, which would be an unusual stop-and-search power. In effect, SVROs are not only a new court order, but a new stop-and-search power.
Clauses 139 and 140 specifically encourage officers to search people with previous convictions. The only safeguard in the Bill is the fact that the court decides whether to apply an SVRO on a conviction or not. Once an individual has an SVRO, officers would not have to meet any legal test in order to search them for an offensive weapon.
The context is that, on this Government’s watch, there have been record levels of serious violence. Despite the fall in violent crime during the first lockdown, it exceeded the levels of the previous year by the summer; between July and September 2020, it was up 9% compared to the same period in 2019. Violent crime has reached record levels, with police dealing with 4,900 violent crimes a day on average in the last year. The police have recorded rises in violence nationally since 2014, and violence has more than doubled in the past five years. In the year ending September 2020, violence against the person reached 1.79 million offences—its highest level since comparative records began in 2002-03.
Even during the last year, knife crime increased in 18 out of the 43 forces—44% of forces—despite the effects of lockdown. In the last year, violence made up nearly a third of all crime dealt with by the police; it was up from 16% when the Tories took office and 12% in 2002-03. Reports of violent crime have increased in every police force in the country since 2010. In four fifths of forces, violent crime has at least doubled, and knife crime reached its highest level on record in 2019-20, having almost doubled since 2013-14. There is clearly much to be done.
On the flip side, more and more violent offenders are getting away with their crimes; charge rates for violent offences have plummeted from 22% in 2014-15 to just 6.8% in 2019-20. While the total number of violent crimes recorded has more than doubled in the last 6 years, the number of suspects charged has fallen by a quarter, and the number of cases where no suspect is identified at all has nearly trebled. It is clear that the Government have a serious problem; they have let serious violence spiral out of control.
Earlier in Committee, we discussed the prevention of serious violence, and I put forward various amendments to improve clauses that we broadly welcomed. We talked about the way that violence drives violence, and said that if the Government want to properly follow a public health approach to tackling serious violence, they cannot treat it as though it happened in a vacuum. We need a proper public health approach to tackling violence that addresses the root causes of why people fall into crime, with early intervention to significantly impact the lives of vulnerable young people and communities.
It is hard to be persuaded that more sweeping powers to stop and search people with previous convictions will reduce serious violence. There is little evidence that stop-and-search is an effective deterrent to offending. That is not to say that it is not an important tool; it absolutely is and we all agree with that—nobody is saying otherwise. It is part of the police’s armoury when it comes to tackling crime.
Stop-and-search is more effective at detecting criminals, but most searches result in officers finding nothing. The key figure, which it is always important to look at, is the proportion of searches that actually result in finding something. Only around 20% of searches in 2019-20 resulted in a criminal justice outcome—an arrest or an out-of-court disposal—linked to the purpose of the search.
While evidence regarding the impact on crime is mixed, the damaging impact of badly targeted or badly conducted stop-and-searches on community relations with the police is widely acknowledged, including in my community in Croydon, where the police have put a lot of work into building community relationships to try to bridge that gap.
Sarah Champion (Rotherham) (Lab)
Is my hon. Friend interested, as I am, to see what the Government plan to do to rebuild that trust with communities, which has, unfortunately, unravelled over the last few years?
Sarah Jones
My hon. Friend makes an important point. We should remind ourselves of this: if I faced a crime, I would immediately call the police—they are the people I trust to fix it—but there are communities in our country who do not have that trust, and who do not think that calling 999 will help them, or keep them safe. We must act on that. Following Black Lives Matter and the death of George Floyd, the police in Croydon have reached out to the young black men in our community to try to build relationships. That is exactly what we should do, and it is something that all the national police organisations are looking to do.
The Library states that
“Available statistical analysis does not show a consistent link between the increased use of stop-and-search and levels of violence”.
I do not often point to the Prime Minister as an example of good practice, but in every year while he was Mayor of London, the number of stop-and-searches went down in London, as did violent crime. Interestingly, he was following a slightly different course from the one he now advocates as Prime Minister.
The College of Policing has concluded that stop-and-search should be used “carefully” in response to knife crime. The Home Office’s research found that the surge in stop-and-search during Operation Blunt 2 had
“no discernible crime-reducing effects”.
A widely cited study that was published in the British Journal of Criminology and analysed London data from 2004 to 2014 concluded that the effect of stop-and-search on crime is
“likely to be marginal, at best”.
The research found
“some association between stop-and-search and crime (particularly drug crime)”,
which I will come back to, but concluded that the use of the powers
“has relatively little deterrent effect”.
Most searches result in officers finding nothing. Officers found nothing, as we have talked about, in nearly 80% of searches in 2019-2020. Searches for drugs were more successful than average, with about 25% linked to an outcome.
The Prime Minister and the Home Secretary, when they talk about stop-and-search, talk about getting knives off the streets. However, the searches for offensive weapons and items to be used in burglary, theft or fraud were the least likely to be successful—9% were linked to a successful outcome. The results are even lower for pre-condition searches, or section 60 searches, as they are called, although the only reason officers can use the power is to search for a knife or an offensive weapon. This is a very stark statistic: in 2019-20, only 1.4% of pre-condition searches led to officers finding a knife or offensive weapon. Nearly 99% of searches did not find an offensive weapon, and obviously that has taken a huge amount of police time and resources.
In February 2021, Her Majesty’s inspectorate of constabulary and fire and rescue services published the findings of a review of 9,378 search records, 14% of which had recorded grounds that were not reasonable, and the inspectorate said the vast majority of search records had weak recorded grounds. There is a real lack of clarity on both the success of stop-and-search, and the Government’s messaging on it. They say it is to tackle knife crime and break the cycle of weapon carrying, in the interests of keeping our community safer, but actually the figures for finding a weapon are really low. The Government need to be clear about what the purpose of stop-and-search is. It seems to be that most of the positive results are in finding drugs, yet in communications they say it is about protecting families from the scourge of knife crime.
Around 63% of all reasonable-grounds searches in 2019-20 were conducted to find controlled drugs. HMICFRS says,
“The high prevalence of searches for possession of drugs…indicates that efforts are not being effectively focused on force priorities.”
What the Government do not talk so much about is the outcome of these searches; if only 20% last year resulted in an outcome, what were the Government doing with this data—what are the results? What are they doing to try to measure and improve outcomes?
It is, of course, imperative that we pass legislation to keep the public safe, but these measures are not a proportionate way of protecting the public. They risk further entrenching disparities, and there is little evidence that they would have the crime reduction impact that the Government intend. The worry is that introducing more stop-and-search powers without reasonable grounds will only serve to stoke division, and not necessarily have the intended outcome.
We have sought to amend clauses 139 and 140, and I will get to the amendments later, but first I want to set out a number of problems that could arise if these clauses were to become law. The inspectorate and the Independent Office for Police Conduct both raised concerns about reasonable grounds not being used or recorded properly. As the College of Policing recognises, requiring that objective and reasonable grounds be established before police can exercise their stop-and-search powers is key to their decision making. However, the serious violence reduction orders in these clauses will require no reasonable grounds or authorisation. When Nina Champion from the Criminal Justice Alliance gave evidence to this Committee, she said:
“Of course, we all want to reduce knife crime, but…We worry about these very draconian and sweeping police powers to stop and search people for up to two years after their release without any reasonable grounds. Reasonable grounds are an absolutely vital safeguard on stop and search powers, and to be able to be stopped and searched at any point is a very draconian move that, again, risks adversely impacting on those with serious violence reduction orders. For young people who are trying to move away from crime, set up a new life and develop positive identities, to be repeatedly stopped and searched, labelled and stigmatised as someone still involved in that way of life could have adverse impacts. It could also have impacts on the potential exploitation of girlfriends or children carrying knives for people on those orders. There could be some real unintended consequences from these orders.”––[Official Report, Police, Crime, Sentencing and Courts Public Bill Committee, 18 May 2021; c. 156, Q265.]
Many different organisations have raised concerns about the measures in clauses 139 and 140. When I have spoken to police officers about them, they say that the clauses almost came out of the blue; it does not seem that these clauses come from the police, and they do have concerns about how they will enforce them.
Allan Dorans (Ayr, Carrick and Cumnock) (SNP)
Does the hon. Lady agree with the Metropolitan Police Commissioner and me that stop-and-search powers used properly and effectively can save lives, especially among young black men?
Sarah Jones
Stop-and-search is an important tool; I would not argue with that. The key is to make sure that it is used effectively, in conjunction with good local intelligence about where crimes may have been committed. In some of our black communities in London, and some of those I visited in Glasgow, and in certain estates or postcodes, people are experiencing the same overuse of stop-and-search. Where it goes wrong is where there is not intelligence—when people are stopped simply because of how they look. That is the risk. If, under section 60, police find one knife out of every 100 people stopped, that is a lot of resource; perhaps it is not the most effective way for the police to reduce violent crime. There are concerns about how stop-and-search is implemented, but the hon. Gentleman is right: it is very important.
Clause 139 permits a court to impose an SVRO when it
“is satisfied on the balance of probabilities that a bladed article or offensive weapon was used”
during the offence, or if the offender
“had a bladed article or offensive weapon with them.”
An SVRO may be imposed in response to an incident in which a person did not use an offensive weapon, but
“another person who committed the offence”
had such a weapon on them, and the first person
“ought to have known that this would be the case”.
This means that that power to stop and search someone anywhere at any time can be imposed on a person despite no evidence of their ever handled a weapon before.
The Bar Council says:
“These proposals place onerous obligations on individuals and may generate significant questions of law in regard to liability for the conduct of others. For example, do the proposals impose a duty of care on individuals to ensure that those with whom they commit criminal offences do not carry knives? How this would be determined as a question of law is unknown. Any such measures ought to be subject to consultation or piloted before being brought into force—it would be important to monitor the extent to which any orders made are based on the ‘ought to have known’ test rather than proven use/knowledge of a weapon on the part of the individual made subject to the order.”
Even section 60, which remains controversial, can be used only for a set period of up to 24 hours in a defined area. However, proposed new section 342D provides that an SVRO can be issued for two years and no less than six months. These orders can be renewed indefinitely, during which time they can run continuously, whenever the person is in a public place.
Clause 139 also creates a new offence of breaching an SVRO, for example
“by failing to do anything required by the order, doing anything prohibited by it, or obstructing a police officer in the exercise of any power relating to it. This would carry a maximum sentence of 12 months imprisonment on summary conviction, two years imprisonment on conviction on indictment, and/or a fine in either case.”
Can the Minister provide assurances on how people who question their search, who ask for the legal authority for subjecting them to stop-and-search, or who may not understand the instructions given by a police officer and therefore fail to comply, for whatever reason, will be safeguarded from the offence of breaching an SVRO?
I quote from the written evidence provided by Liberty on clause 139:
“Clause 139 allows the Secretary of State to impose by regulation any ‘requirement or prohibition on the offender for the purpose of assisting constables to exercise the powers conferred’ by the Bill, as long as the court considers it ‘appropriate’. This is remarkably broad. The orders can impose both positive and negative obligations and neither we, nor Parliament, know what they will be, as they will be made in the future by the Secretary of State. This is made more concerning by the lower standard of evidence needed for a court to impose an SVRO.”
The Bill makes it clear that it does not matter whether the evidence considered in deciding whether to make an SVRO would have been admissible in the proceedings in which the offender was convicted. Despite this, a person subject to an SVRO may face criminal penalties if they breach it, even if they breach the yet unknown requirements made by the Secretary of State through regulation.
The Bill would insert proposed new section 342J of the sentencing code, which provides the Secretary of State with the power to issue guidance to the police about the exercise of their function in regards to SVROs. The police must have due regard to this guidance. Statutory guidance on stop-and-search is in code A of the Police and Criminal Evidence Act 1984, which is underpinned by a formal scrutiny process, but here we have the publication of separate statutory guidance on SVROs. That is unusual and worrying. PACE code A is not being used as statutory guidance for this incredibly sensitive power.
There is nothing in the Bill about what the guidance will be like or how it will be drawn up and approved. The Bill does not provide the Secretary of the State with the power to issue guidance to other actors in the SVRO process. All relevant persons will be required to have regard to upcoming guidance relating to knife crime prevention orders. A relevant person is defined as one who
“is capable of making an application for a knife crime protection order”;
that, as is set out in section 1.3 of the draft KCPO guidance, includes the police and the Crown Prosecution Service.
Like KCPOs, SVROs will be applied to an offender only when an application for one has been made to the court. Only the prosecuting lawyer can apply to the court for an SVRO to be issued. However, the Bill does not provide the Secretary of State with the powers to issue guidance to the CPS on its function to apply for an SVRO to be attached to an offender’s conviction. Can the Minister say why? It is vital that guidance be published before the pilots of these orders go ahead.
We are all aware of the impact stop-and-search has on police-community relations. These new sweeping powers will be difficult for the police to apply practically on the ground. Once again, the Government are proposing a law that could lead to a lot of challenges for the police. The Government’s response to the consultation on SVROs noted that
“several responses from police forces and officers noted potential challenges around identifying individuals subject to an SVRO”.
That is where the guidance becomes incredibly important, but we do not have the detail yet. These searches will be less intelligence-led and risk increasing the chances of police stopping the wrong person.
A major concern we have with these powers is that they could increase disproportionality. The code of practice for statutory powers of stop-and-search, PACE code A, states:
“Reasonable suspicion can never be supported on the basis of personal factors”,
and notes that police cannot use, alone or in conjunction, as a basis for stop-and search,
“A person’s physical appearance with regard, for example, to any of the ‘relevant protected characteristics’ set out in the Equality Act 2010…or the fact that the person is known to have a previous conviction”.
Alex Cunningham (Stockton North) (Lab)
Does my hon. Friend agree that this is yet more evidence that the Government ought to carry out a full impact equality assessment for the whole Bill, never mind the provisions she is addressing?
Sarah Jones
My hon. Friend is right. These issues are very difficult and complex, and we have to make sure we get them right, or the impact on our communities will be great.
Black and minority ethnic people were four times more likely to be searched than white people in 2019-20. Black people in particular were nine times more likely to be searched than white people. In September 2020, the Joint Committee on Human Rights heard evidence that an estimated 85% of black people in the UK were not confident that they would be treated the same as a white person by the police. As I am sure most of us with mixed communities have, I have been in primary school assemblies where I have been asked by young boys why it is that they are being stopped and searched. They are even told by their parents to expect these things, and they learn that this is something that happens. We have to address that, stop it, and make sure we do not make it worse through these orders.
HMICFRS says no force fully understands the impact of the use of stop-and-search powers, and no force can satisfactorily explain why ethnic disproportionality persists in search records. Badly targeted stop-and-search serves to reinforce and create the mistrust between those subjected to it and the police. It is clear that the lack of trust and confidence in the police felt by black and minority ethnic people is related to the persistent disparities in stop-and-search rates by ethnicity.
The House of Commons Library says:
“There is no evidence to suggest that BME people are more likely to carry items that officers have powers to search for. Neither is there evidence that suggests they are more likely to be involved in criminality associated with stop and search enforcement…Societal racism and its effects…appears to explain most of the disparity in stop and search rates by ethnicity.”
For a recent Channel 4 documentary, 40 black men who had all experienced stop and search were surveyed. More than half of them had been stopped at least 10 times, and 39 of them had experienced their first stop and search before they turned 18. Three quarters of them had repeatedly been stopped and said that it had negatively affected their mental health. Nearly half of them had previously complained to the police about their treatment, and just three had had their complaints upheld. Jermaine Jenas, who made the documentary, said:
“Take what happened to Jamar, a kid I met, who is respectful and talented. Aged 16, he was walking home from a party when the police stopped him, looking for a young black man reportedly carrying a sword. Jamar was wearing grey jeans, white trainers and a light jacket; the description was of a guy wearing a black tracksuit.
Officers forced him on to his knees in the middle of a road and searched him at gunpoint, a Taser pressed to his neck. Of course, nothing was found. His black friends were handcuffed and held up against a wall; his young white mate walked around filming the whole thing, the police not interested.”
That is a very extreme example, I think we would all say. Like a lot of hon. Members, I have been out with the police when they have done stop and search, and in many cases it is done properly, but we have to watch these things very carefully. During the first lockdown, when the police were much more proactive in going out to try to tackle the crimes, as they had the time to do so—other things were closed, and they had less work—we saw in London a huge increase in stop and search. In itself, that is okay, but London MPs began to see an increase in people coming to us saying that they were being handcuffed as a matter of course at the beginning of the search. We met Cressida Dick and talked about it in Croydon. My local police officers said that something had absolutely happened, and that it was becoming the norm that they were handcuffing people, which they are not supposed to do when they first stop them. The Met is working on that. The IOPC has highlighted it, and the Met has acknowledged it. It is an issue. The point is that people can slip into behaviours that are not right, and we need to keep a really close eye on how stop and search is done.
It is vital that the use of stop and search is monitored properly so that the police can better understand the consequences and reasons for disparities in rates by ethnicity. That is important, and it has been repeatedly raised as a concern by Her Majesty’s inspectorate. In February 2021, it reported that, on average, 17% of force stop and search records were missing ethnicity information. The proportion of search records ranged by force from 2% to 34%. HMICFRS says that the disparity in search rates by ethnicity is likely being underreported as a result, and that no force fully understands the cause. It has repeatedly called on forces to do more to monitor and scrutinise their use of powers.
The Government’s proposed serious violence reduction orders risk further increasing disproportionality in the criminal justice system. Our concern is that they will be pushed through without proper evaluation. Labour wants to ensure that there is a proper consideration of disproportionality before serious violence reduction orders can come into force. The Government should be recording data on the ethnicity of people subject to the orders and analysing the adverse impact of them. They must ensure that all police officers complete the College of Policing training on stop and search before the power can be used in pilot A areas. It is crucial that the pilot is evaluated before any decision to permanently roll out SVROs is taken, and that should include full consultation with the voluntary sector in the communities that are disproportionately represented across the criminal justice system. The courts should have to set out their reasons in writing for issuing an SVRO.
Hywel Williams (Arfon) (PC)
Does the hon. Lady share my concern that neither of the proposed pilots will be held in Wales, given the distinct landscape in Wales after devolution and the fact that it has a much higher proportion of incarceration of black people than England?
Sarah Jones
The hon. Gentleman makes a very good point. Perhaps the Minister will respond to the point about where the pilots will be and whether there should be one in Wales.
Our amendments seek to make those changes. Amendment 102 would require the Secretary of State to issue guidance on serious violence reduction orders before any pilot could commence. Amendment 103 would ensure that guidance under this clause must include guidance on the intelligence community information and risk factors that are to be considered before an application is made for the imposition of a serious violence reduction order.
The Parliamentary Under-Secretary of State for the Home Department (Victoria Atkins)
It is a pleasure, again, to serve under your chairmanship, Mr McCabe.
Before I respond to the amendments and observations of the hon. Member for Croydon Central, I wonder whether it might assist the Committee for me to set out why we are introducing the orders. I understand very much the points that she has made on behalf of organisations and others. I think it would help to set the orders in the context of the thinking behind their introduction.
We know that there is a serious problem with knife crime in many parts of our country. That is why over the past two years we have committed more than £176.5 million through a serious violence fund to address the drivers of serious violence locally, and to bolster the police response to it in those areas. That includes £70 million to support violence reduction units in the 18 areas of the country that are most affected by serious violence. That has been calculated through a variety of datasets, including admissions to hospitals for injuries caused by knives or bladed articles. There has been a great deal of thinking about how we target those parts of the country that have greatest experiences of knife crime and serious violence. We have also committed a further £130 million to tackle serious violence and homicide in the current financial year.
There is much more to do, however. Every time a person carries a blade or weapon, they risk ruining their own lives and other people’s lives, so we must do our utmost to send a clear message that if people are vulnerable and want to move away from crime, we will support them.
Mrs Heather Wheeler (South Derbyshire) (Con)
Unfortunately, in the last few days in South Derbyshire, a young lad has been murdered with a knife, and another young lad has been severely injured in a revenge attack melee. This legislation is incredibly important. My message to all parents in South Derbyshire is, “Please talk to your children about not carrying a knife.” This legislation will make a major impact, and I thank my hon. Friend the Minister for bringing it forward.
Victoria Atkins
I am extremely grateful to my hon. Friend. May I say how sorry I am to hear of the experience in her constituency? It serves to highlight that knife crime does not just happen in great big cities, but can happen in picture-perfect rural areas as well. When I come to the pilots, I will explain why the four pilot areas have been chosen. We want to ensure that the orders work across the country, helping different types of communities and residential areas to safeguard people’s lives.
We as a Committee are concentrating on these clauses, but under the serious violence duty that we have already debated, local areas must, as a matter of law, get around a table and address the serious violence issues in their area. I very much want these orders to be seen in the context of the whole package of measures that the Government and the police are using to tackle serious violence. I very much hope that that duty will help in my hon. Friend’s area.
Mrs Wheeler
I apologise for asking the Minister to reply again. May I also put on the record how grateful I am for the superb work that Derbyshire police have undertaken on this case? They really have wrapped it up very quickly, and I want to ensure that—
The Chair
Order. I am not sure where that case is in its proceedings. It is maybe not too helpful to closely identify it.
Victoria Atkins
Again, I am very happy to thank not just my hon. Friend’s local police force, but police forces across the country for all the work that they do day in, day out to keep our constituents safe.
Allan Dorans
Does the Minister acknowledge the success of the Scottish violence reduction unit that was established in 2005? It has reduced the number of homicides from 135 in that year to 64 last year. It works on the principle that violence is preventable, not inevitable, and that the best approach is multi-agency working and partnership. The detail contained in the Bill will set up such committees across the country.
Victoria Atkins
Very much so. I am shameless in plagiarising good ideas to protect people across the country. We have worked very closely with the Scottish authorities to learn from them, and from their work in Glasgow in particular, how they have brought down violent crime in Glasgow. The hon. Gentleman rightly identifies that the serious violence duty very much builds on that work, so that we require every single local authority area to look very carefully at what is happening and at how they can identify and address those problems.
Hywel Williams
Will the Minister address the points that I raised with the Opposition Front Bench about pilots being held in Wales? Was any consideration given to holding pilots in Wales in the light of the distinct situation there?
Victoria Atkins
If I may, I will keep that point back for a little later, but I will develop it. I promise the hon. Gentleman that every single constabulary area was considered carefully and we arrived at the result in a data-driven way. I hope to answer that point in due course.
We know that the police see stop-and-search as a vital tool to crack down on violent crime and we have already made it easier for forces to use existing powers, but too many criminals who carry knives and weapons go on to offend time and again, and serious violence reduction orders are part of our work to help to end that cycle.
The orders will give the police powers to take a more proactive approach and make it easier to target those already convicted of offences involving knifes and offensive weapons, giving the police the automatic right to search those offenders. SVROs are intended to tackle prolific, high-risk offenders, by making it easier for the police to search them for weapons.
SVROs are also intended to help protect vulnerable first-time offenders from being drawn into further exploitation by criminal gangs, by acting as a deterrent to any further weapon carrying and providing a credible reason for those young people to resist pressure to carry weapons.
Sarah Champion
I am interested in the point the Minister is making about first-time offenders. A lot of children and young adults carry knives because they are scared and because they are aware of the crime going on in their area and they want to protect themselves—they feel vulnerable without a knife. What guidance will be in place for police officers to make the distinction?
Victoria Atkins
First and foremost, this will be piloted and there will be lessons learned during the careful piloting of the orders. Also, the orders are only available to convicted knife carriers above the age of 18.
I compare and contrast with knife crime prevention orders, which form part of the overall context of the orders. The hon. Member for Croydon Central will recall that KCPOs were introduced in the Offensive Weapons Act 2019 and are intended to be rehabilitative in nature. We have both positive and negative requirements that can be attached to them. They are available for people under the age of 18, from the age of 12 upwards. That is the difference between the two orders.
The hon. Member for Croydon Central asked me about the piloting of KCPOs. Sadly, because of the pressures of covid, we were not able to start the pilot when we had wanted to, but I am pleased to say that the Metropolitan police will start the pilot of KCPOs from 5 July. We will be able to gather the evidence from that type of order alongside the work on SVROs, which will obviously start a little later than July, given the Bill will not yet have Royal Assent. That will run alongside. It will run for about 14 months and we will be able to evaluate and see how the orders are working.
Alex Cunningham
I want to lay the same challenge to the Minister as I did to the Under-Secretary of State for the Home Department, the hon. Member for Croydon South. The Minister talks about the fear of young people, feeling they must carry knives and being pressured into carrying knives. Does she accept that much more needs to be done to deal with the organised criminal gangs—indeed, organised crime as a whole—which drive young people to carry knives? The Government need to do so much more.
Victoria Atkins
The hon. Gentleman and I agree that the young people we are understandably focusing on in today’s debate are the victims of the criminal networks and the organised crime gangs that, for example, run county line networks across the country, in urban and rural areas. They are out and about selling drugs for these sinister, cruel organised crime gangs. The many ways in which children and young people are exploited by these gangs are well known to members of the Committee. Going along with what my hon. Friend the Member for South Derbyshire said earlier, we want to get the message out that it is not normal to carry a knife. There can be a feeling within certain parts of our communities that that is what everybody does. Actually, the overwhelming majority of people do not carry knives, but it is that fear or that worry that people need to carry a knife to protect themselves that we are trying to address.
Hywel Williams
I certainly take the Minister’s point that these things are decided on objective measures. County lines extend into Wales from large conurbations in the midlands and from London. There is one specific point that might be captured were Wales included. It is a comparatively minor and specific point in that in the sentencing code in proposed new section 342A(9) it says that
“the court must in ordinary language explain to the offender”.
I draw the Minister’s attention to the point that in Wales “ordinary language” might mean in Welsh or English.
The Welsh Language Act 1967 says that Welsh and English should be treated on the basis of equality and more recent legislation establishes Welsh as an official language. That free choice of language is pretty subtle and not just a matter of law. Guidance should be given to court officers so that they understand how subtle that might be.
Victoria Atkins
The hon. Gentleman raises a good point. I remember visiting Welsh courts and feeling at a great disadvantage that I did not speak Welsh. He raises a serious point. I cannot give confirmation here and now, but I know that we will take that factor into account in due course once the evaluations have been conducted. He makes a fair point and he makes it well.
When Martin Hewitt from the National Police Chiefs’ Council gave evidence to the Committee, he welcomed the piloting of the orders and made the following point, of which we are all aware:
“There is no doubt that there are people who are more violent and have a history of violence, and we do a range of things to try to reduce the number of violent crimes. Our concern is to make sure that there is no disproportionality in the way these orders are used, so we are really keen to work very closely with the pilot site to assess how this can be another tool—and it is just one further tool—in dealing with street violence and violence among younger people.”––[Official Report, Police, Crime, Sentencing and Courts Public Bill Committee, 18 May 2021; c. 13, Q16.]
I thought Mr Hewitt put that extremely well. This is another tool that we want to put forward to help the police deal with violence on the streets around the country.
The pilot will also test the deterrence effect of SVROs. It will trial how we ensure that vulnerable offenders are directed to local intervention teams, test community responses to the orders and examine the potential impact on disproportionality, as well as building evidence on the outcomes for offenders who are subject to an SVRO.
On the point of deterrence, the available evidence suggests that a criminal conviction can prevent reoffending through the deterrent effect, particularly in changing behaviour in more vulnerable offenders, as it could equip them with a credible basis for resisting gang or other peer pressure to carry knives. A recent academic study has shown that individual searches can produce useful results, such as the discovery of contraband materials. It could also be effective if focused on prolific offenders. One of the many reasons for running pilots on the orders very carefully is to gather evidence on their deterrent effect before they are rolled out nationally. We also understand the importance of scrutiny and oversight and stress the importance of being completely transparent about how SVROs are being used, to reassure communities that the orders are being used appropriately. During the pilot, we will work with partners to address those challenges and ensure that the orders are used appropriately and effectively.
We expect all forces to allow stop-and-search records to be scrutinised by community representatives and to explain the use of their powers locally, as the statutory guidance requires them to do. At our request, the College of Policing has updated its stop-and-search guidance to include better examples of best practice for community engagement and scrutiny, and it is available now for all forces to follow.
As required by clause 140, we will lay before Parliament a report on the operation and outcome of the pilot. That brings me to amendment 98, which would prescribe in the Bill the matters to be addressed in the report on the outcome of the pilot. The amendment lists no fewer than 14 matters that would have to be addressed as part of the evaluation. I will deal with some of the specific points, but before doing so, I again wish to reassure the Committee that we want the SVRO pilots to be robust and their evaluation to be thorough. We are still in the early design phase, and although I may not agree with all 14 points listed in amendment 98, many have merit and I can assure Opposition Members that we will take them into consideration as we progress the design work and agree the terms of the evaluation. I will make the general point that it is not necessary to include such a list in the Bill. Indeed, the approach adopted in clause 140 is consistent with, for example, the piloting provisions in the Offensive Weapons Act 2019 in respect of knife crime prevention orders.
We are talking about those matters listed in amendment 98. As part of the pilot, we plan to evaluate the impact of the orders on black and ethnic minority people. When we considered police forces for the pilot, we took into account the demographics of each force, and it is a key reason why we are piloting SVROs in four forces rather than just one—to ensure that we capture sufficient data, including the ethnicity of those given an SVRO, to properly examine the impact on disproportionality. No one should be unfairly targeted by stop-and-search, and safeguards—including statutory codes of practice, use of body-worn video to increase accountability, and community scrutiny panels—already exist to ensure that that does not happen.
SVROs will be subject to the same scrutiny as current stop-and-search powers. As I said, we expect all forces to allow stop-and-search records, including those for SVROs, to be scrutinised by community representatives and to explain the use of their powers locally, as the current statutory guidance on police use of stop-and-search requires them to do. We are also exploring with the four pilot forces how they can make best use of body-worn video—that is absolutely critical, I think, in opening up transparency—and how they can use community scrutiny panels during the pilot.
What is more, during the Committee’s consideration we have contacted all the pilot areas to ask them what plans they have to contact and engage with local charities and people who work with young people to ensure that the community as a whole has an influence on how the pilots are rolled out, and all four forces have confirmed that they are already in contact with them, or are planning to be, ahead of the pilot. Again, I very much hope that that gives reassurance about the direction of travel that we expect from the four pilot forces, and indeed thereafter, when it comes to the use of these orders.
I understand that there are also concerns about mistaken identity and possible methods, such as using stop-and-account, to identify those who are subject to an SVRO. We very much expect police officers to take steps to confirm somebody’s identity on the street when exercising their powers and to be sure that the person they are stopping is in fact subject to an SVRO. It is also important to note that an officer would be acting unlawfully if they exercised the SVRO powers in relation to a person who is not subject to an SVRO. Again, as part of the pilot, we will monitor use to identify any disparities or concerns that may arise about cases of mistaken identity.
Sarah Jones
I thank the Minister for that response, which gives reassurance on a number of areas. In particular, having the draft guidance before the Lords Committee is very helpful. We can look at it and see what it says, and then the Lords can take a view about whether they will support it. I am also reassured by what the Minister said about the College of Policing training during the pilots, and about the content of the pilot and what it will look at. There is support for lots of the elements that we put in the amendments. We still have serious concerns that the provisions could be problematic and might not tackle violence, which is the point of them. However, with the reassurances that the Minister has given me, I will not seek to divide the Committee. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clauses 139 and 140 ordered to stand part of the Bill.
Clause 141
Locations for sexual offender notification
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss the following:
Clauses 142 and 143 stand part.
New clause 65—Registered sex offenders: change of name or identity—
“(1) The Secretary of State must commission a review of how registered sex offenders are able to change their name or other aspects of their identity without the knowledge of the police with the intention of subverting the purpose of their registration.
(2) The review must consult persons with expertise in this issue, including—
(a) representatives of police officers responsible for sex offender management,
(b) Her Majesty’s Passport Office, and
(c) the Driver and Vehicle Licensing Agency.
(3) The scope of the review must include consideration of resources necessary for the long-term management of the issue of registered sex offenders changing their names or other aspects of their identity.
(4) The review must make recommendations for the long-term management of the issue of registered sex offenders changing their names or other aspects of their identity.
(5) The Secretary of State must report the findings of this review to Parliament within 12 months of the day on which this Act is passed.”
This new clause would ensure that the Secretary of State must publish a review into how registered sex offenders are changing their names or other aspects of their identity and propose solutions for how the government aims to tackle this issue.
I remind the Committee that if the Whip is seeking to adjourn at 1 o’clock, he will not be able to interrupt a speaker, so if we are going to proceed with that, we will need whoever is speaking to finish just before 1 pm so the Whip can do what he might wish to do.
Victoria Atkins
I wonder whether it would be convenient for the hon. Member for Rotherham to speak?
Sarah Champion
It would be convenient—thank you. It is always a pleasure to serve under your chairship, Mr McCabe.
I found a very real problem that I did not know existed. I have spoken to a number of Ministers in the Home Office and the Ministry of Justice about it, and they all recognise that it is a real problem. I am seeking, through new clause 65, to get a review into how registered sex offenders are changing their names, and in doing so, are slipping under the radar with some absolutely devastating consequences.
Currently, all registered sex offenders are legally required to notify the police of any changes in their personal details, including names and addresses. Those notification requirements are incredibly weak, however, and place the onus entirely on the sex offender to report changes in their personal information. I would like to say that, by their very nature, sex offenders tend to be incredibly sneaky and used to subterfuge, so the likelihood of them actively notifying their police officer is quite slender.
At this point, I would like to mention the crucial work that has been carried out by those at the Safeguarding Alliance, who identified this issue four years ago and alerted me to it. They have an upcoming report, from which I will use just one case as an example. It is the case of a woman called Della Wright, the ambassador for the Safeguarding Alliance, who is a survivor of child sexual abuse. She has bravely chosen to speak out and to tell her story, which is symptomatic of that of so many other survivors who have been impacted by the serious safeguarding loophole.
When Della was between six and seven years old, a man came to live in her home and became one of her primary carers. He went on to commit the most heinous of crimes, and was free to sexually abuse Della at will. Years later, Della reported the abuse in 2007 and again in 2015. Then it quickly become apparent that the person in question was already known to the police. He had gone on to commit many further sexual offences against an undisclosed number of victims. During this time, Della was made aware that his name had changed. It has since been identified that he has changed his name at least five times, enabling him to relocate under the radar and evade justice. When Della’s case was finally brought to court, he was once again allowed to change his name, this time between being charged and appearing in court for the planned hearing. That slowed down the whole court process, adding additional stress to Della, and made a complete mockery, I may say, of the justice system.
While the loophole exists, Della’s abuser is free to change his name as often as he likes, including from prison.
Mr Robert Goodwill (Scarborough and Whitby) (Con)
I am astounded to hear what the hon. Lady is saying. Do similar checks take place when people get married, as there is quite a trend towards new, double-barrelled surnames? Is that a similar loophole that people could use?
Sarah Champion
I do not know the specifics, but I do know a friend whose husband cheated on her, who wanted to change her name before the divorce came through. She used the £15 option; it is just filling out a form and paying the money.
Hywel Williams
I would raise a further point. One of the aspects of denial among sex offenders is that they put a psychological distance between themselves and the offence on conviction. That is a subtle driver for people to change their names, quite apart from the wish to offend again and not be detected.
Sarah Champion
The hon. Gentleman makes a really interesting point on the psychology, which I had not considered. He is absolutely right.
If the name-change process was well joined up, it would stop the sex offender from successfully receiving a DBS check. Current guidance means that the police can only do that in certain cases—for example, for sex offenders they believe to be at risk of changing their identity or who work in a profession where they have regular contact with vulnerable people. As far as I am concerned, that would be the definition of all sex offenders. The police are encouraged to limit their inquiries to these agencies to avoid unnecessary or high volumes of requests to them.
The guidance states that
“to avoid unnecessary or high volumes of requests to these agencies, enquiries should be limited”
to cases where risk factors apply. I believe that the police should be able to do this for all sex offenders.
The Government have recognised that this is an issue. In response to an e-petition, the Minister said that the Government would like to change the guidance so that only enrolled deed polls are seen as an official name change. This is still concerning, as an enrolled deed poll means that the individual’s old name, new name and address appear in the London Gazette. I ask Committee members to imagine they were fleeing domestic violence and wanted to change their name. How would they feel, knowing that that was going to be broadcast in a place where their abuser would be sure to look?
My suggestion is for all sex offenders to have a marker on their file at the DVLA and at Her Majesty’s Passport Office that would mean that would be flagged on the DBS database. That would remove the onus from the sex offender so that if they breach their notification requirements, the police will know quickly. I accept that more resources would be needed for this to be effective, but surely it is worth more funding to prevent more adults and children from experiencing more traumatic abuse.
There needs be a full review to try to identify the gaps in safeguarding and ensure this cannot go on any longer. New clause 65 is supported by over 35 MPs from across the House, including the Chair of the Education Committee, the right hon. Member for Harlow (Robert Halfon), the Chair of the Women and Equalities Committee, the right hon. Member for Romsey and Southampton North (Caroline Nokes), and the former Brexit Secretary, the right hon. Member for Haltemprice and Howden (Mr Davis).
Allan Dorans
Does the hon. Lady agree that if the provision had been in place in 2002, it could have prevented the needless murder of Holly Wells and Jessica Chapman by Ian Huntley, who had changed his name prior to committing this offence?
Sarah Champion
I absolutely agree. That is my frustration because when we look back at some of these high-profile cases, name changes have been common practice. This issue was also raised in the recent report by the Centre for Social Justice, “Unsafe Children.” The End Violence Against Women Coalition, said:
“It defies logic that this current system appears to rely on perpetrators of sexual offences identifying their own risk. Especially given that perpetrators are often highly manipulative and skilled at deceiving others and appearing ‘safe’.”
The new clause is not controversial. All I ask for is a review to find out what is going wrong. I do not know if other Members have signed up to receive notifications if a person of high risk is rehoused in their constituency. I receive such notifications, unfortunately quite regularly. In the most recent notification I had, there are 19 different specific licence conditions that the offender has to meet. One of them is to notify their supervising officer of details of any passport they may possess, including passport number, or any intention of applying for a new passport. However, there is no mention on that list of changing their name. That would seem to be a basic thing, so that at least the sex offender knows in advance that they have to notify the police, so it is a clear breach of conditions when they do not do that.
Ordered, That the debate be now adjourned.—(Tom Pursglove.)
Police, Crime, Sentencing and Courts Bill (Sixteenth sitting)
Thursday 17th June 2021
(2 years, 10 months ago)
Public Bill CommitteesRead Full debate Police, Crime, Sentencing and Courts Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 17 June 2021 - (17 Jun 2021)
The Committee divided: - Ayes: 4 / Noes: 7 - Question accordingly negatived.
The Committee divided: - Ayes: 5 / Noes: 7 - Question accordingly negatived.
The Chair
I remind Members of the usual things about devices, masks, seating, drinks and so on.
Clause 141
Locations for sexual offender notification
Question (this day) again proposed, That the clause stand part of the Bill.
The Chair
I remind the Committee that with this we are discussing the following:
Clause 142 and 143 stand part.
New clause 65—Registered sex offenders: change of name or identity—
“(1) The Secretary of State must commission a review of how registered sex offenders are able to change their name or other aspects of their identity without the knowledge of the police with the intention of subverting the purpose of their registration.
(2) The review must consult persons with expertise in this issue, including—
(a) representatives of police officers responsible for sex offender management,
(b) Her Majesty’s Passport Office, and
(c) the Driver and Vehicle Licensing Agency.
(3) The scope of the review must include consideration of resources necessary for the long-term management of the issue of registered sex offenders changing their names or other aspects of their identity.
(4) The review must make recommendations for the long-term management of the issue of registered sex offenders changing their names or other aspects of their identity.
(5) The Secretary of State must report the findings of this review to Parliament within 12 months of the day on which this Act is passed.”
This new clause would ensure that the Secretary of State must publish a review into how registered sex offenders are changing their names or other aspects of their identity and propose solutions for how the government aims to tackle this issue.
I think the Minister was just about to respond.
The Parliamentary Under-Secretary of State for the Home Department (Victoria Atkins)
I was, Mr McCabe—thank you very much. I understand that the Opposition do not oppose clauses 141 to 143, but I will obviously respond to new clause 65, tabled by the hon. Member for Rotherham and signed by more than 30 other Members. I understand the message of how seriously Members across the House take the issue. We are very alive to the ability of sex offenders to manipulate systems, build trust, groom, and use many evil, awful methods in order to commit their crimes.
I am not naive to the risks that the hon. Lady put forward in her very well argued speech about the motivations of sex offenders in changing their name. As she said, there are very strict rules: sex offenders are required to notify the police within three days of changing their name—indeed, failure to do so is a criminal offence punishable by imprisonment for a maximum of five years. I note her concerns, and those of others, about what can be done, if a sex offender does not so notify, to ensure that there are not consequences further down the line.
In fairness, parliamentarians have been having this debate for some time. I have received a great deal of correspondence on this matter, particularly in conjunction with the campaign run by the Safeguarding Alliance. As a result, I have commissioned officials to look into the matter very carefully. I have written to the Master of the Rolls requesting that a judicial working group set up by the Ministry of Justice should consider how the deed poll process can be exploited for criminal ends.
The work of that group includes considering whether amendments to the Enrolment of Deeds (Change of Name) Regulations 1994 are required. I raise that because the regulations for changing name by deed poll are made by the Master of the Rolls, not a Minister, and I must of course respect and honour that; it is not as straightforward as me signing my name and changes happening. The ball has already started rolling with the Master of the Rolls, and indeed the Ministry of Justice, to try to find ways of addressing the concerns that the hon. Lady and many other Members have voiced in recent months.
Sarah Champion (Rotherham) (Lab)
I hope the Minister recognises my concerns around enrolment, and the fact that the data then gets published. The enrolled deed poll does not include the question whether someone has a criminal past. I am still concerned that that could be a loophole.
Victoria Atkins
Interestingly, the point that the hon. Lady has highlighted about, for example, victims of domestic abuse having to publish their addresses is one of the factors that we are very much having to bear in mind as we look at this. I have also received a great deal of correspondence from hon. Members concerned about the safety of transgender people, for example, and victims of domestic abuse. We can think of other examples of where people have changed their name and there are security issues therein as well as the fact of the name being changed. It is a very complicated area.
I have also listened to the concerns about the Disclosure and Barring Service system. As colleagues will know, the DBS conducts criminal records checks and maintains lists of people who are barred, by virtue of their previous convictions, from working with either children or vulnerable adults—sometimes both. That is an incredibly important process. My right hon. Friend the Member for Bromsgrove (Sajid Javid) has done a great deal of work on the issue as well.
I have asked my officials to work with the Disclosure and Barring Service, employers and others, including the General Register Office, to examine whether, for example, requiring birth certificates would help assure employers such as schools of a person’s history and previous names. The work is very complicated, not least because we have to bear in mind, for example, that 20% to 25% of records checks involve applicants born overseas. Although one would hope that it is easy in this country to obtain a copy of a birth certificate if one has lost it, that may not be the case elsewhere in the world.
Sarah Champion
The Minister has been going through the same process that I have been going through. Rather than putting a blanket demand for birth certificates on everybody, is there the potential to flag all sex offenders? I am not sure about the Minister’s view, but mine is that when someone carries out a sexual offence, they lose some of their rights. If all sex offenders had a flag on them that automatically triggered the check, either with the Driver and Vehicle Licensing Agency or the Passport Office, that would seem a more manageable way forward administratively.
Victoria Atkins
The Passport Office can already refuse to change the names on a passport under the existing regulations, but this whole area is incredibly complicated; it involves not just regulations but the common law as well. There is a great tradition in common law of people being able to change their names, and we would not want to trespass upon that. What we are trying to do is target sex offenders who are not doing what they should be—namely, notifying the police of any changes to their names.
I have gone through some of the work that we are conducting, albeit quietly; we have not gone to the lengths of describing it as a review. Given the wording of her new clause, I hope that the hon. Member for Rotherham takes comfort from the fact that we are looking at the issue seriously. We are working across the MOJ, the Home Office and other agencies relevant and important to the issue to try to find answers that are proportionate and protect the rights of the very people we are not trying to target.
My right hon. Friend the Member for Scarborough and Whitby gave the example of someone who changes their name on getting married. I am sensitive to the resource implications of having blanket orders. We will continue with this work. I am happy, as always, to involve the hon. Member for Rotherham because I know of her great interest and expertise on these matters, but I hope I can persuade her not to push her new clause.
Question put and agreed to.
Clause 141 accordingly ordered to stand part of the Bill.
Clauses 142 to 144 ordered to stand part of the Bill.
Clause 145
List of countries
Sarah Champion
I beg to move amendment 3, in clause 145, page 143, line 16, leave out “may” and insert “must”.
This amendment would place a requirement on the Secretary of State to prepare (or direct someone to prepare) a list of countries and territories considered to be at high risk of child sexual exploitation or abuse by UK nationals and residents, rather than leaving at the Secretary of State’s discretion to produce such a list.
The Chair
With this it will be convenient to discuss the following:
Amendment 4, in clause 145, page 143, line 20, after “residents”, insert
“, including those who commit those crimes online, remotely or via the internet”.
This amendment would ensure the list prepared by the Secretary of State includes countries and territories where children are considered at high risk of child sexual exploitation by UK nationals and residents who commit those crimes online, remotely or via the internet, and is not limited to in-person offending.
Amendment 5, in clause 145, page 143, line 24, after “residents”, insert
“, including those who commit those crimes online, remotely or via the internet”.
This amendment would ensure the list prepared by a relevant person directed by the Secretary of State includes countries and territories where children are considered at high risk of child sexual exploitation by UK nationals and residents who commit those crimes online, remotely or via the internet, and is not limited to in-person offending.
Amendment 6, in clause 145, page 144, line 16, leave out subsection (9).
This amendment would remove the ability of the Secretary of State to withdraw the list of countries and territories considered to be at high risk of child sexual exploitation or abuse by UK nationals and residents.
Clause stand part.
Clause 146 stand part.
Sarah Champion
I previously spoke about the horrific nature of online exploitation and the need for an urgent and robust response from the UK to disrupt the cycle of supply and demand fuelling that abuse. As I previously argued, the Bill is an important opportunity for the Government to take action in this area, and clause 145 is no different. I very much welcome the measures set out in the Bill and particularly in clause 145, which provide for the establishment and maintenance of a list of countries and territories in which children are considered to be at high risk of sexual exploitation or abuse by UK nationals or residents. Tied to this, clause 146 would require applicants—for example, the police—for a sexual harm prevention order or sexual risk order to have regard to that list. These important measures should be welcomed. They give effect to a recommendation made by the Independent Inquiry into Child Sexual Abuse.
It is vital that we do all we can to tackle contact offending overseas, but we must also take into consideration online offending against children overseas. My amendments 4 and 5, to clause 145, would require the Secretary of State to produce a list of high-risk countries for both in-person and online abuse. As currently drafted, the Bill grants the Secretary of State the ability to publish a list of countries and territories in which UK nationals pose a high risk of sexual exploitation and abuse. Through my amendments, I am seeking to clarify that that relates to both in-person and online abuse. Through amendment 6, I would make it a requirement that the Secretary of State do this; currently, it is a matter of discretion.
It is hoped that, through consultation with law enforcement and civil society, we will enable an accurate list of high-risk areas to be gathered together. That would be an immeasurably useful resource for targeting resources in the future. This process will also help us to better understand the nature of exploitation and abuse by UK nationals, enabling us to ensure that interventions are effective in achieving prevention.
As with my other amendments on online sexual exploitation of children, these amendments are supported by the International Justice Mission. I am very grateful for its support on this matter, but also for all the work that it does around the world to protect children. It knows only too well the horrific nature of online abuse carried out by UK offenders against children overseas. I really hope that the Minister is minded to add a provision about online abuse to the Bill or is able to give reassurance that the online proliferation of abuse will be included in the list.
Victoria Atkins
Again, I am mindful that the clauses are not opposed by the Opposition, so I hope that I can move straight to the amendments tabled by the hon. Member for Rotherham. However, I should just say, for those who are not familiar with why we are putting together a list of countries, that it was a recommendation of the Independent Inquiry into Child Sexual Abuse that we as a country must look very carefully and seriously at how sexual offenders within the UK travel abroad to rape and sexually assault children overseas. That is an incredibly important matter and one that we take very, very seriously.
The inquiry recommended that we bring forward legislation providing for the establishment of a list of countries where children are considered to be at high risk of sexual abuse and exploitation from overseas offenders—I underline that. This is a list to help people regarding offenders from the United Kingdom, not a commentary on offenders within the countries that are so listed.
The purpose of the list is to help the police and courts identify whether a civil order with a travel restriction should be made. The list has been created. We commissioned the National Crime Agency to develop the list of countries, and it brought together insights from sensitive law enforcement data, open-source intelligence analysis and the expertise of those who work with the victims of child sexual exploitation, in drawing it together.
Sarah Champion
I understand the logic of the argument that the Minister is putting forward, but what I hear anecdotally from the police is that there is that escalation. I would have thought that knowing, for example, that they are able to watch children being abused in the Philippines would be a draw for UK abusers who want that escalation to go to the Philippines. Having the word “online” there would make the police recognise the very severe damage that happens, whether it is done in person or is being directed by a UK national. It is about the recognition of how this escalates.
Victoria Atkins
Yes, I do understand that point, but there has been very careful consideration of the effects of an order to prohibit a person from travelling overseas. I am told that adding “online” to the clause would undermine the appropriateness of such orders.
I also draw the Committee’s attention to the Online Safety Bill, which will help more generally in the online world. It will place a duty of care on tech companies to target grooming and the proliferation of child sexual abuse material. Of course, Members will in due course scrutinise the draft Bill that has been put before the House for its consideration.
On amendment 6, the effectiveness of the list is dependent on its reflecting the current global intelligence picture. The Secretary of State must retain the right to withdraw the list in the unforeseen event that the intelligence picture changes rapidly or that the list becomes no longer of practical use. I stress, however, that our intention is to maintain the list, and any decision to withdraw it would be taken on an exceptional basis.
I welcome the hon. Lady’s, and indeed the Opposition’s broad support for the clauses, and invite her to withdraw the amendment.
Sarah Champion
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 145 ordered to stand part of the Bill.
Clause 146 ordered to stand part of the Bill.
Clause 147
Standard of proof
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss the following:
Amendment 162, in clause 148, page 150, line 14, at end insert—
“(1B) A sexual harm prevention order must require the offender to participate in a treatment programme approved by the Secretary of State for the purpose of reducing the risk of sexual harm that a person may pose.”
Amendment 163, in clause 148, page 152, line 34, at end insert—
“(1B) A sexual harm prevention order must require the defendant to participate in a treatment programme approved by the Secretary of State for the purpose of reducing the risk of sexual harm that a person may pose.”
Clause 148 stand part.
Amendment 164, in clause 149, page 154, line 42, at end insert—
“(7A) A sexual risk order must require the defendant to participate in a treatment programme approved by the Secretary of State for the purpose of reducing the risk of sexual harm that a person may pose.”
Clauses 149 to 152 stand part.
Sarah Champion
Amendments 162 to 164 were tabled in not only my name but that of my right hon. Friend the Member for Kingston upon Hull North (Dame Diana Johnson). They amend clauses 148 and 149, which relate to sexual harm prevention orders and sexual risk orders. The Government are introducing the clauses to expand the role of those orders so that positive requirements can be placed on individuals, and we welcome that. Currently, the law allows only for individuals to be ordered to stop things.
Given that the Government are introducing changes to the orders, I believe that the law could be strengthened even further, which is why I am speaking to the amendments in the name of my right hon. Friend. The amendments would impose a positive duty to refer to a treatment programme all individuals who are subject to a sexual harm prevention order where they have been convicted, or a sexual risk order when a conviction has not yet been obtained. For example, that could be prior to a court hearing when there is sufficient concern for an order to be made before a conviction is obtained.
Under the amendments, a mandatory referral to treatment services would be required for all those engaged in criminal sexual behaviour and where a SHPO or SRO is to be put in place. That is an attempt to intervene at the earliest opportunity, and in particular to stop non-contact sexual offending behaviour escalating. Starting with non-contact sexual offending, such as indecent exposure or voyeurism, is necessary as it is often a gateway to more serious offending. There is a great deal of evidence that those who commit low-level or non-contact sexual offences will often escalate their behaviour and take more risks, with the potential for increasingly violent sexual crimes.
That pattern of behaviour is encapsulated by the case of a University of Hull student, Libby Squire, who was out in Hull one night when she was picked up by a man who went on to rape and murder her and then dumped her body in the River Hull. She was not found for many weeks. It was later revealed that the man who murdered Libby had been prowling the streets of Hull for many months committing low-level sexual offences such as voyeurism and burglary of women’s underwear and sex toys. Those crimes took place between 2017 and January 2019.
The last known non-contact sexual offence that the man committed happened just 11 days prior to the murder of Libby Squire. Unfortunately, very few of his crimes were reported to the police before Libby went missing. Even if the offender had been charged or convicted of those non-contact sexual crimes, the police believe that little would have been done to address his offending behaviour, as his actions did not meet the high threshold for referral to specialist treatment.
The amendments would address that issue and make referrals mandatory for all sexual offending, including lower-level or non-contact sexual offending. That would effectively interrupt a pattern of behaviour at the earliest possible point and help to prevent an escalation of sexual offending, thus helping to reduce the risk of sexual harm to women and girls and the wider public. I look forward to hearing what the Minister says about this group of amendments, as I know that she too is very concerned about these matters.
Victoria Atkins
Again, I am not going to address the clauses, because I understand they are not opposed. If I may, I will deal with the amendments. I am extremely grateful to the hon. Member for Rotherham and the right hon. Member for Kingston upon Hull North, who has rightly brought to the fore the case of Libby Squire. Although I am not a Hull Member of Parliament, I have some knowledge of it because it is in my part of the country, and everyone in our region watched the facts of that case unfold with growing dismay, gloom and horror when it was eventually clear what had happened to poor Libby, so I very much appreciate the chance to put on the record our condolences to her family. I also completely understand why the right hon. Lady has tabled the amendments.
We are not able to agree to the amendments because we are concerned that for each offender, even of so-called low-level offences, one has to be very, very careful to make it clear that those offences are still by their very nature serious. Sadly, the depravity and gravity of sexual offences is such that there is a range, and the lower-level offences are ones that are particularly troubling to the right hon. Member for Kingston upon Hull North in the context of this clause.
It is important to make an individual assessment of the value of a treatment programme in each case, using risk assessment and risk management plans to inform the decision. Sadly, not all offenders will respond appropriately to a treatment programme. Indeed there are fears that, in some cases, it could exacerbate their offending behaviours. At the moment and for the foreseeable future, we intend that treatment programmes should be directed towards offenders who would benefit most. When I say “benefit”, it is for the wider benefit of the community that these perpetrators are stopped, but it is for those offenders who will respond best to the programmes. That means that a case-by-case assessment must occur, rather than the universal approach proposed by the right hon. Lady.
I have spoken to the right hon. Lady and received a letter from her setting out her concerns. I know that her principal concern is how we manage effectively the risk presented by sex offenders whose offending behaviour starts with non-contact sexual offences such as indecent exposure, but which then escalates. There is a growing understanding that there is a range of behaviours that can escalate, and we very much want to address that escalation in behaviour.
However, one of the challenges is that, as the right hon. Lady acknowledges, the lower-level non-contact sexual offences might not be reported. If they are not reported, the police cannot deal with an offender if they do not know about that offender. They cannot manage the risk presented by such offenders if the behaviour is not reported and prosecuted as appropriate. So, from this afternoon, let us all encourage people who see the voyeurism or indecent exposure that concerns us in this particular area to please report that to the police. If it is reported, it begins to build a picture of that offender so that appropriate and necessary action can be taken.
Where such offences are reported and lead to convictions, the offender will be made subject to the notification requirements under the Sexual Offences Act 2003 and risk-assessed and managed under a multi-agency public protection arrangement. That plan will be implemented with support from other relevant agencies within the MAPPA framework.
The Chair
With this it will be convenient to discuss the following:
Clauses 158 to 161 stand part.
That schedule 18 be the Eighteenth schedule to the Bill.
Clause 162 stand part.
Sarah Jones
I want to speak briefly to the clauses, which we support. I begin by paying tribute to Saskia Jones and Jack Merritt, whose lives were so tragically cut short at the Fishmonger’s Hall attack. Protecting the public is the overall and overriding priority for us all, and clauses 157 to 162 would help law enforcement and counter-terror policing to better manage and monitor the risks when terrorist offenders are released on licence.
Lone attackers intent on causing carnage have taken the lives of innocent people, injured more and caused enormous suffering to all those affected. In the year ending June 2020, 34 sentenced terrorist offenders were released from prison custody. Between July 2013 and June 2020, 265 terrorist prisoners were released from a custodial prison sentence, but the statistics do not show which of those were released on licence. It would be helpful if the Minister had any statistics on the number of terrorist prisoners released on licence in recent years.
As we know, this is an issue of heightened importance since the atrocities at Fishmonger’s Hall and Streatham. The perpetrators were terrorist risk offenders or were on the authorities’ radar to a certain degree. The Opposition have repeated called for a review into lone actor terrorism and the need for a clearer strategy to tackle it.
It emerged in the spring that the Home Office had in fact conducted a review of that kind but through an internal unit, so few details are known about it. My hon. Friend the Member for St Helens North (Conor McGinn) pressed Ministers for more details about the review and for its key findings to be shared confidentially with us, but we have had no response. All along, we have said that we want to work with the Government to get these crucial matters right and to strengthen national security, which is our top priority. We can do that better if we have the right information and if there is full transparency by the Government about where the system needs to improve.
Overall, we welcome the provisions in clauses 157 to 162 that will insert four new sections into the Terrorism Act 2000, providing for new powers to manage terrorist offenders. We were pleased that the Government asked the Independent Reviewer of Terrorism Legislation, Jonathan Hall, QC, to review multi-agency public protection arrangements regarding the management of terrorist offenders and other offenders of terrorism concern. In the joint letter by the Justice Secretary and the Home Secretary to Jonathan Hall, QC, they wrote that
“officials consulted all operational agencies, including counter-terrorism, police and the National Probation Service, which confirmed how useful the new powers would be and in what circumstances they might be used.”
Labour welcomes this statement.
In the evidence sessions for the Bill Committee, Jonathan Hall, QC, made some important points, one about a specific safeguard, which I would like the Minister to respond to. Jonathan Hall, QC, said on the power in clause 159 to apply for a warrant to search the premises of a released offender, which he supports, that
“it would be possible to apply to a judge for a warrant that would allow you to enter on any number—potentially an infinite number—of occasions. If you think about released terrorist offenders on licence, their licences can last a very long time—for example, 10 or 15 years—so perhaps the Committee may want to think about whether it is appropriate to have a power that would authorise multiple entries into a person’s premises throughout 10 or 15 years. The power of multiple entry under warrant does exist when you are talking about a live operation, and the police find that quite useful. I am not quite sure whether it is justified in the context of this particular risk.”––[Official Report, Police, Crime, Sentencing and Courts Public Bill Committee, 18 May 2021; c. 51.]
Since this is our first chance to discuss small points of detail in the Bill, it would be helpful if the Minister could respond to the point that Jonathan Hall, QC, made.
Furthermore, on clause 158 Jonathan Hall, QC, had a question about the purpose of this search, in that the clause is drafted in a way that makes its scope wider than that of the Terrorism Prevention and Investigation Measures Act 2011. Can the Minister say what precisely is the purpose of the search, and can she respond to the point made by Jonathan Hall, QC, that it may be that the purpose of the search goes a bit wider than necessary?
Finally, Jonathan Hall, QC, said in March that the Government have not taken any steps in the Bill to address the fact that there is no proof that the desistance and disengagement programme for released terrorists is working. Can the Minister point us to anything in the Bill or elsewhere that addresses that point?
Victoria Atkins
I join the hon. Lady in paying tribute to Saskia Jones and Jack Merritt, whose lives were tragically cut short in a horrific manner in Fishmongers’ Hall. I am really pleased that these clauses meet with the approval of both the Government and the Opposition parties, so that we are able to make some very substantial changes, as recommended by Jonathan Hall, QC. He examined the legislation with great care and attention following the commission from the Home Secretary and the Lord Chancellor.
The hon. Lady asked me a few questions. If I may, I will write to her on the point about the statistics; I do not have the statistics to hand, I am afraid, but I will write to her with them. She asked about the ability under clause 159 for officers to apply for a multiple entry ability warrant. The reason for that ability is that we anticipate that there will be a very small number of cases in which counter-terrorism police officers believe that a warrant permitting multiple entry is required. An application by the police will only be made following cross-agency work, including discussion with probation services on the justification for a warrant and its appropriate scope. Ultimately, of course, it would be for the court to decide, and clause 159 is clear that the court should issue the warrant only if it is satisfied that such authorisation is necessary for purposes connected with protecting members of the public from a risk of terrorism.
To reassure colleagues, Parliament has previously agreed to the creation of premises search powers that permit multiple entries. For example, the search power under section 56A of the Counter-Terrorism Act 2008 provides for that, and it was inserted by the Counter-Terrorism and Border Security Act 2019. I hope that as we felt able to do that in that legislation, we will feel able to do the same in the Bill, given all the safeguards.
The hon. Lady asked about the purpose of a search. The personal search will provide the police with the means of conducting assurance checks. We envisage that in the majority of cases, they will be checks on whether a relevant terrorist offender is in possession of something that could be used to harm or threaten a person—a weapon or a fake suicide belt, for example—but there may be other limited scenarios in which a personal search for something that appears innocuous may be necessary for purposes connected with protecting members of the public from a risk of terrorism. An example would be a personal search to check whether the offender was in possession of a mobile phone in violation of their licence conditions.
This provision gives a better means of monitoring risk, because a contraband phone would be unlikely to meet any definition of something that could be used to threaten or harm, but depending on the offender’s background, it might embolden them to make contact with their previous terrorist network, enable them to access materials useful in preparing an act of terrorism, or provide a route for them to radicalise others. I hope that I have addressed the hon. Lady’s concerns.
Question put and agreed to.
Clause 157 accordingly ordered to stand part of the Bill.
Clauses 158 to 161 ordered to stand part of the Bill.
Schedule 18 agreed to.
Clause 162 ordered to stand part of the Bill.
Clause 163
Rehabilitation of offenders
The Parliamentary Under-Secretary of State for the Home Department (Chris Philp)
I beg to move amendment 134, in clause 163, page 180, line 23, at end insert—
“(A1) The Rehabilitation of Offenders Act 1974, as it forms part of the law of England and Wales, is amended as follows.”
This amendment is consequential on Amendment 143.
Chris Philp
It is, as always, a pleasure to serve under your chairmanship, Mr McCabe, and an equal pleasure to follow the Under-Secretary of State for the Home Department, my hon. Friend the Member for Louth and Horncastle.
Amendment 142 relates to the Rehabilitation of Offenders Act 1974, which sets out a rehabilitation period for orders on conviction that impose prohibitions and other penalties. The rehabilitation period is equal to the duration of the period for which the order is specified to have effect. The amendment seeks to put beyond doubt that where the court imposes any provisions in an order, that attracts a rehabilitation period and requires disclosure in a way that is similar to when orders impose prohibitions and penalties. A provision may say, for example, that a person should, or should not, engage in a particular activity. Any provision, of whatever nature, triggers the disclosure requirement until such time as the provision ends. Amendment 142 makes that clear.
Amendment 138 is in a somewhat similar spirit. It relates to orders that set out that they have effect until the occurrence of a specified event. The court may make provision for some orders to have effect indefinitely, or until a further order is made in respect of the subject. Those orders might include disqualifications, restraining orders, sexual harm prevention orders and criminal behaviour orders. The amendment is intended to put beyond doubt that where such provision is made in the order, the rehabilitation period and the accompanying disclosure requirement end only when the order ceases to have effect, so once again, it is clarifying. The rest of the amendments in this group—134 to 137, 139 to 141, and 143—are technical amendments that make corrects to various cross-references.
Alex Cunningham (Stockton North) (Lab)
I beg to move amendment 9, in clause 163, page 180, line 30, leave out from “for” to “or” in line 32 and insert
“a serious violent, sexual or terrorism offence specified in regulations made by the Secretary of State by statutory instrument”.
This amendment would make the list of offences subject to lifelong disclosure specified in regulations rather than set in primary legislation.
Clause 163 would allow some custodial sentences of over four years to become spent after a certain period of time, excluding convictions for serious sexual violence and terrorist offences. It would also reduce the existing rehabilitation periods for certain other disposals given or imposed on conviction. I am pleased to say that we are very supportive of the Government’s direction of travel on criminal record reform, although as ever, I wonder whether it can go that little bit further, and do all the more good for it. The focus on employment discrimination is correct: we know that employment is a critical factor in preventing reoffending and maintaining the wider wellbeing of people with criminal records. One proven way to help people with criminal records into work is to reduce the period for which they have to disclose their record. These changes will impact as many as 50,000 people a year, and will make an appreciable difference to their life.
While we are supportive of the Government’s efforts to help people with criminal records into work, I note that the charity Unlock, which specialises in this area, has said that it
“cannot agree that the white paper proposals alone will have an appreciable impact on reoffending or employment.”
The reforms are welcome, but a major concern of ours is that they are not necessarily grounded in evidence. Let me be clear: there is evidence that reducing spending periods will reduce discrimination and help people with criminal records into employment, and that being in employment is one of the most important factors in preventing reoffending. However, there is not evidence that the specific reductions that the Government have proposed are the most effective way of reducing employment discrimination and/or preventing reoffending. As Unlock noted in its response to the White Paper,
“Even where there are reductions, the MoJ has not discussed how or why they have arrived at these figures. While Unlock do support these reductions, it is concerning not to see a base of evidence offered for those choices, or even a broader public policy justification. To see disclosure reduced from two years to one year is positive; but why is one year the correct length? Why not six months, or 18 months?”
Policies are more likely to achieve their aims if they are rooted in clear evidence. Can the Minister share with us the Department’s reasoning in coming up with these numbers? I agree that a shorter spending time is better, but I am interested in why the Government have chosen to place the limits where they have.
It has been only a few years since the Government’s previous set of radical reforms in this area came into force under the Legal Aid, Sentencing and Punishment of Offenders Act 2012, having been proposed in the 2012 Ministry of Justice “Breaking the Cycle” White Paper. I am sure the Government would agree that it is preferable to get it right this time, and not need another set of so-called radical reforms a few years hence.
I turn to the impact on children’s spending periods. Under the Bill, children’s rehabilitation periods continue to be half those of adults. The Youth Justice Board queries whether that is the correct way to do it and advocates instead for an approach that takes into account the differences in child offending patterns. It sounds eminently sensible to me that the Government should base child rehabilitation periods on evidence of child reoffending and what actually works to rehabilitate children, rather than simply halving the number in the adult model. I would be interested to hear from the Minister whether his Department has given any consideration to that, or might look at it in the future.
That said, the Opposition are certainly in favour of the proposals on child rehabilitation periods, as we would like them to be reduced. As the Howard League notes in its briefing, the impact of the childhood criminal record system in England and Wales is
“extremely punitive by international standards”.
These proposals will help more people who commit an offence as children to turn their lives around and move away from offending behaviour, so we are glad to support them. However, I put on record the Opposition’s concern that these proposals for child rehabilitation periods will still exclude those who turn 18 before conviction. I will speak further on this next week when we come to the relevant new clauses that we have tabled, but it causes us disquiet that not every child who commits an offence will have a child rehabilitation period. That is especially relevant because the number of children who turn 18 while awaiting trial is increasing as a result of the unprecedented court backlog.
Finally, before I turn to the amendments, I want to touch on the fact that this direction of travel, welcome though it certainly is, makes some disparities in the disclosure regime even wider. One example is motoring offences, which I will speak about shortly in relation to amendment 165. I would welcome information about the work ongoing in the Department on this topic that could reassure us that the Government’s ambitions are not limited to these proposals.
I will be relatively brief on amendment 9, but first I thank Unlock for its helpful input. Amendment 9 would mean that the list of offences that are subject to lifelong disclosure was specified in regulations, rather than in primary legislation. This is effectively a future-proofing amendment, which will make future Government reforms in this area easier to achieve. The list could be more easily amended over time in response to changing needs and circumstances.
The Bill provides that some convictions that previously led to a sentence of more than four years should become spent after seven years. Before this, all sentences of more than four years had to be disclosed for life. There will be a tremendous positive impact on the lives of people with criminal records covered by this proposal. The reach of the policy is clearly restricted, because the Ministry of Justice proposes that
“serious sexual, violent and terrorist offences”
be excluded, and I make it clear that we have no opposition to that restriction.
The offences that will be excluded are those covered by schedule 18 of the sentencing code. That in itself illustrates why it would be simpler to keep the list in regulations. After the sentencing White Paper was published, but before the sentencing code became law, the Lord Chancellor intended to use the list from schedule 15 of the Criminal Justice Act 2003 to determine which offences would be excluded. This list fulfils a similar purpose, but I think that demonstrates the point I am trying to make.
In fact, I hope that schedule 18 of the sentencing code is more appropriate, because Unlock has estimated that around 65% of all sentences of over four years are imposed for crimes on the list in schedule 15 of the Criminal Justice Act, meaning that the Government’s proposals would affect only a minority of those with criminal records. Furthermore, the offences listed in schedule 15 had a very wide range of outcomes: 27% of schedule 15 offences in 2019 received only community orders, despite being classified as serious. It would be helpful to hear some reassurance from the Minister that schedule 18 is more fit for purpose. Regardless, I am sure that he can understand the benefits of future flexibility. I hope that he will support this simple amendment.
I turn to amendment 165.
The Chair
No, I think it would be better to stick to the sequence on the selection list.
Chris Philp
Given your direction, Mr McCabe, I will not speak to clause 163 substantively just yet—or, indeed, to amendment 165—but will speak narrowly and specifically to amendment 9.
I understand the spirit of the shadow Minister’s amendment, but I observe that it is not often that the Opposition propose conferring on Government regulation-making powers that they have not asked for. It is usually the other way around, is it not?
The Government take the view that schedule 18 of the sentencing code sets out the list of most serious offences. They are the same offences used to assess dangerousness. Using schedule 18 ensures simplicity and consistency between assessing dangerousness and requiring longer disclosure. We think it is more straightforward and transparent for those people subject to disclosure requirements to know that that is not a moving target; they know the list is fixed and will not change.
The power that the shadow Minister generously proposes conferring on the Government might lead to unpredictable changes for the people affected. For those two reasons—predictability and consistency—we prefer to set things out in statute, as is currently proposed, via schedule 18 of the sentencing code.
I will briefly answer one question that the shadow Minister posed—I might address some other questions later—on research on whether these are the right lengths of time, or whether more can be done in future. Yes, I confirm that we will continue to look at this, and to conduct research as appropriate to ensure that the balance is struck between rehabilitation and protecting the public.
Alex Cunningham
The fact that the Government have missed the point about the narrow application of the measure and how very few people will be caught by it is lamentable. I will not press the amendment to a vote at this stage, but we may well revisit the matter in future. It is great to have such provisions, but they affect only a minority of people in the criminal justice system, when they could benefit so many more. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendments made: 137, in clause 163, page 181, line 27, at end insert—
“(3A) In subsection (2) (rehabilitation periods), in the words before paragraph (a), for ‘(3) and’ substitute ‘(2A) to’.”
This amendment and Amendments 138 to 140 make provision about the rehabilitation period that applies to a person who is subject to a relevant order where the last day on which the order is to have effect is not provided for by or under the order.
Amendment 138, in clause 163, page 182, line 8, at end insert—
“(4A) After subsection (2) (and after the table in subsection (2)(b)) insert—
‘(2A) Subsection (2B) applies where provision is made by or under a relevant order for the order to have effect—
(a) until further order,
(b) until the occurrence of a specified event, or
(c) otherwise for an indefinite period.
(2B) The rehabilitation period for the order is the period—
(a) beginning with the date of the conviction in respect of which the order is imposed, and
(b) ending when the order ceases to have effect.’”
See the explanatory statement for Amendment 137.
Amendment 139, in clause 163, page 182, line 9, leave out subsection (5) and insert—
“(5) For subsection (3) (rehabilitation period for community etc order which does not provide for the last day on which the order has effect) substitute—
‘(3) The rehabilitation period for a relevant order which is not otherwise dealt with in the Table or under subsections (2A) and (2B) is the period of 24 months beginning with the date of conviction.’”
See the explanatory statement for Amendment 137.
Amendment 140, in clause 163, page 182, line 11, at end insert—
“(5A) In subsection (4)(b) (rehabilitation period for other sentences), for ‘subsection (3)’ substitute ‘any of subsections (2A) to (3)’.”
See the explanatory statement for Amendment 137.
Amendment 141, in clause 163, page 182, line 29, after “order” insert “—(a)”.
This amendment and Amendment 142 make provision about the rehabilitation period that applies to a person who is subject to an order which imposes requirements or restrictions on the person or is otherwise intended to regulate the person’s behaviour.
Amendment 142, in clause 163, page 182, line 31, at end insert “, and
(b) for paragraph (g) substitute—
‘(g) any order which—
(i) imposes a disqualification, disability, prohibition, penalty, requirement or restriction, or
(ii) is otherwise intended to regulate the behaviour of the person convicted,
and is not otherwise dealt with in the Table,’.”
See the explanatory statement for Amendment 141.
Amendment 143, in clause 163, page 182, line 31, at end insert—
“(8A) In section 6(5) (the rehabilitation period applicable to a conviction), for the words from ‘by virtue of’ to ‘or other penalty’ substitute ‘to an order within paragraph (g) of the definition of “relevant order” in section 5(8) above’.
(8B) In section 7(1)(d) (limitations on rehabilitation under the Act), for ‘or other penalty’ substitute ‘, penalty, requirement, restriction or other regulation of the person’s behaviour’.
(8C) In paragraph 5(b) of Schedule 2 (protection for spent cautions), after ‘prohibition’ insert ‘, requirement’.”—(Chris Philp.)
This amendment makes amendments to the Rehabilitation of Offenders Act 1974 that are consequential on or otherwise related to the amendments to that Act made by Amendment 142.
Alex Cunningham
I beg to move amendment 165, in clause 163, page 182, line 45, at end insert—
“(12) The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Commencement No. 9, Saving Provision and Specification of Commencement Date) Order 2014 (S.I. 2014/423) is amended by the omission of article 3.”
This amendment would provide that the changes to the rehabilitation periods in the Rehabilitation of Offenders Act 1974 made by sections 139 and 141 and Schedule 25 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 would apply to road traffic endorsements.
As I mentioned, the welcome changes in clause 163 widen some disparities in the disclosure system, leaving certain offences extremely out of step with others. A particularly notable area where the discrepancy would manifest itself is motoring offences. That was raised in the evidence session by Sam Doohan of Unlock and Helen Berresford of Nacro. I thank Nacro for its input on this amendment.
A person who is convicted of, or receives a fixed penalty for, an offence listed on schedule 2 of the Road Traffic Offenders Act 1988 is required to disclose that information for a period of five years if they were an adult when convicted, or of three years if they were a juvenile when convicted. Motoring convictions have some of the longest rehabilitation periods when it comes to criminal record disclosure. In fact, adult motoring convictions that receive an endorsement at court have a five-year rehabilitation period. That means that, under the Bill, a minor motoring offence would be disclosed for more time than some custodial sentences and become even more of an outlier in the disclosure regime.
As Sam Doohan said in an evidence session:
“People end up having to disclose, say, a speeding ticket for five years, which is longer than if they had gone to prison for a year.”––[Official Report, Police, Crime, Sentencing and Courts Public Bill Committee, 20 May 2021; c. 99, Q155.]
I am sure that the Government recognise the nonsense in that. Current rules already have a disproportionate impact on people who apply for jobs because they have to disclose those convictions for five years. Now that will be even more disproportionate because they will often have to disclose for far longer than for non-motoring offence convictions that receive the same disposal. That affects a large number of people; more than half of all convictions every year relate to motoring offences.
Chris Philp
As the shadow Minister said, the amendment would change the current rehabilitation period for endorsements that are imposed in respect of motoring convictions from five years to nil. Unless another disposal is given for the same motoring conviction that attracts a separate rehabilitation period, the amendment would result in some motoring convictions being spent immediately and having no rehabilitation period.
It is worth saying that the Department for Transport leads on the rehabilitation periods for motoring penalties. It is a complex area with a combination of fines, driving bans and penalty points, as well as community and prison sentences, which are an important part of the system to reduce dangerous and careless behaviour on our roads. That includes the way in which the provisions interact with the insurance system, as the shadow Minister said.
Clearly, if someone gets speeding points and that has consequences for their insurance premium for some time, it is a disincentive to drive dangerously. There is also a reasonable link between someone who drives carelessly or dangerously and the risk they pose, which leads to higher insurance premiums. There is therefore a certain justice to that link.
The range of penalties and the current penalty points system has been developed to prevent low standards of driving behaviour, which have the potential to cause serious harm to other road users and, in the worst cases, death. That approach has been successful over the past few decades, under Governments of both colours, because road deaths have, mercifully, been decreasing.
Given the complexity of the subject, we do not propose to make the change that the shadow Minister suggests just now, but I can commit to conducting further research and investigation into the matter. The shadow Minister made the point about a longer disclosure period for driving causing other matters to be disclosed for a longer period than would otherwise be the case, with the consequent impact on employability. We will conduct further research into this area to ensure that we get the balance right and continue the positive direction of travel on safer roads, while at the same time ensuring that we facilitate rehabilitation.
Alex Cunningham
That is a helpful response from the Minister and I welcome the things that he had to say, particularly in relation to reviewing the issue in future. I do not intend to press the amendment to a vote. I understand that there is considerable cross-party support elsewhere for this approach to ironing out the anomaly, so I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause, as amended, stand part of the Bill.
Chris Philp
The shadow Minister has already touched on the substance of the clause, so I do not want to repeat what he so eloquently laid out for the Committee a little earlier. In substance, the clause amends the Rehabilitation of Offenders Act 1974 to enable an individual’s conviction to be spent earlier than would otherwise be the case. The reason for doing that is to enable people to rehabilitate and get back into work sooner than would otherwise be the case. However, we recognise that for the most serious offences, we want the conviction never to be spent—hence the exclusion defined by offences covered by schedule 18 of the sentencing code, which we discussed a couple of minute ago. For other offences, both for adults and for people under 18, the spending periods are reduced.
The shadow Minister asked earlier how we arrived at those particular times. We have looked at the data on reoffending, engaged widely with stakeholders and various groups in the sector that have an interest in this issue, and we have arrived at the reductions that we have. We think the reductions strike a balance between providing an earlier opportunity for rehabilitation on the one hand, and providing additional public protection and protection for employers on the other.
Of course, no Government or Ministers have a monopoly on wisdom—except, of course, my hon. Friend the Member for Louth and Horncastle—but we think this is a good starting point and a step in the right direction, as the shadow Minister has said already. However, we will continue to research in this area and will keep it under scrutiny, to ensure that the balance struck is the right one. I am pleased that stakeholders generally, and the shadow Minister, welcome this move.
Question put and agreed to.
Clause 163, as amended, accordingly ordered to stand part of the Bill.
Clause 164
British Sign Language interpreters for deaf jurors
Alex Cunningham
I beg to move amendment 147, in clause 164, page 183, line 10, after “interpreter” insert
“or language and communication service professional”.
This amendment would expand the provision of the clause to include other language and communication service professionals such as interpreters for Deafblind People, lipspeakers, notetakers, Sign Language interpreters, Sign Language Translators, and Speech to Text Reporters.
The Chair
With this it will be convenient to discuss the following:
Amendment 148, in clause 164, page 183, line 13, after “interpreter” insert
“or language and communication service professional”.
This amendment is consequential on Amendment 147.
Amendment 149, in clause 164, page 183, line 14, leave out “interpreters” and insert “such interpreters or professionals”.
This amendment is consequential on Amendment 147.
Amendment 150, in clause 164, page 183, line 16, after “interpreter” insert
“or language and communication service professional”.
This amendment is consequential on Amendment 147.
Amendment 151, in clause 164, page 183, line 18, after “interpreter” insert “or professional”.
This amendment is consequential on Amendment 147.
Amendment 152, in clause 164, page 183, line 20, after “interpreter” insert
“or language and communication service professional”.
This amendment is consequential on Amendment 147.
Amendment 153, in clause 164, page 183, line 25, after “interpreter” insert
“or language and communication service professional”.
This amendment is consequential on Amendment 147.
Amendment 154, in clause 164, page 183, line 28, after “interpreter” insert
“or language and communication service professional”.
This amendment is consequential on Amendment 147.
Amendment 155, in clause 164, page 183, line 30, after “interpreter” insert
“or language and communication service professional”.
This amendment is consequential on Amendment 147.
Amendment 156, in clause 164, page 183, line 33, after “interpreter” insert
“or language and communication service professional”.
This amendment is consequential on Amendment 147.
Amendment 157, in clause 164, page 183, line 34, after “interpreter” insert
“or language and communication service professional”.
This amendment is consequential on Amendment 147.
Amendment 158, in clause 164, page 183, line 37, after “interpreter” insert
“or language and communication service professional”.
This amendment is consequential on Amendment 147.
Amendment 159, in clause 164, page 183, line 39, after “interpreter” insert
“or language and communication service professional”.
This amendment is consequential on Amendment 147.
Amendment 160, in clause 164, page 184, line 3, after “interpreter” insert
“or language and communication service professional”.
This amendment is consequential on Amendment 147.
Amendment 161, in clause 164, page 184, line 8, after “interpreter” insert
“or language and communication service professional”.
This amendment is consequential on Amendment 147.
Clause stand part.
Alex Cunningham
Clause 164 will amend the law to allow British Sign Language interpreters in jury deliberation rooms. This change will enable profoundly deaf people who use sign language to serve as jurors. The Opposition are supportive of the clause, and we are pleased to see the Government taking steps to include differently abled citizens in the processes of our criminal justice system. I pay tribute to my hon. Friend the Member for Nottingham South (Lilian Greenwood) for her work on behalf of deaf people, particularly on this issue.
Jury service is a centuries-old civic obligation. We all have to play our role when the time comes, and it is only right that deaf people should be able to play their part in society as equal to everyone else. As the former chief executive of the British Deaf Association, David Buxton, has said, the change was
“long, long, overdue but very welcome.”
The Royal National Institute for Deaf People also welcomed the clause, but thinks it could go further—a point I will come to when I turn to the Opposition amendments.
The Juries Act 1974 makes no provision for the maximum number of jurors; that is governed by common law, under which it is a long-established principle that a jury consists of 12 persons. It is common law that prohibits a 13th person.
Mr Robert Goodwill (Scarborough and Whitby) (Con)
We all wish to do whatever we can to help those with a disability, but has the hon. Gentleman costed this for the taxpayer? Obviously, some trials go on for many days, and interpreters may charge £20, £30 or £40 an hour.
Alex Cunningham
It is a Government proposal to introduce interpreters in this situation, so perhaps the Minister can answer that question later. I would like the provision extended, as the hon. Gentleman will hear when I speak to the Opposition amendments.
The clause amends the common law “13th person” rule by adding new provisions to the 1974 Act to allow British Sign Language interpreters to assist deaf jurors, including in the course of their deliberations. The Government acknowledge in their equality impact statement that other individuals who might require the assistance of a third party will not benefit from the clause. The statement says:
“Where third party assistance is currently required in the jury deliberation room, efforts will be made to arrange for other jurors to provide this, wherever possible. For example, blind and partially sighted jurors can be assisted by a fellow juror reading out documents. However, we recognise this proposal is limited to profoundly deaf jurors who require a BSL interpreter and does not extend to other individuals with disabilities who, in order to serve effectively as a juror, would require the assistance of a third party (other than a fellow juror) in the jury deliberation room. We intend to keep this issue under review.”
It is welcome that the Government will keep the issue under review, but we could go further now. The Bar Council articulated the point well:
“If reasonable adjustments are to be made for jurors such as these who are otherwise disqualified, then adjustments should be made for all, otherwise a potential juror who is not able to understand British Sign Language (BSL) may feel discriminated against, as may a juror whose disability of disadvantage is not catered for by Clause 164.”
Could the Minister share with the Committee how his Department plans to review the extent of the provisions? I am sure the Committee would feel more comfortable moving forward with the clause if we knew a bit more about the Government’s plans in this area. It would be particularly good to hear whether there are plans to extend the use of the new provisions beyond people who are differently abled to people whose comprehension of English is insufficient for them to comprehend the proceedings fully.
I would welcome the Minister’s thoughts on another issue raised in the Bar Council’s submission to the Committee. It raised concerns about the position of a juror in retirement. Our jury system guards the collective nature of jury deliberations, in that deliberations are confidential, and nothing is allowed to influence them. Subsection (3) contains provisions on that matter, including measures that put an interpreter under the same restrictions as a juror as regards carrying out research and disclosing deliberations. It makes it an offence for the interpreter
“intentionally to interfere in or influence the deliberations of the jury”.
If the Committee will bear with me, I will quote at length from the Bar Council’s submission, as it raises an important, though hopefully rare, possibility that needs to be safeguarded against, and I would welcome the Minister’s thoughts on it:
“as soon as a thirteenth person is introduced into the jury, particularly during deliberations, the equilibrium of that jury is disturbed. All the input the hearing-impaired juror receives is via the interpretation—and the emphasis is on interpretation—of the thirteenth person, the interpreter.
That interpreter will have to control the deliberations so that they can interpret everything to the one juror. Any asides, cross-speaking or remarks which are not properly heard will not be transmitted and so the interpreter will become a sort of de facto second foreperson, controlling discussions. Inevitably their conduct will influence how the deliberations proceed.
Because a jury is kept private, any misconduct by any juror can only be reported by the other jurors. Although this does not happen frequently, it is not a rare occurrence; human nature being what it is. At present, anything amiss that occurs during deliberations is inevitably 16 witnessed by the rest of the jury, and if any single juror misconducts themselves the rest of the jury are obliged to report it. This is impossible in the case of the private communications between an interpreter and a deaf juror. Should either or both misconduct themselves, the whole premise upon which the integrity of the jury is based—that all witness the behaviour of each other—would break down and no one would know. For example, should an interpreter fail to interpret properly, no one would ever know. This is not to say that one should assume this will happen and that it is a reason not to permit interpreters. The fundamental objection is that the jury system can only work because it is the jury collectively which polices itself. That safeguard is removed if two people in retirement—the interpreter and the deaf juror—are participating in the deliberations in a way which the rest of the jury are excluded from and so cannot monitor.”
Chris Philp
I thank the shadow Minister for his speech. Interestingly, it pulled in two different directions. On the one hand, he quoted the Bar Council’s concerns about whether the jury principle might be undermined, but then he moved a series of amendments that would considerably increase the scope of the clause. Those two points clearly pull in opposite directions, perhaps suggesting that the clause as drafted is about in the right place.
As the shadow Minister eloquently laid out, once again, clause 164 permits a stranger—a so-called 13th member—to enter the jury room where that person is a British sign language interpreter, to assist a deaf juror in participating in the proceedings. Both sides of the House have agreed that that is a good idea. The shadow Minister read out a quote from the Bar Council that raised some concerns about the sanctity of the jury room being infringed. That is of course an important principle in law. I sat as a juror at Croydon Crown court during the summer recess a couple of years ago, so I know that that is something that the system protects fiercely, and rightly so.
I assure the shadow Minister and the Bar Council that several safeguards are in place to ensure the BSL interpreter cannot unduly influence proceedings. They have to sign an agreement that includes confidentiality and other provisions, and undertake not to engage in any behaviour that might be of concern. They swear an oath to the same effect, and breaking it would be a criminal offence. Only BSL interpreters on the proper register can be used, so someone cannot be picked off the street and wander in; it has to be somebody who is on the approved register to start with.
The shadow Minister asked about the possibility of error. I believe that the intention is to have two BSL interpreters present just in case one makes a mistake or loses attention for a moment, so there is a safeguard there. Of course, if any member of the jury witnesses behaviour that concerns them, it is always open to them to report the matter to the trial judge. I hope that the safeguards that I have just outlined address the points that the shadow Minister and the Bar Council raised.
Maria Eagle (Garston and Halewood) (Lab)
If jurors break their oaths and say things outside or reveal things that they should not, there can be contempt proceedings and punishments. Will the same punishments apply to the interpreters? The Minister has set out a number of contractual arrangements, which are all well and good, but will the same obligations lie upon the interpreters as lie upon jurors?
Chris Philp
Yes, I believe—in fact, I know, because it is written down in front of me; that is not quite the same thing, but let us assume it is for these purposes—that the provisions create a new offence where a BSL interpreter intentionally interferes in or influences the deliberations of the jury in the proceedings before a court. Yes, there are now criminal provisions being introduced by the clause.
I understand the spirit in which amendments 147 to 161were moved by the shadow Minister, and he mentioned that the hon. Member for Nottingham South assisted in their development. I understand that widening the type of people who might be able to assist could help a wider range of jurors, but there are some concerns about going too far, too quickly.
As the shadow Minister pointed out, this is a significant step. It is a significant departure from centuries of established practice. Allowing a 13th person into the jury room has never been done before. There is a feeling among the stakeholders we consulted—the judiciary, the Bar and so on—that we should take this one step at a time. Let us start with British sign language interpreters and see how that goes. If it is made to work successfully, as we hope it will be, we can look in due course at widening the range of people who might be accommodated.
There are also, I should add, potential capacity constraints. For example, I am told that there are 150 registered BSL interpreters, but only 32 speech-to-text reporters, so one might have issues with the number of available people. This is an important step. Let us take this one step first and then review it on an ongoing basis to see whether we need to go further.
Alex Cunningham
I accept the Minister’s explanation as far as the sanctity of the jury room is concerned, so I can leave that to one side. However, in his last few sentences he illustrated why there should be wider provision in this area: so few people are available to provide the services for the particular way he wants to take this clause forward and serve deaf people. I think there is a real opportunity to involve far more deaf people in the system. For that reason, I will press the amendment.
Question put, That the amendment be made.
Chris Philp
This is a quick and simple clause. The Office of the Parliamentary Counsel, which has been drafting this Bill, spotted a stray reference in an old piece of legislation to offences punishable by death in the context of jury sizes. It goes back to the concept of small war-time juries being unable to try certain offences where the penalty was death. We no longer have the death penalty, so the OPC thought it was a good idea to tidy up the statute book by removing the reference.
Question put and agreed to.
Clause 165 accordingly ordered to stand part of the Bill.
Clause 166
Remote observation and recording of court and tribunal proceedings
Alex Cunningham (Stockton North) (Lab)
I beg to move amendment 72, in clause 166, page 185, line 41, at end insert—
“(8A) The Lord Chancellor may not make regulations under subsection (8) unless the advice of the Senior Data Governance Panel (or similar committee established for this purpose) has first been sought on the provision which they would make.”
This amendment would require the Lord Chancellor to seek the advice of the Senior Data Governance Panel before making regulations governing the broadcast of court hearings.
The Chair
With this it will be convenient to discuss the following:
Clause stand part.
Clause 167 stand part.
Alex Cunningham
I will be brief. Clause 166 replaces temporary emergency provisions included in the Coronavirus Act 2020, which allows for certain proceedings to be observed remotely and recorded. At the same time as replacing these temporary measures, clause 166 would also extend them.
While the current emergency provisions cover only criminal provisions, clause 166 extends coverage to civil proceedings as well as proceedings across tribunals. The Opposition believe firmly in the principles of open justice. We believe the public should have a right to witness proceedings taking place, unless it is in the interests of justice not to do so. This is why we will support clause 166 today. Nonetheless, we have a reservation that we hope the Minister will be able to address.
Proposed new subsection 8 of clause 166 makes provision for the Lord Chancellor to make regulations to decide which types of proceedings can be broadcast and what factors must be taken into account before this can take place. These regulations can only be made if the Lord Chancellor agrees, but no other external stakeholders would be consulted in this process. This is why we have tabled amendment 72.
As I am sure the Minister will understand, legal proceedings often cover sensitive and painful topics and, for many, just attending court or tribunal will be a difficult time. For that reason, decisions regarding which types of proceedings should be broadcast should not be taken lightly.
Chris Philp
Clauses 166 and 167 put on to a permanent and sounder footing many of the measures that have been used during the coronavirus pandemic to, first, enable remote hearings to take place and, secondly, where proper, to allow transmission of those hearings. It is important to stress that at all times the judge retains control of the proceedings and it is ultimately for the judge in any particular hearing or trial to decide what is appropriate. Nothing in the provisions fetters that important judicial discretion and safeguard over the management of any individual hearing or proceeding.
On clause 166, over the past year, our courts and tribunals have successfully and rapidly moved the bulk of their proceedings online during the pandemic. Such hearings have been vital in our court recovery.
It should be noted that in the civil and family jurisdictions, and in tribunals, the ability to hold proceedings using audio and video technology is not governed by legislation, but is permissible under the court or tribunal’s inherent jurisdiction. Accordingly, no legislation is needed to enable remote hearings for those jurisdictions, in contrast to the criminal jurisdiction, for which clause 168, which we will consider shortly, makes provision.
Legislation is required to make sure that suitable safeguards are in place to protect those taking part in a hearing and ensure the proper administration of justice. Clause 166 replicates some of the temporary powers introduced during the coronavirus pandemic for that purpose, future-proofs them and brings several new jurisdictions into the regulatory framework. The clause also allows courts and tribunals to provide transmissions of proceedings either to individuals who have identified themselves and requested access, or to specifically designated locations.
As I have already pointed out, judges, magistrates and anyone presiding over a tribunal panel retain the ultimate discretion. Regulations made by the Lord Chancellor, with the agreement of the Lord Chief Justice, will govern much of this area and will enable the regulations to be refined for particular circumstances or applications.
Clause 167 makes several further safeguards in relation to this matter permanent, with a few minor refinements. For example, the clause prohibits the recording or transmission of anyone remotely attending proceedings in a list of major courts and tribunals, unless authorised by the court or tribunal or the Lord Chancellor. It also provides clarity by defining this offence as summary-only as well as contempt, while making new provisions to preclude double jeopardy. It enshrines some of those important safeguards.
On amendment 72, which was moved by the shadow Minister and would compel the Lord Chancellor to seek the advice of the Senior Data Governance Panel, we say that that is not necessary in legislation as set out here. Of course the Government do not make the relevant regulations in isolation. That is why secondary legislation can be brought forward only with the concurrence of the Lord Chancellor—a member of the Government—and of the Lord Chief Justice. The Lord Chief Justice’s concurrence is a very important safeguard.
Of course, in the formulation of regulations of this nature, informal consultation will take place with a number of bodies, including the SDGP, the judiciary, court practitioners, Her Majesty’s Courts and Tribunals Service and other interested parties. The SDGP does of course advise, but it is worth pointing out that the SDGP itself is not on a statutory footing and therefore perhaps it is not appropriate to give it the sort of status that the amendment proposes. That might also risk interfering with the notion of judicial independence. Therefore, although informal consultation with various stakeholders and experts is of course important, we think that the statutory obligation contemplated by amendment 72 goes a little too far.
Alex Cunningham
I am content with the Minister’s explanation. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clauses 166 and 167 ordered to stand part of the Bill.
Clause 168
Expansion of use of video and audio links in criminal proceedings
Alex Cunningham
I beg to move amendment 73, in clause 168, page 189, line 30, at end insert—
“(d) the court has been provided with a physical and mental health assessment of the person to whom the direction relates confirming that proceeding via a live audio link or live video link will not impede their ability to understand or effectively participate in proceedings.”
This amendment would require the court to be provided with a physical and mental health assessment of an individual before it could make a direction requiring or permitting them to take part in criminal proceedings through a live audio or video link.
The Chair
With this it will be convenient to discuss the following:
Amendment 124, in clause 168, page 189, line 30, at end insert—
“(d) in the case of a direction relating to a person under the age of 18, the court considers that no other method of dealing with the person is appropriate.”
This amendment would introduce a presumption against a direction for a live video or audio link in criminal proceedings involving children.
Amendment 118, in clause 168, page 189, line 30, at end insert—
“(4A) The court may not give a direction under this section relating to the defendant in the proceedings unless that defendant has previously been given the opportunity to state whether they would prefer to appear in person and they have consented to appearing via live audio link or live video link.”
This amendment would provide defendants the opportunity and ability to choose to appear in person rather than via audio or video link.
Amendment 119, in clause 168, page 189, line 45, at end insert
“with particular reference to the following—
(i) where the person is a defendant, the existence of impairments or other factors that may negatively affect the defendant’s ability to participate effectively in court proceedings;
(ii) the nature of the hearing, including the complexity of the case and the matter being dealt with; and
(iii) the likely impact of the hearing on the rights of the defendant, particularly if it puts the defendant at risk of deprivation of liberty,”.
This amendment would require the court to consider a range of additional factors which may affect the ability of the person to participate effectively in proceedings when deciding whether a person should be able to participate via audio or video link.
Amendment 125, in clause 168, page 190, line 6, at end insert—
“(h) in the case of a direction relating to a person under the age of 18—
(i) any need for additional support for that person to enable them to take part in the proceedings effectively,
(ii) the requirement to ensure that that person understands the legal proceedings in which they are participating, and
(iii) whether there are other more appropriate means of requiring or permitting the person to take part in the proceedings.”
This amendment sets out a range of considerations which the court must take into account when considering a direction for a live video or audio link in criminal proceedings involving children.
Amendment 74, in clause 168, page 190, line 10, at end insert—
“(4) The Secretary of State may exercise the power in section 175(1) so as to bring this section (and part 3 of Schedule 19) into force only if the condition in subsection (5) is met.
(5) The condition in this subsection is that a review of the impact of the expansion of audio and video links in criminal proceedings has been conducted in accordance with subsection (6).
(6) The review mentioned in subsection (5) must—
(a) collect evidence of the impact of live audio and video links on—
(i) sentencing and remand decisions,
(ii) the effective participation of defendants,
(iii) the experience of victims and witnesses, and
(iv) the cost to the wider justice system, including costs borne by the police and prison systems; and
(b) be undertaken by a person who is independent of the Secretary of State.
(7) The review mentioned in subsection (5) may also consider any other matter which the person conducting the review considers relevant.”
This amendment would ensure that the expansion in the use of audio and video links will not be undertaken until an independent review of its impact has been undertaken.
Clause stand part.
Amendment 75, in clause 175, page 193, leave out line 37.
This amendment is consequent on Amendment 74.
Alex Cunningham
You will be pleased to know, Mr McCabe, that this will be my last substantial speech this afternoon. There are a couple of small ones to go, but this will be the last substantial one.
Clause 168 expands the use of video and audio or live links to a wide range of criminal proceedings. The Government hope that expanding the use of live links will allow courts to conduct criminal hearings remotely, with defendants, witnesses, lawyers, and possibly jury members attending remotely by audio or video link. The proceedings include preliminary hearings, trials before the magistrates and Crown courts, appeals and sentencing hearings, to name just a few.
The rationale behind the clause seems somewhat confused. As we know, the clause develops and expands the framework for remote justice that was developed during the pandemic. During the pandemic, video and audio live links were required as an exceptional measure to ensure that the wheels of the justice system could continue turning. That makes it all the more confusing that the Government are seeking to introduce clause 168 now, when thankfully we are in a different phase of the pandemic altogether.
I wonder whether the Minister will explain the Government’s thinking behind the clause—I am sure he will. Is it, as some have suggested, a safeguarding measure against, as unthinkable as it is, another pandemic-type scenario hitting the country? If that is indeed the purpose behind clause 168, it is something that the Opposition could cautiously support, provided that certain safeguards were built into the clause. The Opposition accept that there are countless hearings—many of them administrative in nature—where live links would allow them to be completed more efficiently than proceedings in person. None the less, I hope that the Minister will accept that there are other circumstances and situations in which the use of live links could have a profound impact on fair trial rights. I will discuss that in detail when I come to our amendment shortly.
It is also important to point out that clause 168 goes quite some way beyond the measures implemented under the Coronavirus Act 2020. As the Minister will know, clause 168 would allow, for the first time, live links to be permitted by a court in respect of juries—in other words, remote juries. Although it is very welcome that the Government have introduced a number of safeguards in relation to remote juries—for example, jurors would not be able to take part from home, and parties would be able to appeal a direction for juries to sit remotely—the Opposition are still concerned by this new power. The Minister must accept that clause 168 as a whole, but particularly in relation to juries, represents a momentous change in our legal system, and it is concerning that it seems to be based on little evidence and has been put together largely without consultation. As Transform Justice points out:
“The government has claimed that video and audio links in the pandemic have been a huge success. But beyond the occasional announcement on the number of links used, we have no evidence on video and audio criminal hearings in the pandemic. No data has been systematically collected and no research published.”
That is why the Opposition have tabled amendment 74, which would compel the Government to seek a full independent impact assessment of the effects of clause 168 before the expansion of audio and video links could take place. The aim of the impact assessment is to show what impact the roll-out of live links would have on sentencing and remand decisions, the effective participation of defendants, the experience of victims and witnesses, and the cost to the wider justice system, including costs borne by the police and prison systems. I am sure the Minister will agree that these are fundamental questions that the Government must know the answers to before clause 168 can fully come into effect.
The Opposition understand that some benefits may come from the Government’s direction of travel in relation to remote juries, although as I said in my previous speech, those benefits are relatively limited. It is vital that they are not obtained by impinging on the central tenets of our justice system, which are access to justice and the right to a fair trial. If the Government are set on moving in this direction, I hope they can at least see the value in a series of safeguards that can help to ensure the safety and fairness of trials. Serious concerns about these reforms have been raised across the legal and justice sectors, and the input of those sectors has been invaluable. In particular, I thank Transform Justice, Fair Trials and the Legal Education Foundation for their constructive and considered engagement with these proposals. This series of amendments—73, 118, 119, 124 and 125—would introduce a range of sensible safeguards, and I hope the Government recognise their value.
Amendment 118 would give defendants the opportunity and ability to choose to appear in person, rather than via audio or video link. Research has shown that effective participation in court proceedings can be impeded if the defendant appears on video or audio link. This is because remote hearings can interfere with defendants’ rights to participate effectively at their own hearings, and to review and challenge information and evidence relevant to those proceedings. In their report of April last year, called “Preventing the health crisis from becoming a justice crisis”, the Equality and Human Rights Commission pointed out that
“poor connections cause important information to be missed”
and
“can cause disconnection and separation from people and legal process”.
The EHRC also looked at this issue in its report “Inclusive justice: a system designed for all”, in which it noted that defence solicitors and advocates highlighted:
“The separation between the defendant and their solicitor and/or court”.
It outlined that
“defendants may not have a full view of the court, or know who is present in the room at the other site…It was also noted that being alone for a video hearing, without support, can be difficult for some people.”
One defendant shared their experience with the court, saying that
“It wasn’t what I would call a real court because I was sat in a room all on my own with a screen but I couldn’t hear what was being said…I found it very difficult and I was unable to take part in it”.
Remote court proceedings can also affect the effectiveness of lawyer-defendant communications, undermining defendants’ ability to access legal advice and effective legal representation. Research by Fair Trials has found that lawyer-defendant communications have been badly affected during the covid-19 pandemic, meaning that defendants are finding it more difficult to consult their lawyers and to seek advice before, during and after court hearings. On top of that, a March 2020 report on video-enabled justice, funded by the Home Office and carried out by the Sussex police and crime commissioner in conjunction with the University of Sussex, found that
“The loss of face-to-face contact in video court can create challenges in terms of advocates developing trust and rapport with their clients”
and that
“appearing over the video link could make defence advocates less effective, particularly in relation to bail applications”.
There is also evidence suggesting that remote hearings disproportionately result in custodial sentences. That Home Office-funded report concluded that individuals whose cases were handled remotely were more likely to be jailed and less likely to receive a community sentence. Furthermore, the proportion of unrepresented defendants receiving custodial sentences was higher than the rate for represented defendants, and those sentenced in a more traditional court setting were more likely to receive fines or other community sentences.
I would be interested to hear the Minister’s thoughts on these findings, as they have very serious ramifications for our justice system as more hearings take place remotely. If the Government want to make changes, they need to take responsibility for the outcomes and not simply farm out that accountability to the judiciary, so I would like to hear what steps the Minister’s Department thinks we should take to safeguard against the outcomes I have just outlined.
Chris Philp
We have heard extensively from the shadow Minister on the clause, so I do not think I need to repeat too much of what he said about its purpose, save to say in summary that it enshrines the expansion of the use of, or enables the use of, video and audio links in criminal proceedings beyond that introduced last year in the Coronavirus Act 2020, which, as we have already discussed, has enabled a great deal of court recovery.
Clause 168 builds on that progress by moving the barriers, restrictions and inconsistencies in the current legislation, which limits the potential use of live links in criminal proceedings. It is vital to stress that nothing in the clause makes remote technology in any way compulsory or inevitable. It is always a matter for choice by the court, which may choose it for reasons of health, as we have during the pandemic, or have some other reason for thinking it is a good idea. The point is, we are creating a discretion and a power for the court to use. Indeed, some participants, including defendants, may want to exercise their own choice and say to the court—for a particular reason, perhaps the inconvenience of travelling—that they want to participate remotely. It might be easier for a witness to participate remotely, for example, rather than travel all the way to a court that might be a great distance away.
The flexibility that the clause enshrines could be useful in a wide range of circumstances. Those principles have been widely debated in previous clauses and are, broadly speaking, agreed.
The proposed amendments to the clause in essence seek to introduce a range of very specific safeguards to circumscribe or control the way in which the measures may be used by a judge. The Government view, however, is that the safeguards already built into clause 168 and its associated provisions do that already. Let me enumerate what those safeguards are, which I hope will assure the shadow Minister and anyone else listening.
First, the court—the judge—must decide whether it is in the interests of justice for a live link to be used. That is a critical test. In doing that, the court is required to consider
“any guidance given by the Lord Chief Justice, and…all the circumstances of the case”—
I stress, “all the circumstances”.
The amendments have tried to pick out various different, specific circumstances. Inevitably, that list will not be exhaustive—they might forget something—so by saying “all the circumstances”, we give the judge a wide range of discretion. Those circumstances expressly include “the views” of the person who might be invited to attend by live link, so if someone has a particular problem or objection, they may table it and say to the judge why they think it is not right for them to appear remotely, if they are invited to do so. Equally, of course, they might say to a judge, “I would rather participate remotely”, for some reason of logistics or something else.
Chris Philp
I am conscious of time and the shadow Minister made a long speech, but on this one occasion, I will give way.
Alex Cunningham
I am keen for the Minister to understand that not all defendants who are offered the facility would be legally represented. They might not have appropriate advice about the benefits of appearing in person.
Chris Philp
Where someone appears without representation, obviously a whole number of issues are raised, of which this is just one small one. In those circumstances, the judge himself or herself will—and does—carefully talk the defendant through the implications. When someone is unrepresented, the issues are to do not only with live hearings, but all kinds of elements of the proceedings where ordinarily a barrister or solicitor would assist the defendant. In the absence of that, the judge has to lead them, ask them questions and ensure that their interests are properly accounted for by the court in a manner that is impartial and fair.
Another question under clause 168 and its associated provisions that the judge must consider is whether the person concerned could participate effectively in the proceedings. A number of the amendments talk about disability and so on. It is therefore worth enumerating again in more detail the circumstances that must be considered: the nature of the proceedings; whether the person can participate effectively by live link; the suitability of the live-link facilities; and the arrangements that could be put in place for the public to observe the proceedings. There are a lot of things there that the judge is already obliged to take into account to ensure that the interests of justice are served—that the defendant gets a fair trial, or that the witness or victim may participate properly.
On children, the courts already have a statutory duty to have regard to the welfare of children. It is important to acknowledge that there may be situations in which it is beneficial for a child, whether as a witness or a defendant, to appear by live link. It is important that the court can take a balanced judgment, rather than a presumption one way or the other. Critically, however, there is already a statutory duty to have regard to the welfare of the child.
I hope that I have demonstrated, or illustrated, with that long list of considerations that the matters of concern that the shadow Minister has properly raised already have to be taken into account. Ultimately, however, I do not think that it is appropriate for us to seek to legislate for everything in detail, as some of the amendments seek to do. Instead, I have set out the principles to rely on—the good offices and the sober judgment of the judge presiding over the case—to make sure that justice has been done. I have a great deal of confidence in our judiciary to ensure that the right balance is struck, as has been done throughout the pandemic. No one has suggested that, during the pandemic, any particular defendant or witness has been especially badly served. I have confidence in the judiciary to get these balances right, and I believe that the statutory basis of clause 168 is the right one.
Alex Cunningham
I have listened carefully to the Minister, but across the sector there are widespread concerns about these proposals and the lack of safeguards. It is important that certain safeguards are built into the Bill. Not even the judiciary are satisfied and even some of the reports that are required are insufficient in these particular circumstances.
However, my huge concern is always about children and what the Bill means for them in the system. The Minister talked about having confidence in the judiciary and their discretion. Well, the judge who decided to sentence that 17-year-old to 10 years’ imprisonment when he was stuck in a room somewhere in a local prison did not show much understanding of young people—all the more reason why we should legislate to put greater protections in the Bill, particularly for children.
I shall push amendment 73 to a vote.
Chris Philp
Briefly, this schedule is consequential to the previous clauses. Part 1 of the schedule enables non-parties to observe proceedings remotely; part 2 prohibits unauthorised recordings; and part 3 sets out various supplementary procedural matters around the giving, variation and rescinding of live-link directions in criminal proceedings, as provided for in clause 168.
Question put and agreed to.
Schedule 19 accordingly agreed to.
Clause 169
Repeal of temporary provision
Question proposed, That the clause stand part of the Bill.
Chris Philp
Very simply, clause 169 essentially repeals some of the temporary measures in the Coronavirus Act 2020, which are superseded by the clauses and schedule that we have just debated.
Question put and agreed to.
Clause 169 accordingly ordered to stand part of the Bill.
Clause 170
Financial provision
Question proposed, That the clause stand part of the Bill.
The Chair
With this, it will be convenient to discuss the following: clause 171 stand part.
That schedule 20 be the Twentieth schedule to the Bill.
Clauses 172 to 174 stand part.
Chris Philp
We are entering the final straight of the main section of the Bill and cantering towards the finish line.
In brief, clause 170 contains standard provisions around financial authority. Clause 171 introduces schedule 20, making a number of technical amendments to the Sentencing Act 2020. Clause 172 is a standard clause conferring powers on the Secretary of State to make any consequential amendments. Clause 173 gives the Secretary of State power to amend the sentencing code to incorporate changes to its provisions that are made by this Bill—nothing untoward there—and clause 174 is a standard clause setting out the territorial extent of the provisions in this Bill that we have debated for the last few weeks.
Alex Cunningham
Over the days of our debate, Opposition Members have pointed out areas where the Government’s resource assessments seem to be well out of step with the Government’s expectations of the Bill’s impact.
One particular area of concern is the impact on prison places. The Government’s impact assessment has come up with a total increase in the adult prison population of around 700 offenders in steady state by 2028-29. After the hours of debate that we have had on changes to provisions that will extend the custodial period for many sentences and increase sentences for some road traffic offences, I find that number completely implausible. To put my mind at ease, perhaps the Minister could share with the Committee the arithmetic that conjured that number up.
Incarceration is extremely expensive, so if the Government have underestimated the impact, I worry that prison budgets will be stretched even further when they are already at breaking point. If rehabilitation and support for the cycle of offending are to work, they must be properly resourced.
There are areas of the Bill where the Government have not even been able to make an assessment of the cost impact. For instance, in the impact assessment for the changes to detention and training orders, the Government say:
“There will be some individuals that spend longer on supervision in the community under this option, which would incur additional youth offending team costs. It has not proved possible to quantify these additional costs.”
Youth offending teams are so stretched that we have even had to table an amendment to ensure that the current provision of intensive surveillance and supervision is adequately funded across the country; otherwise, the range of appropriate sentencing options for children will be limited. I hope that the Minister can commit to ensuring that additional costs will be robustly monitored so that these services, which save the justice system in the long run by turning people away from offending, are provided with sufficient resource to do their jobs properly.
Chris Philp
I simply draw attention to the calculation set out in the extremely extensive impact assessment, which I am holding in my hand, and to the additional 10,000 prison places that are being constructed and the extra probation service personnel who are being recruited.
The Chair
I think you had me cantering with you, Mr Philp, because I almost missed out Mr Cunningham altogether.
Question put and agreed to.
Clause 170 accordingly ordered to stand part of the Bill.
Clause 171 ordered to stand part of the Bill.
Schedule 20 agreed to.
Clauses 172 to 174 ordered to stand part of the Bill.
Clause 175
Commencement
Victoria Atkins
I beg to move amendment 144, in clause 175, page 193, line 21, at end insert—
“(ea) section [Proceeds of crime: account freezing orders].”
This amendment provides for NC74 to commence two months after Royal Assent.
The Chair
With this it will be convenient to discuss Government new clause 74—Proceeds of crime: account freezing orders.
Victoria Atkins
Amendment 144 and new clause 74 are an administrative amendment and new clause to ensure that the provisions available under the Financial Services Act 2021 in relation to account freezing and forfeiture powers are available in Northern Ireland. It was not possible to get a legislative consent motion when that Act was passed. That clearly needs to be corrected to protect the good people of Northern Ireland, and we propose to do so through this clause.
Amendment 144 agreed to.
Question proposed, That the clause, as amended, stand part of the Bill.
Alex Cunningham
I am sure you will rule me out of order if I am, Mr McCabe, but I just want to make a quick remark here. In some areas, the Government have been very receptive to the Opposition’s concerns—they have committed to carrying out a cost-benefit analysis and other assessments—but the Bill was rushed through to Second Reading after the White Paper, and it was only because of an unexpected delay that we were given sufficient time to prepare for Committee stage, especially considering the size of the Bill and the complexity of some of its provisions.
I hear Ministers are keen to get this Bill through Report and Third Reading before the summer recess, which starts in four weeks’ time. I would like reassurance from the Ministers that the work they have committed to undertake will be done in a timely fashion as the Bill progresses. Perhaps they will need a little more than four weeks to get the job done. It is no good having a cost-benefit analysis that shows that a provision is too expensive to be worth it if it is already in law and has come into force.
Victoria Atkins
I am surprised that the hon. Gentleman thinks that we have rushed into this. There was a period of some nine months, I think, between the White Paper and the introduction of the Bill and Second Reading. The Under-Secretary of State for the Home Department, my hon. Friend the Member for Croydon South, and I have been very careful throughout the scrutiny of this Bill to make it clear where there is extra work to be done. The timeframes, as far as we are able to do so, have been provided.
We very much look forward to continuing to scrutinise the Bill, as the processes of this place and the other place continue in the time-honoured fashion. I am told that we have published impact assessments. Indeed, a great deal of work has gone into the Bill, and into the preparation of documents associated with it. I hope we will be able to continue the positive trends that have emerged during parts of the scrutiny of this Bill into next week. These are important measures and the Government want to pass them as quickly as possible to continue protecting the people we have been so keen to discuss in this Committee.
Question put and agreed to.
Clause 175, as amended, accordingly ordered to stand part of the Bill.
Clause 176
Short title
Question proposed, That the clause stand part of the Bill.
Victoria Atkins
I was going to talk for hours on this, but I see that my hon. Friend wants to beat me to it. This is the short title of the Bill, and we ask that it be cited as the Police, Crime, Sentencing and Courts Act 2021.
Question put and agreed to.
Clause 176 accordingly ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned. —(Tom Pursglove.)
Police, Crime, Sentencing and Courts Bill (Seventeenth sitting)
Tuesday 22nd June 2021
(2 years, 10 months ago)
Public Bill CommitteesRead Full debate Police, Crime, Sentencing and Courts Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 22 June 2021 - (22 Jun 2021)
The Committee divided: - Ayes: 6 / Noes: 8 - Question accordingly negatived.
The Committee divided: - Ayes: 6 / Noes: 8 - Question accordingly negatived.
The Chair
Before we begin, I have some preliminary reminders for the Committee. Please switch electronic devices to silent. No food or drink is permitted during sittings of this Committee, except for the water provided.
I remind Members to observe physical distancing. They should sit only in the places that are clearly marked. It is important that Members find their seats and leave the room promptly, in order to avoid delays for other Members and staff. Following a decision of the House of Commons Commission yesterday, we may now sit a little closer together—one metre—but it is important to continue to observe other distancing measures. Members should wear face coverings in Committee unless they are speaking or medically exempt.
Hansard colleagues would be grateful if Members emailed their speaking notes to hansardnotes@ parliament.uk.
We completed line-by-line consideration of the existing clauses of the Bill last week. Today, we will start to consider new clauses. New clauses that were grouped for debate with amendments to the Bill will not be debated again, but if the Member who tabled the new clause indicated in their speech that they wished to divide the Committee, they will have the opportunity to do so. The selection list for today’s sittings is available in the room. I remind Members wishing to press a grouped new clause to a Division that they should indicate their intention when speaking to the clause.
New Clause 74
Proceeds of crime: account freezing orders
‘(1) In section 303Z1 of the Proceeds of Crime Act 2002 (application for account freezing order)—
(a) omit subsections (5A) and (5B), and
(b) in subsection (6), at the appropriate place insert—
“‘relevant financial institution’ means—
(a) a bank,
(b) a building society,
(c) an electronic money institution, or
(d) a payment institution.”
(2) In section 316(1) of that Act (general interpretation), in the definition of “relevant financial institution”, after “303Z1” insert “(6)”.
(3) In section 48 of the Financial Services Act 2021 (extent)—
(a) in subsection (1), for “subsections (2) and (3)” substitute “subsection (2)”, and
(b) omit subsection (3).
(4) In paragraph 14 of Schedule 12 to that Act (forfeiture of money: electronic money institutions and payment institutions) omit sub-paragraphs (3) and (4).’
This new clause amends for Northern Ireland the definition of “relevant financial institution” for the purposes of account freezing orders under the Proceeds of Crime Act 2002 so as to align the definition with that which applies in England and Wales and Scotland.—(Victoria Atkins.)
Brought up, read the First and Second time, and added to the Bill.
New Clause 1
Harassment in a public place
‘(1) A person must not engage in any conduct in a public place—
(a) which amounts to harassment of another, and
(b) which he knows or ought to know amounts to harassment of the other.
(2) For the purposes of this section, the person whose conduct is in question ought to know that it amounts to harassment of another if a reasonable person would think the conduct amounted to harassment of the other.
(3) For the purposes of this section—
“conduct” includes speech;
“harassment” of a person includes causing the person alarm or distress.
(4) Subsection (1) does not apply to conduct if the person can show—
(a) that it was for the purpose of preventing or detecting crime,
(b) that it was under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment, or
(c) that in the particular circumstances it was reasonable.
(5) A person who engages in any conduct in breach of subsection (1) is guilty of an offence.
(6) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding six months, or a fine not exceeding level 5 on the standard scale, or both.”—(Alex Cunningham.)
Brought up, and read the First time.
Alex Cunningham (Stockton North) (Lab)
I beg to move, That the clause be read a Second time.
The Chair
With this it will be convenient to discuss the following:
New clause 2—Kerb-crawling—
‘(1) It is an offence for a person, from a motor vehicle while it is in a street or public place, or in a street or public place while in the immediate vicinity of a motor vehicle that they have just got out of, to engage in conduct which amounts to harassment in such manner or in such circumstances as to be likely to cause annoyance, alarm, distress, or nuisance to any other person.
(2) A person guilty of an offence under this section is liable on summary conviction to revocation of their driving licence, or a fine not exceeding level 3 on the standard scale, or both.
(3) In this section “motor vehicle” has the same meaning as in the Road Traffic Act 1972.
(4) In this section “street” has the meaning given by section 1(4) of the Street Offences Act 1959.’
New clause 23—Street sexual harassment—
‘(1) A person must not engage in any conduct in a public place—
(a) which amounts to sexual harassment of another, and
(b) which they know or ought to know amounts to sexual harassment of the other.
(2) For the purposes of this section, the person whose conduct is in question ought to know that it amounts to sexual harassment of another if a reasonable person would think the conduct amounted to sexual harassment of the other.
(3) The conduct referred to in subsection (1) is known as street sexual harassment.
(4) A person (A) engages in conduct which amounts to street sexual harassment, or which they know or ought to know amounts to street sexual harassment, of another (B) if—
(a) A engages in unwanted conduct of a sexual nature, and
(b) the conduct has the purpose or effect of—
(i) violating B’s dignity, or
(ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
(5) In deciding whether conduct has the effect referred to in subsection (4)(b), each of the following must be taken into account—
(a) the perception of B;
(b) the other circumstances of the case; and
(c) whether it is reasonable for the conduct to have that effect.
(6) For the purposes of this section, “conduct” includes speech, non-verbal attitudes such as gestures imitating or suggesting a sexual act, and obscene sound effects.
(7) A person who engages in any conduct in breach of subsection (1) is guilty of an offence.
(8) Where on any occasion an authorised officer finds a person who he has reason to believe has on that occasion committed an offence under section 1 above, he must give that person a notice offering him the opportunity of discharging any liability to conviction for that offence by payment of a fixed penalty, unless subsection (9) applies.
(9) This subsection applies (and subsection (8) does not apply) if a person has previously—
(a) been found guilty of an offence under subsection (1), or
(b) made payment of a fixed penalty issued under subsection (8).
(10) Where a person is given a notice under this section in respect of an offence—
(a) no proceedings shall be instituted for that offence before the expiration of fourteen days following the date of the notice; and
(b) he shall not be convicted of that offence if he pays the fixed penalty before the expiration of that period.
(11) A notice under this section shall give such particulars of the circumstances alleged to constitute the offence as are necessary for giving reasonable information of the offence and shall state—
(a) the period during which, by virtue of subsection (2) above, proceedings will not be taken for the offence;
(b) the amount of the fixed penalty; and
(c) the person to whom and the address at which the fixed penalty may be paid; and, without prejudice to payment by any other method, payment of the fixed penalty may be made by pre-paying and posting to that person at that address a letter containing the amount of the penalty (in cash or otherwise).
(12) Where a letter is sent in accordance with subsection (11)(c) above payment shall be regarded as having been made at the time at which that letter would be delivered in the ordinary course of post.
(13) The form of notices under this section shall be such as the Secretary of State may by order prescribe.
(14) The amount of a fixed penalty payable in pursuance of a notice under this section is £500.
(15) A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 3 on the standard scale.’
This new clause creates an offence of engaging in unwanted conduct of a sexual nature in public. Those found to have committed an offence would be given an on the spot fine of £500. Those who commit the offence on further occasions would liable to receive a fine of up to £1000.
Alex Cunningham
I move new clause 1 in the name of my right hon. and learned Friend the Member for Camberwell and Peckham (Ms Harman). I will also speak to new clause 23, which is in my name and those of my hon. Friend the Member for Rotherham and my right hon. Friend the Member for Kingston upon Hull North (Dame Diana Johnson).
For young women up and down the country, being harassed in a public place has become a way of life. Derogatory comments, wolf-whistling, stalking and harassment have become so commonplace that many women find themselves living in a constant state of fear simply by stepping out of their front door. The figures are as startling as they are shameful. A recent survey by UN Women UK showed that 80% of women in the UK have experienced sexual harassment in their lifetimes; that increases to a staggering 97% of women aged 18 to 24. The survey also showed that sexual harassment in the street had become so commonplace that the majority of women take no action, because they have lost all faith in the authorities to deal with it.
Shamefully, only 4% of women who had suffered sexual harassment reported the crime, and only 45% believed that reporting the crime would make any difference. Among those who did not report their crime to the police were people who had been groped, followed and coerced into sexual activity. This shows that women have a catastrophic lack of trust in the Government when it comes to doing anything about sexual harassment or to taking any concrete steps to tackle the underlying causes of it.
For many women, first-hand experience tells them that when they do report the crimes, they are often gaslighted, or told they are overreacting or making a fuss about nothing—yet nothing could be further from the truth. Being sexually harassed can have a profound impact on the lives of victims. Rose Caldwell, the chief executive officer of Plan International UK, points out:
“Street harassment makes girls feel ashamed, frightened and vulnerable. It causes them to change their behaviour, like avoiding certain streets or changing their clothes before leaving the house, which has serious implications for their freedom and autonomy.”
A feature on the news last night was about women and where they felt that they could and could not go when walking home in the evening.
Sexual harassment also acts as a precursor to other acts of violence and discrimination against women and girls. Laura Bates, founder of the Everyday Sexism Project, points out:
“As a society, the normalisation of sexual harassment in public spaces plays a huge part in creating a gendered power imbalance and ingraining derogatory attitudes and behaviours towards women. What starts in public places does not stop there. It plays into discrimination against women in the workplace and abuse in the home. If we say street harassment doesn’t matter, we are designating women’s bodies as public property and that has a huge knock-on impact.”
The Parliamentary Under-Secretary of State for the Home Department (Victoria Atkins)
It is a pleasure to serve under your chairmanship, Sir Charles, as always.
I am grateful to the right hon. and learned Member for Camberwell and Peckham (Ms Harman) for tabling her amendment. I know it will not be pressed formally, but I put on the record my thanks to her for bringing the issue before the House and, indeed, to the hon. Member for Stockton North for giving us the opportunity to debate this important issue in Committee. The Government are absolutely committed to tackling all forms of abuse against women and girls, including sexual harassment. No one should feel unsafe while going about their daily life, and it is completely unacceptable for anyone to make a woman or girl feel objectified or scared.
Following tragic events earlier this year, my right hon. Friend the Home Secretary reopened the first ever public call for evidence for the new tackling violence against women and girls strategy, to capture the many stories that women and girls shared with their friends and their family and on social media. We want to capture those stories as part of our work to shape the new strategy that is coming forward later this year. More than 160,000 responses were received in just two weeks, bringing the total of public responses to more than 180,000—an extraordinary figure for a Government consultation. It says so much about the determination of women and girls to stop those sorts of behaviours.
We are equally determined to respond to the sharing of those experiences. The new strategy will include work to tackle sexual harassment and to recognise the disproportionate impact it has on women and girls.
Sarah Champion (Rotherham) (Lab)
I thank the Minister for giving way—we are so intuitive now that we do not need to ask to intervene on each other.
This sort of behaviour starts at a very young age, which is why the Government were right to accept my amendment to the Bill that became the Children and Social Work Act 2017, to make relationships education for all primary school children mandatory. That should have started last September; we are now told it will start this September. Will she comment about that early intervention and the importance of it?
Victoria Atkins
I am extremely grateful to the hon. Lady for her previous work and for making this important point. I want to give the Committee an impression of the work that we are undertaking as part of the strategy. Legislation is of course an option, but we need to do so much more. We need boys and young men to understand that some of the things that they might have seen on the internet are not real life and not appropriate ways to behave towards women and girls in the street, the home or the school, as we have seen in the Everyone’s Invited work. Education is critical and, I promise her, flows throughout our work on the strategy.
I wish to correct some impressions that might exist. While there is not an offence of street harassment—or, indeed, of sexual harassment—a number of existing laws make harassment illegal, including where such behaviour occurs in a public place. That can include, depending on the circumstances of the case, offences under the Protection from Harassment Act 1997, the Public Order Act 1986 and the Sexual Offences Act 2003.
However—this is a big “however”—I assure hon. Members that we are looking closely at the existing legislation on street harassment and we are committed to ensuring that the law is fit for purpose. We remain very much in listening mode on the issue. We will continue to examine the case for a bespoke offence and will listen closely to the debate as it develops through this House and the other place.
It is important to stress that a law is of limited use unless people know it is there and have the confidence to make a report in accordance with it. Equally—this relates to the point made by the hon. Member for Rotherham about education—it is important that police officers and law enforcement know how to respond properly to such allegations.
Sarah Jones (Croydon Central) (Lab)
I am glad about what the Minister has just said, that she remains in listening mode and that she will continue to examine the case. Does she have more detail on what form that listening mode takes? Are people in the Home Office looking at this? Is there any possibility of it? Is there a timeline, a review, that we are waiting for before a decision or any kind of structure around that?
Victoria Atkins
I hope the Committee will understand that it is taking us time to work through the 180,000 responses that we received—an extraordinary number for any Government survey. We have a team of officials who are working through each and every response, and we have taken each and every response very seriously. It is taking a bit of time. Once that exercise, the results of the survey, has been fully understood—fully collated and absorbed—from that, the strategy will be shaped. Later this year, we hope to be able to publish.
The strategy will deal not just with the sorts of topics that have been discussed in the course of the Committee, along with many other forms of crimes that disproportionately affect women and girls, including, for example, female genital mutilation, so-called honour-based abuse and such like. We want this to be an ambitious strategy that meets the demands of the 2020s, including the emergence of online crimes. We know from our discussions of this Bill and the scrutiny of what became the Domestic Abuse Act 2021 that perpetrators of crime can find ample opportunity online to continue their abuse. We are being mindful of all those aspects when drawing up the strategy.
Maria Eagle (Garston and Halewood) (Lab)
The Minister is indicating a willingness to look carefully at this. Does she expect the strategy to which she is referring to end up creating new legislation? Does she expect new legislation to come out of it?
Victoria Atkins
The hon. Lady is asking a question I cannot properly answer at this stage. She will know from her previous experience that drafting strategies of such depth and breadth requires cross-Government work. I am not at a stage at the moment of being able to comment directly on that. Our wider work, such as commissioning the Law Commission to look at the use of the internet and image-based abuse, which I suspect we will be talking about later this morning, and the online safety Bill, is all part of ensuring that there is lots of work across Government knitting together to provide a safer environment for women and girls, both on and offline.
We are aware that the issue is not just about the public knowing and understanding what the law is, but helping the police in knowing how to respond. I am pleased that the College of Policing has agreed to develop advice for forces in England and Wales to assist them in using existing offences in the most effective way. The Crown Prosecution Service, similarly, will revise its legal guidance on public order offences to include additional material on public sexual harassment.
Hon. Members across the Committee will agree that legislation alone cannot be expected to tackle sexual harassment. We are clear that we need to continue to drive a cultural change in attitudes and help boys and girls grow up to understand what a healthy relationship looks like and what sort of behaviour is healthy, respectful and civil in public places, and we must ensure that the sorts of episodes that girls in particular referenced in the Everyone’s Invited work are no longer experienced. I acknowledge and appreciate the debate that the amendments have induced and understand what hon. Members are seeking to achieve through the new clauses. However, I hope that, given our assurance that the Government continue to explore the issues, the hon. Member for Stockton North will feel able not to press the new clause today.
Alex Cunningham
I am grateful to the Minister for her response and that commitment to tackling the issues being debated this morning. I recognise that it is not just a matter for legislation. It is a matter for education as well, working with boys, girls and young men to have a greater understanding of the impact that what they might think is a bit of fun can have on people’s lives.
The Minister talked about 160,000 or 180,000 responses —I think she used both figures—but either way, 160,000 responses to any consultation exercise is a tremendous result and I am delighted about that. It illustrates the extent of the problem that has existed for many decades. She talked about the forthcoming strategy and the report later this year. I think we can act now; we can do something now. We can do small things now as we await that and we have a number of amendments that can contribute to what will want to be achieved in time by the overall strategy. We do not need to wait many more months—possibly years—before something happens on this.
There was no indication from the Minister of when the strategy will be published. If it is later this year, we are a long way from the end of the year—when will the various provisions suggested within that strategy be implemented? That may require some form of primary legislation, so we will be looking at that next year, and there will be some time before it is implemented. It could be some considerable time before we see some action.
Alex Cunningham
I beg to move, That the clause be read a Second time.
The Opposition think that this excellent new clause makes up for the missed opportunity in the Bill. I thank my hon. Friend the Member for Oldham East and Saddleworth (Debbie Abrahams) and the hon. Member for Thurrock (Jackie Doyle-Price), who are the co-chairs of the all-part parliamentary group on women in the penal system. I also thank the Howard League, which acts as the secretariat to the APPG, for its continued energetic work on this issue.
Under the Bail Act 1976, the courts can remand an adult to prison for their own protection, or a child for their own welfare, without being convicted or sentenced, and when the criminal charge they face is unlikely to—or in some cases cannot—result in a prison sentence. The new clause would repeal the power of the criminal courts to remand a defendant into custody for their own protection—or in the case of a child, for their own welfare—pending trial or sentence. Last year, the Howard League published a briefing from the APPG that looked at those provisions and their use. The briefing concludes:
“The case for abolishing the power of the courts to remand for ‘own protection’ or ‘own welfare’ is overwhelming. The use of prison to secure protection and welfare is wrong in principle and ineffective, even damaging, in practice.”
It goes on to say:
“Repealing the provisions in their entirety would be in-keeping with the direction of other recent and proposed reforms. In particular it is in line with, and is a necessary and urgently required extension of, the reforms to the use of police cells as a ‘place of safety’ under the Policing and Crime Act 2017.”
Professor Sir Simon Wessely’s 2018 review “Modernising the Mental Health Act” recommended the removal of the power of the courts to remand defendants for their own protection and own welfare on mental health grounds. The Ministry of Justice has already indicated that it will act on that recommendation. The Government’s sentencing White Paper suggested there would be forthcoming reforms to remand for own protection but, disappointingly, that was not included in the Bill. On page 58 of the White Paper, the Government notes:
“The Independent Review of the Mental Health Act highlighted that there are still cases where sentencers appear to make decisions that prison is the safest option for some people who are mentally unwell, under current legislation in the Bail Act 1976 or the Mental Health Act 1983.”
It goes on to say:
“Prisons should be places where offenders are punished and rehabilitated, not a holding pen for people whose primary issue is related to mental health.”
The White Paper mentions a project by Her Majesty's Prison and Probation Service on these cases. Could the Minister provide an update on the work in that area? In the Lord Chancellor’s letter responding to the APPG’s report, he said,
“we are determined to ensure that remand to prison is not considered as an option when seeking a place of safety for a person in crisis. However, it is vital that the operational mechanisms are in place before any legislative reforms are made in order to ensure that the system can work smoothly and effectively to deliver this objective.”
Could the Minister please share an update on the operational mechanisms that the Lord Chancellor refers to? Are they in place yet? How much longer should we expect to wait for them to be so?
The provisions in the Bail Act are already out of step with the aims of our justice system, but the implementation of the proposals in the Bill will make them look even more outdated. Since there will now be a requirement to consider welfare before remanding a child, as we know how damaging even short stints in custody are for children, how does it make sense to keep a provision on the statute book to put a child into custody to protect their welfare? The ability to remand women and children for their own protection is, as Dr Laura Janes of the Howard League put it in one of our evidence sessions, “rather Dickensian”. The Opposition agree that this power in the Bail Act is completely outdated, and that it has no place in a modern justice system. We urge the Government to support the new clause so that we can do away with it.
Sarah Champion
It is always a pleasure to serve under your chairmanship, Sir Charles. I am fully supportive of new clause 3, because I think it addresses a rather patriarchal approach that is going on and needs flushing out. The all-party parliamentary group on women in the penal system recently released its third briefing report, “Arresting the entry of women into the criminal justice system”, and its key finding was that 40% of women arrested resulted in no further action. That figure is even higher for women who are arrested for alleged violence.
That shows to me that women are being arrested and put into custody disproportionately, without the necessary due process in terms of what the outcome is likely to be. This creates a drain on police resources and, to be quite honest, is a waste of time, as arrest is not an appropriate response to women showing challenging behaviour. We need a more nuanced approach. Many officers arrested women for fear of criticism from more senior officers if they did not, and black women are two and a half times more likely to be arrested than white women, which raises concerns. Officers need to realise that turning up in a uniform can actually make a situation much more tense, and many women are arrested due to their response to the police turning up, not necessarily because of what the police were called in for. Frances Crook of the Howard League put it very well when she said that these women are annoying, but not necessarily dangerous.
I am interested to hear the Minister’s thoughts on Lancashire police, who have started a pilot through which they bring independent domestic violence advisers to the scene where domestic altercations are going on. Officers are reporting that they have found that incredibly useful in de-escalating the situation, rather than just going straight to charging or bringing the woman in for their own protection. The new clause raises the points that first, there is a problem with the system, and secondly, more creative approaches can be used, so I am very interested to hear the Minister’s thoughts on it.
The Parliamentary Under-Secretary of State for the Home Department (Chris Philp)
As always, it is a pleasure to serve under your chairmanship, Sir Charles. New clause 3 seeks to remove the provision in the Bail Act 1976 for a defendant to be refused bail where the court feels it is necessary for their protection—or, in the case of children, their own welfare—that they are remanded in custody. It is extremely important to make clear to the Committee that this provision is used very rarely. It is considered to be a last resort, and it is only used when there are no alternatives, so we should be in no doubt that this is an unusual provision to use.
Maria Eagle
“Rare” is a relative concept. Would the Minister like to tell us how many people were remanded in this way during, say, the last year for which he has figures?
Chris Philp
I am afraid that I do not have that precise figure to hand: I was relaying reports I have received from people who are active in this area. I can certainly see if that figure exists, and if it does, I would obviously be happy to share it.
The intent behind this amendment is clearly to ensure that prison is used only when strictly necessary. Of course, when somebody has a mental health crisis, for example, prison is not ultimately the best place for them to be, but there may be limited circumstances in which it is necessary to use remand for someone’s own protection—as a last resort, as I say. There is a risk that if we abolish this power without being absolutely clear what the alternatives are, vulnerable people could be left exposed. The Government agree with the sentiment behind this amendment, but we want to be certain that there will be no unintended consequences and no gaps created as a result.
Alex Cunningham
The Minister made the point that the use of this provision is very rare and that prison should be used only as a last resort. I accept that, but surely for such people we should ensure that there are facilities across the country, so that it is not necessary to remand a person, in any circumstances, to prison for the good of their own health.
Chris Philp
Clearly, the provision of alternative accommodation in those circumstances is the most desirable outcome. We need to think carefully and make sure we have covered the full range of circumstances that may arise. That is why the Government have committed to a review of this issue. We have already written to the all-party parliamentary group on women in the penal system to set out our plan for this, so that is in the public domain. I know the Howard League for Penal Reform has been campaigning in this area and it will be consulted as part of that review.
Maria Eagle
I am grateful to the Minister for giving way again. I welcome the fact that he is going to conduct a review. In doing that, could he see whether any research already exists or do some research on what the outcomes are for the small number of people who are remanded in this way? I can certainly see circumstances in which they might end up in a worse state than they would have done had they not been remanded in such a way. That is important if the Minister is considering whether to get rid of these provisions.
Chris Philp
Yes, that is exactly the type of question the review should consider, along with the counterfactual question of what would happen if this measure is not used. Both alternatives need to be considered to reach an informed decision.
Hywel Williams (Arfon) (PC)
When that review takes place, can the Minister ensure that there is particular consideration of alternatives in very rural areas? Currently, women in Wales are generally held outside Wales, for example at HMP Oakwood, as there is no local provision.
Chris Philp
Yes, consideration of the available provision needs to form part of the review to ensure that, if the option were to be withdrawn, rarely used though it is, appropriate provision across the jurisdiction of England and Wales would be available.
As this is a complicated issue, and we do not want to accidently cause a gap in provision, and because a review has already been commissioned to look at the issue, I respectfully ask that the new clause is not pressed.
Alex Cunningham
I accept what the Minister says about unintended consequences. It is important that the individual is always protected. My hon. Friend the Member for Garston and Halewood has welcomed the review into this, and I do too. I also welcome the fact that the Minister responded positively to my hon. Friend when she talked about an outcome study about the people who are actually involved.
I look forward to hearing from the Minister at some time in the future about how that would work, to ensure that we work in the best interests of the people who are affected by this situation. We may well want to return to the matter in future, but for now, I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 4
Video recorded cross-examination or re-examination of complainants in respect of sexual offences and modern slavery offences
“(1) Section 28 of the Youth Justice and Criminal Evidence Act 1999 comes into force in relation to proceedings to which subsection (2) applies on the day on which this Act is passed.
(2) This subsection applies where a witness is eligible for assistance by virtue of section 17(4) of the Youth Justice and Criminal Evidence Act 1999 (complainants in respect of a sexual offence or modern slavery offence who are witnesses in proceedings relating to that offence, or that offence and any other offences).
(3) This section has effect notwithstanding section 68(3) of the Youth Justice and Criminal Evidence Act 1999.”—(Alex Cunningham.)
This new clause would bring section 28 of the Youth Justice and Criminal Evidence Act 1999, which provides for the cross-examination of vulnerable witnesses to be recorded rather than undertaken in court, fully into force for victims of sexual offences and modern slavery offences.
Brought up, and read the First time.
The Chair
With this it will be convenient to discuss new clause 20—Special measures access for eligible witnesses—
“(1) The Youth Justice and Criminal Evidence Act 1999 is amended as follows.
(2) In section 19(2), omit paragraphs (a) and (b) and insert—
“(a) inform the witness of the special measures which are available to them by virtue of this Act; and
(b) give a direction under this section providing for whichever measure or measures as the witness may decide they wish to be applied to apply to evidence given by the witness.
Provided that a direction under paragraph (b) shall so far as possible ensure that the measure or measures provided for do not inhibit the evidence of the witness being effectively tested by a party to the proceedings.
(3) Omit section 19(3).”
This new clause would mean that once witnesses are determined as eligible for special measures they will be informed of all provisions and able to decide which option best suits them, rather than relying on the court to decide which measures would best improve the quality of evidence.
Alex Cunningham
The new clause will extend the roll-out of section 28 of the Youth Justice and Criminal Evidence Act 1999, which allows the cross-examination of vulnerable witnesses to be recorded rather than undertaken in court, to come fully into force for victims of sexual offences and modern slavery offences.
Section 28 is now in place at all 83 Crown court locations in England and Wales for vulnerable witnesses. That includes all child witnesses and any witness whose quality of evidence is likely to be diminished because they are suffering from a mental condition of a significant impairment of intelligence and social function, who have a physical disability or who are suffering from a physical condition that would impact their quality of evidence.
The Opposition are extremely supportive of the Government’s work in this area. However, we are concerned that the roll-out of that measure, which can obviate the distressing and sometimes traumatising experience of being cross-examined in court, is going far too slowly.
Sarah Champion
I fully support new clause 4. It links very tightly to my new clause 20, which I would like to speak to. New clause 20 would mean that once a witness was determined to be eligible for special measures, they would be informed of all provisions and able to decide which option suited them best, rather than the onus being on the court to decide which ones they were allowed. Special measures are an absolute lifeline for many victims giving evidence in court against their abuser. Navigating the criminal justice system can be incredibly challenging, and the idea of giving evidence as a witness against your own perpetrator is extremely distressing. Cross-examination causes re-traumatisation for victims and special measures are vital for reducing the impact on their mental wellbeing. Special measures include screening the witnesses from the accused, giving evidence by a live link and in private, and video- recorded evidence. Currently, victims of child sexual abuse are eligible for special measures in court when giving evidence as a witness. However, delivery of the provisions remains inconsistent and victims often have trouble accessing the measures to which they are entitled.
The onus is currently on the court to offer the provisions to the victim if it believes it will
“improve the quality of evidence”
by witnesses—so is not about the survivor’s mental wellbeing and abilities. An APPG on adult survivors of childhood sexual abuse survey found that 44% of victims were not offered the opportunity to give evidence remotely or behind a screen.
This new clause would amend the Youth Justice and Criminal Evidence Act to ensure that once a witness was determined as eligible for special measures by the court, they would be informed of all options and could decide which measure or measures suited them best. It is worth saying that some survivors I work with actually want to be in court and face their abuser—but it is up to them to make that choice.
This amendment will provide what is best for the witness’s wellbeing, rather than if the judge thinks it will improve the quality of evidence. There was support for this proposal in the Bill Committee’s evidence sessions. Phil Bowen, Director of the Centre for Justice Innovation, said:
“Yes, I think a presumption would be useful, but I think it also requires attention to implementation and delivery issues. Special measures should already be used in specialist domestic abuse courts across our magistrates court estate and, in many cases, domestic abuse victims are without access to those measures, for want of anyone who asked.”––[Official Report, Police, Crime, Sentencing and Courts Public Bill Committee, 18 May 2021; c. 43.]
Adrian Crossley, Head of the Criminal Justice Policy Unit at the Centre for Social Justice, said of special measures:
“I think it makes a massive difference to the view of the complainant and, unfortunately, it would also make a massive difference to the view of some defendants, who may face the reality of the evidence against them earlier. It may encourage pleas that should have happened earlier.”
“Sometimes the implementation of special measures and, certainly, the pragmatics of what happens in court are not there and the stress that that puts witnesses through is absolutely huge.”––[Official Report, Police, Crime, Sentencing and Courts Public Bill Committee, 18 May 2021; c. 46.]
As we have seen too vividly with the rape review findings, lack of support for witnesses and victims in court proceedings has a genuine impact on the justice process. More than a quarter of child sexual abuse cases did not proceed through the criminal justice system last year because the victim and survivor did not support further action. One of the main reasons was that the victim worried they would find the legal process too upsetting.
The Minister may say that we should keep the law so that it is the quality of evidence that remains, because that matters the most. I say to the Government that it is obvious that when we prioritise the wellbeing of victims and survivors—the people giving the evidence—the conviction is more likely to be secured because they feel more able to speak. If the victim assumes that they will be re-traumatised in the court proceedings, why on earth would they even try to secure justice? If that is the assumption, more offenders will walk free.
Dame Vera Baird, the Victims’ Commissioner, also agreed with this proposal. In her view, the problem begins
“with the fact that the needs assessment is not done clearly by a single agency.”––[Official Report, Police, Crime, Sentencing and Courts Public Bill Committee, 20 May 2021; c. 113.]
It needs to be carried out as part of the witness care unit, rather than across the Crown Prosecution Service and police, as it currently does. Dame Vera Baird also said that the measures that may best suit the victim are not always available. Special measures are not consistently available across the country.
What will the Minister do to ensure that resources and funding are sufficient to support victims giving evidence? Some witnesses who gave evidence have claimed that special measures should remain available at the discretion of the judge. The Minister may use that argument in the Government’s response to my new clause. However, we know that the current system is letting victims down, and something needs to be done so that it is legally required that they have these options available to them. The majority of court proceedings have taken place via a live link since the pandemic began. What reason is there to refuse the same provision to vulnerable witnesses? Let us be frank: the court is not always functioning with the victim’s best interests at the centre of its decisions. This change would grant vulnerable witnesses much more autonomy over their experience in court, rather than the courts relying on who and how they are able to give evidence—the same courts that have let so many down.
If it were better for special measures to be left to the flexibility of the court rules, we would not have a situation where victims wait years to give evidence, and often then face their abuser in court. Additionally, under this new clause, the court would still be included in the decisions. It would still have to ensure that the measures or measures provided
“do not inhibit the evidence of the witnesses being effectively tested by a party to the proceedings.”
As the Victims’ Commissioner said, it should be the default position that victims, if they choose, can pre-record their video evidence weeks, months or years before the trial takes place. Not only would that be less traumatic for them, but it means the recollections are more current and therefore more reliable.
Cross-examination can also take place on video under section 28 of the Youth Justice and Criminal Evidence Act. This is particularly useful to reduce the huge backlog that the courts currently face, and these measures already exist. We just need to make sure that victims can access them as they should. The Government need to ensure that implementation is effective, and that the courts are fully resourced for it. More funding must be given to courts to provide places for vulnerable witnesses to give evidence securely, and ISVAs must also be available and dramatically expanded, so I am glad that the Minister has said that as part of the review she will actively look to employ more ISVAs.
I hope the Government listen to this argument and address the issue urgently, so that no more victims have to suffer the traumatising process of giving evidence without access to special measures.
Chris Philp
I am grateful to the shadow Minister, the hon. Member for Stockton North, and the hon. Member for Rotherham for raising this important issue. Clearly, all hon. Members from across the House would want victims of these terrible crimes to be supported at what are often traumatic court hearings, and the Government have certainly been working hard on it.
Reference was made to the rape review published last week. As the hon. Member for Rotherham suggested, it contains a range of measures designed to help support victims of these terrible crimes, not least a provision for more ISVAs, as she said in her remarks. It also asks the police to take a better, more proactive, faster, more comprehensive approach to the investigation of rape. No victim is to be left without their phone for 24 hours; digital material will be requested only where strictly necessary and proportionate to the line of inquiry; and there will be better joint working between the police and the CPS and so on. So numerous measures were announced last week, all designed to help improve the situation in the area that we are discussing. In all frankness, it certainly does need to be improved.
Specifically, the clauses mention pre-recorded evidence permitted under section 28, as we have heard. It is worth saying that for vulnerable witnesses we have already fully rolled out the availability of section 28 pre-recorded evidence; that was completed in November last year. Vulnerable witnesses include all child witnesses, and also witnesses whose quality of evidence is likely to be affected because of a mental health disorder or some form of physical disability. The measure has already been implemented in every single Crown court across the country.
On intimidated witnesses, as the shadow Minister said we are already piloting the use of section 28 evidence for intimidated witnesses in three early adopter Crown courts—Leeds, Kingston upon Thames and Liverpool. That means that victims of those crimes have access to this measure and are able to pre-record their evidence, cross-examination and possibly re-examination via video early in the process, outside of the courtroom environment. That, for reasons we have discussed, is often of significant benefit to the victim.
Sarah Champion
I am very heartened by what the Minister is saying. One problem that keeps getting raised with me is that if victims choose to go down the live link route there must be authorised sites, but there are so few in the country, and they have backlogs and so on. There is a resourcing issue. However, it is my understanding that a lot more live evidence has been given by video link during the pandemic. Surely we have had a year of piloting this, as well as the specific pilots that the Minister is doing, so is he now looking at rolling back the opportunity to give evidence via live link, in order to wait for the pilot?
Chris Philp
Giving evidence by live link in proceedings is obviously different from section 28, which applies to pre-recorded evidence and cross-examination. In answer to the question about live links, no, there is no intention to try to influence the judiciary to use live video links less than they have been doing so. Generally speaking, it has worked very successfully. Each week there are 20,000 court sessions across all jurisdictions—criminal, civil, family and tribunals—using video technology, and there is no desire on the part of the Government to see that reduced, should the judge and other participants want to continue with it. That option is available. All Crown court rooms have the cloud video platform installed in them, which will remain the case.
A new system is coming in that will improve things further, but there will be no removal of remote capability from Crown court rooms. They will have the ability to take live evidence by video link. Every cloud has a silver lining, and one of the silver linings has been the fact that every Crown court room now has that capability.
Sarah Champion
My new clause shifts the choice to the victim rather than the judge. What the Minister is saying is great, but will he support my new clause, so that the victim is able to choose whether to give evidence by live link?
Chris Philp
Having spoken to new clause 4, let me turn now to new clause 20. As the hon. Lady says, it moves the discretion away from a judge and makes it the witness’s choice whether the section 28 recording is conducted. We want to encourage as many eligible people as possible to make use of the special measures that are available, and we have taken a number of steps to ensure that objective. For example, the revised victims code, which came into force just a few weeks ago, on 1 April, focuses on victims’ rights and sets out the level of service that victims can expect to receive from criminal justice agencies. The code also enshrines victims’ rights to have their needs assessed by the police or a witness care unit in order to determine whether they are eligible to give evidence using special measures and would benefit from doing so, to help relieve some of the stress involved in giving evidence. We want to ensure that every single eligible witness is identified, and that the matter is actively considered.
Maria Eagle
Does the Minister accept that many of these offences leave the victims feeling powerless? Powerlessness, and having things done to them, is part of the horror that arises from such offences. To give victims agency—to allow them to decide for themselves in those proceedings what would work for them—would be a powerful fillip to their psychological wellbeing, so that the court system is not then doing to them, after they have had the perpetrator doing things to them, and all the while they are feeling powerless. The Minister could do a lot of good by accepting the provision.
Chris Philp
Clearly the victims code, published a few weeks ago, is designed to help victims in many of the ways that the hon. Lady described. I will come on to the specific question of who makes the decision in a moment. In addition to the victims code, however, we are doing more work with important agencies such as the police and the CPS, drafting guidance to share with victim care units and making sure that the understanding of the special measures, such as section 28, is as high as it possibly can be. We are also looking to maximise the use of section 24 and to improve the use of remote link sites—the point that the hon. Member for Rotherham made a moment ago—again to help victims.
On the question of empowerment, which the hon. Member for Garston and Halewood just asked about, there is clearly a balance to strike. Obviously we want to ensure that victims are protected and looked after, and that we minimise the trauma that may follow from reliving the experience. We should also be aware, however, that these are court proceedings, designed to determine guilt or innocence. The consequence of a conviction in such cases is, most likely, a long time in prison—rightly so. We therefore need to ensure that the interests of justice are considered, as well as the interests of the victim, which are also extremely important; they are both important.
Ultimately, the judge decides whether a live link may be used or the other special measures may be activated for someone who is eligible. The reason for that is that it is for a judge to make a determination in an individual case on how that case is managed and conducted, having regard to all the particular facts in the case—the circumstances, the victim and the nature of the victim, the nature of the questioning or cross-examination that might need to take place.
The concern of the Government is that if we simply legislate to remove that judicial discretion, saying that the judge cannot decide and what happens is automatic, it means that the judge will in some sense lose control of how the proceedings are conducted. There may be circumstances in which that undermines the delivery of justice.
We hope that judges listen to our proceedings—I am sure they do—and hear the very strong emphasis that we in this House give to victims. The judges are aware of the victims code and the strengthened rights that it gives victims, and they will keep that at the front of their minds when they make such decisions. I hope that they will make them—they normally make them and I hope will continue to do so—in a way that is sympathetic and sensitive. To wholly extinguish judicial discretion, however, would go a long way.
Sarah Champion
I appreciate the Minister’s giving way. I am not entirely convinced that his civil servants have read my amendment. After proposed new paragraph (b) in subsection (2), the new clause states:
“so far as possible ensure that the measure or measures provided for do not inhibit the evidence of the witness being effectively tested by a party to the proceedings.”
It explicitly gives the ultimate call to the judge. We would be giving the victim the right to have a choice, but if the judge believes that it in any way discredits the evidence that they are able to give, the judge has the right not to allow it.
Chris Philp
The drafting is:
“Provided that a direction under paragraph (b) shall so far as possible ensure that the…measures provided for do not inhibit the evidence”.
As far as I read it, it does not give the judge the power not to make the order; it simply states that they must make the order in such a way as not to inhibit the evidence being given
“so far as possible”.
My understanding of the words on the page is not that the judge has an ultimate veto; they must simply exercise a direction in that way.
Furthermore,
“so far as possible”
is not a high test when it comes to justice being done and ensuring that evidence is given fairly. When we are potentially convicting someone and sending them to prison for a long time, ensuring that justice is done
“so far as possible”,
intuitively, does not feel like the standard is quite high enough.
Sarah Champion
I am happy to work with the Minister to get the wording exactly right, so that it does exactly what I think we both want.
Chris Philp
The Government’s position, in conclusion, is that it is very hard to sit in Parliament and legislate definitively and bindingly—
Chris Philp
Let me finish the sentence—for all the circumstances that may arise in an individual case. Therefore, although we have guidelines, procedures and so on, ultimately, the management of any particular case, including things such as the use of live links and proceedings in the courtroom, are a matter for the very experienced judge who is looking at the case, the defendant and the witnesses in front of him or her, the judge.
That is why, ultimately, judicial discretion is required. However, we agree with the direction of travel. I have already mentioned some of the things that we are doing to push things further. I am certain that judges looking at our proceedings will respond accordingly and will take a positive, constructive and accommodating view where the issues arise. In fact, they already have a duty under section 19 of the Youth Justice and Criminal Evidence Act 1999 to take into account the views of the witnesses in making their decisions. We feel that that strikes the right balance.
Alex Cunningham
I do not know whether the Minister accepted the kind offer of my hon. Friend the Member for Rotherham to assist him in developing new clause 20 to make it fit for purpose. He has indicated with a nod of the head that he is pleased to work with her—is that the case?
Alex Cunningham
I am grateful for that clarification.
I am also heartened by the Minister’s response to new clause 4. I will not take anything away from the Government for the tremendous progress that they have made in this area. However, there have been many pilots and I believe that those have already proved that the system is working. I suspect that if it were not working, he would be looking to do something else, rather than extending the pilot. I hope that we can make some more progress sooner rather than later.
The Minister talked about the various recommendations in the rape review. I do not think that we need to wait for the Government to roll out their actions from the rape review. We could take some action now. I see the new clause as another opportunity to take another small step, but it is a significant step, to protect victims and even to improve the quality of evidence that is given in court. Who knows, that, too, might improve some of those abysmal conviction rates that we suffer as a country—suffered by victims who do not receive justice.
Sarah Champion
Does my hon. Friend agree that the fear of giving evidence as the system stands, prevents any justice from happening? Any movement that the Government can make that is sensitive to the needs of victims and survivors would be hugely beneficial.
Alex Cunningham
That is very much the case. Yesterday, following the statement from the Lord Chancellor, there were various discussions of the statistics around cases. For some people, the case does not get beyond the police investigation; it never reaches the CPS. That is because of some of the issues outlined by my hon. Friend. We believe that it is time to start taking action. I say gently that it is great to have warm words from Ministers, but we actually need to make real progress. I will therefore press the new clause to a Division.
Question put, That the clause be read a Second time.
The Chair
With this it will be convenient to discuss the following:
New clause 7—Offence of pet theft (Scotland)—
‘(1) The Animal Health and Welfare (Scotland) Act 2006 is amended as follows.
(2) After section 17 (protected animals) insert—
“17A Definition of pet
A protected animal is a “pet” for the purposes of this Act if it provides companionship or assistance to any human being.”
(3) After section 23 (animal fights) insert—
“23A Pet theft
A person commits an offence if they dishonestly appropriate a pet belonging to another person with the intention of permanently depriving that other person of it.”
(4) In section 40 (disqualification orders) after subsection (13)(b) insert—
“(ba) an offence under section 23A,”.
(5) In section 46 (penalties for offences) after subsection (1) insert—
“(1A) A person guilty of an offence under section 23A (pet theft) shall be liable—
(a) on summary conviction to imprisonment for a term for a term not exceeding 51 weeks, or a fine, or to both;
(b) on conviction on indictment to imprisonment for a term not exceeding 2 years, or to a fine, or to both.
(1B) When the court is considering for the purposes of sentencing the seriousness of an offence under section 23A it must consider the following as aggravating factors (that is to say, a factor that increases the seriousness of the offence)—
(a) that theft caused fear, alarm or distress to the pet, the owner or the pet or another person associated with the pet;
(b) the theft was for the purposes of commercial gain.”
(6) In Schedule 1 (powers of inspectors and constables for Part 2) after paragraph 4(5)(a) insert—
(aa) an offence under section 23A,”.”
New clause 8—Offence of pet theft: consequential amendments—
‘(1) The Police and Criminal Evidence Act is amended as follows.
(2) In section 17(1)(c)(v) (entry for purposes of arrest, etc in connection with offences relating to the prevention of harm to animals), for “and 8(1) and (2)” substitute “8(1) and (2) and 8A”.”
Alex Cunningham
We now turn our attention to quite a different subject. New clauses 6 to 8 would work as a package to create a new specific offence of pet theft, punishable by a custodial sentence of up to two years. As the Minister is aware, the theft of pets is currently an offence under the Theft Act 1968. However, although the law of theft caters for certain specific offences—for example, bicycles, scrap metals and even wild mushrooms, unbelievably—that is not the case for pets. That matters because the Theft Act does not consider a pet’s intrinsic value as a much-loved member of the family. Instead, it takes into account only its monetary or sale value.
I am sure that, like me, the Minister gets a regular flow of emails from animal lovers and owners who want tougher laws to deal with those who would deprive them of their pets. They value their pets way beyond many things in their lives and even make sacrifices to ensure they get the expensive vet treatment that they need. It seems absurd to us that the theft of a much-loved pet is currently regarded in law as the same as the theft of a mobile phone or a handbag.
Pets are living, sentient beings that come into our lives and become irreplaceable members of our families. I do not mind saying that it broke my heart when my dog, Lady, died. It was the same when KT the cat died. He was called KT after we discovered that we had a male cat, which had previously been named Katie by one of my sons.
We believe that legislation and sentencing must reflect reality, and that is why Labour tabled new clause 6. It would create a specific offence of pet theft that would enable courts to deliver sentences for pet theft offences that properly reflect the attitudes of modern society. I know the Minister will remind us that the Government are looking to reform this area of the law, but that was due to happen last year.
Fewer than 1% of pet thefts lead to charges being brought. Although the Theft Act allows for a minimum custodial sentence of up to seven years’ imprisonment, the evidence shows us that someone found guilty of pet theft is far more likely to be handed a caution than a custodial sentence. That is because the vast majority of cases involving pet theft will be handled by the magistrates courts, rather than the Crown court. That is exactly why we need a change in the law. Creating a specific offence of pet theft, rather than leaving offences to be prosecuted under the Theft Act, would mean that judges are able to sentence acts of pet theft in accordance with the huge emotional damage that the offence causes.
The change is as important as it is timely. As the Minister is aware, the number of pet thefts—dog thefts in particular—has skyrocketed during the pandemic. Five police forces across England and Wales reported more acts of dog theft in the past seven months than during the whole of the previous year. Indeed, the number of dog thefts has been increasing year on year for the best part of the past decade, and we are now at the point where, on average, at least five dogs are stolen in England and Wales each and every day. That is a staggering and horrifying figure. I have heard of pets actually snatched from their owners in the street, as criminals steal them to order.
What is even more worrying is that, while the number of dog thefts increases with each year, the number of court charges relating to dog theft has gone down. In 2015, only 62 court charges were brought. In 2016, that had decreased to 48, and by 2017 the number was only 37. By failing to take decisive action as pet thefts rocket and successful prosecutions fall, the Government are sending a dangerous message to criminals—that they can continue to break the hearts of families up and down the country with complete impunity.
Given that the Government have taken no action, the Opposition feel that we must step in and offer them an opportunity for change with a specific offence of pet theft, punishable with a custodial sentence of up to two years. Again, that would allow judges to hand down sentences that properly reflect the emotional family value of a pet, rather than simply its value as an object. That seems to us a wholly sensible response to the current crisis of pet thefts that we see today. Pets are not simply objects; they are invaluable members of our family, within our homes. They provide emotional comfort, support and happiness to families across the country.
It is not just the Opposition who recognise that. The Minister will be aware that many animal welfare groups support a change in legislation, as do members of his own party and the vast majority of the public. The current system does not work and it is the country’s 12 million households that have pets who are being let down. I hope that the Minister, rather than saying that the Government will sort this issue out some other time, will take decisive action and support the new clauses today.
Sarah Champion
I am extremely grateful to my hon. Friend the Member for Stockton North for tabling these new clauses, because during the pandemic in particular the rate of dog theft has gone through the roof, as the cost of puppies, dogs and all other pets has also skyrocketed.
These animals are worth so much more than their monetary value; they are valued members of our households. And we have seen some very high-profile cases that demonstrate the impact when pets are stolen. The law needs to catch up and I really urge the Minister to take this opportunity to do that.
In March, DogLost—a UK charity that helps victims of dog theft—recorded a 170% increase in the rate of this crime between 2019 and 2020. It is very welcome that in May the Government announced a taskforce that will consider the factors contributing to the rise in dognapping and recommend solutions to tackle the problem, but we do not need just another consultation. What we actually need is action and the Bill provides the perfect opportunity for the Government to take that action.
Campaigners against dog theft have called for pet theft to be made a specific offence and they are right to do so. That crime needs more robust punishment than just being covered by theft of property; treating pets just as “property” does not recognise the emotional attachment that people place on them.
Hywel Williams
Does the hon. Lady recognise, as I do, the value of pets in therapeutic situations, especially when people have a disability and perhaps build a particular relationship with a cat or dog? In that respect, the theft of such an animal is even worse than the theft of just a family pet, as it were.
Sarah Champion
I completely agree. While the hon. Gentleman was talking, I was reminded of my grandma, who had a budgie called Bluey. As a child, I did not realise why, every few years, Bluey changed colour. But for my grandma, if Bluey had been stolen it would have broken her, as Bluey was the one constant in her life. The value of a budgie is—what? I do not know—£20? What we find, though, is that when people are caught for petnapping they only receive a small fine; indeed, sometimes they just receive a suspended sentence. Those punishments do not reflect the emotional worth that the pets have.
According to the Pet Theft Reform campaign, in recent years only 1% of dog thefts have even led to prosecution. Campaigners have called for reform of the current system of pet microchipping, to improve the chances of reuniting stolen animals with their owners.
As we have discussed, it is heartbreaking when a beloved family pet is stolen. Currently, however, it is very difficult to collate definitive statistics on pet theft, which is principally due to, first, the different methods of recording pet theft that are used by different police forces and, secondly, pets not being differentiated under the Theft Act 1968. Pets are more than property and legislation should reflect that.
Siobhan Baillie (Stroud) (Con)
I have campaigned on this incredibly important issue. However, having looked into the details and worked with different campaign groups and the Gloucestershire police force, which is recording these crimes well, I think some of the issues that the hon. Lady has touched on are becoming wider and wider in scope. There is a range of things that we need to fix.
I am inclined to say that the taskforce is the way forward to get to legislation. Does the hon. Lady agree that we must look at all of the issues, rather than just trying to tackle either specific sentencing or specific legislation?
Sarah Champion
I completely agree with the hon. Member. Yes, of course, we need robust data to be able to do that. We are in a chicken-and-egg situation because, as the hon. Member highlights, different police forces record different things, so it is hard to grasp the problem. The thing that I am most mindful of is that the opportunity to make changes to the legislation are slight in Parliament, but the Minister has an opportunity now, so I urge him to grasp it.
Does the Minister agree that the punishment should outweigh the potential rewards for stealing pets? At the moment, people receive tens of thousands of pounds for stealing dogs, but they are not given a sentence if they are convicted. I completely understand the work of the taskforce, but we need a positive response, which campaigners and pet owners have called for. There have been some really disturbing cases, with increasing violence used in dog thefts. That is another reason why I want the Government to send a strong message that that is not acceptable and is punishable.
A dog owner was knocked to the ground and punched in a terrifying attack by two men trying to steal her pet. Allie Knight, 22, was attacked near Mutley Plain, Plymouth, as she walked her pug, Paddy. Mike Jasper was walking his dog Ted—this was awful—a sprocker spaniel, in south London in December after visiting his allotment when he was brutally attacked by two men wearing face masks and Ted was taken. “BBC Breakfast” raised this case, and it highlighted the depth of the loss that someone feels when their pet is taken. A 50-year-old woman was attacked and had her dog stolen while she was out walking in Moira Road in Woodville, Derbyshire. One man pushed her to the floor, and grabbed her two-year-old dachshund called Minnie, while the other held his fist to her face.
Police forces need sufficient resources and training to be able to deal with pet theft in a sensitive manner and highlight resources where owners can turn for support. Blue Cross strongly supported the recent decision of Nottinghamshire police to appoint Chief Inspector Amy Styles-Jones as the first specialist dog-theft lead in the country. Having a dedicated dog-theft specialist in each police force would make a huge difference, and would address the point made by the hon. Member for Stroud about the disparities across the country.
Chris Philp
Once again, I am grateful to the shadow Minister and his colleagues for raising an extremely important issue: criminals seeking to profit from the theft of a pet. Sadly, it is a growing trend. Dog owners do not feel safe or comfortable very often, and it can be heartbreaking when a much-loved family pet is taken. Recognising that, the Lord Chancellor, the Home Secretary and the Secretary of State for Environment, Food and Rural Affairs have recently created a new taskforce to investigate the problem end to end and find solutions—not just in relation to the criminal offence, which we will come on to in a moment but in relation to prevention, reporting, enforcement and prosecution of the offences. It will make clear recommendations on how the problem can be tackled. We have seen in other contexts—for example, there was a problem a few years ago with scrap-metal thefts from church roofs—how an end-to-end approach can have an effect. We should not look simply at one element of the problem but at the whole thing end to end, and that is what the task force is urgently doing, as well as taking evidence from experts. The Minister for Crime and Policing is also involved, to make sure that police investigation is what it should be.
As we have heard, the theft of a pet is currently a criminal offence under the Theft Act 1968, so the question arises of why we need a new offence. The first thing I would say is that the maximum sentence for the new offence proposed by the new clause is only two years, whereas the maximum sentence under the Theft Act is seven years. The new clause, if adopted, would reduce the maximum penalty available for stealing a pet from seven years to two years, which strikes me as incongruous, given the purported objectives of the new clause.
The shadow Minister made some points about whether the emotional value of the pet was recognised and accounted for. I draw his attention, and the Committee’s attention, to the Sentencing Council guidelines on theft, which are used by judges when passing sentence for theft up to the seven-year maximum. Under the guidance, which judges are bound to use, harm includes the emotional distress caused by the theft. The guidance also talks about the value to the person who suffered the loss, regardless of monetary worth, so the emotional distress and the non-monetary value are baked in already, in black and white, in those Sentencing Council guidelines. Indeed, the table specifying the level of harm sets out that emotional damage and harm to the victim cause an escalation in the sentence, over and above what would be the case based simply on monetary value.
Siobhan Baillie
Characteristically, the Minister is absolutely correct in everything he is saying, but we cannot get away from the fact that even though legislation provides for sentences of up to seven years, such sentences are not being passed. It is important to recognise that. One of the reasons that I would not back the proposal is that the Minister is right about the two years. We already have a greater sentencing option in the legislation, but that is not being taken, which is why the taskforce is key to looking at the range of options. That includes the judiciary and the Sentencing Council.
Chris Philp
My hon. Friend makes a good point, and those topics are precisely the ones the taskforce is addressing to make sure the appropriate statutory powers exist. The maximum sentence of seven years is there. The ability to take account of emotional distress and non-monetary value is there in black and white, in the Sentencing Council guidelines. I talked through a couple of examples in which instances of high harm and high culpability can lead to substantial periods in custody. Even if the level of harm was 3, there would still be level A culpability and the possibility of between six months and several years in custody. The powers are there in statute. The question is more practical, as my hon. Friend says, and that is exactly what the taskforce will address.
Alex Cunningham
The Minister is outlining how people who steal pets could get up to seven years in jail, but there is no evidence at all, anywhere in the country, to suggest that those cases go beyond magistrates court. The sentence is normally a fine; there is no evidence of custodial sentences. I do not know what the Minister proposes to do to improve guidance to the courts on how they deal with that, but perhaps it is something he needs to consider.
Chris Philp
That is exactly the kind of question the taskforce will be considering. Under the 1968 Act, theft is a triable either-way offence, which means it can be tried in the Crown court or the magistrates court. One matter the taskforce might consider is where the more serious of those offences are prosecuted. The option of the CPS seeking to have more of the cases tried in the Crown rather than the magistrates court could be explored, and that is a topic the taskforce most certainly may consider.
It is also worth mentioning that, in addition to the work of the taskforce and the existing powers relating to a maximum sentence of seven years, there is a lot more the Government are doing. For example, in the area of animal welfare, we are introducing legislation to recognise animals as sentient beings and putting animal welfare at the heart of Government policy decision making. We have also supported calls for increasing the penalty for animal cruelty from six months to five years under the Animal Welfare (Sentencing) Act 2021, which received Royal Assent in April.
Maria Eagle
The Minister is making an interesting point about classifying animals in law as sentient, which is overdue. Does he foresee such a change leading to changes in this legislation? Theft of a sentient being appears to be a somewhat different offence from theft of what is currently seen as an object with monetary value.
Chris Philp
On monetary or emotional value, the Sentencing Council guidelines recognise emotional value and non-monetary worth. The hon. Lady asks about the interaction between the 2021 Act and sentience, on which we are looking to legislate. That is the kind of topic that the taskforce will have in mind. It is an interesting point, and I will ensure that it features in the taskforce’s deliberations.
Given the work that the taskforce is doing across a far wider area than the criminal offence, and given that the criminal offence already has a maximum of seven years and that emotional value is recognised, I feel that the taskforce is doing the necessary work to step up action in this area. We recognise that there is a problem. More needs to be done, and the taskforce is doing it.
Alex Cunningham
Pet owners across the country will be delighted that we have had the debate. We listened to what Members have said and listened the Minister’s response, and we look forward to the taskforce reporting. I do not know when the report is due, but pet owners across the country still want the Government to take action. We do not want any more dilly-dallying; we need the Government to act. We hope that they will press the taskforce to report quickly and to make recommendations that will deliver what the public want: more severe sentences for people who would steal their pets. I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 9
Rental of high performance vehicles
“(1) It is an offence to offer for rental a motor car of more than 300 brake horsepower, unless the motor car is fitted with a black box.
(2) For the purposes of this section, a black box is a telematic device which records information about the way a motor car is driven.
(3) The Secretary of State must by regulations determine the information which a black box must record for the purposes of this section.
(4) Regulations under subsection (3) must provide, at a minimum, for the following information relating to the motor car to which it is fitted to be collected throughout the period of rental—
(a) its location;
(b) its speed; and
(c) its rate of acceleration or deceleration.
(5) The information recorded by the black box must be disclosed to a constable on request, and the failure to disclose such information is an offence.
(6) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum or both.
(7) The Secretary of State must by regulations determine how the brake horsepower of a motor car is to be calculated for the purposes of this section.
(8) For the purposes of this section, “motor car” has the meaning given by section 185 of the Road Traffic Act 1988.” —(Sarah Jones.)
Brought up, and read the First time.
Sarah Jones
I beg to move, That the clause be read a Second time.
The new clause was tabled by my hon. Friend the Member for Halifax (Holly Lynch), with my support and that of my hon. Friends the Members for Hove (Peter Kyle) and for Stockton North. It would produce more accountability in the rental of high-performance vehicles or supercars. I understand that the issue of high-powered vehicles being driven recklessly in and around neighbourhoods, thereby plaguing towns and communities, is a challenge not only in parts of West Yorkshire, but across the country. Many attempts have been made to combat the issue at local level, involving local authorities working side by side with police forces, but such partnership initiatives can go only so far, and it has become clear to all involved that action at national level is needed.
More often than not in the examples of road traffic offences committed by people using cars described as high-performance vehicles, supercars or even prestige cars, the driver is not the owner, but has hired the vehicle. In recent years, there has been an increase in people hiring cars such as Lamborghinis and Ferraris and passing the keys to someone else, if not several others. The vehicles are then driven at dangerously high speeds, which puts other road users, pedestrians and the drivers themselves at risk.
Often the driver will not have the appropriate insurance. They will argue that they believed that they were somehow covered by the rental agreement, by their own insurance or simply by the fact that the person who hired the car had given them consent to take it around the block. They will say that they had not intended to crash, so they did not need insurance. In the majority of cases, they will not have experience of handling 300 hp-plus vehicles, which can be deadly in the wrong hands. Many companies that hire out vehicles operate responsibly and with transparency, but there are much darker elements in the industry. The sliding scale of criminality ranges from drivers engaging in antisocial use of the roads in communities to dangerous and reckless driving through to serious and organised crime.
What can we do to ensure that all companies that rent performance vehicles act responsibly and drivers are accountable for their actions behind the wheel? The new clause makes a start, and it follows a ten-minute rule Bill that was introduced on the Floor of the House on 24 February by my hon. Friend the Member for Halifax. She recalled a recent example in which a police officer had stopped two high-performance vehicles on the same 40 mph road, one going at 76 mph and the other at 86 mph.
The new clause would mandate all rental vehicles of 300 hp or above for use on public highways to be fitted with a black box. A black box is typically the size of a matchbox and it records information about how and when a car is driven. Many hire car companies act competently and do their very best to ensure that their vehicles do not fall into the hands of the irresponsible—that includes fitting black boxes—but a minority fail to carry out due diligence.
Mr Robert Goodwill (Scarborough and Whitby) (Con)
I am a member of the all-party parliamentary historic vehicles group, and I am a little concerned that many older vehicles that may be hired—for example, vintage Bentleys—cannot be fitted with a black box, which might prevent those vehicles from being enjoyed by people who perhaps want to hire a little of our history.
Sarah Jones
I confess that I am not a car expert, but my understanding is that the vehicles in question are 300 hp or more. I do not know whether the vehicles the right hon. Gentleman has mentioned are in that category. The new clause relates to powerful cars that are hired by people—often young people—who pass them on to their friends. In some cases, significant damage is caused.
Mr Goodwill
I thank the hon. Lady for her generosity in giving way. I understand the problem she has identified. However, the Jaguar F-Pace 3.0 litre 4x4, for example, which families might hire to pull a caravan on a holiday or to go on a trip, would fall into that category. I am a little worried that many people who are not part of the problem might be drawn into additional cost and the difficulties that that might present.
Sarah Jones
I imagine that if a vehicle could not accommodate a black box, it would not fall within the remit of the new clause. Perhaps we could work on the guidance accompanying the new clause to fix the issue that the right hon. Gentleman has mentioned. I am grateful to him for doing so.
Sarah Champion
Does my hon. Friend agree, though, that fitting a black box would not inhibit a good driver, and it should not put an additional cost on the hire? The new clause would allow us to capture the data that could prove that people had been acting recklessly after hiring sports cars.
Sarah Jones
My hon. Friend is right, as always. The purpose of the new clause would be of no concern to people who drive safely and competently.
The new clause would also make it a requirement for companies to hand over that black box data to the police should they request it. As Members of the House have communicated to me, this problem is repeatedly raised on the doorstep in some communities and in constituency surgeries, and getting a grip of it would not only make people safer, but push back on the costs picked up by responsible road users who are penalised through their own insurance to cover the risk presented by a minority of reckless road users who drive vehicles without insurance that become involved in crashes.
The Motor Insurers Bureau has shared with me some troubling examples of questionable insurance policies being used by some companies in this rental sector. Agencies agree that costs are passed on to law-abiding road users by those abusers of system. A black box would help to provide an evidence base for determining whether road traffic offences had been committed and, ultimately, for securing prosecutions if necessary. That would protect law-abiding road users from risk and cost to them.
Over the years, I have seen the police and various partnerships deploy several attempts to address the issue, with varying success. The new clause would make a start by using legislation to address reckless driving facilitated by the irresponsible use of hired supercars.
Victoria Atkins
I have listened very carefully to the arguments made by the hon. Lady, and it seems to me that the issue comes down to the driving habits of the small group of people in West Yorkshire and elsewhere that she described.
Sarah Jones
I fear, Sir Charles, that two non-car-experts are talking about cars, which is probably uncomfortable for car experts across the country. Many of the cars the Minister has mentioned are fitted with black boxes. Police cars are fitted with black boxes. A lot of companies offer much cheaper insurance if someone has a black box fitted to their car. Indeed, there are insurance companies with the words “black box” in their name. The provision is not extreme, and this is becoming normal anyway. Given the Minister’s argument about the breadth of models of car that might be affected by the new clause, perhaps she will commit herself to considering a better definition so as to tackle this particular, extreme problem, which is very concerning for a lot of people.
Victoria Atkins
There are other concerns about the new clause, which come back to the proportionality argument. I fully accept, of course, for those communities that are affected by the sort of antisocial—indeed dangerous—driving that hon. Lady has described, that their feelings as to proportionality will differ from those in a quiet rural area, for example, where there is no such behaviour, but this is where the powers that I have already outlined come in. They include public spaces protection orders, which can be particularly powerful, because they allow a local area to address the concerns in a particular part of the area as appropriate.
The concern that we have for the wider hire market is that the requirement to fit devices to these vehicles—the Honda Civic, the Volvo V60 and suchlike—could restrict choice and availability of vehicles. The low threshold may defeat the objective of stopping higher-performance vehicles being driven at speed. Consumers may in fact switch to lower-powered vehicles so as not to be monitored by black boxes, and continue to break the law.
Sarah Jones
As I understand it, given the problems that have been described to me, people specifically want to hire these high-glamour cars—Lamborghinis and so on—because they want to show off and race each other. Getting a lower-performance car is not what they are aiming for; the point is to hire these big, high-powered, high-glamour cars and show off in front of their friends.
Victoria Atkins
This is difficult, in terms of defining the type of car. But I also fall back on the proportionality argument, because in requiring devices to be fitted to every single car as a matter of law, we would be affecting the overwhelming majority of law-abiding citizens, who do not race Lamborghinis and so on—although I do note, having watched Jeremy Clarkson’s farming programme, that he has a Lamborghini, albeit a Lamborghini tractor, which I suspect would not fall into this category.
We would have further concerns about the privacy consequences of fitting these devices, because to ensure that we were acting in the way that the new clause sets out, it would have to affect responsible road users as well as irresponsible ones. Telematic data is normally used to assess individual road safety risk, which can be an inexact science. As the hon. Lady said, this is currently voluntary, not mandatory. Forcing those using even medium-sized rental cars to have these devices fitted could understandably lead to privacy concerns on the part of all rental vehicle users and not just the irresponsible racers, on which the new clause is understandably focused.
For those reasons—for reasons of proportionality but also because there are existing powers to deal with this irresponsible, dangerous behaviour—we do not believe that the new clause is proportionate and therefore we hope that the hon. Lady feels able to withdraw the motion.
Sarah Jones
I have heard from several MPs about the problem that this behaviour is causing in their constituencies. The argument of proportionality is always a strong one, but in this case the problem is such that people are concerned for their safety and for the lives of the people hiring these vehicles, and therefore I would like to press the new clause to a vote.
Question put, That the clause be read a Second time.
The Chair
With this it will be convenient to discuss the following:
New clause 11—Definition of “issue of consent”—
“(1) Section 42 of the Youth Justice and Criminal Evidence Act 1999 is amended as follows.
(2) For paragraph (b) substitute—
“(b) “issue of consent” means any issue where the complainant in fact consented to the conduct constituting the offence with which the defendant is charged and any issue where the accused reasonably believed that the complainant so consented;””
This new clause re-defines “issue of consent” for the purposes of section 41, including in the definition the defendant’s reasonable belief in consent, and thus removing it as a reason for the inclusion of a complainant’s sexual history or behaviour.
New clause 12—Admission of evidence or questions about complainant’s sexual history—
“(1) The Youth Justice and Criminal Evidence Act 1999 is amended as follows.
(2) After section 43 insert—
“43A In any trial or contested hearing to which section 41 of the Youth Justice and Criminal Evidence Act 1999 applies, if no pre-trial application in accordance with Part 36 of the Criminal Procedure Rules has been made, or if such application has been made and refused in whole or in part, no further application may be made during the course of the trial or before its commencement to call such evidence or ask such question, and no judge may allow such application or admit any such questions or evidence.””
This new clause would have the effect that no section 41 evidence or questions could be admitted by a judge at trial unless there had been an application before trial in accordance with the practice directions; and the amendment would ban applications from being made immediately before or during the trial.
New clause 13—Complainant’s right of representation and appeal on an application to adduce evidence or questions on sexual conduct—
“(1) The Youth Justice and Criminal Evidence Act 1999 is amended as follows.
(2) After section 43 insert—
“43A In any trial to which section 41 applies, where notice is given that there will be an application under Part 36 of the Criminal Procedure Rules for leave to ask questions or to adduce evidence as to any sexual behaviour of the complainant—
(1) The complainant may not be compelled to give evidence at any hearing on the application.
(2) The complainant will be entitled to be served with the application and to be legally represented (with the assistance of legal aid if financially eligible) as “a party” within the meaning of the Criminal Procedure Rules in responding in writing to the application and in presenting their case at any hearing on the application.
(3) If the application succeeds in whole or in part, the complainant will have a right to appeal for a rehearing of the application to the Court of Appeal on notice within 7 days of the judgement being delivered.
(4) On any such appeal, the Court of Appeal will rehear the application in full and may grant or refuse it in whole or in part.
(5) The Secretary of State may, by regulation, set out rules of procedure relating to any hearing or appeal under this section.””
This new clause would give the complainant a right of representation, with legal aid if they are financially eligible, to oppose any application to admit section 41 material about them. This new clause would also give complainants a right of appeal to the Court of Appeal if the application is allowed in whole or in part. The new clause also provides that the complainant is not compellable as witness at the application.
New clause 14—Collection of and reporting to Parliament on data and information relating to proceedings involving rape and sexual assault—
“(1) The Secretary of State shall collect and report to Parliament annually the following data and information—
(a) The time taken in every case of rape or sexual assault for the case to progress from complaint to charge, from charge to pre-trial plea and management hearing; and from then until trial.
(b) The number of applications to ask questions or adduce evidence of any sexual behaviour of the complainant under section 41 of the Youth Justice and Criminal Evidence Act 1999 (“the 1999 Act”) made in the Magistrates and Crown Courts of England and Wales, irrespective of whether a trial was subsequently held.
(c) The number of cases which involved questions on or evidence of any sexual behaviour of the complainant in all rape, sexual abuse and other trials or contested hearings in the Magistrates and Crown courts in England and Wales, irrespective of whether an application was made to admit such questions or evidence in advance of the trial or hearing.
(d) In cases to which section 41 of the 1999 Act applies—
(i) whether Part 36 of the Criminal Procedure Rules was followed in each application and if it was not, how it was not;
(ii) the questions proposed to be asked;
(iii) the evidence proposed to be called;
(iv) whether the prosecution opposed the application and if so the content of their representations;
(v) whether evidence was called to support or oppose the application;
(vi) whether the application was allowed in whole or in part and a copy of the judgement made on the application; and
(vii) any other material which might assist in an assessment of the frequency, basis and nature of applications for the use of such questions or evidence and the likely impact on any parties to any trial and the trial outcome.
(2) The data and information to be collected under subsection (1) shall include—
(a) all the material from any pre-trial application;
(b) the questions in fact asked and the evidence in fact called about any sexual behaviour of the complainant in the trial;
(c) any application at the start or during the course of the trial to vary or alter any judgement given in any earlier application or any further application to admit such questions or evidence;
(d) whether any material not previously authorised was used in the trial;
(e) whether the prosecution objected; and
(f) any ruling made or action taken by the judge on the further conduct of the trial as a consequence of the admission of questions or evidence under section 41 of the 1999 Act.
(3) The data and information to be collected under this section shall be collected from the date of Royal Assent to this Bill.”
This new clause requires the Secretary of State to collect and report to Parliament data and information on trial delay and section 41 matters.
New clause 15—Training for relevant public officials in relation to the conduct of cases of serious sexual offences—
“(1) The Secretary of State shall, on this Act coming into force, publish and implement a strategy to provide training on the investigation of rape and alleged rape complainants, and the admissibility and cross-examination of complainants on their sexual history to—
(a) the Crown Prosecution Service;
(b) Police Forces;
(c) the Judiciary; and
(d) such other public bodies as the Secretary of State considers appropriate.
(2) The Secretary of State shall ensure that any judge who is asked to hear a trial where the accused is charged with rape or any other serious sexual offence has attended and completed a training programme for such trials which has been accredited by the Judicial College.”
This new clause ensures that all criminal justice agencies shall be trained and that no judge can hear a sexual offence trial of any kind unless they have attended the Judicial College serious sexual offence course.
New clause 42—Enhancement of special measures in sexual offences—
“(1) The Youth Justice and Criminal Evidence Act 1999 is amended as follows.
(2) In section 27, after subsection (1), insert—
“(1A) Any interview conducted under this section of a complainant in respect of a sexual offence must be conducted by—
(a) a member of the Bar of England and Wales,
(b) a member of the Faculty of Advocates,
(c) a member of the Bar of Northern Ireland, or
(d) a solicitor advocate.””
New clause 57—Restriction on evidence or questions about mental health counselling or treatment records relating to complainant or witness—
“(1) The Youth Justice and Criminal Evidence Act 1999 is amended as follows.
(2) After section 43 insert—
“43A Restriction on evidence or questions about mental health counselling or treatment records relating to complainant or witness
(1) If at a trial a person is charged with a sexual offence, then, except with the leave of the court—
(a) no evidence may be adduced, and
(b) no question may be asked in cross examination,
by or on behalf of any accused at the trial, about any records made in relation to any mental health counselling or treatment which may have been undertaken by a complainant or witness.
(2) The records made include those made by—
(a) a counsellor,
(b) a therapist,
(c) an Independent Sexual Violence Adviser (ISVA), and
(d) any victim support services.
(3) The court may give leave in relation to any evidence or question only on an application made by or on behalf of a party to the trial, and may not give such leave unless it is satisfied that—
(a) the evidence or question relates to a relevant issue in the case which will include a specific instance (or specific instances) of alleged sexual behaviour on the part of the complainant,
(b) the evidence or question has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice, and
(c) a refusal of leave might have the result of rendering unsafe a conclusion of the jury or (as the case may be) the court on any relevant issue in the case.
(4) For the purposes of making a determination under paragraph (3)(b) the judge shall take into account—
(a) the interests of justice, including the right of the accused to make a full answer and defence;
(b) the need to preserve the integrity of the trial process by removing from the fact-finding process any discriminatory belief or bias;
(c) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury;
(d) the potential threat to the personal dignity and right to privacy of the complainant or witness;
(e) the complainant’s or witness’s right to personal security and to the full protection and benefit of the law;
(f) the provisions of the Victims Code; and
(g) any other factor that the judge considers relevant.
(5) Where this section applies in relation to a trial by virtue of the fact that one or more of a number of persons charged in the proceedings is or are charged with a sexual offence—
(a) it shall cease to apply in relation to the trial if the prosecutor decides not to proceed with the case against that person or those persons in respect of that charge; but
(b) it shall not cease to do so in the event of that person or those persons pleading guilty to, or being convicted of, that charge.
(6) Nothing in this section authorises any evidence to be adduced or any question to be asked which cannot be adduced or asked apart from this section.
(7) In relation to evidence or questions under this Section, if no pre-trial application in accordance with Part 36 of the Criminal Procedure Rules has been made, or if such application has been made and refused in whole or in part, no further application may be made during the course of the trial or before its commencement to call such evidence or ask such question, and no judge may allow such application or admit any such questions or evidence.””
This new clause would restrict evidence or questions about mental health counselling or treatment records relating to complainant or witness unless a defined threshold is met.
New clause 68—Law Commission consideration of the use of complainants’ sexual history in rape trials—
“The Secretary of State must seek advice and information from the Law Commission under section (3)(1)(e) of the Law Commissions Act 1965 with proposals for the reform or amendment of the law relating to the use of complainants’ sexual history in rape trials.”
Sarah Champion
I would like to speak to new clause 57, which would restrict evidence or questions about mental health counselling or treatment records, unless a defined threshold is met. Under current legislation, the police and defence are able to access all the victim’s counselling notes relatively easily. That results in many victims fearing that their counselling notes will be used against them in court proceedings, while some victims are actively discouraged from accessing counselling until after the trial has taken place.
New clause 57 would create a presumption that the disclosure of counselling notes would not be used as evidence, so that only in exceptional circumstances could the victim’s records be accessed. The new clause would add a new section to the Youth Justice and Criminal Evidence Act 1999, so that the judge would have to take into account multiple factors, including the victims’ code, and the potential threat to the person’s dignity and right to privacy of the complainant or witness.
The mental health records would also have to relate to a relevant issue in the case, and the judge would have to ensure that the evidence has significant probative value. That would reassure victims that it would be unlikely that their records would be used, and give them more confidence in working with the police and courts to secure justice.
I recently received an email from a brave woman who used to live in my constituency. She has now moved away from the UK because she did feel emotionally or physically safe in Rotherham, or indeed in England. She left the UK as a direct result of the traumatic court case. She literally moved to the other side of the world. In 2011-12, she reported childhood sexual abuse to South Yorkshire police. In her email to me, she wrote:
“After I completed my video evidence, the officers told me it would complicate the trial if I sought any mental health support, and to wait until it was over. That took 18 months, 18 of the most difficult months, when I was emotionally abused and outcast by my family for reporting the abuse. I had nowhere to turn, needed to see a psychologist for support and I was utterly traumatised. Today, I suffer from post-traumatic stress from that trial, and I feel it is related to being denied my human right of access to mental health support. If the police denied anyone cancer treatment during court proceedings, there would be uproar. We need to see mental health in the same way.”
She goes on to say:
“Despite it not being illegal to see a counsellor, it appears to be more convenient for the police case if one is not seen. When someone in such an immense position of trust indicates it would be better not to see a counsellor, the victim is so vulnerable and so strongly led by the police that I fear it will continue, even if it is off the record. Furthermore, the fear of past or ongoing counselling notes being shared with the courtroom is so overwhelmingly terrifying it is enough to put someone off seeking help, even if they were not directed against it by the police, as I was.”
Minister, this needs systematic change. Receiving counselling or mental health support should not make a victim unreliable as a witness. In 2018, in a debate about the victims’ strategy, the then Solicitor General, now Lord Chancellor and Secretary of State for Justice, the right hon. and learned Member for South Swindon (Robert Buckland), said:
“Where we have suitably qualified…mental health professionals, there should…be no bar to the sort of general counselling help that would be of real value to people who are experiencing some form of trauma.”—[Official Report, 11 October 2018; Vol. 647, c. 374.]
More recently, in response to my written question, the Minister for Crime and Policing, the hon. Member for North West Hampshire (Kit Malthouse), said:
“Victims of crime have a right to be referred to support services and have services and support tailored to their needs. There are no rules that restrict access to therapy in advance of criminal proceedings.”
My constituent was denied mental health support. I received a letter from South Yorkshire police confirming that there is guidance, which the CPS relied on in this case, to deny therapy to vulnerable witnesses in cases where the evidence can be argued as tainted and the prosecution lost. My constituent was refused counselling, but the police then found and shared counselling notes from sessions she had had at university, four years before the court case. She states:
“I was already fearful about how much of that information I’d freely shared in confidence four years earlier would be shared with my abuser and whoever else turned up to court that day.”
Police, Crime, Sentencing and Courts Bill (Eighteenth sitting)
Tuesday 22nd June 2021
(2 years, 10 months ago)
Public Bill CommitteesRead Full debate Police, Crime, Sentencing and Courts Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 22 June 2021 - (22 Jun 2021)
The Committee divided: - Ayes: 5 / Noes: 8 - Question accordingly negatived.
The Committee divided: - Ayes: 5 / Noes: 8 - Question accordingly negatived.
The Committee divided: - Ayes: 5 / Noes: 8 - Question accordingly negatived.
The Committee divided: - Ayes: 5 / Noes: 7 - Question accordingly negatived.
The Chair
Here we are. We have the ambition, according to the Whips, to get to new clause 59 by 5 o’clock. That will take some energy and effort from Committee members, but I am sure that with a fair wind behind you and natural checks in place, you will succeed in your ambition.
New Clause 10
Restriction on evidence or questions about complainant’s sexual history
‘(1) Section 41 of the Youth Justice and Criminal Evidence Act 1999 is amended as follows.
(2) In subsection (1)—
(a) starting in paragraph (b) omit “in cross examination, by or on behalf of any accused at the trial,”;
(b) at end insert “with anyone other than the defendant”.
(3) In subsection (2)—
(a) for “an accused” substitute “a party to the trial”;
(b) in paragraph (a) omit “or (5)”.
(4) For subsection (3) substitute—
“(3) This subsection applies if the evidence or question relates to a relevant issue in the case and that issue is not an issue of consent.”
(5) For subsection (5) substitute— In subsection (6), for “subsections (3) and (5)” substitute “subsection (3)”.”
“(a) For the purposes of subsection (3) no evidence may be adduced or question asked unless the judge determines in accordance with the procedures in this subsection that the question or evidence has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.
(b) In determining that question the judge shall take into account—
(i) the interests of justice, including the right of the accused to make a full answer and defence;
(ii) the need to preserve the integrity of the trial process by removing from the fact-finding process any discriminatory belief or bias;
(iii) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury;
(iv) the potential threat to the complainant’s personal dignity and right to privacy;
(v) the complainant’s right to personal security and to the full protection and benefit of the law;
(vi) the provisions of the Victims Code;
and any other factor that the judge considers relevant.
(6) In subsection (6), for “subsections (3) and (5)” substitute “subsection (3).’—(Sarah Champion.)
This new clause excludes the admission in evidence of any sexual behaviour of the complainant with a third party, whether by the prosecution or the defence, to show consent, whilst leaving it admissible if it is relevant to any other issue in the case. It sets out the additional requirement that to be admitted the material must be more probative than prejudicial and sets out the considerations the judge must have in regard to considering that extra requirement.
Brought up, and read the First time, and Question proposed (this day), That the clause be read a Second time.
The Chair
I remind the Committee that with this we are considering the following:
New clause 11—Definition of “issue of consent”—
‘(1) Section 42 of the Youth Justice and Criminal Evidence Act 1999 is amended as follows.
(2) For paragraph (b) substitute—
“(b) “issue of consent” means any issue where the complainant in fact consented to the conduct constituting the offence with which the defendant is charged and any issue where the accused reasonably believed that the complainant so consented;”
This new clause re-defines “issue of consent” for the purposes of section 41, including in the definition the defendant’s reasonable belief in consent, and thus removing it as a reason for the inclusion of a complainant’s sexual history or behaviour.
New clause 12—Admission of evidence or questions about complainant’s sexual history—
‘(1) The Youth Justice and Criminal Evidence Act 1999 is amended as follows.
(2) After section 43 insert—
43A In any trial or contested hearing to which section 41 of the Youth Justice and Criminal Evidence Act 1999 applies, if no pre-trial application in accordance with Part 36 of the Criminal Procedure Rules has been made, or if such application has been made and refused in whole or in part, no further application may be made during the course of the trial or before its commencement to call such evidence or ask such question, and no judge may allow such application or admit any such questions or evidence.’
This new clause would have the effect that no section 41 evidence or questions could be admitted by a judge at trial unless there had been an application before trial in accordance with the practice directions; and the amendment would ban applications from being made immediately before or during the trial.
New clause 13—Complainant’s right of representation and appeal on an application to adduce evidence or questions on sexual conduct—
‘(1) The Youth Justice and Criminal Evidence Act 1999 is amended as follows.
(2) After section 43 insert—
43A (1) The complainant may not be compelled to give evidence at any hearing on the application.
(2) The complainant will be entitled to be served with the application and to be legally represented (with the assistance of legal aid if financially eligible) as “a party” within the meaning of the Criminal Procedure Rules in responding in writing to the application and in presenting their case at any hearing on the application.
(3) If the application succeeds in whole or in part, the complainant will have a right to appeal for a rehearing of the application to the Court of Appeal on notice within 7 days of the judgement being delivered.
(4) On any such appeal, the Court of Appeal will rehear the application in full and may grant or refuse it in whole or in part.
(5) The Secretary of State may, by regulation, set out rules of procedure relating to any hearing or appeal under this section.’
This new clause would give the complainant a right of representation, with legal aid if they are financially eligible, to oppose any application to admit section 41 material about them. This new clause would also give complainants a right of appeal to the Court of Appeal if the application is allowed in whole or in part. The new clause also provides that the complainant is not compellable as witness at the application.
New clause 14—Collection of and reporting to Parliament on data and information relating to proceedings involving rape and sexual assault—
‘(1) The Secretary of State shall collect and report to Parliament annually the following data and information—
(a) The time taken in every case of rape or sexual assault for the case to progress from complaint to charge, from charge to pre-trial plea and management hearing; and from then until trial.
(b) The number of applications to ask questions or adduce evidence of any sexual behaviour of the complainant under section 41 of the Youth Justice and Criminal Evidence Act 1999 (“the 1999 Act”) made in the Magistrates and Crown Courts of England and Wales, irrespective of whether a trial was subsequently held.
(c) The number of cases which involved questions on or evidence of any sexual behaviour of the complainant in all rape, sexual abuse and other trials or contested hearings in the Magistrates and Crown courts in England and Wales, irrespective of whether an application was made to admit such questions or evidence in advance of the trial or hearing.
(d) In cases to which section 41 of the 1999 Act applies—
(i) whether Part 36 of the Criminal Procedure Rules was followed in each application and if it was not, how it was not;
(ii) the questions proposed to be asked;
(iii) the evidence proposed to be called;
(iv) whether the prosecution opposed the application and if so the content of their representations;
(v) whether evidence was called to support or oppose the application;
(vi) whether the application was allowed in whole or in part and a copy of the judgement made on the application; and
(vii) any other material which might assist in an assessment of the frequency, basis and nature of applications for the use of such questions or evidence and the likely impact on any parties to any trial and the trial outcome.
(2) The data and information to be collected under subsection (1) shall include—
(a) all the material from any pre-trial application;
(b) the questions in fact asked and the evidence in fact called about any sexual behaviour of the complainant in the trial;
(c) any application at the start or during the course of the trial to vary or alter any judgement given in any earlier application or any further application to admit such questions or evidence;
(d) whether any material not previously authorised was used in the trial;
(e) whether the prosecution objected; and
(f) any ruling made or action taken by the judge on the further conduct of the trial as a consequence of the admission of questions or evidence under section 41 of the 1999 Act.
(3) The data and information to be collected under this section shall be collected from the date of Royal Assent to this Bill.’
This new clause requires the Secretary of State to collect and report to Parliament data and information on trial delay and section 41 matters.
New clause 15—Training for relevant public officials in relation to the conduct of cases of serious sexual offences—
‘(1) The Secretary of State shall, on this Act coming into force, publish and implement a strategy to provide training on the investigation of rape and alleged rape complainants, and the admissibility and cross-examination of complainants on their sexual history to—
(a) the Crown Prosecution Service;
(b) Police Forces;
(c) the Judiciary; and
(d) such other public bodies as the Secretary of State considers appropriate.
(2) The Secretary of State shall ensure that any judge who is asked to hear a trial where the accused is charged with rape or any other serious sexual offence has attended and completed a training programme for such trials which has been accredited by the Judicial College.’
This new clause ensures that all criminal justice agencies shall be trained and that no judge can hear a sexual offence trial of any kind unless they have attended the Judicial College serious sexual offence course.
New clause 42—Enhancement of special measures in sexual offences—
‘(1) The Youth Justice and Criminal Evidence Act 1999 is amended as follows.
(2) In section 27, after subsection (1), insert—
“(1A) Any interview conducted under this section of a complainant in respect of a sexual offence must be conducted by—
(a) a member of the Bar of England and Wales,
(b) a member of the Faculty of Advocates,
(c) a member of the Bar of Northern Ireland, or
(d) a solicitor advocate.’
New clause 57—Restriction on evidence or questions about mental health counselling or treatment records relating to complainant or witness—
‘(1) The Youth Justice and Criminal Evidence Act 1999 is amended as follows.
(2) After section 43 insert—
“43A Restriction on evidence or questions about mental health counselling or treatment records relating to complainant or witness
(1) If at a trial a person is charged with a sexual offence, then, except with the leave of the court—
(a) no evidence may be adduced, and
(b) no question may be asked in cross examination,
by or on behalf of any accused at the trial, about any records made in relation to any mental health counselling or treatment which may have been undertaken by a complainant or witness.
(2) The records made include those made by—
(a) a counsellor,
(b) a therapist,
(c) an Independent Sexual Violence Adviser (ISVA), and
(d) any victim support services.
(3) The court may give leave in relation to any evidence or question only on an application made by or on behalf of a party to the trial, and may not give such leave unless it is satisfied that—
(a) the evidence or question relates to a relevant issue in the case which will include a specific instance (or specific instances) of alleged sexual behaviour on the part of the complainant,
(b) the evidence or question has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice, and
(c) a refusal of leave might have the result of rendering unsafe a conclusion of the jury or (as the case may be) the court on any relevant issue in the case.
(4) For the purposes of making a determination under paragraph (3)(b) the judge shall take into account—
(a) the interests of justice, including the right of the accused to make a full answer and defence;
(b) the need to preserve the integrity of the trial process by removing from the fact-finding process any discriminatory belief or bias;
(c) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury;
(d) the potential threat to the personal dignity and right to privacy of the complainant or witness;
(e) the complainant’s or witness’s right to personal security and to the full protection and benefit of the law;
(f) the provisions of the Victims Code; and
(g) any other factor that the judge considers relevant.
(5) Where this section applies in relation to a trial by virtue of the fact that one or more of a number of persons charged in the proceedings is or are charged with a sexual offence—
(a) it shall cease to apply in relation to the trial if the prosecutor decides not to proceed with the case against that person or those persons in respect of that charge; but
(b) it shall not cease to do so in the event of that person or those persons pleading guilty to, or being convicted of, that charge.
(6) Nothing in this section authorises any evidence to be adduced or any question to be asked which cannot be adduced or asked apart from this section.
(7) In relation to evidence or questions under this Section, if no pre-trial application in accordance with Part 36 of the Criminal Procedure Rules has been made, or if such application has been made and refused in whole or in part, no further application may be made during the course of the trial or before its commencement to call such evidence or ask such question, and no judge may allow such application or admit any such questions or evidence.’
This new clause would restrict evidence or questions about mental health counselling or treatment records relating to complainant or witness unless a defined threshold is met.
New clause 68—Law Commission consideration of the use of complainants’ sexual history in rape trials—
‘The Secretary of State must seek advice and information from the Law Commission under section (3)(1)(e) of the Law Commissions Act 1965 with proposals for the reform or amendment of the law relating to the use of complainants’ sexual history in rape trials.’
Alex Cunningham (Stockton North) (Lab)
It is a pleasure to serve under your chairmanship, Sir Charles—probably for the last time in this Committee, as I believe you may be going fishing on Thursday. That might be just a rumour.
New clause 42 is yet another attempt by the Opposition to improve the provisions of special measures for victims of sexual offences. I hope the Government are more open-minded to this proposal. The new clause would make the use of professional advocates mandatory when complainants of sexual offences undergo video-recorded interviews. I thank the Society of Labour Lawyers for its extremely valuable input in the formation of this new clause.
A number of special measures are available to vulnerable and intimidated witnesses giving evidence at trial, under the Youth Justice and Criminal Evidence Act 1999. They include the use of screens, the use of a live TV link, giving evidence in private, the removal of wigs and gowns and the use of video-recorded cross examination where a video-recorded interview is admitted as evidence in chief—under section 28, which we discussed earlier.
The new clause deals with the special measure provided for under section 27—the use of video-recorded interviews as evidence in chief. Where the witness concerned is the complainant of a sexual offence, a video-recorded interview is presumed to be admissible in a Crown Court trial as evidence in chief. The Opposition seek to amend section 27 of the Act so that, where a victim of a sexual offence undergoes a video-recorded interview that is intended to stand as their evidence in chief at trial, the interview is conducted by a professional advocate as opposed to a police officer. We believe that is a relatively small but extremely effective proposal that could strengthen the evidence collected under section 27, and as a result strengthen a number of sexual offence cases from the outset.
Currently, video-recorded interviews are conducted by police officers rather than professional advocates. That is a rather significant extension of the role of the police in investigating crime, which includes the production of witness statements and interviewing of suspects, because a section 27 video-recorded interview is intended to be played to the jury and to stand in place of the live evidence on oath that would normally be elicited from the witness by the barrister for the prosecution.
Although it is true that police officers are trained to plan for and ask appropriate questions when conducting a video-recorded interview, it cannot be said that they have the same level of training or experience in witness handling as professional advocates such as barristers. An experienced practitioner explained to me that, in their experience, the interviews conducted by police can sometimes be repetitive, confusing and unclear. As a result, they may risk undermining the prosecution’s case.
I stress that I am not criticising the police, who we know are committed to a full and thorough investigation of crimes. Rather, we believe that this is not covered by the police’s usual remit of expertise, so it stands out as an anomaly in the range of police duties. The police should not be asked to carry out such duties, which fall outside the ordinary range of criminal investigation—especially in cases involving vulnerable or intimidated witnesses, which is what section 27 makes provision for.
We are also concerned that the use of police officers to conduct examination under section 27 may risk creating an imbalance in the equality of arms between the prosecution and defence. That is because the cross-examination of the same victims, whether conducted live during a trial or pre-recorded under section 28, will be conducted by a professional advocate, namely the defendant’s barrister. The provisions of section 27 are intended to help a witness give their best evidence, but under the current system they may be prevented from doing so.
As things stand, with police officers undertaking interviews under section 27, the key witness in a sexual offence case—they will often be the only one in such cases—is denied the benefit of having their evidence for the prosecution elicited by a professional advocate. New clause 42 would redress that imbalance so that victims who receive the special measure of a section 27 video-recorded interview are not denied the chance to have their evidence elicited by a professional advocate.
The Government should adopt this eminently sensible proposal as soon as possible as one of their planned measures to improve the criminal justice system’s response to rape and sexual offence cases. It would improve both the strength of the victim’s evidence, and their experience of being questioned. I look forward to hearing the Minister’s thoughts; I could not see anything on section 27 in the end-to-end rape review. Has his Department looked at the issue? Could it do some more work on it?
Before I turn to new clause 68, I pay tribute to the Mother of the House, my right hon. and learned Friend the Member for Camberwell and Peckham (Ms Harman), for the time and energy she has devoted to this Bill. She has been a fierce and tireless advocate for improving the lives of women and girls, and her reputation as one of the most powerful voices in the House is well deserved. My hon. Friend the Member for Rotherham has made powerful points while speaking on amendments relating to section 41 of the Youth Justice and Criminal Evidence Act 1999. As she has already spoken at length about what section 41 does, or at least is intended to do, I will spare the Committee’s time by not repeating what has been said.
I move on to new clause 68. The Opposition are deeply concerned by the issues raised by my right hon. and learned Friend the Member for Camberwell and Peckham. If section 41 is not functioning as was intended it is only right that the law be reviewed and, if necessary, amended. The last thing we want is for alleged victims of rape to face the ordeal of their sexual history being discussed in court—unless it can be shown to be absolutely necessary and only when strict criteria are met.
The Opposition’s whole approach to this Bill has been to try to protect women and girls from violence and abuse and to ensure that all victims of violence are supported and protected through the criminal justice system. On section 41, we have sought to achieve this through new clause 68. The clause would compel the Government to ask the Law Commission to review section 41 of the Youth Justice and Criminal Evidence Act 1999, with the specific purpose of identifying whether it provides the safeguards intended when it was enacted—and if not, to advise the Government on avenues of reform.
As I am sure Committee members will agree, the question of what evidence should be admitted during trial is contentious and difficult; any reforms must carefully balance protecting complainants with respect for fair trial rights. Allowing the Law Commission to conduct a thorough review of section 41 would be the best course of action to determine the way forward.
Our thinking is twofold. First, we can have full confidence that the Law Commission will be able to evaluate this type of issue. It includes some of the most pre-eminent legal minds in the UK, so there is no doubt that it would review section 41 with the utmost care and detail. Secondly, if the Law Commission were allowed to undertake a root-and-branch approach to section 41, it might make recommendations for reform that went beyond those covered by the new clauses tabled to the Bill. For example, even the most experienced of legal practitioners sometimes struggle with the complexity of section 41, leading to avoidable errors made during trial. We hope that new clause 68 would allow the Law Commission to recommend changes that might be beneficial in this area, as well as others.
It seems that the Opposition are not alone in believing that pursing a Law Commission review is the best way to approach section 41; over the weekend, I was pleased to hear that the Government also concur with that view. Page 17 of the Government’s end-to-end rape review report sets out that one of the actions that the Government will implement within the first six months will be to ask the Law Commission
“to review the way rape myths are tackled as part of the court process and the way in which evidence about the victim is used.”
Yet that strikes me as somewhat strange. When answering a question from my right hon. and learned Friend the Member for Camberwell and Peckham on this very topic in the Chamber yesterday, the Lord Chancellor seemed somewhat reluctant to confirm that that was the case. Furthermore, paragraph 114 of the Government’s response to the rape review sets out that the Government have already asked the Law Commission to review section 41. I ask the Minister: which is it? Have the Government already asked the Law Commission to review section 41? If not, will he show his unequivocal support for that course of action by voting for new clause 68?
The Parliamentary Under-Secretary of State for the Home Department (Chris Philp)
I hope that this is not the last time I serve under your chairmanship on this or any other Committee, Sir Charles.
Chris Philp
There is a lot to speak to in this group of new clauses, all of which cover the extremely serious question of the evidence given by rape complainants and other victims of sexual violence before the court and the need to make sure that they are properly looked after and that no one is deterred from coming forward with their claim. It would be terrible if people had an allegation and did not feel able to make it because they were concerned about the issues that we have talked about this afternoon.
I will take each new clause in order. New clause 57 talks about the rules around the disclosure of counselling or therapy sessions in some circumstances. It is important to set out how the law currently stands. There are already significant safeguards, and it is worth going through them. First, the police may request advice from prosecutors on whether something might be a reasonable line of inquiry. If they believe that medical notes might be a reasonable line of inquiry, they are allowed to approach the counsellor. They are not allowed to approach the counsellor simply because they believe such notes exist; that is allowed only if they believe the notes would support a reasonable line of inquiry.
If the notes do exist and if there is a reasonable line of inquiry, the police may approach the therapist to ascertain the situation, and the therapist may confirm or not confirm that there is a reasonable line of inquiry to pursue whether the notes do or do not exist. If they do exist, and if there is a reasonable line of inquiry, the therapist or counsellor does not disclose the relevant notes unless the victim gives their consent. The victim can withhold their consent and say, for whatever reason—understandably, in many cases—“I am not comfortable having that disclosed.” Unless there is a court order compelling disclosure, which is a significant process that involves going to the court to get an order, the notes are not disclosed.
If the victim agrees that the notes can be disclosed, that does not mean they will necessarily be produced in evidence or disclosed to the defence. That will happen only if there is material capable of undermining the prosecution or, conversely, capable of assisting the case for the defence. So there are several steps to go through before very sensitive, private and personal information gets disclosed, one of which is the victim’s own consent. That can be overridden only by an order of the court.
Sarah Champion (Rotherham) (Lab)
I appreciate how sensitively and proactively the Minister is responding. The problem seems to be the perception as opposed to the reality on the part of the victim and also on the part of the police who, from my constituents’ experience, were routinely saying, “Unless you give us that information, we cannot proceed with the case.” That has a chilling effect, which is why I am pushing for clarity and also a change in the law so that the guidance that should be there now would necessarily flow from that change in the law.
Chris Philp
I accept the point that there are instances, such as those that the hon. Lady referred to in her speech and I am sure exist more widely, where victims have had things said to them that are basically not appropriate and that either misrepresent the law as it currently stands or have the effect of deterring someone who would otherwise want to proceed with a case. That is probably one of the things that contributes to the unacceptably low level of rape prosecutions at the moment.
Paragraph 20 of the rape review report explicitly includes working with the police and getting them to take a different approach, frankly, to the one that the hon. Lady described in her speech and intervention. That will avoid the chilling effect. A moment ago, I laid out the law as it stands: it provides significant safeguards, including the victim’s own consent. The issue is not the law, but how the law is being described to victims. That is why this issue is not so much for legislation but for the police and others to communicate more appropriately with victims. I assure the Committee that that is absolutely at the heart of the Government’s agenda for the rape review and other work.
Alex Cunningham
Will the Minister confirm that the particular issues that I raised on new clause 68 are covered by the review? Can he totally clarify that?
Chris Philp
Yes. The Law Commission has been commissioned already and the remit, to which it has agreed—it has not been debated—is to examine the law, guidance and practice relating to the use of evidence in prosecutions of serious sexual offences and to consider the need for reform in order to increase the understanding of consent and sexual harm, and improve the treatment of victims. It covers all the areas that we have discussed.
Section 41 relates to the disclosure of a victim’s personal sexual history—obviously a very private, personal matter. We are all concerned that that provision may in some cases discourage, or deter, people from making complaints. Under section 41 of the Youth Justice and Criminal Evidence Act 1999, there is a general prohibition on the admission of evidence or questions in cross-examination relating to the sexual history of the complainant apart from four very specific exceptions listed in subsections (3) and (5). Those exceptions are narrow and limited, and the judge’s consent—permission —is required in advance; the defence cannot just bring out that history in court.
Besides having one of those conditions met, further criteria must be met: first, the evidence cannot be designed simply to impugn the credibility of the complainant; secondly, it must relate to specific and relevant instances of behaviour; and thirdly, the refusal of permission might render the verdict of the jury unsafe. That second set of criteria are applied after the court has examined whether one of the four very specific circumstances are met. That is why in 92% of cases no such evidence is adduced—a good thing, frankly. That practice will be considered by the Law Commission, however, as per the request in new clause 68.
The review has been commissioned and will examine the matters that we all agree are important and sensitive and where a delicate balance has to be struck. Rather than legislating in haste now, albeit absolutely for the right intentions, I think we should let the Law Commission’s work unfold and proceed. That will not happen in time for the Bill because we will be on Report and Third Reading in just a few weeks’ time. However, there are other Bills—I will not be specific, but if Members look at the Queen’s Speech they can probably work out which ones—in which measures such as this might be made. I suggest to the Committee that that is the best way to proceed.
The Chair
I call Sarah Champion if she would like to respond before I call the shadow Minister.
Sarah Champion
My frustration is that we always promised jam tomorrow. It is always a report, a review or a consultation. All I want—and I believe the House wants—is for the justice system to be victim-centred rather than causing damage to victims of crime. I heard what the Minister said, and I am content to withdraw the new clause.
Alex Cunningham
I do not intend to press new clause 42 to a vote, but I hope that the Government’s future plans will recognise the need for a provision to better serve victims. Similarly, I was mindful of pressing new clause 68, but I am delighted by the clear statement from the Minister quoting, I believe, from the document referred to the Commission. I am satisfied that these issues will be looked at. I hope that it is not just an internal review by the Law Commission but will listen to the views of people outside, including me and my right hon. and learned Friend the Member for Camberwell and Peckham (Ms Harman).
Sarah Champion
I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 16
Threshold for imposing discretionary custodial sentence
“Section 230 of the Sentencing Act 2020 is amended as follows—
‘(2A) If the court finds that the offence is so serious that neither a fine alone or a community sentence can be justified for the offence, it must state its reasons for being satisfied that the offence is so serious (having regard to the principles in subsection (2B), and, in particular, why a community order with appropriate requirements could not be justified).
(2B) When forming an opinion under subsection (2), the court should take account of the following principles—
(a) Passing the custody threshold does not mean that a custodial sentence should be deemed inevitable. Custody should not be imposed where a community order could provide sufficient restriction on an offender’s liberty (by way of punishment) while addressing the rehabilitation of the offender to prevent future crime.
(b) Sentences should not necessarily escalate from one community order range to the next at each sentencing occasion. The decision as to the appropriate range of community order should be based upon the seriousness of the new offence, or offences.
(c) Section 65 of the Sentencing Code (a relevant previous conviction to be treated as an aggravating factor) should not be interpreted so as to push over the custody threshold the sentence for one or more offences that would not themselves justify custody.
(d) Where the offender being sentenced is a primary carer, imprisonment should not be imposed except for reason of public safety.’”—(Alex Cunningham.)
Brought up, and read the First time.
Alex Cunningham
I beg to move, That the clause be read a Second time.
I begin by thanking the Centre for Crime and Justice Studies for its work on this new clause. Its considered and thoughtful approach to reform in this area has been utterly invaluable.
This new clause amends the Sentencing Act 2020 to strengthen the custody threshold by making provision for sentencers to state their reasons when imposing a custodial sentence. We have tabled this new clause with a view to encouraging sentencers to use community-based sentences rather than short prison sentences. The benefit of community disposals has been discussed at length in the Committee, especially in our discussion on part 6, and I do not propose to go over those issues again in full.
The Opposition are interested in reforming the sentencing regime to guard in some way against short sentences, which evidence suggests may be associated with higher levels of reoffending than sentences served in the community, and during which there is little time to address the offender’s needs. The Lord Chancellor’s predecessor was acutely interested in reform in this area. In fact, while we are on the topic, I would be interested to hear an update from the Minister on the Ministry of Justice’s unpublished Green Paper that features sentencing proposals to reduce the use of short-term custody. I recognise that his Department’s position has moved on somewhat since then, but the paper may contain an evidence base that is helpful for legislators across the House as we seek to better our criminal justice system. Perhaps he can share some of its findings.
But the current Lord Chancellor is not as enthusiastic about radical reform in this area as his predecessor, so we have tabled a new clause that is a principled starting point for reform on this issue, which we hope the Government can adopt and build on. The aim of the new clause is to reduce the use of custody for less serious offending, for which there are better and more appropriate responses in the community sentencing framework.
The premise of reserving imprisonment for serious offences is already established in statutory terms in the Sentencing Act 2020, section 230 of which states:
“The court must not pass a custodial sentence unless it is of the opinion that — the offence, or the combination of the offence and one or more offences associated with it, was so serious that neither a fine alone nor a community sentence can be justified for the offence.”
However, it notes that the threshold is generally not applicable
“where a mandatory sentence requirement applies”.
But even though we already have statutory provision that should guard against it, HM Inspectorate of Probation’s 2019 inspection on “Post-release supervision for short-term prisoners” recognises that, in reality, people continue to go on an “expensive merry-go-round” of multiple wasteful short prison sentences.
The report noted that within the cohort of offenders on short prison sentences, women are disproportionally serving such sentences, with 15% of all female prisoners on them as compared with 6% of male prisoners, and that many in the cohort
“go in and out of prison for acquisitive crime associated with the dual diagnosis of mental health and addiction needs, but specific data are not available for this group.”
Even the Government’s sentencing White Paper shows little enthusiasm for the efficacy of short sentences in our current framework, describing them as offering
“temporary respite from offending behaviour”
and
“at best providing limited public protection, as most offenders continue to reoffend following release.”
Outside the strengthening of the threshold for remand for children, however, the Bill as we have it does not make reforms to improve our regime with regard to short sentences or custodial periods.
The new clause would address that missed opportunity in the Bill and build on principles already accepted in sentencing guidelines, enshrining them into legislation to better clarify the currently rather opaque statutory custodial threshold. Specifically, it aims to better ensure that sentencers are appropriately reserving custody for serious offences by better clarifying the assessment that sentencers are required to make, and that the impact of imprisonment on dependent children is considered in the sentencing of primary carers. The latter point is an important one, and we will discuss it more fully when we get to new clause 26.
The clause also limits the relevance of previous convictions in determining custodial sentences. For the principle of reserving imprisonment for serious offences to be met in practice, it would be helpful to separate the issue of persistent low-level offending from that of serious offending. There is a range of low-level offending behaviour that is exacerbated rather that eliminated by short sentences, and which would be much better addressed by appropriately severe community sentences. Importantly for the current Lord Chancellor, perhaps, the clause as it stands does not eliminate short sentences. Speaking to the Justice Committee in 2019, he explained he did not believe abolishing short sentences was the right way forward, and said:
“My own experience as a recorder teaches me that there are times when, however reluctantly,”
short term prison sentences
“should be available to judges and magistrates. For example, repeat offenders who fail to comply with community orders ultimately need the sanction of custody”.
The clause does not prohibit short sentences altogether; indeed the Opposition would have several reservations with that proposal, including the fact that it has been shown to lead to sentence creep.
Sarah Champion
My hon. Friend is making powerful points. Does he agree that the new clause would prevent the expensive merry-go-round of short-term wasteful prison sentences that do not ever address the nub of the problem? We are not trying to prevent short-term prison sentences, but to deal with the situation of the repeat offender going round and round, which costs so much and blocks up the system.
Alex Cunningham
That is most certainly the case. This is not just about cost, yet the cost to the Prison Service of accommodating people in prison even for very short periods is absolutely huge. The real effect, however, is not monetary; money is not the only factor. There is the whole issue of the effect on the family, and, as my hon. Friend said, the effect on the prospect of reoffending.
In Western Australia a ban on prison sentences of up to six months resulted in an increase in prison sentences over six months for law breaking that would previously had received a shorter prison sentence. It does not even go as far as introducing a presumption against short prison sentences, though this is an approach with something to be said for it and which has had some success in other countries, including my homeland, Scotland. Instead, the clause simply requires the court to explain why it believes a custodial sentence is appropriate and a community sentence cannot be justified. This will focus the mind of the court to ensure that custody is being used as the most appropriate option, not the simplest one. It also has the added benefit of improving accountability and understanding of sentencing decisions, which is important for public confidence in the criminal justice system.
As Adrian Crossley of the Centre for Social Justice said in one of our evidence sessions:
“We need to be much bolder about the amount of people we keep out of prison and deal with in the community. We can see clearly that in treating alcohol, drug addiction, mental health problems, literacy and numeracy, you are far more likely to have an effect on those key drivers of crime if you deal with people in the community than if you put them in prison. We could be much bolder in dealing with community disposals. There is a real risk of sentencing inflation here, of a prison population growing out of control and, in my view, of brutalising people who might otherwise be able to reform.”––[Official Report, Police, Crime, Sentencing and Courts Public Bill Committee, 18 May 2021; c. 42, Q58.]
Chris Philp
Broadly speaking, the Government are keen to see alternatives to short custodial sentences. That is why we have been forward in promoting alternatives, such as community sentence treatment requirements to ensure that people get mental health, drug or alcohol addiction treatment as an alternative to short custodial sentences. As the Lord Chancellor has said, however—the shadow Minister also quoted him—in some cases, as a last resort, short sentences are required where the offender is not complying with community alternatives. I think we are agreed that short sentences should be available as an option.
I hope that the shadow Minister is reassured to know that the proportion of our prison population serving a short sentence of less than one year, say, is small. I do not have the precise figure at my fingertips, but I am pretty sure that less than 5% of our total prison population is serving a sentence of less than a year. Already, therefore, the principle that community alternatives are better than a short sentence is being applied in practice.
The new clause in some areas simply repeats the existing law, but in other areas I disagree with its principles. In fact, four principles are laid out in the new clause, the first and second of which—that custody should not be imposed where a community sentence would suffice, and that the community sentencing range should not escalate on each occasion—are already included in the Sentencing Council’s “Imposition of community and custodial sentences” guidelines, which set out the approach that courts should take when deciding whether to impose a community or custodial sentence. The law is clear that custody should only be imposed where an offence or combination of offences is so serious that only a custodial sentence can be justified. Therefore, the first two of the four principles in the new clause are already enshrined in law.
The third principle of the new clause we disagree with on principle. It states that a relevant previous convictions should not push an offence over the custody threshold, where the current offence would not justify custody on its own. In effect, that element of the new clause says, no matter how many previous offences someone might have committed, “Don’t look at that when deciding how long to sentence someone for.” I disagree with that. When someone is before the court having committed a large number of previous offences, that is rightly treated as an aggravating factor, which makes custody and longer custody more likely. It is right that repeat offenders are sentenced more seriously than people who have, for example, committed a first offence. So that element of the new clause I disagree with on its own terms.
The final of the four principles in the new clause refers to not giving custody to an offender where they are a primary carer, except for reasons of public safety. A legal principle is already established in the case of Petherick that where an offender is on the cusp of custody, imprisonment should not be imposed where there would be an impact on dependents, which would make a custodial sentence disproportionate. The principle about primary carers is also reflected in the imposition guideline, and further to that the sentencing guidelines already say that where someone is a
“sole or primary carer for dependent relatives”
that is taken to be a mitigating factor.
The law as it stands gives some protection to primary carers. It does not go quite as far as the new clause, which I think goes too far; I do not think that someone being a primary carer should literally be a get out of jail free card. That person should be accountable and answerable for their crimes, if they have committed them, but their role as a care giver should be taken as a mitigating factor. That consideration is in law already, so for all those reasons, I do not support the new clause.
Alex Cunningham
I welcome the clarification around carers and sentencing, but it is still a fact that carers often find themselves in prison for short sentences when that could have been avoided.
I appreciate that the Government are making a commitment to look at short sentences and how they are set in the future. I hope that that work is done quite quickly, because I think it could drive tremendous change not just for defendants, or offenders, but for their families, and drive the rehabilitation to which my hon. Friend the Member for Rotherham referred earlier.
I do not intend to press the new clause. The Minister spoke about previous offences always being taken into consideration. I think that adds to the roundabout of people entering prison, leaving prison, entering prison, leaving prison, when the Government should ensure that such people have proper rehabilitative support rather than just their sentences being extended each time they appear in court for a similar offence. We need a much greater emphasis on rehabilitation in this country, and I hope that the Government recognise that. I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 18
Release of prisoners on Fridays or the day before Bank Holiday periods
“Section 23 of the Criminal Justice Act 1961 is amended by the insertion of the following subsection after subsection (3)—
‘(3A) Where a prisoner is to be discharged on a Friday or the day before a bank holiday, at the discretion of the governor of the prison they may be discharged on a day within the previous five working days that is earlier than the day on which the prisoner would otherwise fall to be discharged.’”—(Alex Cunningham.)
Brought up, and read the First time.
Alex Cunningham
I beg to move, That the clause be read a Second time.
The new clause makes a very simple amendment to the current discharging regime from the prison, which the Opposition believe would ensure that those leaving prison have the support that they need as they transition into the community.
May I begin by thanking Nacro for its invaluable help in drafting the clause and its essential work to support people leaving prison? The new clause would give prisons the option to release people who need community support and are due for release on a Friday or the day before a bank holiday period on an earlier day in that same week, to ensure that support is put in place ahead of the weekend. That would support rehabilitation and resettlement. It would allow release to be spread from the Monday to the Thursday to prevent a significant increase in releases on the Thursday, which could be difficult for prisons to manage. Similar legislation has already been passed in Scotland in the Prisoners (Control of Release) (Scotland) Act 2015, and we think that it is time to introduce similar provisions for prisoners in England and Wales.
Many people released from prison on a Friday face an almost impossible race against the clock to get all the support that they need in place before the weekend. Getting all the correct support in place can prove a challenge on any day of the week, but it is especially difficult on a Friday because many community services have reduced service on Fridays, and reduced or no service exists over the weekend. Prison leavers have a very limited time window in which to make all the necessary arrangements that are vital to their resettlement before services close up shop for the weekend. If the prison leaver is unable to access those services, the likelihood of their reoffending is significantly increased.
Another issue is that there is actually a spike in releases on Friday. The national data show that more than a third of custody leavers are released on a Friday, and that includes releases that were scheduled for the Friday as well as those who have release dates over the weekend or on a public holiday. This peak in releases adds significant pressure to service staff and can consequently lead to late releases and pressure on services in the community.
Our new clause addresses that by giving the governor of the prison discretion to spread releases over the previous five days so that we do not simply end up shifting the Friday spike into a Thursday spike. We know that the release day is critical for putting in place the foundation blocks for life outside prison. As well as needing to attend mandatory appointments with probation, prison leavers may need to attend the local housing office to secure somewhere to live.
Sarah Jones (Croydon Central) (Lab)
Does my hon. Friend share my experience as a Member of Parliament, which is that many people have come to my door on a Friday afternoon who have been made homeless for a particular reason or are in some kind of crisis, because they have found it almost impossible to get through to any services because people go home on a Friday? It is a very real thing. A question I always ask when I interview somebody to be a case worker is: “What would you do if someone comes to you on a Friday afternoon at half-past 4 and has nowhere to go?”. Although this seems such a simple new clause, it is incredibly important and could be the difference between someone slipping back into old ways or getting a bit of support that they need to rehabilitate themselves.
Alex Cunningham
That is most certainly the case. I may not have encountered as many as my hon. Friend, but I have had people in that situation who have nowhere to go. We find ourselves turning to local charities, but when it gets to 4.30 or 5 o’clock and somebody shows up, it is far too late to access even those sorts of support services.
Of course, the person may need to visit the jobcentre to make a universal credit claim or other benefits claims. They may need to see their GP or to attend community mental health or substance misuse services. No doubt there are many individuals who would have to do a number of things on that list. If they are unable to find somewhere to live, or to sort out necessary medication or financial support on the day, they may be left homeless over the weekend without vital medication and with only £46 to last until Monday when they can try to access services again. That can sadly lead to them falling back into old networks or habits just to get by.
It is therefore entirely in the Government’s interest to make resettlement as seamless as possible, to minimise any possible lapse into reoffending. There is a window of opportunity when people are released from prison, when they are most motivated to move forward in their lives. That can pass by if the barriers to resettlement and rehabilitation are too high. Nacro has said that it often hears from staff and professionals in other agencies working with people on release from prison how Friday releases have a huge impact on levels of hope and motivation. It has provided me with a few case studies that well illustrate the problems that Friday prison releases can cause.
The first is the case of M:
“M was released on a Friday before a bank holiday weekend after serving a year in custody. He has an addiction to heroin but, when released, was not given the prescription charts from the prison which were needed to determine the dose of methadone he needed. He was also not given a bridging prescription.
As it was late afternoon on a Friday, the GP from the substance misuse service had left and M and his resettlement broker were unable to get his medication.
M was vulnerable and entitled to priority housing. However, the local authority did not deem him to be priority need and, as it was a Friday afternoon, M didn’t have time to gather the further evidence needed to prove this before the weekend.
M spent the weekend sleeping in a known drug house and ended up using heroin. As part of his licence conditions, he was required to give blood samples and tested positive for drug use.
Releasing M earlier in the week would have meant faster access to the medical services and the medication he needed and increased his chances of finding a housing a solution more quickly.”
Something as seemingly small as the discharge day being a Friday had seriously disastrous consequences for M and put his rehabilitation and resettlement in serious jeopardy.
Nacro also shared the story of C:
“C was released from prison after serving a three-week sentence. On release, his Through the Gate mentor met him and went with him to present himself to probation, a train ride away.
On presenting to the local housing authority to make a homeless application, C was told to make an online application to receive an appointment with a housing officer for the next week.
C’s mentor contacted a local charity to which he could also make a homeless application and they asked him to come down on the following Monday. C also had to wait until the following Monday to go to the Jobcentre Plus to enquire about getting a deposit for a flat.
C slept rough that weekend. Had C been released earlier in the week, he would have been able to access these services faster without a three-night gap in which he had to sleep rough, which increased his chances of reoffending.”
Chris Philp
We do recognise that there are challenges in making sure that offenders leaving prison are given access to the services they need, so that they can get their lives back on track. However, Friday is a working day, and we would prefer to focus our efforts on making sure that those services are available on Friday, rather than on excluding Friday as a release day and therefore concentrating all the releases on just four days—Monday, Tuesday, Wednesday and Thursday—which, by definition, would mean that release numbers on those days were 25% higher than would otherwise be the case.
Sarah Champion
I hear what the Minister says, but the new clause would mean that we could address any issues on a Friday and before the weekend, when no staff are available.
Chris Philp
In terms of ensuring that people have access to the necessary services—we recognise that that needs to be done—significantly increased investment is being made to address the concerns that the hon. Lady has just raised. For example, in January this year—just a few months ago—the Government announced a £50 million investment to reduce crime and tackle the drivers of reoffending. That included work to help develop the Department’s approved premises—those are obviously important when somebody is coming out of prison—to provide temporary accommodation to prison leavers at risk of homelessness in five key probation areas. In addition, earlier this year—again, I think it was in January or February—an additional £80 million was announced, which was aimed at expanding substance misuse programmes. Those two initiatives, funded this calendar year with £50 million and £80 million, are aimed at tackling prisoner homelessness issues and, separately, drug addiction problems, so there is a real commitment to do more in this area.
I would like to turn to the question of Scotland—the shadow Minister’s native home. As he said, it legislated in 2015 to allow release not five days earlier, but up to two days earlier. A Freedom of Information Act request made just a few months ago uncovered the fact that over the six years that Scotland has had this provision, only 20 people have been released early under it, so it has not had an enormous effect in Scotland.
We would like to focus our efforts on making sure that when people are released on a Friday they are properly looked after, instead of increasing the numbers on Monday to Thursday—
Chris Philp
I was about to sit down, but I can see that the member of the Committee from a Scottish seat wants to intervene, and it would be churlish not to accept.
Allan Dorans
I thank the Minister for giving way. Does he accept that a significant number of people are imprisoned hundreds of miles from their homes, and being released on a Friday would prevent them from getting the necessary services locally? Does he also accept that the prison governor, having known the prisoner’s history in prison, is best placed to decide whether releasing him a few days early would benefit him and his opportunity to reintegrate into the community, thereby reducing his reoffending?
Chris Philp
I do understand the point, but public transport clearly does operate on a Friday and, indeed, on a Saturday and a Sunday for the most part.
It is instructive that, over the last six years, only an average of three people per year have been released early from Scottish prisons, suggesting that prison governors in Scotland, for whatever reason, have not chosen to use this power very widely. For that reason, it is right to concentrate our efforts on investing in rehabilitation services, as we are doing.
Alex Cunningham
I am hoping that the Minister is allowing me to intervene at the end of his remarks. He is concerned about increasing the number of people released from Monday to Thursday, but—I am sure he was listening attentively to my speech earlier—a third of all prisoners are currently released on a Friday. Some 33% or 34% of all prisoners are released on a Friday, and some of them could be spread over the previous four days, which would help services in trying to come to their aid.
I am concerned about what the Government might want to do. The question I pose to the Minister is: what are the Government going to do about the fact that such a high proportion of prisoners are released on Friday, to level it out a bit? I do not intend to press for a vote, but it is important that the Government consider what they are going to do about the huge spike on a Friday and, more importantly, about the lack of access to services. The Minister talked about investment in services, but if those services close down at half-past 4 on a Friday afternoon, they are no use to anybody being released from prison in those circumstances.
Chris Philp
I thank the shadow Minister for drawing attention to the statistic. As I said earlier, the focus is on investing to make sure that services are available—the £50 million and the £80 million. An additional consideration would be encouraging governors to make the release early in the day to avoid encountering services closing for the weekend.
The Chair
You do not have to give way, Minister. You are doing a very generous thing here in responding to interventions.
Hywel Williams
I thank the Minister for giving way, and thank you for your guidance, Sir Charles. I tried to intervene earlier, but the Minister was distracted by another colleague.
I raised earlier the fact that women prisoners from Wales are held very far away from their homes. Release can entail a whole day’s travel or even longer. However early in the day services are provided, it may be of no help whatever to people who have to travel cross country, perhaps by public transport, and who will not get back to their home communities until late evening.
Chris Philp
Yes, although I will probably sit down now. We are obviously looking at a very bespoke set of circumstances concerning female prisoners in Wales released on a Friday. I hear the concern about distances travelled in Wales, and I will undertake to raise that with my colleague the Prisons Minister, my hon. Friend the Member for Cheltenham (Alex Chalk).
Alex Cunningham
I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 19
Implementation of the Law Commission review of hate crime
“(1) The Secretary of State may by regulations implement any recommendations of the Law Commission following the conclusion of its review of hate crime.
(2) The power conferred by subsection (1) includes—
(a) power to amend primary legislation; and
(b) power to amend or revoke subordinate legislation.
(3) A document containing a draft of regulations under subsection (1) must be laid before Parliament not later than three months after the publication of the Law Commission’s recommendations, and that draft must be in a form which would implement all those recommendations.
(4) Draft regulations under subsection (1) must be laid before Parliament not earlier than 60 days, but not later than 120 days, after the document referred to in subsection (3) was laid before Parliament.
(5) The draft regulations laid before Parliament under subsection (4) must be in the form in which they appeared in the document laid before Parliament under sub-section (3), except that they may contain any changes which have been recommended by any committee of either House of Parliament which has reported on that document.
(6) A Minister must make a motion in each House of Parliament approving the draft regulations laid before Parliament under subsection (4) within 14 days of the date on which they were laid.
(7) Subject to subsection (8), if the draft regulations are approved by both Houses of Parliament, the Secretary of State must make them in the form of the draft which has been approved.
(8) If any amendments to the draft regulations are agreed to by both Houses of Parliament, the Secretary of State must make the regulations in the form of the draft as so amended.”—(Alex Cunningham.)
This new clause would require the Secretary of State to implement any and all recommendations made by the Law Commission’s review of hate crime. Draft regulations implementing the Commission’s recommendations would be subject to the super-affirmative scrutiny process (by subsections (3) to (5)), and would be amendable (under subsection (8)).
Brought up, and read the First time.
The Chair
With this it will be convenient to discuss new clause 25—Strategy to tackle misogynist attitudes in society—
“(1) Within 12 months of the passing of this Act, the Secretary of State must lay before Parliament a comprehensive national strategy to tackle misogynistic attitudes in society for the purpose of reducing the number of violent and non-violent offences perpetrated against women and girls.
(2) For the purposes of subsection (1) misogyny is defined as the dislike of, contempt for, or ingrained prejudice against, women or girls.”
This new clause compels the Government to commit to the creation of a comprehensive national strategy to tackle the misogynistic attitudes which underpin the abuse faced by women and girls in society for the purpose of reducing the number of violent and non-violent offences perpetrated against women and girls.
Alex Cunningham
I thank my hon. Friend the Member for Walthamstow (Stella Creasy) for her tireless work in drafting the new clause, as well as her efforts to draw attention to this important issue. I met her in the corridor on the way back to the Committee this afternoon, and she was wishing us all well—“everybody,” she said—in the hope that we could move this matter on. She knows that the community out there are watching closely, because they understand that it is this afternoon that I will be speaking to these new clauses.
New clause 19 would compel the Government to act on the recommendations of the Law Commission review on hate crime legislation, which we expect to be published later in 2021. As members of the Committee will be aware, the Law Commission’s remit for the review is to
“review the current range of specific offences and aggravating factors in sentencing”.
In its initial report published in September 2020, the Law Commission made several initial recommendations, one being that it explicitly supported the inclusion of “sex or gender” into the framework of protected characteristics. The effect of this would be to place “sex or gender” alongside characteristics that are currently protected by hate crime legislation—race, religion, transgender identity, disability and sexuality.
Unfortunately, history shows us that without a clear legislative vehicle for Law Commission proposals, it can be years until recommendations are implemented. That was the case with the 2014 Law Commission review into hate crime, which has yet to receive a response from the Government and has now been superseded by the more recent review.
For that reason, the Opposition wholeheartedly support new clause 19. Victims of misogynistic hate crime cannot afford to sit back and wait years for the Government to implement the Law Commission’s recommendations, if they choose to implement them at all. We have seen that happen before and we cannot allow it to happen again. We cannot have more dither and delay––something this Government are unfortunately all too keen to do. New clause 19 would use the statutory instrument process to enable the Government to introduce legislation to enact the commission’s recommendations. It has been drafted specifically to provide for parliamentary oversight of the introduction of the recommendations, including the ability to vote on them using the super-affirmative process.
While it is not possible to require the Government to act on recommendations that do not yet exist, this process would ensure that parliamentary time is made available for debate, scrutiny and amendment as soon as they do. Without new clause 19, there is a very real chance that the Law Commission’s recommendations will take years to be introduced into law and, given the current epidemic of violence against women and girls, that is time victims cannot afford. Taken in isolation, recognising misogyny as a hate crime will not be the silver bullet in the battle to tackle the way women and girls are treated as a whole. That is why we have tabled new clause 25 to stand alongside it.
In order to really take on violence against women and girls, we first need to recognise and treat the root causes that drive it. As the Minister must agree, a culture where misogyny is accepted without challenge, or shrugged off all together, underpins many of the violent and abusive crimes perpetrated against women and girls. As Sophie Maskell of the Nottingham Women’s Centre puts it so brilliantly:
“Misogyny is the soil in which violence against women and girls grows.”
As long as we see violence against women and girls as somehow being created in a vacuum, we will never be able to fully tackle it. If we really want to confront the growing threats women and girls face, we must be more ambitious than simply looking to tackle individual acts of crime and must divert our gaze to the cause. In this case, that cause is misogyny. We must accept that hostility towards women and girls is deeply engrained in our society and it is this toxic culture, and our combined failure to tackle it, that enables perpetrators to commit their crimes. Whether the crime is serious sexual assault, domestic abuse or wolf-whistling at a woman in the street, unless as a society we start to take misogyny seriously, we will continue to lose the battle.
I was reminded of the horrific and pervasive impact of misogyny recently when I met a group of inspirational young women from St Michael’s Catholic Academy in Billingham in my borough who are doing a project on the impact of sexual harassment on women and men. They were full of energy to tackle society’s challenges, but they told me that they did not feel like they were being listened to; that they did not have a voice. That was only a few weeks ago, and I promised them that I would give them a voice today in this Committee.
Cassidy Desira told me:
“Our trauma is often minimalized and stigmatized, because the alternative of taking it seriously is too uncomfortable… I believe the issue is that people don’t actually see the issue at all, or they plainly do not want to, they believe that they can see the world how they please, how they were raised, as the law is clean-cut, their outdated opinions won’t destroy someone’s life. Unfortunately, the law has failed assault victims many, many times.”
She went on to say:
“In my opinion, these ideas must be conveyed from the youngest ages possible, that means burning the victim-blaming ideology from the root, as sexual assault only gets worse over time. It starts with a whistle, soon the predator feels entitled to take it even further.”
Emily Barlow, another student at the school told me:
“Peer pressure is a very big reason as to why boys in particular feel the need to degrade girls. Pride. Many boys think of the comments and actions they say and make as normal, this is because sexual harassment has become so normalised that it has become second nature but the scary thing is that they don’t know they are doing it.”
The Parliamentary Under-Secretary of State for the Home Department (Victoria Atkins)
I thank the hon. Gentleman for his speech. He does not need to implore this Government to listen to the girls he has quoted. Not only are we listening, not only have we listened, but we are following through with a tackling violence against women and girls strategy that is truly ambitious and, I believe, an unprecedented effort to tackle the issues that the girls he quoted have to contend with.
As I said, we conducted the first ever call for evidence on tackling violence against women and girls. No other Government have gone out to the public as we have to ask girls and women for their experiences of what they face day in, day out in their lives. We opened the conversation to the whole of society, so men and boys were very welcome to contribute as well.
I set my officials the challenge of reaching a young woman in her 20s, getting the bus home from work at night, who would not normally respond to surveys. We would somehow try to find ways of reaching her. Not only did we try that in December, but following the awful events of earlier this year—I deliberately do not name anyone, because I am respectful of the family, but I suspect we know the events of which I speak—we reopened the survey, precisely because we understood that women and girls want to talk and to share their experiences.
That is when we received 160,000 further responses. Each and every one is being read and considered carefully in drawing up our tackling violence against women and girls strategy. However, because the Government place so much focus on crimes that disproportionately affect women and girls, we have also decided to focus not one, but two national strategies on such crimes. For the first time, therefore, we have split out domestic abuse from the catch-all phrase “violence against women and girls”, not because we are trying to de-gender it or to deny that the crime disproportionately affects women and girls, but because it is such a high-volume, high-harm crime that it deserves its own national strategy. Thus, we are giving it the focus it deserves in the domestic abuse strategy, which will be published later this year, after the VAWG strategy.
If nothing else has come out of recent events, it is that the range of offences that VAWG covers is significant, so we cannot pretend that a one-size-fits-all approach will suit all those crimes. We do not try to do that, and we are certainly not working towards that. We want to have tailored strategies fit for the 2020s, looking at both offline and online behaviour.
Sarah Champion
I hope the Minister is aware of how grateful I am for all the work she has done on this cause. She has really been a champion for it. Is she able to share with the Committee her thoughts about whether the crime is increasing or our awareness is increasing? Does she have any thoughts she can share about the root causes of this, and therefore how early prevention will stop it happening?
Victoria Atkins
It is a complicated answer to a complicated question. We know, for example, that some forms of crime are increasing, and there is ongoing academic research into some of those, but we have reason to believe that more women are reporting facing violent acts within sexual relationships. That encompasses a range of relationships, from intimate, long-term relationships to first dates. That is precisely why, on the Domestic Abuse Act 2021, we worked across the House with colleagues to clarify the law on the so-called rough sex defence, because we knew that women in intimate, long-term relationships and in shorter relationships were experiencing that. Through that Act, we also brought in the prohibition on non-fatal strangulation, and again we worked on a cross-party basis. There is emerging evidence, particularly on the latter, that more and more victims of domestic abuse, but also those in other types of relationships, are facing these acts within—to use shorthand—the bedroom. We very much wanted to put a marker in the sand to say, “This sort of behaviour is not healthy, and it is now not lawful.”
The thinking is that those sorts of behaviours have increased over recent years. The thinking behind that is that online pornography has had an impact. However, I refer the hon. Lady to the research that I commissioned when I was Minister for Women and Equalities on the impact of online pornography and attitudes towards women and girls. The Government published that a few months ago. It is fair to say that there are not quite the clear lines that some would expect, but there are common themes there, if I can put it as broadly as that. Online pornography is a factor with some crimes, but sadly violence against women and girls is—dare I say it?—as old as time. The ways in which a minority of men—I make that absolutely clear—see fit to behave towards women and girls is part of the Gordian knot that we must try to untie. It will be a longer-term process than this Bill or the next Bill that comes along when legislation is appropriate. It will require a cultural education journey, as well as shorter-term fixes.
I am very pleased that the hon. Member for Stockton North raised the Law Commission research. As part of our work on ensuring that the law is keeping up to date with modern practices, we have commissioned a lot of work from the Law Commission recently. I do not apologise for that. In fact, it gives me the opportunity to thank the Law Commission for the work it conducts, often looking into very complex areas of law and trying to find ways through in order to assist this place and the other place in updating the law.
The current investigation into hate crime illustrates that point very well. In 2018, we asked the Law Commission to consider the current range of offences and aggravating factors in sentencing and to make recommendations on the most appropriate models to ensure that the criminal law provides consistent and effective protection from conduct motivated by hatred towards protected groups or characteristics. The Law Commission published its consultation document in September. It was an enormous document—more than 500 pages and 62 separate questions. The Law Commission has been very clear that the consultation document was exactly that; it was not a report or a set of conclusions. It does not represent the Law Commission’s final position on any of the issues raised.
I make that point because the new clause invites Parliament to adopt those recommendations wholesale, and I think we are all duty bound to acknowledge that what we have had so far from the Law Commission is a consultation document. It is not its final report. Indeed, the Law Commission hopes to report in October, and of course the Government will give that report very, very careful consideration. I do not believe, however, that it would be appropriate for this Government, or indeed any Government, or any Parliament, to sign what is effectively a blank piece of legislation without seeing what the Law Commission is going to recommend.
We do not know what the consequences may be of the recommendations, nor what would be required to enact and enable them. It may be, for example, that changes to primary legislation would be required. I have to say that I feel uncomfortable at the prospect of the Bill permitting other parts of primary legislation to be overwritten—overruled—by virtue of the super-affirmative procedure. We must surely ensure that significant changes to the law should be properly debated by both Houses of Parliament in the normal way, with any Bill going through all the normal processes and stages.
I gently suggest to the Opposition that perhaps they should be careful what they wish for, because in this very Bill clause 59 gives effect to the Law Commission’s recommendation relating to the common law offence of public nuisance. It made that recommendation in 2015 and recommended that it be put into statute. If I recall our deliberations correctly, the Opposition opposed that very clause. I cannot imagine what the reaction would have been had we attempted to have this super-affirmative procedure imposed in relation to clause 59.
Sarah Jones
The Minister points to the risks of legislation being passed that defines something that is as yet undefined, and that being a blank cheque. Does she agree that our concerns about the protest element of the Bill, which gives the Home Secretary the right to define vast sections of the Bill after the legislation has been passed, relate to the same principle?
Victoria Atkins
No, no, no, on the very contrary. I do not want to get into very technical discussions about the ways in which hate crime legislation is drawn up, but the hon. Lady will know that there are reams of statute setting out various elements of hate crime and aggravating factors in sentencing. The proposed new subsection to which the hon. Lady refers in clause 54 relates to the definitions of
“serious disruption to the activities of an organisation which are carried out in the vicinity of a public procession, or…serious disruption to the life of the community.”
It is not a proper comparison in any way, shape or form, because that is a definition of two terms, whereas—who knows?—the Law Commission may be very radical in its reform and recommend that we change many parts of primary legislation that has been passed over several years by various Governments.
On new clause 25, we have already taken significant action, not least with the passing of the Domestic Abuse Act, but we must go further. That is why we will publish the tackling violence against women and girls strategy and a complementary domestic abuse strategy to focus all our attention on those crimes that disproportionately affect women and girls. I have already spoken about the importance of education and challenging some cultural attitudes that exist in corners of society. That will be very much part of the work of both of those complementary strategies, so I invite the Committee to await the Law Commission’s publication of its conclusions, and publication of the Government’s VAWG and domestic abuse strategies. I hope that the hon. Member for Stockton North will be content to withdraw his new clause.
Alex Cunningham
There are sufficient protections for Parliament in the secondary legislation process. Given what the Law Commission has done in the past, “radical” does not strike me as a word that would be applied too often.
Victoria Atkins
Will the Opposition then change their mind and support clause 59, which is a Law Commission recommendation to put public nuisance on the statute book?
Alex Cunningham
Indeed we will not.
The important thing here is to think about what we are trying to achieve. We are actually trying to achieve better protection for women and girls out there in society, day after day, week in, week out.
The Minister managed to talk about commissioned reports, two strategies and one survey. We have so much information in the system already that we know now that we need to act to deal with this. The evidence that I quoted from Emily and Cassidy bears that out. They are 15 or 16 and they were making it very clear that this is a major problem in society. I praise their school for facilitating discussions across the school. I hope that other schools will follow on, because that might build awareness and do away with us punishing people as, hopefully, society changes to the extent that women and girls are much more valued and not subject to the abuse that they suffer now, which may start as verbal but ends up very physical.
Sarah Champion
Will my hon. Friend comment on Nottinghamshire police’s pilot on misogyny as a hate crime? They thought it worked exceptionally well in challenging behaviour. That is the sort of thing that we need rolled out across the country.
Alex Cunningham
As I said earlier, we have evidence that things are working in some areas and that there is a real need to do much more across the country. For that reason, we should be strong enough to accept with confidence that we can examine the Law Commission’s recommendations later in the year and commit the decision making to a legislative Committee. On that basis, I shall press new clause 19.
Question put, That the clause be read a Second time.
The Chair
I am mindful that the Whips want to finish at 5 pm. We need to make progress if that is to be achieved.
New Clause 21
Minimum sentence for an offence under section 1 of the Sexual Offences Act 2003
“(1) This section applies where—
(a) an individual is convicted of an offence under section 1 of the Sexual Offences Act 2003, and
(b) the offence was committed after the commencement of this section and at a time when the individual was aged 18 or over.
(2) The court shall impose an appropriate custodial sentence (or order for detention) for a term of at least the required minimum term (with or without a fine) unless the court is of the opinion that there are exceptional circumstances relating to the offence or to the offender which justify its not doing so.
(3) In this section “appropriate custodial sentence (or order for detention)” means—
(a) in the case of an offender who is aged 18 or over when convicted, a sentence of imprisonment, and
(b) in the case of an offender who is aged under 18 at that time, a sentence of detention under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000.
(4) In this section “the required minimum term” means seven years.”—(Alex Cunningham.)
This new clause creates a statutory minimum sentence for rape of 7 years. A court must impose at least the statutory minimum unless it is of the opinion there are exceptional circumstances relating to the offence or to the offender which justify not doing so.
Brought up, and read the First time.
The Chair
With this it will be convenient to discuss new clause 22—Minimum sentence for an offence under section 4A of the Protection from Harassment Act 1997—
“(1) This section applies where—
(a) an individual is convicted of an offence under section 4A of the Protection from Harassment Act 1997, and
(b) the offence was committed after the commencement of this section and at a time when the individual was aged 18 or over.
(2) The court shall impose an appropriate custodial sentence (or order for detention) for a term of at least the required minimum term (with or without a fine) unless the court is of the opinion that there are exceptional circumstances relating to the offence or to the offender which justify its not doing so.
(3) In this section “appropriate custodial sentence (or order for detention)” means—
(a) in the case of an offender who is aged 18 or over when convicted, a sentence of imprisonment, and
(b) in the case of an offender who is aged under 18 at that time, a sentence of detention under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000.
(4) In this section “the required minimum term” means five months.”
This new clause creates a new statutory minimum sentence for adults convicted of “stalking involving fear of violence or serious alarm or distress” of 5 months. A court must impose at least the statutory minimum unless it is of the opinion there are exceptional circumstances relating to the offence or to the offender which justify not doing so.
Alex Cunningham
It is impossible for anyone who has not been through it to imagine the trauma of being raped. That is why I will start with the anonymous voice of a rape victim who was attacked on 29 February last year. The attack happened after a night out in Marlborough. The victim awoke to find 20-year-old Killian Hutchinson assaulting her before raping her. She told police officers that she felt unable to move, either out of fear or because she was intoxicated. She told the Swindon Advertiser:
“I felt immense shame, I felt like nobody would believe me, I felt like it would go nowhere and I’d…done all of this for nothing. But know that none of this is true, those who love you will believe you, the shame you may feel is misplaced. And it won’t all be for nothing.”
It is a scandal that her attacker was sentenced to imprisonment of just five years and three months after pleading guilty to rape.
For the benefit of the Committee, I point out that although the maximum sentence for rape is life imprisonment, there is not currently a minimum sentence set out in statute. Instead, the sentencing guidelines set a starting point for rape of five years, which can be reduced to only four years if certain mitigating circumstances exist. The Opposition simply do not believe that four years is a proportionate sentencing option for one of the most horrendous crimes that it is possible to commit.
There are two options available to us. One would be to ask the Sentencing Council to review the current sentencing guidelines as they apply to rape, but that would take time and there is no guarantee that it would recommend any changes. The second is to create a statutory minimum sentence for rape—a provision along the lines of section 51A of the Firearms Act 1968, which compels a court to hand down a minimum sentence unless there are exceptional circumstances relating to the offence, or the offender, that justify not doing so. In other words, this method creates a minimum sentence that can be set by Parliament, but still gives judges the power to depart from that sentence in exceptional circumstances.
New clause 21 uses this method to create a minimum statutory sentence for rape of seven years, which we believe is more proportionate to the devastating consequences of this crime. The new clause would not only ensure that the punishment better represented the crime; it would also bring our sentencing regime closer to that in other common-law jurisdictions around the world.
I thank the House of Commons Library for the extremely helpful briefing that it put together on this point. When I asked what the sentencing ranges for rape were in other common-law countries, its research showed the following. The minimum sentence for rape in India was increased in 2018 and now stands at 10 years. In Australia, the Australian Law Reform Commission said in 2020 that the penalty range for rape was 12 years to life imprisonment. In the state of Victoria, rape carried a standard sentence of 10 years; and in New South Wales, the standard sentence was seven years.
That prompts the question of why is the sentencing minimum for rape comparatively low in this country? Can the Minister honestly say that a four or five-year sentence can ever truly reflect the enormous damage caused by rape? I must be clear about this: we are not talking about the maximum sentence available to courts, nor the average sentence; we are talking about the minimum sentence that a rapist could conceivably receive, as the sentencing regime stands.
I have a suspicion that the Minister will argue that setting minimum statutory sentences undermines the law by removing the discretion afforded to judges by way of the sentencing guidelines. He was previously at pains to talk about average sentences handed down being somewhat higher than the minimum, but it is still the case that many rapists receive much lower sentences. Surely toughening the law around minimum sentences cannot be so disagreeable, as clause 100 of this very Bill ensures that repeat offenders in relation to certain crimes receive a statutory minimum sentence. As the Library briefing sets out:
“Clause 100 and Schedule 11 of the Bill would change the law so that for these offences a court is required to impose a custodial sentence of at least the statutory minimum term unless there are exceptional circumstances that relate to any of the offences or to the offender”.
If members of the Committee have suddenly had a feeling of déjà vu, they are correct in thinking that they have heard that phrase before. That is because new clause 21 would create a statutory minimum sentence for rape of seven years, unless exceptional circumstances relating to the offence or the offender would make it unjust to do so. In other words, new clause 21 is much the same as clause 100 of the Government’s Bill, which sets a minimum sentence for those convicted of repeated drug offences and burglaries.
That raises an important point. If the Minister says, as I suspect he will, that the Government cannot support new clause 21 because he does not agree with statutory minimum sentences, why does he support clause 100? What is it about the crimes under clause 100 that the Government feel deserve minimum sentences that rape does not? Why does it seem that the Government’s thinking is different when it comes to crimes that affect predominantly women and girls? Why is he happy to have minimum sentences for repeat drug offences, which, as I set out earlier in Committee, will greatly increase racial disparity in the justice system, but not for rape?
As an Opposition, we accept that increasing the minimum sentence for rape will not in isolation solve the greater issues at play, but it would ensure that the punishment is proportionate to the crime. Fundamentally, it would send out a clear message that the Government are serious about tackling the epidemic of violence against women and girls in society. The question for the Minister is simple. Does he feel that four to five years in prison can ever be a proportionate sentence for rape? If not, does he support longer sentences for rapists? He has indicated in the past that he does; now is the time for him to ensure that they are imposed.
Like new clause 21, new clause 22 would use the model of the Firearms Act to create a statutory minimum sentence for those who commit the most serious type of stalking offences. When researching the law in relation to stalking, I came across a very useful and persuasive report written by the Under-Secretary of State for Justice, the hon. Member for Cheltenham. The report was part of a campaign by someone who is now the Minister responsible for prisons to recognise the immense harm stalking causes and to increase the maximum sentence that applies to the more serious forms of stalking—stalking involving fear of violence or serious alarm or distress. The report makes a compelling case and it is little wonder that it led to the maximum sentence being doubled from five years to 10. However, it did nothing at all to ensure that the minimum sentence for this horrendous crime reflects the impact on victims’ lives.
As with rape, there is currently no minimum statutory sentence for those who stalk with the intention of invoking fear of violence or serious alarm or distress. Instead, judges follow the sentencing guidelines. As the law currently stands, someone convicted under section 4A of the Protection from Harassment Act 1997 can receive anything from 10 years in prison to a category C fine. Not only do we not agree with that, but it misrepresents the gravity of the offence. We also believe that the current system provides no deterrence to perpetrators of this terrible crime. Moreover, it is deeply troubling how few perpetrators of serious acts of stalking ever receive custodial sentences. One report notes that despite record numbers of convictions for stalking, 58% per cent of stalkers received only community or suspended sentences. How can it be right that more than half of stalkers never spend a day in prison? What sort of message does that send to the victims of this horrendous crime?
The purpose of new clause 22 is to end that undue leniency and ensure those convicted of the most serious form of stalking can expect to receive a custodial sentence as default, rather than as an exception. The question for the Minister is one of policy. Is it right for someone who stalks with the intention of causing fear of violence to receive a simple fine or a suspended sentence?
Chris Philp
As the shadow Minister made clear in his opening remarks, these are incredibly serious offences that leave victims traumatised and distressed, and the psychological scars are often borne for many years, if not decades, after the offences are committed. They are among the gravest offences that can be committed, and it is right this House takes them seriously. We have discussed the Government’s commitment to improving prosecutions in this area, and that was laid out by the Lord Chancellor in his statement yesterday following the publication of the rape review on Friday last week. More needs to be done, and the Government commitment in this area is clear.
Sarah Champion
I am listening intently to everything the Minister and his colleague are saying, which is great, but does the Minister understand that we have been promised all this for a long time? Although we are hearing his promises, we are awaiting the outcomes of reviews for which we are not given dates. Women are being murdered and abused.
Chris Philp
My colleague, the safeguarding Minister, tells me that the refreshed VAWG strategy will be published this year, in less than six months. I hope that gives some reassurance to the hon. Lady. If she is asking for action, I would point to the extra £25 million VAWG-specific funding, the new offences created in 2012 and the doubling of sentences in 2017. Those are not promises for the future, but actions that have been taken. She should also note that three quarters of those convicted of the offence get immediate custody, and that immediate custody of 16.9 months is more than three times longer than the minimum proposed in the new clause.
We want to make sure that those found guilty of those bad offences, which are terrible in themselves and can lead to escalation, are getting appropriately punished. But we are trying to strike a balance between that and the need to give the judge the ability to consider the individual case on its merits. That might include, for example, the perpetrator having mental health issues, where treatment might be more appropriate than custody. We need to tread carefully in striking that balance.
Given the action that has been taken and that three quarters of the offenders get immediate custody for a term much longer than the minimum proposed in the new clause, we are trying to strike a balance, which is not easy. There are good arguments on both sides of the issue, but we feel that the current sentencing laws make sense in this context. We have made a commitment to keep this under ongoing review and there are other legislative vehicles that could reconsider the issue. I am sure that the VAWG strategy, which my hon. Friend the safeguarding Minister is overseeing, will consider all the issues in the round, when it reports a little later this year.
These are difficult issues and difficult balances to strike, but I hope that I have explained why I believe the Government’s approach strikes that balance.
Alex Cunningham
On new clause 22 and stalking, it was interesting to listen to the level of sentencing imposed, and that is quite encouraging. But I think the Government recognise that more still needs to be done, and I hope that they will continue to consider the matter.
I also think that it would be helpful to have more publicity about what happens to stalkers who commit that crime, because women are still not confident about coming forward. If they learn that they will be taken seriously and that the people who are making their lives a misery may receive the sort of sentence the Minister outlined, more women may come forward and use the law. I hope that the Government will consider that suggestion.
I am disappointed that the Government are prepared to vote against increasing the sentence for rapists. I never thought that I would stand in Committee and believe that Conservative Members would think that it was okay to vote against a minimum sentence of seven years for rapists. I have spoken to rape victims—it was some time ago, not recently—and they tell me that the people convicted went to prison for four years, five years, seven years, but they, the victims, got a life sentence. They continued to live that ordeal. Then, of course, when they learned that the person was due to be released, they lived their lives in more fear because they were afraid that something dreadful might happen to them again.
Chris Philp
On a point of order, Sir Charles. In my speech, I said that 74% of people convicted of a stalking offence with serious alarm faced immediate custody. I should have been clear that that was all custody, not just immediate custody.
The Chair
Thank you for that point of order, Mr Philp; I am sure it was much appreciated by the Committee.
New Clause 23
Street sexual harassment
“(1) A person must not engage in any conduct in a public place—
(a) which amounts to sexual harassment of another, and
(b) which they know or ought to know amounts to sexual harassment of the other.
(2) For the purposes of this section, the person whose conduct is in question ought to know that it amounts to sexual harassment of another if a reasonable person would think the conduct amounted to sexual harassment of the other.
(3) The conduct referred to in subsection (1) is known as street sexual harassment.
(4) A person (A) engages in conduct which amounts to street sexual harassment, or which they know or ought to know amounts to street sexual harassment, of another (B) if—
(a) A engages in unwanted conduct of a sexual nature, and
(b) the conduct has the purpose or effect of—
(i) violating B’s dignity, or
(ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
(5) In deciding whether conduct has the effect referred to in subsection (4)(b), each of the following must be taken into account—
(a) the perception of B;
(b) the other circumstances of the case; and
(c) whether it is reasonable for the conduct to have that effect.
(6) For the purposes of this section, “conduct” includes speech, non-verbal attitudes such as gestures imitating or suggesting a sexual act, and obscene sound effects.
(7) A person who engages in any conduct in breach of subsection (1) is guilty of an offence.
(8) Where on any occasion an authorised officer finds a person who he has reason to believe has on that occasion committed an offence under section 1 above, he must give that person a notice offering him the opportunity of discharging any liability to conviction for that offence by payment of a fixed penalty, unless subsection (9) applies.
(9) This subsection applies (and subsection (8) does not apply) if a person has previously—
(a) been found guilty of an offence under subsection (1), or
(b) made payment of a fixed penalty issued under subsection (8).
(10) Where a person is given a notice under this section in respect of an offence—
(a) no proceedings shall be instituted for that offence before the expiration of fourteen days following the date of the notice; and
(b) he shall not be convicted of that offence if he pays the fixed penalty before the expiration of that period.
(11) A notice under this section shall give such particulars of the circumstances alleged to constitute the offence as are necessary for giving reasonable information of the offence and shall state—
(a) the period during which, by virtue of subsection (2) above, proceedings will not be taken for the offence;
(b) the amount of the fixed penalty; and
(c) the person to whom and the address at which the fixed penalty may be paid; and, without prejudice to payment by any other method, payment of the fixed penalty may be made by pre-paying and posting to that person at that address a letter containing the amount of the penalty (in cash or otherwise).
(12) Where a letter is sent in accordance with subsection (11)(c) above payment shall be regarded as having been made at the time at which that letter would be delivered in the ordinary course of post.
(13) The form of notices under this section shall be such as the Secretary of State may by order prescribe.
(14) The amount of a fixed penalty payable in pursuance of a notice under this section is £500.
(15) A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 3 on the standard scale.”—(Alex Cunningham.)
This new clause creates an offence of engaging in unwanted conduct of a sexual nature in public. Those found to have committed an offence would be given an on the spot fine of £500. Those who commit the offence on further occasions would liable to receive a fine of up to £1000.
Brought up, and read the First time.
Question put, That the clause be read a Second time.
The Chair
With this it will be convenient to discuss the following:
New clause 48—Reporting of data on homicide reviews—
“(1) The Secretary of State must collect and report to Parliament annually data and information relating to reviews under—
(a) Section 16M of the Children Act 2004 (child death reviews) where the death of the child was due to homicide,
(b) Section 9 of the Domestic Violence, Crime and Victims Act 2004 (domestic homicide review), and
(c) Section 23 of the Police, Crime, Sentencing and Courts Act 2021 (offensive weapons homicide reviews).
(2) The Secretary of State must set out in regulations the type of data to be collected and reported under this Section.
(3) Not later than three months after each report has been laid before Parliament, the Secretary of State must lay before Parliament a report which assesses the lessons which may be learnt from the data.
(4) The report prepared for the purposes of subsection (3) must be prepared by a person independent of the Secretary of State.”
This new clause requires the Secretary of State to collect and report annually to Parliament data on child death reviews where they involve homicide, domestic homicide reviews and offensive weapons homicide reviews. It would also require the Secretary of State to commission and lay before Parliament a “lessons learnt” review of the data.
New clause 55—Domestic homicide reviews—
“(1) Section 9 of the Domestic Violence, Crime and Victims Act 2004 is amended as follows.
(2) For subsection (2) substitute—
‘(2) The Secretary of State must in all cases which meet the circumstances set out in subsection (1) direct a specified person or body within subsection (4) to establish, or to participate in, a domestic homicide review.’
(3) After subsection (3) insert—
‘(3ZA) The Secretary of State must by regulations set out—
(a) the type of data relating to domestic homicide reviews which must be recorded, including—
(i) the number of domestic homicide reviews taking place across England and Wales annually; and
(ii) the time taken to complete each individual domestic homicide review;
(b) that the data must be recorded centrally in a Home Office database; and
(c) that the data must be published annually.’”
This new clause seeks to modify the Domestic Violence, Crime and Victims Act 2004 to force the Secretary of State to automatically direct a domestic homicide review in circumstances as outlined in Section 9 of the Act. The amendment also aims to improve data collection methodologies around domestic homicide reviews.
Alex Cunningham
The record will show that the Conservative members of this Committee voted against a minimum sentence of seven years for rape. The Minister pointed out some of our votes, and I am happy to put that on the record, too.
I again thank my right hon. and learned Friend the Member for Camberwell and Peckham, my hon. Friend the Member for Rotherham and my right Friend the Member for Kingston upon Hull North (Dame Diana Johnson) for their support on this new clause. New clause 24 would require the Lord Chancellor, within 18 months of the commencement of this Act, to commission a review of the effectiveness of current legislation and sentencing policy surrounding domestic abuse. The review, conducted by a senior member of the judiciary, would have a particular view to increasing sentences for domestic homicide, and reducing the gap in sentence length between domestic homicide and other homicides. The review would also examine the effectiveness of sentencing more broadly for domestic abuse.
It is a stain on our society that the number of female victims of murder in England and Wales is the highest that it has been since 2006, some 15 years ago. Rather than things getting better, things are getting dramatically worse. Staggeringly, almost half of female homicides––48%––take place in the family home. This flies in the face of the commonly held myth that murders take place away from the safety of the family home and are predominately committed by strangers.
As I set out earlier, while the Opposition fully support the Government’s introduction of clause 103, which increases the custodial sentence for murder committed by a person under the age of 18, we feel there is much more that could be done in this area. This is particularly the case when it comes to the staggering difference in sentence lengths between those who murder within the home and those who murder a stranger in the street. Once again, I will repeat Carole Gould’s words which I feel really ring true on this point:
“Why should a life taken in the home by someone you know be valued less than a life taken by a stranger in the streets?”
Even under the proposals set out in the Bill, a child aged 10 to 14 who commits murder after taking a weapon to the scene, say a public place, would be liable to a minimum of 13 years imprisonment. For a child of the same age who committed murder using a weapon in the family home, the minimum sentence would be eight years.
That gap exists not only for children, but for adults. As I have told the Committee before, Joe Atkinson was 25 when he murdered his 24-year-old ex-girlfriend in a jealous rage. For those who take a knife or weapon to the scene, such as those who stab someone to death on the street, the normal starting point for sentencing is 25 years, but Joe Atkinson was sentenced to just 16 years and two months, partly because the murder was committed using a weapon found in the victim’s home. But that is just one piece of legislation that new clause 24 would seek to review. The review would also examine the effectiveness of sentencing more broadly for domestic abuse in general.
As Committee members will no doubt be aware, we have seen a staggering increase in appeals for help during the pandemic from those suffering domestic abuse. Between April 2020 and February 2021, Refuge recorded an average of more than 13,000 calls and messages to its national abuse helpline each month, a truly horrifying number. This is an increase of more than 60% on the average number of monthly contacts at the start of 2020. The crime survey for England and Wales showed that 1.6 million women and 757,000 men had experienced domestic abuse between March 2019 and March 2020, with a 7% growth in police-recorded domestic abuse crimes. Each of those figures suggests that the current measures the Government are taking to address domestic violence and domestic homicide simply are not working.
In order to truly tackle these issues, we need a root-and-branch independent review of how our criminal justice system responds to domestic abuse and domestic homicide. This is too important a point to ignore, and I hope the Minister will support new clause 24 today.
Sarah Jones
I will not try to remake my hon. Friend’s argument, which was compelling. I shall speak to new clauses 48 and 55, which have been grouped with new clause 24. I have spoken previously in Committee about the importance of learning the lessons of homicides. The relevant clauses would introduce offensive weapon homicide reviews, and we are debating the Bill at a time when serious violence is at record levels. Of all homicides in the latest year, 37% were knife-enabled crimes. A large proportion of homicides involved offensive weapons: in the year ending March 2020, 275 homicides involved a sharp instrument, 49 involved a blunt instrument and 30 involved shootings. We welcome this part of the Bill. It is important that lessons are learned.
It is incredibly important that the pathways that lead people to be involved in homicides can be understood and that the knowledge is shared with the bodies that can make preventive interventions and changes. Every homicide review that is carried out has a life behind it, and at the heart of every review is a person who has lost their life, each with a complex set of circumstances that can help to inform multi-agency bodies to prevent another death and provide better protections for those left behind. We owe it to the families of victims to ensure that any lessons are learned.
The domestic abuse charity Standing Together recently reviewed domestic homicide review processes in London boroughs, and its report highlighted that not enough knowledge sharing is happening. With new clause 48, we are seeking to put in the Bill a requirement on the Secretary of State to ensure that data is collected and reported on for all homicide reviews. The new clause requires the Secretary of State to collect and report annually to Parliament data on child death reviews involving homicide, on domestic homicide reviews, and on offensive-weapon homicide reviews. It would also require the Secretary of State to commission and lay before Parliament a lessons learned review of the data.
New clause 55, which was tabled by my hon. Friend the Member for Pontypridd (Alex Davies-Jones), would modify the Domestic Violence Crime and Victims Act 2004 to force the Secretary of State to automatically direct a domestic homicide review in circumstances as outlined in section 9 of the Act. We also aim with the new clause to improve data collection methodologies around domestic homicide reviews.
New clause 55 would bring about a really important change. Section 9(4) of the 2004 Act states:
“The Secretary of State may in a particular case direct a specified person…to establish, or to participate in, a domestic homicide review.”
However, those should not just be particular cases at the Secretary of State’s discretion; it should be the norm that when a person aged 16 or over has died, and their death has or appears to have resulted from violence, abuse or neglect by a person who they were related to, in a relationship with, or in the same household, a domestic homicide review should be automatically directed.
There are some serious gaps in data that a more common application of domestic homicide reviews would help to bring to light. Unless I am wrong, in which case the Minister can correct me, the Home Office does not publish a record of the number of domestic homicide reviews taking place across the UK, the number of victims with a history of domestic abuse who have gone or remain missing, or the number of unexplained or sudden deaths of victims with a history of domestic abuse. In the UK, the Office for National Statistics provides an annual homicide report for England and Wales, while Scotland has its own similar dataset, but those figures only scratch the surface. The ONS finds that over the last decade in England and Wales, an average of 85 women a year are killed by a partner or ex-partner. That is 44% of all homicides against women, while in Scotland the proportion is 49%.
Although Government data tells us the number of victims, their gender and their relationship to the perpetrator, there is no further information around the crimes and their nature. Some cases may also be lost because the killer’s gender is not noted. Crucially, there is no information about the perpetrator’s history of domestic abuse. That makes it hard to understand the relationship between domestic abuse and homicide, even on the most basic level.
Eight women were killed in the first three days of 2012, and in the same year, Karen Ingala Smith, chief executive of the domestic violence charity Nia, began to name them on her WordPress page to count dead women. She trawled through articles, police reports and domestic homicides reviews to collect and memorialise the cases. In 2015, Ingala Smith and Clarrie O’Callaghan launched the Femicide Census following their work on the count. Their 10-year report, released in November 2020, paints a stark picture of homicide against women in the UK. According to their report, there has been no improvement: women are being killed by men at the same rate as a decade ago, averaging 143 deaths a year when including all killers, not just intimate partners.
The Femicide Census provides crucial context for each killing, providing data on everything from the location to the method of the killing to the perpetrator’s history of abuse. Femicide Census findings published in November 2020 show that over the past decade, 62% of cases encountered were of women who died at the hands of an intimate partner. Nearly two thirds of perpetrators were currently or had previously been in an intimate relationship with the victim, and 72% of female homicide victims died in their homes. The census also begins to link domestic abuse and femicide: 59% of cases involved a history of coercive control or violence, and almost half the perpetrators were known to have histories of abuse against women.
Victoria Atkins
New clause 24 seeks to establish a review into sentencing in cases of domestic homicide, following many tragic cases, including those of Ellie Gould and Poppy Devey Waterhouse, among others, where there remain concerns about the sentences handed down by courts. The Government recognise those concerns, which is why my right hon. and learned Friend the Lord Chancellor has already announced a review of sentencing in domestic homicide cases.
We are carrying out a targeted review of how such cases, focused on those that involve fatal attacks on intimate partners or ex-partners, are dealt with in our justice system, including how such cases are sentenced. It is the Lord Chancellor’s intention to make quick progress on this and to conduct the review while the Bill is making its way through the legislative process. The first phase of the review is under way to gather data and relevant information, following which the Lord Chancellor will consider the best form for the next phase of the review.
As for a review of domestic abuse legislation more generally, Parliament has just finished scrutinising, at length and in depth, the Domestic Abuse Act 2021. The Act contains many important reforms and proposals for the future, and our focus must be on implementing those reforms before reviewing their impact.
Turning to new clauses 48 and 55, clause 27(7) requires the Secretary of State to publish or make arrangements to publish the report of an offensive weapons homicide review, unless publication is considered inappropriate, in which case the Secretary of State must publish as much of the report as is considered appropriate for publication. Beyond that statutory requirement, we want to ensure that the recommendations from offensive weapons homicide reviews are shared, considered, debated and, where appropriate, implemented locally and nationally in England and Wales. We will therefore set up a new Home Office homicide oversight board to oversee the introduction of offensive weapons homicide reviews to monitor implementation of any findings and to support dissemination of learnings locally and nationally. We will set out further details about the board and how it will operate in due course.
We have already undertaken to create a central repository to hold all reports from DHRs. Once introduced, all historical reports will be collected to ensure that there is a central database on domestic homicides. That is a significant move forward. We are working closely with the domestic abuse commissioner on the detailed arrangements for that central repository so that it can be effective in helping all relevant agencies to access and apply the lessons learned from DHRs.
Finally, in relation to child death reviews, the “Working together to safeguard children” guidance sets out the statutory requirements regarding child death reviews. Established processes are already in place to collate and share learning from such reviews, and it is a statutory requirement that child death review partners make arrangements for the analysis of information from all deaths reviewed and that learnings should be shared with the national child mortality database. The database analyses the patterns, causes and associated risk factors for child mortality in England and disseminates data and learning from the reviews via its annual and thematic reports.
We are not persuaded that new clause 55 is necessary. The statutory guidance for DHRs makes it clear that where the criteria for a review are met a review should be conducted. The power in section 9(2) of the 2004 Act to direct that a review be undertaken is a backstop and, in practice, is rarely needed. However, when it is needed, it is exercised. Indeed, the Home Secretary exercised it recently in the case of the death of Ruth Williams, because Torfaen Council had refused to progress a DHR. Furthermore, we have introduced a process whereby the DHR quality assurance panel reviews all cases where a decision has been made not to conduct a review. The quality assurance panel is made up of members representing statutory bodies and expert organisations, and they are well placed to consider whether a DHR is necessary and to offer appropriate feedback. That process ensures that DHRs can commence as soon as practicable, without needing the Home Secretary to intervene in every case.
In summary, we agree that the lessons for all the homicide reviews must be learned and applied locally and nationally. Mechanisms are already in place, or are indeed being put in place, to ensure that that happens, so we are not persuaded that the two new clauses are necessary at this stage.
Sarah Jones
I am interested in the homicide board to which the Minister referred. We would appreciate more details about how that would work, and it would be nice if we could get them before Report. I am reassured about the number of databases that there are, because we know that violence breeds violence, and I suspect that there are themes across all these areas from which we could learn more. I ask the Minister to keep pushing the issue.
Alex Cunningham
I am not sure how the dual thing in one set of clauses works in protocols, but we have managed anyway.
Sir Charles, you will be thinking that if you got a fiver for every time you heard the words “review”, “survey” or “commission”, you would be able to fund your fishing fees for a week on the River Tweed. Here we are, asking for a further review, so that is another fiver in the pot towards your fees.
We believe that the Government are doing well across the domestic abuse agenda, but we think that much more could be done, in a much more positive way. I suppose the report card would say, “Could do better,” and we think that the best way to do that is through a formal review, captured in the legislation. That would compel things to happen, and then we would get the information we need on which to act. For that reason, I want to vote on new clause 24.
Question put, That the clause be read a Second time.
The Chair
With this it will be convenient to discuss the following:
New clause 32—Requirement for a pre-sentence report when sentencing a primary carer—
“(1) Section 30 of the Sentencing Act 2020 is amended as follows.
(2) After subsection (3) insert—
‘(3A) A court must make inquiries to establish whether the offender is a primary carer for a child.
(3B) If the court establishes that the offender is a primary carer for a child, unless there are exceptional circumstances before sentencing the offender the court must obtain a pre-sentence report containing information to enable the court to make an assessment of the impact of a custodial sentence on the child.’
(3) After subsection (4) insert—
‘(5) In this section—
(a) “child” means a person under the age of 18; and
(b) “primary carer” means a person who has primary or substantial care responsibilities for a child.’”
This new clause amends section 30 of the Sentencing Act 2020 to make clear the requirement for a sentencing judge to have a copy of a pre-sentence report, considering the impact of a custodial sentence on the dependent child, when sentencing a primary carer of a child.
New clause 33—Duty of the court to state how it has considered the consequences for the child when sentencing—
“(1) Section 52 of the Sentencing Act 2020 is amended as follows.
(2) After subsection (9) insert—
‘Offenders who are primary carers
“(10) A court sentencing a primary carer for a child must state how the best interests of the child were considered in determining the sentence (including, if appropriate, consideration of the views of the child).
(11) A court sentencing a pregnant woman must state how the best interests of the baby were considered in determining the sentence.
(12) In this section—
(a) ‘child’ means a person under the age of 18; and
(b) ‘primary carer’ means a person who has primary or substantial care responsibilities for a child.’”
This new clause amends section 52 of the Sentencing Act 2020 to require a sentencing judge to state how the best interests of a child were considered when sentencing a primary carer of a dependent child.
New clause 34—Welfare of child to be a distinct consideration when sentencing a primary carer—
“(1) After section 227 of the Sentencing Act 2020, insert—
‘227A Restrictions on imposing imprisonment on a primary carer
(1) This section applies where a court is considering imposing a custodial sentence on—
(a) a primary carer for a child, or
(b) a pregnant woman.
(2) The sentencing court must—
(a) consider the impact of a custodial sentence on the child or unborn child, and
(b) presume (subject to victim impact and any other sentencing considerations) that a non-custodial sentence is in the best interests of the child or unborn child.
(3) In this section—
(a) “child” means a person under the age of 18, and
(b) “primary carer” means a person who has primary or substantial care responsibilities for a child.’”
This new clause would create a requirement for a sentencing judge to consider the impact of a custodial sentence on a child when sentencing a primary carer of a dependent child.
New clause 35—Welfare of child to be a distinct consideration when determining bail for a primary carer—
“(1) Section 4 of the Bail Act 1976 is amended as follows.
(2) After subsection (9) insert—
‘(10) Where a court determines whether to grant bail in criminal proceedings to a person to whom this section applies who is a primary carer for a child or pregnant, the court must—
(a) consider the impact of not granting bail on the child or unborn child; and
(b) presume (subject to victim impact or other relevant considerations) that it is in the best interests of the child or unborn child for bail to be granted.
(11) In this section—
(a) “child” means a person under the age of 18, and
(b) “primary carer” means a person who has primary or substantial care responsibilities for a child.’”
This new clause would impose a requirement for the judge to consider the impact of not granting bail on a child when determining, in criminal proceedings, whether to grant bail to a primary carer of a dependent child.
New clause 36—Data collection in relation to prisoners who are primary carers—
“(1) The Secretary of State must collect and publish annual data identifying—
(a) how many prisoners are the primary carers of a child,
(b) how many children have a primary carer in custody, and
(c) the ages of those children.
(2) In this section—
(a) ‘child’ means a person under the age of 18, and
(b) ‘primary carer’ means a person who has primary or substantial care responsibilities for a child.”
This new clause would impose a requirement on the Secretary of State to collect and publish data on the number of prisoners who are the primary carers of a child and the number of children who have a primary carer in custody.
Alex Cunningham
The new clauses fall broadly into three categories: sentencing provisions, which is new clauses 32, 33 and 34; provisions relating to determining bail, which is new clause 35; and provisions relating to data collection, which is new clauses 26 and 36. I will speak to them in that order.
I would like to thank Women in Prison for its helpful input to the new clauses, and I recognise the excellent work of the Joint Committee on Human Rights, whose members have promoted new clauses 32 through to 36 and carried out forensic work on the matter in recent years.
An estimated 53,140 children are affected by their primary carer going to prison each year. The mother is more likely to be that primary carer, and as the 2007 Corston report notes, as many as 95% of children are forced to leave their home when their mother goes to prison. That separation can be extremely traumatic for children, and they go on to face a huge upheaval in their lives as a result of something that is no fault of their own.
As Georgia, a young woman who was 15 years old when her mother was sentenced to prison, eloquently put it to the inquiry by the Joint Committee on Human Rights:
“This is the thing I always think about, and I think back to it quite a lot. I know my mum did wrong and deserved a punishment, but if you were to stand my mum up in that box with me and my brother, and someone turned around and said ‘Do you sentence these three?’, would the judge look at it differently?”
We know that the primary carer is often also at risk of losing employment and their home, even after a short period in prison. Research has shown that, even among those who do not lose their home, many will face problem debt, which consequently will still leave the children vulnerable to homelessness. As Women in Prison notes:
“The imprisonment of a household member is one of ten adverse childhood experiences known to have a significant negative impact on children’s long-term health and wellbeing, their school attainment, and later life experiences, including life expectancy and the likelihood of being imprisoned themselves.
Significantly, experiencing parental imprisonment increases a child’s own risk of involvement with the criminal justice system, with over two thirds of prisoners’ sons going on to offend themselves.”
Sarah Champion
I support the new clauses, because I have yet to see a positive reason for women going into prisons. As my hon. Friend is saying, the impact on children is dramatic, but it is not only the fact that children are more likely to themselves face criminal actions; it is also that, on every measure, children going into care fail to achieve their potential. We really are damning children by doing this to their mothers.
Alex Cunningham
We certainly are. I quoted the figure earlier; some 95% of children end up leaving their home when their principal carer goes to prison, which bears out what my hon. Friend says.
The 2017 Farmer review found that family ties are a factor in reducing reoffending, which has attendant benefits for all our communities. The Government’s own 2018 female offender strategy acknowledges that
“custody results in significant disruptions to family life”
and that many women
“could be more successfully supported in the community, where reoffending outcomes are better.”
Sentencers are already expected to consider the impact on child dependants, but it seems that in reality the current guidelines are not applied rigorously or consistently across all cases.
The Joint Committee on Human Rights found in its 2019 inquiry “The right to family life: Children whose mothers are in prison” that despite the fact that the Sentencing Council had strengthened its guidance to judges and magistrates about the need to consider dependent children,
“evidence to the inquiry clearly indicated that this guidance is not being satisfactorily adhered to in practice and the question remains whether these steps go fast or far enough to guarantee children’s rights.”
Taken together these clauses will strengthen sentencers’ existing duties to ensure that they are applied consistently across all cases and that, as a result, children’s rights are guaranteed.
I will now consider the new clauses that deal with sentencing provisions. New clause 32 amends section 30 of the Sentencing Act 2020 to make clear the requirement for a sentencing judge to have a copy of a pre-sentence report, considering the impact of a custodial sentence on the dependent child, when sentencing a primary carer of a child. The Joint Committee has raised concerns about the current quality and use of pre-sentence reports and in its inquiry was told that pre-sentence reports were
“vitally important in ensuring that courts have all the information necessary about dependent children before sentencing a primary carer,”
but written evidence from Dr Natalie Booth noted that they were used
“inconsistently and ineffectively in many cases”.
New clause 33 amends section 52 of the Sentencing Act 2020 to require a sentencing judge to state how the best interests of a child were considered when sentencing a primary carer of a dependent child. New clause 34 would create a requirement for a sentencing judge to consider the impact of a custodial sentence on a child when sentencing a primary carer of a dependent child.
The Opposition believe that these new clauses can help address the current inconsistency that I previously referred to by explicitly requiring sentencers to give due regard to the impact of a sentence on any dependent children and their welfare. As the Joint Committee on Human Rights notes:
“These new clauses merely reflect what ought to, but sadly often does not, happen—to consider and respect the rights of the child when a primary carer is sentenced”.
As Dr Paradine of Women in Prison told the Committee in one of our evidence sessions:
“It is completely unacceptable that the measures up until now have not resulted in the change needed. This is an opportunity to make that small change. It does not require anything different, but it will make sure, hopefully, that the things that should be happening in court do happen, that imprisonment is not having a disproportionate impact on children and that their best interests are safeguarded.”––[Official Report, Police, Crime, Sentencing and Courts Public Bill Committee, 20 May 2021; c. 150, Q255.]
I think Dr Paradine puts it very compellingly; these are things that are already meant to happen in the court, yet in many cases they still do not.
Mr Robert Goodwill (Scarborough and Whitby) (Con)
The hon. Gentleman is making some very valid points and no one should underestimate the effect on a child of having either parent sent to jail. He talks a lot about “a primary carer”. As a parent, I see myself as sharing the care of our children. Is he assuming that in every case the woman would be the primary carer, or does he consider in these days of equality that it would be for the judge to decide who might be the primary carer?
Alex Cunningham
The right hon. Gentleman makes a very valid point. There are some cases where a lone male parent is the principal carer who may find himself in the dock facing a prison sentence. Naturally, the provisions apply to both men and women.
Dr Paradine puts it very compellingly: these are things that are already meant to happen in the court, yet in many cases they still do not. The Government clearly intend these things to happen, so I hope they can support the new clauses backed by the Joint Committee on Human Rights today and tighten provision in this area.
New clause 35 would impose a requirement for the judge to consider the impact of not granting bail on a child when determining in criminal proceedings whether to grant bail to a primary carer of a dependent child. This is an important measure because we know that even short bouts in custody can have very destabilising effects on families. The Government’s own figures show that a significant proportion of women remanded into custody do not go on to receive a custodial sentence. In 2019, 66% of women remanded by the magistrates court and 39% remanded by the Crown court did not go on to receive one. Again, under the current provisions, consideration should be made of child dependants but in practice it is not, and so again we ask the Government to support the amendment backed by the JCHR and tighten practice in this area.
Finally, I turn to the data provisions in new clauses 26 and 36. New clause 26 would place a duty on the Secretary of State to collect and publish data on the number of offenders who receive a custodial sentence and who are parents of children or are pregnant at the time of their sentencing. New clause 36 would impose a requirement on the Secretary of State to collect and publish data on the number of prisoners who are the primary carers of a child and on the number of children who have a primary carer in custody. Both clauses speak to the same issue: there is an absence of data on this topic that needs to be addressed.
As the JCHR stated in its legislative scrutiny report for the Bill:
“The Government still does not know how many mothers of dependent children are in prison. It also does not know how many children are separated from their mother by her imprisonment. Despite this Committee’s repeated recommendations that it should collect this data, the Government’s approach continues to keep a group of children invisible to policy makers, the courts, the Prison Service and other support services.”
The Committee continued:
“A lack of data inhibits the ability of the Government, prisons and local authorities to design and evaluate services for children whose mothers are in prison. It prevents children whose primary carer has been separated from them, through no fault of their own, from accessing the support that will help them during and after their mothers’ sentence, and ultimately shows a blatant disregard for the rights of the child, as well as their parents’ right to family life.”
The absence of data is impacting service provision and ultimately preventing the Government from being able to improve measures to support primary carers and their children who are affected in this way, and means that we cannot measure progress in this area. These simple and straightforward duties on the Government are the next necessary step in improving the criminal justice system’s response to these cases, and I hope that the Government can support them today.
As Women in Prison recognises, this is a timely opportunity for the Government to
“make progress on their ambitions to radically reduce the number of women in prison included in their strategy and National Concordat on women in the criminal justice system, as well as the recommendations of the Farmer Review on women.”
Given that three in five women in prison have children under the age of 18, the proposed changes are needed now, as the Bill ushers in sentencing reforms.
The new clauses have cross-party support and will safeguard the welfare of the thousands of children who experience the profound impact of maternal imprisonment by ensuring that it is at least at the forefront of sentencers’ minds. All we ask is for the Government to ensure that what should happen does happen. Often, it simply does not.
The inclusion of the new clauses in the Bill will ensure that the data on the welfare of children is captured and adequately reported, so that those children can access the services and support that they need and deserve.
Chris Philp
I am conscious that we are perhaps not progressing as quickly as we had hoped, so I will try to be concise, while answering the questions properly.
The Government accept that we should avoid imprisoning a primary carer unless it is absolutely necessary, but we should also be clear that when someone commits a serious criminal offence, the fact that they are a primary carer should not confer immunity from imprisonment on them. There is clearly a legitimate criminal justice objective in imprisoning some people in some circumstances. We should not get into a position whereby simply having a dependant renders the offender immune from custody—that is not a reasonable proposition. However, we should ensure that custody is used as a last resort and sparingly. I will answer the questions in that spirit.
New clause 26 concerns data collection. The Government fully support the intention behind it, but we do not believe that it is necessary. We already take steps to obtain details of dependent children or pregnancy both at court, as part of the pre-sentence report, and again on reception into custody. However, it is true that the information is not collected centrally, or in a standard format. The Government intend to enable that information to be collated better and to improve its availability. The underlying data exists; it is simply a question of collation and we intend to respond positively to the various JCHR recommendations on that.
Again, we support the principle behind new clause 32, but do not believe that it is necessary. The sentencing code is already clear that
“the court must obtain and consider a pre-sentence report before forming the opinion unless, in the circumstances of the case, it considers that it is unnecessary to obtain a pre-sentence report.”
Existing legislation already asks the court to obtain that PSR. In addition, further guidance was introduced in 2019 for probation practitioners. It sets out that for those who are primary carers with responsibilities for children, a request to the court for an adjournment to prepare the PSR is considered mandatory. That is to ensure that the impact of a custodial sentence on dependants is considered.
As we set out in the sentencing White Paper last September, we are currently running a pilot in 15 magistrates courts. It includes targeting female offenders, who, among other cohorts, have been identified as having particular needs, for fuller written PSRs.
I hope that it is clear from the sentencing code, the guidance issued to probation practitioners and the pilot work that the matter is already being addressed through existing measures. That is probably one reason why so few women are in prison.
Again, the Government are sympathetic to the sentiment behind new clauses 33 and 34, but, by law, a court is already required to state its reasons for deciding on a sentence, and courts are required to take into account the impact on dependants at various points in the sentencing process. We have already discussed the Petherick case, which established that, on the cusp of custody, cases where there is a dependant should be treated in a way that takes that into account. That can tip the scales so that a custodial sentence that might otherwise have been considered proportionate becomes disproportionate.
As we have discussed, courts are also required by law to follow relevant sentencing guidelines issued by the independent Sentencing Council, unless the court is satisfied that it would be contrary to the interests of justice to do so. Reflecting the principles in the Petherick case, which we have spoken about, the guideline on the imposition of community and custodial sentences is clear that
“on the cusp of custody, imprisonment should not be imposed where there would be an impact on dependants which would make a custodial sentence disproportionate to achieving the aims of sentencing.”
Alex Cunningham
I emphasise to the Minister that new clause 26 does not stop or rule out custody for anybody who is a carer or primary carer.
I am grateful for the Minister’s comment on data. As I have said before in this room, we know how poor data is across the Ministry of Justice, judging by the number of times I get answers to parliamentary questions that state that the data either is not available or cannot be provided without disproportionate cost. I very much welcome that commitment to collecting data in this area and others.
The Minister talked about pre-sentencing reports. I emphasised in my speech that these reports must very much take into consideration the child, not just the offender. Perhaps we need to do more work with our sentencers to make sure that they are aware of the restrictions on them when it comes to remanding people in custody or sentencing them to it.
On bail, I understand what the Minister is saying, but there is still a very high proportion of women and carers being remanded in custody who do not go on to receive a custodial sentence. That plays back to my point that perhaps we need to do more work with sentencers to make sure they are applying the law in the fairest way possible.
In the light of the explanations from the Minister, I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
Ordered, That further consideration be now adjourned. —(Tom Pursglove.)
Police, Crime, Sentencing and Courts Bill (Nineteeth sitting)
Thursday 24th June 2021
(2 years, 10 months ago)
Public Bill CommitteesRead Full debate Police, Crime, Sentencing and Courts Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 24 June 2021 - (24 Jun 2021)
The Committee divided: - Ayes: 6 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 6 / Noes: 9 - Question accordingly negatived.
The Chair
I remind Members, as always, to switch their phones to silent, and that Mr Speaker does not permit coffee or other drinks or food in Committee. Members should observe social distancing. Following a decision of the House of Commons Commission on Monday, we may now sit a little closer—one metre apart —but it is important to continue observing social distancing measures. Members should wear face coverings in Committee unless they are speaking or exempt. Please pass your notes to Hansard or email them to hansardnotes@parliament.uk.
Today we will consider further new clauses to the Bill and complete the remaining Committee proceedings by the deadline of 5 pm, as set out in the Order of the House of 16 March and the Order of the Committee on 18 May. New clauses that have been grouped with amendments to the Bill will not be debated again, but when we reach a new clause that has been debated, a member of the Committee may indicate that they wish to move the clause formally and divide the Committee. The selection list for today’s sitting is available in the room. I remind Members who wish to press a grouped new clause to a Division that they should indicate their intention when speaking to the clause.
New Clause 27
Voyeurism: breastfeeding
‘(1) Section 67A of the Sexual Offences Act 2003 (Voyeurism: additional offences) is amended as set out in subsection (2).
(2) After subsection (2), insert—
“(2A) A person (A) commits an offence if—
(a) A records an image of another person (B) while B is breastfeeding;
(b) A does so with the intention that A or another person (C) will look at the image for purpose mentioned in subsection (3), and
(c) A does so—
(i) without B’s consent, and
(ii) without reasonably believing that B consents.”’—(Alex Cunningham.)
Brought up, and read the First time.
Alex Cunningham (Stockton North) (Lab)
I beg to move, That the clause be read a Second time.
Good morning, Mr McCabe. It is a pleasure to serve under your chairmanship for perhaps the last time on this Committee. New clause 27 would ban taking photos or film footage of someone who is breastfeeding, without their consent. I, for one, was extremely surprised when I found out that our criminal law does not make sufficient provision for that. I am tremendously grateful to my hon. Friend the Member for Manchester, Withington (Jeff Smith), who brought this to my attention following an awful incident in his constituency, for his invaluable work campaigning on the issue since then. I am also grateful to my hon. Friend the Member for Walthamstow (Stella Creasy), who has taken up the matter with characteristic enthusiasm and tenacity. The House is extremely fortunate to have MPs of such calibre campaigning on such vital issues.
I also put on the record our sincere thanks to Julia Cooper, the Manchester, Withington constituent whose case I just referred to, for beginning the campaign to let women breastfeed in peace. Julia has led an impressive campaign, and I hope the Committee will answer with unequivocal support. As of this morning, her campaign petition has more than 26,500 signatures. To illustrate the issue, I will share some of Julia’s testimony about the distressing incident that she was subjected to. She said:
“I visited a park…with my baby for a walk with another mum. At the end of the walk we sat on a bench outside a café and fed our babies.
As I was breastfeeding, I noticed a man staring. He then attached a long-range zoom lens to his camera and began taking photos of me. I quickly turned with my baby to face away from him.
After the feed, I asked the man if he had taken my photograph, which he confirmed…I asked him to delete the photos and he refused, saying it was his right to take photos of people in a public space.
I am absolutely disgusted that this man has gone home with images of me and my baby on his camera, and it’s completely legal. As I said, I feel violated and discouraged from feeding my baby outside the house again.
I reported the incident to Greater Manchester Police, but the man I spoke to at the control room informed me, after having to come off the phone and check with colleagues, that indeed there is no law protecting breastfeeding women from unwanted photography in public.
I understand that women who breastfeed are protected by the Equality Act 2010 in public places like parks, as well as private businesses such as shops and restaurants. But only against discrimination.”
It is clear to me that there is a massive void in the rights and protections of breastfeeding women in public spaces. I find Julia’s case disturbing and upsetting, and I am sure that the Ministers share my feelings. Pregnant Then Screwed also took evidence about this issue from their supporters, and I will share one more case study that shows that the law is simply not strong enough to provide breastfeeding women with the protection they need. The woman I quote says that
“this happened to me with my second when she was a month or so old. Took her for a walk in the carrier…but she wouldn’t calm down. I stopped at a park bench to see if a bit of breastfeeding would work.
I never felt fearful of doing this with my first. A guy walked up to the bench, less than a metre away (during the pandemic) and just started taking photographs of me.
I told him to stop, to which he said he was a ‘photographer from Italy’. I then said I didn’t care if he was a photographer, he can’t take photos without asking permission and asked him to delete them. He then walked off.
I finished feeding my baby and then started to walk home…This is what I reported to the police and unfortunately it isn’t a crime. They were sympathetic and just sorry they couldn’t do much else.”
Both women had gone to the police, who were sympathetic and wanted to help but could not do so because of the current limits in the law. The new clause builds on the Voyeurism (Offences) Act 2019, which this House passed three years ago in response to concerns about upskirting. The Act created the criminal offence of upskirting, and offenders now face up to two years in jail and being placed on the sex offenders register for taking a picture of a person’s clothing without their knowing, with the intention of viewing their genitals or buttocks.
The law was supported by Parliament on the basis that it banned a degrading practice, with the intention of deterring perpetrators, better protecting victims and bringing more offenders to justice. As the law specifies, the location of the body where the Act applies is below the waist, which means that taking a photograph or video footage of a woman breastfeeding without her consent is not currently illegal. By amending the list of prohibited acts under the Sexual Offences Act 2003 to include breastfeeding, we can send the same message that taking photographs or videos of this nature without a person’s consent is wrong.
There are many issues at play here, including the protection of women from harassment in public spaces, but there is another reason why this is so important. Breastfeeding has short and long-term health benefits for both mother and child. It is estimated that if all UK infants were exclusively breastfed, the number hospitalised with diarrhoea would be halved, and the number hospitalised with a respiratory infection would drop by a quarter. Mothers who do not breastfeed have an increased risk of breast and ovarian cancers. It is because of those benefits to mothers and babies that the current UK policy is to promote exclusive breastfeeding for the first six months of an infant’s life, yet the UK has one of the lowest breastfeeding rates in Europe.
An analysis of global breastfeeding prevalence found that in the UK only 34% of babies receive some breast milk at six months compared with 49% in the US and 71% in Norway. In 2017, Public Health Research carried out research into why the UK’s breastfeeding rates are so low. It found that breastfeeding in public is something that mums are concerned about. The mothers polled are most likely to say that they would feel embarrassed breastfeeding in the presence of people they do not know. Indeed, 63% responded as such; 59% feel the same about their partner’s family; and 49% felt that way about siblings and wider family members.
A poll carried out by “Woman’s Hour” in 2019 found that three in 10 women who formula-fed their baby said that they would like to have breastfed, but felt embarrassed to do so in public. New mothers have more than enough on their plate as it is. They should not have to feel anxious about feeding their child in a public space. The Royal College of Paediatrics and Child Health recommended back in 2017 that the Department of Health and Social Care introduce legislation to support and protect breastfeeding infants and their mothers in public places.
The public are in favour of the measure, too. A YouGov survey of more than 5,000 UK adults conducted last month found that 75% of respondents agreed that taking photos of women breastfeeding without their consent should be made illegal. The amendment has wide support across all groups who support new and breastfeeding mothers, including the National Childbirth Trust, Pregnant Then Screwed, the Breastfeeding Support Network, and Mumsnet. I hope that today the Government can show their support as well so that we can protect breastfeeding women from such disturbing and intrusive acts, and together we can finally put an end to it.
The Parliamentary Under-Secretary of State for the Home Department (Victoria Atkins)
It is a pleasure to serve under your chairmanship, Mr McCabe. I welcome the opportunity to debate this unacceptable, creepy and disgusting behaviour in Committee. I pay tribute to Ms Cooper and to the hon. Member for Manchester, Withington, who asked me a question on this very subject in the last Government Equalities Office oral questions. I also pay tribute to the many women who have shared their stories in recent months, including those who have responded to our survey to shape the violence against women and girls strategy and to tell us about their experiences.
All the facts that the hon. Gentleman has cited about the health reasons for breastfeeding are very apparent and obvious. The reasons why mums and babies benefit from breastfeeding are well established. In what can often feel like a very busy, hectic and sometimes even—dare I say it?—harried time with a newborn, breastfeeding provides a moment of tenderness, of love, and of innocence. To have a stranger defile that moment by trying to take photographs or video it—that is not something that would occur to most decent, right-thinking people. I very much understand why this new clause has been tabled, and I want to support the mothers and the women who are facing this.
There might well be offences that could cover this behaviour, but I fully accept that from the descriptions the hon. Gentleman has given, those offences are not clear to either to the public or the police. The Government do not shy away from tackling the use of the internet and imagery as forms of criminal behaviour. We already introduced the offence of revenge pornography in 2015, and during proceedings on the Domestic Abuse Act 2021, we listened to victims of threats to use revenge porn and we acted in that legislation to extend the offence to include threats to disclose private sexual images with an intent to cause distress. Of course, the upcoming Online Safety Bill will set the framework for companies and the duty of care on tech companies in relation to members of the public.
However, we absolutely agree that it is right to ask whether the law has kept up to date with the emergence of the internet. That is why we have asked the Law Commission to review the law around the taking, making and sharing of intimate images without consent, to see where there are gaps, and to get the Commission’s advice on how people can be protected from such behaviour. That review looks at the question of voyeurism offences and non-consensual photography in public places, including the issue of images taken of breastfeeding. On 27 February this year, the Commission published a consultation paper on its review, which ended in May, and I understand that it is due to publish its final set of recommendations in the spring of next year.
We await the results of the Law Commission’s report. We want to wait for the results of that report, because it is foreseeable that the Commission’s work will include a body of recommendations knitting together the various types of offending behaviour that it has identified, and suggesting how the law should be redrafted or improved to tackle such offences. As such, I am in the position of asking the Committee—and, I suspect, later on, the House —to bear with us while we await the results of that report.
I understand the anger and frustration, and the fear that some women feel about breastfeeding in public in these circumstances. Given the Committee’s approval of the Law Commission’s work, however, it would be inconsistent, to put it mildly, of me not to say that it is best for us to wait for that work, so we can get a programme of recommendations from it about the overall use of such intimate images on the internet, and how the criminal law should address the issue.
Alex Cunningham
I appreciate the conciliatory tone of the Minister’s response. I understand what she is saying, but when we debate new clauses and amendments, the Government constantly refer to yet another commission review and say that we must recognise that there are gaps in the law, and we find that we have to wait, wait and wait again. She says that we still await the final set of recommendations, so it could be well into next year before we get any sort of finality. It could be even after that before any action is taken to deal with this offence. Despite the Minister’s conciliatory tone, I feel that in order to protect women now, it would be good to press the matter to a vote.
The Chair
I have had no indication that any member of the Committee wishes to move new clause 30. If that is correct, we now come to new clause 31.
New Clause 31
Maximum sentence for publishing the identity of a sexual offences complainant
‘(1) Section 5 of the Sexual Offences (Amendment) Act 1992 is amended as follows.
(2) In subsection (1), leave out “and liable on summary conviction to a fine not exceeding level 5 on the standard scale”.
(3) After subsection (1), insert the following subsection—
“(1A) A person guilty of an offence under this section is liable—
(a) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine not exceeding level 5 on the standard scale, or both, or
(b) on summary conviction, to imprisonment for a term not exceeding twelve months, or a fine not exceeding level 5 on the standard scale, or both.”’—(Alex Cunningham.)
Brought up, and read the First time.
Alex Cunningham
I beg to move, That the clause be read a Second time.
As the law currently stands, complainants of sexual offences are granted lifelong anonymity by way of the Sexual Offences (Amendment) Act 1992. Section 1 of the Act prohibits the publication of any information in any place that could lead members of the public to identify a complainant of a sexual offence. Section 5 makes a breach of the prohibition a criminal offence, the maximum sentence for which is a fine not exceeding level 5 on the standard scale. In some cases, identifying a complainant could result in an offender being prosecuted for contempt of court, but in many situations, the facts of the case will not allow that course of action to be taken.
What that means in practice, as the law currently stands, is that someone who reveals online the identity of a complainant will more often than not receive only a simple fine. I hope that the Minister will agree with me that that seems to be a wholly inadequate sentencing power for a crime that can do so much irreparable psychological damage to victims of sexual offences.
Sarah Champion (Rotherham) (Lab)
I am grateful to my hon. Friend for tabling the new clause, because I have dealt with survivors to whom this has happened and I think that the law needs to catch up with where we are, in that social media and the digital world are accessed much more now than they ever were before. The new clause makes complete sense in trying to bring the two back in line.
Alex Cunningham
My hon. Friend is, of course, correct: technology is moving so quickly, and so many different things happen in so many different ways. People can even get pictures on their watches these days and talk to their family back home. The fact that that sort of technology exists can be exploited for all the wrong reasons as well. It is important that we act in this space.
During Justice questions last month, my right hon. Friend the Member for Tottenham (Mr Lammy) raised the case of Phillip Leece to illustrate just how horrific a crime this can be. For members of the Committee who may not have heard the question asked by the shadow Secretary of State for Justice in the Chamber, I will quote what he said:
“In 2019…Leece viciously raped a woman on her way home from a night out; she was 26 and soon to be married. Adding insult to injury, he published the name of his victim online”
and made disparaging remarks about her appearance, claiming that she was
“too fat and disgusting to rape.”—[Official Report, 18 May 2021; Vol. 695, c. 522.]
For naming and humiliating his victim online, he received a pathetic and insulting fine of only £120. That in no way reflects the enormous trauma that his action caused the young girl he raped.
During Leece’s trial, his victim read out her impact statement to the court and spoke of the devastating impact that the attack and her subsequent naming had on her. She was once a happy young woman looking forward to getting married, but those events caused her to suffer severe psychological harm, which led to suicide attempts and incidents of self-harm. In her own words, she explained how her naming online changed the way she lived:
“The post made me feel incredibly insecure and sad for the days and weeks afterwards.
It increased my anxiety about leaving the house and it got to the point that I wouldn’t even go into the back garden whilst letting the dog out. I imagined that he would know where I lived and would be able to find me.
The post also led to me eating more and gaining even more weight…with the thought that the bigger I am, the less likely this will happen to me again.”
I am sure that all members of the Committee, regardless of political affiliation, will share my view that a fine in no way reflects the severity of Leece’s actions. I appreciate the Lord Chancellor’s sharing this view. In response to the shadow Justice Secretary’s question about Leece, the Lord Chancellor indicated that he was going to act in this area. Specifically, he said that the Government were
“already making preparations to see what can be done to improve and strengthen the law in this area, because, make no mistake, the naming of victims of sexual abuse—and other types of offending as well where anonymity is an essential part of the process—is not just wrong, it is criminal and we will do whatever it takes to help stamp it out.”—[Official Report, 18 May 2021; Vol. 695, c. 523.]
That view is shared wholeheartedly by the Opposition, and that is why we tabled new clause 31. It is another of those small but significant steps that we are asking the Government to take now, rather than waiting. It is clear to us that the current provisions of the Sexual Offences (Amendment) Act 1992 are simply no longer fit for purpose in the modern world. It is perhaps telling that the last time Parliament reviewed that Act was more than two decades ago, in 1999. I am sure that all of us would accept that since 1999 the world has changed a great deal—that was illustrated by my hon. Friend the Member for Rotherham. Online publishing and social media mean that things written on the internet attract an audience far greater than they would have in 1999. Furthermore, things published on the internet have much greater longevity and potential exposure. For those reasons, we need an urgent review of how the Act is functioning.
New clause 31 is a simple amendment: it would give judges the power to sentence offenders who name complainants of sexual offences to a custodial sentence of up to two years. That would bring this sentence in line with the sentence for contempt of court. Given that the Lord Chancellor has previously expressed sympathy for reforming this area, we look forward to the Minister’s support for the new clause.
The Parliamentary Under-Secretary of State for the Home Department (Chris Philp)
It is, as always, a pleasure to serve under your chairmanship, Mr McCabe.
I thank the shadow Minister for raising this extremely important issue. The case he mentioned of Phillip Leece and his victim was truly terrible, and the impact on the victim was clearly appalling. As the shadow Minister said, the Lord Chancellor, in answering an oral question a short while ago, expressed the Government’s support for the principles enshrined in the new clause. We think that more needs to be done—we agree with the shadow Minister on that.
However, we would like to make sure that we do this in a thoughtful way, covering all the potentially related offences. The new clause, as drafted, covers the particular offences under the auspices of the 1992 Act. We take the view that some other prohibitions on naming victims and other restrictions would benefit from similarly enhanced penalties. Specifically, the new clause would not cover anonymity for victims of female genital mutilation, nor victims of forced marriage, who we think are equally deserving of protection and support, as I am sure Opposition Members would agree. In addition, other automatic protections apply to participants in youth court proceedings—defendants as well as victims—and discretionary protections can be imposed or handed down by the court to protect the identity of witnesses.
Besides the cases covered by the new clause, there are these other examples—female genital mutilation, forced marriage, youth proceedings and witness protection—that require action. This is an area, as the Lord Chancellor signalled, where the Government want to act in the near future by coming up with proposals that cover all these things. I know there is frustration: we have a Bill before Parliament, so why not do something now? However, other Bills are coming forward in the remainder of this Session that could be used as vehicles to legislate on this. It may be that the Lord Chancellor will say more about that before Report, because it is being worked on actively at the moment.
Alex Cunningham
Is the Minister giving a commitment that this particular offence will be covered by some form of legislation from the Government in this Session?
Chris Philp
I am coming close to saying that. I am saying that this is something that the Government are currently looking at. The Government accept the need to act on this, as the Lord Chancellor said, and on those other offences as well. I do not want to say too much before we are in a position to do so properly, but there are intentions to put in place a process to properly review these offences, on an expedited basis, with the intention of legislation then following. That is where the Government are coming from on this. I hope that it will be possible to say more on Report.
Mr Robert Goodwill (Scarborough and Whitby) (Con)
Does my hon. Friend agree that he is probably coming as close as he can—within his pay grade—to making that commitment?
Chris Philp
I thank my right hon. Friend for reminding the Committee and me exactly where I sit in the hierarchy of Government. As a former senior Minister himself, he will know that my authority is limited in these circumstances, and indeed in all circumstances. I hope I have given a pretty clear indication, so far as I am able to, of where the Government will come out on this. We essentially accept the point, but change needs to be done properly, and we need to catch the other offences as well. I hope that gives the Committee a clear sense of where we are on this.
Alex Cunningham
I do not know what my pay grade is. I do not think I get paid, do I? The Minister talked about the principle of all this, but we get to a point where we have to leave principles behind and take some action. I assure him that I am also approaching the matter in a thoughtful way, with the support of my hon. Friends and of victims. We would not have tabled the new clause if we did not feel so very strongly about it.
Chris Philp
I appreciate the shadow Minister’s point, but the truth is we will not have had the chance to deal properly with all the other offences by Report, which is in just a week and a half, on 5 July. I wish I could, as he puts it, strike a deal, but as my right hon. Friend the Member for Scarborough and Whitby rather cruelly pointed out, I do not have the authority to commit the Government here. I hope I have given a very clear indication of our intention. We will not get all these details worked out in the next week and a half, but we will get this sorted out together.
Alex Cunningham
I am sorry to make the Minister uncomfortable about his pay grade, but we need to move forward with this and there is an opportunity to do so. The Minister says that it is only a week and a half until Report, but this new clause has been on the amendment paper for many weeks, and we have been planning for this Committee for many months. I think there has been sufficient time for the Government to do the right thing here, and I intend to push the matter to a vote.
Question put, That the clause be read a Second time.
Sarah Champion
I beg to move, That the clause be read a Second time.
The new clause places a requirement on the Secretary of State to collect and publish annual data on child sex offences, child exploitation offences and modern slavery offences. Data collection is vital to ensure appropriate policy responses, and that is even more important when it comes to crime. Publishing transparent crime statistics is key to understanding how the criminal justice system is working and whether victims are getting the justice they deserve.
New clause 38 asks the Government to collect and publish, by police force area, annual data on the number of child sexual offences, child sexual exploitation offences and modern slavery offences committed against children aged under 18 in England and Wales. There is a data blind spot when it comes to tracking a reported crime through to sentencing. Because of the way data is collected, this proves especially difficult for 16 and 17-year-olds against whom sexual offences are committed. I know that the Government are committed to tackling child abuse and exploitation in all its forms. The new clause would help in that fight, by filling in the blanks and allowing us to have an informed discussion on what needs to improve to ensure that victims get their day in court and criminals are brought to justice.
Despite older teenagers in particular being at high risk of sexual offences, due to the way that the data is collected they are often not included in the reported numbers on child sexual abuse. The tackling child sexual abuse strategy states:
“Over 83,000 child sexual abuse offences…were recorded by police in the year ending March 2020, an increase of approximately 267% since 2013… Due to the way this data is collected, and different sexual offences defined, these figures do not capture certain sexual offences committed against 16 and 17-year-olds, such as rape, as well as sexual assault committed against children over the age of 13.”
The Children’s Society’s analysis of the data shows that those two categories are the biggest groups of sexual offences reported to the police, which therefore indicates that the true scale of recorded sexual offences against children is very likely to be much higher. Collecting information is key to showing the true scale of sexual offences and to showing where the cliff edges are in the victim’s journey through the criminal justice system.
The Children’s Society previously found that
“54,000 sexual offences against children under the age of 18 were recorded by 43 police forces in England and Wales between 1 October 2015 and 31 September 2016.”
However, it stated that
“Only around 16% of offences reported where the investigation was completed resulted in charges, summons, community resolution or cautions against the perpetrator… For offences that did not result in action against the perpetrator the most common reason was evidential difficulties”.
Let us take the example of Margaret, aged 16. Throughout her life, Margaret had many interventions from children’s services. Margaret disclosed to family that she was raped and was a witness to another person being sexually assaulted. She disclosed that she was scared of reporting the offence, but did so with her family’s support. Long delays, a change of police staff and her mobile phone being taken for 10 months meant that Margaret eventually stopped supporting the police investigation. The case did not progress to prosecution and the young person remains at risk of sexual abuse.
We need to learn from these cases. New clause 38 would give us a clearer understanding of how many reported crimes against children drop out before a defendant is charged. That would enable us to make improvements in criminal justice. What we know is that a shockingly low number of crimes reported result in a successful conviction.
The Office for National Statistics reported in 2020 that there were more than 12,000 crimes flagged as sexual exploitation, but fewer than 2,000 child sexual exploitation charges were brought against perpetrators. There are several different crime datasets published each year, but none follows a reported crime right through to sentencing. The police and the Crown Prosecution Service must have the right tools to prosecute perpetrators, and that is where robust and transparent data collection comes in. Proper data collection will also enable local areas to plan appropriate safeguarding responses for all children under the age of 18 who are at risk of sexual offences or modern slavery offences in their area.
Figures from the ONS have shown that children are more likely than the general population to be victims of sexual offences, with young people aged between 15 and 19 accounting for nearly a quarter—23%—of all rape offences. I hope the Government will acknowledge the importance of better data collection in their response and will commit to providing the information on an annual basis, so that we can review the effectiveness of the current disruption tools, criminal offences and attrition rates for child sexual abuse and exploitation. I look forward to the Minister’s response.
Victoria Atkins
The Government recognise the importance of collecting data to inform policy and operational decisions and to see the effect of those decisions. I want to take this opportunity to reassure the Committee that there are already robust mechanisms in place across Government, the police and the criminal justice system for gathering, recording and publishing data. Through the Office for National Statistics, the Government routinely publish data for child sexual abuse crimes committed against children aged under 16 years old. Data for children aged between 16 and 18 is recorded differently, as there are no specific crime codes for this age group. In 2019, however, the ONS carried out analysis of sexual offences perpetrated against 16 and 17-year-olds and published its findings as part of the England and Wales crime survey. Offences relating to child sexual exploitation will be recorded using a variety of crime codes, including those for child sexual abuse and those relating to trafficking. As such, there are no specific crime codes for CSE, and police forces are required to flag child sexual exploitation offences when providing data to the Home Office.
Modern slavery offences committed against children are recorded and published by the police, the Crown Prosecution Service and the Ministry of Justice. The Crown Prosecution Service maintains a central record of the number of offences for which a prosecution commenced, including offences charged under the Modern Slavery Act 2015. All modern slavery offences committed against children are identified through the child abuse monitoring flag, and the Crown Prosecution Service definition of child abuse covers any case where the victim was under 18 years of age at the time of the offence. Through the ONS, the Home Office already publishes both the number of recorded crimes and the number of persons charged under part 1 of the Sexual Offences Act 2003. Alongside that, the Ministry of Justice already facilitates the collection and publication of data on the number of persons prosecuted, the number of persons sentenced and the length of sentences.
Sarah Champion
The Minister will not be surprised that I investigate the data quite routinely, and there are two problems that she might be able to address. First, when the ONS data come out, they tend to be a big lump —the data are not broken down into specifics. Secondly, she is talking about the data collected on charging, prosecuting and outcomes, but what we are arguing for is the need to look at the number of reported crimes.
Victoria Atkins
I will take those points away, because it is incredibly complicated, as the hon. Lady’s speech and, I suspect, my speech have demonstrated. We do not routinely publish data on the number of child victims by age, as the police record the data on offences rather than on the victims who have experienced them. I suspect that this is the nub of the hon. Lady’s point. I am told that the reason for that is that an offence may come to the attention of the police, but there might not be a specific intended or identifiable victim attached to it. Additionally, the same child may be the victim of multiple offences—indeed, we know that to be the case with gang exploitation—so we have used data gathered through the crime survey in order to try to inform our understanding of the number of victims and their ages.
The Home Office also publishes data on potential child victims of modern slavery who have been referred through the national referral mechanism, which is the framework for identifying and supporting victims of modern slavery. Of course, that stands apart from the criminal justice system. Someone may be referred to the NRM but might not participate or have a part to play in the criminal justice system. There are a great many data sets, but I take the hon. Lady’s point about the identification of child victims. We will see what more we can do.
Sarah Champion
I am grateful to the Minister for that reassurance, and I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 43
Offence of interference with access to or provision of abortion services
“(1) A person who is within a buffer zone and who interferes with any person’s decision to access, provide, or facilitate the provision of abortion services in that buffer zone is guilty of an offence.
(2) A ‘buffer zone’ means an area with a boundary which is 150 metres from any part of an abortion clinic or any access point to any building that contains an abortion clinic.
(3) For the purposes of subsection (1)—
‘interferes with’ means—
(a) seeks to influence; or
(b) persistently, continuously or repeatedly occupies; or
(c) impedes or threatens; or
(d) intimidates or harasses; or
(e) advises or persuades, attempts to advise or persuade, or otherwise expresses opinion; or
(f) informs or attempts to inform about abortion services by any means, including, without limitation, graphic, physical, verbal or written means; or
(g) sketches, photographs, records, stores, broadcasts, or transmits images, audio, likenesses or personal data of any person without express consent.
(4) A person guilty of an offence under subsection (1) is liable—
(a) in the first instance—
(i) on summary conviction, to imprisonment for a term not exceeding 6 months, or
(ii) to a fine not exceeding level 5 on the standard scale, or
(iii) to both; and
(b) on further instances—
(i) on conviction on indictment, to imprisonment for a term not exceeding 2 years, or to a fine, or to both; or
(ii) on summary conviction, to imprisonment for a term not exceeding 12 months, or to a fine, or to both.”.—(Sarah Champion.)
This new clause would introduce areas around abortion clinics and hospitals (buffer zones) where interference with, and intimidation or harassment of, women accessing or people providing abortion services would be an offence.
Brought up, and read the First time.
Sarah Champion
I beg to move, That the clause be read a Second time.
I am proud to speak to this clause, tabled by my hon. Friend the Member for Ealing Central and Acton (Dr Huq) and supported by more than 35 MPs from across the House.
As we come to the end of Committee stage, a significant portion of our debate has focused on the safety of women in public spaces, and I am grateful for that. We can all recognise, to a greater or lesser degree, that existing public order legislation does not provide the necessary framework to address women’s fear and concerns in public spaces.
This new clause raises a discrete problem—harassment outside abortion clinics. The issue has been raised in the House by my hon. Friend the Member for Ealing Central and Acton for several years, with great support from other Members on both sides of the House. As hon. Members will see on the amendment paper, the new clause has cross -party support from Members from five different parties.
Although my hon. Friend was driven to raise this issue by harassment in her own constituency, this is not a local issue. Figures from the Department of Health and Social Care and abortion providers indicate that in 2019 more than 100,000 women—or more than half of everyone who has an abortion—had to attend a hospital or abortion clinic that had been targeted by anti-abortion groups.
I want to make it clear that this new clause is not about abortion. A woman’s legal right to end a pregnancy is supported by the House and by the public and has been in statute since 1967. It is, however, about the ability of a woman to exercise this legal right without the fear of harassment or intimidation. Therefore, this new clause has a narrow purpose to introduce buffer zones 150 metres around abortion clinics, where certain activities designated as pressuring women about their decision to access abortion are banned.
Currently, around the country, anti-abortion groups engage in activity at the clinic gate seeking to deter or prevent women from accessing abortion care. This takes many forms, including the display of graphic images of dismembered foetuses, large marches that gather outside the clinic, filming women and staff members, following women down the street, sprinkling sites with holy water and handing out leaflets that tell women, falsely, that abortion causes breast cancer, suicidal intentions and can lead to child abuse. Recently, groups have been handing out advertisements for dangerous and unproven medication to reverse an abortion. This activity has been an almost permanent fixture outside several clinics for years. Abortion providers such as the British Pregnancy Advisory Service have collected thousands of accounts from women they have treated about the activities outside clinics and the impact it has had on them. In the past year alone, even during lockdown, this harassment has continued.
One woman, in Liverpool, reported in February:
“She told me that I should let God decide—that it will torture me for the rest of my life and don’t let them do it. She told me her daughter couldn’t have kids and I’m wrong for killing a baby…that I’ll have no luck in the future if I kill a baby.”
Another woman, in Bournemouth, said in December 2020:
“My partner was waiting in the car and he had one woman staring at him and walking around his car whilst showing him a cross. Both my children (both under 4) were in the car waiting with my partner…I felt uncomfortable walking out of the clinic knowing they were there.”
The mother of a patient in Bournemouth just last week said:
“The protester was stood by the entrance with a banner. My daughter is autistic and this procedure is stressful and traumatic—and when she realised they were outside it caused her to have a panic attack”.
Doctors and nurses are not immune to harassment, either. In Brighton in October 2020, one reported:
“There was a man in the entrance lobby—my colleague didn’t know what to do. He wouldn’t leave. He asked us if this was a place where ‘you kill babies’, if I ‘agreed with murdering babies’, and whether I was ‘happy to murder foetuses’.”
This is not a protest—the groups involved in this activity are very clear that they are not seeking to change lawmakers’ minds or amend the abortion legislation. Instead, they seek direct access to individual women who have no choice but to approach them as they access legal and essential healthcare. It is, quite simply, targeted harassment.
The solution is simple and has been used successfully across Canada, Australia and parts of the USA. We need to protect women seeking confidential medical care by making it clear that it is unacceptable to accost a woman at a clinic gate, harass her and lie to her about medical procedures.
We must also recognise that much of the legislation has been thoroughly inadequate at addressing the problem. I am sure the Minister will wish to mention that. The only law that has ever been successful in solving the problem at clinic levels is public space protection orders, which enable a council to create its own local buffer zone, but only three counties across the country have them in place, leaving more than 90% of affected clinics with nothing to protect them. That creates a postcode lottery of protection from harassment, and that is just not good enough. We need a national solution to this national problem. I hope the Minister will consider the impact of this activity on women, and I hope she will recognise that, despite the existing law, it has continued unabated for years.
Victoria Atkins
I am grateful to the hon. Lady for setting out the case for this new clause, tabled by the hon. Member for Ealing Central and Acton. As she rightly identifies, it is supported by parliamentarians from across the House. I approach this issue with the respect that such a widespread array of support deserves.
We have looked into this issue and kept it under very close review over the past few years, and I will set out in a moment some of the steps we have taken. I want to be very clear that I have sympathy for what the new clause seeks to achieve, in that harassment and intimidation of women who are seeking medical care is completely unacceptable.
The hon. Member for Rotherham is right to emphasise that this new clause is confined to a very narrow basis. We are not debating the provision of abortion services; we are talking about the public order element surrounding clinics and hospitals. For the benefit of colleagues and others who may be watching this debate closely, given that we are looking purely at a public order issue, on a very narrow basis, my Whips have concluded that this is not a matter of conscience, so the matter is whipped. It is in a different category from the wider issue of abortion, about which Members have many varied and strongly held opinions. We confine ourselves to the public order element of what the new clause is trying to achieve.
We keep this matter under very close review. As the hon. Lady knows, it is an offence under the Public Order Act 1986 to display images or words that may cause harassment, alarm or distress. The police have certain powers under that Act if the purpose of the assembly is to intimidate others into doing or not doing an act. Clause 55 of this Bill strengthens those powers and enables the police to place any necessary conditions on such assemblies.
The power that has found resonance with local authorities and has been upheld by the Court of Appeal recently is the power under the Anti-social Behaviour, Crime and Policing Act 2014 to implement public space protection orders to create buffer zones around abortion clinics or hospitals, when they are satisfied on reasonable grounds that protests are having an unreasonable and persistent detrimental effect on the quality of life of people in the area. Three local authorities have imposed such orders around particular clinics. Indeed, I am led to believe that Ealing, which imposed the first such order, very recently renewed it following its expiration.
Sarah Champion
I thank the Minister for recognising that this is harassment rather than protest. Does she share my frustration that more councils are not using public detention orders?
Victoria Atkins
I will come to the figures in a moment because they will, I hope, help the Committee understand the approach that the Government are taking.
In the protests, or demonstrations—or however one wants to describe them—there can be a range of activities, and the hon. Lady has, understandably, focused on some of the most upsetting forms of activity. There are more peaceful ways of protesting, however, and I do not think it would be right for me to pretend that every single protest has the ability to harass and alarm in the way in which she has said some protests do. The advantage of PSPOs is that they are very local. They are brought by local authorities in the circumstances of their area, and the conditions imposed will reflect the conditions of the protests faced outside service providers.
Mr Goodwill
I was going to make a similar point to that made by the hon. Member for Rotherham. Is it not the case that many local authorities find the process complex and expensive? Will the Minister consider providing a toolbox or other assistance to local authorities to enable them to do this in a way that does not put them outside their comfort zones in the areas in which they have been working?
Victoria Atkins
Very much so. Indeed, that has been part of our work with the review. We conducted the first review in 2018 and, to put this in context—I will read the figures out because I want to make sure they are correct—of the 406 clinics and hospitals identified as providing those services, providers told us that only 36 had stated that they experience any protest activity.
Sarah Jones (Croydon Central) (Lab)
I am grateful for the opportunity to state publicly that I very much support the new clause. On the point that the Minister has just made, in my local area abortion services can be accessed in the large hospital. There is no protest there because it is a large hospital with loads of people coming and going for other things, but in areas with stand-alone abortion clinics, we all know where they are, and people are known to stand outside. Although I understand the point about things being different in different areas, when people are standing outside, holding something and not saying anything, it is still enormously judgmental, scary and upsetting, even though what those people are doing perhaps does not look to the police to be as intimidating as it is. I am sure that some turn away because they cannot face going past that.
Victoria Atkins
I accept that, and of course, women can be in a distressed state when they are approaching clinics. They may be in turmoil and may have questions about what they are about to do—they may well have doubts. I am sympathetic to the idea that not every protest has to display the sorts of posters that the hon. Member for Rotherham has described to unsettle or upset women accessing those services.
I have a second set of figures. The figures are important because we as a Government have to look at proportionate responses. The first set of figures came out of the 2018 review. Since then, to come to the point made by my right hon. Friend the Member for Scarborough and Whitby, we have again asked service providers for their views and whether there has been an increase or decrease in activity. The figure I have been provided with is that 35 out of the 142 registered clinics are currently or have recently been affected by protest activities. Five hospitals have been affected. That compares with 32 clinics and four hospitals being affected in 2018.
I am told, incidentally, that one of the clinics that had been reviewed in 2018 has since closed down, so that may explain that difference. I give the figures because that is why we are concerned that a blanket ban across all of the service providers may not be proportionate, given that the majority of clinics and the overwhelming majority of hospitals that provide these services do not appear to have been affected by protest activity thus far. That is why we believe that a localised approach of PSPOs, with councils using the orders, is the way forward.
We have also looked very carefully at whether there is work we can do to help councils understand the powers that they have under the orders. Again, we believe that the law is in a good place at the moment, but we very much keep this under review.
Mr Goodwill
I thank the Minister for those assurances. Would it also be the case that where an abortion clinic is in a general hospital, the measure could unintentionally prevent people from protesting against the closure of a ward or a service, or trade unionists protesting about a particular aspect of their employment rights?
Victoria Atkins
My right hon. Friend raises an important point. That is why we have looked so carefully at the universality of the measures put forward by the hon. Member for Ealing Central and Acton and why we believe that PSPOs, which are targeted and have been upheld by the Court of Appeal, seem to be the most effective way of managing these very difficult circumstances outside particular service providers.
I appreciate that this may be corrected before Report, but we are also concerned that proposed subsection (3) of the new clause potentially includes medical practitioners and others providing advice on abortion services within the confines of the buffer zone—in other words, within the clinic. Nobody—but nobody—would want that to be an unintended consequence of the new clause. My right hon. Friend has alighted on another unintended consequence—that other forms of protest may be caught by the new clause.
We very much understand the motivations behind the new clause and the work that parliamentarians have been conducting over recent years in order to shed light on this issue, but the Government do not feel able to support new clause 43.
Sarah Champion
I hear what the Minister says. I am still very concerned that, by the Minister’s own figures, we are looking at a quarter of clinics being targeted. I am very concerned about the postcode lottery. Would the Minister be open to my hon. Friend the Member for Ealing Central and Acton working with her civil servants to try to come back with a more appropriate wording for Report?
Victoria Atkins
In fairness—I am sure the hon. Member for Ealing Central and Acton will back me up on this—we have been working. I do listen. I have meetings with colleagues from across the House—both those who support the intentions of the new clause and those who do not. We must acknowledge that there are colleagues and members of the public who want to defend their right to make their feelings and their views known in front of these service providers. I am very happy to meet colleagues representing the range of opinions on this issue. I have met the hon. Member for Ealing Central and Acton several times and am very happy to meet other colleagues, whichever side of the debate they may stand on.
Sarah Champion
With those reassurances, I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
Ordered, That further consideration be now adjourned. —(Tom Pursglove.)
Police, Crime, Sentencing and Courts Bill (Twentieth sitting)
Thursday 24th June 2021
(2 years, 10 months ago)
Public Bill CommitteesRead Full debate Police, Crime, Sentencing and Courts Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 24 June 2021 - (24 Jun 2021)
The Committee divided: - Ayes: 5 / Noes: 8 - Question accordingly negatived.
The Committee divided: - Ayes: 6 / Noes: 8 - Question accordingly negatived.
The Committee divided: - Ayes: 6 / Noes: 8 - Question accordingly negatived.
The Committee divided: - Ayes: 6 / Noes: 8 - Question accordingly negatived.
The Committee divided: - Ayes: 6 / Noes: 8 - Question accordingly negatived.
The Chair
All the previous requests from Mr Speaker remain the same.
New Clause 44
Duty on health service bodies to have due regard to police covenant principles
“(1) In exercising in relation to England a relevant healthcare function, a person or body specified in subsection (2) must have due regard to—
(a) the obligations of and sacrifices made by members of the police workforce,
(b) the principle that it is desirable to remove any disadvantage for members or former members of the police workforce arising from their membership or former membership, and (c) the principle that special provision for members or former members of the police workforce may be justified by the effects on such people of membership, or former membership, of that workforce.
(2) The specified persons and bodies are—
(a) the National Health Service Commissioning Board;
(b) a clinical commissioning group;
(c) a National Health Service trust in England;
(d) an NHS foundation trust.”.—(Sarah Jones.)
Brought up, and read the First time.
Question put, That the clause be read a Second time.
Sarah Jones (Croydon Central) (Lab)
I beg to move, That the clause be read a Second time.
The Chair
With this it will be convenient to discuss the following:
New clause 46—Offence of assaulting etc. health and social care or transport worker—
‘(1) It is an offence for a person to assault, threaten or abuse another person—
(a) who works in health, social care or transport, and,
(b) who is engaged, at the time, in such work.
(2) No offence is committed under subsection (1) unless the person who assaults, threatens or abuses knows or ought to know that the other person—
(a) works in health, social care or transport, and;
(b) is engaged, at the time, in such work.
(3) A person who commits an offence under subsection (1) is liable, on summary conviction, to imprisonment for a term not exceeding 12 months, a fine, or both.
(4) Evidence from a single source is sufficient to establish, for the purposes of this section—
(a) whether a person works in health, social care or transport, and
(b) whether the person is engaged, at the time, in such work.
(5) The offence under subsection (1) of threatening or abusing a person who works in health, social care or transport (A) is committed by a person (B) only if B—
(a) behaves in a threatening or abusive manner towards A, and
(b) intends by the behaviour to cause A or any other person fear or alarm or is reckless as to whether the behaviour would cause such fear or alarm.
(6) Subsection (5) applies to—
(a) behaviour of any kind including, in particular, things said or otherwise communicated as well as things done,
(b) behaviour consisting of—
(i) a single act, or
(ii) a course of conduct.
(7) The Secretary of State must by regulations made by statutory instrument define “health”, “social care” and “transport” for the purposes of this section.
(8) For the purposes of deciding whether a person works in health, social care or transport, it is irrelevant whether or not the person receives payment for the work.’.
New clause 62—Assault due to enforcement of statutory age restriction—
‘(1) This section applies to an offence of common assault that is committed against a worker acting in the exercise of enforcing a statutory age restriction.
(2) This section applies where it is—
(a) specified in the complaint that the offence occurred because of the worker’s enforcing a statutory age restriction, and
(b) proved that the offence so occurred because of the enforcement of a statutory age restriction.
(3) A person guilty of an offence to which this section applies is liable on summary conviction, to imprisonment for a term not exceeding 12 months, or to a fine, or to both.
(4) In consequence of subsections (1) to (3), in section 39 of the Criminal Justice Act 1988 (which provides for common assault to be summary offences punishable with imprisonment for a term not exceeding 6 months)—
(a) insert—
“(3) Subsection (1) is subject to section [Assault due to enforcement of statutory age restriction] of the Police, Crime, Sentencing and Courts Act (which makes provision for increased sentencing powers for offences of common assault committed against a worker acting in the exercise of enforcing statutory age restrictions).”
(5) In this section—
“enforcement”, in relation to a statutory age restriction, includes—
(a) seeking information as to a person’s age,
(b) considering information as to a person’s age,
(c) refusing to sell or supply goods or services,
for the purposes of complying with the restriction (and “enforcing” is to be construed accordingly), “statutory age restriction” means a provision in an enactment making it an offence to sell or supply goods or services to a person under an age specified in that or another enactment.
(6) This section applies only in relation to offences committed on or after the day it comes into force.’.
Sarah Jones
It is a pleasure to serve under your chairmanship, Mr McCabe. I rise to speak to new clauses 45, 46 and 62. New clause 45 would introduce a new penalty for assaults on retail workers, with a 12-month maximum. This issue has been debated in the House on many occasions, and the Minister was in Westminster Hall talking about it only a couple of weeks ago, so we know that there is cross-party support for these measures. New clause 45 replicates the Protection of Workers (Retail and Age-restricted Goods and Services) (Scotland) Act 2021 in introducing a new penalty for a range of behaviours against retail workers and includes provision for an aggravation when this occurs during the enforcement of statutory age restriction. It is a comprehensive new clause that defines this behaviour, retail worker, work and premises. New clause 62 would introduce a specific new offence with a specified penalty for assaults committed as a direct result of workers enforcing statutory age restrictions.
I thank the Co-operative party, the Union of Shop, Distributive and Allied Workers, the British Retail Consortium, the Association of Convenience Stores, Tesco and others for their brilliant campaigning, in many cases over a number of years, to achieve greater protection for shop workers. They have been a huge help with this Bill. I also pay tribute to my hon. Friend the Member for Nottingham North (Alex Norris), who has campaigned tirelessly for greater protections for retail workers since he was elected, most recently through his Assaults on Retail Workers (Offences) Bill. On behalf of the Opposition, I also thank our shop workers, who have made such an extraordinary contribution throughout this pandemic.
Maria Eagle (Garston and Halewood) (Lab)
Has my hon. Friend heard, as I have in my constituency, that assaults and threats towards shop workers have actually worsened during the pandemic? They were at quite a bad level before, but things are worse as a consequence of the pandemic. Perhaps more thought therefore needs to be given by this House to this kind of provision.
Sarah Jones
My hon. Friend is absolutely right. I will shortly cite figures that bear out the suggestion that assaults have increased during this period. We saw a raft of assaults during periods in which provision of certain foods was scarce, and when people objected to being asked to wear masks. During covid, we have all come to recognise the importance of shop workers in a way that we perhaps did not previously, although we should have done.
As I have said previously in Committee, Labour welcomes the new clauses that will increase the maximum sentence for assaulting an emergency worker from 12 months to two years. However, the Government’s decision not to include additional protections for shop workers represents a failure to listen to voices from the frontline and to recognise the exponential rise in abuse of retail staff over recent years. Retail workers kept our country fed, clothed and kept us going. However, many faced unacceptable attacks while working to keep us safe, from being spat at or punched to verbal abuse and intimidation. Such attacks should be met with swift and meaningful punishment, and yet the Government have decided not to introduce additional protections at this point. We ask them to think again.
In 2020, we saw a spike in abuse, threats and violence against retail workers. The BRC annual retail crime survey, which was released at the end of May, showed that violence and abuse against shop workers continued to grow to 455 incidents every day, representing a 7% increase on the previous year. ACS’s 2021 crime report shows that greater action is needed to tackle violence against shop workers. An estimated 40,000 violent incidents took place in the convenience sector over the past year, with approximately 19% resulting in injury.
Sarah Champion (Rotherham) (Lab)
I support my hon. Friend’s powerful speech. I am unsure whether she has the gender breakdown for those figures, but in my experience it is predominantly women who work at the front of these shops and convenience stores, and attacks are often unpleasant and misogynistic. Anything in legislation that could prevent that sort of abuse would be welcome.
Sarah Jones
My hon. Friend makes a good point. I do not have those figures here, but we know that more women than men are in such positions, so I imagine that that breakdown would bear out what she says. She is right that we should do everything we can to stop such attacks.
More than 1.2 million incidents of verbal abuse were recorded over the past year, with 89% of store colleagues experiencing verbal abuse. Two of the top triggers of violence are colleagues having to enforce age restriction sales policies or refusing to serve intoxicated customers. USDAW’s coronavirus survey, which was based on 4,928 responses, shows that since 14 March 2020, 62.2% of retail workers were verbally abused, 29% were threatened and 4% were assaulted. Last year, research conducted by USDAW found that 88% of retail workers experienced verbal abuse—in almost two thirds of cases, it was from a customer—and 300,000 out of a 3 million-strong workforce were assaulted. Only 6% of those incidents resulted in a prosecution and a quarter of cases go unreported altogether. It is therefore vital to introduce new penalties to protect shop workers, deter offenders, break the cycle of abuse and deliver justice to victims. Abuse should not be part of someone’s day job. Nobody should be treated with disrespect, spat at, bitten, grabbed, sexually harassed or discriminated against at work.
I am pleased that Tesco recently got behind the campaign to protect retail workers and that it supports these new clauses. A constituent who works at the local Tesco branch in Croydon recently emailed to talk about her experience: “I’ve lost count of the times I have been verbally abused and threatened while working. I am forever looking over my shoulder. It is a way of life where customers verbally abuse, threaten and attack staff, and it is not right. This affects people in different ways, mentally and physically, and they’re expected to just carry on, which they have to do, because it is their livelihood. This is not acceptable.”
As part of USDAW’s survey of violence, threats and abuse against shop workers, respondents had the opportunity to feed back their experiences. These are some of the voices from the frontline:
“I had never cried in work until the first week of the lockdown. I received constant abuse from nearly every customer during one shift when the rules were changed so that we couldn't accept returns. I finally broke when one woman refused to leave the store and insulted me and berated me for not doing the return. The following day a man was very aggressive towards me for the same reason and I could visibly see him twitching in a way that suggested he was about to become violent. My job has become emotionally draining and it is really starting to affect my mental health.”
“Verbal and physical abuse from customers, it’s not nice, we are only trying to enforce social distancing but customers are using the trip to the shops as a day out and putting the staff at risk, then we return to our families in fear and panic because of the small minded stupidity.”
“I have been verbally abused by customers. Pushed by a customer. Been told to shut up and ‘F-off’ when mentioning limitations or the one way system.”
“I have taken abuse when having to remove items from the customer because they wish to purchase more than the permitted number of restricted items.”
“Customer using verbal abuse towards me, and being racist towards me.”
“Constant verbal abuse/swearing. Customers spitting, coughing and sneezing towards us on purpose.”
“I have been spat at, pushed and treated as if I wasn’t there.”
“We have been threatened with violence and have had to make police reports about members of the public threatening to ‘bash our faces in’ when we leave the store after our shifts. We are regularly subjected to verbal abuse, usually surrounding low/zero stock and restrictions on certain products.”
We will all have had cases such as these in our constituencies. I had a case in which a customer pulled a knife on a shop worker, because the shop worker would not sell them alcohol when they were clearly intoxicated. In some cases, people are very seriously assaulted as well.
Sarah Champion
In lots of my local shops, there is just one person in the shop on their own; I wonder whether that has also been my hon. Friend’s experience. I am not sure whether that is because the shop is owner-owned or because it is the victim of cut costs, but it is very worrying.
Sarah Jones
My hon. Friend is absolutely right. I was talking this week with some of the larger organisations, and they made exactly that point: the very small convenience stores are often in the most trouble, because there will be only one person working there. A lot of supermarkets have put in place all kinds of support—walkie-talkies, cameras and security on the door—that provides some element of security, but a small convenience shop cannot meet those costs, and it is those individuals who are most at risk.
In the recent Westminster Hall debate that I referred to, the Minister referred to the Home Affairs Committee’s survey, which also asked retail workers if they had experienced violence and abuse. Some 12,667 people responded, and that shows just how widespread the problem is. The survey found that 87% of respondents had reported incidents to their employer, but in 45% of those cases, no further action was taken. Half of respondents reported incidents to the police, but only 12% of those incidents led to an arrest. A third of respondents did not report incidents to their employer because they believed that nothing would be done, or that it was just part of the job. Respondents felt that better security at retail premises and more severe punishments for offenders would help to prevent incidents in the future.
The Minister talked about that survey in his speech, and he said it was “terrible” that so many workers felt it was just part of the job. We have the Minister saying it is terrible; we have Labour saying that it is terrible; and we have the big supermarkets, business CEOs, unions, the Home Affairs Committee, the British Retail Consortium and the Association of Convenience Stores saying that it is terrible, so now is the opportunity to do something about it.
The Minister may well repeat the argument that he made in the Westminster Hall debate, namely that the updated sentencing guidelines—they provide a welcome list of aggravating factors to be considered in the case of attacks on those who are providing a service to the public—are enough. We do not believe that they are, and we think the Government should go further. The argument that protections for public service workers are already enshrined in law does not suffice: if the Minister looks at the data on how many people do not report attacks and abuse because they think nothing will be done, and at the tiny percentage of prosecutions, the facts bear that out. Sentencing guidelines are important, but if the number of prosecutions remains so low, clearly something is not working.
Our new clauses are ready and have been rehearsed in previous legislation. We know that we have a lot of cross-party support. Members across the House are calling on the Government to look again and do something stronger, including Government Members, such as the hon. Members for Stockton South (Matt Vickers) and for Hazel Grove (Mr Wragg) and the right hon. Member for Tatton (Esther McVey), SNP Members, Lib Dem Members and, of course, many Labour Members.
In response to a recent written question on this subject, the Minister said that the Government would
“continue to keep the matter under review and listen to the debate on this matter.”
Well, we have had many debates and I know that he has listened, so I hope that today he can provide a more supportive response to these new clauses.
The Parliamentary Under-Secretary of State for Justice (Chris Philp)
I thank the shadow Minister, my constituency neighbour, for introducing these new clauses. I join her in paying tribute to the retail workers and others who have kept our country going over the past 12 to 18 months, often in difficult circumstances. I know that we are all very grateful for what they and others have done. I have a great deal of sympathy for retail workers. My first regular paid job was in Sainsbury’s at West Wickham, which the shadow Minister will know is a short distance from the boundary of her constituency.
We take the issue seriously and, as the shadow Minister said, we had a Westminster Hall debate on this topic three or four weeks ago, when a number of Members described various forms of abuse and assault that their constituents had suffered. Most of the assaults given as examples would have been charged not as common assault with a maximum sentence of six months, but as a more serious form of assault—for example, assault occasioning actual bodily harm, which carries a maximum sentence not of a year, as per the new clause, but of five years. Indeed, in more serious cases involving knives and so on where people are convicted of grievous bodily harm with intent to commit grievous bodily harm, the maximum sentence is not a year, as per the new clause, but life.
There are a number of criminal offences on the statute book that cater for the serious offences described graphically in that Westminster Hall debate. In such cases, a charge should be laid and a higher sentence—higher even than that contemplated by the new clause—could and should be given.
There is also the question of whether current law adequately recognises retail workers and other public workers when a sentence is being passed. The law already recognises that such people are to be treated somewhat differently if the victim is, for example, working in a shop, and the sentencing guidelines, which the shadow Minister mentioned and which were updated a few weeks ago, make it clear that if there are aggravating factors the sentence passed will be longer than it otherwise would be. The fourth aggravating factor on the list is an
“offence committed against those working in the public sector or providing a service to the public”.
That would obviously include retail workers, transport workers and others.
Not only do we have offences on the statute book already—many of which have much longer maximum sentences than the maximum called for by the new clause, such as five years for actual bodily harm—but the fact that the victim was providing a service to the public already represents an aggravating factor that leads to a longer sentence.
On particular things that have happened during covid, the case of Belly Mujinga, which the shadow Minister mentioned, occurred at Victoria station. I think Belly Mujinga worked for Southern Railway, which is the company that serves our two constituencies. The new Sentencing Council guidelines published a few weeks ago incorporated some revisions, which I think help. There is a new aggravating factor of deliberate spitting or coughing. A new factor—
“Intention to cause fear of serious harm, including disease transmission”—
increases culpability, which increases the sentence.
Therefore, if that person’s action—this would apply to a case such as that of Belly Mujinga—included such an intention, that is taken to increase the culpability of the offender. Those changes were made to the sentencing guidelines a few weeks ago, so we have offences on the statute book with long maximums such as five years, or life for GBH with intent. We have aggravating factors that apply in respect of retail workers, and indeed other people serving the public. We have new sentencing guidelines, which speak to things such as spitting and causing fear of serious harm in relation to transmissible diseases.
Is there a problem? Yes, there is, but I do not think that it is with the sentences; it is with the reporting and the prosecutions. Shockingly, in a survey prepared for the Home Affairs Committee that I think the shadow Minister has seen—I referred to it in our Westminster Hall debate—of the 8,742 shop workers responding who had been victims of this sort of crime, only 53% reported the offence to the police. Half the victims did not even report it, so we need to do a lot more to make sure that victims report this crime.
Sarah Jones
The Minister is making the arguments that I thought he would. They are perfectly reasonable, but I come back to him on the point that one of the problems is the tiny proportion of prosecutions and another is the huge increase in assaults against all these groups of people. He makes the point that a lot of people do not report these crimes, but Parliament and the Government could send a strong message, as the Government did with war memorials: they said that they were not necessarily expecting lots of prosecutions, but they wanted to send a strong message to the public about the importance of memorials.
For Parliament to send a strong message would be a really powerful way of encouraging shop workers to report these crimes. Although sentencing guidance is important, I do not think that the public know about it or would be able to tell us that it was changed a few weeks ago, whereas making it clear that this is something we want to set out in law would send a message to all those people who do not report these crimes. It might help.
Chris Philp
I think the sentencing guidelines are important. Addressing coughing, spitting and causing fear of infectious disease transmission is important, as is the recognition that public sector workers and people providing a service to the public get in the sentencing guidelines. The shadow Minister says that they are not important; I think they are, because they are what the judge looks at, day in, day out, when deciding what sentence to hand down.
When it comes to getting more incidents reported, investigated and then prosecuted, we first need to look at why people are not reporting them. Again, the survey sheds light—3,444 people replied to this question. The top reason for not reporting the offence, cited by more than a third of respondents, was
“I did not believe the employer would do anything about it”.
Shockingly, the second was
“I believed it was just part of the job”,
which of course it is not; the third was
“I considered the incident too minor”;
and the fourth was
“I did not believe the police would do anything about it”.
Clearly there is a perception issue around this crime that we need to sort out. The Minister for Crime and Policing is leading a taskforce designed, first, to get employers to better support their employees when it happens. Although 87% of people—almost all—tell their employer, only 53% report it to the police. I infer by subtracting one number from the other that in 34% of cases, employers who know about the crime are not supporting their employees to report it to the police. Employers need to do more. To be honest, I think that the police will be doing more in this area as well, guided and encouraged by the taskforce that the Minister for Crime and Policing is running. We have the laws and we have the aggravating factors, but we need more reporting and more investigation, and there is a taskforce dedicated to doing that.
Let me make a couple of specific comments on new clause 45—the retail worker clause—and new clause 46, which would add health and social care workers and transport workers, who of course are very important but are also protected under the Sentencing Council guidelines because they are both in the public sector and providing a service to the public. Even taken together, the two new clauses arguably have some omissions. For example, teachers—who I would say deserve no less protection than the other groups—are not mentioned at all; nor are people who serve their communities doing refuse collection or work in parks. All kinds of other workers who serve the public or work in the public sector, and who are equally deserving of protection, are not mentioned in the new clauses, but all those people are rightly covered by the Sentencing Council guidelines.
There is more work to do, which the taskforce is doing. We need retail employers to support their staff much more, and we need the taskforce to do its work of increasing reporting and prosecutions, but the offences are on the statute book already, with maximum sentences of five years —or even life, for GBH with intent. The aggravating factors are there, so let us get these crimes reported and get them prosecuted. That is how we will protect retail workers.
Sarah Jones
The arguments about under-reporting make our case for us. People would be much more likely to report these things if they knew that a specific sentence had been identified, and if they knew that Parliament and the law were on their side. I think that would make a huge difference to the reporting.
I am grateful that the Minister acknowledges that there is more work to be done in this space. I know about the taskforce that the policing Minister is undertaking, and he is right to say that employers need to do more. I stress, however, that it is not often that employers and trade unions are absolutely as one, but on this issue they are absolutely agreed that something is needed. They are the ones with experience of life on the ground in shops and retail spaces, and this is what they are calling for. I will not press the new clause to a vote now, but I am sure we will want to return to it on Report. I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
The Chair
New clauses 46 to 55 have already been debated, so we now come to new clause 56. I understand that Siobhain Baillie wishes to speak to new clause 56.
New Clause 56
Maximum sentences for causing or allowing a child or vulnerable adult to suffer serious injury or death
‘(1) Section 5 of the Domestic Violence, Crime and Victims Act 2004 is amended as follows—
(a) in subsection (7), for “a term not exceeding 14 years” substitute “life”, and
(b) in subsection (8), for “10” substitute “14”.
(2) Schedule 19 of the Sentencing Act 2020 is amended by the insertion of the following after paragraph 20—
“Domestic Violence, Crime and Victims Act 2004
20A An offence to which section 5(7) of the Domestic Violence, Crime and Victims Act 2004 applies.”’ —(Siobhan Baillie.)
This new clause seeks to increase sentencing levels under section 5 of the Domestic Violence Crime and Victims Act 2004 (causing or allowing a child or vulnerable adult to suffer serious injury or death) by raising the death offence to life imprisonment, and the “serious injury” offence to 14 years.
Brought up, and read the First time.
Siobhan Baillie (Stroud) (Con)
I beg to move, That the clause be read a Second time.
New clause 56, which was tabled by my hon. Friend the Member for Tonbridge and Malling (Tom Tugendhat), centres on the experiences of a young boy called Tony. It would amend section 5 of the Domestic Violence, Crime and Victims Act 2004, raising the sentence for the death offence to life imprisonment, and that for serious injury to 14 years.
Young Tony Hudgell is an inspirational young man from Kings Hill in Kent. His loving adoptive parents, Paula and Mark, have campaigned tirelessly against child cruelty alongside providing Tony with a safe, secure home. At around 41 days old, Tony, as a tiny baby, did not have a safe, secure home. He was abused so severely by his biological parents that he was left with eight separate fractures to his tiny body. He suffered from septicaemia, and he had an extended period of excruciating pain before he was taken to hospital. At hospital, Tony required multi-organ support in intensive care, and he suffered respiratory distress. His injuries were so bad that baby Tony had to have both of his legs amputated.
Take a moment to imagine that the only life that baby Tony knew was one of pain and torture from the people who should have loved him most. During sentencing, His Honour Judge Statman said that he had thought long and hard about the manner in which Parliament had provided for the maximum sentence in such cases, and while he would not be allowed to go behind Parliament’s enactments, he could not envisage a worse case than Tony’s.
That level of cruelty is, thankfully, rare, and I am of the view that we should not legislate, amend or fiddle in this place unless there is a clear need to do so. Rare or not, however, the British public rightly expect our judiciary to have extensive powers to deal justly with perpetrators of such devastating harm to babies, children or vulnerable adults. I respectfully contend that the current maximum sentence of 10 years does not adequately reflect the gravity of cases at the upper end of seriousness.
All victims of section 5 offences will be vulnerable, which increases the seriousness of those offences. It is my assessment that a section 5 offence is in some respects more stringent than unlawful act manslaughter. That leads to inconsistencies, because section 5 requires there to be a serious risk of physical harm. In this Bill, we are also considering, in clause 65(2), raising the maximum sentence for causing death by dangerous driving from 14 years’ imprisonment to life imprisonment. There is no requirement that the driver appreciated that their driving was dangerous, giving rise to a risk of serious injury.
Similarly, the serious injury offence can involve lifelong harm inflicted over many weeks and months. Despite the infliction of injury not being intentional, the level of culpability remains extremely high, given that the defendant’s relationship to the victim is typically as a parent or other position of responsibility. I therefore ask Ministers to consider the anomaly in the current sentencing scheme, in that the section 5 offence—the death offence—has a maximum sentence that is out of step with similar offences. Over the past decade or so, Parliament and the courts have appreciated the increased seriousness in cases involving deaths, and sentences handed out by the courts have reflected that.
The section 5 offence is listed in schedule 18 to the sentencing code for the purposes of the dangerousness regime, enabling an extended determinate sentence to be imposed. The need for additional licence periods and conditions in the most serious cases is therefore already recognised. An increase in the maximum sentence for the death offence would be in keeping with that trend. Similarly, the serious injury offence can involve lifelong harm inflicted over many weeks and months. Despite the infliction of the injury not being intentional, the level of culpability remains extremely high. A 10-year maximum sentence is not reflective of the seriousness of the offence.
I conclude by referring back to the brave heroes behind this request. Tony and his adoptive parents, Paula and Mark, have fought hard, and Tony is living a good, healthy life. I really look forward to hearing from the Ministers and other members of the Committee, if they choose to comment.
Sarah Champion
I thank the hon. Member for Stroud for moving the new clause tabled by the hon. Member for Tonbridge and Malling. The hon. Member for Stroud has done the legal bit, and I am going to do the emotional, child abuse bit.
I think all hon. Members know who Tony is, because he is on BBC Breakfast a lot. He is a little lad. I do not know how old he is now—probably about eight. His legs are amputated, but he has been doing a walk around his local park every day to raise money for the NHS. I did not realise until very recently that he was the Tony this law is named after. It was only when I saw him and his adoptive parents on BBC Breakfast making the argument for this that I thought, “This is an obvious legal change that clearly needs to be made.”
Under current law, 10 years is the maximum sentence that judges can impose when someone has been convicted of child cruelty, causing harm or allowing a child to die or suffer serious physical harm. It is just madness! Someone who is guilty of intentionally causing grievous bodily harm to an adult can face a life sentence in the most severe cases, so I do not know why this cap of 10 years is in place. Surely, for offences that result in severe physical harm to children and lifelong harm, which will be much longer than lifelong harm to an adult, courts ought to be able to impose the sentence that they think is most fitting.
The proposed change to the law follows the tireless campaigning by the adoptive parents of Tony Hudgell. As the hon. Lady said about the injuries inflicted on Tony, it is truly unimaginable that someone could consciously do that. A change in the law would give the judges the discretion they need to pass longer sentences, including in the most horrific cases such as Tony’s. We are thankfully talking about a relatively small number of cases. In the past five years, there were an average of 68 child deaths a year caused by assault or undetermined intent. Child homicides are most commonly caused by a parent or step-parent. Children under the age of one are the most likely group to be killed by another person.
National Society for the Prevention of Cruelty to Children analysis of police data from across the UK shows that there were 23,529 child cruelty or neglect offences recorded by the police in 2019-20. Although there are significant variations among regions and nations, it is extremely concerning that the police-recorded child cruelty and neglect offences have risen by 53% in the past three years. I am perversely curious to see the data that comes out of this past year, because anecdotally I understand, from my police force and from what we are reading, that the levels of child abuse have escalated under lockdown. That should not come as a surprise, but it is deeply chilling to all of us.
The latest ONS figures available for England and Wales are from 2018: 500 offenders were sentenced for offences of cruelty and neglect of a child; 114 of those offenders received an intermediate custodial sentence; and 220 received a suspended sentence.
Over the past year, the NSPCC has seen the impact of the coronavirus pandemic on physical abuse, as I mentioned. Calls to its helpline surged through the pandemic to record numbers. Tony’s case represents the most severe form of physical abuse. However, while extreme, it is not an isolated example. There have been a number of court cases and serious case reviews containing disturbing details of how children have been severely physically abused, often over a prolonged period. Alongside that, it is important that we see wider changes, including greater public awareness, so that adults can spot the signs of abuse and reach out if they have concerns about a child, and additional resources for local authorities, so that early intervention services and children’s social care can respond effectively when they think a child is at risk.
Cuts to funding and the rising demand for support has meant that local authorities are allocating greater proportions of their spending to late intervention services, while investment in early intervention is in many cases just not there. Early intervention is my personal crusade because, surely, prevention at the earliest possible time is what we all ought to strive for. We need to see a child-focused justice system that does not exacerbate the trauma that young victims and witnesses have already experienced. Positive experience of the justice system can help them move forward, but negative experience can be damaging and, for some children, retraumatising.
We need increased capacity and investment in the criminal justice system, so that policy and procedures may progress cases efficiently and delays may be reduced. Children need to have access to specialist assistance measures in court, such as assistance from a registered intermediary who can support a young victim or witness in giving evidence. Therapeutic support for children who have been experiencing abuse and neglect needs to be universal and easily accessible. That is vital to enable children to process the trauma that they have experienced, to begin to heal and to move forward.
I understand and know that the ability to impose a stronger sentence is not the panacea, but it is really important that at the very least, child abuse is on a parity with adult abuse in terms of sentencing. I hope that the Ministers will support the new clause and, by doing so, show their dedication to tackling child abuse and to proportionate sentencing for that horrendous crime.
Chris Philp
The case of Tony Hudgell is truly heart-breaking. The abuse that he suffered at the hands of his birth parents is shocking beyond expression. In fact, I met his adopted mother, Paula, only a few months ago. We discussed the case and what happened at some length. It is something that I have become personally acquainted with not so long ago.
It is worth making it clear that where it is possible to prove who specifically inflicted the abuse, these offences do not need to be charged and instead the more usual offences can be charged, such as grievous bodily harm with intent, which carries a maximum sentence of life. The problem that arises in cases like Tony Hudgell’s is where it is not possible to prove specifically who it was who carried out the offence. He had two birth parents and it could have been either of them.
As I understand it from that case, there was no way that the court, the prosecution or the police could prove which of the two birth parents it was. That means they could not be charged with the regular offence—such as GBH with intent—that would have carried a life sentence. Instead, therefore, they fell back on the other offence, which we are debating now: causing or allowing, in which it cannot be proved that someone actually did it, but we can say they allowed it. If people cause or allow the death of a child or vulnerable adult, the maximum penalty is 14 years or, in the case of causing or allowing serious physical harm to a child or vulnerable person, a maximum of 10 years. That was the offence charged in the Hudgell case.
I have been informed that we have conducted a review of charges under the clause, and my understanding is that the only instance where the judge went all the way up to the maximum of 10 years was in that case. It is clear from the sentencing remarks that the judge would have gone further, but I think it is the only case where the judge has gone to the maximum.
Even though the case is the only one, it is so appalling, and I have discussed it with the Lord Chancellor, who will look at it again. It is a delicate area of law to pick through because it cannot be proved that it was the particular person who has been convicted—it could have been one of two—and it therefore requires a bit of thought.
Chris Philp
I am not Lord Chancellor, though.
We might separate the “cause” part from the “allow” part because “cause” and “allow” are somewhat different.
Maria Eagle
If we separated “cause” and “allow”, would we not be in the same position of not being able to prove which of the parents did the deed?
Chris Philp
The “allow” part could conceivably apply to both where there are two parents. It can probably be established that they must have been aware of the abuse because they must have noticed the kind of abuse we are talking about, but it cannot necessarily be proved that they did it or even that they caused it. Currently, it is “cause or allow” in the same offence, with the same maximum penalty. One could make a case that the “cause” bit is more serious than the “allow” bit, so they might have different maximum sentences. I have a commitment from the Lord Chancellor that I can relay to the Committee.
Maria Eagle
I am going to be pedantic now, but if the offences are separated yet the cause cannot be proved, the charge will have to be on the “allow” bit, which is the lower level of offence.
Chris Philp
Yes. We could have different maximum penalties for each of those, and even the lower one could be higher than the current penalty, so we could still make progress from where we are today.
I have a commitment from the Lord Chancellor that he will look at this in broadly the way that I described, also looking at the 1933 Act.
Sarah Champion
I am listening intently to the Minister. Is it his assumption that the Lord Chancellor will look at this before Report?
Chris Philp
Honestly, I would not have thought so. That is only a week and a half away, but I will pass that representation on. I know hon. Members want to hear at an early stage, such as Report.
Sarah Champion
It is only so that we do not lose the legislative opportunity.
Chris Philp
I understand. I will convey the hon. Lady’s point. As I have said two or three times previously, there are several other Bills in this Session that might be suitable for reform. This is not a “one chance and it is gone” situation. My main purpose in speaking today was, first, to pay tribute to Tony’s adoptive parents and to Tony for his bravery, having suffered such appalling abuse, but also to tell the Committee that the Lord Chancellor is actively and seriously considering this important area.
Siobhan Baillie
We will follow the matter through, but in view of the Minister’s comments and the Lord Chancellor’s commitment, I shall not press this to a vote today. I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
The Chair
New clauses 57 to 59 have already been debated.
New Clause 60
Time limits for prosecutions for common assault in domestic abuse cases
‘(1) The Criminal Justice Act 1988 is amended as follows.
(2) At the end of section 39 insert—
“(3) Subject to subsection (4) below, summary proceedings for an offence of common assault or battery involving domestic abuse may be brought within a period of six months from the date on which a report of the offence was made to the police.
(4) No such proceedings shall be brought by virtue of this section more than two years after the commission of the offence.
(5) For the purposes of this section “domestic abuse” has the same meaning as in section 1 of the Domestic Abuse Act 2021.”’—(Alex Cunningham.)
This new clause seeks to extend the existing six month time limit for common assault in cases of domestic abuse.
Brought up, and read the First time.
Alex Cunningham (Stockton North) (Lab)
I beg to move, That the clause be read a Second time.
The Chair
With this it will be convenient to discuss the following:
New clause 61—Discretion to bring proceedings in a case of common assault involving domestic abuse—
‘(1) The Criminal Justice Act 1988 is amended as follows.
(2) At the end of section 39 insert—
“(3) Any limitation of time on the bringing of proceedings in a case of common assault or battery involving domestic abuse shall not apply if, in the opinion of the court, it is in the interests of justice for proceedings to be brought.
(4) For the purposes of this section “domestic abuse” has the same meaning as in section 1 of the Domestic Abuse Act 2021.”’
This new clause seeks to give magistrates discretion to extend the reporting period beyond six months in cases where someone hasn’t reported it sooner due to domestic abuse.
Alex Cunningham
New clauses 60 and 61 were tabled by my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper), whom I commend for her considered and forensic work on this issue. Our consideration of the matter is particularly timely, as the national lockdowns of the past year have seen an associated increase in domestic abuse. The crime survey for England and Wales showed that 1.6 million women and 757,000 men had experienced domestic abuse between March 2019 and March 2020, with a 7% growth in police-recorded domestic abuse crimes. The national domestic abuse hotline saw a 65% increase in calls during the first lockdown last year. Research by Women’s Aid discovered that one in seven victims currently enduring abuse at the hands of their partners said that it had got worse in the wake of the pandemic. It has been called an epidemic within the pandemic, and the time is ripe to improve the criminal justice response to these awful offences.
Women experiencing domestic abuse often delay reporting incidents of common assault to the police. Sometimes that is because they feel traumatised or unsafe immediately after the incident. Sometimes it may be because they have an ongoing relationship with the perpetrator. Sometimes it might just be because they are dealing with the traumatic and logistical challenges of fleeing the abuse. Because of the six-month time limit on charging summary common assault offences, by the time that many women have the courage to come forward and are ready to speak to the police, they are told that the charging time limit has passed and that there are no further opportunities for them to seek justice against their perpetrator.
Even when women do report within the six-month time limit—say, three or four months after the incident—their cases can be timed out because the police, for whatever reason, do not complete their investigation within the time remaining. As a result, many victims are left feeling unsafe and unprotected from their perpetrators, who might continue to harass, stalk and terrorise these women for a long time to come.
New clause 60 would address this issue by changing the time limit for common assault prosecutions in domestic abuse cases, so that it was six months from the time of reporting rather than six months from the time of the offence. It would provide that charges still needed to be brought within two years of the offence. That would give survivors of domestic abuse longer to report to the police, but it would also retain a time limit to ensure that there was a safeguard against cases being dragged out.
New clause 61 would address the same issue, but take a different approach by introducing discretion for magistrates to extend the six-month time limit in cases in which someone has not come forward to report an assault, because of domestic abuse. Taken together, the new clauses would extend the window in which victims can access justice safely, while ensuring that the police conducted common assault investigations expeditiously. Both new clauses have the support of Refuge, Women’s Aid, the Centre for Women’s Justice and the Domestic Abuse Commissioner. I look forward to the Minister’s considered remarks on both approaches later in our debate.
To illustrate the importance of reform in this area, I will share some testimony from a victim of these deplorable crimes that has been shared by Women’s Aid, because it is important that we listen to the voices of women who are calling for this change. This woman said:
“I am a victim of domestic abuse. I was in a violent relationship that ended late last year when I decided to leave. I have 4 accounts of physical assault which were sent to the CPS with evidence by the police.
I had a phone call from my police officer explaining that the CPS have come back and said that they are charging my abuser with only 2 counts of assault, as the other 2 accounts of assault are outside of the 6-month prosecution limit…It took strength and courage for me to come forward and now I’m being dismissed.”
I will finish with a quote from my right hon. Friend the Member for Normanton, Pontefract and Castleford, who puts it so well:
“Too many domestic abuse cases are currently not prosecuted because they are timed out by a six-month limit on common assault prosecutions. But unlike with other crimes, in domestic abuse cases, there are obvious and serious reasons why victims may take more time to report the abuse to the police, especially where there is an ongoing abusive relationship. This means many women who do find the courage to come forward and report these incidents are being badly let down because time has run out and the perpetrator is never charged. That can leave victims feeling more vulnerable than ever, while the perpetrators go on to commit more crimes.”
My right hon. Friend says that if the Government are serious about tackling violence against women and girls, they have to tackle this injustice. She is exactly right. We have heard much from the Government, throughout these Bill Committee proceedings, about how seriously they take tackling violence against women and girls, so I hope that they listen seriously to these calls for change and accept these new clauses.
The Parliamentary Under-Secretary of State for the Home Department (Victoria Atkins)
I can be brief in responding. I have met the right hon. Member for Normanton, Pontefract and Castleford to discuss a particular case in her constituency that appeared, on the face of it, to fall within the circumstances that she is trying to address through these new clauses. I take very seriously the concerns of the right hon. Member and, indeed, those of Refuge and Women’s Aid, and I am pleased to tell the Committee that we are looking into this issue very carefully.
The Committee will appreciate that we need to measure the problem and understand the scale of it before we can put measures before the House, or indeed in our domestic abuse strategy. On the basis that we are looking into this issue seriously and gathering the data—on the understanding that this is an active piece of work by the Government—I understand that the hon. Gentleman might be minded not to push the new clause to a vote on this occasion.
Alex Cunningham
The Minister is correct: I do not intend to push this new clause to a vote at this stage. However, my right hon. Friend might well choose to push it to a vote later in the process. I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 63
Offence of requiring or accepting sexual relations as a condition of accommodation
“(1) It is an offence for a person (A) to require or accept from a person (B) sexual relations as a condition of access to or retention of accommodation or related services or transactions.
(2) For the purposes of this section, A is—
(a) a provider of accommodation,
(b) an employee of a provider of accommodation,
(c) an agent of a provider of accommodation, or
(d) a contractor of a provider of accommodation.
(3) A person guilty of an offence under this section is liable on conviction on indictment to imprisonment for a maximum of 7 years.”—(Alex Cunningham.)
This new clause would create an offence of requiring or accepting sexual relations as a condition of accommodation, sometimes known as “sex for rent”. This would be punishable on indictment with a prison term of a maximum of 7 years.
Brought up, and read the First time.
The Chair
With this it will be convenient to discuss the following:
New clause 64—Offence of arranging or facilitating the requirement or acceptance of sexual relations as a condition of accommodation—
“(1) It is an offence for a person, who may be a publisher, to arrange or facilitate an offence under section [offence of requiring or accepting sexual relations as a condition of accommodation].
(2) A person commits an offence if they intend to arrange or know that their actions would facilitate an offence under section [offence of requiring or accepting sexual relations as a condition of accommodation].
(3) A publisher commits an offence if they—
(a) know they are arranging or facilitating an offence under section [offence of requiring or accepting sexual relations as a condition of accommodation]; or
(b) reasonably should know their actions would enable the arrangement of or facilitate an offence under section [offence of requiring or accepting sexual relations as a condition of accommodation]; or
(c) were informed that their actions had enabled the arrangement of or facilitated an offence under section [offence of requiring or accepting sexual relations as a condition of accommodation], and they failed to take remedial action within a reasonable time.
(4) A person found guilty of an offence under this section is liable on conviction on indictment to a fine of £50,000.”
This new clause is contingent on NC63. It creates an offence of arranging or facilitating an offence of requiring or accepting sexual relations as a condition of accommodation. This is intended to capture, for example, publishers or hosts of advertisements for such arrangements. The penalty for this offence would be a fine of £50,000.
Alex Cunningham
Before I speak to these clauses, I must congratulate my hon. Friend the Member for Hove (Peter Kyle) on his tireless work in bringing attention to the terrible crime of sex for rent, as well as on his work on the topic of criminal child exploitation, which I will come to in due course. As my hon. Friend wrote to the Lord Chancellor back in January, the Opposition believe that people must be able to live in a safe home, free from the risk of exploitation, yet today many vulnerable young people in particular are being coerced into engaging in sex simply to keep a roof over their head. They are forced into the horrific situation of giving sex for rent, something that, to most, is unthinkable, yet this is by no means rare or unusual. Research by the housing charity Shelter estimates that 30,000 young women have been propositioned with sex-for-rent offers since the beginning of the pandemic. Meanwhile, investigations by the Daily Mail have found lists of sex-for-rent advertisements on the website Craigslist, with telephone numbers of landlords included.
While offering sex for rent is technically incitement to prostitution and a crime under section 52 of the Sexual Offences Act 2003, at present the legal framework requires the victim to self-define as a prostitute in order to secure a conviction. Not only is this morally wrong, it acts as a clear disincentive to victims of this repugnant crime coming forward to the police. It is little wonder, therefore, that despite up to 30,000 people being propositioned with sex-for-rent offers during the pandemic alone, only a handful of charges have ever been brought against offenders using existing legislation. Despite repeated warnings from campaigners and the Opposition, the Government have done little to halt the sex-for-rent phenomenon. In particular, they have failed to create a new specific offence of sex for rent. That is why the Opposition have tabled new clause 63, which would create a new specific offence of requiring or accepting sexual relations as a condition of accommodation.
Sarah Champion
I fully support the arguments that my hon. Friend is making and the new clauses that he has tabled. They lead into arguments that I have been making myself, in that I do not think one ought to be able to buy consent, and that is fundamentally what is happening in this situation.
Alex Cunningham
That is exactly the point. If people have actually undertaken that sexual relationship with a landlord, apparently, they are seen to have been doing so willingly, which most certainly should not be the case.
Unlike section 52 of the Sexual Offences Act, new clause 63 would not require a victim of sex for rent to self-identify as a prostitute in order to secure a conviction. Put simply, it would allow victims of this horrendous crime to come forward without any fear of retribution or damage to their reputation. Similarly, it would give the police the powers they need to pursue a prosecution.
Sarah Jones
Does my hon. Friend accept that some wider societal issues are pushing people into this situation? I had a constituent who had no recourse to public funds who had a child. She was working all the hours that she could for a cleaning company, but she was not earning enough, so she was renting somewhere with that very low pay, and the landlord asked her for sex in order to pay the rent. She chose not to do that and ended up literally street homeless, because she had no recourse to public funds. In the end, the council intervened, and she got housing, but she was in a very difficult position. The idea that she, in that situation, would have consent is not right.
Alex Cunningham
No one should ever be placed in that situation. My hon. Friend and I were both members of the shadow housing team when we discussed the housing crisis that faces many people, especially young people. No one should ever be in that situation. Perhaps a whole-society approach is required. If we did not have a problem with housing, perhaps young people such as my hon. Friend’s constituent would not find themselves in that sort of situation.
This offence would also extend to those who facilitate sex for rent directly—for example, by driving so-called tenants to and from their accommodation or by disguising sex for rent arrangements. Put simply, if it were not for those who actively promote or facilitate acts of sex for rent, the problem would not be a fraction of the size it is today. I hope the Minister will support new clause 64 and act today.
Victoria Atkins
I think that everyone who has heard about the work of the campaign of the hon. Member for Hove, as set out by the shadow Minister, will have deep worries and concerns about this appalling practice, and we welcome the work that the hon. Member is doing to raise awareness of it.
We are unequivocal that so-called sex for rent has no place in our society. We know that it often involves the exploitation of vulnerable people. Rape, sexual violence and sexual exploitation are devastating crimes, and we are determined to bring offenders to justice. There are existing offences under the Sexual Offences Act 2003 that may be used to prosecute this practice, including the section 52 offence of causing or inciting prostitution for gain and the section 53 offence of controlling prostitution for gain. Both offences carry a maximum penalty of seven years imprisonment.
Alex Cunningham
The Minister cites a prostitution law, but these people are not prostitutes. Surely she accepts that.
Victoria Atkins
I understand that point. I am carefully examining the wording, and the section 52 offence applies when an identified victim has been caused to engage in prostitution or has been incited to do so, regardless of whether prostitution takes place. I understand the concerns of the victims, who we are so worried about, and that the wording of the Sexual Offences Act 2003 can cause a further layer of distress in someone who is seeking help or who wants to report an offence, but there is a very fine distinction. I appreciate that I am probably indulging in the law of semantics, but it is a very delicate balance. Of course, we must emphasise that if someone finds the courage to report such a crime to the police, they will benefit from the anonymity provisions under the Sexual Offences (Amendment) Act 1992. We must support victims in the court process when they are following through with such difficult allegations, in order to bring them to the attention of the police and to investigate and prosecute.
Sarah Champion
I understand the point that the Minister is making, but there is so much stigma around the word “prostitution” that I cannot see a situation where many young women would willingly come through, knowing that that would be associated with them for the rest of their lives. That is why the new clause is so powerful, because it clearly puts the onus on the man—it is almost always a man—as an exploiter, whereas the woman is the victim. That is why the new clause is so important.
Victoria Atkins
I understand that. Indeed, I seem to recall a Westminster Hall debate a couple of years ago in which the hon. Lady admonished me for my use of the phrase “sex work”, when in fairness I had been using both “prostitution” and “sex work” throughout the debate. It is very important to be sensitive to the terminology used and what it can mean to different people, and I understand that.
Under section 52, it would be illegal to advertise a product or service that incited prostitution for gain, and the promise of provision of accommodation in return for sexual services may be covered by this offence, depending on the specific services.
Sarah Champion
If it is acceptable, I want to put on record my thanks to the Minister, because from that point forward, when I raised the issue in that debate, she has always used the terms “sex worker” and “prostitute”, as have her civil servants. Although the two are sometimes interconnected, they are two very separate things. I know that has been of huge benefit to the sector, so I thank the Minister.
Mr Robert Goodwill (Scarborough and Whitby) (Con)
I am sure the Minister will be aware that, in many cases, this is not a deal that the tenant would have at the outset. It is when they fall behind with the rent that a proposition is made to them, so it is a choice between eviction or succumbing to this situation. In that case, the woman is in a very pressurised situation.
Victoria Atkins
Very much so. Of course, there can be additional pressures, even to those my right hon. Friend has described—for example, if the victim is worrying about housing themselves and their children. We understand, and have great sympathy with, the motivation behind the new clauses.
In 2019, the Crown Prosecution Service amended its guidance on prostitution and the exploitation of prostitution to include specific reference to the potential availability of charges under the section 52 and section 53 offences where there is evidence to support the existence of sex for rent arrangements. I am advised that there is a case in the criminal justice system at the moment in which sex for rent allegations are being prosecuted under those sections. Of course, I will not comment further, because it is sub judice, but the outcome of that case will help to improve our understanding of the effectiveness or otherwise of the legislation as it is at the moment.
We are looking at understanding the barriers to pursuing such cases. We have heard evidence that this practice may be widespread; the hon. Member for Stockton North referred to the Shelter survey, which extrapolated that there may be up to 30,000 victims of this type of coercion. However, the problem is that those numbers are not reflected in reports to the police. As with so many hidden crimes, domestic abuse being but one example, cases are often not reported to the police, so there is a bit of a chicken and egg situation: if the crimes are not reported, the police of course cannot investigate them, and prosecutions cannot be brought. Again, like many other hidden crimes, there is an element of raising awareness and enabling people to seek advice and help and to report crimes to the police so that they can then be protected through the criminal justice system and the offenders can be brought to justice.
We are conscious of the role of online services as well. Under our new legislation that is coming forward—the Online Safety Bill—tech companies will for the first time have a legal duty to prevent criminal activity on their services. The new legislation will apply to services that host user-generated content or enable users to interact online. This will cover a broad range of services that could be used to facilitate sex for rent, including online marketplaces, classified ads sites and social media services. Services in the scope of the new legislation will have to put in place systems and processes to limit the spread of illegal content and to swiftly remove any illegal content that may harm individuals when those services become aware of it. We also need to make sure that online advertising regulation is fit for purpose. The Department for Digital, Culture, Media and Sport is considering tougher regulation on online advertising and will consult on this issue later this year.
We await the result of the case that is in the criminal justice system at the moment. I encourage anyone who is able, and who has the wherewithal, to report instances such as this to the police so that they can be investigated. I assure the Committee that we will examine this issue as part of our work on the violence against women and girls strategy. We are very aware of the vulnerabilities that people may find themselves in, as set out so eloquently by hon. Members, including my right hon. Friend the Member for Scarborough and Whitby. If constituents write to hon. Members, please encourage them to report their cases to the police if they are able to, so that those cases can be investigated and brought to justice.
I therefore very much hope that the hon. Member for Stockton North feels able to withdraw his new clause.
Alex Cunningham
I welcome the Government’s work in this area. The fact that the number of prosecutions, and even of reports, is not reflected in the numbers reported through the likes of Shelter is a tragedy in many ways. Perhaps the Government should think about what they can actually do to encourage more people to come forward and report these offences.
I do not want to be insensitive about this in any way at all, but it would appear from what the Minister said—she did not spell it out as explicitly as I am going to—that the letter of the law would apply the word “prostitute” to a person who has provided sex for rent. I would be very happy to be corrected about that, but that is the whole implication: if the person has to identify as a prostitute under the law in order for the prosecution to take place, she is being called a prostitute. That is where the tremendous barrier exists to people coming forward. Is there a reason for that?
Victoria Atkins
To clarify, looking at section 52 of the Sexual Offences Act 2003 in particular, I would not want a victim who is going into a police station to report this offence to be under the impression—this is what I was trying to address—that she has to sit there and declare, “I am a prostitute.” That is absolutely not what is required. Section 52 states:
“A person commits an offence if… he intentionally causes or incites another person to become a prostitute”.
As I say, it is semantics, and there is a wafer-thin cigarette paper between us, but I would not want vulnerable people to think that they have to go into a police station and declare themselves to be that, because, of course, they are victims of a crime.
Alex Cunningham
I appreciate that clarification, but the fact remains that the prosecution requires that word to be used in the system. For me, that means that we need a newly defined clause in this area, so I am going to press new clause 63 to a vote.
Question put, That the clause be read a Second time.
The Chair
With this it will be convenient to discuss new clause 67—Crossing a significant age threshold between commission of offence and sentence—
“The Sentencing Act 2020 is amended by the insertion after section 58 of the following—
‘Chapter 1A
Crossing a significant age threshold between commission of offence and sentence
58A Crossing a significant age threshold between commission of offence and sentence
Where because of the age of the offender there is a difference between the sentence which may be imposed at the date of conviction and the sentence which could have been imposed on the date on which the offence was committed, a court may only pass a more severe sentence than the maximum that the court could have imposed at the time the offence was committed if there are exceptional reasons to do so.’”
This new clause is intended to put into law the advice at para 6.3 of the Sentencing Guideline on sentencing children and young people regarding sentencing when a significant age threshold is passed between the date of conviction and the date of the offence.
Alex Cunningham
This is an issue that I am personally very passionate about, so I am pleased to speak to these new clauses. The Minister will remember our long exchanges on maturity and young people during our debates last year on the Counter-Terrorism and Sentencing Act 2021. My sincere thanks go to Just For Kids Law for the vital work that it does supporting the legal rights and entitlements of children and young people and for its informed and extremely helpful input on these new clauses. I am also grateful to my hon. Friend the Member for Hove for the energetic campaigning that he did in this area, standing up for young people in our justice system.
New clauses 66 and 67 address the issue of unjust outcomes for young people who commit offences while they are still children but, because of delays that are not within their control, are not convicted and sentenced until they have turned 18 and so are legally adults. Each year, approximately 2,500 children offend as children but turn 18 prior to conviction. Turning 18 prior to plea or conviction is likely to impact around one in 10 children who are cautioned or sentenced, so we are talking about a significant number of youth cases.
New clause 66 would mean that the reduced rehabilitation period provided for by section 5(2) of the Rehabilitation of Offenders Act 1974 applied to all those who committed an offence while under the age of 18, instead of only those who were convicted of an offence when under 18. This would provide a consistent approach to childhood offending by ensuring that the same rehabilitation period was applied to all those who committed an offence while under the age of 18, including those who turned 18 prior to conviction or sentence, instead of only those who were convicted of an offence when under 18.
Sarah Champion
Does my hon. Friend share my concern that, because the courts are clogged up, such examples are likely to become more and more pronounced in the coming months and years?
Alex Cunningham
Indeed, yes. I know that the Government are working hard to clear the backlog, but the fact remains that the backlog is considerable, and it will impact on young people in the system. As a direct result of those problems, many young people will turn 18 before they have their trial and their case heard.
Our idea would mean that children who committed offences as children received a child’s spending period, which is a principle with which I would have thought all members of the Committee could agree. The criminal records system for children in England and Wales is already highly punitive compared with such systems in other countries. The Opposition are enthusiastically supportive of the Government’s direction of travel on criminal records, as shown with respect to our consideration of clause 163. None the less, as I said then and say again now, there is room to go further.
As Just for Kids Law notes, rehabilitation periods for those who turn 18 will generally remain more than double those for under 18s. For example, following custodial sentences of more than one year and up to four years, rehabilitation will be four years for those convicted over the age of 18, compared with two years for those convicted under 18, and that is regardless of the age of the person on the date the offence was committed. We know, and have discussed previously in Committee, the serious impact that disclosure of a criminal record can have on an individual’s access to employment, which in turn can have consequential impact on the individual’s ability to move on to a crime-free life.
That issue is especially pertinent to very young adults. In an excellent submission to the Committee, the Transition to Adulthood Alliance said:
“In young adulthood, there is a crucial window of opportunity where a pro-social identity and desistance from crime can be cultivated. The ‘plasticity’ of their brains means that it is a particularly good time for learning, personal growth and the development of pro-social identity… However, by virtue of their stage of development, young adults can quickly become disillusioned and disengaged from professionals if support is not forthcoming, appropriate or timely.”
It concludes:
“Young adults’ experiences of the justice system are therefore of utmost importance in determining their capacity to build a crime-free future, develop their potential, and contribute to society.”
The Transition to Adulthood Alliance is referring to young adults as those aged up to their mid-20s, and it bases its case on an irrefutable and growing body of evidence that the brain is not fully formed until at least the mid-20s, which means that young adults typically have more psychosocial similarities to children than to older adults in their reasoning and decision-making.
I have said throughout our consideration in Committee that the Bill does not do enough to recognise those maturity issues, but the injustice created by the Government’s lack of consideration of the issue of maturity is felt most keenly here—when we treat a child of 17 years and 364 days as a child, but treat the same person completely differently when only a day more has passed. Surely our intention is to support youth offenders to rebuild their lives far from patterns of offending, yet imposing longer rehabilitation periods on some child offenders—those unfortunate enough to have been convicted after they turned 18 because of some delay in court listing or a police investigative delay—will make it harder for them to do so, and indeed may even contribute further to their disengagement and disillusionment with the system.
I would be interested to hear whether the Minister thinks that is something the Government could consider addressing. We are enthusiastic about the direction of travel on criminal records, and I hope that this proposal might be something he feels his Department could include in its ongoing work on criminal records reform.
Let me turn to new clause 67, which would put in law the advice at paragraph 6.3 of the guidelines on sentencing children and young people, which states:
“When any significant age threshold is passed it will rarely be appropriate that a more severe sentence than the maximum that the court could have imposed at the time the offence was committed should be imposed.”
That principle already has cross-party support, as well as wide support in the sector among lawyers and academics alike.
I recognise the great work that the hon. Member for Aylesbury (Rob Butler) has done on the issue and acknowledge the wealth of professional experience and wisdom that he brings to it. If a child is convicted but turns 18 prior to sentence, they are entitled to receive a youth sentence. If they turn 18 before conviction, the youth court may retain sentence if crossing the age threshold would occur during proceedings, but if they turn 18 before proceedings start, they can no longer receive youth sentences even if they committed the offence as a child.
Just for Kids Law has pointed out what that means:
“Only adult disposals will be available to the court, despite the defendant being sentenced for offences committed as a child. As a result, they become subject to the purposes of adult sentences which include deterrence, punishment of the offender and protection of the public. This is a significant shift from the purposes of child sentences, which have the prevention of reoffending as the principal aim, and the welfare of the child as a central consideration.”
Surely sentences are meant to reflect the criminality of the offence, which is determined by the circumstances of that offence, not the random date on which the case was finalised.
I have mentioned this matter time and again—it needs to be addressed—but the overwhelming backlog of court cases further exacerbates such injustices. According to Crest Advisory, Ministry of Justice figures published this week show that at the end of March the number of outstanding cases in magistrates courts was 396,419—21% higher than in March 2020. Outstanding cases in Crown court at the end of March were up 45% and at their highest since records have been compiled in such a way, with 59,532 cases still not completed.
It is particularly relevant to our discussion that timeliness has got much worse. It is taking far longer for cases to be resolved. In magistrates court, at the start of this year the average period from an offence being committed to a case being completed was 200 days—nearly seven months. Even at the start of 2020 it took 175 days. In Crown court it is even worse, and the median period for a case to go from offence to completion is 363 days—almost a year. That is a long time in which a child may turn 18. That would be no fault of their own, but it would be the fault of the Government with respect to tackling the backlog. Turning 18 during that time has significant impact on the outcome of children’s cases: they are prosecuted in adult courts, so the opportunity to benefit from the youth justice system is lost.
Does the Minister think that the aims of the youth justice system—preventing reoffending and protecting the welfare of children—should expire because of his backlog? He and I have butted heads over the backlog many times, and he often points towards the impact that covid has had on the justice system. I agree that that has been significant, although there were serious issues before the pandemic. Does he think the aims of the youth justice system should be allowed to expire because of the pandemic? Is that a reasonable justification for denying children who later move officially into adulthood the benefits of the youth justice system? I hope he agrees that it is not and that he will support the aim of the new clause, which would provide a consistent approach to childhood offending and ensure that those who turned 18 between the offence being committed and sentencing were not subject to more severe sentences than the maximum the court could have imposed when the offence was committed, unless there were exceptional reasons to do so.
Sarah Champion
Does my hon. Friend agree that the point of our justice system is to be seen to be acting without fear or favour in a fair way, and that for a child this would not be considered fair?
Alex Cunningham
Exactly that. I am sure that young people will be confused by a system in which, all of a sudden, they find themselves appearing in adult court instead of youth court, particularly if they have previous convictions. They will be bamboozled by it all and frightened by the process.
The UN Committee on the Rights of the Child has been clear:
“Child justice systems should also extend protection to children who were below the age of 18 at the time of the commission of the offence but who turn 18 during the trial or sentencing process.”
Children who offend as children should feel the benefit of the youth justice system and should be afforded access to the same sentencing framework. That would give those children a better opportunity to be diverted from a cycle of reoffending and help them to rebuild their lives, which is something I am sure every member of the Committee thinks is worth aspiring to. I look forward to the Minister’s response.
Chris Philp
I am conscious of time, so I will try to respond concisely. On new clause 67, when the offender has crossed a significant age threshold such as the age of 18 between committing the offence and being convicted and sentenced, the sentencing guidelines already say that the sentence that should be adopted as a starting point is that which would have applied at the time of the offence—that is to say, when the offender was younger.
Courts already have a duty under section 59 of the Sentencing Act 2020 to have regard to sentencing guidelines in those cases unless that would be clearly contrary to the interests of justice. The new clause would not make any material difference to the way the system operates because of the sentencing guidelines currently in force.
On the more general points about maturity and how people take until the age of 25 to mature, as the shadow Minister said, we have debated the issue many times—in particular, almost exactly a year ago during the passage of the Counter-Terrorism and Sentencing Act 2021. Pre-sentencing reports, which are prepared, take into account, and judges then take into account on sentencing, the maturity of the defendant when they are being sentenced.
The shadow Minister made some points about court backlogs, which I am going to address only briefly. Obviously, court backlogs have developed as a consequence of coronavirus, which is the case across the world. Huge extra resources—more than half a billion pounds—have been put into reducing those outstanding case loads, which in the magistrates court are falling consistently, as they have been for quite some time. Of the excess case load caused by coronavirus, about half has been eliminated already. Every week that goes by, the outstanding case load drops by—the last time I checked—about 2,000 cases.
On the Crown court, we have nightingale courts. There are no limitations on sitting days, and I believe the corner has been turned. Looking forward to a time when social distancing is eased in the very near future, I expect the courts will be running even more cases.
As the shadow Minister generously recognised, the Bill significantly reduces rehabilitation periods for children and for adults, which I think we welcome across the Committee. On the starting point, or the rehabilitation point, the regime that applies is calculated from the point of conviction, rather than the point of offence.
Alex Cunningham
Regardless of the duty on the court to which the Minister refers, it remains a fact that children are receiving sentences under the adult regime. There is no two ways about that. What concerns me most is the rehabilitation period. A child who commits an offence as a 17-year-old who does not appear in court until he is 18 can end up with a rehabilitation period of four years, which takes him to his early 20s. All that time, if he is applying for a job or with respect to other activities, he must declare that. That is a real concern for me.
I am not going to push the new clauses to the vote at this time, but the Government need to do much more thinking in this area and start treating children as children. I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 69
Poaching of game
“(1) The Game Laws (Amendment) Act 1960 is amended as follows.
(2) In section 2(1), after “committing” insert “or has committed”.
(3) In section 4(1)—
(a) after “section thirty” insert “or section thirty two”, and
(b) at end insert “or any animal, vehicle, or other article belonging to him, or in his possession or under his control at the relevant time.”
(4) In section 4(2), after “gun” in lines 2 and 4 insert “, animal,”.
(5) In section 4, at end insert—
“(6) The court by or before which a person is convicted of an offence under either the Night Poaching Act 1828 or the Game Act 1831 may order the offender to reimburse any expenses incurred by the police in connection with the keeping of any animal seized in connection with the offence.”
(6) In section 4A(1)—
(a) in line 1, after “under” insert “section one or section 9 of the Night Poaching Act 1828 or”,
(b) after “thirty” insert “or section thirty two”, and
(c) omit “as one of five or more persons liable under that section.””.—(Mr Goodwill.)
This new clause is intended to broaden the powers available to the police and the courts for dealing with illegal hare coursers, measures include providing for forfeiture of animals on conviction and permitting the recovery of expenses incurred by the police in housing a seized animal.
Brought up, and read the First time.
The Chair
With this it will be convenient to discuss new clause 70—
“Game Act 1831 penalties—
“(1) The Game Act 1831 is amended as follows.
(2) In section 30 (trespassing in search or pursuit of game)—
(a) for “level 3” substitute “level 5”, and
(b) delete “and if any persons to the number of five or more together shall commit any trespass, by entering or being in the daytime upon any land in search or pursuit of game, or woodcocks, snipes, or conies, each of such persons shall, on conviction thereof before a justice of the peace, forfeit and pay such sum of money, not exceeding [level 4] on the standard scale] as to the said justice shall seem meet.””.
This new clause would remove any cap on the amount of the fine, and remove the requirement for a minimum of 5 persons.
Mr Goodwill
The new clauses would strengthen the powers of the police and the courts to tackle the thorny and persistent problem of illegal hare coursing. Hare coursing is a form of poaching whereby offenders trespass on private land in pursuit of hares with dogs, but that is not simply about taking one for the pot. Rather, it involves high-stakes illegal gambling, as dogs are pitted against each other in a test of their ability to chase, catch and kill hares.
Coursing contrasts with traditional poaching—I have a picture in my mind of Claude Greengrass in “Heartbeat”, which was filmed in my constituency—in that the carcases of the dead hares are cast aside as waste and often left to rot in the field after the kill. Offenders destroy gates and fences to gain access to the land, and tear up newly sown crops as they follow the chase in their vehicles. The hare coursing season, for want of a better word, runs from August to March, between the harvest being cleared from the fields and the new crops getting out of the ground. Coursing is normally, but not exclusively, undertaken on areas of flat arable land, and often filmed from a vehicle and livestreamed across the internet. Large amounts of money are illegally bet on the outcome of the chase and ultimately, and almost inevitably, the kill.
The dogs involved in the sport are highly prized by their owners due to their ability to win large amounts of money. Police have the power to seize dogs at the scene of the incident, but cannot reclaim the cost of looking after them from the offender if a conviction is secured. There can be a number of months between the seizing of a dog at the time of the offence and the trial, imposing severe pressure on the budgets of police forces. As a result, many forces do not seize the dogs at first investigation, but it is impossible for courts to issue a forfeiture order if the animal is not already in custody.
New clause 69 would strengthen the ability of the police to seize dogs, as it would enable the investigating police force to be reimbursed for the cost of kennelling confiscated dogs pending trial. That would sweep away the budgetary burden on police forces and empower officers to remove dogs from fields, which ultimately means removing the tools of the trade from hare coursers.
A broad coalition of organisations has come together to support those legislative changes, including the Country Land and Business Association, the National Farmers Union and the Royal Society for the Prevention of Cruelty to Animals—three organisations of which I am a member—as well as the Countryside Alliance, the Tenant Farmers Association and the Kennel Club.
The changes are also supported by officers working on the police’s national approach to hare coursing, which is known as Operation Galileo. Police have begun to investigate the links between hare coursing and organised crime. In September 2018, Thomas Jaffray was jailed for 13 years and four months after being found guilty of conspiracy to supply cocaine, amphetamine and cannabis, and a conspiracy to launder the proceeds of crime. Jaffray was regularly involved in hare coursing in Lincolnshire and other parts of the country.
The leader of Operation Galileo, Chief Inspector Phil Vickers, has said that
“rural communities rightly expect us to use all of the tools at our disposal to tackle offending, and by developing our understanding of the criminal links, we can do just that.”
However, occasions on which there is betting activity are not the only problem. The participants see coursing as a sport in which they need regularly to train their dogs, and the Country Land and Business Association estimates that tens of thousands of hares are slaughtered each year in illegal hare coursing, with members reporting multiple incidents each week with up to 10, and sometimes as many as 20, hares being killed by dogs on each visit.
This year’s National Farmers Union rural crime survey found that 41% of farm businesses had experienced hare coursing during 2020. I should point out that neither of my new clauses attempts to interfere with the Hunting Act 2004, which the Government have a manifesto commitment not to amend.
New clause 70 makes proposals in relation to the fine that could be imposed when an individual was convicted of hare coursing offences. Fines imposed under section 30 of the Game Act 1831 are set at level 3, which means that there is a cap of £1,000. Evidence collected by the CLA refers to hare coursing convictions spanning 15 years and lists 175 separate convictions, 75% of which were brought under the 1831 Act. The CPS specifically recommends the use of that Act for hare coursing offences. Sentencing data from the same 15 years show that fines amount to just a couple of hundred pounds, even for repeat offenders. In essence, that amounts to the cost of a day out for those individuals in pursuit of their so-called sport.
The new clause would increase the financial risk attached to the practice of hare coursing better to reflect the anguish and damage caused by those offenders, against the backdrop of the large financial reward they collect for, in essence, getting away with it or, at the very least, getting off lightly.
It would be remiss of me to conclude without highlighting the fear and anguish that hangs over farmers and landowners who are regularly targeted by hare coursers. These offenders are highly unsavoury individuals who often have a string of other offences to their name and who, if challenged, can become abusive, aggressive and threatening. Farmers and landowners live in constant fear of retribution if action is taken against the coursers. Physical threats are being made to farmers and straw stacks are vulnerable to arson attacks.
Hare coursing is a blight on our rural communities and an abuse of our precious wildlife. Men are running amok around the countryside without fear of penalty as police officers are poorly equipped with the legislative tools to match the contempt of these offenders. These new clauses offer an opportunity to equip our police officers and courts with the powers they need to tackle the problem head on and send a strong message that hare coursing will no longer be tolerated.
I look forward to hearing from the Minister that this is a problem recognised by the Government and that they intend to take action. It may well be that more measures could be taken. Indeed, I am sure that the Minister is aware that my hon. Friend the Member for North East Bedfordshire (Richard Fuller), who was fortunate in the private Member’s Bill ballot, has published the short title of his Bill, which seems to address this issue. I hope for reassurances from the Minister that will obviate the need to divide on this issue.
Sarah Champion
I fully support everything the right hon. Gentleman has said. This is not sport, but chasing down a wild animal to rip it apart for money. I am opposed to that, as I am to other blood sports. It is not done by local people, but people who come from all over the country in an organised manner. They do enormous damage to the land, and threaten and intimidate local people who expose their actions.
I agree that the fines for this brutish behaviour are far too small. These new clauses would put much better protections and sanctions in place. I also agree that if the police had the resources to take the dogs, that would be a much better threat to those people, because without the dogs they are unable to keep going with this so-called sport. Also, the dog is worth much more to them than the threat of the fine.
Victoria Atkins
I thank my right hon. Friend the Member for Scarborough and Whitby for bringing these new clauses before the Committee. I address the Committee as a Minister, but if hon. Members would indulge me for a moment, I will speak as a constituency MP. My right hon. Friend mentioned Chief Inspector Phil Vickers, who is my chief inspector. I am a Lincolnshire MP and my constituency suffers terribly from the crime of hare coursing.
These can be terrifying crimes for the farmers and landowners on whose land they are committed, because if a farmer or someone working on the farm dares to challenge those people, they can, in most cases, find out where they live. I have had instances where farmers have been worried about their family’s safety and their own safety at home, because of the fear that, in going out in the middle of the night and challenging the hare coursers, they will alert the criminals to where they live or the vicinity of where they live.
These are serious crimes that can have a huge impact on the landscape, and hares within our constituencies as well. They are the most beautiful creatures. Watching one gambolling along across a field as dawn is rising can be a very beautiful view in our countryside, yet these people come fully equipped with huge lights and, often, stolen vehicles. Money is bet on the ways in which the hare will turn, or which dog will prevail, which is truly unpleasant.
Mr Goodwill
I am pleased to hear what the Minister has said and I am satisfied that the Government take this issue seriously—not just because of the words that I have heard her say now, but also because I was contacted by the office of the Secretary of State for Environment, Food and Rural Affairs, who has asked me for a meeting on the strength of the new clauses. It makes a nice change for Cabinet Ministers to ask Back Benchers to meet them to discuss issues. I am optimistic that action will be taken and hope that tabling the two new clauses has done precisely that. I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 71
Child criminal exploitation (No.2)
“(1) A person (A) commits the offence of child criminal exploitation if—
(a) A intentionally takes advantage of an imbalance of power over another person (B) to coerce, control, manipulate or deceive B into committing a criminal offence,
(b) A is aged 18 or over, and
(c) B is under 18.
(2) A person guilty of an offence under this section is liable on conviction on indictment to imprisonment for a maximum of 14 years.”—(Alex Cunningham.)
This new clause would define and create an offence of child criminal exploitation with a maximum prison term on conviction on indictment of 14 years.
Brought up, and read the First time.
The Chair
With this it will be convenient to discuss
New clause 72—Internal concealment of banned substances—
“(1) A person (A) commits the offence of internal concealment of banned substances if—
(a) A inserts packages of banned substances into the body of another person (B), with or without B’s consent, or
(b) A intentionally takes advantage of an imbalance of power over B to coerce, control, manipulate or deceive B into inserting packages of banned substances into B’s own body,
with the purpose of concealing the transport of those banned substances.
(2) A person guilty of an offence under this section is liable on conviction on indictment to imprisonment for a maximum of 10 years.”
This new clause would create an offence of internal concealment of banned substances, meaning inserting packages of banned substances into the body of another person, or coercing another to insert banned substances into their own body, for the purpose of concealing the transport of those banned substances. This would be punishable on indictment with a prison term of a maximum of 10 years.
Alex Cunningham
Child criminal exploitation—the grooming and forcing of children to commit criminal acts by adults—is an emerging and fast-growing phenomenon. I have terrible problems saying the word “phenomenon”. Maybe I should have a drink—I assure you it is water, Mr McCabe.
Child criminal exploitation is often present in, but is not limited to, county lines activity. According to analysis by Labour of national referral mechanism statistics, up to 3,000 children are known to be criminally exploited every year, yet the real number is likely to be significantly higher, given that these figures are based only on the children known to services. As my hon. Friend the Member for Rotherham said in her speech on new clause 17, the Children’s Commissioner estimates that at least 27,000 children are at high risk of gang exploitation. That is a truly horrifying figure.
Under the law as it currently stands, the only way to prosecute child criminal exploitation is through subsidiary offences—for example, possession with intent to supply—or under modern slavery legislation. The problem is that modern slavery legislation is poorly suited to the specific nature of child criminal exploitation. As written answers to parliamentary questions submitted by my hon. Friend the Member for Hove show, only a handful of modern slavery orders are handed out each year. We also know that between 2019 and 2020 only 30 charges were flagged as child abuse under the Modern Slavery Act 2015. We need a specific, singular offence of child criminal exploitation with a maximum tariff that acts as a real deterrent to those who exploit vulnerable children in this way. That is what new clause 71 seeks to do.
Under the new clause, an adult would commit an offence if he or she intentionally took advantage of an imbalance of power over a child in order to coerce, control, manipulate or deceive the child into committing a criminal offence. Any person found guilty of this offence would be liable to imprisonment for up to 14 years, in keeping with the maximum sentences applicable for causing or inciting the sexual exploitation of a child. As my hon. Friend the Member for Rotherham said during our sixth Committee sitting, all too frequently it is the children who have been exploited who end up taking the rap, rather than being recognised for what they are—victims.
It is hardly surprising that in 2019-20 1,400 children were first-time entrants in the youth justice system due to drug offences and around 2,000 were first-time entrants due to weapons offences. Both crimes are heavily associated with child criminal exploitation, which raises the question: how many children are currently in custody as a direct consequence of being exploited by an adult? It would be interesting to know just how many children are in custody, so does the Minister have any information on that? As my hon. Friend has said, they are not criminals, but victims—in other words, children who have been exploited by adults to commit crime. And we can repeat that sentence time and again.
While the child victims of this horrendous crime languish in jail, their future prospects almost certainly ruined, the failings of the criminal justice system mean that the real criminals go untouched. We have raised this issue in previous speeches, particularly in relation to young people carrying knives or drugs, the latter on behalf of a controlling adult who is part of an organised criminal gang.
By creating a new specific offence of child criminal exploitation, we would allow for direct action to crack down on the gang leaders who are currently committing their crimes with total impunity. The Minister must recognise that the current law is not working. It is letting down child victims of horrendous crimes, while letting gang members off the hook.
The Government must take far more radical action to combat this crime. Creating a legal framework specific to child criminal exploitation is key to that. The Government say they take child criminal exploitation seriously, but now it is time for them to show it, so I look forward to hearing the Minister’s response on new clause 71.
I will now speak, relatively briefly, about new clause 72. Once more, I pay tribute to my hon. Friend the Member for Hove for tabling new clause 72, and I wish him well in his new post as shadow Schools Minister—a job I would have quite fancied myself. New clause 72 would create a new criminal offence of plugging, or the placing of banned substances into the body of another person, or coercing another to insert banned substances into their own body, for the purpose of transporting and concealing them.
As we heard from Iryna Pona of the Children’s Society during our evidence session on 23 May:
“Plugging is when young people are exploited by criminal groups to deliver drugs across the country and—sometimes—they are delivering those drugs inserted in cavities in their bodies.”––[Official Report, Police, Crime, Sentencing and Courts Public Bill Committee, 23 May 2021; c. 127.]
Plugging has been specifically recognised by the National Crime Agency as a particularly malicious form of child criminal exploitation perpetrated across county lines. For the children who are exploited to carry drugs in this way, the experience they suffer is simply horrendous. Naturally, it is also a great risk to their health and could even cause their death.
As is the case with child criminal exploitation, there is currently no specific area of law that criminalises those who exploit children to carry drugs in this way. Likewise, they cannot be prosecuted under existing sexual offences legislation, due to a lack of sexual intent. Again, we are left with a gap in legislation, which categorically fails victims of this horrendous crime, many of whom will be children, while letting the real criminals—dangerous criminals—off the hook.
When my hon. Friend the Member for Croydon Central asked the witness from the Children’s Society whether they thought there would be a benefit in trying to define plugging in terms of a specific criminal offence, the answer was instantaneous: yes.
Once again, as with child criminal exploitation, the Opposition are pleased to give the Government a chance to come up with the goods. New clause 72 would create a new and specific offence to criminalise the act of placing drugs into a person’s body for the purposes of trafficking them or coercing a person to do it themselves. Those found guilty of this new offence could expect to serve a custodial sentence of up to 10 years’ imprisonment.
By creating a specific offence, we could introduce a significant deterrent to gang leaders and extend the time spent in prison by those convicted of child criminal exploitation. I look forward to receiving the Minister’s support.
Victoria Atkins
I am conscious that we have already touched on some of these issues in the debate on new clause 17, which I will try not to repeat. Child criminal exploitation is a heinous form of abuse, and the Government are determined to tackle it. The exploitation, degradation and assault of a young person to conceal drugs internally for transportation, known as plugging, is immoral and unlawful and, again, the Government condemn it.
We are taking action to target those who seek to exploit vulnerable children through county lines operations. Earlier this year, we announced £148 million of investment to tackle drugs misuse and supply, along with county lines activity. That includes £40 million of investment dedicated to tackling drugs supply and county lines activities, and represents a surge in our activity against those ruthless gangs. That will allow us to expand and build on the results of our existing county lines programme, through which we have set up the National County Lines Co-ordination Centre to improve the intelligence picture and co-ordinate the national law-enforcement response, which includes protecting those young people who are abused and exploited.
Turning to the question of creating a specific offence of child criminal exploitation, we have discussed this issue carefully with law enforcement and others and, on balance, we are of the view that existing legislation is sufficient to address the exploitation of young people for criminal purposes. In particular, the Modern Slavery Act 2015 provides for the offences of slavery, servitude and forced or compulsory labour, as well as human trafficking for all types exploitation. For child victims, it is sufficient to show that they have been chosen for exploitation because of their youth. There is no requirement to prove force, threats or deception, which may, in particular circumstances, be difficult to prove. A range of civil orders are available to law enforcement partners to respond to county lines and child criminal exploitation, including modern slavery and trafficking prevention orders, and modern slavery and trafficking risk orders.
To promote good use of those orders, the NCLCC has established a dedicated orders team to identify children and the perpetrators who exploit them, and to help forces with the application of such orders; to disseminate guidance and deliver training to local forces to upskill local force understanding; and to work with regional leads to improve best practice in gathering data on the use of orders in a county lines context. We are also committed to improving local safeguarding arrangements.
With the Department for Education, we commissioned Liverpool John Moores University to examine the effectiveness of multi-agency safeguarding partnerships in dealing with young people who are at risk or who are involved in serious violence and county lines. It has reported, and we are considering its recommendations. In addition, we have funded dedicated support for those who are at risk and who are involved in county lines. Between June 2020 and June this year, that work was carried out by the St Giles Trust, which worked with 170 young people to help them leave exploitation and exit gangs and other forms of coercion.
We continue to fund the Missing People SafeCall service, which is a national confidential helpline for young people, families and carers who are concerned about county lines exploitation, and we are funding the Children’s Society Prevention programme, which works to tackle and prevent child criminal exploitation as well as other forms of abuse and exploitation. We are therefore committed to tackling child criminal exploitation and bringing the perpetrators to justice, but we do not, on balance, believe that a specific offence would change the way in which young people are supported. Our efforts focus on improving the practical response to such criminality. We keep the legislative framework in connection with child criminal exploitation under review, and of course we will consider any additional evidence that supports the view that additional legislation is required as it arises.
Alex Cunningham
I agree with the Minister that a lot of work has to be done with support, safeguarding and everything else, but the income of local authorities has been devastated in recent years and the ability to provide the range of services required is somewhat compromised. That makes such situations all the more difficult for young people.
The Minister talked about the Modern Slavery Act, and so did I. Although it is a relatively young piece of legislation, it has rarely been used. I am not aware of any prosecutions whatever to do with the issues I have raised today—
Victoria Atkins
I will not cite cases, but I believe the first prosecution was in Cardiff Crown court, involving a county lines gang who originated in the south-east. I do not recall the details, but I would not want the Committee to think that it had not been used. I appreciate that the hon. Gentleman said that he was “not aware” that it had been.
Alex Cunningham
I was referring specifically to the child exploitation element and the plugging offence. I am aware of no specific prosecution on those things. For me, it is a matter of child protection—of adult protection as well, in some cases—and we feel strongly about both the new clauses. We intend to press both new clauses to a vote.
Question put, That the clause be read a Second time.
Hywel Williams (Arfon) (PC)
I beg to move, That the clause be read a Second time.
During previous consideration, I raised with the Minister the effects in Wales of some provisions in the Bill. She assured me that those matters are reserved, and that is indeed correct. However, the justice system is just that—a system—and the consequential effects of some of these provisions inevitably extend to matters that are the responsibility of the Senedd in Cardiff and the Labour Government. What those detailed effects might be, one can only surmise at present, but given the substantial interweaving between the implementation of the provisions in the Bill and those matters under the Senedd’s authority, one can only suspect that they will be substantial and significant. Hence we have tabled this new clause, which would require the Secretary of State to issue an assessment of the impact of the Bill on devolved policy and services in Wales within six months of its passing and to issue such an assessment for any further changes in relation to regulations under the Bill within one month of making them.
For the benefit of Committee members who may not be wholly conversant with the intricacies of Welsh devolution, let me explain that the Senedd has policy responsibility, and the power to legislate, in respect of large parts of public provision relevant to this Bill—for instance, health and, importantly for us here today, mental health; local government including, significantly, social services and housing; education up to and including higher education; equalities; the Welsh language; and economic policy in respect of training and employment. The Senedd also funds about half the costs of policing in Wales.
Then there are the policy implications. Wales has a higher rate of imprisonment than England—in fact, we have the highest rate of imprisonment in western Europe. The Welsh Labour Government have a framework to reduce that number. This Bill will lead to higher numbers in jail, one supposes. Wales has a higher rate of imprisoning black and minority ethnic people than England, and the Senedd has a race equality plan. The provisions of this Bill, particularly in relation to stop and search and on bladed weapons, are likely to lead to an increase in the imprisonment of young black men, which will be at odds with the Senedd plan. The Assembly, as it was then, has taken a “wellbeing approach” to many aspects of social provision. The Bill obviously has a more forthright law-and-order stance and thereby is inconsistent with Welsh public policy.
Furthermore, implementing policy requires human resources and costs money. For example, an increase in the number of people in prison would most likely lead to an increased demand for mental health services inside Welsh prisons from without—the local health board. HMP Berwyn at Wrecsam springs to mind. It is the largest prison in the UK and the second largest in Europe. It accommodates many prisoners from outside the health board area and, indeed, from England—people who would not normally use its services. The health board might well be reimbursed for the monetary cost of providing those services, but we all know of course that mental health services are chronically short not just of money but of staff. This could be a substantial burden on the local health board, but we will not know beforehand; there is to be no impact assessment.
An increase in the number subsequently released would have implications for the demand for housing, education, training and jobs. I could go on, but I think the Committee will have already seen how the system in its entirety might be affected. After all, it is a system.
The consequences for the implementation of Senedd policy is not my only concern. The Senedd is a legislature—it passes law—so the question of the effect of the Bill, if enacted, when there is a divergence between the law at either end of the M4 also arises. For example, will the Secretary of State then seek to direct devolved services or at least to influence them, perhaps without the consent of Welsh Ministers? I have to say that this would be entirely unacceptable. Indeed, it would be directly contrary to the clear will of the people of Wales, as expressed in the referenda on the powers of the Assembly, as it was then, most recently in 2011 under the former Conservative Government.
The Minister might say that there are agreements in place between the Ministry of Justice and the Welsh Government to account for divergence, such as the memorandum of understanding in 2013, upon which a concordat in 2018 was produced to establish a framework for co-operation, and that might be sufficient. When I asked the Minister about the memorandum in the context of the development of this Bill, it was unclear, to me at least, whether the concordat processes were followed—not least, whether they were followed effectively—because her response was that she would write further to the relevant Welsh Minister, Jane Hutt, following my question. Clearly, there was a process in place that perhaps has not been completed.
The Committee may not be aware of the work of the recent commission on justice in Wales, under the former Lord Chief Justice of England and Wales, Lord Thomas of Cwmgiedd. The report concluded that
“the concordat does not really address the problems or provide a sustainable or long-term solution to the effect of separating justice from other devolved fields.”
That was Lord Thomas’s conclusion. Although justice is not devolved to Wales at present, this apparently clear split is, I think, an oversimplification, for both the Senedd and the Welsh Government, as I said earlier, have introduced legislation and policies leading to a divergence in law and practice in Wales as compared with England.
This is, in fact, recognised in the Welsh law-making processes. Section 110A of the Government of Wales Act 2006, as inserted by section 11 of the Wales Act 2017, requires that new devolved Welsh legislation must be accompanied by a “justice impact assessment” to explain how it impacts on the reserved justice system in Wales. Therefore, what happens in Wales is subject to an impact assessment. However, there is no reciprocal requirement on the UK Government or Parliament to report on the impact that changes to the reserved England and Wales justice system will have on devolved services in Wales, and, as I said earlier, those might be quite profound.
For all these reasons, I believe that the proposals in my new clause are required, and I am glad to have this opportunity to propose it, with the valued support of Labour and SNP colleagues. For me, the long-term practical solution is to devolve justice. Northern Ireland and Scotland now have their own jurisdictions, as I believe will Wales, eventually, but that is perhaps in the long term. In the meantime, quite frankly, it is just not good enough to say that matters in the Bill are reserved, and leave it at that.
Victoria Atkins
I am grateful to the hon. Gentleman for giving us an insight into the complexities and the balances that are a part of the devolution settlement for Wales. I imagine that the Committee’s SNP Member, the hon. Member for Ayr, Carrick and Cumnock, if he were here, would say the same about the Scottish devolution arrangements.
It may assist the Committee if I set out the provisions of the Bill that, in the view of the UK Government, relate in part to devolved matters in Wales and, as such, engage the legislative consent process. There are three such provisions. The first are those in chapter 1 of part 2 relating to the serious violence duty, so far as those provisions confer reserved functions on devolved Welsh authorities. The hon. Member for Arfon posed a question about the memorandum in that regard. I am able to help the Committee with the news that we are continuing to discuss with the Welsh Government the direction-making power in clause 17 relating to the duty.
Hywel Williams
I thank the Minister for that response, and I am grateful for the news that there are continuing discussions with the Welsh Government even at this rather late stage in the consideration of the Bill.
Obviously, we have a fundamental disagreement. I would hold that the context in Wales is sufficiently different to require a specific assessment. That context is not only the fact that policy may diverge, but the fact that there is specifically Welsh legislation that may impact the provision. However, at this point I am content to withdraw the new clause and possibly bring it back at some other time. I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 75
Automatic exemption from jury service for those who are pregnant, breastfeeding or on parental leave
‘(1) The Juries Act 1974 is amended as follows.
(2) In section 9, after subsection (2B), insert—
“(2C) Without prejudice to subsection (2) above, the appropriate officer shall excuse a person from attending in pursuance of a summons if—
(a) that person is pregnant,
(b) that person is breastfeeding, or
(c) that person is on parental leave.”’—(Alex Cunningham.)
Brought up, and read the First time.
Alex Cunningham
I beg to move, That the clause be read a Second time.
Motherhood has featured well in our deliberations today, and we are going to turn to it again, but first I want to pay tribute to all mothers. I am going to be a bit cheeky here and pay particular tribute to my own mother, who will be 88 in five weeks’ time, and to my dad, who will be 90 a few weeks later and who still looks after her in their own home—just a little indulgence there.
New clause 75 would provide an automatic exemption from jury service for those who are on maternity leave, breastfeeding, or pregnant. The Opposition have tabled it because the Government have yet to take the action called for by my hon. Friend the Member for Lewisham West and Penge (Ellie Reeves), who has been leading an important campaign on this topic in recent months. The issue is that there is no default exception from jury service for mothers of newborn babies who are still breastfeeding, and this can cause serious difficulties for the mother. I do not need to go into the proven benefits of breastfeeding because—perhaps unusually, given the general content of the Bill—I have already rehearsed those arguments in my speech on new clause 27.
Jury service is an important civic duty that we should all engage in, as I am sure every member of the Committee agrees—indeed, in our debate on clause 164 we all recognised the importance of extending possible engagement with jury service to more citizens. However, that cannot be done at any expense, and certainly not at the expense of the wellbeing and health of newborn babies and of mothers.
My hon. Friend shared a case in which an expectant mother deferred her jury service because it coincided with her due date. That much was fine, as the initial deferral went through, but her postponed jury service then fell within the first six months of her son’s life, during which she was exclusively breastfeeding him about every two hours. As my hon. Friend explained in her letter to the Lord Chancellor:
“The Court she has been asked to attend—York Crown Court—does not offer child-minding facilities. This creates a number of problems. As she cannot defer a second time and despite appealing the decision she is being forced to attend jury service even though it will compromise her ability to breastfeed her son during the first six months of his life. If there are no child-minding facilities, she cannot be with her son to breastfeed him unless she is allowed to bring him into the courtroom which clearly presents its own difficulties. Even if there are child-minding services made available at the Court, she will have to leave once every 2 hours to breastfeed her son.”
The Minister’s response to the case was:
“Your letter refers to your constituent making an application for a second deferral but does not mention whether she applied for an excusal. The gov.uk website provides examples of possible reasons for excusal but there is no exhaustive list. Though I cannot say that an application for excusal would have been granted in this case, potential jurors must have a good reason for applying which could include exclusively breastfeeding a child. Each application is considered on its own merit and if not granted in the first instance, there is a route of appeal whereby a judge would consider the application, either by considering the information available or arranging a short hearing to speak to the potential juror in person to discuss their reasons.”
Imagine someone undergoing postpartum recovery and caring for a newborn—up at all hours of the day and night, with all their days filled with responding to the needs of their new baby. Is it really appropriate that the Government should expect them to trawl though the Government website and go through an application process that may then be denied and need to be appealed by attending the court to speak to the judge? As my hon. Friend noted in her follow-up letter, absence of an exemption means that a new mother has to
“deal with the effort and stress of navigating a bureaucratic process to secure exemption when she should have been free to solely focus on her pregnancy and new-born.”
That is illustrated by the case of Zoe Stacey, with which I know the Minister is familiar. Zoe was called for jury service in May, while she was breastfeeding her then two-month-old child. Her application for an excusal was rejected, so she had to appeal the decision. All the while, she was breastfeeding her newborn after weeks of painful medical problems, as well as having to look after her other son, who is in pre-school four mornings a week. Surely Ministers recognise that this is a hugely stressful time for anyone, and it was made all the more difficult by the fact that Zoe had little family support nearby. In the end, she did receive an excusal, but she should not have had to go through such a stressful bureaucratic nightmare to get it.
My hon. Friend knows of more cases, some of which she shared in her correspondence with the Minister. I understand that the Under-Secretary of State for Justice, the hon. Member for Cheltenham (Alex Chalk), wrote to her earlier this week, informing her that the guidance has been reviewed and that some amendments have been made, including the addition of “new parent” as an explicit reason for possible deferrals or excusals and a change to Her Majesty’s Courts and Tribunals Service’s internal guidance so that it states explicitly that excusal applications on the grounds of caring responsibilities are to be considered sympathetically.
While my hon. Friend and I both appreciate that the Government are making an effort to address the problem, they are not going quite far enough. Why do excusal applications on the grounds of caring responsibilities need to be considered sympathetically? Why cannot it simply be that an excusal is guaranteed to be always granted in the case of a new parent when they ask for it? That does not remove the option of attending or deferring jury service if that is what the pregnant mother or new parent chooses; it simply ensures that any new parent has the automatic right to exercise an exemption if they wish to. I understand that the Government would not want to remove the choice to serve or defer from pregnant women and new parents, but they do not have to do that in order to provide a guaranteed exemption for all who want one. I hope that the Minister can see where we are coming from, and accept the amendment today.
Chris Philp
I am grateful to the shadow Minister for raising this issue. The Government do support the principle behind the amendment. New parents, including those breastfeeding or women who are pregnant, should be able to serve on a jury at a time that is suitable for them. As the shadow Minister has said, we are aware of some of these cases that we have corresponded about in recent months and, as a consequence, have already updated the guidance that Her Majesty's Courts and Tribunals Service uses to ask that a more accommodating and sympathetic approach is taken to somebody who responds to a jury summons by saying that they are pregnant, breastfeeding, or have very significant caring responsibilities in the way that he has described. Where that happens, a deferral is always considered in the first instance.
The hon. Gentleman mentioned the application process. Clearly, the summoning bureau will not necessarily know who is pregnant or who is looking after a child, so it is inevitable that there will always be some kind of application process; that cannot be avoided. The thing is that it is done in a way that is sympathetic. As I have said, that guidance has been changed already. We have also updated www.gov.uk'>www.gov.uk'>www.gov.uk'>www.gov.uk to make it clear that these are all legitimate reasons for requesting a deferral. I hope that a combination of that publicity on www.gov.uk'>www.gov.uk'>www.gov.uk'>www.gov.uk and the work on updating the internal guidance in response to some of the cases that the hon. Gentleman and his colleagues have raised addresses the underlying issue. We still think that a case-by-case consideration is appropriate rather than a blanket provision such as this, which perhaps does not capture all of the circumstances that may arise. Allowing discretion to continue is the best way of handling this, but the sentiment—the direction of travel—is exactly the same as that of the hon. Gentleman.
There are, in the way in which this new clause is drafted, some idiosyncrasies. For example, on a technical point, the hon. Gentleman refers to parental leave, but there are other forms of leave that do not count as parental leave. Maternity leave and adoption leave, for example, are considered as a different form of leave. I am sure that this was inadvertent, but, as drafted, some of those groups that one would wish to include have been unfortunately omitted. We are on the same page as the Opposition on this, but the change in the guidance and the publications on www.gov.uk'>www.gov.uk'>www.gov.uk'>www.gov.uk address the issues that have been raised.
Alex Cunningham
The Minister had an over-complicated response to what I thought was a relatively simple and straightforward matter. He talked about supporting the principle and he talked about sentiment. Surely, we could save the time, expense and, of course, the anguish around this process. Of course, there will have to be some communication between the person called for jury service and the court, but that could be very simple: “Dear court usher, or whoever you are, I am currently pregnant, or currently breastfeeding, please may I have the exception that is granted under Labour’s excellent amendment to this particular Bill.” It is very straightforward, and I cannot understand for the life of me why the Government cannot just say that if somebody in such a situation does not want to do jury service, they should not have to do it. For that reason, I shall press the matter to a vote.
Question put, That the clause be read a Second time.
The Chair
With this it will be convenient to discuss the following: Short title and chapter Extent of repeal Sexual Offences Act 1956 (c. 69) Sections 33 to 36 Street Offences Act 1959 (c. 57) The whole Act Sexual Offences Act 1967 (c. 60) Section 6 Criminal Justice and Police Act 2001 (c. 16) Section 46 Sexual Offences Act 2003 (c. 42) Sections 51A to 56 Policing and Crime Act 2009 (c. 26) Section 14 and 16 to 19”.
New clause 77—Commercial sexual exploitation by a third party—
“(1) A person commits an offence if—
(a) the person (C) assists, facilitates, controls, or incites, by any means, another person (B) to engage in sexual activity with another person (A) in exchange for payment, anywhere in the world; and
(b) the circumstances are that—
(i) the person (C) knows or ought to know that the other person (B) is engaging in sexual activity for payment; and
(ii) the person (C) assists, facilitates, controls, or incites the other person (B) to engage in sexual activity with another person (A) with the intention of receiving payment.
(c) Subsection (1) of this section is to be construed in accordance with section [Commercial sexual exploitation].
(2) A person guilty of an offence under this section is liable—
(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;
(b) on conviction on indictment, to imprisonment for a term not exceeding 10 years.”
This new clause criminalises pimping.
New clause 78—Advertising—
“(1) A person commits an offence if the person causes or allows to be displayed or published, including digitally, any advertisement in respect of activity prohibited by sections [Commercial sexual exploitation] and [Commercial sexual exploitation by a third party] of this Act.
(2) A person guilty of an offence under this section is liable—
(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;
(b) on conviction on indictment, to imprisonment for a term not exceeding 10 years.”
This new clause criminalises those who benefit from the advertising of sexual services. This includes ‘pimping websites’.
New clause 79—Extra-territoriality—
“(1) A person who is a UK national commits an offence under sections [Commercial sexual exploitation] to [Advertising] of this Act regardless of where the offence takes place.
(2) A person who is not a UK national commits an offence—
(a) under sections [Commercial sexual exploitation] to [Advertising] of this Act if any part of the offence takes place in the UK, and
(b) under section [Advertising] of this Act if any person in the UK pays money to any other person as a result or through the advertisement published or displayed.”
This new clause allows criminal prosecutions for acts contravening the relevant sections whether they occur within or outside the United Kingdom.
New clause 80—Immunity of victims—
“(1) A person (B), by reason of their involvement as a victim of an offence under sections [Commercial sexual exploitation] to [Advertising] of this Act by another person (A) does not commit an offence by doing anything which (apart from this paragraph) would amount to—
(a) aiding, abetting, counselling, or procuring the commission of an offence under sections [Commercial sexual exploitation] to [Advertising] of this Act by the other person (A);
(b) conspiring with the other person (A) to commit an offence under sections [Commercial sexual exploitation] to [Advertising] of this Act; or
(c) an offence under Part 2 of the Serious Crime Act 2007 (encouraging or assisting offences) in relation to the commission of an offence under sections [Commercial sexual exploitation] to [Advertising]of this Act by the other person (A); or
(d) an offence under section [Advertising] of this Act.
(2) In this section it is immaterial whether the other person has been convicted of an offence.”
This new clause ensures that those subject to commercial sexual exploitation do not find themselves criminalised by having ‘assisted’ the person buying sexual services.
New clause 81—Power of Secretary of State to disregard convictions or cautions—
“Section 92 of the Protection from Freedoms Act 2012 is replaced as follows.
‘92 Power of Secretary of State to disregard convictions or cautions
(1) A person who has been convicted of, or cautioned for, an offence under—
(a) section 12 of the Sexual Offences Act 1956 (buggery),
(b) section 13 of that Act (gross indecency between men), or
(c) section 61 of the Offences against the Person Act 1861 or section 11 of the Criminal Law Amendment Act 1885 (corresponding earlier offences),
may apply to the Secretary of State for the conviction or caution
to become a disregarded conviction or caution.
(2) A person who has been convicted of, or cautioned for, an offence under section 1 of the Street Offences Act 1959, may apply to the Secretary of State for the conviction or caution to become a disregarded conviction or caution.
(3) A conviction or caution becomes a disregarded conviction or caution when conditions A and B are met.
(4) For the purposes of subsection (1), condition A is that the Secretary of State decides that it appears that—
(a) the other person involved in the conduct constituting the offence consented to it and was aged 16 or over, and
(b) any such conduct now would not be an offence under section 71 of the Sexual Offences Act 2003 (sexual activity in a public lavatory).
(5) For the purposes of subsection (2), condition A is that the Secretary of State decides that it appears that any such conduct now would not be an offence under sections [Commercial sexual exploitation] and [Commercial sexual exploitation by a third party] of the Police, Crime, Sentencing and Courts Act 2021.
(6) Condition B is that—
(a) the Secretary of State has given notice of the decision to the applicant under section 94(4)(b), and
(b) the period of 14 days beginning with the day on which the notice was given has ended.
(7) Sections 95 to 98 explain the effect of a conviction or caution becoming a disregarded conviction or caution.’”
This new clause permits those who as a result of exploitation have convictions for soliciting, to have their conviction disregarded.
New clause 82—Repeals—
“The enactments specified in the following Table are repealed to the extent specified in column 2 of the Table.
Sarah Champion
The new clauses were tabled by my right hon. Friend the Member for Kingston upon Hull North (Dame Diana Johnson). Their purpose is to stop commercial sexual exploitation by ending impunity for exploiters and supporting, rather than sanctioning, victims and survivors. First, they would criminalise those who pay for sexual activity with others. Secondly, they would decriminalise those who are subject to commercial sexual exploitation. Thirdly, they would criminalise those who intend to profit from and/or advertise the commercial sexual exploitation of others. In sum, they would break the business model of sex trafficking, which leads in most cases to the prostitution of people.
Organised commercial sexual exploitation is taking place on an industrial scale in England and Wales. Evidence obtained by the all-party parliamentary group on prostitution and the global sex trade, which I previously chaired, revealed that the UK sex trade is dominated by organised crime. Criminal gangs exploit predominantly non-UK national women, advertising on pimping websites such as Vivastreet and Adultwork, and move these women around the networks of so-called pop-up brothels and hotel rooms to be raped by paying punters. Available evidence suggests that Romanian women are heavily represented among the women exploited in brothels across Britain. Over a period of two years, Leicestershire police visited 156 brothels, encountering 421 women, 86% of whom were from Romania. Northumbria police visited 81 brothels over two years, and of the 259 women they encountered in the brothels, 75% were Romanian.
The suffering inflicted on the minds and bodies of women in these brothels by man after man after man after man can scarcely be imagined. One woman trafficked to the UK said:
“To begin with [the offenders] were my friends but, as soon as we came to England, they started to physically abuse me. He beat me many times because I was not earning him enough money…Even though the clients did not physically abuse me, I felt abused because I was forced to have sex with them even when I did not want to do so. Sometimes that was painful. After a while, I felt disgusted by what I was doing and I wanted to stop but [he] wanted more money and he forced me to continue.”
Sex trafficking gangs are ruthlessly exploiting women in our constituencies for one reason only: money. The disturbing reality is that, today, England and Wales are attractive destinations for sex traffickers. Perpetrators face low risks for high profits. Why are the profits so high and the risks so low? Because we have unfettered demand from men who pay for sex, and in doing so fund these criminal gangs; and we have lucrative pimping websites on which traffickers can quickly and easily advertise their victims to sex buyers across the country. Shockingly, these pimping websites are legal.
Alongside this impunity for online pimps and punters, perversely, the women they sexually exploit can themselves face criminal sanctions for soliciting, making it harder for them to seek help and rebuild their lives, as we discussed. Our laws are hindering, rather than helping, the fight against sex trafficking; they need to be strengthened now. To break the business model of sex trafficking, we have to deter demand, end impunity for online pimping, and support, not sanction, the victims and survivors. The new clauses would do just that. They would bring our laws in line with those of France, Israel, Northern Ireland, Ireland, Sweden, Norway and Iceland. All of those countries have criminalised paying for sex and decriminalised victims of sexual exploitation, in order to put pimps and traffickers out of business. It is high time that England and Wales joined that list. I look forward to what the Minister has to say about these new clauses.
Victoria Atkins
I am grateful to the hon. Lady for putting the case for new clauses 76 to 82 on behalf of the hon. Member for Kingston upon Hull North, who in the last Parliament had a ten-minute rule Bill on the issue.
The Government’s long-standing policy towards sex work and prostitution has been focused on tackling the harm and exploitation that can be associated with prostitution, as well as ensuring that those wishing to exit sex work are appropriately supported. These six new clauses seek to make significant changes to the legislative regime governing prostitution and sex work. In summary, they would impose what is known as the sex buyer law, or Nordic model, which would criminalise the buying but not the selling of sexual services, the profiting by third parties from sexual services and the advertising of sexual services.
Under English and Welsh law currently, the buying and selling of sexual services are not necessarily unlawful in themselves. In other jurisdictions where the buying of sex has been criminalised, such as France, Northern Ireland and Sweden, there has been no conclusive evidence to show that the criminalisation of the demand for sex has either led to a significant decrease in the demand for sexual services or improved the conditions in which sex workers operate. Indeed, there is some evidence to suggest that criminalising the purchasing of sexual services worsens the conditions in which prostitutes and sex workers operate. It may change the profile of buyers of sexual services, distilling the demand down only to those willing to break the law to purchase such acts and forcing prostitutes and sex workers to engage in forms of prostitution associated with higher levels of harm. In the absence of unequivocal evidence, the Government have therefore maintained their line that we are focusing on trying to exit people and trying to reduce the harm and exploitation that they face.
Sarah Champion
The argument that the Minister makes assumes the ability to give informed consent by the people in prostitution. I have no problem whatsoever with people who are choosing to prostitute themselves. What I have an issue with is sex trafficking and the number of people—and I know that the Minister is very aware of this—who are forced into this situation. I see no better approach than to remove the financial reward for these people, to enable those who actually want to prostitute themselves to go ahead.
Victoria Atkins
I very much accept the hon. Lady’s point about the coercive aspect of trafficking—forcing people into prostitution and sex work. It is a huge part of our work to tackle modern slavery and sex trafficking. We have covered this ground already, albeit on a slightly different subject. Section 52 of the Sexual Offences Act 2003 makes it an offence to cause or incite another person to engage in prostitution for one’s personal gain or the gain of a third party. Section 53 also creates an offence relating to one’s personal gain or the gain of a third party, and under section 53A it is a strict liability offence to pay for the services of a prostitute subjected to force, coercion, deception or exploitation. All of those offences are captured by the definition of exploitation in section 3 of the Modern Slavery Act 2015, by virtue of which human trafficking with a view to committing the aforementioned offences carries a maximum sentence of life imprisonment.
The other new clauses in the group stand or fall with new clauses 76 and 77. I will not address them, because I know an important matter is to be debated after this and I am mindful of time. We are taking action to tackle harmful activity online—that is a very important point in this subject area. With the Online Safety Bill, which I have already addressed several times in Committee, the imposition of a legal duty on certain online services providers to tackle criminal activity on their services will apply to a range of instances covered by this topic. The tech companies and services that are in scope will have to put in place systems and processes to limit the spread of illegal content and to remove it swiftly.
On the wider work of the violence against women and girls strategy, prostitution and sex work have been raised in many of the responses that we have received, and we very much intend to address actions on that to reduce the risks for women working in prostitution and sex work. As always, I would very much welcome the hon. Lady’s ideas and suggestions on these aims, and I am very happy to work with her and the right hon. Member for Kingston upon Hull North on addressing some of those harms, which we are all determined the prevent.
Sarah Champion
I am happy to withdraw the clause. I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
The Chair
New clauses 77 to 82 have already been debated, so we come now to new clause 83.
New Clause 83
Concealing a body
“(1) A person (‘D’) is guilty of an offence if—
(a) D conceals the deceased body of another person, and
(b) D intends to obstruct a coronial investigation, or
(c) D conceals a death to facilitate another criminal offence.
(2) For the purposes of subsection (1)(b), the circumstances in which a coronial investigation is required are set out in section 1 of the Coroners and Justice Act 2009.
(3) For the purposes of subsection (1)(a), concealment of a homicide will be conclusive evidence of an intent to obstruct a coronial investigation.
(4) A person guilty of an offence under this section is liable—
(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;
(b) on conviction on indictment, to imprisonment for a term not exceeding 2 years.
(5) The common law offence of obstructing the coroner is abolished.”—(Bambos Charalambous.)
Brought up, and read the First time.
Bambos Charalambous (Enfield, Southgate) (Lab)
I beg to move, That the clause be read a Second time.
The Chair
With this it will be convenient to discuss new clause 84—Desecration of a corpse—
“(1) A person (‘D’) is guilty of an offence if—
(a) D acts with severe disrespect to a corpse, and
(b) D knows that, or is reckless as to whether, their acts are ones of severe disrespect.
(2) For the purposes of subsection (1)(a), whether an act is one of severe disrespect will be judged according to the standard of the reasonable person.
(3) A person is not guilty of an offence under this section if—
(a) they had a reasonable excuse for their acts,
(b) the act would otherwise be criminal under section 1 of the Human Tissue Act 2004,
(c) the act is also a criminal offence under section 70 Sexual Offences Act 2003 (‘Sexual penetration of a corpse’),
(d) a person, prior to their death, has given consent for the acts to be done to their deceased body, notwithstanding that they involve severe disrespect to the corpse.
(4) A person guilty of an offence under this section is liable—
(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;
(b) on conviction on indictment, to imprisonment for a term not exceeding 2 years.
(5) The common law offence of preventing a lawful and decent burial is abolished.”
Bambos Charalambous
It is a pleasure to serve under your chairmanship, Mr McCabe. There can be few things worse than learning of the murder of a close relative. There is then the trauma of the trial and the detail that is raked over to ensure a conviction. In certain cases, the never-ending turmoil of not having a body to lay to rest is an unimaginable form of emotional torture.
The tireless work of Marie McCourt ensured that Parliament passed Helen’s law in March 2020. The body of Helen McCourt, Marie’s daughter, who was murdered in 1988, has never been found. Her killer never disclosed the whereabouts of her body. Marie’s campaigning successfully changed the law so that parole boards must now take into account whether killers have refused to co-operate in the recovery of their victims’ remains.
Anomalies in the law remain when a body is never found, however, and they must be addressed. That is why the two new clauses would create two new offences: that of concealing a body and another relating to the desecration of a corpse. New clause 83 would replace the common law offence of obstructing a coroner with the offence of concealing a body. New clause 84 would replace the common law offence of preventing burial, which has its origins in ecclesiastical law, with the new offence of desecration of a corpse. That would also address gaps in the law and capture a range of intentional acts of severe disrespect, including the mutilation of a corpse, the drawing of lewd images on a deceased body, and non-penetrative sexual acts performed involving a corpse.
In 2017 the Law Commission acknowledged:
“The law governing how we dispose of the bodies of our loved ones…is unfit for modern needs.”
The current law is haphazard in how it is applied to deal with the serious wrong of behaving with gross disrespect towards deceased bodies. The existing common law charges of preventing a lawful and decent burial, hiding a corpse and obstructing a coroner have been rarely used.
When Helen McCourt was murdered in 1988, murder trials without a body were exceptionally rare. Sadly, today they are common because, as forensic detective methods have become more sophisticated, killers are resorting to ever more desperate measures to hide evidence of their crimes. In 2019 the Home Office confirmed that since 2007-08 there have been 50 homicides—convictions for murder and manslaughter—without a body. One can only try to imagine the huge extra distress this causes victims’ families, and as the law stands the killer will receive no further punishment for the additional horrific crimes committed after the initial homicide. The distress to the affected families will only continue to rise without a change in the law. If offenders knew that they would face charges relating to non-disclosure and desecration as well as for the homicide offence itself, they may think twice about committing the offence and maintaining silence about it.
Chris Philp
I thank the shadow Minister for his speech and for introducing this new clause so eloquently. He mentioned the tragic case of Helen McCourt, which I am sure is on our minds as we debate this new clause. Along with the hon. Member for St Helens North (Conor McGinn), I have met her mother Marie McCourt, who has campaigned tirelessly on this issue for many years, which led ultimately to the passage, as the shadow Minister said, of Helen’s law a few months ago. It was a privilege to take it through the House of Commons as the Bill Minister.
The Government once again are very sympathetic to the sentiments and the intention behind these new clauses, and I would like to look briefly at new clauses 83 and 84, which combined seek to repeal and replace two common law offences, as the shadow Minister has said. New clause 83 would repeal the common law offence of obstructing a coroner, replacing it with a statutory offence, while new clause 84 seeks to repeal the common law offence of preventing lawful burial.
It is worth just saying that, as with many common law offences, they are quite wide-ranging measures in their scope and cover potentially quite a wide range of behaviour. One of the risks we run when we seek to codify the common law—as we sometimes, or indeed often, do—is that we may inadvertently narrow the scope of the existing common law provisions. Of course, we will also be reducing the maximum sentence, because as common law offences these offences currently have a maximum sentence of life whereas by creating a statutory offence, as these new clauses seek to do, there would be a specified much lower maximum sentence.
It is worth saying that the common law—as, too, the non-common law—does cover the question of concealing a body in various ways. In circumstances where an offender is responsible for a homicide, the fact that they concealed or mutilated the body is already taken, not as a point of common law but as a point of sentencing guidelines, as a clear aggravating factor at sentencing. Therefore, on conviction the sentence will be increased, reflecting the fact that the sort of behaviour the shadow Minister has described has occurred. Where the concealment of a body is part of a course of action that includes the killing, the sentence for murder would again include that as an aggravating factor in deciding the starting point for the sentence. If we have a separate offence, the danger, of course, is that the offences may be served concurrently, so we may not have someone in prison for any longer, whereas if it is an aggravating factor for the main offence, we may well get a longer sentence. We need to be mindful of those technical reasons that might inadvertently have the opposite effect to that intended.
It is also the case, of course, that once someone is convicted of an offence of this kind—this includes refusing to disclose the location of the body—we have legislated via Helen’s law, as the shadow Minister said, that the Parole Board is now obliged as a question of statute to consider the non-disclosure of the whereabouts of the body when making release decisions. That was previously in parole guidelines but is now statutory, which also sends a message to the Parole Board about how strongly Parliament feels about this. Non-disclosure could also lead to a later release point. All those points are important to bear in mind.
On new clause 84, which seeks to deal with the desecration of a body, the meaning of acting with severe disrespect to a corpse could, under the new clause as drafted, include several circumstances such as mutilation, hiding or concealment, unlawful burial or cremation, or otherwise preventing the lawful burial of a body. It could also mean taking photographs of bodies where it is inappropriate or unnecessary to do so. The Government completely understand the thinking behind the new clause, because, of course, the bodies of those who have passed away should be treated with dignity and respect.
A number of existing criminal offences can already be used, such as preventing lawful burial and decent burial, as well as perverting the course of justice if the activities are designed to prevent justice from being done. Those are common law offences with a maximum penalty of life, as I said. There are also statutory offences such as disposing of a child’s body to conceal a pregnancy or burning a body other than in a crematorium, as well as offences that can apply in some circumstances, such as misconduct in public office if such a person—that could even include a police officer—is in public office.
The desecration of a body is likely to be connected to another offence. Therefore, as with the previous new clause, an act of desecration is likely to be an aggravating factor in sentencing the other offence, which might be murder or manslaughter, resulting in a more severe penalty. Again, we come to the question of concurrency: if a separate offence is created, the two sentences might run concurrently, whereas if instead the act aggravates the main offence, there may be a longer sentence. Those points are worth making.
The intention of the new clauses may be to ensure that people who commit such acts would spend longer in prison, and we obviously sympathise with that, but it is possible that, for the reasons I have mentioned, they would not achieve that effect. Such matters can be reflected either through the existing common law offence or as an aggravation to the principal offence. We now have Helen’s law regulating release from custody where that happens.
The Government recognise the campaigning done by Marie McCourt, and I know that the Lord Chancellor has met her as well as the hon. Member for St Helens North. The Lord Chancellor has met her a number of times and I have met her as well. We want to continue discussing these issues with Marie and her family and to think about whether there is anything else we can do to ensure that the awful circumstances we are discussing are fully reflected beyond even what I have already described. We are receptive to ideas in this area and are happy to talk about them and think about what else can be done, but, for the reasons about the precise way in which the new clauses are crafted, we do not think they would take the law as it stands any further forward. However, we are happy to work with Marie, the hon. Member for St Helens North, shadow Ministers and others to see if there are other things that we can do.
Bambos Charalambous
On the basis of what the Minister has said, I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
The Chair
I do not know how hon. Members have managed it, but new clause 84 has already been debated, so we come to the final question.
Question proposed, That the Chair do report the Bill, as amended, to the House.
Victoria Atkins
It is customary at this stage to mark the end our deliberations in Committee by reflecting on the ups and downs, the agreements and disagreements and the range of subjects on which we have deliberated. Our debate on the police covenant at the beginning of the Committee’s deliberations feels like a long time ago. I am pleased that the Bill and no fewer than 84 new clauses have had the benefit of rigorous scrutiny by hon. Members on both sides of the Committee over the past few weeks.
I thank in particular you, Mr McCabe, for your stylish chairmanship of the Committee as well as your co-Chair, Sir Charles, who was equally stylish and equally good at keeping us all in good order. I thank the Under-Secretary of State for the Home Department, my hon. Friend the Member for Croydon South, for sharing the privilege, the pleasure and the workload of our Committee with me. I thank the Opposition Front Benchers—the hon. Members for Croydon Central, for Stockton North and for Enfield, Southgate—for their constructive and at times lively approach to the matters that we have debated, but that is all absolutely in the role of this Committee and what this process is supposed to do in this place.
I would, of course, get into lots of trouble if I did not thank the Government Whip, my hon. Friend the Member for Corby. If Chairs keep us in order, Whips whip us in to make sure that we remain in good order. I give my sincere thanks to him because it is a very difficult job at times and one that does not get much praise.
I thank the Clerks for herding us in the right direction when we needed to be so herded, and the Hansard writers, whose ability to keep note of what we are saying never fails to amaze me. I thank the officials and the lawyers from the Home Office, the Ministry of Justice and the Department for Transport. A huge amount of work goes on behind the scenes to help Ministers to prepare for a Bill Committee, and it is very much thanks to them that we are able to do so.
That flows inevitably to my very sincere thanks to the Bill manager for the Home Office, Charles Goldie, and the Bill manager for the MOJ, Katie Dougal—I hope I pronounced that correctly. They help Ministers to swim serenely above the water while they are working terribly hard underneath, so I thank them very much for their hard work and effort.
Thanks also to our private offices, who help Ministers to turn up at Committee on time. Finally, of course, thanks to the members of the Committee. I know that, for some Members, this was their first Bill Committee—I hope that we have not put them off for life—but they have all contributed in their own way and have played a vital role in scrutinising this important piece of legislation so that it is ready for the House’s wider scrutiny on Report in a week and a half’s time. Thank you all.
Alex Cunningham
The very fact that we are within three minutes of the reporting time for this Bill justifies my hon. Friend the Member for Enfield, Southgate fighting for all the time that the Committee has had to deliberate. I thank you, Mr McCabe, and Sir Charles for chairing our weeks of deliberations with skill and good humour.
I thank the Government Members who made a contribution and even those who were able just to crack on with their correspondence, and Ministers for listening and making us some promises that I am sure they will keep. The Under-Secretary of State for the Home Department, the hon. Member for Louth and Horncastle, recognised very early on that a 16-year-old is not an adult in any circumstances whatsoever, and the Under-Secretary of State for the Home Department, the hon. Member for Croydon South, very kindly said that he would act as an advocate for Opposition Members who might be having problems engaging with other Government Ministers.
My thanks also go to my hon. Friend the Member for Croydon Central for sharing the Front-Bench role with me and for championing our position on shopworkers and protests. I thank all the other Opposition Members who did a grand job holding the Government to account on everything else—from violence against women and girls, to pet theft. I thank the many organisations, too numerous to mention, that championed their causes and helped us to champion ours, too. Without them the challenge to the Government would have been all the poorer. I thank the Committee Clerks for their professionalism and their patience and, of course, our friends in the Hansard service.
Finally, I thank our Whip, my hon. Friend the Member for Enfield, Southgate, who will now hang up his whip and get into his new role on a full-time basis, as I understand it. I thank him especially because I really did need him daily to tell me, “It’s okay, Alex, we will get through the business. We will get to the end. We will get all the new clauses dealt with—rest assured.” So, thank you to him.
Bill, as amended, accordingly to be reported.
Police, Crime, Sentencing and Courts Bill (Programme) (No.2)
Monday 5th July 2021
(2 years, 10 months ago)
Commons ChamberRead Full debate Police, Crime, Sentencing and Courts Act 2022 Read Hansard Text Amendment Paper: Consideration of Bill Amendments as at 5 July 2021 - (5 Jul 2021)
Proceedings | Time for conclusion of proceedings |
|---|---|
New Clauses, new Schedules and amendments relating to Parts 1 to 4 and 10, other than any new Clauses relating to offences concerning pets or any new Clauses relating to voyeurism | 6.30pm on the day on which proceedings on Consideration are commenced |
New Clauses, new Schedules and amendments relating to Parts 5 to 9 and 11 to 13; any new Clauses relating to offences concerning pets; any new Clauses relating to voyeurism; remaining proceedings on Consideration | 9.00pm on that day |
Philip Davies (Shipley) (Con)
I do not want to take up too much time because the time we spend now eats into the time for the main debate. However, it is important to register that literally hundreds of new clauses and amendments have been tabled to the Bill. It is a 300-page Bill, which had two days for Second Reading. The fact that it has only one day on Report is an absolute abuse of this House.
We are supposed to carry out a job of scrutinising legislation and ensuring that it is fit for purpose, but we will have a matter of a few hours for Report. The Minister has no opportunity to engage in debate on all the new clauses to explain why the Government will accept or reject them. Surely the least this House should be able to expect is to have some proper free-flowing debate and some explanation from the Government of their position on each of the new clauses, which people have taken the time and trouble to table. It is an absolute disgrace and it is important that that point is registered before we start the debate because it is an abuse of this House.
Mr Speaker
I did allow that contribution—there was special dispensation—so that it could be put on the record.
Question put and agreed to.
Police, Crime, Sentencing and Court Bill
Monday 5th July 2021
(2 years, 10 months ago)
Commons ChamberRead Full debate Police, Crime, Sentencing and Courts Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Consideration of Bill Amendments as at 5 July 2021 - (5 Jul 2021)
Ms Harriet Harman (Camberwell and Peckham) (Lab) [V]
I beg to move, That the clause be read a Second time. Short title and chapter Extent of repeal Sexual Offences Act 1956 (c. 59) Sections 33 to 36 Street Offences Act 1959 (c. 57) The whole Act Sexual Offences Act 1967 (c. 60) Section 6 Criminal Justice and Police Act 2001 (c. 16) Section 46 Sexual Offences Act 2003 (c. 42) Sections 51A to 56 Policing and Crime Act 2009 (c. 26) Section 14 and 16 to 19’
(Deputy) Speaker: With this it will be convenient to consider the following:
New clause 2—Kerb-crawling—
‘(1) It is an offence for a person, from a motor vehicle while it is in a street or public place, or in a street or public place while in the immediate vicinity of a motor vehicle that they have just got out of, to engage in conduct which amounts to harassment in such manner or in such circumstances as to be likely to cause annoyance, alarm, distress, or nuisance to any other person.
(2) A person guilty of an offence under this section is liable on summary conviction to revocation of their driving licence, or a fine not exceeding level 3 on the standard scale, or both.
(3) In this section “motor vehicle ” has the same meaning as in the Road Traffic Act 1972.
(4) In this section “street” has the meaning given by section 1(4) of the Street Offences Act 1959.’
New clause 23—Child criminal exploitation
‘At end of section 3 of the Modern Slavery Act 2015 (meaning of exploitation), insert—
“Child criminal exploitation
(7) Another person manipulates, deceives, coerces or controls the person to undertake activity which constitutes a criminal offence and the person is under the age of 18.’
This new clause introduces a statutory definition of child criminal exploitation.
New clause 24—Registered sex offenders: change of name or identity—
‘(1) The Secretary of State must commission a review of how registered sex offenders are able to change their name or other aspects of their identity without the knowledge of the police with the intention of subverting the purpose of their registration.
(2) The review must consult persons with expertise in this issue, including—
(a) representatives of police officers responsible for sex offender management,
(b) Her Majesty’s Passport Office, and
(c) the Driver and Vehicle Licensing Agency.
(3) The scope of the review must include consideration of resources necessary for the long-term management of the issue of registered sex offenders changing their names or other aspects of their identity.
(4) The review must make recommendations for the long-term management of the issue of registered sex offenders changing their names or other aspects of their identity.
(5) The Secretary of State must report the findings of this review to Parliament within 12 months of the day on which this Act is passed.’
This new clause would ensure that the Secretary of State must publish a review into how registered sex offenders are changing their names or other aspects of their identity and propose solutions for how the Government aims to tackle this issue.
New clause 26—Reporting of sexual offences: public awareness—
‘Within six months of the passage of this Act, the Secretary of State must draw up and implement a campaign to improve public awareness of the desirability of reporting sexual offences, with particular reference to offences which may not be reported because they are not considered sufficiently serious.’
New clause 27—Code of practice on dealing with sexual offending—
‘(1) Within six months of the passage of this Act, the Secretary of State must issue a code of practice on dealing with sexual offending.
(2) The code must be issued to—
(a) all police forces in England and Wales,
(b) all local authorities in England and Wales,
(c) the National Probation Service,
(d) the Victims Commissioner and the Domestic Abuse Commissioner, and
(e) anyone else the Secretary of State considers appropriate.
(3) The code must contain provision designed to—
(a) improve public awareness of the desirability of reporting sexual offences, with particular reference to non-contact sexual offences, and
(b) achieve any other purpose the Secretary of State considers appropriate to deal with sexual offending.
(4) Before issuing a code under this section the Secretary of State must—
(a) publish proposals,
(b) consult such persons as the Secretary of State thinks appropriate, and
(c) lay a copy of the code before Parliament.’
New clause 28—Domestic homicide reviews—
(1) Section 9 of the Domestic Violence, Crime and Victims Act 2004 is amended as follows.
(2) For subsection (2) substitute—
“(2) The Secretary of State must in all cases which meet the circumstances set out in subsection (1) direct a specified person or body within subsection (4) to establish, or to participate in, a domestic homicide review.”
(3) After subsection (3) insert—
“(3ZA) The Secretary of State must by regulations set out—
(a) the type of data relating to domestic homicide reviews which must be recorded, including—
(i) the number of domestic homicide reviews taking place across England and Wales annually; and
(ii) the time taken to complete each individual domestic homicide review;
(b) that the data must be recorded centrally in a Home Office database; and
(c) that the data must be published annually.”’
This new clause seeks to modify the Domestic Violence, Crime and Victims Act 2004 to force the Secretary of State to automatically direct a domestic homicide review in circumstances as outlined in Section 9 of the Act. The new clause also aims to improve data collection methodologies around domestic homicide reviews.
New clause 29—The right to protest—
‘(1) The Public Order Act 1986 Part II (Processions and Assemblies) is amended as follows.
(2) Before section 11 insert—
“10A The right to protest
(1) Everyone has the right to engage in peaceful protest, both alone and with others.
(2) Public authorities have a duty to—
(a) respect the right to protest;
(b) protect the right to protest; and
(c) facilitate the right to protest.
(3) A public authority may only interfere with the right to protest, including by placing restrictions upon its exercise, when it is necessary and proportionate to do so to protect national security or public safety, prevent disorder or crime, protect public health or the rights and freedoms of others.
(4) For the purposes of this section “public authority” has the same meaning as in section 6 of the Human Rights Act 1998.”’
This new clause would introduce an express statutory right to protest, imposing both negative and positive obligations on public authorities whilst recognising that the right to protest may need to be limited to protect other legitimate public interests.
New clause 31—Offence of assaulting etc. retail worker—
‘(1) It is an offence for a person to assault, threaten or abuse another person—
(a) who is a retail worker, and
(b) who is engaged, at the time, in retail work.
(2) No offence is committed under subsection (1) unless the person who assaults, threatens or abuses knows or ought to know that the other person—
(a) who is a retail worker, and
(b) is engaged, at the time, in retail work.
(3) A person who commits an offence under subsection (1) is liable, on summary conviction, to imprisonment for a term not exceeding 12 months, a fine, or both.
(4) Evidence from a single source is sufficient to establish, for the purposes of this section—
(a) whether a person is a retail worker, and
(b) whether the person is engaged, at the time, in retail work.
(5) The offence under subsection (1) of threatening or abusing a retail worker is committed by a person only if the person—
(a) behaves in a threatening or abusive manner towards the worker, and
(b) intends by the behaviour to cause the worker or any other person fear or alarm or is reckless as to whether the behaviour would cause such fear or alarm.
(6) Subsection (5) applies to—
(a) behaviour of any kind including, in particular, things said or otherwise communicated as well as things done,
(b) behaviour consisting of—
(i) a single act, or
(ii) a course of conduct.
(7) Subsections (8) to (10) apply where, in proceedings for an offence under subsection (1), it is—
(a) specified in the complaint that the offence is aggravated by reason of the retail worker’s enforcing a statutory age restriction, and,
(b) proved that the offence is so aggravated.
(8) The offence is so aggravated if the behaviour constituting the offence occurred because of the enforcement of a statutory age restriction.
(9) Evidence from a single source is sufficient to prove that the offence is so aggravated.
(10) Where this section applies, the court must—
(a) state on conviction that the offence is so aggravated,
(b) record the conviction in a way that shows that the offence is so aggravated,
(c) take the aggravation into account in determining the appropriate sentence, and
(d) state—
(i) where the sentence imposed in respect of the offence is different from that which the court would have imposed if the offence were not so aggravated, the extent of and
the reasons for that difference, or
(ii) otherwise, the reasons for there being no such difference.
(11) In this section—
“enforcement”, in relation to a statutory age restriction, includes—
(a) seeking information as to a person’s age,
(b) considering information as to a person’s age,
(c) refusing to sell or supply goods or services,
for the purposes of complying with the restriction (and “enforcing” is to be construed accordingly),
“statutory age restriction” means a provision in an enactment making it an offence to sell or supply goods or services to a person under an age specified in that or another enactment.
(12) In this section, “retail worker”—
(a) means a person—
(i) whose usual place of work is retail premises, or
(ii) whose usual place of work is not retail premises but who does retail work,
(b) includes, in relation to a business that owns or occupies any premises in which the person works, a person who—
(i) is an employee of the business,
(ii) is an owner of the business, or
(iii) works in the premises under arrangements made between the business and another person for the provision of staff,
(c) also includes a person who delivers goods from retail premises.
(13) For the purposes of subsection (12), it is irrelevant whether or not the person receives payment for the work.
(14) In proceedings for an offence under subsection (1), it is not necessary for the prosecutor to prove that the person charged with the offence knew or ought to have known any matter falling within subsection (12)(b) in relation to the person against whom the offence is alleged to have been committed.
(15) In this section, “retail premises” means premises that are used wholly or mainly for the sale or supply of goods, on a retail basis, to members of the public.
(16) In this section, “retail work” means—
(a) in the case of a person whose usual place of work is retail premises, any work in those retail premises,
(b) in the case of a person whose usual place of work is not retail premises, work in connection with—
(i) the sale or supply of goods, on a retail basis, to members of the public, or
(ii) the sale or supply of services (including facilities for gambling) in respect of which a statutory age restriction applies,
(c) subject to subsection (17), in the case of a person who delivers goods from retail premises, work in connection with the sale or supply of goods, on a retail basis, to members of the public.
(17) A person who delivers goods from retail premises is doing retail work only during the period beginning when the person arrives at a place where delivery of goods is to be effected and ending when the person leaves that place (whether or not goods have been delivered).
(18) In this section, references to working in premises includes working on any land forming part of the premises.’
New clause 32—Assault due to enforcement of statutory age restriction—
‘(1) This section applies to an offence of common assault that is committed against a worker acting in the exercise of enforcing a statutory age restriction.
(2) This section applies where it is—
(a) specified in the complaint that the offence occurred because of the worker’s enforcing a statutory age restriction, and
(b) proved that the offence so occurred because of the enforcement of a statutory age restriction.
(3) A person guilty of an offence to which this section applies is liable on summary conviction, to imprisonment for a term not exceeding 12 months, or to a fine, or to both.
(4) In consequence of subsections (1) to (3), in section 39 of the Criminal Justice Act 1988 (which provides for common assault to be summary offences punishable with imprisonment for a term not exceeding 6 months)—
(a) insert—
“(3) Subsection (1) is subject to section [Assault due to enforcement of statutory age restriction] of the Police, Crime, Sentencing and Courts Act (which makes provision for increased sentencing powers for offences of common assault committed against a worker acting in the exercise of enforcing statutory age restrictions).”
(5) In this section—
“enforcement”, in relation to a statutory age restriction, includes—
(a) seeking information as to a person’s age,
(b) considering information as to a person’s age,
(c) refusing to sell or supply goods or services,
for the purposes of complying with the restriction (and “enforcing” is to be construed accordingly),
“statutory age restriction” means a provision in an enactment making it an offence to sell or supply goods or services to a person under an age specified in that or another enactment.
(6) This section applies only in relation to offences committed on or after the day it comes into force.’
New clause 42—Offence of interference with access to or provision of abortion services—
‘(1) A person who is within a buffer zone and who interferes with any person’s decision to access, provide, or facilitate the provision of abortion services in that buffer zone is guilty of an offence
(2) A “buffer zone” means an area with a boundary which is 150 metres from any part of an abortion clinic or any access point to any building that contains an abortion clinic.
(3) For the purposes of subsection (1), “interferes with” means—
(a) seeks to influence; or
(b) persistently, continuously or repeatedly occupies; or
(c) impedes or threatens; or
(d) intimidates or harasses; or
(e) advises or persuades, attempts to advise or persuade, or otherwise expresses opinion; or
(f) informs or attempts to inform about abortion services by any means, including, without limitation, graphic, physical, verbal or written means; or
(g) sketches, photographs, records, stores, broadcasts, or transmits images, audio, likenesses or personal data of any person without express consent.
(4) A person guilty of an offence under subsection (1) is liable—
(a) in the first instance—
(i) on summary conviction, to imprisonment for a term not exceeding 6 months, or
(ii) to a fine not exceeding level 5 on the standard scale, or
(iii) to both; and
(b) on further instances—
(i) on conviction on indictment, to imprisonment for a term not exceeding 2 years, or to a fine, or to both; or
(ii) on summary conviction, to imprisonment for a term not exceeding 12 months, or to a fine, or to both.
(5) Nothing in this section applies to—
(a) anything done in the course of providing, or facilitating the provision of, abortion services in an abortion clinic,
(b) the operation of a camera if its coverage of persons accessing or attempting to access an abortion clinic is incidental and the camera or footage is not used for any of the purposes listed in subsection (3), and
(c) a police officer acting properly in the course of their duties.’
This new clause would introduce areas around abortion clinics and hospitals (buffer zones) where interference with, and intimidation or harassment of, women accessing or people providing abortion services would be an offence.
New clause 43—Implementation of the Law Commission review of hate crime—
‘(1) The Secretary of State may by regulations implement any recommendations of the Law Commission which relate to hatred based on sex and gender characteristics following the conclusion of its review of hate crime legislation.
(2) The power conferred by subsection (1) includes—
(a) power to amend primary legislation; and
(b) power to amend or revoke subordinate legislation.
(3) A document containing a draft of regulations under subsection (1) must be laid before Parliament not later than six months after the publication of the Law Commission’s recommendations, and that draft must be in a form which would implement all those recommendations which relate to hatred based on sex and gender characteristics.
(4) Draft regulations under subsection (1) must be laid before Parliament not earlier than 90 days, but not later than 180 days, after the document referred to in subsection (3) was laid before Parliament.
(5) The draft regulations laid before Parliament under subsection (4) must be in the form in which they appeared in the document laid before Parliament under subsection (3), except that they may contain any changes which have been recommended by any committee of either House of Parliament which has reported on that document.
(6) A Minister must make a motion in each House of Parliament approving the draft regulations laid before Parliament under subsection (4) within 14 days of the date on which they were laid.
(7) Subject to subsection (8), if the draft regulations are approved by both Houses of Parliament, the Secretary of State must make them in the form of the draft which has been approved.
(8) If any amendments to the draft regulations are agreed to by both Houses of Parliament, the Secretary of State must make the regulations in the form of the draft as so amended.’
This new clause would require the Secretary of State to implement any recommendations made by the Law Commission’s review of hate crime which relate to hatred based on sex and gender characteristics. Draft regulations implementing the Commission’s recommendations would be subject to the super-affirmative scrutiny process (by subsections (3) to (5)), and would be amendable (under subsection (8)).
New clause 44—Commercial sexual exploitation—
‘(1) A person (A) who gives, offers, or promises payment to any person to engage in sexual activity with a person (B) is guilty of an offence.
(2) For the purposes of subsection (1)—
(a) a “payment” includes money, a benefit, or any other consideration.
(b) an activity is sexual if a reasonable person would consider that—
(i) whatever its circumstances or any person’s purpose in relation to it, it is because of its nature sexual, or
(ii) because of its nature it may be sexual and because of its circumstances or the purpose of any person in relation to it (or both) it is sexual.
(c) no offence is committed by a person (A) unless the sexual activity with the other person (B) involves—
(i) the person (A) being in the other person (B)’s presence, and
(ii) the person (A) touching the other person (B), or
(iii) the person (B) touching themselves for the sexual gratification of the other person (A).
(d) it is immaterial whether the payment is given, offered, or promised by a person engaging in the sexual activity, or a third party.
(3) A person guilty of an offence under this section is liable—
(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;
(b) on conviction on indictment, to imprisonment for a term not exceeding 10 years.’
This new clause criminalises buying sex and decriminalises anyone offering sexual services.
New clause 45—Commercial sexual exploitation by a third party—
‘(1) A person commits an offence if—
(a) the person (C) assists, facilitates, controls, or incites, by any means, another person (B) to engage in sexual activity with another person (A) in exchange for payment, anywhere in the world; and
(b) the circumstances are that—
(i) the person (C) knows or ought to know that the other person (B) is engaging in sexual activity for payment; and
(ii) the person (C) assists, facilitates, controls, or incites the other person (B) to engage in sexual activity with another person (A) with the intention of receiving payment.
(c) Subsection (1) of this section is to be construed in accordance with section [Commercial sexual exploitation].
(2) A person guilty of an offence under this section is liable—
(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;
(b) on conviction on indictment, to imprisonment for a term not exceeding 10 years.’
This new clause criminalises pimping.
New clause 46—Advertising—
‘(1) A person commits an offence if the person causes or allows to be displayed or published, including digitally, any advertisement in respect of activity prohibited by sections [Commercial sexual exploitation] and [Commercial sexual exploitation by a third party] of this Act.
(2) A person guilty of an offence under this section is liable—
(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;
(b) on conviction on indictment, to imprisonment for a term not exceeding 10 years.’
This new clause criminalises those who benefit from the advertising of sexual services. This includes ‘pimping websites’.
New clause 47—Extra-territoriality—
‘(1) A person who is a UK national commits an offence under sections [Commercial sexual exploitation] to [Advertising] of this Act regardless of where the offence takes place.
(2) A person who is not a UK national commits an offence—
(a) under sections [Commercial sexual exploitation] to [Advertising] of this Act if any part of the offence takes place in the UK, and
(b) under section [Advertising] of this Act if any person in the UK pays money to any other person as a result or through the advertisement published or displayed.’
This new clause allows criminal prosecutions for acts contravening the relevant sections whether they occur within or outside the United Kingdom.
New clause 48—Immunity of victims—
‘(1) A person (B), by reason of their involvement as a victim of an offence under sections [Commercial sexual exploitation] to [Advertising] of this Act by another person (A) does not commit an offence by doing anything which (apart from this paragraph) would amount to—
(a) aiding, abetting, counselling, or procuring the commission of an offence under sections [Commercial sexual exploitation] to [Advertising] of this Act by the other person (A);
(b) conspiring with the other person (A) to commit an offence under sections [Commercial sexual exploitation] to [Advertising] of this Act; or
(c) an offence under Part 2 of the Serious Crime Act 2007 (encouraging or assisting offences) in relation to the commission of an offence under sections [Commercial sexual exploitation] to [Advertising]of this Act by the other person (A); or
(d) an offence under section [Advertising] of this Act.
(2) In this section it is immaterial whether the other person has been convicted of an offence.’
This new clause ensures that those subject to commercial sexual exploitation do not find themselves criminalised by having ‘assisted’ the person buying sexual services.
New clause 49—Power of Secretary of State to disregard convictions or cautions—
‘Section 92 of the Protection from Freedoms Act 2012 is replaced as follows.
“92 Power of Secretary of State to disregard convictions or cautions
(1) A person who has been convicted of, or cautioned for, an offence under—
(a) section 12 of the Sexual Offences Act 1956 (buggery),
(b) section 13 of that Act (gross indecency between men), or
(c) section 61 of the Offences against the Person Act 1861 or section 11 of the Criminal Law Amendment Act 1885 (corresponding earlier offences), may apply to the Secretary of State for the conviction or caution to become a disregarded conviction or caution.
(2) A person who has been convicted of, or cautioned for, an offence under section 1 of the Street Offences Act 1959, may apply to the Secretary of State for the conviction or caution to become a disregarded conviction or caution.
(3) A conviction or caution becomes a disregarded conviction or caution when conditions A and B are met.
(4) For the purposes of subsection (1), condition A is that the Secretary of State decides that it appears that—
(a) the other person involved in the conduct constituting the offence consented to it and was aged 16 or over, and
(b) any such conduct now would not be an offence under section 71 of the Sexual Offences Act 2003 (sexual activity in a public lavatory).
(5) For the purposes of subsection (2), condition A is that the Secretary of State decides that it appears that any such conduct now would not be an offence under sections [Commercial sexual exploitation] and [Commercial sexual exploitation by a third party] of the Police, Crime, Sentencing and Courts Act 2021.
(6) Condition B is that—
(a) the Secretary of State has given notice of the decision to the applicant under section 94(4)(b), and
(b) the period of 14 days beginning with the day on which the notice was given has ended.
(7) Sections 95 to 98 explain the effect of a conviction or caution becoming a disregarded conviction or caution.”’
This new clause permits those who as a result of exploitation have convictions for soliciting, to have their conviction disregarded.
New clause 50—Repeals—
‘The enactments specified in the following Table are repealed to the extent specified in column 2 of the Table.
TABLE
New clause 51—Review of crime against Gypsy, Roma and Traveller communities—
‘(1) The Secretary of State must undertake a review of the prevention, investigation and prosecution of crime against Gypsy, Roma and Traveller communities.
(2) The review must have particular regard to the prevention, investigation and prosecution of hate crime against those communities.
(3) A report of the review must be laid before Parliament within six months of the passage of this Act.’
New clause 52—Training for relevant public officials in relation to Gypsy, Roma and Traveller communities—
‘(1) The Secretary of State must, on this Act coming into force, publish and implement a strategy to provide training to—
(a) the Crown Prosecution Service,
(b) police forces,
(c) the judiciary, and
(d) such other public bodies as the Secretary of State considers appropriate on the investigation of crimes against people from Gypsy, Roma and Traveller backgrounds.
(2) The strategy must include provision to improve the accessibility to people from those backgrounds of means of reporting crime against them.’
New clause 55—Amendment of criminal law in relation to termination of pregnancy—
‘(1) Sections 58 (administering drugs or using instruments to procure abortion) and 59 (procuring drugs, &c. to cause abortion) of the Offences Against the Person Act 1861 are repealed.
(2) After section 59 of the Offences Against the Person Act 1861 insert—
“59A Non-consensual termination of pregnancy
(1) A person (A) commits an offence if—
(a) in relation to a woman (B) A commits any unlawful act involving the use or threat of force, or the administration of any substance capable of causing abortion,
(b) A believes that B is pregnant or is reckless as to whether she is pregnant, and
(c) A intends to cause B’s abortion or is reckless as to whether her abortion results.
(2) For the purposes of subsection (1)—
(a) an act done by, or with the informed consent or assistance of B, or done in good faith by a registered medical practitioner, registered nurse or registered midwife, is not to be considered unlawful,
(b) but B is not to be treated as consenting to the administration of a substance unless she is aware of its nature as a substance capable of causing abortion.
(3) A person guilty of an offence under subsection (1) is liable on conviction on indictment to imprisonment for life or for any shorter term.”
(3) No offence is committed under section 1 of the Infant Life (Preservation) Act 1929 by—
(a) a woman who terminates her own pregnancy or who assists in or consents to such termination, or
(b) a registered medical practitioner, registered nurse or registered midwife acting in good faith.’
The new clause would decriminalise abortion and create a new offence of non-consensual termination of pregnancy, which would include the example where a woman’s abusive partner intentionally or recklessly caused her abortion through abusive behaviour.
New clause 56—Review of stop and search powers—
‘(1) The Secretary of State must undertake a review of police stop and search powers.
(2) The review must consider—
(a) the effectiveness of the use of those powers in the reduction of crime, and
(b) the impact of the use of the powers on policing in Black and minority ethnic communities.
(3) A report of the review must be laid before Parliament within six months of the passage of this Act.’
New clause 57—Public inquiry into the prevention, investigation and prosecution of crimes as they affect Black, Asian and minority ethnic people—
‘Within six months of the passage of this Act, the Secretary of State must cause an inquiry to be held under the Inquiries Act 2005 into the prevention, investigation and prosecution of crime as they affect Black, Asian and minority ethnic people.’
New clause 58—Extraction of information from electronic devices—
‘(1) Subject to Conditions A to D below, insofar as applicable, an authorised person may extract information stored on an electronic device from that device if—
(a) a user of the device has voluntarily provided the device to an authorised person, and
(b) that user has agreed to the extraction of specified information from the device by an authorised person.
(2) Condition A for the exercise of the power in subsection (1) is that it may be exercised only for the purposes of—
(a) preventing, detecting, investigating or prosecuting an offence,
(b) helping to locate a missing person, or
(c) protecting a child or an at-risk adult from neglect or physical, mental or emotional harm.
(3) For the purposes of subsection (2) an adult is an at-risk adult if the authorised person reasonably believes that the adult—
(a) is experiencing, or at risk of, neglect or physical, mental or emotional harm, and
(b) is unable to protect themselves against the neglect or harm or the risk of it.
(4) Condition B for the exercise of the power in subsection (1) is that the power may only be exercised if—
(a) the authorised person reasonably believes that information stored on the electronic device is relevant to a purpose within subsection (2) for which the authorised person may exercise the power, and
(b) the authorised person is satisfied that exercise of the power is strictly necessary and proportionate to achieve that purpose.
(5) For the purposes of subsection (4)(a), information is relevant for the purposes within subsection (2)(a) in circumstances where the information is relevant to a reasonable line of enquiry.
(6) Condition C as set out in subsection (7) applies if the authorised person thinks that, in exercising the power, there is a risk of obtaining information other than information necessary for a purpose within subsection (2) for which the authorised person may exercise the power.
(7) Condition C is that the authorised person must, to be satisfied that the exercise of the power in the circumstances set out in subsection (6) is strictly necessary and proportionate, be satisfied that there are no other less intrusive means available of obtaining the information sought by the authorised person which avoid that risk
(8) Condition D is that an authorised person must have regard to the code of practice for the time being in force under section [Code of practice] in accordance with section [Effect of code of practice] below.
(9) This section does not affect any power relating to the extraction or production of information, or any power to seize any item or obtain any information, conferred by or under an enactment.
(10) In this section and section [Application of section [Extraction of information from electronic devices] to children and adults without capacity]—
“adult” means a person aged 18 or over;
“authorised person” means a person specified in subsection (1) of section [Application of section [Extraction of information from electronic devices] to children and adults without capacity] (subject to subsection (2) of that section);
“child” means a person aged under 18;
“agreement” means that the user has confirmed explicitly and unambiguously in writing that they agree—
(a) to provide their device, and
(b) to the extraction of specified data from that device.
Such an explicit written confirmation can only constitute agreement for these purposes if, in accordance with the Code of Practice issued pursuant to section [Effect of code of practice], the user—
(i) has been provided with appropriate information and guidance about why the extraction is considered strictly necessary (including, where relevant, the identification of the reasonable line of enquiring relied upon);
(ii) has been provided with appropriate information as to (a) how the data will or will not be used in accordance with the authorised person’s legal obligations and (b) any potential
consequences arising from their decision;
(iii) has confirmed their agreement in the absence of any inappropriate pressure or coercion;
“electronic device” means any device on which information is capable of being stored electronically and includes any component of such a device;
“enactment” includes—
(a) an Act of the Scottish Parliament,
(b) an Act or Measure of Senedd Cymru, and
(c) Northern Ireland legislation;
“information” includes moving or still images and sounds;
“offence” means an offence under the law of any part of the United Kingdom;
“user”, in relation to an electronic device, means a person who ordinarily uses the device.
(11) References in this section and sections [Application of section [Extraction of information from electronic devices] to children and adults without capacity] to the extraction of information include its reproduction in any form.
(12) This section is subject to sections [Application of section [Extraction of information from electronic devices] to children and adults without capacity] and [Application of section [Extraction of information from electronic devices] where user has died etc].’
New clause 59—Application of section [Extraction of information from electronic devices] to children and adults without capacity—
‘(1) A child is not to be treated for the purposes of subsection (1) of section [Extraction of information from electronic devices] as being capable of—
(a) voluntarily providing an electronic device to an authorised person for those purposes, or
(b) agreeing for those purposes to the extraction of information from the device by an authorised person.
(2) If a child is a user of an electronic device, a person who is not a user of the device but is listed in subsection (3) may—
(a) voluntarily provide the device to an authorised person for the purposes of subsection (1) of section [Extraction of information from electronic devices], and
(b) agreement for those purposes to the extraction of information from the device by an authorised person.
(3) The persons mentioned in subsection (2) are—
(a) the child’s parent or guardian or, if the child is in the care of a relevant authority or voluntary organisation, a person representing that authority or organisation,
(b) a registered social worker, or
(c) if no person falling within paragraph (a) or (b) is available, any responsible person aged 18 or over other than an authorised person.
(4) The agreement of persons listed in subsection (3) further to subsection 2(b) should only be accepted where, if it is appropriate, the child has been consulted on whether such agreement should be provided and the authorised person is satisfied those views have been taken into account.
(5) An adult without capacity is not to be treated for the purposes of section [Extraction of information from electronic devices] as being capable of—
(a) voluntarily providing an electronic device to an authorised person for those purposes, or
(b) agreeing for those purposes to the extraction of information from the device by an authorised person.
(6) If a user of an electronic device is an adult without capacity, a person who is not a user of the device but is listed in subsection (7) may—
(a) voluntarily provide the device to an authorised person for the purposes of subsection (1) of section [Extraction of information from electronic devices], and
(b) agreement for those purposes to the extraction of information from the device by an authorised person.
(7) The persons mentioned in subsection (6) are—
(a) a parent or guardian of the adult without capacity,
(b) a registered social worker,
(c) a person who has a power of attorney in relation to the adult without capacity, or
(d) if no person falling within paragraph (a), (b) or (c) is available, any responsible person aged 18 other than an authorised person.
(8) The agreement of persons listed in subsection (7) further to subsection (6)(b) should only be accepted where, if it is appropriate, the adult without capacity has been consulted on whether such agreement should be provided and the authorised person is satisfied those views have been taken into account.
(9) Nothing in this section prevents any other user of an electronic device who is not a child or an adult without capacity from—
(a) voluntarily providing the device to an authorised person for the purposes of subsection (1) of section [Extraction of information from electronic devices], or
(b) agreeing for those purposes to the extraction of information from the device by an authorised person.
(10) In this section and section [Application of section [Extraction of information from electronic devices] where user has died etc]—
“adult without capacity” means an adult who, by reason of any impairment of their physical or mental condition, is incapable of making decisions for the purposes of subsection (1) of section [Extraction of information from electronic devices];
“local authority”—
(a) in relation to England, means a county council, a district council for an area for which there is no county council, a London borough council or the Common Council of the City of London,
(b) in relation to Wales, means a county council or a county borough council, and
(c) in relation to Scotland, means a council constituted under section 2 of the Local Government etc (Scotland) Act 1994;
“registered social worker” means a person registered as a social worker in a register maintained by—
(a) Social Work England,
(b) the Care Council for Wales,
(c) the Scottish Social Services Council, or
(d) the Northern Ireland Social Care Council;
“relevant authority”—
(a) in relation to England and Wales and Scotland, means a local authority;
(b) in relation to Northern Ireland, means an authority within the meaning of the Children (Northern Ireland) Order 1995 (S.I. 1995/755 (N.I. 2));
“voluntary organisation”—
(a) in relation to England and Wales and Scotland, has the same meaning as in the Children Act 1989;
(b) in relation to Northern Ireland, has the same meaning as in the Children (Northern Ireland) Order 1995.
(11) Subsections (10) and (11) of section [Extraction of information from electronic devices] also contain definitions for the purposes of this section.’
New clause 60—Application of section [Extraction of information from electronic devices] where user has died etc—
‘(1) If any of conditions A to C is met, an authorised person may exercise the power in subsection (1) of section [Extraction of information from electronic devices] to extract information stored on an electronic device from that device even though—
(a) the device has not been voluntarily provided to an authorised person by a user of the device, or
(b) no user of the device has agreed to the extraction of information from the device by an authorised person.
(2) Condition A is that—
(a) a person who was a user of the electronic device has died, and
(b) the person was a user of the device immediately before their death.
(3) Condition B is that—
(a) a user of the electronic device is a child or an adult without capacity, and
(b) an authorised person reasonably believes that the user’s life is at risk or there is a risk of serious harm to the user.
(4) Condition C is that—
(a) a person who was a user of the electronic device is missing,
(b) the person was a user of the device immediately before they went missing, and
(c) an authorised person reasonably believes that the person’s life is at risk or there is a risk of serious harm to the person.
(5) The exercise of the power in subsection (1) of section [Extraction of information from electronic devices] by virtue of this section is subject to subsections (2) to (8) of that section.
(6) Subsections (10) and (11) of section [Extraction of information from electronic devices] and subsection (9) of section [Application of section [Extraction of information from electronic devices] to children and adults without capacity] contain definitions for the purposes of this section.’
New clause 61—Code of practice—
‘(1) The Secretary of State must prepare a code of practice containing guidance about the exercise of the power in subsection (1) of section [Extraction of information from electronic devices].
(2) In preparing the code, the Secretary of State must consult—
(a) the Information Commissioner,
(b) the Scottish Ministers,
(c) the Welsh Government,
(d) the Department of Justice in Northern Ireland,
(e) the Victims Commissioner,
(f) the Domestic Abuse Commissioner,
(g) any regional Victims Champion including the London Victims Commissioner,
(h) persons who appear to the Secretary of State to represent the interests of victims, witnesses and other individuals likely to be affected by the use of the power granted in subsection (1) of section [Extraction of information from electronic devices], and
(i) such other persons as the Secretary of State considers appropriate.
(3) After preparing the code, the Secretary of State must lay it before Parliament and publish it.
(4) The code is to be brought into force by regulations made by statutory instrument.
(5) The code must address, amongst other matters—
(a) the procedure by which an authorised person must obtain and record confirmation that a device has been provided voluntarily;
(b) the procedure by which an authorised person must obtain and record confirmation that agreement has been provided for the extraction of specified information, including the information which must be provided to the user about—
(i) how long the device will be retained;
(ii) what specific information is to be extracted from the device and why, including the identification of the reasonable line of enquiry to be pursued and the scope of information which will be extracted, reviewed and/or retained;
(iii) how the extracted information will be kept secure;
(iv) how the extracted information will or may be used in a criminal process;
(v) how they can be kept informed about who their information is to be shared with and the use of their information in the criminal process;
(vi) their right to refuse to agree to provide their device and/ or to the proposed extraction in whole or in part and the potential consequences of that refusal; and
(vii) the circumstances in which a further extraction may be required, and what will happen to the information after the case has been considered;
(c) the different types of extraction processes available, and the parameters which should be considered in defining the scope of any proposed extraction from a user’s device;
(d) the circumstances in which the extraction of information should and should not be considered strictly necessary and proportionate;
(e) the considerations to be taken into account in determining whether there are less intrusive alternatives available to extraction for the purposes of subsection (7) of section [Extraction of information from electronic devices];
(f) the process by which the authorised person should identify and delete data which is not responsive to a reasonable line of enquiry and/or has been assessed as not relevant to the purposes for which the extraction was conducted; and
(g) the records which must be maintained documenting for each extraction or proposed extraction, including—
(i) the specific information to be extracted;
(ii) the reasonable lines of enquiry pursued;
(iii) the basis upon which the extraction is considered strictly necessary, including any alternatives considered and why they were not pursued;
(iv) confirmation that appropriate information was provided to the user and, if applicable, agreement obtained;
(v) the reasons why the user was not willing to agree to a proposed extraction.
(6) A statutory instrument containing regulations under subsection (4) is subject to annulment in pursuance of a resolution of either House of Parliament.
(7) After the code has come into force the Secretary of State may from time to time revise it.
(8) References in subsections (2) to (7) to the code include a revised code.’
New clause 62—Effect of code of practice—
‘(1) An authorised person must in the exercise of the power granted under section [Extraction of information from electronic devices] have regard to the code of practice issued under section [Code of practice] in deciding whether to exercise, or in the exercise of that power.
(2) A failure on the part of any person to comply with any provision of a code of practice for the time being in force under section [Code of practice] shall not of itself render him liable to any criminal or civil proceedings.
(3) A code of practice in force at any time under section [Code of practice] shall be admissible in evidence in any criminal or civil proceedings.
(4) In all criminal and civil proceedings any code in force under section [Code of practice] shall be admissible in evidence; and if any provision of the code appears to the court or tribunal conducting the proceedings to be relevant to any question arising in the proceedings it shall be taken into account in determining that question.’
New clause 63—Duties to collaborate and plan to prevent and reduce child criminal exploitation and safeguard affected children—
‘(1) The specified authorities for a local government area must collaborate with each other to prevent and reduce child criminal exploitation in the area and safeguard affected children.
(2) The duty imposed on the specified authorities for a local government area by subsection (1) includes a duty to plan together to exercise their functions so as to prevent and reduce child criminal exploitation in the area and safeguard affected children.
(3) In particular, the specified authorities for a local government area must—
(a) identify the kinds of child criminal exploitation that occur in the area,
(b) identify the causes of child criminal exploitation in the area, so far as it is possible to do so, and
(c) prepare and implement a strategy for exercising their functions to prevent and reduce child criminal exploitation and safeguard affected children in the area.
(4) In preparing a strategy under this section for a local government area, the specified authorities for the area must ensure that the following are consulted—
(a) each educational authority for the area;
(b) each prison authority for the area;
(c) each youth custody authority for the area.
(5) A strategy under this section for a local government area may specify an action to be carried out by—
(a) an educational authority for the area,
(b) a prison authority for the area, or
(c) a youth custody authority for the area.
(6) Once a strategy has been prepared under this section for a local government area, the specified authorities for the area must—
(a) keep the strategy under review, and
(b) every two years, prepare and implement a revised strategy.
(7) A strategy prepared under this section may be combined with a strategy prepared in accordance with section 7 (Duties to collaborate and plan to prevent and reduce serious violence) or section 8 (Powers to collaborate and plan to prevent and reduce serious violence).
(8) For the purposes of this section, “child criminal exploitation” means activity which would constitute an offence under section [Child criminal exploitation] of this Act.’
New clause 64—Scrutiny of timeliness of investigations of complaints against police and allegations of police misconduct—
‘(1) The Police (Conduct) Regulations 2020 are amended by the insertion of the following regulation after regulation 19—
“Scrutiny of investigation timeliness
19A (1) A legally qualified person within the meaning of regulation 28(4)(a) and (6) shall be appointed to scrutinise the information provided pursuant to regulation 19.
(2) On each occasion where information is provided in writing under regulation 19(1) the legally qualified person appointed under paragraph (1) shall determine whether there is good and sufficient reason for the time—
(a) already taken; and
(b) realistically anticipated to be needed for completion of the investigation.
(3) In determining whether there is good and sufficient reason under paragraph (2) the legally qualified person may have regard to any relevant matter, and shall have particular regard to—
(a) whether the investigation has been efficient and effective;
(b) whether there has been unnecessary or unreasonable delay having regard to complexity and seriousness of the case;
(c) the impact upon the officer and others;
(d) any anticipated further delay;
(e) the public interest and affect upon confidence in the police disciplinary system; and
(f) representations made on behalf of any person entitled to receive a copy of the information provided under regulation 19.
(4) Unless the legally qualified person determines that there is good and sufficient reason under paragraph (2)(a) and (b) then—
(a) all investigation into possible misconduct or gross misconduct shall be terminated forthwith; and
(b) no disciplinary proceedings may be initiated in respect of the matters under investigation.
(5) Nothing in this provision shall have any effect in relation to any criminal investigation.”
(2) The Police (Complaints and Misconduct) Regulations 2020 are amended by the insertion of the following regulation after regulation 13—
“Scrutiny of investigation timeliness
13A (1) A legally qualified person within the meaning of regulation 28(4)(a) and (6) of the Police (Conduct) Regulations 2020 shall be appointed to scrutinise the information provided pursuant to regulation 13.
(2) On each occasion where information is provided in writing under regulation 13 paragraph (1) or (2) the legally qualified person appointed under paragraph (1) shall determine whether there is good and sufficient reason for the time—
(a) already taken; and
(b) realistically anticipated to be needed for completion of the investigation.
(3) In determining whether there is good and sufficient reason under paragraph (2) the legally qualified person may have regard to any relevant matter, and shall have particular regard to—
(a) whether the investigation has been efficient and effective;
(b) whether there has been unnecessary or unreasonable delay having regard to complexity and seriousness of the case;
(c) the impact upon the officer and others;
(d) any anticipated further delay;
(e) the public interest and affect upon confidence in the police disciplinary system; and
(f) representations made on behalf of any person entitled to receive a copy of the information provided under regulation 13.
(4) Unless the legally qualified person determines that there is good and sufficient reason under paragraph (2)(a) and (b) then—
(a) all investigation into possible misconduct or gross misconduct shall be terminated forthwith; and
(b) no disciplinary proceedings may be initiated in respect of the matters under investigation.
(5) Nothing in this provision shall have any effect in relation to any criminal investigation.”’
New clause 65—Public inquiry into the policing of protests—
‘Within six months of the passage of this Act, the Secretary of State must cause an inquiry to be held under the Inquiries Act 2005 into the prevention, investigation and prosecution of crime in relation to the policing of protests, including the use of force, use of kettling and use of police horses.’
New clause 66—Air weapons—
‘(1) Within three months of the date on which this Act is passed, the Secretary of State must publish a report on the safety of air weapons.
(2) The report must include an assessment of the evidence submitted to the review of air weapons regulation announced on 10 October 2017.
(3) So far as possible without contravening any provision of legislation relating to data protection, the report must publish the evidence referred to in subsection (3).’
This new clause would require the government to publish a report on the safety of air weapons that includes the evidence gathered as part of the Air Weapons Review 2017.
New clause 67—Prohibition of air weapons on private land for those under the age of 18—
‘(1) Section 23 of the Firearms Act 1968 is amended in accordance with subsections (2) to (3).
(2) Omit subsection (1).
(3) Omit subsection (3).’
This new clause would amend the Firearms Act 1968 to prevent a person under the age of 18 from having an air gun on private land other than as part of a sporting club.
New clause 68—Sections 55 to 61: commencement—
‘(1) The Secretary of State may exercise the power in section 176(1) so as to bring sections 55 to 61 into force only if condition A and, thereafter, condition B are met.
(2) Condition A is that a general election has taken place subsequent to the passage of this Act.
(3) Condition B is that both Houses of Parliament have by resolution approved the coming into force of those sections.’
New clause 69—Time limits for prosecutions for common assault in domestic abuse cases—
‘(1) The Criminal Justice Act 1988 is amended as follows.
(2) At the end of section 39 add—
“(3) Subject to subsection (4) below, summary proceedings for an offence of common assault or battery involving domestic abuse may be brought within a period of six months from the date on which a report of the offence was made to the police.”
(4) No such proceedings shall be brought by virtue of this section more than two years after the commission of the offence.
(5) For the purposes of this section ‘domestic abuse’ has the same meaning as in section 1 of the Domestic Abuse Act 2021.”’
This new clause seeks to extend the existing six month time limit for common assault in cases of domestic abuse.
New clause 70—Police driving—
(1) When a vehicle is being used for a policing purpose, the driver may depart from the standard of the careful and competent driver (or cause another to do so), or depart from the direction of any mandatory road traffic sign, if and only if—
(a) driving the vehicle in accordance with road traffic regulations or relevant policy would be likely to hinder the use of that vehicle for the purpose for which it is being used,
(b) any such departure is reasonable in the circumstances as the responder reasonably believed them to be, and
(c) the departure was proportionate to the circumstances as the responder reasonably believed them to be.
(2) In deciding whether the departure was reasonable, the following should be taken into account, insofar as relevant—
(a) any training received by the driver;
(b) any applicable policy of the police force of which the driver is a member;
(c) that a driver reacting to circumstances as they occur may not be able to judge to a nicety the exact measure of any necessary action required;
(d) evidence of a driver having only done what the driver honestly and instinctively thought was necessary in the circumstances constitutes strong evidence that any departure from the relevant standard was reasonable.’
New clause 71—Intentional harassment, alarm or distress—
‘(1) Section 4A of the Public Order Act 1986 is amended as follows.
(2) In subsection (1)(a) leave out “, abusive or insulting” and insert “or abusive”.
(3) In subsection (1)(b) leave out “, abusive or insulting” and insert “or abusive”.’
New clause 72—Criminalising commercial squatting and squatting on land—
‘(1) Section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 is amended as follows.
(2) In the heading, after “in”, leave out “a residential building” and insert “buildings and on land”.
(3) In subsection (1)(a) after “a”, leave out “residential”, and after “building”, insert “or on land”.
(4) In subsection (1)(c) after “building”, insert “or on the land”.
(5) In subsection (2) after “building”, add “or land”.
(6) Leave out subsection (3)(b) and insert “Land has the meaning defined in section 205(1)(ix) of the Law of Property Act 1925.
(7) In subsection (7) after “building”, insert “or land”.
(8) In subsection (8) (a) after “squatting in” leave out “a residential building” and insert “buildings and on land”.’
New clause 84—Non-crime hate incidents not to be recorded on the national police database etc—
‘Non-crime hate incidents are prohibited from being:
(1) recorded on the National Police Database;
(2) kept as a record by police forces against any individual’s name in any way; or
(3) included in any enhanced Disclosure and Barring Service check.’
New clause 85—Code for policing of protest—
‘(1) The Secretary of State must produce a Code for the Policing of Protest (“the Code”).
(2) The Code must set out the how relevant police powers must be used and relevant police duties discharged in accordance with both the domestic law and international law obligations imposed under the right to protest, including—
(a) the duty to facilitate peaceful protest unless not to do so is in accordance with the relevant law, and
(b) the duty to refrain from interfering with peaceful protest except where to do so is in accordance with the relevant law.
(3) In this section—
(a) the “right to protest” includes all domestic and international law rights which provide for the right to protest, and
(b) references to “domestic and international law” include but are not limited to the European Convention of Human Rights and associated jurisprudence.
(4) Any person or organisation exercising a power or duty which relates to protest or public order must act in accordance with the Code.’
New clause 90—Offence of assaulting etc. a person providing a service to the public—
‘(1) It is an offence for a person to assault, threaten or abuse another person who is providing a service to the public.
(2) No offence is committed under subsection (1) unless the person who assaults, threatens or abuses knows or ought to know that the other person is providing a service to the public.
(3) A person who commits an offence under subsection (1) is liable, on summary conviction, to imprisonment for a term not exceeding 12 months, a fine, or both.
(4) Evidence from a single source is sufficient to establish, for the purposes of this section, whether a person is providing a service to the public.
(5) The offence under subsection (1) of threatening or abusing a person who is providing a service to the public (A) is committed by a person (B) only if B—
(a) behaves in a threatening or abusive manner towards A, and
(b) intends by the behaviour to cause A or any other person fear or alarm or is reckless as to whether the behaviour would cause such fear or alarm.
(6) Subsection (5) applies to—
(a) behaviour of any kind including, in particular, things said or otherwise communicated as well as things done,
(b) behaviour consisting of—
(i) a single act, or
(ii) a course of conduct.
(7) The Secretary of State must by regulations define “providing a service to the public” for the purposes of this section.’
New clause 91—Review of the Misuse of Drugs Act 1971—
‘(1) The Secretary of State must conduct a review of the criminal offences in the Misuse of Drugs Act 1971.
(2) In undertaking the review, the Secretary of State must consult—
(a) the Advisory Council on the Misuse of Drugs;
(b) the Scottish Ministers;
(c) the Welsh Ministers;
(d) the Northern Ireland Department of Health, and
(e) any other person the Secretary of State considers appropriate.
(3) The Secretary of State must, before the end of the period of 9 months beginning with the day on which this Act comes into force, lay before Parliament a report on the review, including any proposals for legislative change.’
This new clause would require the Secretary of State to undertake a review of the criminal offences set out in the Misuse of Drugs Act 1971.
New clause 101—Training for relevant public officials in relation to the conduct of cases involving modern slavery and child criminal exploitation—
‘(1) The Secretary of State shall, on this Act coming into force, publish and implement a strategy to provide a framework for training on the investigation of cases involving modern slavery and child criminal exploitation complainants for—
(a) the Crown Prosecution Service;
(b) Police Forces;
(c) the Judiciary; and
(d) such other public bodies as the Secretary of State considers appropriate.
(2) The Secretary of State shall ensure that any judge who is asked to hear a trial where the accused’s charges include modern slavery offences and child criminal exploitation offences has attended and completed a training programme for such trials which has been accredited by the Judicial College and College of Policing or through a recognised training provider or non-governmental organisation.’
This new clause ensures that all criminal justice agencies shall attend a trained programme on modern slavery and child criminal exploitation from accredited Judicial College and College of Policing or a recognised training provider or non-governmental organisation.
New clause 102—Duty of local authorities to provide sites for Gypsies, Roma and Travellers—
‘(1) It is the duty of every local authority to exercise their powers under section 24 of the Caravan Sites and Control of Development Act 1960 (provision of caravan sites) so as to provide adequate accommodation for Gypsies, Roma and Travellers residing in or resorting to their area.
(2) The Minister may, if at any time it appears to them to be necessary to do so, give directions to any such local authority requiring them to provide such sites or additional sites for the accommodation of such numbers of caravans as may be specified in the directions.’
This new clause would reintroduce a statutory duty to require that local authorities provide authorised sites for the Gypsy, Roma and Traveller community.
Amendment 25, in clause 1, page 2, line 3, after “workforce,” insert
“including the impact of working with traumatised survivors on officers’ wellbeing and morale,”.
This amendment aims to ensure the police covenant report, when addressing the health and well-being of members and formers members of the police workforce, also addresses the specific impact working with traumatised survivors, such as survivors of child sexual abuse, has on officers’ wellbeing and morale.
Government amendments 32 and 33.
Amendment 64, page 2, line 42, at end insert—
“(aa) members of the British Transport Police,
(ab) members of the Civil Nuclear Constabulary,
(ac) members of the Ministry of Defence police,”.
Government amendment 34.
Amendment 47, in clause 2, page 3, line 30, at end insert—
“(3) In section 3 of the Assaults on Emergency Workers (Offences) Act 2018 (meaning of “emergency worker”), in paragraph (1)(e) omit “of a corresponding kind to those carried out by a prison officer”.”
This amendment would expand the definition of “emergency worker” to include all prison staff, not just prison officers and those carrying out functions of a corresponding kind to those of a prison officer.
Government amendments 35 to 39.
Amendment 97, page 7, line 38, leave out clause 7.
Amendment 73, in clause 7, page 7, line 40, after “violence”, insert—
“and safeguard children involved in serious violence”.
This amendment, together with amendments 74, 75, 78, 79, 80, 81, 83 and 84 would ensure specified authorities involved in the ‘serious violence duty’ safeguard children at risk of or experiencing from harm.
Amendment 74, page 8, line 3, after “violence”, insert—
“and safeguard children involved in serious violence”.
See explanatory statement to amendment 73.
Amendment 75, page 8, line 9, at end insert—
“(d) safeguard children involved in serious violence in the area, and
(e) identify and safeguard children who are involved in serious violence in the area as a result of being a victim of modern slavery and trafficking offences under the Modern Slavery Act 2015.”.
See explanatory statement to amendment 73.
Amendment 87, page 8, line 9, at end insert—
“(d) prepare and implement an early help strategy to prevent violence and support child victims of violence and prevent hidden harm.”.
This amendment would add a duty on specified authorities to prepared and implement an early help strategy.
Amendment 88, page 8, line 15, at end insert—
“(d) any children’s social care authority for the area which is not a specified authority for the area.”.
This amendment would ensure that any children’s social care authority which was not already involved in the strategy would be consulted in the preparation of the strategy.
Amendment 76, page 8, line 35, leave out “from time to time” and insert “every two years,”.
This amendment would require the specified authorities for an area to prepare and implement a revised strategy every two years.
Amendment 77, page 8, line 35, at end insert—
“(7A) The local policing body for the area must provide an annual monitoring report for local safeguarding partners on actions undertaken as part of a strategy.”.
Amendment 98, page 9, line 4, leave out clause 8.
Amendment 78, in clause 8, page 9, line 6, after “violence”, insert—
“and safeguard children involved in serious violence”.
See explanatory statement to amendment 73.
Amendment 79, page 9, line 9, after “violence”, insert—
“and safeguard children involved in serious violence”.
See explanatory statement to amendment 73.
Amendment 80, page 9, line 14, after “violence”, insert—
“and safeguard children involved in serious violence”.
See explanatory statement to amendment 73.
Amendment 81, page 9, line 14, at end insert—
“(d) identify and safeguard children who are involved in serious violence in the area as a result of being a victim of modern slavery and trafficking offences under the Modern Slavery Act 2015.”
See explanatory statement to amendment 73.
Amendment 82, page 10, line 8, leave out “from time to time” and insert “every two years,”This amendment would require collaborating specified authorities for an area to prepare and implement a revised strategy every two years.
Amendment 99, page 10, line 31, leave out clause 9.
Amendment 83, in clause 9, page 10, line 34, after “violence”, insert—
“and safeguard children involved in serious violence”.
See explanatory statement to amendment 73.
Amendment 84, page 10, line 36, after “violence”, insert—
“and safeguard children involved in serious violence”.
See explanatory statement to amendment 73.
Amendment 100, page 11, line 28, leave out clause 10.
Amendment 101, page 12, line 4, leave out clause 11.
Amendment 102, page 12, line 18, leave out clause 12.
Amendment 86, in clause 12, page 12, line 37, at end insert—
“(5) In exercising their functions under this Chapter, specified authorities must have particular regard to reducing serious violence against women and girls, including street harassment, and reducing instances of hidden harm resulting from serious violence.”
Amendment 103, page 1, line 39, leave out clause 13.
Amendment 104, page 13, line 35, leave out clause 14.
Amendment 105, page 14, line 42, leave out clause 15.
Amendment 106, page 15, line 29, leave out clause 16.
Amendment 85, in clause 16, page 16, line 16, at end insert—
“(8) A local policing body must report annually on the requests made under this section, including information on the bodies the request were made to and the use of information provided.”
This amendment would require local policing bodies to report on requests for information made to specified authorities, educational authorities, prison authorities and youth custody authorities for the purpose of assisting with its functions under section 13.
Amendment 107, page 16, line 17, leave out clause 17.
Amendment 89, in clause 17, page 17, line 28, leave out “consult” and insert “receive the consent of”.
Amendment 108, page 16, line 38, leave out clause 18.
Amendment 90, in clause 18, page 17, line 7, leave out “consult” and insert “receive the consent of”.
Amendment 109, page 17, line 12, leave out clause 19.
Amendment 91, in clause 19, page 17, line 41, leave out “consult” and insert “receive the consent of”.
Amendment 110, page 18, line 40, leave out clause 20.
Amendment 111, page 19, line 5, leave out clause 21.
Amendment 92, in clause 21, page 19, line 11, leave out “consult” and insert “receive the consent of”.
Amendment 112, page 19, line 37, leave out clause 22.
Amendment 93, in clause 31, page 26, line 20, after “Ministers” insert “and receive their consent”.
Amendment 94, in clause 35, page 28, line 22, after “Ministers” insert “and receive their consent”.
Amendment 72, in clause 36, page 29, line 12, at end insert—
“(c) the user who has given agreement under subsection (1)(b) was offered free independent legal advice on issues relating to their human rights before that agreement was given.”
This amendment would ensure that users of electronic devices were offered free independent legal advice before information on their device could be accessed.
Amendment 115, page 29, line 26, at end insert—
“(7A) No information other than—
(a) information necessary for a purpose within subsection (2) for which the authorised person may exercise the power, or
(b) information necessary for a purpose within subsection (2) of section 39 (investigations of death) for which the authorised person may exercise the power in subsection (1) of that section may be retained, stored or copied.”
Amendment 117, in clause 40, page 34, line 8, at end insert—
“(6A) Scottish Ministers may prepare a code of practice containing guidance about the exercise in Scotland of the powers in sections 36(1) and 39(1) (“a Scottish code”).
(6B) In preparing a Scottish code, Scottish Ministers must consult any person Scottish Ministers consider appropriate.
(6C) After preparing a Scottish code, Scottish Ministers must lay it before the Scottish Parliament and publish it.
(6D) A Scottish code is to be brought into force by regulations made by statutory instrument by Scottish Ministers.
(6E) A statutory instrument containing regulations under subsection (6D) is subject to annulment in pursuance of a resolution of the Scottish Parliament.
(6F) After a Scottish code has come into force Scottish Ministers may from time to time revise it.
(6G) References in subsections (6B) to (6F) to the Scottish code include a revised code, subject to subsection (6H).
(6H) The duty to consult in subsection (6B) does not apply in relation to the preparation of a revised code if Scottish Minsters consider that the proposed revisions are insubstantial.
(6I) If a Scottish code is in force—
(a) references in subsections (7) and (8) to “the code” apply in Scotland as if they referred to a Scottish code, and
(b) the code prepared and published by the Secretary of State shall not apply to the exercise of the applicable powers in Scotland.”
This amendment would allow Scottish Ministers, with approval from the Scottish Parliament, to draft a code of practice regarding the extraction of information from electronic devices that would apply in Scotland.
Amendment 116, in clause 41, page 35, line 23, at end insert—
“(7) The powers in section 36(1) and section 39(1) may not be exercised until regulations under this section are in force.”
This amendment would prevent the powers to extract data given by section 36(1) and section 39(1) from being exercised until regulations making provision about the exercise of the power in relation to confidential information (such as confidential journalistic material) are in force.
Amendment 51, in clause 45, page 37, line 12, leave out subsections (2) and (3) and insert—
“(2) In section 16—
(a) in subsection (2)(a), leave out “or (5)” and insert “, (5) or (5A)”;
(b) in subsection (4)(a), leave out “or (5)” and insert “, (5) or (5A)”.
(3) In section 17—
(a) in subsection (2)(a), leave out “or (5)” and insert “, (5) or (5A)”;
(b) in subsection (4)(a), leave out “or (5)” and insert “, (5) or (5A)”.
(4) In section 18—
(a) in subsection (2)(a), leave out “or (5)” and insert “, (5) or (5A)”;
(b) in subsection (4)(a), leave out “or (5)” and insert “, (5) or (5A)”.
(5) In section 19—
(a) in subsection (2)(a), leave out “or (5)” and insert “, (5) or (5A)”;
(b) in subsection (4)(a), leave out “or (5)” and insert “, (5) or (5A)”.
(6) In section 21, after subsection (5), insert—
“(5A) This subsection applies if A is regularly involved in caring for, training, supervising or being in sole charge of B and none of subsections (2) to (13) of this section otherwise applies.””
This amendment aims to ensure that all adults who are in a position of trust are subject to the child sexual abuse offences provided for by section 16 to 19 of the Sexual Offences Act 2003, rather than simply extending the definition to those who coach, teach, train, supervise or instruct children in a sport or a religion.
Amendment 1, page 46, line 25, leave out clause 55.
This amendment, together with amendments 2 to 7, would remove Part 3 (Public order) From the Bill.
Amendment 52, in clause 55, page 46, line 28, leave out subsections (2) to (4) and insert—
“(2) After subsection (11) insert—
‘(12) The Secretary of State may by regulations make provision about the meaning for the purposes of this section of “serious disruption to the life of the community”.
(13) Regulations under subsection (12) may, in particular—
(a) define any aspect of “serious disruption to the life of the community” for the purposes of this section;
(b) give examples of cases in which a public procession is or is not to be treated as resulting in serious disruption to the life of the community.
(14) Regulations under subsection (12)—
(a) are to be made by statutory instrument;
(b) may apply only in relation to public processions in England and Wales;
(c) may make incidental, supplementary, consequential, transitional, transitory or saving provision.
(15) A statutory instrument containing regulations under subsection (12) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.’”
This amendment would remove the proposed new trigger, based on noise, for imposing conditions on public processions in England and Wales. The Secretary of State’s power to make regulations would be amended accordingly.
Amendment 2, page 47, line 42, leave out clause 56.
This amendment, together with amendments 2 to 7, would remove Part 3 (Public order) From the Bill.
Amendment 53, in clause 56, page 48, line 2, leave out paragraph (b).
This amendment, together with Amendments 54 and 55, would remove the proposed new trigger, based on noise
Amendment 56, page 48, line 17, leave out from beginning to end of line 20 and insert—
“(a) in the case of an assembly in England and Wales, such conditions as to the place at which the assembly may be (or continue to be) held, the time at which it is to start and/or conclude, its maximum duration, or the maximum number of persons who may constitute it, as appear to the officer necessary to prevent the disorder, damage, disruption, impact or intimidation mentioned in subsection (1);”
This amendment removes the proposed ability to impose any necessary conditions on public assemblies in England and Wales and replace it with the existing available conditions plus conditions concerning the time at which the public assembly must start and finish.
Amendment 54, page 48, line 19, leave out “, impact”.
See explanatory statement to Amendment 53.
Amendment 55, page 48, line 28, leave out subsections (5) to (6) and insert—
“(5) After subsection (10A) (as inserted by section 57(11)) insert —
‘(11) The Secretary of State may by regulations make provision about the meaning for the purposes of this section of “serious disruption to the life of the community”.
(12) Regulations under subsection (11) may, in particular—
(a) define any aspect of “serious disruption to the life of the community” for the purposes of this section;
(b) give examples of cases in which a public assembly is or is not to be treated as resulting in serious disruption to the life of the community.
(13) Regulations under subsection (11)—
(a) are to be made by statutory instrument;
(b) may apply only in relation to public processions in England and Wales;
(c) may make incidental, supplementary, consequential, transitional, transitory or saving provision.
(14) A statutory instrument containing regulations under subsection (11) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.’”
See explanatory statement to Amendment 53.
Amendment 3, page 49, line 21, leave out clause 57.
This amendment, together with amendments 1, 2 and 3 to 7, would remove Part 3 (Public order) from the Bill.
Amendment 26, in clause 57, page 49, line 33, leave out from beginning to end of line 35 and insert—
“(a) in the case of a public procession in England and Wales, at the time the person fails to comply with the condition the person—
(i) knows that the condition has been imposed or has deliberately or recklessly avoided gaining knowledge that the condition has been imposed; and
(ii) knows or ought to know that their action or inaction amounts to a failure to comply with the condition.”
This amendment prevents a person who fails to comply with a condition on a public procession in England and Wales avoiding criminal liability by deliberately or recklessly avoiding knowledge of the relevant condition, without extending the criminal offence to cover persons who breach conditions accidentally.
Amendment 27, page 49, line 38, leave out subsection (6).
This amendment removes increases in sentences for non-violent offences by those who organise and attend public processions.
Amendment 28, page 50, line 33, leave out from beginning to end of line 35 and insert—
“(a) in the case of a public assembly in England and Wales, at the time the person fails to comply with the condition the person—
(i) knows that the condition has been imposed or has deliberately or recklessly avoided gaining knowledge that the condition has been imposed; and
(ii) knows or ought to know that their action or inaction amounts to a failure to comply with the condition.”
This amendment prevents a person who fails to comply with a condition on a public assembly in England and Wales avoiding criminal liability by deliberately or recklessly avoiding knowledge of the relevant condition, without extending the criminal offence to cover persons who breach conditions accidentally.
Amendment 29, page 50, line 38, leave out subsections (11) and (12).
This amendment removes increases in sentences for non-violence offences by those who organise and attend public assemblies.
Amendment 4, page 51, line 22, leave out clause 58.
This amendment, together with amendments 1 to 3 and 5 to 7, would remove Part 3 (Public order) from the Bill.
Amendment 5, page 52, line 36, leave out clause 59.
This amendment, together with amendments 1 to 4, 6 and 7, would remove Part 3 (Public order) from the Bill.
Amendment 6, page 53, line 17, leave out clause 60.
This amendment, together with amendments 1 to 5 and 7, would remove Part 3 (Public order) from the Bill.
Amendment 30, in clause 30, page 53, line 31, leave out subsection (2) and insert—
“(2) For the purposes of subsection (1) “serious harm” means—
(a) death, personal injury or disease,
(b) loss of, or damage to, property,
(c) serious distress, serious annoyance, serious inconvenience or serious loss of amenity, or
(d) being put at serious risk of suffering anything mentioned in paragraphs (a) to (c).”
This amendment removes the reference to the experience of a ‘person’ when defining what serious harm means in the context of ‘serious harm to the public or a section of the public’. It also requires the public to be put at significant risk of harm before criminal liability arises, to avoid the offence being excessively broad in its reach.
Amendment 31, in clause 60, page 53, line 37, at end insert—
“(3A) In determining whether a person had a reasonable excuse for the purposes of subsection (3) a court must have particular regard to the importance of the right to protest, including the right to freedom of expression under Article 10 and the right to freedom of association under Article 11 of Part 1 of Schedule 1 to the Human Rights Act 1998.”
This amendment ensures that the right to protest is given particular regard when a court considers whether a person has a reasonable excuse defence to a charge of public nuisance.
Amendment 7, page 54, line 18, leave out clause 61.
This amendment, together with amendments 1 to 6, would remove Part 3 (Public order) from the Bill.
Amendment 8, page 56, line 23, leave out clause 62.
Amendment 128, in clause 62, page 56, line 36, leave out line 36 and insert—
“(d) a constable, following a request of the occupier or a representative of the occupier,”.
This amendment, would provide that, as part of the conditions for the new offence of criminal trespass, only a police officer could request a person to leave land and only following a request by the occupier of the land.
Amendment 11, page 56, line 36, leave out
“the occupier, a representative of the occupier or”.
This amendment would remove the role of a private individual in triggering a criminal offence by requiring that a person would need to refuse a request to leave the land from a police officer before an offence under subsection (2) is committed.
Amendment 12, page 56, line 40, at end insert—
“(1A) A constable may only make a request under subsection 1(d) if a senior officer is reasonably satisfied that it is reasonable and proportionate to do so, after suitable consultations with relevant bodies, having particular regard to Convention rights and personal circumstances, including the best interests of any children residing on the land.”
This amendment would require a senior police officer to ensure an assessment of welfare needs has been considered and the request to leave the land is proportionate before any requests to leave the land are made and any powers under Part 4 are triggered.
Amendment 125, page 56, line 40, at end insert—
“(1A) A constable may only make a request under subsection (1)(d) where the constable has ascertained from the local authority within whose area the land is situated that there is a suitable pitch for P’s caravan or caravans on a relevant caravan site which is situated in the local authority’s area and that P has been informed of that.
(1B) For the purposes of this Section, “caravan”, “caravan site”, “relevant caravan site”, “relevant site manager” and “registered social landlord” have the same meanings as in section 62A(6) of the Criminal Justice and Public Order Act 1994.”
This amendment, taken with Amendment 128, would provide that a person only commits an offence where they are trespassing on land having been offered a suitable pitch at a caravan site in the local authority’s area.
Amendment 13, page 57, line 11, leave out
“or is likely to be caused”.
This amendment, together with Amendments 14 to 18, would limit the conditions for committing the offence to damage or disruption which has occurred rather than potential damage and disruption.
Amendment 14, page 57, leave out lines 13 to 15.
See explanatory statement to Amendment 13.
Amendment 15, page 57, line 17, leave out
“or is likely to be caused”.
See explanatory statement to Amendment 13.
Amendment 16, page 57, line 18, leave out
“or likely to be carried on,”.
See explanatory statement to Amendment 13.
Amendment 17, page 57, line 19, leave out
“or is likely to be caused”.
See explanatory statement to Amendment 13.
Amendment 18, page 57, line 20, leave out
“or likely to be carried on,”.
See explanatory statement to Amendment 13.
Amendment 19, page 57, line 22, leave out
“imprisonment for a term not exceeding three months or”.
See explanatory statement to Amendment 20.
Amendment 20, page 57, line 24, leave out “, or both”.
This amendment, together with Amendment 19, would remove the penalty of a custodial sentence of imprisonment for up to three months for committing the offence, while keeping the penalty to a fine not exceeding level 4.
Amendment 127, page 58, line 25, leave out from beginning to end of line 28 and insert—
“(a) the use of threatening or abusive words or behaviour, or disorderly behaviour, or;
(b) the display of any writing, sign, or other visible representation that is threatening or abusive;”.
This amendment removes ‘insulting words or behaviour’ from the definition of ‘offensive conduct’.
Amendment 21, page 58, line 42, leave out from beginning to end of line 19 on page 60.
This amendment would remove provisions that property belonging to the person committing the offence should be seized and forfeited by the police.
Amendment 129, page 59, line 7, at end insert
“, but does not include any property that is, or forms part of, P’s principal residence”.
This amendment would provide that a police officer does not have the power to seize a vehicle that is a person’s home.
Amendment 9, page 60, line 22, leave out clause 63.
Amendment 10, page 62, line 6, leave out clause 64.
Amendment 113, page 128, line 30, leave out clause 140.
Amendment 68, in clause 140, page 129, line 44, at end insert—
“(9A) If the order is made before regulations have been made under section 176(1)of the Police, Crime, Sentencing and Courts Bill for the coming into force of section 139 of that Act for all purposes and in relation to the whole of England and Wales, the court must, in every case where the prosecution makes an application under paragraph (b) of section 342A(1) for a serious violence reduction order to be made, set out in writing its reasons for making, or not making, such an order.”
This amendment would require the court, during any pilot of serious violence reduction orders, to set out in writing its reasons for making or not making such an order.
Government amendments 40 to 44.
Amendment 70, page 134, line 43, at end insert—
“(3A) Guidance under this section must include guidance on the intelligence, community information and risk factors that are to be considered before an application is made for the imposition of a serious violence reduction order.”
Government amendment 45.
Amendment 114, line 28, leave out clause 141.
Amendment 66, in clause 141, page 135, line 33, leave out “and (3)” and insert “(3) and (3A)”.
Amendment 65, page 135, line 42, at end insert—
“(3A)The report under subsection (3) must include—
(a) information on the ethnicity of people made subject to a serious violence reduction order;
(b) information on the number of people made subject to a serious violence reduction order where there is no evidence of their having handled a weapon, either in the incident resulting in the imposition of the order or previously;
(c) information on the number of people stopped by a police officer in the belief that they are subject to a serious violence reduction order, broken down by ethnicity (collected on the basis of self-identification by the person stopped), and including information on the number of times any one individual is stopped;
(d) analysis of the distribution of serious violence reduction orders in relation to the ethnic make-up of the population;
(e) an equality impact assessment including an assessment of the impact of the pilot on the groups mentioned in the equality statement produced before the pilot is commenced;
(f) analysis of data assessing the extent to which the pilot has reduced serious violent crime and reoffending by comparison with other areas;
(g) an assessment by the Sentencing Council of the proportionality of the distribution of the imposition of serious violence reduction orders;
(h) analysis of—
(i) the impact of the length of time for which a serious violence reduction order is imposed on reoffending, and
(ii) the extent to which the length of time for which a serious violence reduction order is imposed has harmful impacts on the life of the individual who is subject to it;
(i) an assessment of the impact of the imposition of serious violence reduction orders on the use of ‘stop and account’ in the pilot area or areas;
(j) feedback from Community Scrutiny Panels on scrutiny of body-worn video of all stops of people subject to, or believed to be subject to, a serious violence reduction order;
(k) analysis of any adverse impact of the imposition of serious violence reduction orders, undertaken on the basis of interviews with—
(i) people subject to a serious violence reduction order, and
(ii) organisations working with young people, in addition to any other information considered relevant by the person conducting the analysis;
(l) analysis of who is made subject to a serious violence reduction order, what evidence is relied on to justify the imposition of such orders, and whether there is any bias in the decision-making process;
(m) analysis of information on the reason for each breach of a serious violence reduction order;
(n) analysis of the extent to which searches made under the powers granted by this Part could have been carried out under other powers.
(3B) Statistical information collected for the purposes of section (3A) from different pilot areas must be collected and presented in a form which enables direct comparison between those areas.”
Amendment 67, page 135, line 42, at end insert—
“(3A) The condition in this subsection is that consultation on the report under subsection (3) has been undertaken with anyone the Secretary of State considers appropriate, including—
(a) representatives of the voluntary sector, and
(b) representatives of communities disproportionately represented in the criminal justice system.”
Amendment 69, page 136, line 2, at end insert—
“(4A) Regulations under section 176(1) which bring section 139 into force only for a specified purpose or in relation to a specified area—
(a) must include provision bringing into force section 342J of the Sentencing Code (Guidance); and
(b) must provide that section 139 may come into force for other specified purposes or in relation to specified areas only once guidance has been issued under section 342J of the Sentencing Code.”
This amendment would require the Secretary of State to issue guidance on serious violence reduction orders before any pilot could commence.
Amendment 71, page 136, line 2, at end insert—
“(4A) The powers under section 342A(2) of the Sentencing Code are exercisable before the power in section 176(1) has been exercised so as to bring section 139 into force for all purposes and in relation to the whole of England and Wales only if every officer of any police force in an area in relation to which section 139 has been brought into force has completed the College of Policing two-day training on stop and search.”
This amendment would require all police officers in a pilot force area to have completed the College of Policing training on stop and search before the power to impose serious violence reduction orders could be used.
Amendment 22, in clause 149, page 151, line 14, at end insert—
“(1B) Unless there are exceptional reasons not to do so, a sexual harm prevention order must require the offender—
(a) to comply with a referral for assessment of suitability to participate in a treatment programme approved by the Secretary of State for the purpose of reducing the risk of sexual harm that a person may pose, and
(b) if assessed as suitable for such a programme, to participate in it.”
Amendment 23, page 153, line 34, at end insert—
“(1B) Unless there are exceptional reasons not to do so, a sexual harm prevention order must require the defendant—
(a) to comply with a referral for assessment of suitability to participate in a treatment programme approved by the Secretary of State for the purpose of reducing the risk of sexual harm that a person may pose, and
(b) if assessed as suitable for such a programme, to participate in it.”
Amendment 24, in clause 150, page 155, line 42, at end insert—
“(7A) Unless there are exceptional reasons not to do so, a sexual risk order must require the defendant—
(a) to comply with a referral for assessment of suitability to participate in a treatment programme approved by the Secretary of State for the purpose of reducing the risk of sexual harm that a person may pose, and
(b) if assessed as suitable for such a programme, to participate in it.”
Amendment 120, in schedule 4, page 201, line 31, leave out paragraphs 2 to 12 on page 203.
This amendment, together with Amendment 121, would leave out the paragraphs of Part 1 of Schedule 4 which reverse the current presumption against the grant of pre-charge bail.
Amendment 121, page 204, line 8, leave out paragraphs 14 to 16.
See explanatory statement to Amendment 120.
Amendment 118, page 212, line 27, at end insert—
“31A(1) Section 47ZG (Applicable bail period: subsequent extensions of limit by court) is amended as follows.
(2) In subsection (2), at the beginning, insert ‘Subject to subsection (10),’
(3) After subsection (9), insert—
‘(10) The court may not authorise an extension of the applicable bail period beyond the period of 24 months beginning with the person’s bail start date.’”
This amendment would restrict the period which a person could spend on pre-charge bail to a maximum of two years.
Amendment 119, page 212, line 28, leave out paragraph 32.
This amendment is consequential on Amendment 118. Paragraph 32 of Schedule 4 would make provision for oral hearings in cases where a bail period was to extend beyond 24 months, which would be prevented by Amendment 118, so this amendment removes that paragraph.
Government amendment 46.
Amendment 95, in clause 176, page 194, line 12, after “33,” insert
“[Sections 55 to 61: commencement],”.
Amendment 96, page 194, line 26, at end insert
“(ka) section [Sections 55 to 61: commencement]”.
Ms Harman
Let me say at the outset that I completely agree with everything that the hon. Member for Shipley (Philip Davies) has just said. We have not got enough time to properly debate the Bill and the many issues it engages.
I have four key issues, which are the subject of cross-party amendments and new clauses. One is to do with the crucial right to protest, which the Bill curtails. As Chair of the Joint Committee on Human Rights, I have tabled amendments on that. I hope that the hon. and learned Member for Edinburgh South West (Joanna Cherry) will get an opportunity to speak about protecting and enhancing the right to protest. The right hon. Member for Orkney and Shetland (Mr Carmichael) has also tabled a new clause on that, which has a great deal of support. Many other hon. Members will speak about the subject.
There are also concerns about the rights of the Gypsy, Roma and Traveller community. Again, as Chair of the Joint Committee on Human Rights, I have tabled amendments on that and so have other Members, including the hon. Member for Stockton South (Matt Vickers). My hon. Friend the Member for Croydon Central (Sarah Jones) will speak about both issues from our Front Bench. I will therefore not speak specifically about the right to protest and Gypsy, Roma and Traveller rights, but I strongly support those from all parts of the House who will speak on those matters.
I will confine my comments to new clauses 1 and 2, which have support from across the House. They deal with the safety of women and girls on the street. Hon. Members will remember that, after the horrific killing of Sarah Everard, there was an outflowing on social media from young women and girls, even young schoolgirls, saying, “We are not safe walking on our streets at night. If we have to walk home in the dark after school, we will often find a man in a van kerb-crawling us with the window wound down, calling for us to get in the van, asking why we are not getting into the van, and following us home.” Often, they will take a longer route home, even though it takes more time, to go down busier streets, rather than the quickest route, where they feel less safe. Often, they will take a cab when they would really like to walk home, but just do not feel safe.
What has been shown is that this is not just a problem for some young girls and women; it is a problem for all. It is a universal, everyday experience. Sexually predatory men feel that they can harass and intimidate young girls and young women when they are on the street, especially after dark and if they are on their own. We simply have to decide whether we are going to protect and support the rights of men to do that, or whether we are going to say, “No, we support the rights of women and girls to be able to walk down our streets at night on their own, after dark in the winter, coming home from school, without being subjected to this sort of intimidation, menace and harassment.” I do not think we hear anybody arguing that in this day and age, women and girls should accept that. I remember that, back in the day when I, like everybody else, was subjected to it, if someone complained, people said, “But you should be flattered—you should be flattered that people find you attractive.” It is not flattering. It is menacing, it is unwarranted and it is unwanted, and we should not accept it.
I have tabled two new clauses. One is about kerb-crawling. Currently, it is a criminal offence to kerb-crawl a woman if someone is doing so to solicit her because they want to pay for sex. That was introduced many years ago to protect a neighbourhood from becoming a red light district and having endemic kerb-crawling, so we already have the basis in the law. What I am suggesting, with a lot of cross-party support, is that this should be a criminal offence without it being because the man is doing it to try to pay for sex; it is enough if he is kerb-crawling. He should not be able to do that. The punishment ought to be taking away his licence. If a man is going to lose his licence for his van or car, he will pretty soon alter his behaviour, which is exactly what he should be doing.
I also have a new clause on harassment in the street. At the moment, if a man harasses a woman and there is a course of conduct because he is generally stalking her, that is a criminal offence, but if he does it to a schoolgirl going home who he does not know and it is not a course of conduct but one-off conduct, she has no right of redress. I suggest expanding the stalking offence to include even a one-off, so we have two bespoke offences.
If we have two new crimes, women and girls will know that they do not have to put up with this and that they can complain, men will know that they are going to be called to account and end up in court if they do it, the police will know that they have to investigate it and prosecute it, and the courts will know how to deal with it. Then, we can end the shameful situation that women and girls find themselves in on the street.
The Government have said in Committee that they are in listening mode. That is welcome, but it does not go far enough. Women and girls want the Government not just to listen, but to act. It is about time that the concerns of women and girls were heard and acted on. If we do not support the new clauses and the Government do not accept them, they will be guilty of letting women and girls down. I hope that will not be the case. I press the Minister, who has been very generous with her time in meeting me, to say that this is the moment that we are going to change the law and make a new start.
Mr Speaker
I remind hon. Members that, if we do put a speaking limit on, it will be on the countdown clock, which will be visible on the screen. I am now going to appeal to everybody, without the time limit on, to please not force it. Let us be kind to each other—short and brief. Everybody, I believe, has a genuine contribution to make, so I really want to hear them.
Mr Robert Goodwill (Scarborough and Whitby) (Con)
Thank you very much, Mr Speaker. I will try to lead by example in that regard.
Part 1 of the Bill increases the penalty for assault on an emergency worker from 12 months to two years. Many other key workers are on the frontline, too. Indeed, shopworkers have borne the brunt of much of the abuse about mask wearing and social distancing in stores, on top of the existing problems associated with age verification for the purpose of alcoholic drinks purchases, drunken abusive behaviour, and of course shoplifting. Late-night shops are often run single-handedly, so the distress and trauma associated with assaults or threatening behaviour should not be underestimated. I am due to meet shortly with in-store workers from my local Tesco to see at first hand how this problem has affected staff in that setting. I hope the Minister can reassure me—either now or when she sums up at the end—that she is aware of the issue’s importance and that amendments may not be necessary to deliver the action we all believe is needed.
The Parliamentary Under-Secretary of State for the Home Department (Victoria Atkins)
I thank my right hon. Friend for his scrutiny and service not just on Report but in Committee. I can reassure him; I know how strongly he and other Members across the House, including my hon. Friend the Member for Stockton South (Matt Vickers), feel about the matter. I reassure the House that we are not complacent about ensuring that the criminal law is fit for purpose. We are actively considering an amendment in the Lords if appropriate.
Mr Goodwill
I thank the Minister for that reassurance. The other two items I want to discuss were underlined by the points made by the right hon. and learned Member for Camberwell and Peckham (Ms Harman) about lining up with wokeism rather than with the hard-working people who find their lives disrupted in the workplace, when travelling to work or, indeed, in their communities. I commend the Government for the public order measures in part 3 and despair at amendments 1 to 7 tabled by several Lib Dem and Labour colleagues, which would completely remove that aspect of the Bill.
It is of course, a basic human right to be allowed to demonstrate one’s strongly held feelings. Indeed, I have been on demonstrations myself. I went on the countryside march, and I marched at the head of an opposition demonstration in Minsk, which had a slightly less jolly atmosphere. However, the Government must take action to prevent deliberate acts of vandalism or obstruction such as those associated with Extinction Rebellion and, I am sorry to say, Black Lives Matter. Yes, people have the right to demonstrate, but not in a way that prevents people from going about their lawful business: travelling to work, being taken to hospital by ambulance or, indeed, Members of Parliament being able to access this building to exercise our democratic mandate.
I am particularly pleased that we are taking action on single-personal protests. Over the spring bank holiday in May, local Labour councillor Theresa Norton sat in the middle of the street in the middle of Scarborough on the first weekend on which many of our hard-pressed tourism businesses were keen to make up some of the money they had lost during the pandemic. She caused a massive traffic jam, supposedly demonstrating in the cause of Extinction Rebellion. That sort of behaviour should not be allowed because it disrupts people’s lives and, I believe, actually antagonises people against such issues.
Finally, I am disappointed that the Labour and SNP Front-Bench teams are so out of touch with the genuine distress and disruption caused by illegal Traveller encampments. They seem to have some kind of rose-tinted view of traditional Romany lifestyles, but that is not the reality on the ground and the Government are right to take action. Communities have asked us to take action, and there is a clear choice to be made between supporting those communities or supporting people who lawlessly occupy land and cause havoc and destruction.
Sarah Jones (Croydon Central) (Lab)
This Bill contains some of the most controversial restrictions of our rights for many years. It is very long, and we have only a few hours to debate it, so I agree with the hon. Member for Shipley (Philip Davies) that we should have had more time. During the pandemic, we have seen more than 400 regulations passed through statutory instruments with little or no scrutiny—necessary, but unprecedented. Now is the time to be reclaiming our rights, not restricting them further. This Bill will do little to tackle the real problems that British people face. It will not protect vulnerable children who are victims of criminal exploitation. It will not take dangerous weapons off our streets. It will not protect rape victims. It does nothing to tackle violence against women and girls.
Turning to part 1, we are pleased that, after almost three years of campaigning from the Police Federation, the Government have finally introduced the police covenant. I am reassured that the Government agreed with my amendment to include the whole policing family in the covenant, but why did the Government not accept amendments from my hon. Friend the Member for Rotherham (Sarah Champion) to support mental health when we know that suicide levels are increasing and that one in five officers has PTSD. Why did they not accept our simple suggestions for some independence and scrutiny to be included in the process? As currently drafted, the covenant could be little more than warm words—a wasted opportunity to stand with our police officers after all they have done for us.
Clause 2 relates to assaults against emergency workers. My hon. Friends the Members for Halifax (Holly Lynch) and for Rhondda (Chris Bryant) have campaigned for years to introduce a separate offence, with longer sentencing, for assaulting an emergency worker. Following years of increasing assaults against our most valued public servants, we are pleased that the Government have finally listened to the call, but why on earth will they not now commit to extending similar protections to the key workers who have done for so much for us, such as shop workers?
On Friday, I visited a Co-op in Croydon, where I heard about the violence and abuse that shop workers suffer and that, sadly, they feel has become part of the job. I met a man in his 70s in New Addington who runs a pet shop and was punched in the face by a customer. Of our 3 million retail workers, 300,000 were assaulted last year, yet only 6% of incidents led to prosecution. Abuse must not be part of the job.
The public agree with us: a survey published on Saturday shows that 89% back the new law. Industry agrees with us: the Co-op, the Union of Shop, Distributive and Allied Workers and the British Retail Consortium have been campaigning on the issue for years. Yesterday, leaders of 100 brands, including Tesco, Sainsbury’s, IKEA and Aldi, all published an open letter calling for greater protection for retail workers. MPs agree with us: the Select Committee on Home Affairs published a report last week, and the hon. Member for Stockton South (Matt Vickers) has corralled a very impressive number of Conservative MPs to support his new clause 90 on the same issue.
Tonight, the Government have a choice: do the right thing and back our retail and public service workers, or ignore the wishes of the public and give us another excuse. I hear the Minister saying that she is actively considering it, but she could commit to it tonight and give retail workers and our public servants the protections that they deserve.
Chapter 1 of part 2 introduces a duty to tackle and prevent serious violence. I have campaigned for years for the Government to tackle the growing epidemic of violent crime. Yesterday, I was at a vigil for a boy, just turned 16, who was brutally murdered in my constituency last week, in his own home, in front of his mother. Nothing is more important than keeping our children safe.
We have called for an evidence-based approach to tackling violence, and we support the intention of the serious violence duty to get every agency locally working together to tackle violence, but we have serious concerns on three fronts. First, there is no provision in the Bill to safeguard children and the Government have rejected calls for a new definition of child criminal exploitation. Secondly, we are very concerned about the data capture elements of chapter 1; the duty risks becoming an intelligence-gathering exercise with potentially ominous consequences. Thirdly, it must be made clear in the Bill that violence against women and girls counts as serious violence—it should not be an added extra. We want the serious violence duty to work, but we fear that, as currently drafted, it will not. I ask the Government to consider our amendments to protect children, to protect data and to protect women and girls.
Chapter 3 of part 2 relates to data extraction. We are asking the Government to protect victims, particularly victims of rape and sexual abuse, from painful and often necessary intrusion into their lives by the mining of their phone data. When we raised concerns in Committee, the Minister said:
“I…urge caution until the rape review is published, because there may be answers in that document.”––[Official Report, Police, Crime, Sentencing and Courts Public Bill Committee, 27 May 2021; c. 286.]
With respect to the Minister, the rape review has been published and its recommendations do not address the problems that we defined. One in five rape victims withdrew their complaints, at least in part because of disclosure and privacy concerns. The Secretary of State for Justice has apologised for failing rape victims, yet he is bringing forward legislation that would legitimise over-intrusion. The Government did not support our amendments in Committee to protect victims, but tonight they have a chance to think again.
Part 3 relates to public order. Over the past year, the police have had to enforce necessary but draconian covid regulations after little scrutiny and short notice. I have heard many times from the police that they have struggled to be the ones interpreting the law without the leadership from the Government that they needed. It is our job to define the law in a clear way so that the police are not the ones getting the blame for our lawmaking. That must be a firm lesson for us.
The public order powers in part 3 threaten the fundamental balance between the police and the people. Her Majesty’s inspectorate of constabulary and fire and rescue services called for a “modest reset” of the scales on public order legislation in its recent report. On any measure, a “modest reset” is not what this is. The new measures in the Bill target protesters for being too noisy and causing “serious unease” or “serious annoyance”. The vague terminology creates a very low threshold for police-imposed conditions and essentially rules out entirely—potentially—peaceful protest.
Mr Goodwill
Does the hon. Lady agree that when she talks about “the people”, that would include the people whose lives are disrupted, who cannot get to work, who experience all the points that I made in my remarks? They are the people as well and they want to get on with their lives.
Sarah Jones
I wonder where that stops and at what point we accept the right balance between the right to protest peacefully and the right of people to go about their business. The inspectorate called for a moderate reset and that is not what this is.
Dawn Butler (Brent Central) (Lab)
Does my hon. Friend not agree that without noise, protest will not achieve anything?
Sarah Jones
I thank my hon. Friend for her intervention; that is clearly the case. It is also really important to note that the police at no point have asked for these powers on the basis of noise. The Metropolitan police said that it did
“not request the legal change on noise”.
The National Police Chiefs’ Council lead on public order told Parliament’s Joint Committee on Human Rights that police chiefs had asked for a “lower, broader threshold” for imposing conditions, but not a law relating to noise. Inspector Matt Parr told the JCHR that he was not asked to look specifically at whether or not noise should be included. The point of protest is to capture attention. Protests are noisy. Sometimes they are annoying, but they are as fundamental to our democracy as our Parliament.
Gareth Johnson (Dartford) (Con)
Can the hon. Lady clarify whether or not she supports protests that cause serious disruptions to people going about their lawful business?
Sarah Jones
I will give to the hon. Gentleman, if he would like, a list of existing police powers and laws that do exactly that. There are many different laws from different pieces of legislation that I have here that do mean the police have the powers that they need to stop serious disruption. The increasing powers in the Bill are what we have a problem with, and where they could lead, because the definitions are so broad.
The Government published last week a draft definition of what they mean by “serious disruption”. It is very broad and it gives away a bit where all this came from in the first place, because top of the list of products and goods that are included in the legislation are time-sensitive products, including newspapers.
Mr Alistair Carmichael (Orkney and Shetland) (LD)
The hon. Lady is making a very good case on this point. Does she not agree that there is a serious danger of a chilling effect? The people who are referred to by Government Members will not stop protesting. We know that that is the case, but community groups who perhaps have a legitimate concern and want their voices to be heard will look at this and then exclude protest from their arsenal of options to move forward.
Sarah Jones
I thank the right hon. Gentleman for making that good point and I welcome the amendments that he has tabled to this section of the Bill. The Opposition want clauses 55 to 61 removed from the Bill and we want to protect our right to protest.
Rachael Maskell (York Central) (Lab/Co-op)
When I spoke to my local police about these clauses, they were really concerned that policing by consensus will be replaced and drive protests into more conflict, and therefore, for them and for us, it is a negative step.
Sarah Jones
That is a very good point. The Peelian principles—the people are the police and the police are the people—are very important. I know the police value that careful balance between them and the public and where consent is and how powers are drawn. We strongly believe that these powers go too far.
Part 4 on unauthorised encampments represents an attack on the Gypsy, Traveller and Roma communities and their whole way of life. The police are clear that they do not want these powers. Martin Hewitt, head of National Police Chiefs’ Council, said in Committee that he strongly believes that
“the fundamental problem is insufficient provision of sites for Gypsy Travellers to occupy, and that that causes the relatively small percentage of unlawful encampments”.––[Official Report, Police, Crime, Sentencing and Courts Public Bill Committee, 18 May 2021; c. 15, Q20.]
The police already have extensive powers in the Criminal Justice and Public Order Act 1994 to move on unauthorised encampments. As at January 2020, just 3% of Gypsy and Traveller caravans in England were on unauthorised encampments. We know that there are high levels of prejudice and hate towards Gypsy Traveller communities. Even on this Bill Committee, one Member made an incredibly prejudiced and offensive remark. We have asked this of the Government before, and we will keep on asking: under the provisions in part 4, what would happen to a Traveller family in a single vehicle who are residing on a highway and have nowhere else to go?
Mr David Davis (Haltemprice and Howden) (Con)
It is a pleasure to follow the hon. Member for Croydon Central (Sarah Jones). I will return to one of her points in a moment, but I shall start by focusing on the amendments tabled in my name—amendments 118 to 121.
In 2017, we reformed pre-charge bail—that is police bail in the jargon—to introduce time limits on how long suspects can be held on bail before being charged, and we introduced a general presumption against the use of pre-charge bail. These changes came after the terrible treatment—I reiterate, the terrible treatment—of some people, the most famous of whom, I guess, was Paul Gambaccini, in the spin-off from the Savile affair. Gambaccini’s career was destroyed by the effective presumption of guilt in the treatment of him.
Even with those 2017 reforms, we still see a large number of people on pre-charge bail today and, indeed, for excessive lengths of time. In 2019, the number on pre-charge bail was 84,000. In 2020, it was nearly 154,000. The effect of the 2017 legislation, therefore, was not to suppress pre-charge bail, so the logic behind the changes in the current Bill are flawed to start off with. Worse than that, the number of people held on pre-charge bail for more than 12 months is 2,344, which is itself an increase on the previous year. These are people for whom there is not enough evidence to charge—not to convict, but to charge, which is a much, much lower threshold.
Currently, I have a case where the National Crime Agency has kept an individual on bail for almost six years. That is six years of being unable to live anywhere but her home address; six years of being unable to see her family because her passport has been withheld; six years of being without a bank account; six years of being without a job or career; and six years of being unable to lead a normal life. When I took it up with the National Crime Agency, I got a letter in response, which, frankly, would have done justice to an episode of “Yes Minister.” The most interesting point in it was a comment making the point that investigations took a long time. It said: “Investigations of this length are not uncommon when dealing with complex cases.” Six years is not uncommon in a justice system where the presumption of innocence is paramount. That is the problem that I am addressing with my amendments. For someone who has not even been charged, the NCA’s actions in this case make a complete mockery of the principle of presumed innocent until proven guilty. By the way, as an aside—separate from the Bill—we cannot find out how many people the NCA has under these circumstances. It is not subject to freedom of information requests and we know nothing about its operations, yet it still does these things.
The Bill seeks to undo the 2017 reforms, eliminating the general presumption against pre-charge bail and amending time limits. Although reform is clearly needed, this is not the correct way to do it. As the Law Society has said, changes to pre-charge bail may lead to people being kept “in limbo” for long periods of time, impacting their civil liberties. I entirely agree. The Government, of course, argue that their proposed reforms have public backing, but the consultation responses were starkly skewed. Police and law enforcement agencies accounted for 65% of the responses, compared to the legal professions at a mere 3%. Nobody should take at face value the Government’s claim that that backing reflects the consultation; it reflects the interests of the agencies involved.
My amendments 118 and 119 would introduce a two-year absolute limit on the use of pre-charge bail, ensuring that agencies had time to investigate properly but promptly. We should remember that the test is the ability to charge, not the ability to convict. That is how far it has to get in two years; that is the primary aim.
Amendments 120 and 121 would prevent the Government from reversing the presumption against the use of pre-charge bail. That would prevent a return to the practice of bailing suspects for lengthy periods with strict and unacceptable curbs to their civil liberties.
I would like to pick up the point made by the hon. Member for Croydon Central (Sarah Jones), because clearly she got some pushback from the Government Benches. As it stands, the Bill actually does pose a grave threat to the fundamental right to protest that this country has had enshrined in our national fabric for, I think, some 800 years. The Bill does address real issues, but the Government want to have the power to arrest people who cause “serious annoyance” or “serious inconvenience”. These are incredibly vague terms, frankly. It is clearly a breach of the normal reasoning behind a demonstration when somebody glues themselves to a train with the direct intention of inconveniencing everybody else, but demonstrations do lead to inconvenience.
It is not just the leftie, liberal, legal fraternity that has been worried about the proposed power; there was a letter to the Home Secretary, elements of which were published in today’s edition of The Times, from a number of police chiefs, who are concerned that the effect of the provision is twofold. First, it puts the police in the position of making judgments that they should not be making; that should be specified by this House, not by the police chiefs themselves. Secondly, that puts them in a politicised position, and that is really problematic. We have an apolitical police and every law we write must be written on the presumption that it will be a Government very unlike ours who oversee us at some point in the future. What if, in 20 years’ time, we have an extreme right-wing or extreme left-wing Government, and this sort of vague provision is in place? I ask the Government to pay attention to the precision of this measure, so that we get it exactly right.
Joanna Cherry (Edinburgh South West) (SNP)
Does the right hon. Gentleman agree that there is an incongruence in the Government saying they want to defend free speech in universities while effectively attacking the right of freedom of expression on our streets by criminalising activities that will cause serious unease?
Mr Speaker
Order. Just to say I really am up against the time. I want to hear a lot more free speech.
Mr Davis
I take your point, Mr Speaker. I will be finished in less than a minute.
I was the person who brought in the 10-minute rule Bill, the precursor to the Government’s Bill, but there is a balancing issue and the House must be precise about that balance.
Given Mr Speaker’s injunction, I will bring my comments to an end. The Bill does some important things, but it needs to get some things very much closer to right than they are now.
Mr Speaker
Before I bring in the SNP spokesperson, I must warn people that it is looking like speeches will have to be three minutes or a maximum of four minutes.
Anne McLaughlin (Glasgow North East) (SNP)
I rise to speak to new clause 91 and amendment 117.
Amendment 117 simply says that the Scottish Government reserve the right to amend the code of conduct governing data extraction if the UK code of conduct is not suitable for our distinct policing service. I cannot imagine why the Government would not just accept that amendment, so I look forward to hearing that they have.
New clause 91 will instruct the Secretary of State to conduct a review of the criminal offences set out in the Misuse of Drugs Act 1971. Let us face it: after 50 years, it is high time. That argument is gaining traction across party and with good reason. One of my colleagues will be saying more about that later in the debate, so I will simply say that my support for it is wholehearted. Our approach to drug misuse and addiction should be a public health approach, because that is what saves lives.
Mr Speaker, I understand that I have unlimited time, but I can reassure you that I will talk as briefly as I can to allow other speakers to make their contribution. I will look at three areas of the Bill.
I have said before that the curbs on the right to protest are draconian and contrary to international law—it is not just me saying that, of course—and I know colleagues will say more on that shortly, but people out there need to be aware of how the provisions will impact on them. I always use the example of the WASPI women, the Women Against State Pension Inequality. I do that because, whether it is anti-war protesters, the Black Lives Matter movement or those who are desperately worried about the environment, there is always a cohort in here ready to tell us what is wrong with those protesters: how “dangerous” they are and how we need to clamp down on them.
Now, nobody is going to tell me that the Women Against State Pension Inequality are a threat to any of us. The opposite is true. These are older women who should be retired by now, but they have had their retirement stolen from them by the UK Government. So many times we have all gone across the road to join thousands of WASPI women and their supporters from all across the UK, but because of the exclusion zone to be thrown up around Parliament they will be prevented from ever doing that again. We are to hear and see nobody unless they agree with us. That is just one tiny part of the curbs on the right to protest. It is not what we expect from the so-called bastion of democracy.
I want to turn briefly to serious violence reduction orders. Members might ask why, given that they apply only to England and Wales, but here is why. I was quite shocked to hear the Home Office attempt to make a comparison between serious violence reduction orders and the work of the hugely successful Scottish Government-backed Scottish Violence Reduction Unit. The Scottish VRU adopts a public health approach to violence. I urge hon. Members not to be fooled by attempted comparisons. The underlying principle—
Anne McLaughlin
I know that Mr Speaker is trying to create time for other people, but I will give way briefly.
Victoria Atkins
I just want to correct the hon. Lady. In the Bill Committee I was drawing a comparison not with the orders but with the serious violence duty, which I imagine she welcomes because we have looked carefully at the Glasgow model. We would argue that we are going further than the Scottish Government, because we are making the provision a legal duty. I hope she would support that in principle.
Anne McLaughlin
The underlying principle of the Violence Reduction Unit is that the causes of violence are deep-rooted and that we need a public health approach. These orders do not take a public health approach. In order to make a lasting improvement, numerous agencies have a role to play, including education, social services, health, justice and the third sector. Rather than creating barriers to education, housing and employment, the multiagency approach in Scotland actively removes them. The focus in Scotland has been on listening to the community, not dividing it. SVROs conform to outdated reactive practices. By the time one is issued, the damage has been done. The Government say they represent a public health approach, but a public health approach emphasises prevention. It is glaringly obvious when we think about it: fewer crimes create fewer victims, and that reduces demand on public services. Crime prevention is the public health model in action and that is not what these orders represent.
Finally, I support the amendments to delete part 4 of the Bill, on Travelling communities. That part of the Bill sickens me to my core. The Conservative hon. Member for Ashfield (Lee Anderson) has been allowed by his party to get away with claiming that Travellers today are
“more likely to be seen leaving your garden shed at 3 o’clock in the morning…with your lawnmower”.––[Official Report, Police, Crime, Sentencing and Courts Public Bill Committee, 8 June 2021; c. 410.]
In other words, he is saying they are thieves. There can be no hiding from the fact that this is anything other than a full-on attack on the way of life of Gypsy Travellers. The Travelling community in Scotland are deeply concerned, as are all others across the UK.
Madam Deputy Speaker (Dame Rosie Winterton)
I know that Mr Speaker has urged right hon. and hon. Members to take between three and a maximum of four minutes, so I shall just re-emphasise that.
Mr Jonathan Djanogly (Huntingdon) (Con)
Thank you, Madam Deputy Speaker. I shall address part 3, on public order, having joined the inquiry by the all-party group on democracy and the constitution, which reported on this part of the Bill last week in the context of the march events at Clapham common and Bristol. We found not just a lack of justification for many of these proposed new powers but—of equal concern—a lack of understanding of the current law among the relevant police.
Everyone, including the local police, knew what was going to happen in every event, and yet the local activist organisers were not only ignored, but threatened with prosecution. What should have been a quiet, well-organised vigil for a slain innocent woman became an increasingly disorganised public order situation, with police using extreme, repressive techniques. As a result, public safety at that event was diminished—first, as a result of the police’s omission to engage in advance; secondly, because of their lack of preparedness, engagement and intelligence; and, finally, because of their overreaction on the day. That is why the Bill ought to set out the basic human rights position, along the lines of that which is in new clause 29.
Mr William Wragg (Hazel Grove) (Con)
Does my hon. Friend agree that much of what we sadly saw at the vigil at Clapham common was a consequence of sloppily drafted covid regulations, which were given so little scrutiny by this House, let alone being understood by the police, whom we compel to enforce them?
Mr Djanogly
I thank my hon. Friend, because had I had five minutes in which to speak and that was exactly the case I was going to make. What he says was proven in our inquiry. Sadly, the time allowed today permits me to give only one example of concern on these new public order powers. Clause 55 provides powers to deal with non-violent serious disruption. First, that should be stated in the Bill, not in secondary legislation. Furthermore, I am concerned that it will provide excessive powers to prevent non-violent disruption to business, in circumstances where the business concerned may not be the focus of the protest. Again, this shifts the ground towards making a presumption of illegality. In practice, working out to what extent a business can be disrupted will only make the job of the police tougher, not easier, and it will certainly make it more political in nature.
For instance, if protest that has until now been kept away from residential areas will also be removed from business areas, where does it go? Presumably, it will go to a place where it cannot be heard, but, as has been said, noise and disruption are integral to protest. As many commentators have pointed out, in practice, the police will increasingly be put under pressure from businesses to impose conditions, and they will be put under pressure from demonstrators, who will then go ahead in any case, as they did at Clapham common and in Bristol.
This clause could well undermine public confidence in the police and reduce public safety. That is why our inquiry recommended the production of guidance to help both police and organisers to understand their respective powers and obligations—that is what is in new clause 85. More fundamentally, we also need to question whether it is still appropriate that police both condition protest and enforce their own conditions. To that end, I am drawn to having something like the Northern Ireland Parades Commission, which has power to place conditions on public processions, thus leaving the police with the enforcement role that they know how to do so well.
Yvette Cooper (Normanton, Pontefract and Castleford) (Lab)
The Home Affairs Committee has considered many different aspects of this Bill and these amendments at different times and in different ways, but given the time I will focus on just a small number of areas.
I particularly want to address new clause 69, in my name. Its purpose is to get justice for victims of domestic abuse who are being timed out and take action against perpetrators who are being let off the hook. Many domestic abuse cases are prosecuted as common assault in a magistrates court where police and prosecutors may say that the threshold for the Crown court is not met. In these cases, there is a time limit on justice—most victims are not aware of this—of six months from the offence, even though in domestic abuse cases it may take many months, for good reason, for victims to feel able to go to the police. They may still be in an abusive relationship. They may be afraid. They may not be safe. They may have children and be worried about how to leave or where they will go. It may take them time to get the support that they feel they need to be able to talk to the police. There are so many reasons that are, in themselves, the essence of continuing crimes of domestic abuse. That is why the new clause increases the time limit so that there can be six months for the police to deal with the case from the point of reporting, rather than from the point of the offence itself.
Somebody I have talked to told me her story. She was assaulted while she was pregnant. She went to A&E but did not, at that stage, want to talk about what had happened. However, when the abuse continued after the baby was born, she left and gathered her courage to talk to the police, who started an investigation but before long told her that she had passed a time limit she never even knew existed and her ex would not be charged. There are many more such victims of domestic abuse who, for serious and obvious reasons, do not report it immediately, and the perpetrators go on to be free to commit more crimes.
Victoria Atkins
I thank the right hon. Lady for having raised her constituent’s case with me in previous meetings. We take this issue very seriously, and I can assure the House that we will return with a proposal at a later stage. I certainly do not rule out an amendment, if appropriate, in the Lords. This must be looked into and I am extremely grateful to her for raising it.
Yvette Cooper
I welcome the Minister’s statement. I am keen to pursue this and to work with her on it, as we have cross-party support. I really do want to see progress and I hope we can achieve that in the House of Lords.
This is, once again, about the blind spot where the legal system does not recognise the reality of violence against women and girls. There may be many reasons why a six-month time limit is appropriate for summary offences about altercations between acquaintances in the pub or tussles in the street, but it is not appropriate for domestic abuse—for the experience of violence against women and girls that is, too often, being missed out in the criminal justice system, where thousands of cases a year may be affected in this way. We have support for changes in this area from the domestic abuse commissioner of Refuge, Women’s Aid, the Centre for Women’s Justice, and West Yorkshire police.
On new clause 31, the Select Committee has conducted a detailed inquiry into violent abuse against shop workers. We have recommended a stand-alone offence because we need to strengthen the focus on this escalating offence and to have the police take it much more seriously. It is simply unacceptable that shop workers should face this escalating abuse over very many years. The new offence of assault against emergency workers has made a difference and increased prosecutions, and we need to increase prosecutions in other areas as well.
Liz Saville Roberts (Dwyfor Meirionnydd) (PC)
Will the right hon. Lady give way? [Interruption.]
Yvette Cooper
No, because I am very conscious of Madam Deputy Speaker’s coughing to remind me not to.
I also hope that the Government will accept amendments that provide greater safeguards for freedom to peacefully protest and strengthen the law on kerb-crawling, but I particularly hope that we will continue to work on much stronger protection for victims of domestic abuse and those who suffer from violence against women and girls.
Philip Davies (Shipley) (Con)
I have five new clauses in this group. New clause 64 would ensure more timeliness of investigations of complaints against police officers and allegations of police misconduct. On new clause 70, at the moment a police officer has the power to tell somebody to stop their car, but not to shut off the engine. My new clause 70 would give them the power to shut off the engine as well, because not having the power to do that can put police officers in a dangerous position, and this would deal with that anomaly. New clause 71 would remove the word “insulting” from section 4A of the Public Order Act 1986. People should not be guilty of an offence for using insulting language, in my opinion. It would still keep threatening and abusive language as an offence, but the word “insulting” really should have no place in the law. New clause 72 would criminalise commercial squatting and squatting on land. The Bill addresses the issue of trespassers on land, but misses the opportunity to expand the current residential squatting offence to cover village halls, churches, pubs and so on, and is much needed in many local communities. New clause 84 would mean that non-crime hate incidents could not be recorded on the national police database. The police should be focusing their efforts on tackling crime, not non-crime incidents. I hope, by the way, that the Government will respond in detail with why they are not accepting my entirely reasonable new clauses, because I would be very interested to know why they cannot accept them.
I also want to talk about new clauses 31 and 90. As somebody who spent 12 years working for Asda before I became an MP, I feel very strongly about the issue of violence against shop workers. These are often very low-paid people who are expected by the Government, in effect, to enforce the law—whether it is on age restrictions or, in recent times, about covid rules and restrictions, face mask wearing and social distancing—and the only thanks that many of them have had for keeping the nation fed during the covid restrictions, and for going out to work every single day to make sure that happened, was to see the number of assaults on them double over that period. It is an absolute disgrace.
The Government say that the courts can already use this as an aggravating factor if necessary, but the law to charge people with assaulting an emergency worker was introduced even though that could already be used as an aggravating factor if necessary. New clause 90 is better because it covers not just shop workers, but all people who are on the frontline and providing a service to the public. I hope the other parties will reflect on that and support new clause 90.
Philip Davies
I am not going to give way, because so many people want to speak and there is not much time. I hope the right hon. Lady will forgive me.
New clause 90 is much better, and I hope hon. Members will support it. I will support new clause 31 as well, but new clause 90 is much better. These workers deserve our support. They have done so much for us over recent years. Surely the least that they can expect—the least that they can expect—from this House is for them to see that we are on their side, respect the job they have done and understand the terrible abuse they get, often, as I say, for very little reward, at the hands of their customers. We should be there to protect them.
This will just give the Crown Prosecution Service and the police an extra tool in their armoury to make sure that those who assault frontline workers and shop workers are brought to justice and to make sure that those shop workers and frontline workers get the justice they deserve. This House should be on their side, and I very much hope the Government, at this late stage, will reflect on this and accept new clause 90. It only uses the same wording as the Sentencing Council uses when it considers whether this should be an aggravating factor. It is well-used terminology to describe people who are providing a service to the public, including shop workers. This is a really important moment for the Government, and I hope that they will show they are on the side of our shop workers and frontline workers to whom we owe so much, particularly over the last 15 months.
Madam Deputy Speaker (Dame Rosie Winterton)
As we will have to suspend the debate for the statement at 5 o’clock, after the next speaker I am going to put on a time limit of four minutes just to help guide colleagues.
Dame Diana Johnson (Kingston upon Hull North) (Lab)
Because of the time available, I am going to speak to the amendments tabled in my name. First, I will focus on new clauses 26 and 27, which would encourage the public to report all cases of sexual offending, including low-level or non-contact sexual offending, and amendments 20 to 24, which would put in place early interventions for referrals to treatment services to stop sexual offending escalating. There is a great deal of evidence that those who commit low-level or non-contact sexual offences will take more risks if not stopped, and move to increasingly violent sexual crimes.
Fiona Bruce (Congleton) (Con) [V]
I speak to oppose new clauses 55 and 42, which I urge colleagues to vote against. New clause 55 is truly shocking on many counts. It would legalise abortions in this country right up to the moment of the birth of a child. No reason would need to be given. The current 24-week limit provision would go. The new clause would legalise sex-selective abortions: an abortion could be legally performed if someone chose to reject an unborn boy or girl. It would remove the requirement for abortions to be carried out by doctors, and the protection for women that abortions should take place on approved premises. It would remove the conscience clause: healthcare professionals could be required to conduct abortions contrary to their conscience or beliefs, or lose their job. It would sweep away current legal safeguards and protections not only for the unborn child, but many that protect women. The Abortion Act 1967 would, in effect, be void.
New clause 55 would be significantly more permissive than the Northern Ireland regulations introduced in 2020, and it would leave England and Wales with one of the most extreme abortion laws in the world. In Europe, the median gestational time limit for abortion is 12 weeks. Here, it is currently 24, with some exceptions. We should not be looking to increase it to 37 weeks—full term. Indeed, we should now be looking to lower it following medical advances over recent years regarding viability—the ability of a child to survive outside the womb at now 22 or even 21 weeks. The proposals are shocking: a viable human being could have his or her life ended up to the point of birth, with no one held accountable, and yet a day later similar actions against a child outside the womb would constitute murder. If, as has happened, the abortion procedure goes wrong, what then? Is the child to be left alone, crying and uncomforted, until it breathes its last? If new clause 55 were put to a vote, I am confident that it would be soundly defeated. The proposal has no place on the amendment paper. It has no place in this House. We are better than this. We are better than this as a Parliament. We are better than this as a country, and our constituents know it. Our inboxes have been flooded with calls to oppose new clause 55. I have had over 150 constituents email urging me to vote against new clause 55—not one constituent has asked me to support it. More than 800 medical professionals have today called for its withdrawal.
Reports indicate that only 1% of women want the current 24-week limit extended, with 70% wanting it lowered. It was lowered in 1990 from 28 weeks to 24 weeks as medical advances improved, and now is the time to reduce it further following greater such advancement. That is what we should be debating today, and I hope we soon will. Let today be a turning point in our approach towards the review of this country’s abortion laws. Let us determine to secure better protection for the unborn child and for women, not worse. New clause 55 has no place in a compassionate, civilised and humane society. If, as I now understand, the proposers tabled it as a probing amendment, then I hope, given the strength of opposition that has gathered in just a few days within and outside this House, they will never contemplate reintroducing it. We are better than this.
Sarah Champion (Rotherham) (Lab) [V]
It is an honour to speak in this debate after having served on the Bill Committee. While I am deeply worried about part 3 of the Bill, which undermines the right to protest, I will spend the short time I have on my amendments, which aim to improve the criminal justice response for victims and those at risk of sexual exploitation and all forms of abuse.
The 2019 national police wellbeing survey identified that 57% of police officers responding reported post-traumatic stress symptoms, which would warrant an evaluation for PTSD. A Police Federation survey of 18,000 members found that attending traumatic or distressing incidents was one of the top 10 reasons why respondents were having psychological difficulties at work. John Apter, chair of the Police Federation, stated in evidence to the Committee:
“The covenant gives us a great opportunity to put in place mandated levels of psychological support and training”.––[Official Report, Police, Crime, Sentencing and Courts Public Bill Committee, 18 May 2021; c. 20, Q30.]
My amendment 25 acts on those concerns and would ensure a clear focus within the police covenant on the impact of working with trauma, ensuring that the impact on officers’ wellbeing and morale is mitigated. We owe them that.
Turning to amendment 51, after years of campaigning with Baroness Grey-Thompson and the hon. Member for Chatham and Aylesford (Tracey Crouch) I welcome the measures in the Bill to extend the definition of positions of trust to include faith leaders and sports coaches, which is a vital step in improving safeguarding. However, the Bill still leaves children vulnerable to abuse from other adults in positions of trust, such as driving instructors, private tutors or counsellors. I urge Ministers to adopt my more comprehensive solution, which ensures that children across all activities and settings are protected from adults in positions of trust.
The Bill should do more to address child criminal exploitation. The Children’s Commissioner estimated that at least 27,000 children are at high risk of exploitation by gangs. Despite the scale of child criminal exploitation, there is a lack of shared understanding about what it is and the forms it takes. Questions are not consistently asked when children are identified as being associated with criminal activity. Children are arrested for crimes that they are being forced to commit, while the adults who exploit them are not brought to justice. My new clause 23 would introduce a statutory definition of “child criminal exploitation”. That would enable a shared understanding and a better multi-agency response, and it would support professionals to spot the signs of exploitation earlier and disrupt grooming.
Finally, I turn to new clause 24, which is supported by 41 Members across the House and to which the Minister gave a good hearing. I was astounded when I realised that registered sex offenders are changing their names without notifying the police, despite a legal requirement to do so. Current notification requirements leave the onus on the offender to report a change in their name. The result is that many slip under the radar of the police, with potentially devastating consequences. This serious safeguarding loophole leaves sex offenders free to get a new name, a new driving licence and a passport, and then to secure a new disclosure and barring service check, with which they can go on to gain jobs working with children and vulnerable people. Alarmingly, an FOI request by the Safeguarding Alliance, which I thank for its support on this matter, found that more than 900 registered sex offenders went missing between 2017 and 2020, and that was with only 16 of the 43 forces responding.
We cannot rely on sex offenders to inform the police themselves if they change their names. New clause 24 requires the Government to undertake a review into the problem and to propose solutions within a year of the Bill being passed. I hope that the strength of support for the clause will make the Minister consider working with me to get the changes we seek.
Sally-Ann Hart (Hastings and Rye) (Con)
I welcome this Bill, which backs the police to cut crime, building on our record of cutting crime, backing our front-line officers and reforming our justice system to make sure that criminals spend longer in jail. However, I will focus my comments on new clauses 55 and 42.
Having an abortion is a significant, irreversible and life-changing event for a woman, and I know that most women do not make the decision to abort lightly. Women who seek abortions need compassionate advice and support, but probing new clause 55, tabled by the right hon. Member for Kingston upon Hull North (Dame Diana Johnson), is at odds with the recognition that abortion is a difficult and heavy decision that requires support and compassion. Removing safeguards and legal provision around abortion devalues women’s experience of abortion and drives the focus away from quality healthcare.
The amendment’s proposal to decriminalise abortion would, in my view and in the view of numerous constituents in Hastings and Rye who have contacted me on the subject, introduce abortion on demand for any reason up to birth. Abortion would be available on demand for any reason. Evidence shows that after a few weeks, unborn babies are sentient beings in the womb. Who gives them a voice? We should ask ourselves what kind of a society we are that we would condone that.
Dame Diana Johnson
As I expressed in my short contribution, we need to get the facts straight here. Will the hon. Lady point to where the amendment says that there will be no safeguards around abortion? It talks about decriminalisation, not deregulation.
Sally-Ann Hart
The right hon. Lady points out that the amendment talks about decriminalisation, but it does not underline the safeguards. As 800 or so medical professionals said in an open letter to her,
“Your proposal to allow abortion up to birth in this country would be to attack the heart of the medical profession: our core duty to protect life whenever and wherever possible.
The British public prides itself on being a reasonable, humane and tolerant society. Such an extreme and radical abortion law has no place in the UK.”
Seventy per cent. of women favour a reduction in abortion time limits, and we see from recent history that abortion time limits align to the viability of a baby—the point at which a baby can survive inside or outside the womb. We should therefore seek to reduce the time limit, save for exceptions.
New clause 42, introduced by the hon. Member for Ealing Central and Acton (Dr Huq), would impose censorship zones outside abortion clinics. That goes against the long-standing tradition in the UK that people are free to gather together to express their views. It also goes against this Government’s commitment to human rights and freedom of speech in our party manifesto. The right to protest is the cornerstone of our democracy.
Although I personally find it somewhat offensive and lacking in compassion for people to gather outside an abortion clinic, where women should be given space when accessing an abortion, what I find offensive may be different from what other people find offensive. If we ban speech or assembly because of the likelihood of causing offence, we will have to ban far more than demonstrations outside abortion clinics.
Mr Robert Goodwill (Scarborough and Whitby) (Con)
Does my hon. Friend agree that many abortion clinics are co-located with general hospitals, which could curtail the rights of trade unionists and health workers to demonstrate outside their own hospital?
Sally-Ann Hart
I acknowledge that that is the case. If we cannot have demonstrations, that sets a dangerous precedent, and I urge hon. Members to reject the new clause. Current laws provide wide-ranging powers for authorities to keep public order and protect women and the public from genuine harassment and intimidation. An extensive review undertaken by the Home Office in 2018 concluded that
“legislation already exists to restrict protest activities that cause harm to others.”
Most notably, under section 59 of the Anti-Social Behaviour, Crime and Policing Act 2014, public space protection orders can be used. The UK’s first buffer zone around an abortion clinic was established in 2018 by Ealing Council, in the constituency of the hon. Member for Ealing Central and Acton, using a public space protection order. It prevents protesters from gathering up to 100 metres from the clinic. Other local authority areas have brought in similar public space protection orders. In summary, I urge Members of the House to reject the new clause.
Bell Ribeiro-Addy (Streatham) (Lab)
I rise to speak to the new clauses in my name, and owing to time constraints I will focus my comments mainly on those. I would, however, like to give my right hon. Friend the Member for Kingston upon Hull North (Dame Diana Johnson) the chance to intervene further.
Dame Diana Johnson
I am grateful to my hon. Friend. When discussing these types of issues in this House, we must look carefully at what is actually in the amendments. We should not just say what we think is in the amendment; we should look at its actual drafting. This Bill is about the criminal law and justice system. It is not about safeguards or anything else to do with healthcare. My amendment is specifically about decriminalisation, as the Government have already done in Northern Ireland.
Bell Ribeiro-Addy
Let me highlight the amendments and new clauses that I seek to support, including those on the right to protest in the names of the right hon. Member for Orkney and Shetland (Mr Carmichael) and my hon. Friend the Member for Coventry South (Zarah Sultana). I support those amendments that seek to stand up against the discrimination and persecution of the Gypsy, Roma and Traveller communities, particularly those tabled by my hon. Friends the Members for Liverpool, West Derby (Ian Byrne) and for City of Durham (Mary Kelly Foy), and those that challenge wider inequalities in the criminal justice system, from class to age, race, sexuality, disability and gender, including the new clause tabled by my hon. Friend the Member for Leicester East (Claudia Webbe). I oppose the introduction of secure academies for 16 to 19-year-olds, which is essentially the expansion of child prisons, as reflected in the new clause tabled by my hon. Friend the Member for Poplar and Limehouse (Apsana Begum). I will also support any other amendment or new clause that seeks to remove or address the sinister nature of the Bill.
We can be under no illusion—this is yet another authoritarian clampdown on our civil liberties. The right to peaceful assembly and protest is a fundamental principle of any democracy, and the rich tradition of dissent in this country shows us that such actions can change the course of history. They are the reason that someone of my race, class and gender has the rights I have, and why I can stand here as a Member of this House. We must not forget that the struggles and protests being demonised by this Bill are seen as the milestones of progress in our society. The suffrage movement, for example, faced considerable state repression and police brutality.
My new clauses 56 and 57 call respectively for a review of stop-and-search powers and for a public inquiry into how the criminal justice system affects black, Asian and minority ethnic people. BAME people are more than nine times as likely to be stopped and searched by police, yet this Government think that it is okay just to plough ahead, exacerbating the situation further. Just last week, the United Nations released a report analysing racial justice in the aftermath of the death of George Floyd and called on member states, including the UK, to end impunity for police officers who violate the human rights of black people. A 2019 report by the Women and Equalities Committee recognised that Gypsy, Roma and Traveller communities are one of the most persecuted groups in Europe, yet the Government seek literally to persecute them further through the Bill.
We need a full public inquiry into the disproportionality that exists at every single level and junction of the criminal justice system. High prosecution rates, higher custody rates, longer-than-average custodial sentences, disproportionate representation in the prison system and deaths in custody—this is what under-represented communities have come to expect. We need answers, and then we need justice in order to move forward.
The Black Lives Matter movement and the protests that sprang from it sought to challenge these injustices—and what was the Government’s response to national calls to end institutional racism? It was to commission a report that said there was no institutional racism, and to introduce a policing Bill that will only further criminalise and brutalise these communities. If the Government were actually listening to what the BLM protesters said, they would not be bringing in a Bill like this.
Why not follow the example of the England football team, who have inspired us during Euro 2020 not only with their football prowess, but with their collective and principled bravery in taking the knee, representing the very best of us and our communities? To quote Gareth Southgate, it is about a
“duty to continue to interact with the public on matters such as equality, inclusivity and racial injustice, while using the power of their voices to help put debates on the table, raise awareness and educate”.
He is a football manager—he does not work for this House, but he does much better than we do, day to day.
I know with all my heart that I am on the right side of history. I urge hon. Members to stand with me and stop the criminalisation of black, Asian and minority ethnic communities, of Gypsy, Roma and Traveller communities and of every single under-represented group that will be destroyed by legislation such as this.
Madam Deputy Speaker (Dame Rosie Winterton)
Could the last two speakers stick to four minutes?
Danny Kruger (Devizes) (Con)
Thank you, Madam Deputy Speaker. I will speak quickly about new clauses 42 and 55, which concern the regulation of abortion.
New clause 42, tabled by the hon. Member for Ealing Central and Acton (Dr Huq), proposes the creation of censorship zones around abortion clinics. The intention behind it is to stop the harassment of women seeking abortion.
We already have laws against harassment which can be, and are, applied. We also already have public order laws that allow councils to impose restrictions regarding specific clinics that are experiencing any real public order difficulties, so the activity that the new clause proposes to criminalise is peaceful, passive, non-obstructive activity—less disruptive than the sort of protests that Opposition Members are so busy trying to defend today. I recognise the good faith behind the new clause, but in practice it is an attempt to criminalise the expression of an opinion. I cite the campaigner Peter Tatchell, who said today that it is an
“unjustifiable restriction on the right to free expression.”
I urge the House to vote it down.
New clause 55, tabled by the right hon. Friend the Member for Kingston upon Hull North (Dame Diana Johnson), would not criminalise anything; it would decriminalise something, namely abortion itself up to term. It would effectively legalise abortion on demand up to birth. She is keen that we pay attention to the text of her new clause, so I shall quote from it:
“No offence is committed…by…a woman who terminates her own pregnancy or who assists in or consents to such termination”.
The effect would be to legalise or to decriminalise abortion up to birth.
I am not arguing that the new clause is an attempt to deregulate abortion, although I believe that that might be the effect; my objection is to the principle. It says a very, very terrible thing about the value that we place on an unborn life if we simply say that it should be determined by whether or not the mother would like to keep it—by whether that baby is wanted or not. Let us think of that in terms of other lives—a newborn child, a disabled person or a vulnerable elderly person: when their family is unable to look after them, the community and the state step in. We should apply that principle in the case of a child in the womb, especially one that is still viable and could live outside the womb. I urge the House not to support new clause 55.
Mr Alistair Carmichael (Orkney and Shetland) (LD)
I will speak to amendment 1, which has cross-party support, and amendments 2 to 7, which would remove the provisions in the Bill that affect the right to protest.
In passing, I point out that a number of other issues are in play today, and goodness only knows what such a debate must look like to those looking in from the outside, but that is the consequence of the inadequacy of the time that has been made available to us. I will therefore limit my remarks strictly to the amendments that stand in my name.
Essentially the objection that many of us have to the proposals is that, first, the Government have got the balance badly wrong, and, secondly, their language in trying to strike that balance is among the vaguest and most imprecise I have ever seen as either a legal practitioner or a parliamentarian.
To ban protest on the basis that it would be noisy or cause serious annoyance may appeal to many parents of teenagers up and down the country, but we have to do rather better when fundamental issues of free speech are in play. Many years ago, it was said—the hon. and learned Member for Edinburgh South West (Joanna Cherry) may have heard the same thing—that in Scots law, a breach of the peace was almost anything that two cops did not quite like the look of. It seems to me that what the Government want to do here, in regulating not the conduct of a few drunks on the high street on a Saturday night but the fundamental right to protest, is to take the law back to that imprecise state of affairs. The risk is that that serves only to pit the police against the protesters. It will not be the Home Secretary who makes a decision about what is noisy and causes serious annoyance, but police officers, often those on the ground at the time. That risks undermining the fundamental principle of policing by consent, which has always underpinned the way in which we police protest and, indeed, all behaviour in this country.
I remain of the view that the provisions will be ineffective and have a chilling effect. I do not believe for one second that, if the Bill becomes law, Extinction Rebellion will look at it and say, “Oh well, we can’t possibly go out and protest on the streets of the capital. We’d maybe better just go home and email our Members of Parliament.” Although I have heard some in the House say that even that is seriously annoying sometimes. The Bill will not stop Extinction Rebellion protesting.
However, communities throughout the country who face a challenge to hospitals, schools, traffic management and so on will look at the Bill and think, “Actually, it’s not safe for us to use our voice and to protest against what is being done to our community.” For that reason, as in so many other cases, I believe that this is a fundamentally mistaken provision. The only amendments we can seek to introduce are those that would excise it from the Bill, where they should never have been in the first place.
Steve Brine
I am listening to what the right hon. Gentleman says. He does not want Conservative Members to smear Opposition amendments, so in that spirit, I point out that the Bill does not ban protest. Is he not tempted by new clause 85, which my hon. Friend the Member for Huntingdon (Mr Djanogly) spoke about, and which provides for a code for the policing of protest?
Madam Deputy Speaker (Dame Rosie Winterton)
I am sorry, but I will have to ask the right hon. Gentleman to take 30 seconds.
Mr Carmichael
And 30 seconds, because of the nature of the programme motion that the House has passed, is inadequate, so I am afraid I will pass the hon. Gentleman up on that. There might be some future point at which we can return to it. That shows the inadequacy of the way the Government are dealing with this. In the absence of any amendable propositions, I urge the House simply to take these provisions out of the Bill.
Debate interrupted.
Madam Deputy Speaker
I am going to suspend the House for one minute. After the statement, there will be a three-minute limit on speeches.
Police, Crime, Sentencing and Courts Bill
Tuesday 6th July 2021
(2 years, 10 months ago)
Lords ChamberRead Full debate Police, Crime, Sentencing and Courts Act 2022 Read Hansard Text Amendment Paper: Consideration of Bill Amendments as at 5 July 2021 - (5 Jul 2021)
Police, Crime, Sentencing and Courts Bill
Tuesday 14th September 2021
(2 years, 7 months ago)
Lords ChamberRead Full debate Police, Crime, Sentencing and Courts Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Consideration of Bill Amendments as at 5 July 2021 - (5 Jul 2021)
Baroness Williams of Trafford
That the Bill be now read a second time.
Relevant documents: 1st, 2nd and 4th Reports from the Joint Committee on Human Rights, 6th Report from the Delegated Powers Committee, 7th Report from the Constitution Committee
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, the first duty of any Government is to keep the country safe. This means working together to prevent and reduce crime, backing the police—ensuring that they have the powers and tools they need—and a fair justice system which ensures that the punishment fits the crime but allows offenders who have paid their debt to society to make a fresh start.
We have already recruited nearly half of the promised 20,000 additional police officers and overall police funding has grown in real terms for the fifth consecutive year. We have also already ended the automatic early release of the most serious offenders sentenced to seven years’ imprisonment or more, we are implementing our landmark Domestic Abuse Act and we have published our new strategy to tackle violence against women and girls. However, we need to do more to protect our communities, and the measures in this Bill are directed to that end.
The police undertake a uniquely challenging role in helping to keep communities safe. They make enormous sacrifices to protect the public and, in turn, we should protect them. The police covenant will demonstrate our commitment to back police officers and staff and ensure that the police workforce do not suffer any disadvantage as a result of their role. The Bill will require the Secretary of State to report annually to Parliament on key issues that we want to prioritise, particularly the health and well-being of the workforce, their physical protection and supporting their families.
Our police and other emergency workers are committed to serving their communities. The overwhelming majority of the public applaud and salute that service but, shockingly, the latest figures show that assaults on police officers increased by 14% compared with the previous year. Obviously, that is unacceptable. The Bill therefore doubles the maximum penalty for assaulting an emergency worker to two years’ imprisonment, ensuring that those who carry out these attacks receive a punishment that is commensurate with the crime that they have committed.
Sorry, some of my speech is missing, but I will carry on. Moving on swiftly, the end-to-end rape review acknowledged that the invasive nature of the process around disclosure has long been an issue for victims. We need to do more to assure victims that information will be extracted from their mobile phone only where it is necessary and proportionate to do so in pursuit of reasonable lines of inquiry. To that end, the Bill establishes a statutory framework, backed up by a code of practice, for the extraction of information from electronic devices. Our focus is on protecting privacy and supporting victims of crime and others who voluntarily provide information to the police. In the Commons debates we heard concerns, including from the Victims’ Commissioner, that these provisions do not yet provide sufficient safeguards. We owe it to vulnerable victims and witnesses to get these provisions right and we are continuing to explore how they might be strengthened.
I return to the issue of serious violence. It blights our communities and we cannot look to the police alone to solve it; that has to be a shared endeavour, with all relevant agencies working together. Part 2 of the Bill will require local authorities, specified health authorities and fire and rescue authorities, along with the police and other specified criminal justice agencies, to come together to prevent and reduce serious violence in their area. They will be required to formulate an evidence-based analysis of the problems associated with serious violence in their locality and then produce and implement a strategy detailing how they will respond, including through early interventions. To support such collaborative working, the Bill introduces new powers to share data and information for that purpose.
One way to prevent serious violence is to ensure that we learn the lessons from the far too many deaths involving knives that we see on our streets. Each of these is an individual tragedy, with the most devastating consequences for victims and their families. We will therefore introduce offensive weapons homicide reviews—to be undertaken jointly by the relevant police force, local authority and clinical commissioning group or health board—which will examine the circumstances surrounding a death and identify lessons to prevent such tragedies in future. These homicide reviews will first be piloted to ensure that we design a review process that is as effective as possible before we roll them out across England and Wales.
Part 2 of the Bill also reforms pre-charge bail. As noble Lords will recall, changes made in 2017 sought to address legitimate concerns that individuals who had not been charged or convicted of any offence were subjected to bail conditions restricting their liberty for months or, in some cases, years while the police pursued their investigation. Noble Lords will recall that the experience of the last four years has shown that the pendulum has swung far too far in the other direction, leading to concerns that bail is not being used in appropriate cases to protect vulnerable victims and witnesses.
To address those concerns, the Bill will remove the current statutory presumption against pre-charge bail, instead adopting a neutral position. This is designed to encourage its use when it is necessary and proportionate to do so, based on each case’s individual circumstances and the list of risk factors now set out in the Bill. These changes will be reinforced by statutory guidance issued by the College of Policing to help establish a consistent approach across all forces.
Lastly, in relation to Part 2, we are extending the positions of trust offences in the Sexual Offences Act to protect 16 and 17 year-olds in a wider range of circumstances—namely, in a sporting or religious context—where adults hold a position of particular influence or power. I know this change will be particularly welcomed by the noble Baroness, Lady Grey-Thompson.
There has been much comment about the public order provisions in Part 3. The right to peaceful protest is a fundamental part of our democracy. This is not about stifling freedom of speech and assembly but about balancing those rights with the rights of others, including protecting the free press and ensuring that people can get to their work and that ambulances can quickly transport patients to hospital.
We have listened to policing professionals who have told us that the distinction made in the Public Order Act between processions and assemblies is out of date and does not reflect the operational reality. We have listened to the independent Law Commission, which recommended that the common-law offence of public nuisance be put on a statutory footing. We have listened to the cross-party Joint Committee on Human Rights, which recommended strengthening powers to ensure unhindered access—including for noble Lords—to the Parliamentary Estate. We have listened to the independent policing inspectorate, which concluded that the measures we have proposed in Part 3 would improve police effectiveness without eroding the right to protest.
Part 4 of the Bill delivers on an express manifesto commitment to tackle unauthorised encampments. These measures are not about restricting the nomadic lifestyle of Travellers but about protecting all communities from the distress and loss of amenity caused by unauthorised encampments. In particular, the Bill provides for a new criminal offence of residing in a vehicle on land without permission. It is important to stress that the offence applies only where a person fails to leave the land or remove their property without reasonable excuse when asked to do so and they have caused or are likely to cause significant damage, significant disruption or significant distress. I do not think any noble Lord would want to condone such behaviour.
The sentencing measures in the Bill will target the most serious violent and sexual offenders and those who pose the greatest threat to the public. That includes those who commit the premeditated murder of a child, those who kill through dangerous driving or careless driving under the influence of alcohol and drugs, and those who become more dangerous while in prison. However, we are aware that delivering public protection and building confidence in the criminal justice system is not just about making better use of custody. In many cases, particularly for low-level offending, effective early interventions and community supervision keep the public safer by preventing further offending. To that end, we are simplifying the adult out-of-court disposals framework, making provision to pilot adult problem-solving courts and increasing the curfew options that are available to sentencers. In addition, we will aid offender rehabilitation by reducing the time periods after which some sentences become spent so that they do not have to be disclosed to employers for non-sensitive jobs or activities.
The Bill includes measures on sentencing and remand for children. We intend these measures to increase confidence in community sentences as a robust alternative to custody and to ensure that custodial remand is used only as a last resort. They also ensure that sentences for the most serious crimes provide justice for victims and reflect the seriousness of those offences. The Bill also includes measures to enable the trialling of secure schools in order to fulfil our vision of secure environments centred on individualised education and care.
I turn now to Part 10, which includes the provision for serious violence reduction orders. These deliver on another manifesto commitment to introduce a new court order to target known knife carriers, making it easier for the police to stop and search those convicted of knife crime. These new orders are intended to help tackle high-risk offenders, by making it easier for the police to search them for weapons, and to help protect more vulnerable offenders from being drawn into further exploitation by criminal gangs. The targeted use of stop and search, as part of a wider approach to intervening and supporting offenders, will help safeguard those communities most at risk.
In Part 10 we are also strengthening the powers to manage sex offenders—one of a number of measures in the Bill which will help tackle violence against women and girls. In particular, the Bill will help positive requirements to be attached to sexual harm prevention orders and sexual risk orders; for example, by requiring perpetrators to attend a treatment programme.
Finally, the Bill includes a number of measures to improve the efficiency of the Courts & Tribunals Service. Our aim is to modernise the delivery of justice, including through the greater use of technology, but only where it is appropriate to do so. We are facilitating the ongoing use of audio and video technology in our courts and tribunals, building on its successful use during the pandemic. This will ensure shorter waiting times and less unnecessary travel for court participants. However, a full hearing in court will always be available when needed and where the court considers it to be in the interests of justice. The decision as to how a hearing is conducted will remain a matter for the judiciary—the judge, magistrates or tribunal panel—who will determine how best to protect the interests of justice on a case-by-case basis.
This is a multifaceted Bill, but there is one overarching objective: to keep the public safe. It promotes multiagency working to prevent and reduce crime; it gives the police the powers they need to fight crime and prevent disorder; it introduces tougher punishments for violent and sexual offenders; it helps end the cycle of reoffending; and it enhances the efficiency of the courts to help deliver justice for all. I commend the Bill to the House.
Lord Falconer of Thoroton (Lab)
My Lords, I am obliged to the noble Baroness, Lady Williams, for her clear but inevitably incomplete description of the Bill. Her incomplete description of it is not her fault. We support some of the measures in the Bill, in particular those that seek to increase penalties for sexual and violent crime, but the presentation of the Bill in this form is an affront to the rule of law and the role of Parliament: 177 clauses, 20 schedules, 62 new delegated lawmaking powers and amendments to 39 other statutes. Our constitution requires legislation such as this, particularly because it affects the liberty of the subject, to be properly scrutinised by both Houses of Parliament. With a Bill this size, that is well nigh impossible. Introducing a Bill in this way at this time does not accept, as the Government should, the limitations of time on a parliamentary process.
Quite separately from those complaints that I have about the Bill, the Delegated Powers Committee of this House has delivered a report which makes it absolutely clear that it takes considerable offence to a number of the Bill’s provisions that are giving power to the Executive to pass guidance; in particular, those that will give Ministers undue power because the effect of failing to comply with that guidance will lead to consequences in court, which will have an effect on the citizen. This is not the way to legislate. Yes, there are certain things that need to be done as far as the criminal justice system is concerned, but this Government should prioritise what those things are and then do them.
The Lord Chancellor said in another place that this Bill was designed to increase—or, in his words, restore—faith in the criminal justice system. It does not do that. There were things that he could have done to restore that faith, which is urgently required. I shall identify three things to indicate that. In the year to March 2021, a staggering 21.8% of victims said that they wanted to abandon their criminal case because they were fed up with the system—that is 945,000 cases involving the victims withdrawing their co-operation. A survey by Vera Baird, the Victims’ Commissioner, said that one-third of victims took the view that they would not report a crime again because of the experience they had had in the criminal justice system. As everybody in this House knows, because it has been repeated time and again, the number of complaints of rape goes up every year while the number of rape prosecutions goes down, and the number of convictions goes down as well.
Yes, we do need improvements to the criminal justice system, but a Christmas tree Bill of this size is not the way to deal with it. It is not possible in the time allotted either to me or to any of us to identify every single issue in relation to the Bill, but I will identify 11 issues that may be worth further consideration.
The first is on the policing of protests. The Minister will have seen what the Joint Committee on Human Rights has said in relation to the provisions that have been taken. It says absolutely explicitly that the Government have got the balance wrong between the right to protest and the powers being given to the Executive. To give the Executive the power to ban demonstrations because they make excessive noise is not proportionate; you would expect demonstrations to make noise and we will be looking in some detail at those provisions.
Secondly, there is the issue of unauthorised encampments in Clauses 62 to 64. These go much further than the Minister said. Contrary to what she specifically said, they are an attack on the Roma or Gypsy way of life. It is not necessary and, furthermore, it is not supported by the National Police Chiefs’ Council. It is something the Government have done which goes much further than necessary.
Thirdly, the Bill does not bring into effect right across the country Section 28 of the Youth Justice and Criminal Evidence Act 1999. If that section had been brought into effect, it would have allowed and led to the ability—right across the country—of victims of severe sexual assault to give their evidence straightaway before a judge. They would be cross-examined about it, but the film of that evidence would then be played at the trial at a much later date. That would allow the victim to avoid that awful period as they wait for the trial to take place. But the Lord Chancellor said in another place only that it should be further piloted. Why is it not being introduced right across the country? A reason given is because there are not enough judges to do it, and there would need to be judges to hear the evidence of the victim. Apart from offences leading to death—primarily murder and manslaughter—it is hard to imagine a higher priority for the judiciary than hearing serious rape and sexual violence cases, so the absence of judicial resource does not seem a good excuse. We would strongly urge that it be rolled out and will introduce an amendment to that effect.
Fourthly, I welcome what the Minister said about the extraction of information from the mobile phones of victims of serious sexual assault. Subsequent to the deliberations of another place, I think, a code of practice was produced as to the circumstances in which the extraction of material from mobile phones could be done. We share the concerns that that code of practice does not adequately protect the interests of victims. In particular, it needs some sort of third party to protect their interests in relation to that; again, that will be debated. I would be very interested if the Minister could indicate to me what protections for the owner of the mobile phone are contained in the code of practice, and whether they can be strengthened.
Fifthly, we think that there should be, subject to judicial discretion in appropriate cases, a minimum sentence for rape of seven years. The answer given by Ministers in another place was, “Well, two-thirds of people convicted of rape get seven years or more now, so why do you need a minimum sentence?” The answer is: so that it is clear what the view of the legislature is on the gravity of that crime. There needs to be some degree of judicial discretion, but that could be built in.
Sixthly, we take the view that the Bill should have addressed as a priority the problem of sexually offending behaviour and provided greater protection. Three specific steps were proposed in the other place. First, a whole-life term should be the starting point for a murder that involved the abduction and sexual assault of the victim. Secondly, there should be an independent review of the sentencing code in relation to domestic homicides. Thirdly, there should be a power to sentence offenders for up to two years if they identify an anonymous complainant in a case involving rape or serious sexual assault.
Last Thursday—I may have got the date wrong—the Government announced an independent review of the sentencing structure for domestic homicide. Clare Wade, a Queen’s Counsel, has been appointed to review the sentencing framework. I do not know and have not seen the terms of reference of that framework. Could the Minister set out what they are and indicate what the relationship of that review is to sentencing guidelines and the Sentencing Council?
Seventhly, this is a perfect opportunity to deal with the Vagrancy Act 1825, which makes it a crime, in effect, to be street homeless. Are the Government, who have been broadly supportive of changes to the Vagrancy Act, willing to see it repealed? An argument given in the past as to why it should not be repealed was that you need something to deal with “aggressive begging”. We on this side of the House believe that that is already covered by other legislation.
Eighthly, this is the opportunity to deal with indeterminate public protection sentences. We recognise the problem that there are certain people whom it would be difficult to release, but they should be a very exceptional and small category. Perhaps they should be a category of people upon whom, if there had not been an IPP sentence, a life sentence would have been passed instead of the IPP. It may well be that everybody else—the number is going up, not down, over a definitive period—should be released.
Ninthly, it was said in another place that the offence of assaulting a shop worker would be actively considered. Shop workers have been rightly praised for keeping the country and the economy going during the pandemic. We need a bit more than warm words. The Minister in the other place said that they would consider it. Can the Minister in this place tell us where they have got to in relation to that?
Tenthly, I understand that the Government are going to introduce in this place amendments in relation to the serious issue of pet theft, although I may be wrong. Could the Minister explain the position on that?
Finally, I turn to the issue of the children of mothers in prison. Time and again, prison sentences for mothers victimise their children. The Human Rights Committee of both Houses said that this is a perfect opportunity to deal with that issue, if on no other basis than that proper information and data be collected. I did not give the Minister notice that I would raise this issue, but if she could deal with it when it is convenient—perhaps not today but on another occasion—I would be grateful.
Separately from the things that we think are right—we have no problem with the police covenant or, as I have indicated, some of the strengthening of sentencing—we would like to focus on those eleven areas. I do not treat them as exclusive, and no doubt there are many things I have omitted, but this Bill is simply a scattergun that will not do enough for criminal justice.
I very much hope that, on 27 October, the key thing we will hear in the comprehensive spending review is that the criminal justice system will be properly funded and that recompense will be made for the 25% of funding that has been taken away from it by this Government.
Lord Paddick (LD)
My Lords, I too thank the Minister for explaining the Bill. When the noble and learned Lord, Lord Falconer of Thoroton, began, I was going to say that I broadly agreed with him on the size and complexity of the Bill. However, I am not sure that adding provision after provision is the best way of dealing with an already over-complex and lengthy Bill. That said, the Bill’s covering such a comprehensive area—anything to do with the four areas mentioned in the Bill’s title will be within scope—simply encourages people to add more and more provisions to it.
Far be it from me to be controversial, but I want to say from the outset that there are aspects of the Bill that deserve our support. But those worthy provisions are few and far between and are overshadowed by a vast number of measures that would undermine fundamental rights, increase existing discrimination or do both. These controversial measures, which have rightly received much publicity, particularly the erosion of the rights to free speech and assembly, mean that other measures that also deserve our attention have slipped through almost unnoticed—but not any more.
This is where this House comes into its own. In Committee, we on these Benches will question and challenge every provision in the Bill that demands scrutiny. But as the noble and learned Lord, Lord Falconer, has said, we are severely hampered in our duty by the sheer size of the Bill and the number of provisions it contains. With the best will in the world, and, in my case, having spent most of the Summer Recess going through the Bill, we cannot possibly do justice to the fundamental and far-reaching changes that it seeks to bring about when so much is contained in one piece of legislation. Can the Minister say why, after more than 10 years in government, it was necessary to cram so much into one Bill?
On the specific provisions, we welcome the police covenant but we need to understand how and why it is different from the Armed Forces covenant. Protecting police officers in vehicular pursuit of dangerous criminals is right, but so is protecting innocent members of the public caught up in the chase. Of course we need to do everything that we possibly can to combat serious violence, but how are the new duties different from the existing duties of crime and disorder reduction partnerships? Who is ultimately responsible: those partnerships, or elected mayors and police and crime commissioners? This legislation seems to further blur the lines as far as ultimate responsibility is concerned.
With all the homicide reviews that exist at the moment, what is the cost-benefit analysis of adding offensive weapon homicide reviews to that list? Of course the police may need to extract information from electronic devices such as mobile phones, but should, as the Bill says,
“any responsible person who is aged over 18”
be allowed to authorise such intrusion without the consent of the owner in certain circumstances?
In 2017, we told the Government that their changes to police bail were unworkable. Eighteen clauses of the Policing and Crime Act are now all but reversed, relegated to a schedule to this Bill. What has happened to the reasons why the limits on police bail were imposed in the first place?
Measures to combat child abuse are welcome, but why has it taken so long to bring about these changes and do they go far enough?
I applaud the sentiment behind increasing the maximum penalty for a minor assault, causing no injury, to an emergency worker. It should not be an accepted part of an emergency worker’s role, or that of a shop worker for that matter, to be assaulted. But as with all the many and various provisions in this Bill that seek to increase custodial sentences, where is the evidence that someone will think twice, in the heat of the moment, about assaulting a police officer because the maximum penalty has gone from one year to two years, particularly when this Bill also increases the potential maximum penalty for damaging a bunch of flowers placed on a memorial to 10 years’ imprisonment? What message does that send to our emergency workers?
We on these Benches support provisions where the evidence shows that they are necessary and that they will work. We do not believe in sending messages through legislation that will fall largely on deaf ears. It is the culture in society, and among some of the judiciary, that seems to accept assault as part of the job for emergency workers that needs to change. We need existing penalties imposed, rather than yet more conditional discharges or minor fines that ignore the existing or increased maximum penalties.
As the Minister attempted to do, noble Lords will notice I am going through the Bill systematically. I am only on Clause 46 of 117 clauses, and I have not even got to the most controversial parts of the Bill yet, so let me skip over those aspects that we will not be skipping over in Committee and simply highlight some of the most concerning aspects of the Bill in the home affairs arena.
Imposing conditions on public processions and assemblies not only unreasonably curtails the right to free speech and assembly but would place the police in a position that is likely to undermine the whole basis of British policing—that of policing by consent. Like the provisions on unauthorised encampments, there is little or no evidence that existing provisions are inadequate, and substantial evidence that this will add to further discrimination against minorities. We would also contest the Government’s assertion that the police have called for these changes.
A complex system of police cautions appears to make the police judge and jury in their own court, while removing useful provisions such as on-the-spot fines for minor offences, such as dropping litter, and simple cautions where the salutary effect of being arrested and detained by the police is sufficient to deter vast numbers of otherwise law-abiding citizens from transgressing again.
For reasons of time, I will leave my noble friends to talk about most of the justice provisions, but serious crime reduction orders are yet another provision that undermines fundamental principles of British justice and are likely to impact disproportionately on minority communities. To allow the police to stop and search someone, for a renewable two-year period, on the basis of no information or intelligence whatever that they have anything on them that they should not be in possession of, simply because an accomplice convicted with them had a knife on them, even if it was not used in the course of the offence and even if no evidence was presented during the trial but because subsequently, on the balance of probabilities, the judge thinks that the accomplice, who the defendant was with, may have had a knife, is as unreasonable as it is complicated. The Minister said that this would be applied to those convicted of knife crime. Perhaps she would clarify that this is the case, because that is not my understanding. It is for somebody convicted of any offence where it is believed on the balance of probabilities that one of the defendants had a knife in their possession at the time.
I have been able to touch only the surface of this Bill; goodness knows what Back-Benchers in this debate are going to do with only five minutes. This Bill, quite rightly, is going to take some time, and we on these Benches are not going to let it pass without thorough scrutiny of each and every provision that demands this House’s attention.
Baroness Stowell of Beeston (Con)
My Lords, it is a great privilege to lead the Back-Bench contributions to the debate on this Bill. As we have already heard, this is very wide-ranging legislation. I will focus my remarks today on Part 3 and the measures about public order, which make it possible for the police to do their job, as people expect, when the methods used by protestors are unacceptable to the vast majority of law-abiding people. I know that some Peers will express concerns about these measures; we have already heard some concerns expressed by the Opposition Front Benches. There may be some legitimate arguments to be made about whether language should be in the Bill or in secondary legislation, and no doubt we will have those debates in detail when the time comes.
If we are to legislate properly, it is important that in giving the police new powers to oversee and manage the impact of protests, demonstrations or assemblies, we provide them and the courts the clarity they need to meet wider public expectations of them in how they do their work. Because this is such a sensitive issue, I believe we must be live to the risk of process and procedure not only undermining what the Government have a mandate to achieve but perpetuating a bigger problem, accidentally or otherwise—that is, legitimising some forms of protest or assembly which are perniciously undermining our society.
In the brief time I have, let me try to explain what I mean. I start by emphasising that this is not about the subject of protests; I am not interested in whether it is climate change, racial equality or anti-vaccines. This is about behaviour and conduct which is deeply troubling because, whether by accident or design, it is promoting division and dismantling our society: behaviour that appears to be based on a belief that if people are sympathetic to a cause they can—and indeed some believe they must—demonstrate by causing disruption and distress to other people, until everyone declares their support and submits too.
As I said in the debate on the gracious Speech, back in May, until the big disruptions in central London during 2019, I am pretty sure most people assumed that it was not possible for anyone in the name of any cause, however important, urgent or noble, to blockade main roads and major junctions and not be stopped from doing so. What dismayed me about those events that summer, including the way that the police initially reacted and some of the media reports, was that common consensus among law-abiding people was at risk of breaking down. In this context, I am talking about the common consensus of what is acceptable behaviour in public when it comes to how we protest and demonstrate in support of things we believe in or are against. It is this underlying risk that makes it even more important, I believe, that we get right our own approach to the way we do our work on this Bill.
Some noble Lords may have been present in the Chamber last week for a debate led by the noble Lord, Lord Blunkett, who is also speaking today, about standards in public life. During it, I raised the point that we see signs that the social norms which bond us together as a society are breaking down. Our responsibility as leaders is to promote common standards.
In a complex world where people are increasingly angry and distrustful, and asked to take on trust complex solutions, they need reassurance that decision-makers are motivated by a common purpose of upholding what is fair in a decent society. They, and any of us, can judge each other’s motives only through the actions that we can see on display.
My big concern if the House of Lords fails to support the principle of these measures, which clarify what is and is not acceptable when it comes to how people protest in public, especially when they have a legitimate right to disagree or question, is that we encourage more distrust within our society. There are some causes which, ultimately, should attract universal support, but that means we cannot allow them to be hijacked by people whose behaviours serve only to repel those whose confidence and support are very much needed for us all to thrive and meet the challenges of a modern world.
As regrettable as some noble Lords and indeed campaigners outside might find aspects of this legislation, it seeks to deliver the clarity that is needed to benefit us all. We in this House should not support methods of protest which serve to divide us; we need to promote that which unites us, even when we disagree.
Lord Judge (CB)
My Lords, this is indeed major legislation—298 pages, and that does not tell us the whole story anyway; it is bunged full of regulations. There are 62 regulation-making powers, and, glory be, dear old Henry VIII comes to the fore to put right all 61 of the other regulatory measures, all 177 clauses and 20 schedules, which are eternal in their length. That is not the way to legislate.
I am not here to argue against any measure which promotes public safety, but I want to touch on one or two aspects of constitutionality that matter. If I really had the nerve and the time, I would simply re-read to the whole House the reports from the Constitution Committee and the Delegated Powers Committee.
Can we just look at Clause 36 and that group, on the extraction of information from electronic devices? It is done by consent of the user, unless there is a death, in which case no consent is needed. That is fine until we remember—particularly looking around the Chamber, where I do not see many people under the age of 30—how people aged under 30 behave in a way that we do not; they use their devices to convey just about everything you can care to think of about their own lives. They send that to recipients, and they receive messages back. That information is private to the recipient. It may be very rude about the recipient; it may tell him in the nicest possible way that he is to push off and other things that people say to each other on their devices. I sometimes wonder why I should not have one myself—[Laughter.] I did not mean that.
The serious point is that the communications are not protected in any way, shape or form, so a constable, who is an authorised officer for the purpose of the Act, can on complying with the conditions simply extract a whole lot of information which may be immensely personal to lots of people other than the user. We need to think about that; we are talking about young people who have to have confidence in our criminal justice system. We even need to think about the convention, which the Minister has said we are compliant with; I just wonder whether that will turn out to be the case, because I do not share her conviction about it.
I am very concerned about the casual way in which this has been done. We are waiting for regulations. The Secretary of State has to decide about protected information and confidential information. Do we know anything about what they are going to do? No. We are waiting for it in Clause 41. And so it goes on.
We then turn to the provisions on demonstrations, processions and assemblies. I am not going to enter into the debate on that; others will speak on it—whether this is right or wrong or consistent—but I want us to ask this. We are accepting all this on faith. We do not know what this Act means; we literally do not know. We are waiting for a definition from the Secretary of State to tell us. I thought the words were perfectly straightforward, but, no, the Secretary of State by regulation is going to tell us what “serious disruption” means. I think we know what it means, but we are nevertheless asked to enact this measure waiting for the Secretary of State to tell us what she thinks it means. The important point is that what she thinks it means will be in a regulation and that is what it will mean. We will not have the slightest idea whether we agree with it; we may or we may not.
Going on with it, we turn to—no, I shall not go on with it; my time is nearly up.
Lord Judge (CB)
Noble Lords are very kind.
I support the view of the noble and learned Lord, Lord Falconer, that we have to address the issue of the evidence in sexual cases. Judge Pigot has been dead years. He wrote his report way back in the 1990s. We have gradually introduced bits of it; we are still waiting. It is an eminently sensible, practical proposal. I shall support the noble and learned Lord’s amendment on that issue when I see it.
Can we do a bit more to protect women and children and victims of sexual violence? Can we please not wait for the report from the Law Commission? The consultation document outdoes even the Bill; it is 500-plus pages long without even an index and it is controversial. That Bill will not simply go through the House as a Law Commission Bill. Can the Government either amend the existing legislation or follow the amendment in the name of, I think, the noble Lord, Lord Russell—I am sure he will be talking about it—to add that safeguard?
I could not help reflecting on the speech of the noble and learned Lord, Lord Falconer. Many years ago, I heard a programme on the radio in which people were allowed to say what conversation they would most like to have heard of which they had heard only two words. Two dons are walking down the road in Oxford, and the listener hears one old boy say to the other, “And, ninthly”. That is the conversation he would have wanted to hear. We heard all nine from the noble and learned Lord, Lord Falconer.
The Lord Bishop of Gloucester
My Lords, I am grateful for the varied contributions heard today from noble and learned Lords, many of whom have vast experience in this area. I declare an interest as Anglican Bishop to Her Majesty’s Prisons in England and Wales and as president of the Nelson Trust.
As a Lord spiritual rooted in Christian hope, I look for a criminal justice system which is restorative, responsible and relational, and which is effective in focusing holistically on prevention and rehabilitation as well as appropriate conviction and punishment.
There are some welcome proposals within this very long Bill. These include community and diversionary cautions, problem-solving courts and additional support for employment for ex-offenders. There are other aspects that raise concern, and I will name just a few of them: increasing sentence lengths, police-led diversion, sentencing of mothers, racial disparities and young offenders.
First, the use of life sentences for younger offenders seems to undermine any chance of reform or redemption. It comes as part of a suite of measures on sentencing which will put ever more pressure on an overcrowded and struggling prison estate, with predictable negative consequences for education and rehabilitative work. Decades of tweaks to lengthen sentences have done nothing to improve the outcome for offenders, prevent cycles of reoffending or improve support for victims. Our sentences are already longer than those of most of our European neighbours, who do not suffer from higher rates of crime; nor are their citizens notably less safe.
My next comment is to encourage improvements in enabling considerable investment so police can consistently divert vulnerable people into support services using community resolution and out of court disposals. People often get caught in the revolving door of repeat low-level crime, simply because they are destitute, traumatised, often homeless, suffering mental ill-health and struggling with addiction.
The Nelson Trust runs Project SHE, a point-of-arrest referral scheme in Avon in Somerset. Over 500 women were diverted away from the criminal justice system in its first two years. Seventy-five percent of these women have four or more complex needs. Over the years, I have seen how repeated short sentences and the revolving door of custody particularly damages women and their families. More must be done, as has been said already, to protect the right to family life of children when their mother is sentenced.
Reportedly, the vast majority of children have to leave their home when their mother goes to prison. Parental imprisonment is recognised as an adverse childhood experience that can have a substantial negative impact on children’s long-term health and well-being, as well as educational attainment. It can also seriously affect their life expectancy and the likelihood of going to prison themselves.
I am not suggesting that no mother should ever go to prison. What I am saying is that, through the passage of the Bill, we can ensure that the right and appropriate response is delivered. For the vast majority of women, that is not prison. May I once again say that we most certainly do not need an additional 500 prison places for women?
I want to comment briefly on how troubling it is, after all that has transpired in recent years, that little attention is still being paid to racial disparities in the criminal justice system. It will be hard to build community resilience or confidence in a system while this is not acknowledged. According to research, young black adults are over eight times more likely to receive a conviction for a low-level, non-violent crime compared with their white counterparts. More must be done. One interesting option among a raft of options to reduce this disparity could be to remove the need for an admission of guilt to receive a community caution.
My next comment is around the issue of an expansion of whole-life orders to younger offenders. On these Benches, we welcome the efforts to reduce the number of children held in remand custody, but not measures that could see greater numbers of children serving longer custodial sentences. Treating children as children is paramount, particularly given what we know about maturity. My friend the right revered Prelate the Bishop of Derby, who is unable to speak today, will be following these issues closely.
Time is up, so, in summary, we must find effective ways of preventing people entering cycles of criminality and reoffending, as well as strengthening and protecting communities. This can be done only by a criminal justice system that inspires confidence and is rooted in a consistent ethos and strategy at every level that is based on evidence and research and joins up the work of the police, courts, probation, parole, prison and civil society organisations within a framework that is restorative, responsible and relational.
Lord Blunkett (Lab)
My Lords, I have often reflected that I thought ghosts were walking the corridors of the Palace of Westminster, some with their head tucked under their arm. I am reminded of that because I think we have a poltergeist; when the Minister lost part of her notes, I noticed that a pile of Braille notes that were next to me before my noble friend sat down next to me had gone missing, and I have no idea where they are. But I will suffice with the one that remained in my hand.
This afternoon, there are many things to welcome in this legislation, but there are so many things we are concerned about that it is inevitable we will concentrate on the things that worry us most. What is it that we are seeking to address? Does it require new powers or sentences? Is it proportionate and clear? Will it achieve the desired outcome? Will it lead to confusion, mistrust and more challenges in the courts? Is it a knee-jerk reaction to what is going on around us? All those questions are absolutely crucial as we address, through Committee and Report, the detail of this Bill.
I can deal with only one or two parts this afternoon. Part 7 in relation to sentencing may be an opportunity, under point 8 of the 11 key points that my noble and learned friend Lord Falconer outlined earlier, to put right the mistakes made, including by myself, in relation to incarceration for public protection—IPP—where the revolving door that has just been referred to affects a large number of prisoners and where, with a bit of common sense, we might be able to put some of it right, not least by using tagging instead of a return to prison for minor infringements of the licence conditions. We could put right the silliness of giving people a 10-year sentence relating to what they do to statues, when we should be concentrating on what we do as a society to each other.
I want to concentrate, however, on public order in Parts 3 and 4. I did not disagree with quite a lot of what the noble Baroness, Lady Stowell, said—which I am sure she will be surprised to hear. There is a challenge for us to get right in the 21st century. With modern communication technology and the expression of anger in new ways, we need to be able to address those issues, particularly where anarcho-syndicalists take over legitimate protests and either manipulate or confuse those who are taking part in peaceful protest. But I do not believe that what is before us in this Bill actually achieves that. To paraphrase Lewis Carroll, “‘Words mean what I say they mean,’ said Priti.”—and she is pretty uneasy and quite annoyed most of the time, particularly by the noise of dissent around her. So getting the words right really does matter because, otherwise, the unfettered use of discretion described by the noble and learned Lord, Lord Judge, will come back to bite us in a very big way: once mistrust takes hold, respect for the law and consent in our policing system will disappear.
I am wholly in favour of being able to take action against those who believe, or appear to believe, sincerely that the ends justify the means when the means do not justify the ends and, in particular, when the means are in fact damaging the ends they are seeking. Stopping people being able to legitimately use public transport is unacceptable. Let us try together, as we do so well and have done over recent months and years, to use the facility of this House to get this legislation right and achieve the outcomes most noble Lords would want to succeed.
Lord Thomas of Gresford (LD)
My Lords, my noble friend Lord Paddick has addressed the Bill widely, but I want to address just a single globe on the Christmas tree, which did not merit a mention in the Minister’s opening remarks. Clause 169 concerns the extension of the temporary arrangements under the Coronavirus Act for video and audio links in court proceedings. I have nothing against using technology to improve efficiency. Indeed, in the last criminal trial I was involved in some years ago, I found I had to travel to Kingston Crown Court and hang about on no less than five occasions for preliminary hearings, each about half an hour in length. I know your Lordships will sympathise when I reveal that, under our generous legal aid provisions, these sorties were all unpaid. Obviously, video links would have been much preferable—but these are preliminary matters.
During the worst of the pandemic, it was right to keep trials going in the exceptional circumstances by the use of video and audio links. Section 169 pushes that into the future and goes further: it extends the use of live links to jury members so long as all members of the jury can
“take part through a live video link while present at the same place.”
However, before making these temporary provisions permanent, surely it would now be right to assess to what extent they impinged upon a fair trial.
In June 2020, the Equality and Human Rights Commission reviewed the use of live links and found:
“Almost all the criminal justice professionals in England and Wales who we interviewed felt that use of video hearings does not enable defendants or accused people to participate effectively, and reduces opportunities to identify if they have a cognitive impairment, mental health condition and/or neuro-diverse condition.”
The Bingham Centre for the Rule of Law, to which I am indebted for its excellent briefing, has expressed its concerns. It is important to understand the dynamics of a trial. Central to its success in convicting the guilty and acquitting the innocent is the ability of magistrates and the jury, as finders of fact, to assess the credibility and accuracy of the evidence of a witness, and that includes the defendant. I think we all know that we rely upon body language, expression and tone of voice in making these assessments. We look at the whole person. I have always found it odd that in Number 1 Court of the Old Bailey, the witness box is on the same side of the court as the jury, so its members do not see the witness face to face but catch a sideways view only by cricking their necks to the left; it is like a tennis match.
A full evaluation of the impact of the coronavirus-type virtual proceedings and its effect upon the right to a fair trial is needed. The House of Commons Justice Committee has recommended
“that the Ministry of Justice reviews how well remote hearings have worked for all participants in all jurisdictions before rolling them out further.”
Similarly, the House of Lords Select Committee on the Constitution concluded:
“Research suggests that the format of a hearing may have a substantive impact on the case outcome. If that is true, the shift to remote hearings in response to the pandemic must be scrutinised closely. It is vital that sufficient data are collected to assess the impact of remote hearings on outcomes.”
It also said:
“There are real concerns that remote hearings are disadvantaging vulnerable and non-professional court users, as well as those with protected characteristics. But the requisite data to assess and address these concerns are not available.”
I agree with those sentiments. I should hate to see the day when criminal trials are conducted by a disembodied judge on screen, with a jury on another screen, witnesses on a third, and the only person in court being the lonely defendant in the dock. That would not be a fair trial by any standards.
Lord Garnier (Con)
My Lords, I thank the Minister for performing what I think must have been quite a difficult task in explaining so clearly this long and complicated Bill. In referring to my interest as a barrister in private practice, as set out in the register, I also say how much I am looking forward to hearing the maiden speech of another barrister, my noble friend Lord Sandhurst, who will bring his experience and wisdom to our proceedings, to our collective advantage.
I entirely agree with the Constitution Committee’s report on the Bill, published on 9 September, and with earlier speakers—I have said as much myself in relation to other Home Office and Ministry of Justice Bills over the last 30 years—that the Bill is far too big. I have seen worse examples of this habit of introducing excessively large Bills, but it seems to be a habit ingrained in these two departments. At least this Bill has only one volume, but it has 177 clauses, 20 large schedules, extends to almost 300 pages and covers a large number of disparate subjects. I make no personal criticism of my noble friend on the Front Bench, or other Ministers in this House who have the conduct of this Bill, because I doubt whether they have any say in the matter, but this insidious habit affects Cabinet Ministers from all parties as soon they are appointed to office in these two departments.
I am not sure whether it comes from a desire to appear to be actively responding to what is often mistakenly thought to be some acutely felt public need or to persuade colleagues on the Cabinet sub-committee on legislation that because the Bill is so big, it must be important and should come higher up the programme than other Bills vying for recognition and parliamentary time. Having attended that sub-committee, I know there is always strong competition for a place in the parliamentary legislative programme every Session, but it sometimes looked as though someone had swept an entirely random collection of ideas from Home Office or MoJ shelves into the Bill. Not for the first time, we are presented with a criminal justice Bill that contains some good and worthwhile provisions, others of lesser value or utility and, judging from my right honourable friend George Eustice’s recent press article, will soon have a plainly unnecessary additional provision to criminalise something that is already a crime—namely, dog theft. I think that in this House we can tell the difference between an Early Day Motion or virtue-signalling and a useful addition to the criminal law.
Bills that are too big do not receive proper scrutiny in the other place, where Governments strictly guillotine Bill Committee and Report stage schedules. This Bill is hugely controversial on several fronts and your Lordships’ House will want to give it the attention it deserves. There is no time in a crowded Second Reading debate to set out detailed arguments, but there is much wisdom in the Delegated Powers Committee’s report published yesterday. Many of us would like to see the Bill amended—some of us to take things out, some of us to put things in, and some of us to do both. There is much to be considered in the provisions of the Bill on public order, data gathering, life and minimum sentences, and delegated powers. I agree with the noble and learned Lord, Lord Falconer, in relation to IPPs. While having concerns about those matters, and respecting the long-standing right to protest, I would like to alter the law on aggravated trespass so that those who disrupt a lawful activity should have the burden of proving, as opposed merely to asserting, that the activity they would like to disrupt, or have already disrupted, is unlawful.
Large criminal justice Bills cause unintended consequences, and I trust that the Committee and later stages of the Bill will not be rushed or truncated. Bills of this sort do not make easy work for the judges and lawyers who have the job of applying their provisions, once enacted, in real cases involving real people. When shadow Home Affairs and Justice Minister, I used to ask Labour Home and Justice Secretaries, including the noble Lord, Lord Blunkett, how many of the provisions in the approximately 60 criminal justice statutes enacted by their Governments since 1997 were respectively still in force, had not been implemented or had been repealed before implementation. The answer was roughly one-third in each category. Let us therefore try to enact about 33% of this Bill well and coherently and just write newspaper articles about the rest.
Lord Pannick (CB)
My Lords, I want to mention two specific matters. The first has already been addressed by the noble Lord, Lord Thomas of Gresford. Clause 169 will allow members of the jury to take part in a criminal trial remotely through the use of video and audio links, as long as all the members of the jury are together in the same place. I very much share the concerns expressed by the noble Lord: they have also been expressed by the Bar Council and the Law Society.
They expressed concerns because the success of a jury trial depends in large part on a good working relationship between the judge and the jury. Trust and confidence need to be built up. The jury needs to be attentive and mindful of its onerous responsibilities; the judge needs to watch the jury to ensure that members’ interests are protected and they are properly performing their responsibilities. People, of course, go to prison, sometimes for long periods of time, as a consequence of this procedure. Counsel, both prosecution and defence counsel, have to engage with the jury through advocacy and through their questions to witnesses. All of this is much more difficult to achieve through a video screen. The Lord Chief Justice, the noble and learned Lord, Lord Burnett, said last year, and I agree, that a remote jury trial
“would make the jury spectators rather than participants in a trial”.
Most of us lawyers and judges in this House will testify from our own experience in the past 18 months that a remote hearing is a far less effective means of communication than a live hearing in the courtroom. I expect that almost all Members of this House will have had the same experience participating in parliamentary proceedings over the past 18 months. I very much hope that the Government will think again on this very important subject.
The other matter I would like to mention today is an amendment to enhance the protection of women. It is an amendment to the Sexual Offences Act 2003, which the noble Baroness, Lady Hayman, will table for Committee and which I will support. I am speaking on it today because the noble Baroness cannot be in her place. I will do my best briefly to explain the issue.
The House will recall that the Voyeurism (Offences) Act 2019 amended the Sexual Offences Act. Essentially, it made it a criminal offence to take photographs up a person’s skirt or kilt—it is sexually neutral—when this is done in order to obtain sexual gratification or to cause humiliation, distress or alarm. In the debates on the current Bill in the House of Commons, an amendment was proposed to add a further voyeurism offence. The offence would be to take a photograph or video of a woman who is breastfeeding, provided that this is done to obtain sexual gratification or to cause humiliation, distress or alarm. Sadly, this is a mischief which occurs frequently, and it has understandably caused immense distress to many women victims, as has been explained by Stella Creasy MP, the moving force behind the amendment in the House of Commons. These women complain to the police; the police are sympathetic but explain, rightly, that there is nothing they can do about it.
In Committee in the House of Commons, the Minister, Victoria Atkins, for whom I have great admiration, agreed that this is
“unacceptable, creepy and disgusting behaviour”.—[Official Report, Commons, Police, Crime, Sentencing and Courts Bill Committee, 24/6/21; col. 748.]
Who could disagree with that? But on behalf of the Government, she opposed the amendment to make such conduct a criminal offence because the Government want to await a Law Commission report on the publication of intimate images on the internet.
I can see no good reason why we should not now amend the law to make this form of distressing and inexcusable conduct a criminal offence. I very much hope that the Government will think about this and accept the forthcoming amendment from the noble Baroness, Lady Hayman, in Committee or on Report.
Baroness Armstrong of Hill Top (Lab)
My Lords, I want to speak about a specific group who will be affected by some of the Bill’s provisions. I suspect that I would not need to make this speech had the Government accepted the amendment I moved during the passage of the Domestic Abuse Act, which would have introduced mandatory training for all front-line workers in public agencies where an abused woman may turn up. We discussed then the importance of recognising the effects of trauma on the behaviour of women with experience of violence and abuse. Unfortunately, the Bill as currently drafted would exacerbate the problem and drive more women into the criminal justice system, rather than ensuring that they get timely and appropriate support. I am sure that is not what the Minister wants.
For brevity, I want to concentrate on one example of the provisions in the Bill that may be problematic if introduced without the right sort of knowledge and understanding. The serious violence reduction orders would increase the number of women with complex needs being sentenced to prison. I want the Minister to particularly think about those young women who have been groomed and experience serious and often violent sexual exploitation. Changing Lives—an organisation I used to chair—and organisations it has been working with in West Yorkshire in the STAGE project, has many examples of this and the problems that the Bill would therefore bring. Agenda also tells me of young black women who are often exploited in gangs. These are the women who may well be caught with facing two years’ imprisonment for the possibility that they “ought to have known”—as the Bill says—that someone in their company was in possession of drugs or weapons.
I was pleased to hear the Minister say that the diversion of people from prison is a key aim of the Bill. I know that the Ministry of Justice and, I am sure, the Home Office have been looking seriously at how to reduce the number of women going to court and to seek other ways of avoiding custodial sentences. It would be unfortunate if such work was put at risk in this Bill. I am afraid that the issue I raise demonstrates a lack of understanding of what happens in grooming and sexual abuse and exploitation among adults.
The consequences of this Bill could be very damaging. Could the Minister therefore find the time to discuss with me and some of the organisations working with these women what the consequences of the Bill could be? I have just given one example of those orders, but there are other aspects in the Bill that the Minister and the Government need to think about. Maybe with a civilised discussion we could avoid some of those real problems and not put these women at even greater risk of entering custody, which would not help them at all—nor would it lead to protecting the community more effectively.
Baroness Harris of Richmond (LD)
My Lords, I will speak on Part 1 of the Bill concerning the police covenant, which I am pleased to support but which I believe needs a little improvement, and on Chapter 4 concerning pre-charge bail provisions. There are, of course, other very important parts of the Bill—most notably on restrictions to protest, which I will oppose.
I declare my interests in the register and my honorary membership of NARPO, the National Association of Retired Police Officers. I am pleased to see the inclusion of the police covenant report, which will show the state of the health and well-being of police officers and, importantly, those who have retired. As president of the Police Treatment Centres, which I have spoken about before, I am only too aware of how mental health issues have impacted on the care we give to officers, both serving and retired.
Being a police officer, and the situations and experiences with which they often have to deal, has a significant impact on an individual’s mental health, particularly after they have left their force. It is therefore absolutely vital that the police covenant recognises this and that appropriate measures are put in place to ensure that the necessary mental health support is available for individuals’ physical and mental well-being. I intend to table an amendment in Committee to reflect this concern, which I hope the Government will consider, and I will be doing it virtually.
I support the increase in penalties for assaults on emergency workers. We have seen during the pandemic the quite disgraceful assaults they have endured, and I hope more imaginative sentences can be given to those who carry out these crimes. Simply applying financial penalties will not necessarily stop the perpetrators.
I have long argued for special constables to be given access to membership of the Police Federation, and I warmly welcome this proposal.
Part 2 of the Bill talks of collaboration with others delivering public services which relate to reducing and preventing serious violence, as we have heard. Since I first became chair of my own police authority many years ago, with the support of the excellent Association of Police Authorities we devised collaborative agreements with other forces and the public sector—so this is not new, but from time to time it needs reinforcing.
Chapter 4, which I have referred to, deals with pre-charge bail provisions. In 2016, when we were dealing with the Policing and Crime Bill, I offered a number of amendments—none of which was accepted, of course—so I am trying again. I am once again grateful to the Police Superintendents’ Association, and in particular to its president Paul Griffiths, who alerted me to the concerns it again has about this issue. Had our suggestions been taken on board then, we would not still be in this situation today.
In essence, the association recommends that, should a suspect be arrested and then released on police bail, a summary offence, punishable by a fixed penalty or fine, should be levied for any breaches of the conditions. Under the current proposals, when a suspect breaches their police bail, they can be arrested and brought into custody, but the only action police can then take is to release them on the same bail conditions; there is no punitive aspect to the breach, only a power of arrest. There is no deterrent, so the conditions to protect the public are meaningless. I hope the Government will look again at this, because it seems to me to be making a mockery of the justice system, and I do not understand what the resistance is to this fairly simple and long-needed improvement to police bail.
There are indeed things to welcome in this Bill, but, as I said at the beginning, there are also some completely unacceptable restrictions, many of which will impact disastrously on particular minority communities. I look to the Government to take note of the amendments which will be tabled in Committee and which will address so many of our concerns.
Lord Blencathra (Con)
My Lords, in the impossibly restricted time available, I can only advise the House on the key findings of the Delegated Powers Committee, which I am privileged to chair. We published our report yesterday, and it is already heading to be a bestseller.
I am afraid that this Bill is yet another we have studied with thoroughly inappropriate delegations which seek quite wrongly to deprive Parliament of proper scrutiny—or any scrutiny in some cases—of important and contentious matters. It is not the fault of my noble friends on the Front Bench. They inherited this delegated powers drafting mess from the Commons, and Commons Ministers of all parties, going a long way back, always worry about the politics of a Bill and never care about the delegated powers in it. I was just as guilty when I was a Minister. The Home Office has not been an habitual offender over the past few years, but some of the delegated powers in this Bill are quite unacceptable.
So who do I blame? Those who drafted it and have an overview of all our criticisms over the years. It seems that the Office of the Parliamentary Counsel has blatantly ignored everything the Delegated Powers Committee has been saying over the last five, 10, 20 years; or it has not learned the lesson from those who drafted the Environment Bill, which was absolutely exemplary in delegated powers terms.
So yet again we see in Clauses 18, 31, 64 and 140 so-called “guidance” to which people “must have regard” not getting any parliamentary scrutiny at all—not even the negative procedure. Then there is the usual excuse that, since they will consult all other interested parties, we in Parliament can be ignored. We have the incredible statement that, although this “must have regard to” guidance can be used as evidence in court, it is not binding, so it does not need to be an SI considered by Parliament. I look forward to what noble and learned Lords have to say about that—please explain it to me in simple language.
Clause 43 amends the PACE Act 1984 on pre-charge bail; but not only will Parliament not see the details, the power to make the regulations is being given to a non-statutory body, a company limited by guarantee, in fact called the College of Policing. It was created as a limited company in 2014 and the then Home Secretary, Theresa May, said that it would be put on a statutory basis when parliamentary time allowed. Seven years later, that has never happened, although it has been granted extraordinary powers to make and enforce laws in the meantime. Honourable though they undoubtedly are, this is still a group of self-appointed chief constables in a limited company making rules which the police and others must obey. I simply say, these are the same people who issued contradictory advice on the enforcement of the Covid powers, contrary to what we in Parliament had actually voted through. I suggest that, until they are legitimised in law, they should have no law-making power and anything they propose should be advanced by the Home Secretary as regulations getting the negative procedure.
On Clause 61 on serious disruption, I emphasise to the House once again that the Delegated Powers Committee has no opinion whatever on the merits or substance of any parts of the Bill. But we all know that this provision is contentious, and the Government have produced an illustrative statutory instrument giving a definition of “serious disruption”. It is only half a page long, so my committee takes the view that it should be in the Bill, with a power to amend it as and when necessary. We take a similar view on Clause 77 and believe that the provisions should be in the Bill with an amending power.
We have also made some serious criticisms of the delegated powers in Clauses 7, 8, 80, 82 and 120 which I have no time to address today.
Our report was published yesterday. I encourage all noble Lords to read it and take forward any relevant amendments to which they may be guided. I do not want answers from my noble friends today, because I know we will get a full departmental response in due course.
Yesterday I was able to stand up in this Chamber and commend the noble Lord, Lord Goldsmith, and Defra for implementing every single one of the Delegated Powers Committee recommendations in a Bill which is almost the same size as this one. Why did Defra do that? It was because, like our recommendations here, not a single one of our recommendations on the Environment Bill removed or diminished any substantive parts of the Bill. We were saying to Defra on the Environment Bill, “Put these from negative to affirmative; publish these; lay them before the House. Let’s have a bit of scrutiny—we do not want to delete anything from the Bill or add anything to it”. That is why Defra could go along with it.
All we are saying today is that the Home Office and the police will be making a rod for their own backs if they do not let Parliament have even a cursory look at highly contentious guidance and regulations.
Lord Thomas of Cwmgiedd (CB)
My Lords, I will attempt to address three short points in the hope that I can push a little on an open door.
On the first point, relating to abstraction from mobile phones, the door has already been opened by the Minister. This problem has bedevilled the criminal justice system for at least nine years, and the opportunity has now come to deal with it comprehensively. The Bill does not do so. My noble and learned friend Lord Judge admirably put the change in the mores in a way which I could never match, but there is an area on which I can perhaps add a bit—the change in technology and the advent of programmes that can be used to assist has greatly changed things. I hope, therefore, with the indications given by the Minister, that we can look for a comprehensive piece of work, in a code or in statutory provisions, that will deal with this subject comprehensively.
The second area I want to turn to briefly is the use of out-of-court disposals. They play an essential part in the criminal justice system; I wish to say nothing about the specific changes put forward. However, with the growth in the use of out-of-court disposals over the past 15 years, there has been the need to ensure consistency, transparency and accountability. Attempts have been made by the judiciary, in conjunction with the magistracy, the police and the Government, to try to set up some form of accountability, particularly through panels of magistrates. I have no time to go into the details of that but a lot of it is summarised in a report by Cerys Gibson of Nottingham University, published by the Sentencing Academy in February. What is needed, if the confidence of victims and the public is to be maintained in this very extensive use of sentencing powers, is proper scrutiny. This will ensure consistency so that one force does not vary from another; we cannot have a postcode lottery. We also want to be sure that the police carry this out fairly and appropriately. I hope that the Minister will be prepared to explore this area, which needs dealing with comprehensively.
Thirdly, Clause 109 concerns a much more specific but important point. For the past 20 or so years, it has been a hallmark of our justice system that matters dealing with the sentencing of individuals are dealt with utterly independently and that people are not put, or kept, in custody for longer other than through a judicial or Parole Board process. The power under Clause 109 may be needed to deal with high-risk offenders in respect of certain individuals, but it is a power referred to the Parole Board by the Secretary of State. I very much hope that we can do two things: first, ensure that the clause is drafted in such a way that the risk of political pressure is removed; and, secondly, ensure that no one is kept in prison for longer than is necessary and that the decision to keep someone in longer is that of an independent body. As I read the clause, as it is currently drafted, it is possible—by a very late reference by the Secretary of State—for someone to be kept in custody without any judicial determination. I hope, therefore, that the clause can be looked at carefully and amended, because I am sure that no one wants to see us go down the road of terms of imprisonment being extended other than by an independent judicial body. It may be a small point, but the two hallmarks of our system require independence from political interference and decisions on custody being totally in the hands of independent bodies.
Lord Bach (Lab)
My Lords, I too look forward very much to the maiden speech of the noble Lord, Lord Sandhurst. He comes to this House with an outstanding legal reputation and we are lucky to have him.
Clearly this is a major and massive Bill with important proposals in it, but am I alone in worrying slightly that the Government should be dealing today with all these matters when it seems, to me at least, that some urgent issues around the criminal justice system are causing it sometimes to be in a state of near crisis? Actually, the civil justice system is, in my view, in a real crisis of many years’ standing. Surely the Government and Parliament should be discussing and debating those issues. If that means getting rid of some of the no-doubt worthy clauses in this Bill, perhaps that would be a price worth paying.
There are issues around case delays, trial delays and the endless desires, wants and needs of victims. Then there is remuneration and legal aid. In the case of civil legal aid, if I may say so, the effects of the LASPO Act—arguably the worst piece of legislation passed in the last 10 years—have been baleful. It has denied, and continues to deny, a large number of our fellow citizens any access to advice and justice. This Bill cannot be a cover for lack of action in those areas.
I have just stood down as a police and crime commissioner, which I did for five years. Day by day, I witnessed policing at fairly close quarters. I believe I am firmly of the view—I think I am persuaded—that the case for raising the maximum penalty for assaulting emergency workers is made out. Every Monday morning, week after week, I would hear of the extraordinary number of police officers who had been attacked and assaulted over the previous weekend, albeit sometimes in a minor way, if there can be such a thing as a minor assault. Of course the prospect of higher sentences—I do not like it in principle, actually; I suspect that the House does not either—is nowhere near a total solution but, if it deters some from offending, it is worth at least trying because the level of assaults on emergency workers is just not acceptable.
I oppose the changes to the policy on the policing of protests. The proposals seem vague and risk undermining the balance between freedom and control that is so vital to our free society. I urge Her Majesty’s Government not to use the police as a cover for these changes. Police officers are members of the public too; this is very much in the Peelite tradition. They, for the most part, treasure and support the freedoms that we enjoy in this country. In my experience, albeit anecdotally, the police are at the very least sceptical about some of these proposals.
Would the Minister be prepared to see me about an amendment I want to make? It is small but reasonably important, and concerns the unique way in which anyone who wants to be a police and crime commissioner candidate—noble Lords may ask why anyone would want to do that anyway—cannot be one if they stole a Mars bar or scrumped some apples 30 or 40 years ago. The Act we passed 10 years ago makes it absolutely clear that anyone with a caution or conviction for an imprisonable offence is automatically excluded, whether they went to prison or not. That does not apply to the Home Secretary, High Court judges or, if I may say so, bishops. I hope that the Minister will, in her usual courteous way, be prepared to meet me on that matter.
Lord Oates (LD)
My Lords, I intend to focus my remarks principally on the public order powers set out in Part 3 of the Bill, particularly their potential impact on protest against the failure of Governments here and around the world to take the urgent steps necessary to address the climate and ecological emergency.
When I first heard about the Bill some months ago from someone in the environmental movement, I thought that they were parodying the Government’s proposals. When they assured me that they were not, I thought that they must simply have been mistaken. Then I read the Bill. As we have heard, it provides new powers to ban noisy protests that may cause “serious disruption” or
“have a relevant impact on persons in the vicinity”.
Who determines what all this means? It is the Home Secretary, by regulations; it is not on the face of the Bill. The Bill also imposes a maximum 10-year sentence on those who obstruct
“the public or a section of the public”
or cause “serious annoyance” or “serious inconvenience” to another person, among other things.
I am sorry that the noble Baroness, Lady Stowell, has left the Chamber. I listened very carefully to what she had to say, and I do not doubt her motivation in what she argued, but it sounded very similar to the arguments that I recently read in the letter written by the six clergy of Birmingham, Alabama, criticising the civil rights campaign. In response, Martin Luther King, Jr., in his powerful letter from a Birmingham jail, said that the clergy had warned against what they saw as extreme and divisive tactics and the unwise and untimely strategy of direct action.
People take direct action when the political process fails to address issues over an extended period of time. When that failure poses an existential threat to those people, the solution is to address the issues and try to understand the reasons behind the anger and the protests, not to force them further underground. These powers will not remove divisiveness from society, as the noble Baroness, Lady Stowell, hopes: they will do the opposite. They will not quell environmental protests, because acting with the urgency posed by the existential threat of climate change is the only thing that will do that.
During the campaign against the apartheid regime in South Africa, many in this House took part in the 24-hour picket line outside South Africa House. We often made quite a lot of noise. I have no doubt that the apartheid regime operating inside that embassy found that protest a serious annoyance, a serious inconvenience and, most likely, a serious loss of their amenity. We were there to cause such annoyance, to be as noisy as possible, and to raise our voices loud in protest so that the world which had not been listening, and the Government in this country who had not been listening, would do so.
Today, environmental protesters are raising their voices loud against the existential threat to life on our planet. They are raising their voices loud against politicians in this House and elsewhere who make bold, long-term promises but fail to take the vital actions to follow them up. They are raising their voices loud against those who, over the past three decades, and even to this day, continue to deny the science of climate change and, as a result, have put our whole planet at risk. Yes, they are using the time-honoured tradition of civil disobedience and peaceful obstruction. Yes, it is obstructing the public and is no doubt causing serious annoyance to people, including, on occasion, to me. However, the reason these people are protesting on the streets is because the people inside this Parliament have recklessly failed to protect our planet over a period of decades.
Those out on the streets are not there for no reason. They are there for one simple reason: because without them raising their voices and forcing their way on to the news agenda, the world would not be listening. They are not the selfish ones: it is they who have shown that they care enough for their community, their country and their planet to take action to raise our attention and the world’s attention to what Martin Luther King, Jr. called
“the fierce urgency of now.”
Viscount Goschen (Con)
My Lords, one can sense the eagerness and anticipation in this House, particularly among the seasoned parliamentary guerrilla fighters, to tackle a very broad range of issues that come within this very large Bill. Yes, it is a big Bill, but it covers a lot of very important subjects. I listened to the noble and learned Lord, Lord Falconer of Thoroton, attack the scale and scope of the Bill, but I recall a number of pretty weighty criminal justice Bills being introduced by the Government of whom he was a distinguished member, and having sat through many dozens of hours of scrutiny.
None the less, I accept the noble and learned Lord’s point—and it was made in a particularly poignant fashion by my noble and learned friend Lord Garnier—that we should really only legislate where a change in the law would genuinely address a challenge at hand that could not be tackled by better execution of the legislative powers that we already had. That should certainly be our watchword when considering a Bill such as this, rather than to govern by initiative.
Nevertheless, we have some very serious problems that we cannot just duck because they are difficult and complex. It is clearly not right that thousands—and, on occasion, millions—of people should have their lives and their human rights disrupted by aggressive and well-organised militants whose intention is the disruption itself rather than the protest. The world has changed, particularly as a result of technology and related social media, and we have to adapt accordingly.
I do not doubt that it is very difficult to find the right balance, and to find that just line to draw; however, I also strongly feel that it is wrong to belittle serious and thorough attempts to adapt the legislative framework to protect the rights of those who want to protest while equally protecting the rights of the vast majority to go about their lawful business without serious disruption. It is clear in my mind that the balance is not right now, as is shown by daily events. To bury our heads in the sand and refuse to recognise the problem is to abrogate our responsibility.
Have the Government got the balance right in this Bill? I must confess that I do not know. There are a lot of experts in this House, and I look forward to hearing what will be, no doubt, passionate debates on this subject. Similarly, I do not feel that we can ignore the fact that we have a serious problem with unauthorised encampments. There have been too many instances of great disruption and distress caused to local communities that have had to endure violence, intimidation, crime and damage to property, among other consequences. I hope that we will be able to consider this matter in the calm, balanced and respectful manner which is the hallmark of debate in your Lordships’ House, without questioning the motives of those who are seriously attempting to find a fair and balanced legislative solution.
This is an important Bill, covering a very broad range of subjects. I have a feeling that it will be a slightly less broad Bill by the time it departs this House, but we owe it to everyone to examine the proposals put forward, and the manner in which they have been put forward, with due consideration.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, I have no time today to talk about what is in this Bill, only to talk about what is not but plainly should be: IPP prisoners, a subject already touched on by the noble and learned Lord, Lord Falconer, and the noble Lord, Lord Blunkett. This Bill represents a further step toward sentence inflation and must inevitably lead to a greater prison population and more overcrowding. Remedying the IPP regime would not only help cure a great and growing injustice in our system, it would also make some contribution—if perhaps only a modest one—towards reducing, instead of endlessly increasing, the prison population.
The very first sentence of the impact assessment for this Bill, under the heading,
“What is the problem under consideration?”,
speaks of too many offenders
“not serving a sentence that reflects the severity of their crime”.
Tell that to the remaining 1,722 IPP prisoners never yet released from their sentences—sentences which, by definition, were imposed before 2012, when the whole discredited IPP regime was abolished by LASPO, although, alas, only prospectively, not retrospectively.
Of those 1,722 prisoners—these figures come from June of this year—96% have passed their tariff expiry date and 555 have served over 10 years beyond their tariff term, which is the term specified, in the words of the impact assessment, to reflect
“the severity of their crime.”
Astonishingly, of those, 207 have actually got a tariff term of less than two years. Are these not appalling figures? Indeed, many of them have served well beyond the statutory maximum determinate sentence for their offences. Frankly, this is a system of preventive detention which some know effectively as internment.
That is not the end of the problem because in addition there are now in prison a further 1,332 IPP prisoners recalled under the licence provisions; therefore, making more than 3,000 IPP prisoners still incarcerated in our prisons. Recalls are a growing problem. The number is increasing year on year. The great majority are not for further offending but rather for often comparatively minor non-compliance with release conditions, such as not giving their correct or up-to-date address—and they do not always find that easy—or for mental health reasons.
All these IPP prisoners, whether never yet released or recalled, have to discharge that most difficult of burdens to prove for release that they would then be safe. In the meantime, they and their families live in a Kafkaesque world of uncertainty, hopelessness and despair. It is small wonder that there have been many suicides among this population: twice as many IPPs even than ordinary life sentence prisoners. It is self-harm. It is also small wonder that Justice Ministers past—Tories such as the noble and learned Lord, Lord Clarke of Nottingham, and Michael Gove—have recognised the manifest injustice of all this and called for reform. Indeed, on 31 July I hope at least some noble Lords read Matthew Parris, who devoted his whole column to urging the Government to have the political will—as he put it, the guts—finally to deal with the gross injustices that these prisoners continue to suffer. We cannot afford to miss this opportunity at long last to do something for this cohort.
Baroness Jones of Moulsecoomb (GP)
My Lords, it is a pleasure to speak on this Bill. Every time I have worked on a Bill since I arrived in your Lordships’ House nearly eight years ago, I have thought, “This is the worst Bill I have ever seen”, and every one is, but this is a stinker and it is quite obviously not going to help the police. If you produce a policing Bill and you cannot get former police chiefs, UN special rapporteurs, the Joint Committee on Human Rights and the European Center for Not-for-Profit Law on your side, something is wrong with it.
The Minister mentioned that the Government are increasing the number of police officers by 20,000 and increasing the budget, but I point out to her that in fact the police are not yet up to the numbers and do not yet have the budget that they had when the Tory Government took over 11 years ago, so this Government are not particularly kind or good to the police. We all know that policing is tough, but this Bill will not help.
Surprisingly—or interestingly, or however you want to see it—I, like the noble and learned Lord, Lord Falconer of Thoroton, have 11 issues that I am concerned about in the Bill. I think there will probably be more by Committee and my noble friend Lady Bennett has her own issues as well, which are equally serious and disturbing. I will try to gallop, in the very limited time we have to speak at Second Reading, through these issues.
The first is Part 2. Unprotected data gathering and sharing is a very disturbing part of the Bill. For example, it mimics what has happened with the Prevent programme. That programme has disproportionately targeted Muslims and minority ethnic communities, and it is likely that human rights infringements will be felt most acutely by those already overpoliced and overrepresented in the criminal justice system. These measures could have a disproportionate impact on marginalised communities and groups advocating for social change, with Black Lives Matter, Muslim people, women and climate change activists—among whom I am, I hope, a guerrilla fighter—being particularly affected. This Bill makes it more difficult for those oppressed groups to have a voice in our society at a time when it is so desperately needed.
I agree very strongly with the noble Lord, Lord Paddick, that we should not be adding to the Bill. We should be removing things. In fact, if we could remove the whole Bill, that would give me a few nights of good sleep. In the meantime, we can fight on all these things.
Part 3 on public order undermines democracy by limiting freedom of speech. It poses a threat to the core purpose of a protest: to allow people who feel unheard by decision-makers to speak and be heard. This part silences them. When we talk about disturbance and unease from noise, I would like to complain about the noise we hear from the other end of this Palace. The way the House of Commons carries on often upsets and displeases me, so perhaps we could apply the Bill to it.
The Bill allows future Home Secretaries to determine what constitutes a disruption. Do the Government really think we trust Secretaries of State to do that? Throughout the Bill the vague language means that it leaves too much up to officers at the scene, and we have seen this year that the police misinterpret laws, partly because they are not given good, clear instructions by the Government, but that is another issue. For example, the policing of the Sarah Everard vigil at Clapham Common was terrible. To allow through such broadly defined legislation leaves the door open to more poor policing, which the police themselves do not want. There is nothing in the Bill to protect women and girls. That is a tragic oversight.
Finally, Part 5 is on road traffic. I would like to insist on the full review of road traffic offences and penalties that was promised in 2014. We have waited seven years, so perhaps it could happen. We also need to strengthen the penalties for serious hit-and-run offences, those where the driver knew or reasonably ought to have known that the collision was likely to involve fatal or serious injury, and tackle the exceptional hardship loophole whereby convicted drivers routinely evade driving bans by pleading that they would cause exceptional hardship. There was a classic case of somebody who claimed it would be exceptional hardship if he could not use his Bentley to drive one mile to the park to walk his dog.
Baroness Whitaker (Lab)
My Lords, I shall focus on one proposal: to criminalise trespass for the first time. This offence has been for centuries only a civil offence. The provision fundamentally disadvantages that small number of Gypsies and Travellers who still keep to their traditional nomadic culture but have no authorised stopping place because of the negligence, and worse, of local authorities in ensuring that Gypsy and Traveller sites and stopping places are available, as judges have found. This is a discriminatory provision. It prima facie breaches Article 8 of the European Convention on Human Rights on respect for private and family life, including traditional ways of life, and Article 14 of the convention on the right not to be discriminated against in the enjoyment of Article 8 indirectly or directly, as well as the Equality Act.
It is, moreover, a very wide-ranging measure to penalise a very small absolute number. Even a single Gypsy with his van can be caught, so not only might a family have no place to stop, but the vehicle in which all their possessions are may be impounded. Let us have some idea of the numbers involved. There are in England only 694 Gypsy and Traveller caravans—3% of the total—on unauthorised encampments. That is because of the shortage of sites. No family willingly stops somewhere without running water, waste disposal facilities or electricity and where they face hostility.
The Government justify their trigger for this hostile action as the causation of “significant” damage, disruption or distress, and it is the landlord who can start this process. But these are highly subjective terms and, given the widespread prejudice already evinced, open to cruel abuse. The loose drafting of this provision puts people in peril at the whim of a landlord, and nor are the police asking for these powers, as has been said. What assessment do Her Majesty’s Government make of the police reaction?
Numerous civic groups are against the provision. A conservative think tank, Bright Blue, says that the provision of enough sites would solve the problem without the need for more legal intervention. Moreover, the recent planning definition that Gypsies and Travellers must travel to qualify for site provision, thus penalising the old, the sick and those caring for them, is made unrealistically harsh by this proposal—unless it is accompanied by obligations to provide more sites. So why are the Government proposing this? It looks suspiciously like a dog-whistle appeal to prejudice and racism.
Things seem to be better in Wales, where there is an obligation on local authorities to meet the assessed need for sites. Is it true that the Welsh Government consider the proposal to criminalise trespass to be systemic, racist legislation? What has been the Welsh response?
It would be wrong not to acknowledge that there have been good initiatives—some from the Church of England, some from the enlightened approach of the noble Lord, Lord Bourne of Aberystwyth, when he was Minister, together with recent undertakings from the noble Lord, Lord Greenhalgh, and many through the increasing confidence, education and good citizenship of Gypsies and Travellers themselves. But still, this most basic need for appropriate sites to live on is misunderstood by public policy. Some local authorities do well, and there are well-run and harmonious sites as a result, but, as I have said, the percentage of available sites is pitiful in relation to the need—that is the problem.
I hope I am not an impatient person, but I doubt if I have many years to wait for recognition of what should be done. Really, words fail me—not something that should happen in your Lordships’ House. What are the Government thinking of, sending people with no alternative place to settle to wander the roads, making criminals of them and condemning their children to interrupted schooling and alienation, and, in the last resort, sending them to prison? Where is the impact assessment of all this, as well as of the cost of evictions? In the 21st century, after the terrible century of racial persecution we have endured in Europe—still going on for the Roma people there and elsewhere—how can the Government think that this clause is acceptable? Do they really want to go down in history as the Government who drove these ancient peoples from their only stopping places, without recourse to any other lawful destination? I hope not.
Baroness Hamwee (LD)
My Lords, I am not sure whether the knocking sound behind us has been someone trying to get in or someone trying to get out of the Chamber.
The House recently established a new Justice and Home Affairs Committee, which I am lucky enough to chair. We are currently looking at new technologies and their application in the law—wider than the Bill, but very pertinent to it and to crime prevention and reduction, and to policing and sentencing. Artificial insemination—
Baroness Hamwee (LD)
I hope Hansard does not repeat that.
Artificial intelligence has huge potential benefits and raises huge concerns, and it is not anticipating the work of the committee to refer to them this afternoon. For instance, collaboration between authorities—Part 2 of the Bill—requires the sharing of information. Will this contribute to profiling and predictive policing? Predictive policing algorithms identify likely crime hot spots; officers are deployed there, and so more stop and search takes place and more crime is reported. It is a feedback loop; a self-fulfilling prophecy which can teach the algorithm to alert the user to particular geographical areas, communities and ethnicities. It has been put to the committee that it is important to involve at a very early stage of the process, and in a meaningful way, members of the communities that are likely to be at the sharp end of these algorithms, and not to leave it to people such as the witness or me—a white, middle-class, university-educated person, who is unlikely, one hopes, to be profiled as a future risk—because even with the best will in the world, we might not spot some of these problems and risks. A tick-box exercise is not enough.
Trust in systems translates to trust in authorities and in government itself—or, of course, the converse. The Bill permits the disclosure of data, but who owns it? What consents are required? Who knows about disclosure? We all expect some information—for instance, that between us and our medical professionals—to remain confidential. Transparency is important at an individual level, as well as more broadly. A defendant, or indeed someone questioned, will find it difficult to establish what technology—what combination of facial recognition technology, number plate recognition, predictive techniques—has led to his being identified as a suspect. If he cannot identify it, he cannot challenge it. How are we to ensure governance, regulation, accountability and scrutiny on an ongoing basis in the case of machine learning?
The technology has to be procured, and it will be procured from the private sector, whose interests are not the same as the public sector’s, and it is differently regulated, if at all. How can we be sure that purchasing authorities in the public sector understand what they are procuring? In the US, some police departments accepted a free trial of body-worn cameras, but they came with an obligation to be part of the manufacturer’s data ecosystem, including an obligation to use that company’s software and store data on its servers.
It is said that we need “human override”, but humans can get it wrong too. Human operators need to understand the limitations of particular technology to avoid overreliance on it or misinterpretation; they need to retain their critical factors.
These issues apply to identification, the extraction of information from electronic devices, monitoring and more that is in the Bill. They are the context for the development of policing and sentencing, such as the new cautions; for scrutiny, both general and in particular cases; and for our assessment of ethical considerations. We should be clear that there are clear principles to be applied. The National Audit Office has just reported on the national law enforcement data programme from a value-for-money point of view, of course, but there are other costs. The NAO mentioned, as I have, trust and the cost of damaging it. AI impacts society, communities, democracy and individual rights. We must be clear about what we are doing and why.
Baroness Greengross (CB)
My Lords, my brief comments today will primarily focus on domestic abuse and serious violence. My key point regards how this legislation could be amended to help with the prevention of domestic abuse.
When this Chamber debated the Domestic Abuse Bill earlier this year, I raised the point that older people are often forgotten when discussing such legislation. A study by Hourglass—formerly Action on Elder Abuse, which I was proud to establish some years ago—found that 2.7 million people aged over 65 in the UK had experienced such abuse. It is totally unacceptable that anyone of any age should have to experience domestic abuse, where very often the perpetrator is a family member or someone close to the victim.
I will support the amendment led by the noble Baroness, Lady Bertin, and co-sponsored by the noble Lords, Lord Polak, Lord Russell and Lord Rosser, to extend the definition of “serious violence” to explicitly include domestic abuse, domestic homicide and sexual violence. Furthermore, I congratulate the domestic abuse commissioner for England and Wales, Nicole Jacobs, on her superb commitment and leadership in raising awareness of these issues.
Currently, the Police, Crime, Sentencing and Courts Bill leaves it to local authorities to decide whether domestic abuse and sexual violence should be included in local strategies. Sadly, these crimes can happen to anyone of any age in any place. Any serious prevention strategy must start at the national level and include all local authorities. Home Office draft guidance currently says that local areas could consider including violence against women and girls as part of the new duty, if they choose to do so. This needs to be much stronger, and not optional, because we know that these crimes happen throughout the country, not just in certain areas. Preventing domestic abuse against not just women and girls but anyone of any age must be a top priority for us all.
When the Bill was debated in the other place, the Government rejected an amendment to extend the time that survivors have to report incidents of common assault to the police from the current six months to a maximum of 18 months. However, for many of those who are being abused, it is very difficult to report what is happening because coercive and controlling behaviour is sometimes part of the abuse. A mother being assaulted by her son or daughter may have a fear of stigma—of being seen as a bad parent—so she may be very reluctant to report the crime, and, if she does, it may be much later. Given that most domestic abuse, and certainly most of the abuse of older people, never gets reported, having a six-month time limit significantly reduces the chances of perpetrators being brought to justice. Can the Minister please explain why the Government wish to retain the current six-month limit?
Finally, there are significant issues relating to the Travelling community in Part 4—I support what the noble Baroness, Lady Whitaker, has said about this. I also note the issues regarding the rights to protest under Part 3. There is always a fine balance between protecting the rights of free speech and protest and ensuring public safety. In its current form, the Bill has yet to get this balance right. Therefore, once again, it falls to your Lordships’ House to perform its constitutional role as a revising Chamber to correct this.
Lord Davies of Gower (Con)
My Lords, I begin by calling noble Lords’ attention to my previous service in the Metropolitan Police. I look forward very much to my noble friend Lord Sandhurst’s maiden speech this evening.
I do not need to remind your Lordships that the Bill covers many aspects. In the time allowed, I will dwell, perhaps superficially, on just a few that I feel are particularly noteworthy at this stage. First, I am delighted that the police covenant is to be enshrined in law at long last, ensuring that the police will always have the support of the nation. Having been at the coalface of policing for many years, I think that this is an important step forward in recognising the daily dangers faced by police. I congratulate the Home Secretary on ensuring that police, support staff and the families who stand behind them will all receive that special recognition that they all deserve. This will create a statutory duty to do more to support the police, placing a requirement on the Home Secretary to report annually to Parliament on progress on the covenant and to ensure that it applies to all those currently in, and—I am delighted to say—retired from, policing roles.
Quite apart from the challenges of everyday policing, police officers are governed by a strict discipline code, which rightly imposes a standard of behaviour far in excess of that expected from the rest of society—so I am delighted that the covenant recognises that working within policing comes with a high level of personal accountability, duty and responsibility, requiring courage and personal risk, both on and off duty. Much of this has been on display during the pandemic, which has seen policing challenged and portrayed in an unpopular light at times.
On the issue of assaults on police and other emergency workers, I share the views of the noble Lord, Lord Pannick, in respect of the sentencing policy of courts. Of course, I fully support the increase in sentencing from one to two years; indeed, I would go further and increase it to five years. However, I believe that the important point here is for the courts to use the power of sentencing more effectively as a deterrent. Assaults on police and emergency workers should be viewed as among the more serious offences, but they are often trivialised by ineffective sentences in the courts. Assaults on paramedics, firefighters and police attending emergency calls should and must be dealt with through forceful sentencing. I call on the Ministry of Justice to be firm in its guidance to the courts on this issue.
I turn to another point. The Police Federation of England and Wales has successfully campaigned for a time-limit amendment to be included in the Bill, in respect of disciplinary investigations. I agree with it that, too often, officers are subjected to long and lengthy investigations without just reason. I have witnessed this myself during my police service, and, as the federation rightly points out, it is a common occurrence for officers under investigation to see their cases drag on for longer than one year, with some lasting as long as eight years. Quite apart from the stress, pressures and unjust nature of such prolonged investigation, it is often the case that officers are found to be acting quite properly but have been subjected to a lengthy disturbance of their career path. Therefore, I fully support the Police Federation’s call for a time limit of 12 months for disciplinary proceedings brought against officers to be introduced, excepting of course that there are sometimes circumstances where 12 months might not be possible.
I come to Part 3 and Clauses 55 to 61, which, in essence, introduce changes to the way that protests are policed in England and Wales. This is perhaps not the time to analyse in great depth the arguments for and against—there is little doubt that this aspect of the Bill will create much debate during its journey through your Lordships’ House—that time will come. However, there is little doubt in my mind that the behaviour in recent months of particular groups of demonstrators on the streets of London, and in the vicinity of Parliament more specifically, has established a clear need to distinguish between the rights of demonstrators to demonstrate and the rights of people and businesses to go about their lawful employment without fear and without being obstructed and prevented from doing so.
It is my firm belief that police should be given every tool available to support them in this task, but I fully realise and recognise the need to carefully balance police powers against those very genuine people and organisations that feel the need to have their voices heard—so I look forward to the progress of the Bill, which I will add my voice to as it makes its way through your Lordships’ House.
Lord Rooker (Lab)
My Lords, the Bill will take a while in your Lordships’ House, and I will raise three short points. I apologise to the noble and learned Lord, Lord Judge, because two of them are not actually in the Bill. One is another Home Office IT failure, the second is women in prison and the third is the powers of the food crime unit at the Food Standards Agency.
Published last week, the National Audit Office’s report on the national law enforcement data programme could not have come at a worse time for the Home Office, as it presents this Bill. The police are on the front line, as ever. I declare that a close family member is a police officer.
The police need access to accurate information. Five years ago, the Home Office made a plan to replace two police IT systems—the police national computer and the police national database. These are part of the UK’s critical infrastructure, and are reaching the end of their lives, with their technology becoming obsolete. Costs are up by 70%, and a 2020 review said that it would be late, costly and—wait for it—would not meet the needs of the police. Under new plans it will not operate till 2025-26, yet the present database will not be supported technically after December 2024.
This is a sorry tale, but it is not the first IT failure in government—and certainly not the first IT failure at the Home Office, which has a bad record in this respect. I share the responsibility, along with my noble friend Lord Blunkett; we were not perfect. The fact is, however, that this needs raising and dealing with.
The National Audit Office recommended that
“the Home Office should immediately clarify its role and that of the police in the delivery of the new service and agree a revised business case”.
In addition, it said that the Home Office needed to guarantee that the systems would work, and could be relied on, until the new system was ready. The police should not be called on to cover up Home Office failures.
My second point is based partly on the excellent brief from Women in Prison, which has been raised by other noble Lords. It is that the Bill misses the opportunity to radically reduce the number of women in prison, and to prevent families being torn apart by prison. Is it the case that, as alleged, the sentencing changes proposed have been drawn up without consultation with the voluntary sector, including charities that provide front-line services? I would really like to know the answer to that before Committee.
The impact assessment recognises that the changes could have a negative impact on families, as they will be apart longer. A key requirement is that the Bill should be amended so that the courts have a duty to consider the impact on dependent children when sentencing their primary carer. Obviously, some women will still go to prison. But the effect on children when the primary carer is sentenced should be looked at. The rights of the children should be given due regard. We also need a clear requirement for information to be obtained on people with parental and primary care responsibilities who receive a custodial sentence, and on their children.
My third point is not covered in the Bill either, but I think it should be. On 22 February I raised at Question Time the issue of food-related crime. This essentially relates to the need to allow the food crime unit at the Food Standards Agency to operate against organised crime, without its hands tied behind its back. The powers under PACE should be given to the unit. The National Police Chiefs Council agrees to this. It would remove a burden from the police, who admit that they have never given food crime a high priority.
It has been announced today that we are going to carry on allowing food to come into the country without any checks for another six months, and maybe a year. This is a multi-billion pound industry, and the scope for criminals, and for organised crime, is enormous. This Bill seems an ideal place to make this change. Why was it not included?
My final point relates to the Minister. In the past 18 months, while we have been in this very difficult situation, her stock has risen considerably in this House. She is now in a very strong position to go back to the Home Secretary and spell out exactly what the views of this House are, and why they should be recognised.
Lord Walney (Non-Afl)
My Lords, the measures relating to protest and public order in Part 3 of the Bill are of interest to the wider review that I have been asked to undertake for the Government in my role as their independent adviser on political violence and disruption. I am consulting widely on that review, analysing a call for evidence at present, and undertaking measures to understand the public’s wider views on the issues of political violence and the balance with freedom of speech. I am also listening carefully to your Lordships’ views as expressed today, and, no doubt, through Committee. I do not intend to pre-empt the review, which will be handed in shortly and, I hope, published soon after that, but I will make just one general point on this issue.
My observation is on the relative absence from this discussion of the primacy of Britain’s democratic process, of which, of course, the other place in particular—this House is a revising Chamber—is a central part. It is also about the potential for physical acts of disruption, which could be described as physical force in one form or another, to run counter to the expression of public will through the ballot box, or for making your views known in non-physical ways.
I listened carefully to what the noble Lord, Lord Oates, who is not now in his place, evocatively described when he was talking about climate change. Indeed, I spoke to representatives of Extinction Rebellion as part of the review. The fragility of the democratic process to be able to enact what growing numbers believe is needed—indeed, there is now scientific consensus—should surely be deeply troubling to all of us. One point that I put to the members of Extinction Rebellion on the Zoom call was that the problem might not be the lack of sufficient channels, or the fact that the channels had been corrupted by terrible capitalism or vested interests. I said that the problem might be that the public might not be willing to enact the measures that the XR members—and indeed, increasingly myself, and many of us in this House—believe are necessary. That is a huge tension within our democracy, but it is not necessarily solved by ever more disruptive protests.
Part of my review is taking the public’s views, and noble Lords may not be surprised—certainly, those who have been in the other place and listened to our constituents talking about such measures will not be surprised—by the kind of views that the public have on such matters.
I shall devote the rest of my time to something that has been raised effectively by a number of noble Lords: the need for stronger measures to tackle the scourge of domestic abuse that is wrecking—and indeed taking—so many lives in this country. As others have said, Nicole Jacobs, the Domestic Abuse Commissioner for England and Wales, is surely right to say that the vital progress the Government are securing in the Domestic Abuse Act, and the strategy on violence against women, will be undermined if the proposed serious violence prevention duty in Part 2 of the Bill does not explicitly include domestic homicide, domestic abuse and sexual violence.
The Government appear to wish to give local police forces the flexibility to include these matters explicitly in their own strategies. However, it is unclear to me, as it is to the noble Baroness, Lady Greengross, what case any force could make for not making the prevention of serious violence a central part of its duty, given the grim annual toll of women’s lives taken by their partners, and the other violence committed by those partners. If we cannot make that case, surely the amendment that the noble Baroness, Lady Bertin, and others will be tabling should be seriously considered by the Government.
Lord Beith (LD)
My Lords, there are some valuable things in the Bill but they are dwarfed by things that really should not be in it. Parts of the Bill are dangerous to our civil liberties while other substantial parts add nothing useful to existing law.
I shall concentrate on just four points. To start with, there is the sheer extent of the Bill, which has been referred to. As a former member of the Constitution Committee, I am enthusiastic about its report pointing out that Bills of this size and complexity impede proper legislative scrutiny by Parliament.
Secondly, the Bill makes bad law. Take the deeply objectionable attempt to reduce rights to protest, in apparent defiance of the European Convention on Human Rights. This gives enormous subjective discretion to police officers—who, so far as I am aware, have not asked for that kind of subjective role—and introduces the concept of “unease” in relation to noise, in the wording
“persons of reasonable firmness … may … suffer serious unease”.
I like to think that I am a person of reasonable firmness and indeed I am caused serious unease by loud noise in shops, restaurants and various places, but it does not usually represent a reason why someone else’s civil liberties should be seriously abrogated. In this context, we really have to avoid such badly worded legislation.
Thirdly, I turn to the Delegated Powers Committee, which the noble Lord, Lord Blencathra, has spoken about. The committee says in its report:
“We are surprised and concerned at the large number of inappropriate delegations of power in this Bill.”
There is the accretion of ministerial power to rule by statutory instrument. The Secretary of State will have power by regulation to prescribe what constitutes “serious disruption”, in Clause 55, and will have the Henry VIII power to alter the meaning of “qualified homicide” and to amend this Act accordingly. The extraction of confidential information from telephones is inappropriately left to regulations that, in the view of the committee, should be in the Bill itself and therefore amendable. The committee also pointed out that the Bill will
“allow the imposition of statutory duties via the novel concept of ‘strategy’ documents”
that in some cases may not even be published at all. There are also the usual wide powers of consequential amendment by regulation, which currently seem to be slipped into many Bills as standard.
Then there is the direct and indirect effect of the Bill’s sentencing provisions and the wider sentence-inflation effect that they, and the rhetoric of longer sentences, will produce. The impact assessment reckons that there will be 700 more prisoners, with 300 new prison places immediately required. Paragraph 43 speaks of
“a risk of having offenders spend longer in prison and a larger population may compound overcrowding (if there is not enough prison capacity), while reducing access to rehabilitative resources and increasing instability, self-harm and violence”.
We have seen that happening in prisons, and if we have 700 more prisoners it will get worse.
Measures to bring about longer sentences are wide in their effects because it is not merely about the inclusion of a long sentence for a particular offence; it is all the campaigns that then follow, saying that the sentence for something else is not enough—“That’s all you get for stealing someone’s pet rabbit”, for example—that could happen if the Government go ahead with this suggested amendment. There is a knock-on effect, and it affects the judiciary. There is no escaping the fact that long periods when much is talked about longer sentences have an effect on what judges do in sentence determination.
This move to longer sentences is a major reallocation of resources, unsupported by any evidence that it is the most effective way to keep the public safe either by deterrence or by rehabilitation during custody. These are resources that are desperately needed to fight crime and tackle the problems that lead people into crime in the first place. It really is time that we corrected this trend.
Lord Sandhurst (Con) (Maiden Speech)
My Lords, it is an honour to speak in your Lordships’ House for the first time and to do so in support of this Bill, introduced by the noble Baroness, Lady Williams of Trafford. I am grateful for the kind words of the noble and learned Lord, Lord Garnier, and the noble Lords, Lord Bach and Lord Davies of Gower.
When I succeeded my father in 2002, I never in my dreams expected that I would take my seat as I thought we would no longer be here, but here I am—and after a contested election, if not the sort of election that some reformers might endorse. May I begin by saying how welcome everyone here has made me feel? I have received great support from the staff of this House, not least in the Library and at the digital drop-in, and of course from the doorkeepers.
I hope the House will forgive me if I say a little about myself. After Oxford I went to the Bar. I practised under my family name as Guy Mansfield. I was not the first barrister in my family; that was one James Mansfield. In 1772 he, with others, by habeas corpus, secured the liberty of Somerset the slave before the great Lord Mansfield—no relation. James was later Solicitor-General and Chief Justice of Common Pleas. His grandson William was not a lawyer. He went into the Army, was a distinguished soldier and reached the rank of full general. William Gladstone made him a Peer and he took the title “Sandhurst”.
My great-grandfather practised a little at the Chancery Bar. My grandfather and father both aspired to be lawyers but two world wars intervened. They both served with distinction and were lucky to survive, but they did not go back to the law afterwards,
My early practice covered a wide field, like many in my time: crime, civil and family, and a range of courts. I acted for clients from all backgrounds. I was lucky in my first two years to share a room in chambers with the future noble and learned Lord, Lord Woolf, who was a great exemplar.
Life was often quite tricky. I was not always very good. My wife, who is not a lawyer, came once to watch me give a plea in mitigation. Ever the kind but critical friend, she said: “Had you nothing better to say?”
Some years later I went off to represent a district council in a planning inquiry. It was my first such, so I had never been to or seen one. I was greeted rather breathlessly by the planning officer, who said: “Oh, Mr Mansfield, this is my first inquiry. I’m so glad you’re here to show me the ropes.” I kept my counsel, we survived and we were successful.
In 1994 I took Silk. I also became a recorder and later a deputy High Court judge. The 1990s were a time of great change for the Bar. It had to respond to High Court advocacy rights for solicitors and to the introduction of conditional fees. At that time I chaired two Bar committees in succession that had to address these. Next we had the competition inquiry into the legal professions. As a result of that, I chaired the working party that introduced direct access so that people did not have to go through a solicitor to see a barrister. In 2005 I became chairman of the Bar. On my doorstep was the Clementi report, which wanted to introduce widespread change in the regulation of the legal professions. I am proud that in that year we on the Bar Council created a new constitution in the space of the year that took effect from 1 January 2006 with a new separate and independent regulator, the Bar Standards Board, under a lay chair. I think that was a big achievement.
I returned to practice. In 2009 I chaired another working party, in response to Sir Rupert Jackson’s inquiry into costs in civil cases, to look at something called a contingent legal aid fund. We came to the conclusion that the Government should look at such a fund, which would be a privately funded not-for-profit scheme to fund civil litigation. Sadly, it went into the long grass, where it remains. That is not for today but we must do more to support access to justice in the civil and family courts.
In 2012 I took over leading the Foreign and Commonwealth Office’s legal team defending claims by 40,000 Kenyans for damages for alleged assaults in Kenya during the Mau Mau insurrection. That trial lasted for 232 court days and was far and away the most complex thing that I have ever done. When it finished in 2018, I thought, “That’s it.” I retired and looked for a change of direction—so here I am. I feel greatly privileged to have been elected. I hope my background shows areas where I might be able to contribute, but I will wish to contribute on a wider canvas too.
Turning to the Bill, which I shall deal with quite shortly, I have looked at it not only with the eyes of one who sat in the Crown Court as a recorder but as a member of the public who lives in this great city and travels on public transport, like everyone else. I am conscious that the Bill has created controversy and that some parts are not necessarily easy, but I suggest that its broad principles are correct. Today, I shall focus on just three of its provisions.
First, there are the provisions to protect emergency workers. My daughter is a consultant in the NHS. She works on the wards and has told me, quite a lot of times, of incidents of assault—not just in A&E but actually on the wards. Doctors and nurses deserve protection. Secondly, I commend the provisions to make different local bodies work together to prevent serious violence. That must be wise. Thirdly, I identify the provisions for the extraction of information from electronic devices. I say nothing about possible improvements by amendment; the principle is sound. I commend the Bill to the House.
Lord Young of Cookham (Con)
My Lords, it is a pleasure to follow my noble friend Lord Sandhurst and be the first to congratulate him on his maiden speech. As he said, he is better known outside as Guy Mansfield QC—an outstanding barrister—and there was a rustle of silk from his learned friends as they came into the Chamber to hear him.
As my noble friend said, he is a former chairman of the Bar Council and a deputy High Court judge. As head of research at the Society of Conservative Lawyers, he has campaigned for better provision of legal aid in the civil and family courts, writing that
“every man is equal before the law, but he has got to get before the law before he can attain that equality.”
He is also a prominent member of Justice, the human rights charity, focusing on those who have been marginalised by society. Of particular interest to your Lordships are his recent papers on the inadequacy of the Government’s drafting of Covid regulations and the oral evidence he gave to your Lordships’ Constitution Committee on access to personal data—both relevant to the Bill before us.
I first encountered my noble friend’s powers of advocacy during the 2019 general election, when we were both canvassing on the pavements of Putney. As it happened, that was one of two seats which my party lost—but entirely my fault and not his. Those powers of persuasion will now be put to use in the calmer atmosphere of your Lordships’ House, where his professional skills will help us improve this Bill and others. He is warmly welcomed, and I hope he will defend me against the Whips if my speech now lasts more than five minutes.
I want to intervene briefly to support the noble Lord, Lord Best, who will table an amendment to repeal the Vagrancy Act, and my noble friend Lady Bertin, who will table an amendment on domestic violence and access to housing. I make a related plea in support of Stella Creasy’s campaign on behalf of children subjected to gang-related violence.
Eighteen months ago, during Oral Questions, I asked about the Vagrancy Act, making the point:
“It has the unfortunate consequence of criminalising rough sleepers, by bringing them before the courts. This isolates them from the support that the Government are funding through housing and employment. As it approaches its bicentenary, should this Act not be repealed?”.—[Official Report, 23/1/20; col. 1152.]
I raised the matter again in April, pointing out that attitudes to those who sleep rough have softened over the last 200 years, and that provisions that refer to “idle and disorderly” “rogues” and “vagabonds” living in “coach-houses” and “stables” have no place in modern legislation. The Government’s review of the Act was commissioned in August 2018 and was meant to be concluded by March of last year. When I asked about progress last April, the answer, in a phrase often used at the Dispatch Box, was “in due course”. But given the statement by the Secretary of State, Robert Jenrick, repeal should not now be controversial, accompanied by amendments if necessary to give the police and others the powers they actually need to deal with vagrancy and aggressive behaviour. I hope that when she winds up, the Minister can say that an amendment tabled by the noble Lord, Lord Best, will have government support.
On domestic violence and access to housing, again, I hope we are pushing at an open door. Along with other noble Lords, last Thursday I tuned in to a webinar hosted by the Domestic Abuse Commissioner, with contributions from the police and crime commissioner from Nottingham, the deputy mayor in London and a courageous victim of domestic abuse who is now a police officer. What struck me in coming relatively new to this subject was, first, the unanimous praise for the action the Government have already taken in this field with legislation, with the 2018 Serious Violence Strategy and with the introduction of violence reduction units; and, secondly, the narrowness of the gap between what is already in legislation and the amendment to be tabled by my noble friend.
While the Government want flexibility of local response, the reformers want a clear statement of priorities through a small but important extension of the definition of domestic abuse. As I understand it, where the guidance says “could consider”, we want “must consider”. Is it worth sacrificing the good will and progress already made by falling out over this, particularly as the Domestic Abuse Commissioner told us that the Policing Minister is supportive?
In passing, I was concerned to hear that women’s refuges refuse to take boys over 10, meaning that one family had to return to the home of the perpetrator, and that the pattern of domestic violence is changing, with a growing number of assaults by children on adults.
Finally, I say a quick word on behalf of Stella Creasy’s campaign. Too many young people, including children as young as 14, are being murdered as a result of being groomed by criminal gangs in their neighbourhood. The common factor in these cases is the need for families, or in some cases just young people on their own, to be urgently moved to a suitable place, remote from the gang activity. But too often the mothers’ desperate pleas are not taken seriously enough. Again, the gap is a narrow one. The Government say these vulnerable people may be able to access priority housing under existing legislation but that they have first to demonstrate further vulnerability, such as a mental health condition. We think that hurdle should be removed, and I hope to add a bauble to this Christmas tree in Committee, further improving what is already an excellent Bill.
Baroness Grey-Thompson (CB)
My Lords, I draw your attention to my entry in the register of interests. In this Second Reading, I shall speak to just one clause: Clause 45, which seeks to include sport under “Positions of trust”. There is some further clarification required as to the scope of inclusion and the measurement of data but, as the Minister suggested, I strongly support its inclusion. The majority of people I speak to are surprised that it is not already included. After all, teachers are, and arguably they have less power over their pupils’ lives than, say, a coach, whether employed or a volunteer.
I have been privileged in my time in sport to have met many amazing people who go above and beyond, and who care and protect the people they support. However, over the years I have been told by too many people that such a clause is not required. This is certainly not about criminalising a 19 year-old, who is perhaps a coach in a local club, and a 17 year-old. However, we must recognise that, in sport, as in all cross-sections of society and occupations, there are some people who will use their position, young peoples’ hopes and dreams, friendship circles and a feeling of belonging to overstep the mark.
Clause 45 lays a marker in the sand. It says that there is no place in sport for someone who has perhaps coached a young person since the age of 11 and then turns up on their doorstep on their 16th birthday asking for a date. There is no place in sport for the person who says to a 16 to 18 year-old that if they want to make the team, there is only one thing that they need to do—and they do not mean an extra training session.
The defence given too many times for this behaviour is, “They are good at what they do. They are a good coach.” I reiterate: they are “good at what they do”. There is not a chart that says to a coach or a supporter, “If you achieve x, you get to sexually harass; if you achieve x+2, you can stalk; and if you achieve x+4, you can be in a sexual relationship with a 16 to 18 year-old.” What if you achieve x+6? What can you then do to a young person? This is not someone who is good at what they do—they are a predator.
I would like to thank the Ministry of Justice and the Secretary of State, the right honourable Robert Buckland, for listening to the many cases put forward. I also thank the honourable Sarah Champion MP, who has campaigned for years, as well as the honourable Tracey Crouch MP, and the many other people who have supported this. Sport can be amazing and hugely positive, and most of the time it is. It can be a great frame of reference and lived experience—there are so many benefits for young people—but it can also ask a lot of young people as they develop into adulthood. As the NSPCC has said:
“These benefits should not come at the price of exposing children to a risk of being groomed, exploited or manipulated by those adults who they look to for leadership, guidance and support.”
Clause 45 is essential to protect the reputation of coaching and those who support young people, and, not least, the 16 to 18 year-olds who just want to be involved in sport and activity.
Baroness Chakrabarti (Lab)
My Lords, I begin by adding my fulsome welcome and congratulations to the noble Lord, Lord Sandhurst. His expertise and lengthy public service speak for themselves. I hope he will forgive me for saying that he is one of the kindest lawyers I have met, at a time when kindness is perhaps in short supply in public discourse. I am sure that he will be a huge asset, not just to the Benches opposite but to your Lordships’ House.
This Christmas tree Bill, with significant ambitions and implications for the rule of law, was railroaded through the other place with unseemly speed. So I hope that, with the breadth of expertise in your Lordships’ House, we will give each of its clauses an extremely anxious scrutiny in the weeks and months ahead. I am completely with the noble and learned Lord, Lord Brown, and my noble friend Lord Blunkett on the need to deal with indefinite detention, and with so many other persuasive arguments that have been made around the Chamber. However, I shall use my too-short time today to touch briefly, perhaps predictably, on Parts 3 and 4, which, in my view and that of so many others, violate fundamental rights and freedoms, and threaten our democracy itself.
A hallmark of many authoritarian Governments is the perverse contrast between a light and cosy touch in relation to the activities of the super-wealthy and powerful in society on the one hand and a clampdown on non-violent—I repeat, non-violent—dissent and cultural difference on the other. As the right honourable Member of Parliament for Maidenhead said at Second Reading in the other place:
“It is tempting when Home Secretary to think that giving powers to the Home Secretary is very reasonable, because we all think we are reasonable, but future Home Secretaries may not be so reasonable.”
She went on to say she would
“urge the Government to consider carefully the need to walk a fine line between being popular and populist. Our freedoms depend on it.”—[Official Report, Commons, 15/3/21; col. 78.]
Goodness me—if only we could vaccinate Home Secretaries before they took office rather than waiting for an immunity from authoritarian instincts that may come afterwards.
The parts of the Bill to which the former Prime Minister was referring have not been significantly amended since those comments. I suggest, along with others from whom we have already heard, that Parts 3 and 4 do not walk her suggested fine line against authoritarian populism; they scrub that line virtually out of existence. Non-violent—I repeat, non-violent, which is what Part 3 is about—on-street assembly and dissent is as much a fundamental freedom, including under the convention on human rights, as voting in fair and regular elections. Indeed, the franchise was not won for most ordinary people in this country, less than a hundred years ago, without a great deal of just the kind of protest that would be criminalised by this Bill, which will be added to an already crowded statute book of broad public order powers ripe for use and misuse by accident or design against noisy, impactful or disruptive protest—as defined by the Home Secretary, for many years to come. Goodness me, will the Home Secretary not become, perhaps not Henry VIII but Henrietta I?
While some noble Lords have expressed their concerns about counterproductive protest tactics, I have concerns about our counterproductive responses, at a time when the BBC has just this afternoon broken the story of a report that demonstrates that an overwhelming majority of young people are hugely concerned about climate catastrophe, to the point where it is affecting their mental health.
While Part 3 jeopardises the freedoms of everyone, Part 4 deliberately and maliciously targets one of the smallest, most vulnerable and even demonised minorities in our nations. I congratulate my noble friend Lady Whitaker for her tour de force today, but also for so many years of advocacy in defence of that community. To be clear, Part 4 is reminiscent to me of the infamous treatment of the east African Asians, who were rendered second-class citizens by euphemistic legislation—in that case, the Commonwealth Immigrants Act 1962— which was none the less obviously focused on them. It criminalises the Travelling way of life and creates a crime of “intending to reside” on land without consent when, as we have heard, there is inadequate land provision for these communities and already plenty of—and too much—civil and criminal law used against them.
I hope noble Lords will forgive me but, in my humble opinion, it is just as racist to target the nomadic lifestyle as it would be to single out the special food, dress, language or prayers or any other group. These illiberal provisions, in particular, violate fundamental rights and freedoms and pour lighter fuel on the so-called culture wars. I look to my noble friends, noble and learned friends, other friends, and noble Lords across the House to demonstrate the principle and courage required to defeat them—otherwise, I do not know what we are for.
The Lord Bishop of Blackburn
My Lords, I offer to the noble Lord, Lord Sandhurst, my congratulations on his maiden speech. We are glad to welcome him to this House.
With so many words in this wedge of a Bill, it is easy to forget that we are talking about people—as someone said earlier, real people—and the potential consequences for real lives. There is a huge responsibility, therefore, to get these details right, for both the police and the public. The noble Baroness, Lady Chakrabarti, is right, that deep scrutiny is needed here in this House. An example of the wide range of the Bill and the important but almost impossible nature of covering all of its detail is that, although my friend the right reverend Prelate the Bishop of St Albans is unable to attend today’s proceedings, he has asked me to relay his intention to amend the Bill in Committee, to strengthen the ability of the police to deal with the issue of hare coursing. That is something to look forward to.
My main point—and noble Lords might expect me to spot and say this—is that there is an absence of almost any reference to the work of faith communities in several key areas in the Bill. Despite the differences between different faith bodies, this huge army of volunteers is present and active in nearly all communities. One good example is in Part 2, Chapter 1, where there is a consultation on plans to prevent and reduce serious violence, and consultation with education, prison and youth custody authorities. There is no mention of the faith communities that have a particularly good local source of knowledge and experience on the ground. Again, in Chapter 2 of that part, in the homicide review, members of the faith sector may have been intimately involved in issues leading up to that event, and will almost definitely have been caught up in the support and care for family members thereafter, when they conduct a funeral or other bereavement care. The same point applies, for the need of a reference to the faith community, regarding the rehabilitation of offenders, the referral of offenders, the remand of young people and the management of sex offenders. Massive investment is made by all faith communities and specific charities in serving the people most affected by the Bill. That ought to be recognised and included, as was referred to by the noble Lord, Lord Rooker.
I have two different points to make on Part 4, in support of the noble Baroness, Lady Whitaker. I cannot see why it is necessary to include Clause 62(1)(3) and the mention of those residing on land not their own not returning for 12 months. That implies that they could return in 12 months. That clause should be removed. Clause 63 needs to include a reassurance that if the court requires the forfeit of a vehicle and possessions, the people and families who live in those homes are not losing their home. This aspect of the Bill should not remove the homes of the Traveller and Roma community, but simply ensure they are on land appropriate for their use.
Finally, I have three questions on Part 1, in support of the noble Lord, Lord Davies of Gower. I support the idea of a police covenant report on the well-being of our much-valued police force, but does the Secretary of State have the resources to gather the material each year? Is an annual report far too frequent? If it is annual, it will be a permanent, rolling piece of work. As soon as one report is finished, work will have to start on the next. Is it possible to compare our unique police force with other professional bodies, and use that comparison as a criterion for assessment? There must be a better way of assessing the information. Ought there not be a call for more than a report? We are so good at producing piles of paper that get received and approved but then lead to little action. I would include a requirement in this report, prescribed by the Bill, for the Secretary of State to produce a series of recommendations that improve the conditions and well-being of the police and their families. We need to do more than simply know how they are.
Baroness Miller of Chilthorne Domer (LD)
My Lords, I congratulate the noble Lord, Lord Sandhurst, and I look forward to hearing many more of his contributions to this House.
I want to talk about Parts 3 and 4 of the Bill. On Part 4, it is my experience, some years ago as a councillor in Somerset, providing and maintaining sites for Gypsies and Travellers, that leads me to realise what an utter disgrace this part is. The Minister said in opening that this was in the Conservative manifesto, and so it was. It was a dog whistle that really builds on social anxieties to garner votes, and that is about as low as it gets. It also demands the impossible. It reminds me of the ill-guided bedroom tax legislation, because that demanded that people move to smaller houses when there were no smaller houses for them to move to. This is the same: it demands that people solve a situation where there are no sites available for them. It is just inadequate provision. Really, the Government need to rethink this entire part and get rid of this part entirely.
I was interested in the well-meant speech by the noble Baroness, Lady Stowell, on Part 3, which I now turn to. It put me in mind of a quote from the author John Grisham, who said:
“Privileged people don’t march and protest; their world is safe and clean and governed by laws designed to keep them happy.”
Of course, the noble Baroness, Lady Chakrabarti, reminded us about the suffragettes. Women would not have the vote had they not been marching, protesting and disrupting life around Parliament tremendously. I believe that street protest is a fundamental protection that people have when those in power get it wrong, at not only a national but a local level. We have barely mentioned the local level this afternoon, but that is equally important. Feet on the street is a way of protecting your local playing field or library when they are threatened with closure. This country has rightly deplored regimes that criminalise dissent and discourage protest with threats of jail. Yet here we are, in this part, looking at doing just those things. To be noticed, dissent cannot be silent; it is likely to be disruptive and upsetting. I remember protesting once with the charity Baby Milk Action. We had a small white coffin on the high street in Yeovil, and it did upset passers-by but they were really interested in why we had a coffin there. If this Bill had been in place, I expect we would have been charged with upsetting the local population.
Part 3 of the Bill as it stands would have a very chilling effect on protest, because the proposed crime of serious annoyance carries a big sentence. As others have eloquently said, it is just not adequate to leave the Home Secretary to define that part. When looking at Part 3, I ask myself why it is in the Bill at all. I think it is there because the Government have realised, and Boris Johnson in particular has realised, just how many howls of protest there will be when the current Conservative proposals come into being, in communities in towns and villages that will be excluded from planning decisions under the planning Bill, and from thousands of people as the Government fail on climate change measures, such as the appalling collapse of the Green Homes policy. The Minister condemned some of the Extinction Rebellion actions yesterday. The name of their campaign was Insulate Britain, and that is a direct result of the Government ratting on the Green Homes policy.
In conclusion, do the Government really believe that those who voice their concerns loudly should suffer for life? That is exactly what will happen if they have a criminal record. Algorithms check whether you have a criminal record. It will be impossible for you to get a job interview, to rent a house or to get a visa for the United States. Life will be a series of no, no, no. As this Bill stands, if you care about your future, you cannot afford to go on marches or attend protests. But if you care about the future, you really cannot afford not to do those things. You have to try to protect the things you see as under threat, whether it is the whole planet or your local sports field. Our job is to make sure that that is still possible.
Baroness Bertin (Con)
My Lords, I too welcome the noble Lord, Lord Sandhurst, to this House. I am sure he will make a great contribution.
With only five minutes, I will be very specific and speak on Clause 12 in Part 2. Happily, many other noble Lords have also raised this as an area of concern, and I am very grateful to them. As all those in government discover fairly quickly, it is not that easy to make a lasting difference, even when you have all the levers of power at your disposal. Yet in this vast but important legislation there is a chance to do exactly that. This comes in the form of the Bill’s new serious violence prevention duty, which, as we have heard, will require a range of public bodies such as the police, health and probation to work together to prevent serious violence—something I wholeheartedly support and think is long overdue. It will empower those professionals who can intervene before a crime takes place, rather than relying on the criminal justice system, which often steps in far too late. However, as others have already flagged up, the definition of serious violence for the purpose of this duty does not explicitly include domestic abuse or sexual violence. I think this is a mistake and a missed opportunity.
Let us just remind ourselves that domestic abuse and sexual violence are among the most prevalent forms of serious violence. More than one-third of all violence recorded by the police is domestic abuse-related, and it is the most common type of violence to be experienced on a repeated basis. Nearly half of all female homicides are domestic homicides. Despite this, as we have heard, charging, prosecutions and convictions have fallen significantly in recent years for both rape and domestic abuse, something we know the Government say they are determined to reverse. So, on one hand, the Bill does the right thing when it comes to the punishment of sex crimes, but it potentially throws away the chance to prevent or reduce them in the first place.
As the Bill stands, it will be up to local areas to decide whether they want to include domestic abuse and sexual violence in this new duty and these new prevention strategies. Of course, this sounds perfectly reasonable on paper, the argument being that local areas must have the flexibility to shape their strategies to fit their local crime profile. However, there is plenty of evidence, as this House will know, to suggest that domestic abuse and sexual violence are ubiquitous across the country. There are no hot spots; it happens everywhere. There is even more evidence to show that some areas consistently fall short in their commitment toward these crimes. I am therefore far from convinced that without explicitly including domestic abuse and sexual violence in the legislation we will achieve the change anywhere near quickly enough. There are many policies where localism works, but this issue is national, and is one where we are constantly playing catch-up.
Another big problem with this omission is that much of the proposed guidance around this new duty refers back to the Government’s serious violence strategy, which itself does not include domestic abuse and sexual abuse as “serious violence”. This has always been a concern, but now may have a very real knock-on impact on the way local boards interpret the scope of this duty. Last week I heard from two fantastic violence reduction units, in London and Nottingham—the ones my noble friend Lord Young referred to—which are doing incredible work to prevent domestic abuse and sexual violence, but they are the exception. In fact, only eight of the 18 violence reduction units, which are considered a forerunner to the new serious violence prevention duty, consider domestic abuse and sexual violence in their plans to prevent serious violence. There is still a persistence in culture across many police forces, and the criminal justice system generally, that crimes committed at home by an intimate partner are somehow less serious than crimes committed outside by a stranger.
As we know, earlier this year the Government published the Domestic Abuse Act, which provides an important legislative underpinning for the provision of support for victims of domestic abuse, as well as legislating for a raft of new criminal offences. By publishing a new Tackling Violence Against Women and Girls Strategy soon after, the Government have deepened their commitment to the issue. This Bill should and could be the perfect dovetail and complement to this work, but those ambitions will be fulfilled only if we pursue a more holistic approach to preventing, reducing and ultimately ending these crimes for good. The Bill before us provides the chance for the transformational change we need, by legislating for a pre-emptive, public health-focused approach. I call on noble Lords and the Government to support my proposed amendment to therefore include domestic abuse and sexual violence on the face of this important legislation. We have a lever of change before us and we must use it.
Lord Best (CB)
My Lords, this Bill presents your Lordships with an opportunity to right a long-standing wrong and introduce a modest legislative change that is long overdue: it is our chance to repeal the cruel and unnecessary Vagrancy Act 1824, which makes rough sleeping a criminal offence.
The Vagrancy Act is a leftover from a long-past era. It was originally enacted in response to public disquiet over the numbers of destitute and often wounded demobbed soldiers returning from the Napoleonic wars. Even then, there was much opposition in Parliament, not least from William Wilberforce, to the notion of punishing people for being homeless. Today, it serves no useful purpose but instead has negative consequences: by casting the street homeless as criminals, the Act inhibits the referral of those sleeping rough to the services that can address their needs; it places a burden of enforcement on the police service when the issue is really one for community and social services; and it discourages homeless people themselves from seeking support, for fear of prosecution. Those convicted under the Act are landed with a fine of up to £1,000 and a criminal record, neither of which serves any purpose in helping people recover from homelessness.
There is a separate issue of aggressive begging and anti-social behaviour, for which the police need to retain some existing powers, and the amendment to be proposed when we reach that stage would repeal the Vagrancy Act. This amendment, devised by the homelessness charity Crisis and backed by a consortium of 50 knowledgeable bodies, ensures that this balance is maintained. Repealing this 200 year-old Act is supported by distinguished senior police figures, such as a colleague on the Cross Benches, my noble friend Lord Hogan-Howe, who says:
“Frontline police are called upon to make judgment calls about vulnerable people who are living on the streets … every day. There is a lot of pressure to act on issues like rough sleeping and begging … The Vagrancy Act implies it is the responsibility of the police primarily to respond to these issues, but that is a view firmly rooted in 1824. Nowadays, we know that multi-agency support and the employment of frontline outreach services can make a huge difference.”
Moreover, my noble friend adds that while the Vagrancy Act remains, homeless people are actively discouraged from engaging with the law, even when they are victims of dreadful violence and abuse, and he concludes:
“This does not help anyone”.
Support for repealing the Act comes not only from those grappling with its consequences on the front line but from policymakers across the political spectrum. The MPs speaking in the Westminster Hall debate last April led by Nickie Aiken, Member for the Cities of London and Westminster, represented all parties and different areas of the country. They included Bob Blackman, the instigator of the important and successful Homelessness Reduction Act 2017, which I had the privilege of piloting through your Lordships’ House; Layla Moran, Oxford West and Abingdon, who has campaigned on this issue for many years; and Mike Amesbury, Weaver Vale, from Labour’s Front Bench, all unanimously supporting the Act’s abolition. The Minister in the other place, Eddie Hughes, noted the statement of Robert Jenrick, the Secretary of State, that it was legislation
“whose time has been and gone … the Act itself, I think, should be consigned to history.”—[Official Report, Commons, 13/4/21; col. 44WH.]
Taking this opportunity to repeal the Vagrancy Act now will surely strengthen the Government’s rough sleeping strategy and their laudable target of eliminating rough sleeping by 2024. It is our good fortune that a legislative opportunity has now emerged, in the form of the Bill before us today, which can finally resolve this matter. I know an amendment to repeal the pernicious and counterproductive legislation of 1824 will be strongly supported in this House, as witnessed by the supportive contributions of the noble Lord, Lord Young of Cookham, and the noble and learned Lord, Lord Falconer. Perhaps that means that the Government will be able to tell us today that they will, in principle, be supportive of this change.
Lord Dubs (Lab)
My Lords, I welcome the chance to contribute to this debate. I welcome the noble Lord, Lord Sandhurst. I did not actually notice him in Putney. I spent a lot of time canvassing in Putney; perhaps we were in different parts of the constituency. Anyway, it was a good result for us, so I can boast about that.
Perhaps I should also say—I do not know whether I am going to boast or confess—that I am trying to think of how many demos and events like that I have been on. It is quite a large number. I think the first one I went to was a demonstration against apartheid around South Africa House and the most recent was in Parliament Square on behalf of refugees. I may have been on the wrong side of this new legislation, if it goes through unamended, on a number of occasions, just simply by demonstrating for causes which I believed in, and often with a lot of noise. We often shouted on demos, because that is what one does on a demo—that is the way demos work. However, enough of that.
I am privileged to be on the Joint Committee on Human Rights, and we have had a look at this Bill. I would like to talk about some aspects of the Bill based on the work of the committee, particularly public order and the criminalisation of unauthorised encampments, and to say a brief word about the children of mothers in prison.
We must surely protect the right to peaceful protest. We must accept that crime is best tackled when there is co-operation between the police and local communities, and we must never put the police in an impossible position by asking them to enforce a law which works against the right to peaceful protest. Surely that puts the police against local communities, which is the last thing we want to happen. The right to peaceful protest is fundamental. We have seen what happens in countries where peaceful protest rights are denied, most recently in Hong Kong, Belarus and Afghanistan. I do not want those countries to look at us and say that we are taking a leaf out of their behaviour. So we must be concerned about a power that would allow the police to move the location of a demonstration, limit its numbers or duration, or even try to limit the noise. The police already have powers to ensure that demos are lawful and safe. They do not need these extra powers relating to “intensity” or “serious unease”.
These powers could make it difficult for organisers of demos; they will not know how many people are going to join them. If one is on a demo, one does not know how many thousands of people will be there and how they will behave. The organisers of the demo surely cannot be responsible for that. So these conditions will represent a restriction on the right to protest that is not necessary or justified in a democratic society. On protests around Parliament, while it is right that parliamentarians must have free access to Parliament, we do not want Parliament Square to become what I think somebody called a “dissent-free zone”. The noise factor seems to have been drafted by people who have never seen a demo—or been on one.
As for one-person protests, I just cannot believe this can be part of the Bill. One-person protests, somebody standing there—good gracious me. There used to be a man who demonstrated against tobacco. I saw him everywhere: one chap waving a little placard.
What worries me about the Bill is that so many of the powers are given to the Government by regulation. Surely these should be defined in the Bill itself. It is not right that Ministers can be given such enormous powers and we do not even know what they are. If they cannot be on the face of the Bill, at the very least the regulations should be published so that Parliament and the JCHR can consider them before scrutiny of the Bill has been completed.
Then of course there is a lack of information about conditions attached to demos which makes it harder to judge the effectiveness of existing laws. We should also make sure that conditions imposed at protests are recorded and collected so we can see what has been applied.
I turn briefly to the criminalisation of unauthorised encampments. Václav Havel, one of my heroes, said that the litmus test of a civil society is the way it treats its Gypsy, Roma and Traveller communities. That is absolutely crucial. I do not think the Government should use the criminal law to address what is essentially a planning issue; instead, there should be a statutory duty on local authorities to make adequate site provision for Traveller communities. The idea of seizing a Traveller’s vehicle—which is essentially their home—is just appalling.
My noble friend Lord Rooker referred to another important issue: what happens to families where the mother is put in prison and the children are left? As the human rights committee said, the Government still do not know how many mothers of dependent children are in prison. There should surely be a requirement that what will happen in a family if the mother is put in prison is taken into account.
I will leave everything else—except to say to the Minister that she is going to have a jolly tough time in Committee and on Report.
Lord German (LD)
My Lords, I will touch on two issues in this Bill which have not yet been discussed, but I refer first to the Christmas tree on which it stands. Noble Lords will know that, among the baubles on the Christmas tree, some are distinctly ugly, some are out of place, some fall on the floor and get broken, and some are the wrong size. What is worse with this Bill is that the Government are granting themselves the powers to choose many of the baubles, without Parliament knowing their shape, size or intent—such as the definition of “serious disruption” or “qualified homicide”. Noble Lords have been well served by the two reports we have seen coming before us from committees of this House, soon to be followed by a third report from a joint committee on how such Bills should work on a policy approach. I think that report will give arguments which will help the House to deal with the Christmas tree.
The first issue I want to discuss is a devolution matter. Part 2 Chapter 1 of the Bill requires specified authorities to collaborate with each other to produce a strategy for preventing and reducing serious violence in the local authority area. Alongside the justice, prison, police and probation services, what are the bodies that will be required to collaborate? Obviously, they are local authorities, education establishments, health services, social and mental health care, et cetera. The Bill says, for example, that the strategy can specify actions for an educational authority to carry out.
So I raise this question for the Minister today. In Wales, all the services I have listed are within the competence of the Welsh Government. Powers over these areas are not reserved to the UK Government. The UK Government invite the Welsh Government to describe the sort of person they would like to participate in preparing a strategy, and that is all there is on engagement with the Welsh Government. So where are the Government’s powers that they intend to use for engaging the services I have mentioned in Wales? Where is the power to require education establishments in Wales to undertake any actions that they are seeking? Are the Government looking for legislative consent Motions to make this work? What discussions have they already had with Welsh Ministers? If the notion of a local strategy is to have any meaning in Wales, it will have to engage with a wide range of services outside the control of the UK Government. But the Bill says that they will consult Welsh Ministers but will not require their consent. Clarity is needed on this matter. The Government must not ride roughshod over the competence of devolved government. A sensitive approach to devolution is vital if this Government are to have any chance of succeeding in meeting their objectives in Wales.
Logically following this, I want to say a few words on the rehabilitation measures in Parts 7, 8 and 11 of the Bill. The recent reorganisation of the probation service has brought into focus the need for collaboration with a wide range of local services. Unfortunately, while the Government propose a degree of local autonomy on local provision, they fail to provide the financial resource to make genuine joint working possible. Successful rehabilitation requires the support of many services which sit outside justice provision: housing providers, social services, mental health care services, the voluntary sector, employers, training establishments, drug dependency support agencies—the list goes on and on. But all these services require support, some of it financial, to provide the people to meet the extra demands that this Bill will place on them. These local services cannot rely solely on fresh air. If they are not set up properly, they will fail without the resource, and then the Government’s ambitions will fall with them.
Perhaps I am badly considering what the Government are proposing in the Bill. Rehabilitation in the Prime Minister’s eyes seems to be getting offenders to wear hi-vis jackets with “Ex-prisoner” printed on the back and painting the railings of a local park—the modern equivalent of a chain gang. This approach is totally demeaning and doomed to fail. We need a mechanism to bring these services together in a way that promotes joint local action, with the rehabilitation activity foreseen as an end in itself. Apart from coercion and direction, as stated in this Bill, what steps will the Government take to promote co-operation at local level throughout the country? What discussions have the Home Office and Ministry of Justice had with these departments which support the type of work which ensures that vital rehabilitation can succeed?
This Bill will lead to 700 more prisoners in our prisons—overcrowded already, with remand prisoners sharing cells with convicted prisoners. It just will not succeed. This Christmas tree is sagging badly, and it could topple over without much effort.
Lord Moylan (Con)
My Lords, like other noble Lords, I congratulate my noble friend Lord Sandhurst on his maiden speech and welcome him to the House, where I am sure he will make a wonderful contribution.
I welcome much that is in this very large Bill. While I realise that the provisions on protest are controversial, I welcome the clarity they bring on the limits to legitimate protest. As the Deputy Assistant Commissioner of the Metropolitan Police, Matt Twist, has said,
“Whatever the cause, activists do not have the right to cause unreasonable and serious disruption to … communities.”
I agree with that. I personally compare it to secondary picketing: an attempt to disrupt people who are not decision-makers in order to embarrass the true decision-makers. We outlawed secondary picketing, and no one would now bring it back. I think it will be the same in this case.
However, I have three areas of concern that I want to bring to the House’s attention which are united by what I call a theme of preventive justice. There was a movie some years ago in which preventive justice was taken to a point of refinement whereby merely having a thought with a criminal intention resulted in a raid by the police on your premises to ensure that you were unable to put it into execution. I have never thought that a particularly British, commendable or desirable approach to the administration of justice, but it appears to have had a powerful effect on successive Home Secretaries.
Starting in 1998, we had the ASBOs. From that, we have gone on to a whole quiver-full of administrative processes that place restrictions on people without the tedium of having to have a criminal conviction proven. This Bill adds a further arrow to that quiver in the shape of the serious violence reduction order. Other noble Lords have spoken about this. They have also pointed out that, coupled with the proposed statutory duty on public authorities to collaborate in relation to prospective serious violence—that is, to prevent it—these points raise important questions about the character of criminal justice in this country, about how it has evolved and about equalities.
My second concern continues the thread of preventive justice. I find myself in troubling agreement with the noble and learned Lord, Lord Falconer of Thoroton, and certain other noble Lords who have spoken, on the question of indeterminate sentences. Much of what I was going to say has been made otiose by the compelling speech, laden with statistics, made by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, so I do not need to spend a great deal of time on that, but the fact that so many people are still languishing in prison under this cruel sentence, which has been found to be incompatible with our obligations on human rights, is simply a shame to this country. This Bill gives us a useful opportunity to set in hand a judicially led process for turning those sentences into determinate sentences.
Finally, the Bill presents an opportunity—again, it is not in the Bill, but I think it should be—to put an end to police forces’ kafkaesque practice of maintaining records of actions that are explicitly not criminal; that is, the Monty Pythonesque, self-contradictory non-crime hate incident. If there is any defence for this, it is again on the basis of preventive justice: “We want to know these things, because although they are by definition not crimes, there might be a crime some time in the future.” I do not think this is at all defensible, so I hope that in Committee there will be an opportunity to address those three areas at least and discuss them.
I hope that the Government will take the opportunity to put right these issues and bring back to our justice system a little less administrative pre-emption and a little more proving of things on the basis of evidence and facts.
Baroness Massey of Darwen (Lab)
My Lords, as has been said, this is a vast Bill. I cannot remember receiving so many briefings and analyses from so many different organisations—from human rights organisations and those concerned about the abuse of women and children to local government and medical organisations, including the GMC.
There is support for some aspects of the Bill but also a great deal of criticism, with fears that certain measures are untenable and unworkable. I shall discuss some of those today in the context of the deliberations on the Bill of the Joint Committee on Human Rights, of which I am a member, as is my noble and very good friend Lord Dubs. I shall reinforce some of his comments.
The committee scrutinised the Bill, discussing the content of each part carefully and holding inquiries, including on mothers in prison and the right to family life, the criminalisation of unauthorised encampments, and public order issues. Tomorrow we will be examining our draft report on the sentencing and remand of children, which is of particular interest to me. For each session, we engaged with experts on the issues raised in the Bill. I praise and thank the staff of our amazing secretariat for their expertise and hard work, and also our witnesses for their often passionate comments about the Bill and their desire to protect and enhance the rights of those who will be affected by its outcomes.
I will simply make a few general comments on some sections of the Bill. The Joint Committee on Human Rights will, of course, be tabling amendments. First, on the rights of children whose mothers are in prison: the right to family life is enshrined in Article 8 of the European Convention on Human Rights and in three articles of the UN Convention on the Rights of the Child, involving non-discrimination, the best interests of the child, respect for the views of the child and children deprived of a family environment. The committee has concerns about all of these issues, especially about the welfare of the child, sentencing and data collection on children of prisoners.
We are also worried about the right to engage in peaceful protest and freedom of assembly, described so graphically by my noble friend Lord Dubs. The Joint Committee on Human Rights considered that issues such as conditions on the noise produced by processions are not proportionate and that a regulation-making power for the Secretary of State to clarify the meanings of disruption by statutory instrument is unacceptable. The committee was not convinced that the case for unlimited conditions on assemblies has been made. A loophole in the Bill increases the risk of peaceful protesters being arrested or prosecuted for innocent mistakes. The Bill does not include references to the right to freedom of expression; the committee proposes an extra statutory protection for the right to protest.
On Part 4 of the Bill, the committee considered that the human rights concerns of Gypsy, Roma and Traveller people were about criminalisation with regard to residence and having places to go, well described by my noble friend Lady Whitaker. We considered that the Government may be liable to use criminal law to address what is essentially a planning issue, as others have said. The language of the parts of the Bill describing the acts of Gypsy, Roma and Traveller people allows for prejudice and discrimination. Landowners have rights, and the provision of more authorised sites would benefit landowners who are concerned about the current situation. The police, too, have expressed discomfort about this part of the Bill.
As I said earlier, the committee will tomorrow consider the draft report on Parts 7 and 8, on sentencing and the remand of children and young people. Its concerns already reflect those of organisations and individuals who have for years shared grave concerns and misgivings about the sentencing of young people. The UN Convention on the Rights of the Child articles are clear that every child should be treated
“in a manner which takes into account the needs of persons of his or her age”,
and that the detention of a child should
“be used only as a measure of last resort and for the shortest appropriate period of time.”
The impact on the often deprived and vulnerable children who end up in the criminal justice system can be devastating. Ethnic disproportionality is seen at many stages of the youth justice system. It has been pointed out by many people that, although the UK has come a long way in protecting children, the fact that the articles of the UNCRC are not incorporated into UK law—although Wales and Scotland have made progress in doing so—has serious implications for the possibility of challenge in a UK court.
The issues I have briefly mentioned clearly need expansion and consideration in Committee. I am confident that your Lordships’ House will do this with its usual skill and thoroughness.
Lord Hendy (Lab)
My Lords, I add my compliments on the maiden speech of the noble Lord, Lord Sandhurst. I had the pleasure of knowing him at the Bar. He will be a great asset to your Lordships’ House.
The noble Lord, Lord Blencathra, forcefully amplified the Delegated Powers Committee’s serious criticisms in its report published yesterday. I am privileged to serve on that committee under his excellent chairmanship. I want to amplify just one point. In its report, the committee contends that Clauses 55, 56 and 61 are inappropriate in that they surrender the power to define the meaning of certain phrases to delegated legislation, which is not subject to the full scrutiny of primary legislation. The noble Lord, Lord Blencathra, emphasised that our committee took no position on the substantive provisions but recognised that they are contentious and should therefore be on the face of the Bill.
Let me touch on why those provisions might be contentious. Among other things, these clauses give powers to a senior police officer to impose conditions on a procession or assembly where the officer reasonably believes that noise generated by persons taking part may result in
“serious disruption to the life of the community”
or
“serious disruption to the activities of an organisation which are carried on in the vicinity of a public procession”
or “assembly”. The Bill does not define either phrase. Instead, it gives power to the Secretary of State to do so by regulation. Surely this is an abuse of parliamentary democracy. Where the words of primary legislation are to have a particular meaning, they should be set out on the face of the Bill; this would enable us to debate the proposed meaning properly.
In fact, we have a draft of such regulations in relation to the meaning of one phrase but not the other. The phrase defined in the draft regulations is
“serious disruption to the life of the community”.
The draft regulations provide:
“It may be regarded by the senior police officer as serious disruption to the life of the community if there is … a significant delay to the supply of a time-sensitive product impacting on the community, or … prolonged physical disruption to access to essential goods and services impacting on the community.”
They go on to say that
“‘time-sensitive product’ includes newspapers and perishable items … ‘essential goods and services’ means … the supply of money, food, water, energy or fuel … a system of communication … a transport facility … a place of worship … an educational facility … a service relating to health, or … another critical public service.”
It is quite clear that this will mean that the police may impose conditions on those legitimately, but noisily, picketing their place of work to persuade others not to work during a lawful industrial dispute where the workplace is involved in food, water, power, railways, buses, planes, ships, newspapers, mail, TV, radio, film, education, health, local government, civil service or other critical public services. It is hard to think of workplaces which will not be included.
The law on picketing is already highly regulated by statute. It has been so since the Conspiracy, and Protection of Property Act 1875—146 years ago. It has many times been restricted, most recently by the Trade Union Act 2016, but this emaciated right to picket peacefully
“in contemplation or furtherance of a trade dispute”
still remains. This Bill will give the police the power to effectively extinguish it in many sectors.
Some of your Lordships may well think such further restrictions highly desirable; others will oppose them. Let us have the debate on the basis of meanings set out on the face of the Bill, not ones yet to be determined and then tucked away in secondary legislation which avoids all but cursory parliamentary scrutiny and which we cannot amend. I ask the Minister to amend the Bill by including in it the definitions which she desires.
Baroness Coussins (CB)
My Lords, I want to raise some concerns about the provision of interpreters in our courts and to suggest a way in which this Bill could improve the service. I declare my interest as a vice-president of the Chartered Institute of Linguists.
I am very grateful to the noble Lord, Lord Wolfson, for meeting me after I raised these concerns in the debate earlier this year on the Queen’s Speech, and for his subsequent helpful and encouraging correspondence. I am sorry he is not in the Chamber today, because he has assured me that the MoJ is already addressing some of the shortcomings. I want to flag up a possible amendment to the Bill which I believe would help.
Part 12 already acknowledges the potential role of British Sign Language interpreters for jurors. Sign language is not my area of expertise, but it is not too much of a stretch to see that this part of the Bill would be the logical place for a simple amendment to lay down a specific requirement for minimum standards in the quality and qualifications of the spoken-word interpreter. Their role is already established in court proceedings, but all too often there is serious detriment to defendants, victims or witnesses—not to mention the taxpayer—when an unqualified, underqualified or inexperienced interpreter causes confusion rather than clarity, often leading to costly re-hearings or even the wrong verdict being overturned on appeal. I gave some examples of such cases in the debate I referred to earlier and will not repeat them here.
The question is: how can the current MoJ system be improved so that only competent and appropriately qualified interpreters are engaged? The criteria for inclusion in the MoJ’s list of approved interpreters currently fall short of either the requirements for the National Register of Public Service Interpreters or the excellent, more recently formed, police-approved interpreters scheme.
The noble Lord, Lord Wolfson, has kindly briefed me on the stakeholder forum which HMCTS and the MoJ have been holding. I would be grateful for an update on these discussions. In particular, is there any good reason why the MoJ should not adopt the same practice as the CPS and use only interpreters from the National Register of Public Service Interpreters, which would guarantee an appropriate level of qualification and significant experience of the court and justice system?
There is consensus among the specialist professional bodies that the Diploma in Public Service Interpreting at level 6 should be the minimum standard for any court interpreting work, alongside requirements for experience which acknowledge the variation in complexity of cases. The level 6 standard is supported by the National Register of Public Service Interpreters, the Chartered Institute of Linguists, and the Association of Police and Court Interpreters. There is also support for the National Register of PSIs to be the officially recognised register for court interpreters. Are the Government willing to look at these aspects of a proposed minimum standard being incorporated into the Bill, which I believe would improve trust and confidence in the system?
I have two more brief but connected points. First, I am aware of concerns that the supply chain for court interpreters might not be robust enough to meet the minimum standard requirement that I have outlined. It is true that well over 1,000 public service interpreters have abandoned court interpreting over the past few years because of poor and declining terms and conditions, not least the derisory pay rates. However, a determined campaign could bring these highly skilled professionals back into public service, not just with better pay but also much greater recognition of their status and skills, and could attract more new linguists into the field. Does the Minister agree?
Finally, it has been reported that an American venture capital firm recently took a majority stake in thebigword, the company contracted to provide language services for our courts. What, if any, impact assessment or due diligence was undertaken by the department, HMCTS or thebigword on any changes in service delivery that this change in ownership is likely to have?
I look forward to the Minister’s reply and hope that, if all my questions cannot be answered this evening, either she or her colleague, the noble Lord, Lord Wolfson, will be able to write to me.
Baroness Bennett of Manor Castle (GP)
My Lords, I feel that I must begin by declaring an interest, as did the noble Lord, Lord Dubs. Two weeks ago, I was speaking at an Extinction Rebellion protest—an organisation explicitly targeted by the Home Secretary in her comments on the Bill—blocking the road outside Bank tube. On Sunday, I was with thousands of people in Liverpool, making lots of noise protesting against plans to hold an electronic warfare conference in a city-owned convention centre there. Today, were I not in your Lordships’ House, I would be in east London, where organisations including Quaker Roots, Campaign Against Arms Trade, and the Peace Pledge Union are taking non-violent direct action against the merchants of death doing business at our Government’s invitation on our shores.
In my maiden speech, I said I would aim to bring the voice of the streets into the House, and my noble friend and I will aim to do just that throughout the progress of this Bill. The issues in this Bill are every bit as close to the heart of the Green Party as those in the Environment Bill for, as the noble Lord, Lord, Lord Oates, implied, the right to protest is as much a climate emergency issue as the treatment of our soils or the management of our woodlands.
Non-violent direct action has always been something the young, the poor, women, minority groups and workers have had to do to get their voice heard. As the noble Lord, Lord Hendy, indicated, workers in particular have suffered from a great emaciation of that right over centuries in the UK. We must particularly hear from the young on the climate emergency and the nature crisis, which are already damaging their lives and threatening much worse.
The noble and learned Lord, Lord Judge, noted that there is no Member of your Lordships’ House under the age of 30. In fact, we have just five Members under the age of 40, and in the other place there are just five Members under the age of 30. The young must gather outside and shout because they are not allowed into these Chambers. Democracy—a representative Parliament—would be a very good idea. In fact, 16 and 17 year-olds in England are denied even the right to vote, and the Government are planning legislation that will deny more of the young that right.
When the political process fails, non-violent direct action steps in, and it works. There is a long and honourable tradition: very recently, anti-fracking protesters and Sheffield street-tree protesters have seen real success in changing the approach of Governments and councils—but I go back to the women’s petition led by female Levellers, presented here in 1649. We would be a far worse country without such courage over centuries, but we have a long way to go to reach the ideals of equality and justice that the Levellers were espousing back in the 17th century.
The noble Baroness, Lady Stowell, lamented that social norms are breaking down. Great: I have a shortlist—it could be a very long list—of norms that should break down. As the right reverend Prelate the Bishop of Gloucester highlighted, these norms see black young adults being more than eight times more likely to be convicted for a non-violent minor crime than their white counterparts. These norms see some 17,000 dependent children affected by the imprisonment of their mother each year; the widely acclaimed Corston report, completed 15 years ago, which said that most women offenders who get prison sentences should not, has not been implemented. As the noble Lord, Lord Bach, said, these norms see legal aid cut not just to the bone but deep into the marrow, unavailable to many who desperately need it, when we know that justice unfunded is justice denied.
Like the noble and learned Lord, Lord Falconer of Thoroton, I started out with a long list of issues that I wanted to address, and I have hardly got to any of them. However, I want to mention the Bill’s utterly indefensible Part 4 on unauthorised encampments. I entirely agree with every word said by the noble Baroness, Lady Whitaker, and, in this context, I have to cite Martin Niemöller’s First They Came. Roma, Gypsy and Traveller people remain, in the UK and far more widely, victims of the most pernicious, unchallenged and vile discrimination. I ask Members on the Benches opposite whether they want to countenance deliberately targeting them with laws to criminalise the simplest of human actions—laying down to rest—and to destroy their homes.
I am almost out of time, but I want to contrast the Bill with the direction of travel and the rhetoric that we hear from the Government north of the border. The Scottish Government may still not be doing enough, but they say that they want to reduce the prison population and want it to be far better treated. It is amazing what a more democratic political system can achieve. We often hear from the Government that they are doing what the people want—but which people, and to what purpose?
Lord Bradley (Lab)
My Lords, I declare my interests as set out in the register, especially as a trustee of the Centre for Mental Health and the Prison Reform Trust. I will comment today on just two issues relating to the Bill: community sentences and imprisonment for public protection.
To set this in context, I point out that I share the views, well expressed by the Prison Reform Trust, that, far from being the simplification of sentencing that is claimed, the Bill adds to the piecemeal and confusing history of sentencing legislation, of which the Government claim to be so critical. I believe that it does so without a coherent philosophy to underpin its approach, and it guarantees the continuation of general sentence inflation, which has played a large role in undermining the ability of both prison and probation services to deliver rehabilitation goals that the Government again claim to promote.
We should be considering how we effectively reduce, not increase, the prison population by the further development of robust community sentences for offenders who currently receive a sentence of perhaps up to 12 months. This should particularly be the case for the huge number of offenders who suffer from mental health problems. It is estimated by the Centre for Mental Health that nine out of 10 prisoners have at least one mental health problem and the majority have multiple and complex needs that are often exacerbated by complex imprisonment and the fact that custody itself undermines their well-being.
I believe, therefore, that the Bill should seize the opportunity again, as I recommended in my report to government in 2009, to boost alternatives to the use of prison for appropriate offences. The community sentence treatment requirement programme is of special importance here. Where a CSTR service operates, currently on 15 sites across the country, it gives magistrates and district judges a sentencing option whereby a community sentence including one, or a combination, of three treatment requirements—drug, alcohol and mental health—can be applied. Dealing with all these issues together has proved to provide far better outcomes, especially in respect of reoffending, than short prison sentences, where little can be done to tackle these issues, which often underpin offending behaviour. Will the Minister support the rollout of this programme nationally as soon as possible and make a commitment in her reply tonight?
Further, regarding women in the criminal justice system, the Government’s strategy for female offenders has a clear ambition significantly to reduce the prison population by better use of community sentences. Clearly, as a committed member of the Government’s advisory board for female offenders, I fully endorse this approach, but I believe, as do so many voluntary organisations working with women offenders, including Women in Prison, that the Bill is a huge missed opportunity to progress this agenda, with the continued use of short sentences, unnecessary remand and, appallingly, building an additional 500 prison places for women, with the result of tearing families apart, children being taken into care, loss of employment and loss of accommodation, at considerable social and economic cost.
However, where a community sentence is imposed there is real concern regarding Clauses 125 and 127. They would give probation officers the power to strip a person’s liberty in ways that go beyond the ways the courts have sanctioned by compelling attendance at additional appointments and increasing curfew periods. Given that the consequences of failing to abide by such additional restrictions could involve breach proceedings and even imprisonment, understanding the exact procedures by which these decisions can be made and appealed will be critical as we scrutinise the Bill. People with mental health problems or learning disabilities and women with caring responsibilities can find it especially difficult to comply with such measures.
Briefly, I add my voice to the huge concern relating to imprisonment for public protection sentences, which was so well articulated by my noble and learned friend Lord Falconer and the noble and learned Lord, Lord Brown, in particular. I will not repeat the devastating statistics presented by the noble and learned Lord, Lord Brown, but I repeat that IPP was abolished 10 years ago and there are still 207 people in prison today, more than a decade after their tariff expired. It is quite unacceptable. This situation must now be addressed urgently. I hope that the Government recognise that and that the Minister will support amendments to the Bill finally to resolve these cases, recognising public protection but providing fair treatment for these individuals.
Lord Dholakia (LD)
My Lords, I welcome some features of the Bill, in particular the long-overdue measures to bring certain offenders who have served sentences of four years or more within the scope of the Rehabilitation of Offenders Act and to reduce the rehabilitation periods for offenders serving shorter sentences. These provisions will help more reformed offenders live down their past, obtain employment and contribute positively to the community.
These changes are long overdue, and I am grateful to noble Lords of all parties who supported my defeated efforts to press successive Governments to go further in reforming the Rehabilitation of Offenders Act. In particular, I thank my noble friend Lord McNally and the former Home Secretary and Justice Secretary, the noble and learned Lord, Lord Clarke of Nottingham, who assisted me considerably in taking forward these measures. The coalition Government introduced a number of reforms to the Act, and I am delighted to see that the Bill includes measures that take these changes further in the direction of the changes that many of us have worked for over many years.
Regrettably, however, the positive measures in the Bill are overshadowed by a raft of provisions that are designed to further increase the harshness of sentencing. The Bill requires more offenders to serve lengthy minimum sentences. It increases the minimum terms for offenders serving sentences of detention at Her Majesty’s pleasure for murders committed when the offender was under 18. The Bill requires courts to set longer minimum terms for discretionary life sentence prisoners. It increases the proportion of sentences for certain violent and sexual offences that have to be served in custody. It creates a new power for the Secretary of State to refer high-risk offenders to the Parole Board for a parole review before they can be released. All these changes come after two decades during which sentencing in this country has already markedly increased in severity.
The Government’s impact assessment of the Bill acknowledges that there is limited evidence that the combined set of measures will deter offenders in the long term or reduce overall crime. The impact assessment also states that there is a risk of having offenders spend longer in prison and a larger population might compound overcrowding. By reducing access to rehabilitative services, there is a risk of increasing instability, self-harm and violence.
The Government are ratcheting up sentencing at a time when we already use imprisonment much more extensively than other comparable countries. As I have repeatedly pointed out to the House in the past, the United Kingdom now has the highest rate of imprisonment in western Europe. In England and Wales, there are 131 prisoners for every 100,000 people in the general population, compared with 93 in France and 69 in Germany. The average sentence for an indictable offence is now 54 months, which is nearly two years longer than in 2008. Mandatory life prisoners now spend on average 17 years in custody, compared with 13 years in 2001. The number of community sentences has dropped to around one third of the number a decade ago.
As a result of our high and increasing use of custody, most of our prisons are overcrowded: 80 of the 121 prisons are currently holding more prisoners than the certified normal population. Prisons have found it increasingly difficult to provide resettlement support for prisoners to avoid reoffending after release. Even before the Bill’s provisions become law, the prison population is already projected to rise by a quarter over the next five years. The Government have announced plans for a significant programme of prison building, yet despite this, the Public Accounts Committee, in its report last year, Improving the Prison Estate, estimated that the demand for prison places could outstrip supply by the financial year 2022-23. The Government estimate that the measures in the Bill will increase the prison population by a further 700—the population of a medium-sized prison—by 2028. This will further increase the risk that any new prison places will simply be outstripped by the increasing number of prisoners. If this happens, the results will be detrimental to the safety of prisoners and to the prospect of providing constructive initiatives that can steer prisoners away from reoffending.
In conclusion, if the Bill passes through the House, I hope that the sentencing provisions can be subject to very careful scrutiny to ensure that any marginal gains in public safety from incapacitating more offenders are not outweighed by the prospect of turning out more released prisoners whose prospects for rehabilitation have been seriously damaged by the pressures of an ever-increasing prison population.
Lord Polak (Con)
I add my congratulations to my noble friend Lord Sandhurst on his maiden speech. We will all benefit from his wisdom. I also welcome the overall thrust of this Bill; there is so much in it that needs to be achieved. My noble friend Lord Goschen raised the important issue of the rights of the silent majority. I may be from Liverpool, and I learned to look after myself, but being stuck in my car at the lights at Parliament Square for over an hour, surrounded by a mob, was not pleasant. I am also grateful to Barnardo’s for its excellent briefing. I concur with its two main points on tackling child exploitation and ensuring that the proposed serious violence partnerships prioritise children.
Earlier this year, the Domestic Abuse Act finally became law. The legislation signalled a major step in improving the support provided to victims and holding perpetrators to account but, to ensure the Act has the fullest of impacts, it is vital that it does not stand in isolation. Its key principles must surely extend to other relevant legislation, which is why I am pleased to join my noble friend Lady Bertin, and the noble Lords, Lord Russell of Liverpool and Lord Rosser, in tabling our amendment.
I am deeply concerned that, in the little over six months since the Domestic Abuse Act received Royal Assent, its spirit and ambition do not appear to have been extended to this Bill. The Bill is designed to improve the way in which our criminal justice system works and it rightly includes a specific focus on how local partners, including the police, must work together to prevent and reduce serious violence.
My noble friend Lady Bertin highlighted that this presents a vital opportunity to prevent domestic abuse and sexual violence from occurring in the first place. She was right to remind us that one-third of all violent crime recorded by the police is related to domestic abuse. Like the noble Lord, Lord Walney, I am therefore at a loss to understand why domestic abuse and sexual violence are not put at the heart of this Bill. Furthermore, I am struggling to understand why they are not specifically recognised as a form of serious violence for the purpose of the new serious violence prevention duty. Explicitly including domestic abuse, domestic homicide and sexual violence would help to guarantee that robust prevention work is rolled out consistently across the country. This is urgently needed to tackle the scale of domestic abuse and sexual violence.
This should include education programmes in schools to help children recognise the early indicators of unhealthy relationships, intervention programmes for perpetrators, and training to help healthcare professionals recognise the signs of domestic abuse and ensure that victims and survivors are referred to specialist support. I urge the Minister, who so ably piloted the Domestic Abuse Bill through this House, to continue that work and extend the definition of serious violence for the purpose of the new serious violence prevention duty.
Lord Hope of Craighead (CB)
My Lords, there is so much in this Bill that causes concern, whatever else in it we can agree with, so I will focus on only three points. It is a bit difficult for me, as the 45th speaker in this debate, to find something new to say, but I think my first point is new; the second point, not so new; and the third point has been dealt with by several others.
My first point relates to new offence in Clause 66 of causing serious injury by careless or inconsiderate driving, which will attract a prison sentence. My second point relates to the provision in Clause 106 to increase the minimum term for discretionary life sentences from one-half to two-thirds. My third point relates to the powers given to the Secretary of State to make provision, by regulation, about the meaning of key phrases in Part 3 of the Bill relating to public order—a matter referred to in powerful speeches by my noble and learned friend Lord Judge and the noble Lord, Lord Blencathra.
Of all the driving offences, careless or inconsiderate driving is at the bottom of the scale. It has never been thought until now that it should attract a prison sentence. A moment’s inattention is all it takes, and that may happen even in the case of the most careful and responsible driver. There is no criminal intent whatever. Where criminal intent exists, it is possible that the prospect of a prison sentence may act as a deterrent, but that is not so where intention of that kind is not part of the offence at all. As for serious injury, a broken arm or broken leg will do, and that can happen to someone who, by a moment’s inattention, is knocked off a bicycle. The injury is of course to be regretted, but it seems to me that the imposition of a prison sentence for an offence of this kind is disproportionate. Do we really need to do this? Has any assessment been made of the consequences of this seemingly well-meaning measure?
At the other end of the scale is the discretionary life sentence. Not so long ago, the minimum term was reduced from two-thirds to one-half. I think that was to help to reduce prison numbers, and because it was after all only a minimum term. Given the fact that our prison population is still rising, why revert to two-thirds? Has any assessment been made of the consequences for our prisons and of the pattern of release dates since the minimum term was reduced?
I turn to a matter that has been discussed by many other speakers, on Part 3 of the Bill. The right to peaceful protest, whatever the issue and whether or not we agree with it, is an essential part of our democracy. There is no doubt that our laws are being challenged by the way in which that right is currently being exercised but any attempt by the Government to curtail that right, such as we find in Part 3, must be scrutinised with great care. I focus on the changes as to the powers of the police to give directions under Sections 12 and 14 of the Public Order Act, a breach of which amounts to a criminal offence. That is the context for the measure that the noble Lord, Lord Hendy, emphasised in his speech not long ago. If the police reasonably believe that a procession or an assembly may result in public disorder or disruption to the life of the community, they may give such a direction. Now we find that the Secretary of State is to be given power to make provision by regulation as to what is or is not to be treated as falling within these expressions. That excludes not only a power to define these expressions but also to give examples of cases that are to be treated as falling within them. In effect, as there are no limits, she and her successors are being given the power to declare the kind of protests, the reasons for them and their effect that the Government simply find inconvenient or unacceptable. That declaration will then be used for the giving of directions by the police, with its criminal consequences. As the noble Lord, Lord Blencathra, said, the use of delegated powers in this way is unacceptable.
The guiding principle must surely be that it is for Parliament, not the Executive, to decide what powers to give to the police. The words in the Public Order Act speak for themselves; as the noble and learned Lord, Lord Judge, might say, we know what they mean. Because they are broadly expressed, they can be adapted to the needs of each case. However, if amendments are needed, they should be put in the Bill—so why are the changes, which are already in draft in respect of one of these phrases, not here in the Bill so that we can subject them to scrutiny in the usual way? Can the Minister say why that should not be done?
Baroness Bryan of Partick (Lab)
My Lords, in considering the Bill I shall concentrate on Part 3, although the other sections also give great cause for concern. Particular attention needs to be given to the points made by the General Medical Council relating to Part 2 and the distressing plans to criminalise a legitimate lifestyle in Part 4. These were described particularly movingly by my noble friends Lady Whitaker and Lady Chakrabarti.
The whole Bill appears to be based on the view that the world is full of dangerous people who need to be heavily policed and constrained. Personally, I think that is an unhealthy starting point for making legislation. Those who apparently engender such fear are people who do not have the ear of Ministers. They cannot invite senior Cabinet members to lunch to press their concerns; their route is protest.
Part 3 of the Bill in its present form would pose an undue threat of criminalising people seeking to have their voices heard by people in power. The Home Secretary has tried to pass a share of the blame for these draconian restrictions on to the Police Federation, saying that it had requested greater powers to police public gatherings, but it appears there is no record of the Police Federation being consulted on this. If not the police, who is demanding the curtailment of many long-held rights with threats of substantial fines or lengthy jail sentences? One suspects this is an exercise in political power. As the Government have a majority, they will exercise it to stamp their mark on society. Bad laws lead to a lack of respect for law. Placing conditions on people organising protests that cannot be measured or assessed in advance must be intended to discourage planners and participants.
Clause 55 creates a new basis for police intervention: that of noisiness. If noise could cause people
“to suffer serious unease, alarm or distress”
the police may act to prevent it. Is there a certain level of noise that would result in that response or is it arbitrary? Making your voice heard can be a noisy business. With no direct access to the national media, how else can people be heard? The Minister says that the Bill seeks to do more to protect our communities when it actually restricts communities’ abilities to protect themselves, which often involves protest.
Clause 61 appears to be a case of legislating for dealing with the activities of one person. This is never a good idea and is in danger of making the law look petty. What can possibly be meant by inciting somebody to engage in a one-person protest? Could blowing your car horn in support or stopping to give a word of encouragement become criminalised?
The Bill is in serious need of amendment. We must do that as a duty to those who struggle to have their voice heard.
Baroness Bakewell of Hardington Mandeville (LD)
My Lords, I will confine my comments to Part 4 of the Bill, which introduces draconian measures seeking to curb the way of life of an already extremely marginalised group of people. Last year, on 25 February, the Grand Committee debated the report from the House of Commons Women and Equalities Committee, Tackling Inequalities faced by Gypsy, Roma and Traveller Communities. The debate highlighted the extreme difficulties these people have in accessing somewhere to stop. At the time the Minister, the noble Baroness, Lady Bloomfield of Hinton Waldrist, said:
“The Government’s recent race disparity audit highlights further evidence that demonstrates the serious disparities faced by Gypsy, Roma and Traveller communities. On almost every measure, as many have pointed out, they are significantly worse off than the general population”.—[Official Report, 25/2/20; col. GC 122.]
I fear that despite the intervening year and a half since that debate, the Government have chosen to ignore the report from the other place and are now seeking to further penalise those who have a different way of life to those of us in the settled community.
I really do not understand why some people find the Gypsy, Roma, and Traveller communities so objectionable. At all levels they are vilified, discriminated against and marginalised. The lack of a secure and safe stopping place makes it extremely hard for parents to get their children into school. Where children are admitted to school, they are often bullied and their culture is not respected.
I have received a copy of the report of the sixth report of the Delegated Powers and Regulatory Reform Committee, which the noble Lord, Lord Blencathra, referred to earlier. It is singularly unimpressed by this legislation. Paragraph 6 states:
“We are particularly concerned that the Bill would … allow Ministers—and even a non-statutory body—to influence the exercise of new police powers (including in relation to unauthorised traveller encampments and stop and search) through ‘guidance’ that is not subject to Parliamentary scrutiny.”
I am a member of the Secondary Legislation Scrutiny Committee. Both it and the DPRRC are concerned by the increasing blurring of what constitutes legislation and what constitutes guidance. There is a distinct difference between the two which the Government and some of their officials appear not to understand or acknowledge. The power to evict someone from their home, albeit a caravan, and then imprison them if they return should not be left to guidance but should be part of legislation.
Gypsies, Roma, and Travellers are disproportionately represented among the prison population already. The Government are seeking to increase that representation with measures in Part 4, which the police do not support. Part 4 is a sledgehammer to crack a nut. The greater proportion of the Traveller community lives on sites, either provided by the local authority or private. There were only 694 Gypsy and Traveller caravans at the last count, with only 3% on unauthorised encampments. It is part of their culture to travel, and they require both temporary and permanent stopping places in order to do this.
While serving on Somerset County Council, I fought hard to acquire a piece of land for a transit site. It was welcomed and well used. When a change of administration occurred, the site was closed and the land sold. How very short-sighted. Those local authorities which make provision for both permanent and transit sites are to be congratulated. Those which have not done so will no doubt welcome this divisive and discriminatory section of the Bill. Can the Minister say how many local authorities already provide sites? What does she envisage will happen to children whose homes are seized and their parents locked up for trying to protect them and provide a roof over their heads? How does she envisage this group of people, whose culture goes back centuries, will access health and education?
I am appalled that, in this day and age, such blatant discrimination is promoted by the Government of this country on such flimsy grounds.
Baroness Fox of Buckley (Non-Afl)
My Lords, in this mammoth omnibus Bill, there is an uncomfortable shift in the balance of power away from citizens and towards the state and the police. It feels like a lockdown hangover. The suspension of civil liberties for a public health emergency was bad enough, if understandable, but now, using the language of safety, protecting citizens and fear—again, although fear of crime this time—I am worried that the Government think the new normal should be less freedom and fewer rights. There are lots of examples of this throughout the Bill, but, for now, I shall confine my remarks to Part 3, which should be removed in its entirety from the Bill.
That is because, first, despite the reassurance from the Minister, which I know she means sincerely, I cannot see how, having read the Bill, it is not glaringly obvious that the Bill will damage hard-fought-for historic rights to freedom of expression and freedom of assembly. Other noble Lords have explained that very well. Secondly, why is Part 3 necessary at all? There are plenty of laws on the statute book which would deal with the problems that the Government have identified.
I realise that this debate comes hot on the heels of Extinction Rebellion’s rather egregious disruption to the M25 and the lives of so many drivers. There has been a series of utterly galling and self-indulgent actions of late, and it becomes easy to conclude, as many do, “lock ‘em up and throw away the key”. Do not get me wrong, I find that these stunts are misanthropic and narcissistic, and I think it is a real problem that they are driven by the anti-democratic instinct that because the majority are allegedly being too slow at adopting net-zero or hairshirt eco-policies, they must be coerced, bullied and annoyed into submission by these demonstrations. However, I do not think the answer to that anti-democratic instinct is for the Government to introduce anti-democratic legislation.
The truth is that the statute book is bulging with laws that could be used to ensure that when protest tips over into bringing society to a halt, it can be dealt with. If statues are pulled down, buildings defaced and roads blocked, we already have laws against that. Criminal damage, obstructing highways, hindering emergency vehicles—that is all against the law. Cressida Dick even conceded, on a review of the Extinction Rebellion protests in London, that the powers of the Public Order Act 1986 were sufficient to deal with them.
Surely the question for the Home Secretary is: why are the police not enforcing the existing laws? Why do they so often seem to stand by and watch when obvious lawbreaking happens? Why do the police seem instead to be rather zealous when, for example, they are scouring social media for allegedly offensive tweets? They become very efficient at adding innocent citizens’ names to the utterly illiberal non-crime hate incident database, as has already been mentioned, and they are very energetic when they are parading their own social justice and diversity credentials on Instagram, but they seem somehow hesitant when they are policing some demonstrations.
I appreciate that that comes over as a crass caricature by me—some people might not be surprised—but I note that it is the way it is widely discussed and perceived. Many people in the public believe that the police have become politicised and that they treat demonstrations differentially: some with kid gloves, some with real brute force. Yet here in the Bill, in Clause 55, we are asking the police to have even more discretionary powers to decide what protests should be clamped down on, what should be allowed, et cetera. This can only exacerbate the situation and put the police under even more political pressure, and it is why so many front-line officers are themselves worried about the Bill.
The police, for example, will have to decide which protests “may” or “risk” causing too much noise or result in disruption, as we have heard. As the noble Lord, Lord Dubs, very wittily reminded us, those who are not familiar with demonstrations should note that protests are, by their very nature, noisy. That is the point. They are not sedate garden parties or occasions where you whisper: noise is a crucial way to make your voice heard by the people in power but also, actually, by your fellow citizens, who you are trying to persuade to join you. And the larger the demo, the noisier. One of the noisiest demos that I inadvertently encountered was calling for a second referendum. I was harangued by many people on it. I can assure noble Lords that I did not agree with it, but it was certainly loud, and I defend their right to shout even about an anti-democratic call for a second referendum.
I find it particularly distasteful that Clause 58 widens the geographic scope of curtailing protest around Westminster. Of course parliamentarians need access to their place of work for democracy to function, but this clause has much wider-ranging provisions and creates a de facto buffer zone around the corridors of power to protect the Westminster village from encountering dissenters. The Government regularly rail against student snowflakes retreating into safe spaces, and now they suggest turning the Palace of Westminster into a giant safe space and echo chamber. That would be a terrible mistake.
Baroness Humphreys (LD)
My Lords, I thank those organisations that have forwarded briefing notes to us. My thanks also go to Senedd Research for its briefing on the legislative consent memorandum to the Bill and, of course, to the Delegated Powers Committee and the Constitution Committee for their excellent reports. These have all helped those of us who do not have a legal background to make sense of this gigantic Christmas tree of a Bill.
As my noble friends have said, there are measures in the Bill that we on these Benches support, such as the police covenant and changes to rules on disclosing criminal records to help with rehabilitation, but there are also measures that so impinge on civil liberties that we cannot support them. Like others who share my concerns, I will refer to Parts 3 and 4.
This is a Bill through which Governments will place new restrictions on the right to protest—a cornerstone of our democracy. Part 3 gives the police new powers and responsibilities to place extra conditions on protests, be they by one person or many. These conditions could make it difficult for people’s voices to be heard and could make them fearful of arrest. These new laws undermine the right to peaceful assembly and smack of government attempts to silence opposition.
Clauses in this part of the Bill increase penalties for those who breach a direction applying to a procession or assembly. I welcome the statement by the Joint Committee on Human Rights, which recommends that these clauses be removed from the Bill. It is significant that these powers are also unwelcome for many past and present police officers. They fear that policing could be instrumentalised for political purposes and that the responsibility for deciding on what is and is not allowed will fall on their shoulders.
The noise element of these measures is also of concern to the Welsh Government. Although public order is a reserved matter, controls over noise relate to devolved environmental health matters, and the Senedd’s Well-being of Future Generations (Wales) Act sets out the principle of involving people in decisions such as these that affect them. This is one of the issues on which the Welsh Government are seeking clarity, and will recommend that Senedd does not give its consent until the legislation is more clearly defined and the responsibilities of the devolved Administration and local authorities are recognised and understood.
I am pleased that the Welsh Government are also withholding consent to the unauthorised encampment measures in Part 4. Of course, these measures introduce a new criminal offence of residing on land without consent in or with a vehicle. As the Constitution Committee points out in its report on the Bill:
“The provisions are clearly intended to apply in the main to the activities of Gypsies, Roma and Travellers … communities.”
There is a fundamental difference in approach between the two Governments. The Welsh Government’s approach has focused on engagement with communities and investment for adequate provision of authorised sites. This is opposed to the UK Government’s approach, which appears to focus on enforcement and criminalisation. As the Constitution Committee concludes, this situation is
“unacceptable in a democratic society … the existing powers to deal with unauthorised encampments are sufficient, and … this is fundamentally a planning—rather than a criminal—issue.”
It appears that, in their rush to solve a perceived problem, the Government are taking a sledgehammer to crack a nut. I understand that work to resolve these concerns, along with other outstanding issues, will continue between the two Governments during the passage of the Bill, but I would be interested to hear the Minister’s initial response to discussion around the legislative consent memorandum.
Baroness D’Souza (CB)
My Lords, this is a big and important Bill with much to commend it but, regrettably, also some ambiguous provisions that will undoubtedly infringe civil liberties. While there are welcome clauses on, for example, increased penalties for assaults on emergency workers, Part 3 of the Bill, which deals with police powers to prevent, limit and/or curtail public protest, gives cause for concern. I am aware that many Lords in this debate so far have addressed this, and I have to forewarn noble Lords that I will be doing so as well.
Freedom of expression and assembly is a crucial democratic right, and some might say the cornerstone of the democratic process. It enables citizens to express views, call decision-makers to account, participate in decisions affecting their lives and livelihoods and alerts the wider public to the potential dangers of statutory limitations. Public demonstrations are an expression of civic concerns and are addressed at legislators who not only represent the people but have the power to change legislation. The cessation of fracking is a much-cited recent example of demo power. Clearly, such freedom is not an unfettered right, public order being an equally important civil liberty but, as again Members of the other place and Peers today have argued, a balance must be sought. In the Bill before us, the balance has inexorably tipped towards the Government and their agents being the arbiters of what constitutes allowable demonstrations based on criteria which are themselves vague and subjective.
Experience tells us that, once on the statute book, a law such as this is likely to be enforced more strictly than is necessary, if only to justify the play-safe concerns that the police might have about public order and safety. It could well become the thin edge of the censorship wedge, infringing both the ICCPR and the European Convention on Human Rights. Included among the consequences of this legislation is the real possibility that an individual or individuals could be sentenced to new custodial terms for inadvertently infringing the new noise-trigger conditions. Which organiser of a procession or demonstration is able to precisely predict the level of noise a crowd will reach? However, the senior police officer in charge is free to stop a demonstration on the basis of a reasonable expectation that noise may reach a social disruption level. Who determines acceptable or unacceptable noise levels? What constitutes a “significant” impact on bystanders? Clause 56 adds to the existing police limitations on the duration, location and size of public assemblies, by allowing more general powers to impose
“such conditions as appear to the officer necessary to prevent the disorder, damage, disruption, impact or intimidation mentioned in subsection (1).”
These are very wide powers.
Clause 61 criminalises children for taking part in non-violent protest and creates harsh sentencing for children who “ought to know” that restrictions were in place. This is especially confusing since the restrictions are themselves uncertain and arbitrary, depending on the judgment of the existing officer in charge. Former senior policeman have themselves seriously questioned these clauses as pitting the police against the communities that they serve.
The vague conditions of many clauses will have a chilling effect on legitimate protest because severe restrictions can be imposed in anticipation of undue noise having an impact on those in the vicinity. Furthermore, the organisers could face an 11-month sentence for any breaches of police conditions, conditions which henceforth can be provoked by a one-person protest. By way of mollification, the Bill offers a fatuous sentence which states that the police will need to consider the human rights of protesters before using these powers. I wonder how this will be achieved.
These are disproportionate measures to deal with an issue that is not, as yet, a major public order problem. The longer-term result is that Governments and other decision-makers will be more able to avoid scrutiny or being held to account, and ordinary citizens will be silenced for expressing opposition to policies that affect them adversely. What I think this Bill will do, if enacted in its present form, is force protest of whatever kind into a far more dangerous underground channel.
I will be supporting amendments that either remove Part 3 of the Bill entirely or alter these clauses radically, by upholding the fundamental right to assemble and protest publicly.
Baroness Sater (Con)
My Lords, I too congratulate the noble Lord, Lord Sandhurst, and welcome him to this House. I will address my remarks to youth matters, and I declare my interests as set out in the register.
I very much welcome the Bill’s important extension of the position of trust to sports coaches, about which the noble Baroness, Lady Grey-Thompson, spoke passionately. I thank my noble friend the Minister for also bringing forward measures to finally enable over 80,000 deaf people across England and Wales to have the opportunity to participate in jury service. Disability should not be a barrier to anyone carrying out such an important civic duty.
I briefly share some concerns regarding the proposal to extend the use of video-linking, already mentioned by other noble Lords. During the pandemic, we have seen the benefits of remote participation in proceedings via live video or audio link. However, research by the Alliance for Youth Justice suggests that this can hamper the effectiveness of participation in court proceedings by children and can impact negatively on justice outcomes. There is little reference in the Bill to the youth court, or to provision for the welfare of the child with regard to the expansion of video-linking. I would therefore be most grateful to hear from my noble friend the Minister how she can help address these concerns and whether she would consider ensuring that the default position for children should always be that they never appear via video link for non-administrative hearings.
I also take this opportunity to bring to the attention of my noble friend the Minister the concerns around sentencing options for first-time offenders coming into the youth court. Magistrates in a youth court have only two sentencing options available to them for first-time offenders who plead guilty: a referral order or a detention and training order, for a minimum of four months. However, if a young defendant pleads not guilty and is found guilty, the options for magistrates widen and they can also give youth rehabilitation orders.
How can it be right that a defendant who has never previously been before a court and who pleads guilty—an act for which they would get credit in the adult court—can receive only a custodial sentence, in the form of a DTO, when a defendant who does not hold their hands up but is subsequently found guilty can be handed a non-custodial community sentence? Under these rules, the principle of welfare and rehabilitation that should be at the forefront of the youth court is lost, potentially creating more short-term custodial sentences and exposing hitherto non-offending young people to serious criminals in custody. This cannot be the answer.
I have spoken before in this place about my concerns that young people who commit an offence as a child but, through no fault of their own, are not brought to court before their 18th birthday are treated as adults in an adult court. Those defendants who get to court before their 18th birthday go to the youth court, where they benefit from the specialisation and expertise of the youth court, its practitioners and its focus on the defendant’s needs and welfare. This should not be a postcode lottery, but can be due to the multiple issues, including court scheduling, that can affect which court you end up in and, therefore, how you are dealt with. Reforming the system so that all defendants are dealt with at the age and time of the alleged offence would mean that youth justice principles would be followed. It would give all defendants the same opportunity and fairness of access to specialist youth services, which are designed to reduce reoffending.
It is widely acknowledged that, when given all opportunities and support to change their behaviour, many young people do so. I therefore ask my noble friend the Minister to consider these two extraordinary sentencing anomalies, and perhaps also to consider undertaking a wider youth sentencing review in the future.
Baroness Brinton (LD) [V]
My Lords, I join other noble Lords in welcoming the noble Lord, Lord Sandhurst, following his maiden speech. I propose to speak briefly about three different areas in the Bill: the requirement for doctors to disclose confidential medical information about their patients; serious domestic violence, stalking and coercive control; and, finally, the proposals that will affect the Gypsy, Roma and Traveller community.
Part 2 Chapter 1 of the Bill requires disclosures of information that will breach health professionals’ obligations of confidence. Clinical commissioning groups in England, and health boards in Wales, as well as other bodies, will be required to share information requested by the police, and refusals to comply can be overridden by the Secretary of State. Even worse, there are no independent safeguards, such as court orders or use of the courts to stop and limit the sharing or use of such personal information.
The General Medical Council rightly points out that this undermines the trust that lies at the heart of the doctor-patient relationship. If patients believe their information could be more routinely shared with policing, youth, education and prison bodies, as is proposed, it could impact on their decision on whether to access healthcare services, and undermine the trust that is fundamental to health relationships.
Other countries, including America, Australia and New Zealand, and the rest of Europe continue to strongly defend the principle of a confidential health service and confidential clinician-patient relationships as a cornerstone of ethical practice. It is just plain wrong that the Government are proposing this, and I will return with amendments in Committee.
I turn now to the issues of domestic violence, stalking and coercive control, on which a number of us brought forward amendments during the passage of the Domestic Abuse Bill. The noble Baroness, Lady Williams, told us during the passage of the Bill that the guidance to MAPPA would be extended to specifically include stalking. I thank the Minister for writing to those of us who were involved with a draft of the guidance but, as she knows, there are other issues that we believe are still outstanding. In particular, we still believe that there is a need for a stalking register.
Since the passage of the Domestic Abuse Bill, more women have been murdered by their stalkers, and cases have emerged involving histories of stalking, coercive control and/or domestic violence which were not managed even when police and other bodies knew about them.
In May, a domestic homicide review found that the response to Natalie Saunders’ concerns about her boyfriend meant that the authorities did not properly protect her. The approach of the police and other services to escalating risks lacked urgency and co-ordination. In the four months before her murder, seven instances of domestic violence were reported. Despite court orders relating to other women, information was not shared or acted on. The result: he murdered her.
In June, young model Gracie Spinks was murdered by an obsessed colleague. She had reported him to the police, but they did nothing. The result: he murdered her.
Finally, in May, Theodore Johnson was convicted of strangling Angela Best. He already had two manslaughter convictions relating to former partners, yet the system did not pick this up and monitor him. The result: he killed his third partner.
So I join the noble Baroness, Lady Bertin, the noble Lords, Lord Russell and Lord Polak, and many others in backing the Domestic Abuse Commissioner’s recommendations for stronger definitions of domestic homicide and a recognition that the escalation of domestic violence into serious violence must be dealt with by all the agencies involved—and, as I have said before, we need a stalking register too.
Turning now to Part 4 of the Bill, I wish to join the many others who have spoken on the parts that will essentially criminalise our Gypsy, Roma and Traveller community. The noble Baronesses, Lady Whitaker, Lady Chakrabarti and Lady Bakewell of Hardington Mandeville, and many others have all set out the case eloquently. The proposals in the Bill are nothing less than dog whistles of the worst kind, which deliberately misrepresent an already severely marginalised community.
Liberty’s excellent briefing sets out how the wording in the Bill is too loose and woolly and will give people in authority powers to push GRT people away, or worse. I want to focus on just one claim by the Government, which is that this is not discriminatory. Gypsies and Travellers have for centuries had a right to a nomadic life. Some 20 years ago there was a requirement on local authorities to provide authorised encampments. Most did not—a failure of planning responsibilities, as the noble Baroness, Lady Massey of Darwen, has pointed out. Others have closed those that were available, such as when the Conservatives took control of Somerset, as the noble Baroness, Lady Bakewell, pointed out. The Conservatives are now proposing powers that are disproportionate, discriminatory and frankly unjustified. Allowing police to impound a person’s home is astonishing and criminalises their way of life. I will join many others in bringing amendments to the Bill in Committee.
Lord Russell of Liverpool (CB)
This is such a Clapham omnibus of a Bill that to try to make sense of it could lead one to arrive, potentially, at a bewildering range of destinations. My sympathies are with the Minister, who mounted the bus several hours ago, still has a while to go, and, I suspect, has as little idea as most of us do exactly where she will end up.
I shall focus on three particular areas, all of which are pertinent to the Bill and which share a concern to build on and improve the considerable advances we made in recognising and reducing violence against women and girls, which we spent so much useful time on earlier this year in scrutinising the Domestic Abuse Bill. First, working closely with Nicole Jacobs, the Domestic Abuse Commissioner, I am pleased to support the amendment that the noble Baroness, Lady Bertin, talked about. The noble Lord, Lord Polak, talked about it too, and I am sure that the noble Lord, Lord Rosser, will mention it as well.
Given the Government’s commitment to try to do something about the level of violence against women and girls, I find it extraordinary that the idea of individual choice, or local choice, which seems to be a central tenet of faith for quite a lot of people of a Conservative persuasion, will allow local areas to decide for themselves whether they think violence against women and girls is a serious enough issue to be put on a list of crimes that must be taken into account.
To put this into context, I would ask the Minister and her colleagues in another place how comfortable any Minister, or any MP, would feel, trying to look a grieving family in their constituency in the face and explain why, if they had been so fortunate as to live in an adjoining area that did regard violence against women and girls as serious, their mother, daughter or sister might still be alive. I would rather you did that than I, because I would find it very difficult to talk my way out of.
Secondly, during proceedings on the Domestic Abuse Bill, the Government agreed to require all police forces in England and Wales to start trialling, from this autumn, the recording of misogynistic hate crimes. For that we are extremely grateful. But there is still a major anomaly in current hate crime legislation, in that sex is the only protected characteristic not recognised in criminal sentencing. The Law Commission is deliberating on this, but it has already clearly indicated that this would be a desirable change in the law.
By adding sex, or gender, to the list of aggravating factors in sentencing, our courts would be able to recognise how and when individuals are targeted for criminal acts simply because of their identity. To assist with sentencing, the police could be required to record the data necessary for a prosecution, which could aid the detection and prevention of such crimes. This action would equalise sex or gender with the other protected characteristics under the Equality Act, such as those of disabled people, people from minority backgrounds and members of the LGBT+ community.
During the course of the Bill we will suggest two possible courses of action to the Government. The first would be directly legislating to include sex or gender in Section 66 of the Sentencing Act 2020, which would ensure that those factors could be considered as aggravating factors in an offence. As an alternative, we will propose that, if the Government insist that they wish to wait until they can consider the final Law Commission recommendations, we legislate now to guarantee parliamentary time to consider the review in a timely fashion, by requiring the Minister to enact the recommendations of that review via an amendable statutory instrument under the super-affirmative procedure. I, and the noble and learned Lord, Lord Judge, would be pleased to sit down with the Minister and explain our reasoning.
Thirdly and lastly, as articulated just now by the noble Baroness, Lady Brinton, there is the issue of stalking and perpetrator management. Despite the Domestic Abuse Act and strategies for this and that, the metronome of two women dying every week continues week in, week out. We will come back in Committee with a variety of ways in which we feel this can be mitigated.
We have so much more to do to safeguard the women and girls who rely on us to speak up on their behalf. They are not pulling down statues or assaulting emergency workers; they are in danger of losing their lives. We have a duty of care to them, their families and their children to protect them.
The Lord Bishop of Manchester
My Lords, I draw the House’s attention to my interests as set out in the register, particularly in the world of policing as a trustee of the Clink Charity.
Two centuries ago, in the aftermath of the Peterloo massacre, where a politically motivated militia killed and maimed dozens of citizens who were protesting for voting rights in Manchester city centre, Robert Peel introduced the principles of civilian policing. Those principles have served this country with distinction ever since. British police are civilians in uniform, not agents of state control. Their calling is to police by consent, enabling the public to exercise their rights and freedoms as well as maintaining good order. It is a delicate balance. It requires Governments to stay their hand when proposing legislation and senior police officers to guard their operational independence. It is especially sensitive when the rights of citizens to protest come into the frame.
From Tiananmen Square to the streets of some American cities, we see all too visibly on our TV screens when this balance is lost. More locally, I was curate in the parish that included part of the Orgreave coking plant during the 1985 miners’ strike. The legacy of overaggressive and politically directed policing there, a legacy of broken trust, persists to this day, especially in the continuing absence of a proper inquiry.
I am far from convinced that this Bill maintains that delicate balance. As I read it, a commercial venture such as the much-loved but noticeably loud pop concert that took place two miles from my home—and very audibly from my bedroom—last weekend would have better protection than if those same citizens had been meeting to campaign against a major injustice. Both events may cause nuisance, but it is a strange set of priorities that make it less lawful to protest than to party.
My ministry in the Church of England took me from parish life in South Yorkshire to my first post as a bishop in the diocese of Worcester. There I discovered something of the rich heritage of the Gypsy, Roma and Traveller people. For many generations they have been a vital component of the local economy, not least in providing mobile agricultural labour in the market gardening communities of the Vale of Evesham. Their children were valued members of our church schools, and our churchyards provided the final resting places for the bones of those who had never in life possessed or desired a static place of rest. When complaints were raised with the district council about rubbish on the sites they occupied, we suggested that the local authority meet them to discuss how they would like their refuse collected. An amicable solution was swiftly found.
I note the wise words of the noble Baronesses, Lady Whitaker and Lady Chakrabarti, and others earlier in this debate. It grieves me that long-standing members of and contributors to the rural community are seen as having less right to live in the countryside than someone who has made their wealth in the city and can now afford to buy their trophy home in their chosen idyll. I do not begrudge the rewards of success, but I believe that Britain owes Gypsy, Roma and Traveller people a duty to provide legal sites, adequate in number and appropriate in location, in the places where they, by generations of living and working, belong. That we seek to address their belonging through a policing Bill rather than a Bill to require land to be made available for sites suggests to me that we have our priorities seriously wrong.
As this Bill moves to future stages, I will be keen to offer my support to amendments that properly maintain a balance between the rights of particular groups within society—including Gypsy, Roma and Traveller communities and those undertaking acts of protest—with good policing and the needs of society as a whole. I will also follow with interest those sections of the Bill dealing with sentencing and the serious violence duty. I join other noble Lords, including the noble Lord, Lord Best, in urging that we take this opportunity to repeal the Vagrancy Act.
Perhaps, as a Bishop, I ought to show more gratitude to the Tudor monarch who created the context of a national Church within which I minister, but I am, along with many noble Lords who have spoken today, concerned by the extent of the so-called Henry VIII clauses presently in this Bill. I close by assuring your Lordships that my most reverend and right reverend friends and I on these Benches look forward to engaging with the further progress of this Bill in the weeks and months to come.
Lord Sikka (Lab)
My Lords, I join others in welcoming the noble Lord, Lord Sandhurst, to the House and I look forward to engaging with him in the weeks and years to come. I have considerable concerns about large parts of the Bill which seem to be designed to attack hard-won human rights. I am also particularly concerned that the Bill is empowering Ministers to make laws without any parliamentary approval. That seems to happen only in dictatorships; maybe that is where we are heading.
The Bill would criminalise Gypsy, Roma and Traveller communities without explaining why the Government have failed to provide adequate sites for them. The Government also have in their sights trade unions, workers and peace marchers, who could all be criminalised because their protests are deemed to be noisy and disruptive. Companies can cause disruption by moving production and the Government say that is good and fine, but if workers protest about loss of jobs or homes and cuts to their wages, that is considered to be disruptive, and the full might of the state is unleashed upon them. Did someone ever say that the laws passed by Parliament are even-handed? If so, I would love to see the evidence.
This Bill also creates distrust between people and the police by requiring police commissioners to interpret the new noise triggers embedded in the Bill. People protest because Parliament and Governments are not responsive to their concerns. Whether they are civil rights, feminist, environmental, LGBT or anti-war demonstrators, people are asking to be included in the fabric of society. They ask for dignity and rights and draw attention to the destructive practices of corporations and abuses of power by the state. Rather than building an inclusive society, this Bill would criminalise people of conscience and deprive them of jobs, mortgages, credit cards, travel visas and other things that many of us take for granted.
This week, the good people of Liverpool protested about an arms fair to be held in the city in October. It is not criminal, apparently, for companies to market weapons of mass destruction near schools, homes and hospitals, but under this Bill it would be criminal for protestors to object to such a deadly trade being conducted in their neighbourhood. Obviously, the Government are concerned that corporations should not be deprived of their profits, but people can be deprived of their lives and there would be restraints on demonstrating about it.
So many of our rights are derived from protests. In 1968 the Ford sewing machinists organised strikes and protests to demand equality. They drew attention to legalised discrimination, which paved the way for the Equal Pay Act 1970. Under this Bill, they would all be criminalised. I remember demonstrating against racial discrimination. I made plenty of noise and caused disruption too, so presumably I would also have been criminalised and would not be standing here. Maybe this is the aim of the Bill.
The CND marches created social awareness of the destructive power of nuclear weapons and a climate for international treaties and bans, yet this Bill could criminalise similar protests. It would return us to the era of the Tolpuddle martyrs, when people protesting about wage cuts and workers’ rights were criminalised, prosecuted, silenced and exiled. The power of the state would be, once again, unleased against the likes of the Jarrow marches, seeking jobs and an end to persecution by the state.
As a result of protests, we have a better and more inclusive society. This Bill would reduce the possibilities for emancipatory change. In my final words about the consequences of such a Bill, I quote from President John Kennedy:
“Those who make peaceful revolution impossible will make violent revolution inevitable.”
Is that what the Government are trying to achieve?
Lord Trees (CB)
My Lords, I wish to speak particularly about matters of relevance to this Bill affecting animals and veterinary healthcare delivery. I declare my interest as a past president of the Royal College of Veterinary Surgeons and co-chair of the All-Party Parliamentary Group for Animal Welfare, although I stress that I speak tonight as an individual veterinary surgeon. The two matters on which I will concentrate are pet theft and the abuse and threats facing the staff of veterinary practices and retail outlets.
There has been a marked increase of the offence of pet theft recently, apparently mainly perpetrated by organised criminal gangs stealing for profit and exploiting the national shortage of pets—a shortage that has recently been exacerbated by the demand for pets during Covid. This was discussed in the other place during the passage of this Bill and was the subject of various amendments, none of which was accepted by the Government. But Robert Buckland MP, responding for the Government, said it was their intention
“to make any necessary changes to this Bill in the Lords … once we have finalised the detail of exactly what is needed, using a range of powers, including primary legislation.”—[Official Report, Commons, 5/7/21; col. 675.]
Pet theft is of course covered by existing theft regulations—animals are chattels—and the maximum sentence for theft can already be as much as seven years, which is a substantial sentence. However, the prosecution rates are extremely low, with only 1% of dog crime cases investigated—not reported—resulting in a charge in England and Wales. Given these facts, would it not be constructive to ensure that the offence of pet theft is given appropriate priority, prosecution rates are improved and guidance in sentencing is revised to reflect what is clearly a substantial public and political concern about this crime? The Home Secretary herself has said that
“Stealing pets is evil and depraved. It brings profound unhappiness. It cannot and will not be tolerated.”
I ask the Minister whether the Government are proposing to bring in amendments to this Bill to reduce pet theft.
The second issue I raise is the abuse and aggression being encountered by staff in public-facing roles that provide animal health and welfare care. This problem mirrors the problems faced by many in front-line public-facing roles, and there is currently protection specifically for assaults on emergency workers in the Assaults on Emergency Workers (Offences) Act 2018, the scope of which includes those providing NHS healthcare. Veterinary staff are not included within that protection, nor does it include any protection against abuse and aggression.
Apart from the obvious differences, there are other differences and similarities between NHS staff delivering human healthcare and veterinary staff delivering animal healthcare. Both deal with situations that are emotional and difficult, even without the added problem of aggressive and threatening behaviour. However, animal healthcare is not free at the point of care, so veterinary staff have the additional problem of having to charge clients for the care they seek to give the clients’ animals. Lastly, the veterinary patients are not necessarily as compliant as humans might be. I contend that there are particularly aggravating circumstances that face those delivering animal healthcare.
In the last year and a half, veterinary staff have done a fantastic job maintaining healthcare services with all the constraints required to interact safely with clients. Due to Covid-19 safety procedures and staff shortages, inevitably clients have had to wait a few weeks for routine measures such as booster vaccinations when they are used to appointments in a day or two. Most clients have been understanding, but an increasing minority are unacceptably abusive and aggressive, to the point where staff who are trying to examine and treat sick animals are fearful, feel threatened and are leaving their jobs in some instances, and the police have been called and property has been damaged. It is frequently reception and nursing staff, the majority of whom are female—as indeed are the majority of our young vets—who bear the brunt of this. This is not just Covid-related; there has been an underlying and growing problem, and social media aggravates this situation in many cases.
Sadly, a vicious circle is in danger of emerging, where the loss of staff due to extremely abusive, aggressive behaviour is further exacerbating the challenge of providing the efficient and timely service characteristic of veterinary healthcare. Much greater legal protection for our front-line animal healthcare staff is needed. Will the Government consider extending the scope of the assaults on emergency workers Act to include staff delivering animal healthcare? Secondly, is the Minister satisfied that there are existing measures in place to deter abuse and threatening behaviour in the execution of such an important role as delivering animal healthcare?
Lord Balfe (Con)
My Lords, I begin by joining the welcome to my noble friend Lord Sandhurst. We are delighted to have him among our colleagues on these Benches.
I thank the various people who have briefed me for tonight, in particular the union UNISON, the Trades Union Congress and the Quakers—a trio of very socially responsible bodies. One of the things they have drawn to my attention is a recent Court of Appeal judgment, where it was held that:
“In a free society all must be able to hold and articulate views, especially views with which many disagree. Free speech is a hollow concept if one is only able to express ‘approved’ or majoritarian views. It is the intolerant, the instinctively authoritarian, who shout down or worse suppress views with which they disagree.”
I think that is a very useful start for where we are going.
To an extent, the Minister will have a huge amount of work clarifying matters in this legislation, because what is not clarified will of course end up in the Court of Appeal. If we do not make it clear, it will be clarified by judges, and fortunately—I hope—they will bear in mind such documents as the European Convention on Human Rights and others which have guided judicial findings to interpret this Bill.
One of the difficulties we have—which the noble Baroness, Lady Fox, alluded to—is that there are some people at the moment who deliberately exploit an anarchic way of conducting protest, not because they believe in the protest but because they believe in trying to get the consequences of the anarchy to panic society into taking decisions which could well turn out to not be very wise.
Having said that, the trade union movement welcomes the protection for emergency workers and looks forward to finalising and refining this legislation, so that it deals comprehensively with a body of workers who have had enormous amounts of problems.
I think the noble Lord, Lord Sikka, has left us, but he mentioned Orgreave. If we are actually interested in looking at the consequences of protest, there is a protest that could well do with some official looking at.
The definition of nuisance is a very movable feast, and we have to look very carefully at the borderline between what I would call peaceful protest and noisy and deliberate protest. As has been said, the whole nature of protest is often noisy. I have been on demonstrations in my time, and it is a very common thing—it is a sort of crowd coalescer—that you will have a slogan and you shout it out and it has a meaning for the people there. Most people who go on a demonstration in the classical sense are there because they have a reason for being there. They do not think, “What shall I do today? I know, I will go and demonstrate.” They are there because they are either in favour of something or against something, but they feel strongly about it.
If you bring in a penalty, as has been mentioned, of 10 years for disturbing flowers on a war memorial, it will never be imposed. It is as simple as that. It would be foolish legislation because no magistrate would ever impose that sort of punishment. I suspect we will spend considerable time looking at the Bill and dealing with its detail, but I hope, at the end, we will have a better Bill, because there are good parts of it, but there are also parts that need very careful examination.
Lord Brooke of Alverthorpe (Lab)
My Lords, I have been on many demonstrations in the past and I have caused a lot of trouble in my previous life. There is some of this Bill I dislike—that has been well examined so far today and will be further examined, and I will support that examination—but there are parts of the Bill that I like too. As I get older, I get more and more modest in my aims and I am particularly pleased that the Government, in Part 5, at Clause 65, are addressing the issue of drink-driving. I presented a report from a sub-committee in 2002, urging that we should reduce the limit from 80 milligrams to 50. The rest of the world has moved on and gone down to 50 and below, and Scotland has gone down to 50, but we remain, along with Malta, the only country in Europe that still has this 80-milligram limit. Are we not brave, sticking it out on our own? We were cutting the numbers of deaths on the roads up to about 2010 but we have plateaued since then. Indeed, in the last 12 months the number of deaths on the road has gone up, and it is time we came back to this topic again and reviewed it.
I got a Private Member’s Bill through this House in 2016 to reduce the limit; it never got into the Commons. I am giving notice that I will again bring forward amendments in Committee seeking to put us into line and be sensible, and I hope the Government will be sensible in their response. Clause 65 increases the maximum penalty for causing death by dangerous or careless driving while under the influence of drink or drugs from 14 years’ imprisonment to life imprisonment. I support that. However, to help prevent drink-driving injuries and fatalities, the Bill should be amended to bring in a new, lower drink limit in England and Wales, backed by appropriate enforcement and provision of alternative transport choices. England, Wales and Northern Ireland, as I said, have some of the highest limits and we have a big problem starting to arise again, and it is related to drugs as well. Action has been taken and the law has been changed, but further steps need to be taken.
The recent report by the Parliamentary Advisory Council for Transport Safety noted that drink-driving is one of the biggest causes of road deaths: 13% of the deaths we see on the roads arise from drink and related drugs. What is not frequently mentioned or covered is the high number of very serious injuries that people suffer from being involved in accidents with people who are driving with too much drink or with drugs. That is an equal concern for us and I hope that the Government will address it. In looking to the idea of changing, I hope they will take the statistics into account about those serious injuries.
It is late in the evening and I have not a great deal more to add. The case has been made in Scotland and throughout the whole of Europe. We are well out of step. If we want union with Scotland, let us get in line with Scotland. I hope the Minister will act this time around. I think her colleague the noble Lord, Lord Ahmad, dealt with this previously and put up a rather timid defence on behalf of the Government, but none the less obdurately stuck with where they were. I hope she will be prepared, this time around, to look at the evidence and to change, bringing us into line with what happens elsewhere.
Earl Attlee (Con)
My Lords, I agree with much of what noble Lords have said in this debate but I intend to say something new. I look forward to debating the issues raised by the noble Lord, Lord Brooke; we have talked about them much in the past.
We know from the chief inspector’s reports and our debates that our prison system is absolutely hopeless at preventing minor offenders reoffending. However, few noble Lords have suggested any alternatives to the current situation. The Centre for Social Justice has proposed a new custodial sentence for the adult criminal courts: an intensive control and rehabilitation order. I support this and pay tribute to the work of my noble friend Lady Sater on the project.
The order is wider in scope than any pre-existing community-based order and is applicable to a cohort of individuals who would otherwise have served a sentence of immediate custody within the secure estate. To allow for this to happen, electronic monitoring, together with curfew requirements, would be used to achieve the restraint of liberty necessary to satisfy the punitive element of the sentence while offering sufficient protection for the public. At the same time, and because of the environment in which it is served, the sentence would enable those candidates deemed eligible to maintain stabilising relationships and engage in rehabilitative activities and requirements in the community.
Those sentenced to an ICRO would attend periodic reviews before the court—in the form of a problem-solving court—to monitor progress and enable the court to make the necessary adjustments to the condition of the order as the sentence progresses. An ICRO would be appropriate when a suspended sentence order would have an insufficient punitive or rehabilitative effect, and normally limited to cases involving no more than three years of custody. Crucially, the court must be satisfied that the defendant has demonstrated sufficient will to comply with the conditions of the sentence. I urge noble Lords to study the CSJ’s proposals.
I have already made my own proposals to your Lordships for drastic reform of the Prison Service in respect of prolific minor offenders; I recently inflicted on your Lordships an electronic copy of them, which I am sure was welcome. I propose this new sentence: to be detained for training at Her Majesty’s pleasure, or DFT. It would take over when the ICRO is not appropriate, and will be extremely controversial because it does not use the secure estate and makes extensive use of ROTL. DFT has much more compulsion—or strong incentives, at least—built into it, and release is dependent on reaching the required levels of education, training and conduct rather than having served a certain length of time inside a prison with no discernible improvement. Of course, there would have to be a legal cap on the length of time that could be served.
The ICRO and DFT fit closely together and would have the effect of avoiding using prison when it is so obviously useless for the intended cohort. In Committee, I will move suitable amendments to debate DFT. I have no intention of asking your Lordships to agree to them; rather, I hope that we can test whether my proposals are fit for purpose. I therefore hope that some noble Lords—or their advisers—will read my proposals.
Baroness Meacher (CB)
My Lords, this is indeed an important piece of legislation, which has some useful proposals but could do so much more to reduce crime. Instead, it could deepen existing problems within the criminal justice system. In these few minutes, I want to touch on just a few issues.
On crime reduction, the worst aspect of the Bill is the absence of any attempt to prevent serious crime through radical reform of our drug laws. There is also the absence of any reference to the need to extend the use of restorative justice. These are two huge gaps in the Bill.
To refer to a key innovation in the Bill, I share the considerable concerns of the interested NGOs and many noble Lords about the proposed serious violence reduction orders. I understand that serious violence certainly needs to be tackled more effectively than at present, but it should not be as proposed in the Bill. At our recent meeting, the Delegated Powers and Regulatory Reform Committee, which others have mentioned and of which I am a member, expressed concern about the powers delegated to the Secretary of State to issue guidance on the exercise of police functions in relation to these orders. Such guidance could increase the risks of harm to innocent individuals and yet have no parliamentary oversight. As the noble Lord, Lord Blencathra, set out, we have other concerns about the delegation of powers in the Bill. I want only to endorse our excellent chairman’s comments.
The gaps in the Bill are so serious that they cannot be deemed just baubles that we are trying to put on to a Christmas tree Bill; they are huge issues, with huge potential. We know that a majority of prisoners have an addiction to or problem with drugs, which undoubtedly lies behind their crimes. We also know that the proportion of inmates who report developing a drug problem in prison almost doubled to about 15% in five years. This will of course lead to more crime.
It is clear that our drug laws are dramatically increasing rather than reducing crime. We have the most draconian drug laws in western Europe yet the highest level of hard drug addiction. If this country looked at the evidence on how best to reduce drug addiction and drug harms, therefore reducing crime, this Bill would be full of drug policy reforms; instead, the topic is entirely absent. Switzerland has shown that providing legal, clean heroin in a therapeutic setting can lead to two-thirds of heroin addicts leading perfectly legal lives within 18 months. The Swiss research shows that heroin addicts typically commit 80 crimes every month. I would have thought that is the sort of reduction we would want. Portugal has shown that decriminalisation of drug use can reduce teenage addiction, increase the number of those in treatment and reduce the prison population. If we want to reduce crime even more, we should, I suppose, go even further and regulate cannabis, separating it from the hard drug market and smashing the profits of the drug dealers and criminal gangs while massively reducing crime.
The APPG on Restorative Justice has just completed an inquiry report which shows, among other very positive results, that 96% of offenders taking part in restorative justice said that the process directly increased their motivation not to reoffend—again, reducing crime. If we are serious about reducing offending, this highly cost-effective approach should surely be mainstream. One study showed that for every £1 spent on restorative justice, criminal justice agencies saved £8. The Government-commissioned Shapland reports found that restorative justice has an 85% satisfaction rate for victims. I hope the Minister will respond to these few points.
Many other issues need attention: aggressive anti-abortion protesters; hit-and-run drivers; the issue raised by the noble Lord, Lord Pannick, of non-consensual, intrusive photography of women—to mention just three. We have a great deal to debate in Committee.
Lord Berkeley (Lab)
My Lords, as the last Back-Bench speaker, I want to introduce my speech by saying to my noble friend Lord Brooke of Alverthorpe that I can beat him when it comes to making noisy protests, because I did one last week and he clearly did not.
I shall concentrate on Part 5, on the road traffic issues, which we have been debating for 10 years if not longer ago than that, especially with the noble Earl, Lord Attlee. The problem is partly that we never quite know who is in charge: is it the Ministry of Justice, the Home Office or the Department for Transport?
The poor old road user wants to use the road safely, whether for cycling, driving, walking, coaches or trucks—we will have scooters soon, I think. The penalties need to be fair, proportionate and a deterrent, as many noble Lords have said. Much of this legislation goes back decades—perhaps even to the horse and cart—and it is interesting that, in 2014, the Government promised a full review of the framework for road traffic offences, but it never happened. There were some limited proposals in 2017, but there is an argument for having a much wider overhaul of the legal framework to address its many failings and prevent the proposals in the Bill having unintended adverse consequences. Some of the proposals are good, so, along with others, I will bring forward some amendments in Committee, largely supporting the work of Cycling UK and RoadPeace.
I will give examples of three issues. Drivers routinely escape driving bans by pleading that this would cause exceptional hardship. A statement or speech by a Member of the House of Commons yesterday quoted a Bentley driver—the Bentley cost £160,000, I am told—who escaped a speeding disqualification by pleading that he had to use the car to walk his dog. That is pretty stupid, and I have some examples from where I live in Cornwall that are equally stupid. We need to look at this—exceptional hardship is a cop-out, frankly.
We need to look at the maximum sentences for hit-and-run offences when someone is left very seriously injured. I come back to the full review of offences and penalties, as promised seven years ago; we need to look at the legal distinction between careless and dangerous driving, driving bans, interim driving bans and a few other things—I know that the noble and learned Lord, Lord Hope, referred to some of those in his speech.
My question to the Minister is this: how can we take this forward, together with the noble Lord, Lord Wolfson, the noble Baroness, Lady Vere, and perhaps the Home Office, so that we can get one policy, a decision and a series of meetings, rather than being played off against one another, which I fear has happened in the past? Perhaps the Minister could respond to that.
Lord Hogan-Howe (CB)
My Lords, with some trepidation, I rise to speak in the gap after such a long day. I thank the noble Lord, Lord Marks, for his understanding. I only want to speak briefly to three points.
First, I support a comment made earlier by the noble and learned Lord, Lord Thomas. I support the Government’s attempts in the Bill to withdraw digital evidence from mobile phones for sexual offence victims, but the problem is wider than that. There will have to be a radical reform of the criminal justice process because of the volume of digital evidence, the ability of the police to withdraw and analyse it and, finally, the ability of the disclosure Act to cope with the challenges that it faces. I support further action on that point by the Government.
My second, main point is about the right to protest. I know that people are concerned about this, and sometimes the police are too, but it is reasonable to ask for an incremental response to changing protester tactics. Many of the points raised in both the submissions by the police and the Government’s response are a reasonable response to some of the challenges that the police and the public have faced. The police are often challenged for not taking action if the law does not allow them to, and then of course they are challenged if they take too quick action. We have seen the two extremes in the Oxford Circus protests a couple of years ago and in the recent actions on London Bridge, where completely different actions led to protests and complaints about the police. However, I think it is important to make sure that the police can respond.
We have talked about whether noise is a nuisance factor sufficient to break the standard of whether or not criminal law should get involved. This is not merely about simple nuisance; it is about whether noise becomes an intrusive feature of people’s lives. It can be to do with its volume, its persistence or its content. It can be different if it is your home or your place of business, or if you are the leader of a business that is being protested about. It is important that we consider these important matters.
There is also the point that we have a right to balance the needs of the protester with our right to expect that an ambulance can get through traffic to give us help when we require it. I am afraid there have been times when that has not been the case. Only this week at Heathrow, some people needed to travel for very good reasons but could not. Of course it was right for the protesters to make their point, but are they to be the only arbiters of whether what they do is okay or should the people disrupted by their actions have a right of remedy and the police intervene on their behalf, to be tested eventually in the courts? I argue that in these cases it is important that there is an opportunity to intervene. I agree with the noble Baroness, Lady Fox: there have been times when I have wondered whether the police could have taken more action with the existing laws but, frankly, sometimes case law has developed in ad hoc ways that have left them with dilemmas about particular circumstances that have arisen later.
My final point is about three amendments that will be tabled which have been proposed mainly by the Police Federation, and I happen to agree with them. The first is about the defence available to police drivers when they break the law on our behalf, either to attend an incident or to pursue other cars. If we do not want that to happen then we should say so, but if we do then we have to support them when it gets difficult. I am afraid that officers have been under investigation for long periods of time. That leads to the second amendment, which is about how long that process takes. Often the reason why it takes so long is the sequential nature of the consideration of the investigation of the officer, first by the force, then by the CPS and then by the Independent Office for Police Conduct—and lastly it goes back through that process again. I do not understand why that cannot happen in parallel rather than in sequence. It cannot be right for either the victim or the officer to be under sustained investigation for so long.
I thank noble Lords for their indulgence. Those were the points that I wished to make.
Lord Lexden (Con)
My Lords, I do not crave quite as much indulgence as the noble Lord, Lord Hogan-Howe, since I put my name firmly on the list but, sadly, was omitted from the final version of it—surely something that should be made an offence under the Bill.
I have an additional decoration, if I may be allowed to present it, for this heavily laden Christmas tree Bill. It is a very modest addition which would deal with an issue that I have raised repeatedly over the last few years alongside my friend the noble Lord, Lord Cashman, who cannot be in his place today. That issue is the inadequacy of the current schemes under which those convicted of or cautioned for certain offences that turned gay people into criminals in the past can secure disregards and pardons now that those offences, which should never have been on the statute book in the first place, have been swept from it. It is the issue to which the case of Alan Turing first gave prominence.
The schemes under which pardons can be made available are inadequate because they do not encompass the full range of offences under which gay people have in the past been convicted of or cautioned for conduct that today would be entirely lawful. Five years ago, at the time of the last major policing legislation, the Government accepted that the schemes needed to be extended.
The Home Office has had the detailed information that it needs for action in its hands for years; it was sent to it in 2017 by Stonewall and Professor Paul Johnson of York University, the country’s leading legal expert on this subject. They submitted a comprehensive list of all the relevant offences. Since then, Professor Johnson has tried to assist the Home Office by furnishing it with two draft Bills and a draft statutory instrument that it could have amended, and if necessary refined, as a basis for its action.
The noble Lord, Lord Cashman, and I, working in close association with Professor Johnson, have asked a string of Oral and Written Questions and corresponded with my noble friend the Minister, all to no avail. Year after year we are told that the Government’s researches are still continuing. While I and my colleagues recognise and respect the Home Office’s unique expertise, we simply cannot understand protracted delay, given the information which is in the Home Office’s possession. The Government’s inaction condemns a substantial number of people—we do not know exactly how many—to go on living with convictions for conduct that is now lawful, convictions for which the Government have a clear commitment to provide pardons. Worse still, as the years pass some are dying with justice still denied to them.
In all this there is a profound irony. Scotland has already solved the problem. Under its legislation, pardons can be made available for any offence that in the past regulated or was used to regulate sexual activity between people of the same sex that is now lawful. In Committee, I intend, in conjunction with the noble Lord, Lord Cashman, to bring forward an amendment to create in England and Wales arrangements analogous to those in Scotland. I hope that it will attract wide support in the House and that the Government will be minded to accept it.
Lord Marks of Henley-on-Thames (LD)
My Lords, I too congratulate the noble Lord, Lord Sandhurst, on his excellent maiden speech. I have known the noble Lord for very many years, and it is a pleasure to be with him in this House. I look forward to working with him, particularly on access to justice.
The noble and learned Lords, Lord Falconer, Lord Judge and Lord Garnier, my noble friends Lord Paddick and Lord Beith and many others have attacked the size of the Bill. The Constitution Committee’s report was damning. Paragraph 5 stated:
“Bills of this size and complexity impede proper legislative scrutiny in Parliament. This is not the first time the House has encountered this problem. It should not be repeated.”
The fact that we are spending seven hours at Second Reading, with 66-odd speakers, time limited, debating such a raft of disparate measures makes the point. Each of the first 12 parts of the Bill would have justified a Bill of its own.
My noble friend Lord Paddick pointed out that the Long Title brings within scope amendments to cover the whole gamut of criminal justice topics, and so we can expect many. We will need a great deal of time in Committee and on Report to do this justice. This Bill arrogates power to the Executive, effectively sidelining Parliament. The noble and learned Lord, Lord Judge, and the noble Lord, Lord Blencathra, laid bare the way this Bill usurps the role of Parliament with wide and unacceptable regulation-making powers.
There is, of course, much that we welcome: the earlier rehabilitation of offenders, long worked for by my noble friend Lord Dholakia, and the police covenant, on which my noble friend Lady Harris spoke so knowledgably, to make sure officers and retired officers get the support they deserve. In principle, we welcome the regulation of the intrusion of extraction of information from mobile phones, but innocent victims of offences must be protected and not deterred from pursuing prosecutions by the fear of losing their devices and having their private information trawled through by strangers. The noble and learned Lords, Lord Judge and Lord Thomas of Cwmgiedd, highlighted the difficulties.
However, this Bill seriously threatens fundamental liberties. The noble Baroness, Lady Williams, denied any such threat. We disagree. The right to peaceful assembly and protest is fundamental in a democracy and it is axiomatic, as so many have said, that protests are noisy and often unruly. Yes, they may cause disruption, inconvenience and nuisance, but that is all part of dissent being permissible and being heard. My noble friend Lord Oates and the noble Baroness, Lady Bennett, passionately argued this case in relation to climate change. Certainly, Greta Thunberg’s original solo school demonstrations were not noisy, but Extinction Rebellion, and no doubt the noble Baroness, Lady Bennett, are squarely in the Government’s sights.
The “Today” programme this morning reported on the anxiety of young people about climate change—on the reluctance to have children, on the feeling that the world is doomed. This is not our world now, but theirs. Are the under-35s represented in Parliament? No. Do we, the over-50s, understand their concerns? At an intellectual level, yes. But as a personal threat? Bluntly, no. As one summed it up, “For us, it is personal.” How are they to be heard? Through protests. Will they be noisy? Yes. Offensive? Probably. May they
“result in serious disruption to the activities of an organisation”,
using the words of the Bill? What about demonstrations outside company meetings or political meetings? The Constitution Committee rightly concluded that the noise trigger provisions offend against Article 10 convention rights to freedom of assembly. And who makes the regulations to define “serious disruption”? Why, the Secretary of State, of course—no matter their age, nor how authoritarian or illiberal their attitudes. The noble Baronesses, Lady Jones and Lady Chakrabarti, my noble friend Lady Miller, the noble Lord, Lord Dubs, and others made these points graphically.
The sentencing provisions in the Bill are overwhelmingly retrograde, pandering to the tabloid view that longer sentences reduce crime. But all the evidence is to the contrary, as my noble friend Lord Beith pointed out—granted that locking up people for longer affords the public the temporary protection of keeping some offenders in custody. But the price of that protection far outweighs any benefit. We pay the cost of imprisoning more people than any other nation in western Europe, but we also institutionalise offenders; we break up families; we make offenders less employable and therefore more dependent on the state; we overcrowd our prisons, which have become violent academies of crime; and so we increase reoffending and the human, social and financial cost of divided and criminalised communities. Yet the Bill establishes more minimum sentences; restricts the discretion to depart from some in cases where there are exceptional circumstances; increases many terms to be served from half to two-thirds of notionally determinate sentences; and ends automatic release at the halfway point for many sentences.
On community sentences, we see increased curfew hours and periods, but nothing about increasing help for offenders to turn their lives around. There is provision for recall to custody for breach of community orders, with short custodial penalties, in the face of all the evidence that these do not work and have a disproportionate effect on women and minorities and an adverse effect on families—points persuasively made by the right reverend Prelate the Bishop of Gloucester.
We need fewer offenders in prison and more looked after in the community. We must address the personal issues that caused their offending: mental ill-health; histories of physical and sexual abuse; drug and alcohol addiction, as the noble Baroness, Lady Meacher, said; homelessness; and missed educational opportunities. None of this is new. But it is desperately sad that a Bill said to be directed at overhauling our criminal justice system is misguidedly focused on imprisoning more people for longer, on reducing judicial discretion and on abandoning important principles that have long underpinned our justice system. We will support the attempt of the noble Baroness, Lady Meacher, to increase the use of restorative justice, for all the reasons she gave.
We agree with the noble and learned Lord, Lord Brown of Eaton-under-Heywood, that we must now end the utter scandal of detaining IPP prisoners indefinitely, way beyond their tariff term. We will support the Children’s Society-backed amendments to ensure that serious violence reduction strategies prioritise protecting children and young people. We will oppose groundless stop and search for persons who have been once convicted of any offensive weapons offence, even on a joint enterprise basis. That is an unjust and racially divisive proposal.
On encampments, we see no reason for criminalising trespass with intent to reside, for the reasons explained by my noble friends Lady Bakewell and Lady Brinton, and by the noble Baroness, Lady Whitaker. The proposal is unnecessary; there is already a wide range of eviction powers in existence. The proposed new powers rely far too much on the subjective judgment of the police. This proposal is discriminatory; it is also one-sided. If encampments are to be restricted, we need adequate local authority provision of safe and approved sites for the Traveller community.
On sentencing for assaults on emergency workers, we agree—but why not include retail workers, transport workers and public service staff? This provision needs rethinking to extend it to protect those providing a public service.
On remote hearings, we agree with the proposals for more—and more efficient—such hearings in appropriate cases beyond the pandemic. But we also agree with the noble and learned Lord, Lord Thomas, and the noble Lord, Lord Pannick, that such cases do not include jury trials. Jury trials depend, as the noble Lord, Lord Pannick, said, on working relationships between judges and juries; but they also depend, crucially, on discussion and debate among jurors, which cannot be properly achieved on Zoom or Teams. For my part, I have long said that I would like to see more public broadcasting of proceedings—at the discretion of judges, certainly—for the purpose of improving open justice, but that is a different matter.
Finally, noble Lords have spoken of the missed opportunity to add more protections for women and girls. The noble Lord, Lord Pannick, argued for an amendment to be moved by the noble Baroness, Lady Hayman, which we will support, extending the upskirting legislation to cover photography without consent of women while breastfeeding. We agree with the noble Baroness, Lady Greengross, and others that serious violence should explicitly include domestic and sexual abuse. We also agree with my noble friend Lady Brinton, the noble Lord, Lord Russell, and others who will propose amendments to increase the surveillance of offenders and introduce further measures on domestic violence.
There is much to debate in the Bill and much of it is not good.
Lord Rosser (Lab)
I start by saying that our thoughts and good wishes are very much with the noble Lord, Lord Wolfson of Tredegar, who is not able, for unavoidable reasons, to be with us today on the Government Front Bench. I add my congratulations, as so many other noble Lords have done, to the noble Lord, Lord Sandhurst, on his well-received maiden speech. We know that the noble Lord has a great deal to offer your Lordships’ House and we look forward to what we hope will be many more contributions from him.
The Bill has been strongly criticised by many noble Lords in this debate; not least the noble Lord, Lord Blencathra, and the Delegated Powers Committee which he chairs, for its extensive use of delegated powers—I think there are 62—that are not open to proper, or any, parliamentary scrutiny and which leave the interpretation of words in the Bill to the Home Secretary and the police. Let me remind your Lordships what the committee said:
“We are surprised and concerned at the large number of inappropriate delegations of power in this Bill … We are particularly concerned that the Bill would … allow Ministers—and even a non-statutory body—to influence the exercise of new police powers (including in relation to unauthorised traveller encampments and stop and search) through ‘guidance’ that is not subject to parliamentary scrutiny”.
The committee went on to say that the Bill would
“leave to regulations key aspects of new police powers—to restrict protest and to extract confidential information from electronic devices—that should instead be on the face of the Bill; and … allow the imposition of statutory duties via the novel concept of strategy’ documents that need not even be published.”
No wonder the DPRRC, and so many noble Lords today, are concerned.
A number of noble Lords have also criticised the Bill for, shall we say, a certain lack of brevity. This 177-clause, near 300-page, 13-part and 20-schedule Bill covers a multitude of different matters for which the Ministry of Justice and the Home Office have primary responsibility.
As my noble and learned friend Lord Falconer of Thoroton said in detailing our 11 areas of concern—which I shall not repeat—there are significant new measures in the Bill with which we profoundly disagree, and significant issues that have been ignored in the Bill. However, as my noble and learned friend also said, there are parts of the Bill which we support. They include, for example, the introduction of the police covenant, for which the Police Federation has long campaigned, and addressing assaults against emergency workers, which should also be extended to key workers such as those in retail.
On the police covenant, there must be more than warm words from the Government. We will be looking to strengthen it, particularly with regard to health, including mental health and trauma, and, crucially, independence. The covenant must be a chance for the police to lead, and government to listen, on the needs of the police workforce.
On retail workers, it is important to recognise that assaults are not just a problem born of the pandemic. Although the pandemic heightened it, this has been a rising problem faced by shop workers for many years. Amendments on this issue had cross-party Back-Bench support in the Commons, and the Government said they would consider the matter and bring forward an amendment in the Lords “if appropriate”.
In a response to the Home Affairs Select Committee, published last week, the Government said they were not complacent on this issue, and repeated their plan to consider it as part of this Bill. They also said that they would “take into account” the text of the Protection of Workers (Retail and Age-restricted Goods and Services) (Scotland) Act, which has recently come into force in Scotland. I pay tribute to the work of Daniel Johnson MSP as the leading Member involved. The Bill was passed unanimously, including with support from the Minister’s own party.
What does the Government “considering” the issue actually mean? What meetings have Ministers held over the summer with business, trade unions and groups, including the British Retail Consortium, on this matter? When is the consideration going to be completed and a conclusion reached? I trust that the Minister will be able to address these points in the Government’s response to this debate.
As I have already said, there are significant new measures in the Bill with which we profoundly disagree. As so many noble Lords have said, the right to protest is a cornerstone of our democracy. Yet the Bill considerably extends the conditions that can be imposed on the exercise of that right of non-violent protest, as my noble friend Lady Chakrabarti reminded us. This is perhaps a government reaction to the aspects of the Extinction Rebellion and Black Lives Matter protests to which Ministers took very public exception.
Just one example of that extension of power is the fact that the Bill makes
“the noise generated by persons taking part”,
if it causes people
“serious unease, alarm or distress”,
a reason for the police to be able to impose conditions. The vague terminology creates a very low threshold to meet, and could be used to seriously limit or rule out peaceful protest. As so many have already said, protests tend to be noisy, because one objective is to attract attention to the cause in question. The Bill then provides for penalties for someone who breaches a police-imposed condition on a protest where they “ought to have known” that the condition existed, which would in effect criminalise even people who unwittingly breach conditions.
Yet in our view the police already have sufficient powers under existing laws to address serious disruption arising from protests that never were, or that have ceased to be, peaceful and legitimate. Those existing powers strike a balance between legitimate rights and the need to keep order, which is not what the deployment of the additional extensive powers being sought in the Bill is likely to do. In our view, the Government have got the balance wrong.
As I think my noble friend Lord Blunkett said, getting words right really matters, and the terminology in this Bill is often vague and open to different and damaging interpretations, not by Parliament but by those to whom the power of definition and interpretation is given. As the noble and learned Lord, Lord Judge, said—I hope I quote him accurately—
“We do not know what this Act means”.
There is also a real risk that some community groups who have legitimate concerns and want their voices heard will look at the provisions and powers in this Bill and decide that non-violent protest is potentially too risky for them. That would certainly have serious implications for the concept of policing by consent, apart from on the democratic right to protest peacefully.
Another part of the Bill contains clauses on unauthorised encampments, about which my noble friend Lady Whitaker and many other noble Lords have spoken so powerfully. These clauses create a new offence, backed up by custodial or financial penalties, of residing and—it seems—having an intention to reside on land without consent in or with a vehicle. This offence is clearly targeted at Gypsy, Roma and Traveller communities. Under the powers in the Bill, the police can seize and remove property if they “reasonably suspect” that the new offence has been committed, which could mean seizure and removal of a vehicle which is a person’s or persons’ primary residence. The police do not believe that criminalisation of unauthorised encampments will do anything other than make situations worse, and they have said that the shortage of sites to occupy is the real problem that leads to unlawful encampments.
A duty to tackle and prevent serious violence is introduced under the Bill, and we support the intention of the serious violence duty to get every agency working together locally to tackle violence. However, we are concerned that there is no provision in the Bill to safeguard children and that the Government have rejected calls for a new definition of child criminal exploitation. We also want to see it made clear in the Bill that domestic abuse or sexual violence, particularly against women and girls, counts as serious violence. As has been said already, it is a national—not local—issue. This issue is being pursued in particular by the noble Baroness, Lady Bertin, and the noble Lords, Lord Russell of Liverpool and Lord Polak.
We are concerned, too, about data capture elements in the Bill and the sharing of information between agencies including the police. In particular, we want effective protection of victims, not least victims of rape and sexual abuse, from demeaning and often unnecessary intrusion into their lives by the examination of their phone data by strangers, as has been said. We are currently working with the Victims’ Commissioner on these data extraction issues.
Under the Bill, and following their being piloted, serious violence reduction orders would allow police officers with such orders to stop and search people with previous convictions involving an offensive weapon, whether used or being carried at the time of the offence. Frankly, it is hard to believe that such sweeping powers to stop and search such people without the officer having reasonable grounds and without authorisation will reduce serious violence when the evidence shows that it is intelligence-led searches which produce results.
This is a divisive Bill which challenges the continuation of long-standing basic freedoms while failing to address legitimate public concerns about keeping people safe—not least women and girls. As my noble and learned friend Lord Falconer of Thoroton pointed out, this Bill should have been the opportunity to make positive changes to the criminal justice system to better victims’ experience of it and ensure that it works for everyone and to put in place long overdue protections for women and girls against unacceptable violence. Despite the impact of a decade of government cuts to the police and the justice system, that opportunity has been ignored, and instead we have a government Bill that does more to protect statues than women, does nothing to better victims’ experience of the criminal justice system and clamps down on the democratic right to protest. As a result, there will no doubt be many amendments to this Bill put down in Committee and on Report. It now remains to be seen whether there are significant issues of concern about this Bill—which have been expressed today—on which the Government will be prepared to move of their own volition.
Baroness Williams of Trafford (Con)
My Lords, I thank all noble Lords who have taken part in today’s debate. I start by thanking the noble Lord, Lord Rosser, for his kind words about the noble Lord, Lord Wolfson; I am sure that I echo the words of the whole House in sending him our good wishes. I pay tribute to my noble friend Lord Sandhurst for the very interesting maiden speech he made during this important debate—there were times when I wondered whether he might just pop down to the Front Bench and help me on some of the Ministry of Justice issues. I very much look forward to working with him in the future.
A couple of noble Lords, including Front-Bench speeches from the noble Lord, Lord Paddick, and the noble and learned Lord, Lord Falconer of Thoroton, talked about the size of the Bill. I agree, and I know that the noble Lords will lead by example and not add to its size. I welcome the support for many of the measures in the Bill, including those in relation to the police covenant, supported by the noble Lord, Lord Paddick, and others. I note the point made by the noble Lord, Lord Rosser, about other parts of the covenant that he would like to explore: doubling the maximum penalty for assaults on emergency workers, the amendments to the Sexual Offences Act in respect of positions of trust, and the provisions relating to the rehabilitation of offenders.
It is fair to say, however, that some of the other measures have not been quite so well received by your Lordships’ House. Many points have been raised, and my noble friend Lord Wolfson and I will need to consider some of these further. I will take this opportunity to touch on some of the main themes in today’s debate, but I know your Lordships will understand that I will not get through every single point made by every noble Lord—or else we will be here until tomorrow morning.
I will first address the concerns of a number of noble Lords regarding the public order provisions in Part 3 of the Bill. I had some very thoughtful, although contrary, contributions from my noble friends Lady Stowell and Lord Moylan, and the noble Lords, Lord Blunkett and Lord Walney. In particular, the noble Lord, Lord Walney, spoke about the fragility of democracy, which I thought was a very interesting point. The noble Lord, Lord Sikka, gave several examples of how, historically, our right to protest might have been curtailed. I have to say that I disagree with him. I think the right to protest peacefully is as fundamental to our democracy now as it has ever been. To be a bit mischievous, I add as a postscript that the Labour Party boycotted the Jarrow marches.
That said, we must respect the rights of others who might be affected by the increasingly disruptive tactics used by some groups. We saw further examples of such disruption during the recent protests by Extinction Rebellion, with protesters stopping emergency workers from attending to members of the public—as the noble Lord, Lord Hogan-Howe, said—as well as gluing themselves to trains to stop ordinary working people from going to work.
The policing inspectorate found earlier this year that the balance between protesters’ rights and the rights of local residents, businesses and those who hold opposing views leans in favour of the protesters and called for a modest reset. The Bill does just that, by enabling police to better manage highly disruptive protests. These new measures will balance the rights of protesters with those of others to go about their business and their day unhindered.
The noble and learned Lord, Lord Falconer, the noble Lords, Lord Rosser, Lord Oates, Lord Beith and Lord Dubs, and the noble Baroness, Lady Bennett, referred to the powers conferred on the police to attach conditions relating to the generation of noise. We accept that many protests are, by their very nature, noisy—they would not be protests otherwise—and the overwhelming majority of protests will be unaffected by these provisions. But in recent years we have seen some protesters use egregious noise, not as a method of legitimately expressing themselves but to antagonise and disrupt others from the enjoyment of their own liberties and rights. This power can be used only when the police reasonably believe that the noise from a protest may cause serious disruption to the activities of an organisation or cause a significant impact on people in the vicinity of the protest.
The noble Baroness, Lady Jones, and the noble Lord, Lord Rosser, talked about the lack of a definition of serious disruption and annoyance. Part 3 of the Bill uses many terms that are already used in the Public Order Act 1986 and other legislation and that are familiar to the police and the courts. The police are very well versed in applying the tests set out in legislation in an operational context. The tests in Sections 12 and 14 of the 1986 Act as currently drafted necessarily require the exercise of judgment based on the circumstances of a particular protest, and the amendments to the 1986 Act do not change that. To assist them in this, the police receive extensive training in public order delivered by the College of Policing.
Many noble Lords, including the noble Baroness, Lady Whitaker, the noble Lord, Lord Paddick, and the right reverend Prelates the Bishops of Blackburn, Manchester and Gloucester, expressed concerns about the provisions in Part 4 relating to unauthorised encampments. I must assure the House that this is not an anti-Traveller measure and it should not be portrayed as such. Those who cause harm are a small number, who often give an unfair and negative image of the vast majority of Travellers, who are completely law-abiding. The measures allow police to tackle unauthorised encampments where they cause significant damage, disruption and distress to communities and landowners. It has to be considered that it must be time-consuming and often costly for landowners to have unauthorised encampments removed or indeed to have to clean up after them. It is only right that the Government seek to protect law-abiding citizens who are adversely affected by some unauthorised encampments, a point well made by my noble friend Lord Goschen.
On Wales, I can assure the noble Lord, Lord German, and the noble Baroness, Lady Humphreys, that we have engaged extensively with the Welsh Government on this and other provisions in the Bill.
Another major topic of discussion this evening has been the serious violence duty. My noble friend Lady Bertin sought reassurance that the serious violence duty will cover domestic abuse and sexual violence. My noble friend Lord Polak, among others, also spoke on this issue. We have intentionally refrained from including a list of crime types or prioritising one type of victim over another in the legislation. This is to allow local strategies to take account of the most prevalent forms of serious violence in the locality and the impact on all potential victims. Different forms of serious violence will vary between geographical areas, and we want to enable partners to adapt and respond to new and emerging forms of serious violence as they arise and are identified. That is why we have built in flexibility for specified authorities to include in their strategy actions that focus on any form of serious violence should it be prevalent in a local area. This could include, for example, domestic abuse or sexual violence, or other forms of violence against women and girls. What we do not want to do through legislation is to restrict things from being in scope.
On the concerns about longer sentences, the noble Lords, Lord Beith, Lord German and Lord Hendy, the right reverend Prelate the Bishop of Gloucester and my noble friend Lord Attlee expressed concern that this legislation will lead to further increases in the prison population. We are committed to a sentencing framework that takes account of the true nature of crimes and targets specific groups of offenders accordingly. The proposals aimed at serious offenders do just that—they are highly targeted interventions for the most serious and most dangerous offenders, and those of most public concern. However, at the other end of the scale, the Bill also looks to divert offenders away from a life of crime and support them into rehabilitation.
The right reverend Prelate the Bishop of Gloucester, the noble Lord, Lord Rooker, and others raised the issue of female offenders. We are actively looking to target female offenders through our problem-solving courts pilot, aiming to reduce the volume and frequency of reoffending, increase health and well-being and improve the maintenance of familial relationships compared to standard court processes and disposals for vulnerable female offenders. We intend to pilot these measures in four to five courts, at least one of which is anticipated to focus on piloting problem-solving measures for female offenders who meet the eligibility criteria. The Government remain fully committed to delivering the female offender strategy, which sets out a very ambitious programme of work to address the specific needs of female offenders.
The noble Lords, Lord Dubs, Lord Rooker and Lord Pannick, and the right reverend Prelate the Bishop of Gloucester raised the issue of the sentencing of primary carers. The case law in this area makes it clear that the court must perform a balancing exercise between the legitimate aims to be served by sentencing and the effect that a sentence has on the family life of others, particularly children. The effect of a sentence on others may be capable of tipping the scales so that a custodial sentence which would otherwise be proportionate becomes disproportionate. However, there will be cases where the seriousness of the offending is such that, despite the existence of dependants, a custodial sentence is warranted. In such cases, it will still be open to the court to find that the effect of a sentence on others is such as to provide grounds for mitigating the length of a custodial sentence.
The noble and learned Lord, Lord Falconer of Thoroton, asked about the review of sentencing in cases of domestic homicides. I am happy to report that this work is now well under way and the first stage has been completed. He was right to identify the appointment of Clare Wade QC as an independent expert to lead the second stage of the review. The terms of reference of the review have now been finalised following a period of consultation with her, and we will publish them shortly. Ms Wade will examine the findings from the initial stage of the review and then produce a report for Ministers which will consider whether the law could better protect the public and ensure that the sentences reflect the severity of these awful crimes.
A number of noble Lords, including the noble Lords, Lord Thomas of Gresford and Lord Pannick, and my noble friend Lady Sater, asked about the use of audio and video links in criminal proceedings and how it will be implemented to ensure quality and that trials remain fair. The use of live links will continue to be subject to judicial discretion, and they will be used only where the court is satisfied that it is in the interests of justice, having considered any representations from parties to the proceedings. We recognise that children have specific needs; the courts have a statutory duty to have regard to the welfare of children. They will need to be satisfied that it is in the interests of justice for a child to participate by live link, having considered any representation from parties and the relevant youth offending team.
My noble friend Lord Lexden spoke about the historic disregards and pardons for what were historically same-sex offences but are offences no longer. I have to ’fess up: I thought this was dealt with in the Armed Forces Bill, and it is not. I will immediately get on to this. I feel quite ashamed that I thought it was being dealt with, so I apologise to my noble friend.
My noble friend Lord Young of Cookham, the noble and learned Lord, Lord Falconer of Thoroton and the noble Lord, Lord Best, suggested that the Bill might be used to repeal the Vagrancy Act 1824. The Government are very clear that no one should be criminalised simply for having nowhere to live. We agree that the time has come to reconsider the Vagrancy Act. It is complex, it might not be a question of simply repealing the 1824 Act and putting nothing in its place, but we reserve judgment on that. We also need to consider the devolution implication, given that it extends to Wales. I can assure noble Lords that we are on the case, and I am sure the House will hold me to account for those words.
The IPP is something that noble Lords, particularly noble and learned Lords, are concerned about. The noble and learned Lords, Lord Judge and Lord Brown of Eaton-under-Heywood, and my noble friend Lord Garnier argued that the Bill should address the issue of offenders still subject to the IPP sentences. We acknowledge that there are concerns about the IPP sentence, but our number one priority is to protect the public. We must not forget that many of these prisoners pose a high risk, and that the measures are working, but I acknowledge the point that the noble and learned Lords have made.
The noble Lords, Lord Rosser and Lord Paddick, and the noble and learned Lord, Lord Falconer, argued for the introduction of a new offence of assaulting a retail worker. Were the noble Lord, Lord Kennedy of Southwark, here, he would be arguing for it as well. I share their concerns about the unacceptable increase, during the pandemic, of assaults on shop workers. There is already a wide range of offences which criminalise disorderly and violent behaviour that would apply in cases of violence towards people whose work brings them into contact with members of the public. These offences cover the full spectrum of unacceptable behaviour, from using abusive language to the most serious and violent offences. None the less, the Government have agreed to actively consider whether legislative change is necessary and to bring forward any proposal if it is.
A number of noble Lords, including my noble friends Lord Blencathra and Lord Garnier, the noble and learned Lord, Lord Judge, and the noble Lord, Lord Beith, referred to the reports published in the last few days by the DPRRC. I am very grateful to that committee and the Joint Committee on Human Rights for their careful scrutiny of the Bill. We will consider, very carefully, each of their conclusions and recommendations, and respond fully in due course.
A couple of noble Lords, including the noble Lord, Lord Rosser, mentioned the extraction of information from electronic devices. We agree that there is a need for strong privacy safeguards when dealing with people’s sensitive personal information. We owe it to vulnerable victims and witnesses to get these provisions right. I assure noble Lords that we are continuing to explore how they might be strengthened.
I know that I have not been able to respond to all the points raised by noble Lords during the course of the debate. I will look at Hansard; I can already think of things that I have not had a chance to respond to tonight.
I will finish by reiterating what I said in my opening speech. This is a multifaceted Bill. We want to keep the public safe and I know that together, as the House of Lords, we will make this Bill better as we work on it in the coming weeks. I commend the Bill to the House.
Police, Crime, Sentencing and Courts Bill
Wednesday 20th October 2021
(2 years, 6 months ago)
Lords ChamberRead Full debate Police, Crime, Sentencing and Courts Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 40-I(b) Amendments for Committee (supplementary to the Marshalled List) - (20 Oct 2021)
The Deputy Chairman of Committees (Lord Faulkner of Worcester) (Lab)
Before I call Amendment 1, I should alert the Committee that the noble Baronesses, Lady Harris of Richmond and Lady Brinton, will be taking part remotely.
Clause 1: Police covenant report
Amendment 1
Lord Coaker
Member’s explanatory statement
This would explicitly require that mental health and the impact of trauma on the police workforce must be reported on as part of the report on the covenant.
Lord Coaker (Lab)
My Lords, it is a great privilege to start the discussion of this very important Bill in Committee, and I look forward to discussing it with the Minister and, no doubt, many other colleagues across this House. I am particularly moved to speak on the policing part of the Bill and to open this discussion, since, as some of your Lordships will know, my father was a Metropolitan Police officer for 30 years. He retired fairly recently—over 30 years ago—and is still alive at the age of 95, so it is a great privilege and an honour to speak. One or two people may have met him; I am not sure. It probably goes back a bit further than that.
The serious point is that the amendment gives us the opportunity to start this debate by praising our police. Yes, there have been some serious questions raised about our police. Very well-documented issues have arisen which need proper investigation and inquiry, and they will, in due course, be looked at and raise serious questions. I am not saying that these issues are not important, but we should also recognise the serious job of work that the police do. The noble Lord, Lord Clarke, is in his place. Nottinghamshire has a very fine police force, as is the case across the country. Many of us have had cause to call on police officers and their staff to help us in our daily lives. That was evidenced in our own Parliament not long ago when PC Keith Palmer was killed on our premises as the result of a terrorist attack. Every single day, as we come on to the Estate, we see the police protecting us. It is important to set that on the record so that, when we discuss these issues, police across the country—both past and present—their staff and families know that we start from this perspective.
We strongly support the police covenant, which we believe is long overdue. These amendments are about making the covenant as strong and effective as it can be so that it works for police officers and their families. I know that the Minister will take the amendments in that spirit as we seek to clarify some parts of the clauses.
I suggest that the Minister looks at the lessons learned from the Armed Forces covenant, to build on that experience and mirror its strengths in the way in which it has developed. It is important that the covenant is designed to cover both former and serving police personnel; we welcome that. I want also to pay tribute to the Police Federation and all those who have long campaigned for the introduction of a covenant, the Police Federation having done so through its Protect the Protectors campaign.
The size of the Bill has been remarked on. It will raise a huge number of issues during the next few weeks. However, today’s debate and the amendments we have put forward are related to the covenant. I will speak also to the amendments in the name of my noble friend Lord Rosser.
Amendment 1 would put into the Bill that a report about the police covenant must specifically include
“mental health and the impact of trauma.”
I have also added my name to the important amendment in the name of the noble Lord, Lord Paddick, which probes what access members and former members of the police workforce have to mental health programmes and support. It will be interesting to hear the Minister’s reply because the importance of mental health support for our officers cannot be overstated. As we know, they are regularly exposed to traumatic and dangerous situations in their job—something they willingly accept as part of their duty. As the covenant says, it is therefore incumbent on us to recognise the trauma that may be imposed on officers and their families, both when they are serving and when they have moved on or retired.
I sometimes think—as I am sure many other noble Lords do—what it must be like to go to some of the scenes of horrific murders or of child abuse. All these occur in the normal, everyday life of a police officer, who then has to go home. I know that the Government will want to ensure that this support is given to them. These amendments ask how we ensure that somebody who has to deal with such situations is given the support they deserve. The amendment would specifically recognise the impact of trauma in the Bill.
This was raised by a number of Members in the other place, particularly my colleague Sarah Champion MP, and I pay tribute to her work on that. She raised the necessity of training our officers in recognising and identifying trauma and how to deal with it. She said:
“The fact that across police forces there is not a standard level of support to be accessed once an officer feels he has the need for it is really letting our forces down.”—[Official Report, Commons, Police, Crime, Sentencing and Courts Bill Committee, 25/5/21; col. 178.]
That is a concern that we all have. No doubt there are examples of good practice, but how does one ensure such good practice across all forces and areas? The lack of consistency in mental health support is something that we need to address.
Since the debate in the Commons, to be fair to the Government, they have announced a programme of mandatory annual mental health checks—but they are for the Armed Forces. The Minister for Defence has called it an annual mental health MOT, with the intention of ensuring that our Armed Forces understand what help is available to them and are equipped to manage the unique pressures of service life. I wonder whether the Government might learn from that. Might that be something that could be applied to the context of the police in our country? We could learn from the Armed Forces covenant on what has worked with respect to this and from the successes and failures.
This is about the safety not only of the police but of our communities. Regular and high-quality mental health support makes sure that our police are fit to be in post, are able to process the situations that they deal with regularly as part of the job and are capable of supporting and responding to traumatised victims.
Amendment 3 would specifically add to the Bill that a report on the police covenant must look at what mental health support is required by officers’ families. This is to probe the simple issue of what support is available for an officer’s spouse, partner or family. The key thing here, which I am sure the Government will recognise, is that if your partner is regularly put in harm’s way in the course of their job, or they are traumatised by their experience during their service, there should be a service that you can call to seek support and to have a specialist speak to you about its impact on you and your family. That is an important point for us to consider.
Amendment 5 goes to the absolute heart of how the covenant must work. It would set up an oversight board with an independent chair and membership from policing organisations, including the Police Federation, the Police Superintendents’ Association, UNISON, the College of Policing and others. The oversight board would review the Secretary of State’s annual report on the covenant before it is laid before Parliament. The basis for this was put succinctly in the other place by my honourable friend for Croydon Central, who said:
“In essence, the amendment would ensure that the covenant does not have Ministers marking their own homework.”—[ Official Report, Commons, Police, Crime, Sentencing and Courts Bill Committee, 25/5/21; col. 193.]
The covenant must belong to our police forces, and the Government must listen to our police. It should not be for the Home Secretary to decide how well the Government are fulfilling their duties under the covenant.
We recognise that, currently, there is an oversight board, which met for the first time over the summer, but that was chaired by the Home Secretary. This would rebalance that by putting an independent chair in her place. This is an important point about putting the police themselves in the driving seat, instead of Ministers.
I turn now to Amendment 6, tabled by the noble Baroness, Lady Harris of Richmond, which has our full support. It would amend our own Amendment 5 to include the National Association of Retired Police Officers in the proposed oversight board. Our Amendment 2 would require the Secretary of State’s annual report on the covenant specifically to consider the support needed by the police workforce on retirement, including access to training courses. I pay tribute to the noble Baroness, Lady Harris, for her work on this issue and look forward to her contribution later in our discussions.
A crucial part of the covenant and a key strength of it is that it applies, as I say, to both serving and former officers and their families. The service an officer has paid to their community and the impact it may have had on, for example, their health, does not finish the day that they retire from the force. The covenant is about that long-lasting partnership and recognition of the unique situation of the police workforce.
Baroness Harris of Richmond (LD) [V]
My Lords, it is a very great pleasure to welcome the noble Lord, Lord Coaker, to this policing debate and to hear of his antecedents. I added my name to this amendment and, with your Lordships’ indulgence, will speak to Amendments 2, 3, 4, 5, 6 and 7, to which I have also put my name. These all deal with the many associated issues in this group, as the noble Lord, Lord Coaker, just outlined.
I have been extremely concerned at the growing number of police officers and former police officers who have turned up at the police treatment centres run by the charity of which I am president with clear mental health issues alongside whatever physical injuries they might have. In the year 2019-20, we provided 3,600 hours of one-on-one counselling. Some 1,200 patients received well-being support through the psychological well-being programme, well-being weekends and recharge days. This is a 19% increase on those attending in 2018. To facilitate this growing area of work, we have provided a new clinical wing at PTC Harrogate, in association with Police Care UK, another police charity.
In its latest research, Police Care UK found that 90% of police officers will be exposed to multiple traumatic incidents during their career—a point made by the noble Lord, Lord Coaker—and that one in five serving personnel are currently living with symptoms of PTSD.
While they do an amazing job at the St Andrews centre, the new clinical wing will be of enormous extra benefit, having two new wings with two floors and adding 20 bedrooms to the estate. It will give four additional counselling rooms, one nursing surgery room, six therapy rooms, three workshop spaces and a community room. Noble Lords can see how necessary these will be; we can only hope that the extra facilities will be enough to meet the increasing demand for well-being provision for the officers who need it.
The impact of trauma is deeply debilitating and for many years officers felt that they could not speak out about it. But we have now seen clearly how damaging that can be. We absolutely must take the mental health of our police officers seriously and give them the support they need by including this requirement in the covenant.
In supporting Amendment 2 in the name of the noble Lord, Lord Coaker, I declare an interest as an honorary member of the National Association of Retired Police Officers—NARPO. Why should former police officers not receive help and support and access to training when they require it? Many go on to do valuable work in other careers and the community and often need help with access courses.
My Amendment 6, which is an amendment to Amendment 5, as we have heard, seeks to insert the National Association of Retired Police Officers to the oversight board. I believe it is essential, as many of those former officers still need support. I have spoken on a number of occasions about the impact of being a police officer on an individual’s mental well-being, both during their time in the force and when they have left. The Bill will make it mandatory for the Home Secretary to publish a report on the police covenant each year outlining the work that has been done to protect officers and ensure that they are properly supported following the sacrifices they have made to be part of the force.
It is important that this report is considered by an independent oversight board, which can hold the Government to account on the work that they are doing around the police covenant, and they are not simply left to mark their own homework, as the noble Lord, Lord Coaker, has said.
Among those organisations that oversee the report, there must be an organisation which represents the police officers of the past, who, as I said, often continue to live with the effects of their job long after they have departed. Police officers bear witness to some of the most traumatic events and sacrifice so much, placing themselves in danger in order to protect society. It is therefore absolutely vital that their contribution is also acknowledged and any support that they need is given throughout their life. Placing the National Association of Retired Police Officers among the organisations giving oversight to the covenant ensures that officers past and present are supported in the continued challenges that a life in policing can bring.
Finally, I turn to Amendment 7. Every year, it costs £5 million to operate the two police treatment centres; 89% of that income is generated by donations from serving and retired police officers. The remainder comes from various sources: fundraising events, legacy donations, hospitality and lottery money. Noble Lords will note that not only do the PTCs save the NHS huge amounts of money by treating our police officers who present with trauma injuries; they treat psychological trauma as well. The PTCs are a charity—they do not get any money from the Government or the NHS. There should be some acknowledgement that the work that they do not only saves the NHS money but enables police officers to return to work much more quickly than they would otherwise have done if they had had to wait for NHS appointments—for physiotherapy, in particular. Have your Lordships tried to get an appointment with an NHS physiotherapist recently? Officers may also need mental health services appointments urgently. My amendment addresses those concerns and urges the Government to tell health providers that they must address the needs of police officers and ensure that they get the same recognition for treatment as that for members of the armed services.
Baroness Brinton (LD) [V]
My Lords, I was unable to speak at Second Reading on this topic of the police covenant. As the noble Lord, Lord Coaker, has already noted, this is an extraordinarily large and complex Bill, and Second Reading speakers were limited to a mere three minutes, meaning that, inevitably, some matters could not be raised. I apologise for raising what is from my perspective a new issue. Before I begin, I pay tribute to my noble friend Lady Harris for her many years of campaigning for the well-being and support of police officers.
I support all the amendments in this group, Amendments 1 to 7, which seek to ensure that police officers and former police officers have access to health services and particularly to mental health support, and to set this down in the Bill as an equivalent of the Armed Forces covenant. I will come on to the covenant later in my contribution.
We must recognise that our police officers and other emergency service personnel are on the front line day in, day out, often facing many things daily that ordinary members of the public would hope never to see once in their lives. That for decades police officers have “manned up” and internalised problems, because that was the culture, perhaps makes mental health pressures even more inevitable. The Police Federation reports that resilience in the service is at an all-time low and that officers are being put under inordinate amounts of pressure, which is taking its toll on their health and well-being. Even worse, the unprecedented cuts to the police service have meant that officers are under more strain now than ever before. While many are asked to do more and more with fewer resources, and have risen admirably to the challenge, it is inevitable that the increased pressures they are facing will have an impact on them, mentally and physically.
The Police Federation campaign “Protect the Protectors” noted that between 2015 and 2017, over 20 police officers took their own lives each year. That is almost two a month. Something must change. Research has shown that emergency workers are twice more likely than the public to identify problems at work as the main cause of their mental health problems, but they are also significantly less likely to seek help—the “man up” culture. Therefore, it is good that in 2017, the Police Federation developed a nine-point plan for police organisations to work with it, supporting serving staff and ensuring that the well-being and mental health of staff is properly delivered as soon as it is needed.
There are 48 organisations that have worked in partnership with the Police Federation and with the mental health charity Mind. The guide that they have produced has all the information that employers need to set up and deliver mental health support in all blue-light organisations. This week, another excellent campaign, the Blue Light group, has reported that 87% of emergency responders have experienced stress and poor mental health. The noble Lord, Lord Coaker, was looking for good news, and it is that 83% of those who accessed this support through their organisation found it helpful. Mind tells me that the Home Office funding for this essential work—which has been running since 2015—is due to run out in March 2022. Can the Minister confirm that the Home Office will continue the support and funding for this vital work, not just support for blue-light workers but a blue-light service for blue-light workers?
Some officers are very badly affected and need more than can be offered by counselling and other internal support. The Police Federation tells the story of Richard, a DCI with a provisional diagnosis of PTSD when he sought help, which explains much of the pressure and distress that so many officers face.
The Lord Bishop of Manchester
My Lords, I draw your Lordships’ attention to my interests in the world of policing as set out in the register, particularly in policing ethics, both with the Greater Manchester Police and the National Police Chiefs’ Council.
At Second Reading I referred briefly to the culture of policing. I did not specifically mention a policing covenant given that time was so short, but I have been intrigued by the debate we have had this afternoon. I note the way in which Members have referred to the Armed Forces covenant. That is helpful in some ways, although I am just a little concerned. As I said at Second Reading, the heart of the policing model is that our police are civilians in uniform; they are not the Armed Forces. We need to be careful not to put police too easily into the same category as the Armed Forces. The Armed Forces are agents of the state while police are agents of society in a slightly different way. That is an important civilian distinction I would want always to hold before us.
Nevertheless, I support the amendments in this group, and I believe that we can do better for policing. A covenant is the right way forward—we are working on a similar thing for clergy in the Church of England at the moment—and these amendments will strengthen the initial proposals to help us that way. Over these last 18 months, when I have been chairing Operation Talla, the Covid operation ethics committee, on behalf of the National Police Chiefs’ Council, we have had in our minds and hearts not just how to police effectively but the tensions and pressures put on policing during the pandemic and how to advise police forces to implement the various regulations that were coming from government, sometimes in rapid succession, in ways that were proportionate and would not place undue extra pressure on the mental health of police. We monitored sickness rates throughout that process, and it has been a great example of how we worked together to ensure that policing did not lose its civilian base in the course of the pandemic. Therefore, I support these amendments, but I treat with a little caution how closely we draw parallels with the military covenant.
Lord Bach (Lab)
My Lords, I no longer have to declare an interest but some Members here may know that I was until May this year police and crime commissioner in Leicester, Leicestershire and Rutland. As such, I will make a very brief contribution to this first debate in Committee.
I personally support—I hope from my experience—the early amendments that have been proposed. As has been said already, it is quite clear that anyone who works with the police nowadays, knows them or sees them closely at work, will know that for a long time, I suspect, as in the rest of society, mental health, mental illness and all that follows from it was not given anywhere near the importance it should have been. I am glad to say that it is my experience, certainly in the police force I was close to, and I am sure in others too, that chief officer teams are now giving the issue of mental health due regard. That is why any covenant that left this out would be lacking; I do not want to comment on the covenant— good points have been made on it.
I urge the Minister and the Government to consider seriously these obviously non-partisan suggestions, which are meant to be helpful. That is all I want to say, but my experience tells me that this is becoming a larger and larger issue as year follows year for police forces up and down the country.
Lord Paddick (LD)
My Lords, I start also by paying tribute to my noble friend Lady Harris of Richmond for her tireless work in supporting police officers in the many different roles that she has in addition to her work in this House. It was particularly important to hear about the work of police treatment centres, although they clearly do not have the capacity to deal with all officers who are affected. The noble Lord, Lord Coaker, in his opening remarks, talked about only being able to imagine what police officers go through. I hope to enlighten the Committee about some of those experiences.
I have Amendment 4 in this group, but I support all these amendments, though perhaps with a qualification on one of them. My experience in the police service was not, in many respects, very different from that of others who have served or those who continue to serve, except perhaps that I was the most junior officer on my relief or response team, as it would now be known. For 18 months, as the junior officer delegated, I was the one who dealt with all the sudden deaths. My first appearance in court was at the Coroner’s Court, when the husband of an elderly couple had taken an overdose of prescription medication. Having worked night duty until 4 am, I was allowed to “slide off”, as I had to be at the mortuary at 9 am to identify the body. I had not seen a dead body before that night—I was 19 years of age—and I was unprepared for the sight and smell of at least half a dozen other bodies that had been opened up for examination by the pathologist when I arrived at the mortuary. It is an important role for a police officer to identify the body that he or she found as being the same one that the pathologist is about to perform the post-mortem on. I will not go into graphic details, but the Committee needs to get a flavour of the trauma that police officers are exposed to.
Noble Lords might think that the first case is the one that sticks in one’s mind, but whether it is the open-top car that overturned at speed, with no protection for the passengers in the back from the road surface, or the pensioner not seen for weeks in the summer, with swarms of flies on her badly decomposed body that was sticking to the bed when the undertakers tried to remove her, or the charred bodies in a number of fires that I attended, the impact on one’s mental health is considerable and cumulative. I can still picture and smell those scenes; I remember the taste that they left in my mouth.
It is not just the horror of such scenes; it is the emotional impact as well. There was a young man in his early 20s who had hung himself from a coat hook on the back of a door. There was a young mother, whose normal session with her psychiatrist had been cancelled because of Christmas; finding a name and address in her handbag next to her body at the base of a tower block, I went to the address, knocked on the door and was invited by her husband into a room where her young children were playing under the Christmas tree with the toys that the mother had bought them. If that was not bad enough, when I suggested that we ought to go into a different room so that I could tell the husband the tragic news that his wife had committed suicide, he asked me, “How did she do it?”. Experiences like that, as noble Lords can hear, I still vividly remember.
It is not just the deaths. I remember a young man who had a broken glass slammed into his face. We had to take him to hospital in the police van, as there were no ambulances available—some things do not change. I remember the terrified look on his face as he shook uncontrollably from the shock. Another man jumped from the fourth floor and landed on spiked railings. We held him up for what seemed to be an eternity, while the fire brigade cut around the railings; they could not use oxyacetylene torches because the heat would have transmitted to his body. Then we had to hold him in the ambulance between two trolleys, with the railings still through his body.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, I thank all noble Lords who have spoken in an incredibly thoughtful debate this afternoon. I welcome the noble Lord, Lord Coaker, to his first Committee and the tone in which he opened this debate. I also pay tribute to his father. I jolly well hope that he is sitting at home watching this afternoon. I am also grateful to the noble Lord, Lord Paddick, and the noble Baroness, Lady Harris, for setting out their amendments to the first clause of the Bill, which relates to the police covenant.
I echo other noble Lords’ comments on PC Harper and Sergeant Matt Ratana, who gave their lives protecting the general public. To echo the words of the noble Lord, Lord Coaker, there is no doubt that our brave police encounter some of the most challenging circumstances on a daily basis, often operating in some of the most difficult and traumatic situations imaginable. I thank the noble Lord, Lord Paddick, for outlining, albeit in very graphic detail, some of the experiences he has had to endure during his policing career. I also thank the noble Lord, Lord Bach, for bringing to this House a unique experience as Parliament’s only PCC, and I wish him well in his retirement.
What we have talked about this afternoon is what makes the police covenant so important, with its central tenet the health and well-being of members and former members of the police workforce, their physical protection, and support for their families. It is a priority for the Government, and I am very pleased that we have brought this forward.
We recognise the very positive intention behind Amendments 1, 3 and 4, and I could not disagree what most noble Lords have said. However, what I would say is that they are not necessary, on the basis that consideration of mental health, including having regard to programmes offering advice on assessment and treatment, the impact of trauma and support and the training for health and resilience, are already well within scope of Clause 1, under the banner of health and well-being.
The noble Lord, Lord Coaker, asked me to outline what the provision includes, and the noble Baronesses, Lady Harris and Lady Brinton, talked about PTSD, which affects an awful lot of police officers, both when serving and after their career. I shall outline some of those things. First, we will ensure that occupational health standards are embedded in all forces, holding chiefs to account for providing the right quality and investment in their workforce. The National Police Wellbeing Service has been working hard to embed occupational health standards in forces, including for mental health. I think it was the noble Baroness, Lady Brinton, who said that people should receive the right support that they need at the right time. That is absolutely central to providing effective mental health services.
The other thing that will be contained is consideration of a new chief medical officer for policing in England and Wales, and a review of what a good support model for families looks like, drawing on established good practice and research from other sectors and international partners. Once agreed, forces will be required to implement locally, bespoke to their local infrastructure, development of training for GPs around the role of the police, similar to military veterans GP training, and the development of pre-deployment mental health support provided to the police workforce, particularly in light of the Covid-19 pandemic and the effect that this will have had on the police workforce, some of whom I have already spoken to.
There was quite a lot of talk about the interface between the Armed Forces and the police covenant, and the right reverend Prelate the Bishop of Manchester clearly made the distinction between the two forces, which are very different in terms of the demands on them. The work under the police covenant will recognise the specific issues that affect those working or who have worked in policing—to answer the question posed by the noble Lord, Lord Coaker, it will include those who have retired—as a result of their role, and will seek to provide support to them and their families in addressing these issues. The police covenant and the legislation underpinning it have been drafted to ensure that they reflect the specific, unique needs of our police as they currently stand.
The heading is deliberately broad to allow the Secretary of State to consider the issues as they arise. We consciously framed the provisions in this way to enable a flexible approach to ensure that the issues that matter most to members and former members of the police can be taken into account and addressed in the annual report as they arise. This flexibility will allow the police covenant to evolve to respond to the most pertinent needs of current and former members of the police workforce in a timely manner. What we do not want to do is create a hierarchy of issues by explicitly listing specific issues in the Bill, where they will fall within those broader priorities.
Lord Coaker (Lab)
I thank all noble Lords who have taken part in a very thoughtful and helpful discussion on this first group of amendments, as we begin our discussion on the Bill. I also thank the Minister for her reply. The way in which she tried to respond directly to the points the amendments were making was very helpful for the Committee on a number of issues, so I thank her and I think the Committee would thank her as well.
Having said that, and having been a Minister myself, I am always slightly suspicious when the term used for amendments is that they “are not necessary”. That was always a term I was told to use when I was not quite sure where I was. I say gently that when they “are not necessary” what I want to do—and I am sure other noble Lords would—is reflect on the Minister’s remarks to see if they indeed meet the points the amendments are making.
I have a couple of points to make. For example, the Minister said on a number of occasions, “We will keep this under review”, “We will look at how it works out” and “We will try to understand how the covenant operates in practice”. What many of us would say is that we can learn. The Minister mentioned the Armed Forces covenant, and I take the right reverend Prelate’s point about this, but we can learn from what the Armed Forces covenant has done. It seems a bit strange to say that this is not the same as the Armed Forces covenant. Everyone recognises that, but why wait to find the same thing happening with the police covenant, when we have seen from the Armed Forces covenant that for either central government or other public bodies to have due regard is important?
I note the point the Minister made about NARPO and the importance of the involvement of retired police officers. So, there are a number of points that we will need to reflect on as we go forward from Committee to Report, but with those brief remarks I beg leave to withdraw Amendment 1.
The Deputy Chairman of Committees (Lord Duncan of Springbank) (Con)
I cannot call Amendment 6, as it is an amendment to Amendment 5.
Lord Paddick
“Scrutiny of investigation: timeliness
(1) The Police (Complaints and Misconduct) Regulations 2020 are amended as follows. (2) After regulation 13 insert—“13A Scrutiny of investigation: timeliness (1) A legally qualified person within the meaning of regulation 28(4)(a) and (6) of the Police (Conduct) Regulations 2020 shall be appointed to scrutinise the information provided pursuant to regulation 13. (2) On each occasion where information is provided in writing under regulation 13 paragraph (1) or (2) the legally qualified person appointed under paragraph (1) shall determine whether there is good and sufficient reason for—(a) the time already taken; and(b) realistically anticipated to be needed for completion of the investigation.(3) In determining whether there is good and sufficient reason under paragraph (2) the legally qualified person may have regard to any relevant matter, and shall have particular regard to—(a) whether the investigation has been efficient and effective;(b) whether there has been unnecessary or unreasonable delay having regard to complexity and seriousness of the case;(c) the impact upon the officer and others;(d) any anticipated further delay;(e) the public interest and affect upon confidence in the police disciplinary system; and(f) representations made on behalf of any person entitled to receive a copy of the information provided under regulation 13.(4) Unless the legally qualified person determines that there is good and sufficient reason under paragraph (2)(a) and (b) then—(a) all investigation into possible misconduct or gross misconduct shall be terminated forthwith; and(b) no disciplinary proceedings may be initiated in respect of the matters under investigation.(5) Nothing in this provision shall have any effect in relation to any criminal investigation.”(3) After regulation 19 insert—“19A Scrutiny of investigation: timeliness (1) A legally qualified person within the meaning of regulation 28(4)(a) and (6) shall be appointed to scrutinise the information provided pursuant to regulation 19.(2) On each occasion where information is provided in writing under regulation 19(1) the legally qualified person appointed under paragraph (1) shall determine whether there is good and sufficient reason for—(a) the time already taken; and(b) realistically anticipated to be needed for completion of the investigation.(3) In determining whether there is good and sufficient reason under paragraph (2) the legally qualified person may have regard to any relevant matter, and shall have particular regard to—(a) whether the investigation has been efficient and effective;(b) whether there has been unnecessary or unreasonable delay having regard to complexity and seriousness of the case;(c) the impact upon the officer and others;(d) any anticipated further delay;(e) the public interest and affect upon confidence in the police disciplinary system; and (f) representations made on behalf of any person entitled to receive a copy of the information provided under regulation 19.(4) Unless the legally qualified person determines that there is good and sufficient reason under paragraph (2)(a) and (b) then—(a) all investigation into possible misconduct or gross misconduct shall be terminated forthwith; and (b) no disciplinary proceedings may be initiated in respect of the matters under investigation.(5) Nothing in this provision shall have any effect in relation to any criminal investigation.””Member’s explanatory statement
This amends the Police (Complaints and Misconduct) Regulations 2020 to provide for a mechanism for scrutiny and consequences where there are delays in disciplinary proceedings being brought against police officers.
Lord Paddick (LD)
My Lords, there has been much criticism of the police complaints and misconduct process from the perspective of members of the public being unable to achieve justice, but much less has been said about the impact on the officers under investigation, to which I alluded in the last group. When we come to consider Clause 43 and Schedule 4 to the Bill, I will remind the House of the changes the Government brought about in the Policing and Crime Act 2017 to limit the length of time members of the public could be kept under investigation by the police and on police bail. The Government accepted the unfairness of suspects being kept in suspense for months, even years, with the threat of prosecution still hanging over them. This is something many police officers face, with even graver potential consequences than someone who is accused of a criminal offence—potentially losing their livelihoods through being sacked or required to resign from the police service.
When I was a police inspector in charge of a relief, or shift, of officers, a woman who had been arrested and taken to one of my police stations made an allegation of indecent assault by a police officer during a routine search to ensure that she did not have anything that could cause injury while she was being held in a cell. I heard a commotion in the custody suite and went to see what was happening, only to find her spreadeagled on the floor with one officer on each limb. The situation was explained to me: she had resisted being searched, fighting with the female officer designated to search her, and had to be restrained. I asked the prisoner if she was okay and if she was going to behave herself now, and then ordered two female officers to take her into a cell to be searched, much to the concern of male officers, who I ordered to remain just outside the cell door.
Another prisoner, who was present in the custody suite and subsequently interviewed in prison by officers from the complaints unit, corroborated to some extent the female prisoner’s account—a scuffle and then being held down on the floor—although her allegation was actually of indecent assault by a female officer during the search, out of sight of the witness. When the complaints unit took all the female officers who had been on duty that night away for questioning simultaneously and suspended one from duty, I asked that I be interviewed as I was also a witness who had seen nothing untoward.
As a result, I was interviewed as a suspect under caution in a criminal investigation. Although I had already qualified for a promotion, it was delayed for 18 months, and the local area police commander recommended that I face a full disciplinary hearing for lack of supervision, with a recommendation that I be sacked—perhaps related to having recently separated from my wife and having sought permission to cohabit with a man, or perhaps not.
The day that the local area commander retired from the police service, the headquarters complaints and discipline department responsible for scheduling discipline hearings dropped all proceedings against me, and I was promoted. But in the intervening period, my health suffered, my marriage ended and my career was on hold, even though I had done nothing wrong and, arguably, in coming forward as a witness, everything right.
This is but a relatively minor, albeit personal, example of the impact that prolonged police misconduct investigations can have, which, unlike criminal investigations, have no effective time limits placed upon them.
Baroness Jones of Moulsecoomb (GP)
My Lords, it has been fascinating and very moving to listen to the noble Lord, Lord Paddick, but I am coming at this from a completely different direction. Although I am partly thinking about the police officers involved, I am also thinking about people who bring complaints against police officers. I have seen the police complaints system at first hand. At some point in the past, a Met Police sergeant came to me and told me that he had seen a few officers deleting files that the Met held on me. These were files that I had asked to see and had been told did not exist—so I saw the police complaints system at first hand. I took a complaint to the Independent Office for Police Conduct, a vastly underresourced organisation trying to do its best on very difficult work. This was not an emotional issue for me—it was a professional, work issue—but that Met Police sergeant suffered PTSD and was essentially hounded out of the Met Police because he had come to me as somebody who wanted the truth exposed, and so was in a whistleblowing situation. I could not do anything for him, but I persisted with my complaint.
There is a saying that justice delayed is justice denied, and it is true on both sides—perhaps more when people are emotionally involved in the complaint they are making, which as I say did not really apply to me. In a way it is doubly true for complaints against the police, because there is a power imbalance. The police are seen to retain their positions, authority, power and legitimacy while complaints are ongoing, and this can be extremely upsetting.
This issue has come to light because of the allegations against the murderer of Sarah Everard. It is staggering, and truly terrifying, that the police had within their ranks somebody they knew, jokingly perhaps, as “The Rapist”. A noble Lord from this House, a previous Metropolitan Police Commissioner, who is not in his place today, said in an interview on the radio that it was not true that he was called “The Rapist”—but he is the only person I have heard saying that was not true. Perhaps another ex-Metropolitan Police Commissioner here might know better.
So it is time to cut the delays that everybody on both sides experiences in police complaints and disciplinary hearings and, most importantly, to give the independent watchdog the resources it needs to do the job. I have complained in the past about the number of police officers it employs, because it seems to me that you do not necessarily set a police officer to catch a police officer—but in fact it is so underresourced that I feel it would benefit from almost anybody if it increased its staff. So this is something that the Government have to deal with.
Lord Hogan-Howe (CB)
My Lords, I support this amendment. The basic problem around IOPC investigations is one of timeliness and quality. I am afraid it has gone on an awful long time. To be fair, from time to time it concerns police investigations under other bodies, but it has persisted, despite the fact that the organisation has changed over the years from the IPCC to now the IOPC. This particularly affected groups of officers such as firearms officers, some of whom have been under investigation for in excess of 10 years. That cannot be for anyone’s good.
We talked earlier about the trauma suffered by individual officers, and that is one of the major causes of such trauma. I therefore think that some time kind of time limit would be helpful. Even in a criminal case such as murder, the point from commitment to arriving at Crown Court is expected to be of the order of 100 days. If such a complex case can be taken so quickly, it seems to me that these cases are surely susceptible to travelling far more quickly and then being decided in the hearing far more quickly, too.
There are some peculiarities around the police misconduct process which have to be understood and, I think, given some sympathy—but these things can be changed. For example, when a complaint is made, particularly where a criminal allegation is alleged, there is a transmission of the case, first from the force to the IOPC, then it may go to the CPS, and then it may go back to the IOPC and then it may go to the force. This merry-go-round goes on for months. It is not at all unusual for these cases to go for at least one year and usually more, and for there still to be no outcome.
There is a further level of complication when, for example, special evidence needs to be given in a court case. It is difficult to talk about this in public, but essentially, when intelligence is gathered by the police that cannot be shared in court and cannot be shared in a coroner’s court, a public inquiry has to be held in front of a qualified judge. All this does is lengthen the whole process. It particularly affects firearms officers when they have to justify why they shot someone and they are unable to explain the intelligence they received. It means that the whole process goes round this rigmarole again.
There are various remedies to try to resolve this. One is a simple time limit. The difficulty with a time limit is that it can be hard-line and does not fit every case. Sometimes you need some discretion. I would argue that the decision-making between the IOPC, the CPS and the force should be done in parallel and not in sequence. The consequence of it being done in sequence is that it keeps going on and on and they keep referring it back to each other. Surely, they could consider the same case in parallel and therefore reduce the time. It would be a good idea to have a legally qualified chair seriously examining the timeline and whether or not it is justified. If it is not justified, the chair should be able to intervene. If it is justified, of course the case should continue.
My final point may be to one side of the amendment, but it is important because it goes to the point about timeliness and quality. One of the challenges faced by the IOPC is that it does not always send its most experienced investigators to deal with the most complex cases. The equivalent for the police service would be that you never send your shoplifting squad to deal with a murder—that would not be very sensible. Officers build their experience in the shoplifting squad and may go on to do more complex things.
The reason may be, as the noble Baroness, Lady Jones, said, that the IOPC has insufficient resources. I think it also has insufficient specialism and does not build up its expertise. When a serious case comes in—someone loses their life or it is a serious allegation—they should dispatch the A team, not the people who happen to be available. I do not think that does anyone any good when they have to deal with serious matters which the families want straight answers to and the officers want to believe that the investigators have some maturity of judgment. It is not a matter of age but a matter of experience. For those reasons, the IOPC should consider this. It is not exactly pertinent to the amendment, but it is relevant to the discussion about quality that we can fairly have about IOPC investigations at the moment.
Earl Attlee (Con)
My Lords, I strongly support these amendments. I too have little confidence in the IOPC and the resources that are available to it. It was very interesting to hear what the noble Lord, Lord Hogan-Howe, said about it. We must shed some light on the timelines for these investigations, both for the police officers and for the alleged victim.
I have been within and have commanded a disciplined organisation, and I was always acutely aware of the need to complete investigations as fast as possible when something had gone wrong. If this amendment does not find favour and the noble Lord needs to return on Report, I can make a very much longer speech then.
Lord Coaker (Lab)
My Lords, I am very grateful for the opportunity to speak to Amendment 8, tabled by the noble Lord, Lord Paddick, and of which the noble Baroness, Lady Jones, is a co-signatory. It is an important amendment. I was particularly moved by the comments made by the noble Baroness, reminding us that of course it is from a police officer’s point of view but that this is also about a complainant’s point of view. It is from both sides that this debate has taken place.
Sometimes you look at an amendment and wonder whether it is as important as some others. Listening to the moving opening remarks of the noble Lord, Lord Paddick, and those of the noble Baroness, Lady Jones, and others, I have been struck that this is a crucial amendment and a crucial discussion which is of huge significance to the police, communities and our country, particularly in light of issues that have arisen over the last few months. However, investigations that are delayed and drag on without resolution are completely unacceptable for the complainant and the officer in question.
I was completely unaware and absolutely astonished to hear from the noble Lord, Lord Hogan-Howe, from his experience as a former Commissioner of the Metropolitan Police, that officers under investigation have been waiting for 10 years. Whatever the rights and wrongs of what happened and whether they were guilty or innocent, that cannot be right. This has got to be looked at by the Minister who now has responsibility for this, wherever you come from in the debate. I am sorry if other noble Lords knew this, and that I was the only person here who was unaware of it. I knew that there were delays, but frankly, that is astonishing. We have just had a significant and important debate on protecting the mental health of our officers. One can only imagine the mental health implications for people under investigation but also, as the noble Baroness, Lady Jones, reminded us, for people who have made the complaints. It does not serve justice for anybody.
There is some suggestion about delays in driving cases, but if she knows, can the Minister tell the Committee whether there is a particular delay in one area or a general problem across investigations? The noble Lord, Lord Hogan-Howe, mentioned firearms, and the noble Lord, Lord Paddick, mentioned some other examples, but is there a particular problem which emerges when a complaint is made in a particular area? There have been many references to certain offences not being taken seriously even when complaints were made, but it would be interesting for the Minister to come back to us on that.
I think that, at its heart, this amendment is saying that if we do not get this right, public confidence is undermined and eroded, and it is of no benefit to any of us not to be confident in the system. We must believe that the investigations which take place are fair, operate in a timely manner and are done with that integrity which people can understand and believe. We all accept that. Nobody here would disagree that this is the process which must happen and should be in place. However, as we have heard, that is not happening. Therefore, the amendment rightly asks us whether the answer is to set a time limit, to lay out a process that is better and more effective. The key question for the Minister is: what plans are there to review and update the disciplinary process, to restore public confidence and to reassure all of us that, at the end of the day, not only those who are complained against can feel confident but those who are making the complaint? That is the resolution that we all want from this important amendment.
Baroness Williams of Trafford (Con)
My Lords, as the noble Lord, Lord Paddick, set out, this amendment seeks to further improve the timeliness of disciplinary and misconduct proceedings against police officers. It seeks to do this by amending existing regulations governing complaint and misconduct investigations by the IOPC, as well as those conducted by force professional standards departments. In substance, they seek to introduce a new system of separate independent adjudicators with powers to close down investigations which have taken longer than 12 months, where they decide that there is no “good and sufficient” reason for delay.
Again, with this amendment, I agree with the thrust of what the noble Lord and others said, namely that disciplinary and misconduct investigations should be conducted and completed in a timely fashion, for the reasons set out by the noble Baroness, Lady Jones of Moulsecoomb, and the noble Lords, Lord Paddick and Lord Hogan-Howe. Like the noble Lord, Lord Coaker, when I heard “10 years” I was utterly shocked. However, this amendment comes at a time when investigation timescales are already reducing and when the Government have worked hard to reduce bureaucracy in the system and not add to it.
Under the IOPC’s predecessor, the Independent Police Complaints Commission, investigations would on average take 11 months. Since 2018, under the IOPC, that has fallen by almost 30% to just eight months. The IOPC has closed more than 90% of its cases in under 12 months and is making strong progress on the number of cases that it closes in under nine months and even in under six months. However, as the noble Lord, Lord Hogan-Howe, said, it is in nobody’s interest for investigations to drag on for long periods unnecessarily. We recognise the impact that this can have on everyone concerned.
It might be helpful in terms of explaining the trajectory that the Government introduced a package of reforms in February last year to the police complaints and disciplinary systems. It included new provisions to improve timeliness, with an expectation that investigations will normally be completed within 12 months. If not, the investigating body must provide a written explanation of any delays and steps to bring the investigation to a conclusion. The Government expect the IOPC to go further, and it now has targets in its business plans to complete many of those investigations in under nine and six months, as I said.
There are a number of reasons why cases might take too long, including the complexity of a case, the time- scale being impacted by parallel criminal investigations, and delays in obtaining expert evidence or post-mortem reports. It might be further complicated by delays in obtaining accounts from key police witnesses and subjects. That said, it is not acceptable for investigations to go on for too long, but the trajectory of timescales is certainly downwards.
The noble Lord’s amendment would introduce an additional layer of cost and bureaucracy. It would also risk creating perverse incentives for investigators to rush to meet deadlines at the expense of the quality of an investigation, particularly in those complex cases or if historic matters are at stake.
If an investigation into police wrongdoing was terminated without being concluded and that officer might have had a case to answer for gross misconduct—I can think of very recent cases which are relevant here—this would significantly undermine public confidence and potentially the course of justice. I am sure that is not the intention of noble Lords.
The amendment also risks undermining the independence of the police disciplinary system, blurring the lines between when legally qualified persons are appointed to this role and when the same person is appointed as a legally qualified chair of a misconduct hearing. These individuals would be selected from the same pool. That fundamentally changes the role of a legally qualified chair and jeopardises the independence of their position and the disciplinary system.
In conclusion, the Government have already taken steps to reduce investigation timescales and we will be monitoring the timeliness of investigations, drawing on new data collection requirements that we introduced as part of recent reforms. I hope that, for the reasons I have outlined, the noble Lord will be happy to withdraw his amendment.
Lord Paddick (LD)
My Lords, I thank all noble Lords who have contributed to this important debate, particularly the noble Baroness, Lady Jones of Moulsecoomb, for her support for speedy justice. Obviously, this impacts the complainant as well as the officers.
I also thank the noble Lord, Lord Hogan-Howe, for his contribution. It seems very strange standing here and talking about a former commissioner in that way, but I am in police mode at the moment, I think. He made a very important point about firearms officers who volunteer to take on this enormous responsibility and are then treated so badly by the system.
The Police Federation—I am grateful for its support of these amendments—accepts that there will be delays if a criminal investigation is involved. However, there are still significant delays even after the criminal matters have been dealt with, as I outlined in the examples I gave.
I thank the noble Earl, Lord Attlee, for his promise to come back all guns blazing, as it were, if I bring the amendment back on Report.
It is interesting that there is a parallel with the Armed Forces again. I spoke to a former soldier who was resigning from the police service and asked him why. He said that he was leaving because, in the Armed Forces, when something goes wrong, the most senior officer involved takes responsibility and faces a court martial, while in the police service, the responsibility is pushed down to the lowest-possible level, to alleviate the responsibility of senior officers. That is an aspect of the culture of the police service; I agree with that officer’s conclusions.
The noble Lord, Lord Coaker, talked about public confidence. If there is no confidence in the Independent Office for Police Conduct and the police complaints system, this will be partly due to the undue delays. Complainants are beginning to think “What are they trying to cover up? Why is it taking so long?”. It is essential that these things are dealt with in a timely manner.
I thank the Minister for her support in principle, but the examples I gave were not complex cases; they were simple, but they still took years. They did not involve expert witnesses, yet there were still delays. These are recent cases from last year.
I am sorry but I do not accept the Minister’s assertion that this amendment would result in a rush to complete investigations. These completely independent people would assess whether there were justified reasons for investigations going on as long as they had. Clearly, if these investigations were not being dealt with in a timely manner, they would have something to worry about. This is about picking up those cases in which there is unnecessary and unreasonable delay. Of course, the same chair would not adjudicate over whether an investigation was going on too long and then chair the discipline investigation.
We are on to something here and I am very grateful to the Police Federation for bringing it to my attention. We may well need to discuss this further on Report, but at this stage, I beg leave to withdraw the amendment.
Earl Attlee
“(3) After section 2 of the Assaults on Emergency Workers (Offences) Act 2018 insert—2A Potting (1) A person commits an offence of potting if the person—(a) maliciously causes an emergency worker to unwillingly or unwittingly come into direct contact with any substance containing urine, excrement or ejaculate,(b) is in custody and causes or permits their own urine or excrement to be intercepted without lawful reason or excuse, or (c) is in custody and causes or permits their own ejaculate to be intercepted without lawful reason or excuse.(2) For the purposes of subsection (1)(a), a substance that looks and smells as if it contains urine or excrement is to be taken to contain such substances.(3) For the purposes of subsection (1)(b), only in exceptional circumstances may the court accept a defence of “lawful reason or excuse” in the absence of evidence of a prior direction by a clinically qualified person.(4) In each and every case where the alleged offence takes place in a custodial environment and the Crown Prosecution Service decide not to prosecute on the grounds of not being in the public interest, the Lord Chancellor must be notified within 28 days of any such decision being made.(5) The Secretary of State must ensure that sufficient suitable kits for collecting evidence samples are available within the Prison Service.(6) A person guilty of an offence to which this section applies is liable—(a) on summary conviction, to imprisonment for a term not exceeding 12 months;(b) on conviction on indictment, to imprisonment for a term not exceeding 2 years.””
Earl Attlee (Con)
My Lords, I beg to move Amendment 9 standing in my name and that of the noble Lord, Lord Ponsonby of Shulbrede.
From time to time, it falls on this House and its committees to debate extremely distasteful matters. This will be one of those occasions. However, there are some euphemisms that we can utilise. We can use the term “relevant substance” to mean any substance mentioned in the proposed new Section 2A(1) of the 2018 Act. If we need to be more specific, we can refer to subsections (1)(b) and (1)(c) in the proposed new section. The type of assault in question is generally termed “potting”.
Let us suppose a dedicated and efficient junior official of Her Majesty’s Revenue and Customs is walking down the high street and he or she is assaulted by an aggrieved taxpayer. Suppose the assault is achieved by inverting a bucket containing the relevant substance on his or her head, or alternatively by using what I would call the “custard pie technique”. The Committee will appreciate that the distress caused to the junior official would be off the scale. The victim would be comforted, if that was possible, by the knowledge that the police would regard it as a very serious assault. There is no doubt that the police would go to great lengths to secure the evidence and that the CPS would invariably prosecute if the police produced the necessary evidence. If such an assault occurred, the Committee would expect to see extensive national media coverage, possibly with public statements made by the Home Secretary or the relevant chief constable.
I have to tell the Committee that this type of assault is not unusual in the prison service today, but a thorough investigation and prosecution does not invariably follow. In the event of such an assault, the Committee will completely understand the overriding desire of the prison officer or other victim to immediately get under a shower and wash off every drop of the relevant substance. Unfortunately, this may interfere with the evidence trail.
There are other difficulties associated with bringing the perpetrators of such an assault to justice. First, the police have numerous and conflicting priorities; I am afraid that they are often unable or unwilling to attach much priority to an assault of this type when the victim is a prison officer or governor, and the assault occurs within the secure estate. A further difficulty is that the CPS is apparently not very energetic in prosecuting these cases. Part of the problem may be the evidence trail that I have already referred to.
I should also point out to the Committee that there is a complex criminal infrastructure in most prisons. It can be that the prisoner carrying out the assault has no grievance himself but makes the assault on behalf of others. Often, this is because the prisoner who is “invited” to do the deed has no more time that can be added to his time in custody without being charged with a new offence. He could also be put under considerable pressure by other criminals to commit the offence. The Minister will doubtless correctly tell us that there are existing relevant offences, but without a specific offence, prosecution is less likely.
Furthermore, the existing offences do not catch preparatory acts; that is to say, intercepting the relevant substance. Of course, the person who commits this offence of interception could easily and certainly be identified. My amendment proposes a new offence of potting. It makes it clear that, if the substance looks or smells like the relevant substance, it is that substance. It makes it an offence within the custodial environment for anyone to intercept their own relevant substance, under new subsection (1)(b), with a tightly defined medical exemption. The lawful reason or excuse exemption is less constrained for relevant substances falling under new subsection (1)(c) for obvious and understandable reasons. Proposed new subsection 4 requires the CPS to notify the Lord Chancellor if it is decided not to prosecute on public interest grounds. I would like to make it clear to the Committee that the intention is to make the probability of prosecution and conviction very high, in order to completely deter such assaults.
We ask prison officers, governors and others to look after some of the most mad, bad and sad members of our society. Some, as we know, are just minor offenders, while others are particularly evil, devious and dangerous. We have a retention problem within the prison service; allowing this type of assault to go unpunished must surely have a negative effect on morale and retention. We owe it to those charged with such onerous duties to protect them so far as is possible from assaults of this nature—and indeed from any other. We can discharge our duty by ensuring that there is a high probability of prosecution and conviction for these offences. I beg to move.
The Lord Bishop of Durham
My Lords, I will speak to Amendment 11, in the name of my right reverend friend the Bishop of Gloucester, with her permission, as she is sadly unable to be here today. I declare her interest as Anglican bishop of prisons in England and Wales.
This amendment seeks to improve Section 3 of the Assaults on Emergency Workers (Offences) Act 2018 by expanding the definition of “emergency worker” to include all staff working in prisons. All those who work in prisons play a valuable role. However, currently, only officers and some healthcare staff are covered by this legislation and, as such, the risk for others working in prisons is increased, because prisoners are well aware of the more severe consequences of assaulting an officer compared with others working in prisons. Someone described this as effectively painting a target on their backs. This is an unintended consequence of the current legislation, which is unfair to many prison workers, undermines their safety and can be easily dealt with through this amendment.
The work of chaplains, educators and others who work in prisons is essential. They play a crucial role in the well-being and support of prisoners, in the work that underpins successful rehabilitation of offenders, and in maintaining a well-run and ordered prison. Prison chaplains, teachers, instructors and healthcare workers are vital vocations within the justice system. They need support and security to perform their roles well.
This amendment is supported by the Joint Unions in Prisons Alliance, and it has shared disturbing anecdotes from prison workers, as yet unsupported in law as emergency workers. One worker reported:
“Cutbacks in prison officers mean we are at greater risk than ever. I have been working in this environment for 10 years and have never known it so bad.”
Another noted:
“The prison is unsafe despite receiving an urgent notification last year—little has changed. We are running at significantly reduced numbers but there is no order or discipline in the jail. Staff assaults are an almost daily occurrence. One of my nursing staff was severely assaulted in the clinic room and I have a high level of staff receiving counselling due to fears around safety.”
A third said:
“I am a lone instructional officer in a textiles cutting and manufacturing workshop within an immigration removal centre. As a civilian, I don’t receive Control & Restraint training, carry a baton or wear a body-worn camera.”
Prison chaplains share in the front-line care of prisoners, providing pastoral and spiritual comfort. It is shocking that they might be seen as an easy target for physical assault. This is an account from a prison chaplain:
“I was leading some funeral prayers for an 18 year old. He was poorly and had had a hospital place to go to until a more needy child in the community got it. His Aunt Died and he requested funeral prayers. He was edgy as we moved to Chapel and I spent some time settling him before I led him through some prayers. As I was reading Ps23, I saw movement to the side. I remember asking myself ‘What happens if I am assaulted here?’. Momentarily later I was hit side on causing bruising to my face and bruising. I had some concern as I am currently on blood thinners. Staff back up was immediate, I had photographs taken and was taken out to hospital for a check-up. I then went home for the afternoon and returned into work the following day, I wanted to ‘get back on my bike and start pedalling!’. As a Priest Chaplain we speak about ministry through adversary, I can now stand alongside my uniform colleagues who are at risk every day from assault and understand better how to support them, because I have been there.”
Another said:
“As a Christian Chaplain I was assisting a visiting Imam to ensure that Friday Prayers was able to take place. Just as prayers were about to start I was asked by staff to go downstairs and speak to a prisoner who had not brought his ID card and was not therefore being allowed in. My intention was to ask his name and if his name had not already been ticked off on the list, to allow him in. When I arrived at the door the prisoner was extremely angry. He said he did not want to speak to me but would only speak to the Imam. I explained that it was a visiting Imam who would not be able to help him and that he was busy as prayers were about to start. He said that if he was not allowed in he would go back to the wing and ‘start smashing up staff’. I looked around to ascertain the whereabouts of staff and as I turned my head to the right I felt a blow to the left hand side of my head, knocking off my glasses and causing a cut to the side of my nose. He was immediately restrained by staff and taken to the segregation unit. I was attended to by healthcare staff. I remained on duty as the visiting Imam was a friend and I wanted to ensure that all went smoothly and that he was able to get off the premises after prayers.”
This chaplain received excellent care from colleagues working in the prison but should be supported through the law, as an emergency worker.
I would add that, in the last 12 months, I have spoken to two prison chaplains in my own area; one was assaulted and the other explained the fear they now face because of the amount of lone working they find themselves doing and how often there is no one nearby if something were to occur. It cannot be right that some front-line prison workers are protected while others are not.
In conclusion, prisons that are dangerous for staff are dangerous for prisoners too and disrupt the essential task of rehabilitation. Will the Minister give assurance that the Government are committed to making prisons safer working environments for all staff?
Lord Paddick (LD)
My Lords, I have Amendment 10 in this group. According to the Times newspaper, in an article dated 10 March this year, Chris Philp MP, the then Parliamentary Under-Secretary of State at the Home Office and Ministry of Justice responsible, according to the article, for sentencing, said that
“detailed research had found that the likelihood of being caught and punished was much more important in discouraging people from committing crime than length of jail sentences.”
Answering a Parliamentary Question about the deterrent effect of longer sentences, he said, again according to the Times:
“The evidence is mixed, although harsher sentencing tends to be associated with limited or no general deterrent effect. Increases in the certainty of apprehension and punishment have consistently been found to have a deterrent effect.”
I subsequently discovered that this was the Answer to a Written Question on 19 February from the Conservative Member for Rother Valley about pet theft—of which more on another day. The Bill certainly is the gift that keeps on giving.
Noble Lords around the Committee will be aware that we on these Benches have consistently said that longer prison sentences do not deter criminals and now, according to the Government, harsher sentences have limited or no deterrent effect. So why do we have Clause 2 in the Bill? Noble Lords may be surprised that, as a former police officer, I am not supportive of this measure. Something needs to be done about assaults on emergency workers, but an increase in the maximum sentence is not what is needed. What is needed is a change in attitude among the general public, in society and in the courts towards assaults on emergency workers in general and on police officers in particular. It appears to me to have become accepted by many that being assaulted is part of the job of a police officer or an emergency worker. But no one should be expected to tolerate abuse or assault because of the work they do, whether they are a Member of Parliament or an emergency worker.
The type of assault covered by this clause is common assault. Anything that causes a significant injury, even if it is not permanent, such as a bruise, can and should result in a charge under Section 47 of the Offences Against the Person Act 1861, for which the maximum term of imprisonment is already five years. We are talking about relatively minor physical harm. Can the Minister tell the Committee how many cases of assault on an emergency worker to date have attracted the current maximum penalty of 12 months in prison—or a sentence of imprisonment at all?
The reason for my amendment, in effect for the Sentencing Council to review its guidance for the existing offence where the existing maximum penalty is 12 months’ imprisonment, is to ensure that the courts and the Crown Prosecution Service reflect the seriousness of this offence in their decision-making, rather than what we see week after week reported on social media, where assaults on emergency workers in general and police officers in particular are treated by the CPS and the courts as part and parcel of the job. That sends a message to criminals and the general public that you can assault emergency workers with impunity, because in court you will be just be given a slap on the wrist—if it even gets that far. What is the point of increasing the maximum penalty for an offence to two years when the Government themselves acknowledge that harsher sentences have little or no deterrent effect and the courts, which can currently send someone to prison for up to 12 months, rarely if ever do so?
The Government may say that in some cases severe penalties can have a deterrent effect—but an increase from one year to two years for an offence often committed in the heat of the moment during the course of a confrontation between a police officer and a member of the public is unlikely to be one of them. Far better that the Government mount a publicity campaign stating that it is completely unacceptable to attack emergency workers who put their lives on the line every day to protect and serve the public, than that they make a minor adjustment to the maximum penalty that is likely to go unnoticed by those it is targeted at, either as a deterrent or in court following conviction, unless there is a significant change in the attitude of judges, prompted by a change in the sentencing guidelines.
On Amendment 11, proposed by the right reverend Prelate the Bishop of Gloucester, clearly, prison officers are as vital a uniformed force as police, fire and rescue services, the ambulance service and the coastguard, and they are afforded similar protection. I quite understand how others working in prisons feel that they are more vulnerable and, as the right reverend Prelate said, they feel they have a target on their back because they are excluded. He gave the appalling example of an assault on a prison chaplain that resulted in bruising to the chaplain. But, again, I say that that offence could have been prosecuted under Section 47, where there is an even greater penalty available than for an assault on an emergency worker. So we are not supportive of the increase.
On Amendment 9, in the name of the noble Earl, Lord Attlee, of course, if such substances are actually thrown at a prison officer or other emergency worker, it would amount to assault and therefore it would be covered by existing legislation around assaults on emergency workers, with a similar penalty to the one the noble Earl is proposing in his amendment. So we feel that there needs to be a change in attitude towards the apparent acceptability of assaults on emergency workers, rather than simply a cosmetic increase in the maximum penalty.
Earl Attlee (Con)
My Lords, I think the noble Lord and I are in agreement that the problem is that we are not prosecuting these offences, rather than the outcome in the courts. Because, for the prisoners, it may be that even another three-month penalty for my new offence would be enough to deter them—or, using the existing penalties, as the noble Lord said, it is the probability of being prosecuted that matters.
Lord Bach (Lab)
My Lords, of course we want to change attitudes and that is what we must try to do, however long it takes us, but I have to say, from my experience over five years as a police and crime commissioner—I am sorry to keep on about this—this wrong seems to have increased on a fairly enormous scale. That is only anecdotal, but the truth is that many more of those who are about to be arrested seem to think that it is okay to have a go at the police in order not to get arrested. That seems to me to be very unfortunate, and it is going to take a long time before it changes. It puts the police, and obviously other emergency workers, in a nearly impossible position sometimes—and when I talk about the police, I am really referring to other emergency workers as well.
Like the noble Lord, Lord Paddick, I do not want to see higher sentences for the sake of higher sentences, and I do think that their effect is often very limited, but I have to say—it seems odd, coming from these Benches, I suppose—that I have a certain sympathy with the Government here, because it seems to me that the position has to be dealt with immediately in some way, and one of the purposes of raising the maximum sentence available is to try, in the best possible way, to convince the courts that this is a more serious offence than sometimes they think it is. It is not always minor, I am afraid—sometimes it is undercharged—but it is a really serious problem that every emergency worker, and in particular every police officer, faces every time he or she makes an arrest, and I do not blame the Government for wanting to do something about it.
I am not saying it will be very successful; I think it is a much wider societal problem. But I do think it is something the Government are entitled to at least think about in this way. I do not say that with any happiness at all, but to claim that it is not a real problem is just untrue: it is a real, everyday problem.
Lord Beith (LD)
My Lords, I entirely accept that this is a real problem, but real problems require real solutions that have some chance of being effective. I cannot imagine anyone who commits an assault on a police officer or emergency worker actually knowing what the maximum sentence is for that offence—still less that the Government are currently increasing it. That information might just get through to the newspapers for a week or two, but there is no measurable deterrent effect from something that people do not know much about anyway. Most people must realise that if they get caught assaulting an emergency worker they will get into some kind of trouble, but whatever impels these dreadful assaults is clearly not likely to be affected by what is happening here.
What happens when you increase the maximum sentence? If you achieve generally longer sentences, you have made a commitment of resources. The question has reasonably to be asked: is this the best way of spending money to try to stop emergency workers being attacked? We must therefore look at any other measures that you can reasonably take that would have that effect, if, as I contend, there is no evidence that increasing the maximum sentence will lead to any reduction in attacks on emergency workers or police officers.
This is just one of many examples, and there are others that we will perhaps debate more fully later in the Bill, where the Government rush to have something to say—lengthening the maximum sentence certainly looks like having something to say—but it does not have the effect in the real world that we all desire.
Baroness Fox of Buckley (Non-Afl)
My Lords, I am a bit too squeamish to discuss Amendment 9 but I wanted to reflect on Amendments 10 and 11 and to follow on from some of the comments just made about the deterrence factor and expanding how long people are threatened with jail for.
I thought the Bar Council raised some very useful challenges for us to consider in relation to the section of the Bill dealing with assaults on emergency workers. The Bar Council asks us to consider if increasing the maximum penalty for such assaults is necessary or commensurate or whether it will work. It notes the limited evidence. I thought when I was listening to the noble Lord, Lord Paddick, who I was very compellingly convinced by, that it can feel a bit like virtue signalling rather than tackling the problem.
I was particularly interested in a slightly different point from the one that has been made and was struck by what the Bar Council said in relation to, I think, these amendments: there is a danger of creating a disparity between the penalties for attacks on emergency workers and those on other workers, and indeed a disparity between attacks on emergency workers and those on members of the public. There is an offence of common assault that should be considered a serious offence whoever is on the receiving end of it. Whoever is attacked, I would want the law to deal with it.
We heard from the right reverend Prelate how, if you start saying that an attack on this particular group of workers has to have a particular length of sentence, that might make other groups of workers—in this instance, in prisons—feel as though they are being neglected or somehow are not as important. We therefore have to be nervous about differentiating between categories of workers because that might end up being divisive, implying that front-line workers in some jobs are more important than others.
As a former teacher who has worked in the education sector—I worked with some challenging young people and was on the receiving end of some common assault, let us put it that way—I have been following closely the case of Professor Kathleen Stock, a feminist philosophy academic at Sussex University, whom the police have advised should not return to her place of work on campus because of the danger of violence from some self-styled anti-TERF activists. There have been all sorts of threats and harassment. They even have a special phone number for her to ring. There are other teachers who face this.
I raise that because when it comes to this kind of threat, that kind of potential violence and those kinds of assaults, it does not matter if you are a front-line worker. I do not know why the “emergency” bit should give you an extra penalty. I am not advocating for a special penalty for attacks on education workers. I just do not want people on the front line to feel that some are more important than others.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I will open by discussing first some of noble Lords’ contributions on their amendments.
The noble Lord, Lord Paddick, spoke to his Amendment 10. The amendment is about preparing sentencing guidelines for assaulting an emergency worker, or along those lines. My experience as a sitting magistrate is that those guidelines are not available at the moment so we use the old guidelines for assaulting a police officer as the guidance. However, I reassure him that whenever I sentence people I invariably make it explicit that part of the sentence, or maybe part of the uplift, is due to the role played by the person who was assaulted. So although it may not have been expressly set out in legislation about emergency workers, if it concerns a teacher or something like that, I will say that it is a very serious matter and I have taken that into account in the sentence. Nevertheless, I understand the points that the noble Lord made.
The amendment by the right reverend Prelate the Bishop of Durham, who spoke on behalf of the right reverend Prelate the Bishop of Gloucester, seeks to expand the definition of “emergency worker” to include all prison staff, and he gave some very moving examples of chaplains, educators, instructors and healthcare workers. I think he has seen some of the same briefing that I have, which says essentially that many of those people are saying that they have never seen it so bad in terms of assaults on those people working in prisons.
As is often the case in Committee on Bills in this House, the debate went wider. I listened carefully to what the noble Baroness, Lady Fox, said about being cautious about having a hierarchy of people who work in public service in one way or another. Nevertheless, I also took into account what my noble friend Lord Bach said: there is a role for sending a message about the Government responding in some way, although that does not necessarily mean increasing sentences themselves; there are other ways of responding that may be more effective.
I turn to Amendment 9, which I have put my name to, and I thank the noble Earl for tabling it. As well as sitting as a magistrate in London, I am also co-chair of the Justice Unions Parliamentary Group here in Parliament and I have had a lot of lobbying on this matter, as I know other noble Lords have too.
The noble Earl explained the practice of “potting” in prisons. It can be done by prisoners who are mentally ill or, as he explained, by other prisoners as part of a tactic to punish officers who are targeted by particular groups of prisoners. He explained the circumstances where it may have a relatively minimal effect on the offender if they are towards the end of their sentence.
There is a widespread perception among prison officers that they have been neglected by the Government and that the CPS and the existing discipline structures within the prisons, and indeed visiting judges, do not take the practice of potting sufficiently seriously. In fact, on various TV programmes about working in prisons, we can all see, as I have, prison officers being potted. In fact, I have a magisterial colleague whose niece is a serving prison officer and, only a few months ago, she was potted herself. Of course, this is a completely disgusting and disturbing thing to happen. I hope that it will not reduce her commitment to the job of being a prison officer, but I have to say that I do not know; it might be one of the reasons that some officers choose to resign from the service.
There are many issues facing the Prison Service, which we have debated many times: high turnover of staff, pay and conditions, inexperienced managers, a change in the retirement age—the list goes on. I suspect that the noble Earl is right to anticipate that, in his answer, the Minister will say that the practice of potting could be charged in any number of ways and may well argue that it is covered by existing legislation. But the point that the noble Earl was making is that it simply is not taken seriously enough. The addition of a separate, specifically defined piece of legislation outlining this practice, making it more difficult for the authorities to minimise, would show that the Government value prison officers. This is an opportunity, I would say, for the Government to demonstrate that they value prison officers.
I do not know what the noble Earl plans to do at further stages of this Bill. This is such an egregiously disgusting practice and it is a tactic used in prisons; this is a specific way of responding to that tactic, which is within the Government’s hands in this Bill.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
My Lords, I begin by placing on the record my apologies for not being in my place at Second Reading for personal family reasons. I also place on record my thanks to many noble Lords for their kind and supportive words and messages; I am very grateful.
Turning to the substance of the matter before the Committee today, Clause 2 of the Bill proposes an increase in the maximum penalty for the offence of common assault and battery when that offence is committed against an emergency worker. The definition —this is important—of “emergency worker” is set out in Section 3 of the Assaults on Emergency Workers (Offences) Act 2018. The pandemic has reminded us, if we needed reminding, that the vital front-line role that our emergency workers play, and indeed always have played, is of immense importance to our society. But we have recently seen an increasing number of assaults being committed against emergency workers in the course of their duties. This will simply not be tolerated.
Last summer, we delivered on our manifesto commitment to consult on this issue. We found that the large majority of respondents supported our proposal to double the maximum penalty to two years. This will ensure that the law provides our police and other emergency workers with sufficient protection to carry out their duties and will enable the courts to pass sentences that reflect the severity with which we view these offences. This measure builds on previous legislation introduced by the Government back in 2018. We have enhanced already the protection of emergency workers where more serious assaults such as ABH and GBH are committed—I think the noble Lord, Lord Paddick, made this point. These more serious offences obviously carry higher maximum penalties than common assault. Where such offences are committed against an emergency worker acting in the course of their duties, this is regarded as an aggravating feature of the offence, warranting a higher sentence.
Let me deal first with the amendment from the right reverend Prelate the Bishop of Gloucester. I am grateful to her for tabling the amendment, and to the right reverend Prelate the Bishop of Durham for acting as her spokesman this afternoon—I was going to say, “as the Aaron to her Moses”, if I may put it in those terms. The purpose of her amendment is to broaden the definition of “emergency worker” to encompass all staff in custodial institutions. The Committee will be aware that all prison officers, prisoner custody officers and those who exercise functions associated with these professions are already included in the existing definition of “emergency worker” from the 2018 legislation.
The problem is that broadening the definition of “emergency worker” can have unintended consequences. The broader definition would capture anyone employed or engaged to carry out functions in a custodial institution, which can extend to prisoners who undertake jobs within the institution. The amendment would then place this group of convicted prisoners on the same statutory footing as prison officers, constables and NHS staff. That would be unacceptable.
By means of increasing the maximum penalty for the assault of an emergency worker, we want to protect those who protect others. That is why it is right that emergency workers are on a different statutory footing. Clause 2, therefore, does not seek to amend the underlying definition of “emergency worker” that was accepted by Parliament when passing the 2018 legislation. I acknowledge the point made by the noble Baroness, Lady Fox of Buckley, given the work of the Bar Council in this area, but it is right, I suggest, that we acknowledge the special position of emergency workers, as Parliament did back in 2018.
Of course, that is not to say that any form of violence in custodial institutions is acceptable; it plainly is not. We want to make sure that our prisons are safe for all staff, as well as all prisoners. Picking up on the point from the noble Lord, Lord Ponsonby of Shulbrede—
Lord Bassam of Brighton (Lab)
I have a pertinent question. I am troubled by the rather lame excuse that the noble Lord offers from the Dispatch Box about the “unintended consequences”. Surely it would be very simple to put in place an exemption that barred prisoners from benefiting from that clause. I cannot understand why the noble Lord is so resistant to this particular move; there must be a workable way round it. I have been a Home Office Minister and have had lame excuses written for me—this sounds like one of those.
Lord Wolfson of Tredegar (Con)
I am afraid that the noble Lord appears to have missed the point of principle that I made before making what he characterises as a lame excuse, but which I thought was in fact rather a good point. The point of principle is that we have a definition of “emergency worker”, which Parliament accepted back in 2018. It is a good working definition, and we shall stick with it; that is a point of principle. The point on this amendment was that it goes too far because it has those unintended consequences. The noble Lord should not lose sight of my first point by concentrating only on the second, which he regards as lame and which I regard, from a legal perspective, as quite a nice point—I do urge upon him the point of principle as well.
I was coming to the point that we value prison officers. The noble Lord, Lord Ponsonby of Shulbrede, laid down the gauntlet and asked that we do so from the Dispatch Box. Of course we do. Our position on this amendment has nothing to do with not valuing prison officers or the work that anybody does in prison.
The right reverend Prelate the Bishop of Durham asked what we were doing to protect prison staff. Those who carry out corresponding functions to prison officers and prison custody officers are already included in the definition of an emergency worker. Offences against those people will be treated as an aggravating factor in sentencing guidelines. That is what I wanted to say in response to that amendment.
The Lord Bishop of Durham
I am sorry—I thought very carefully about whether I should intervene. I was genuinely so taken aback by the Minister’s reference to prisoners being included that I nearly leapt up immediately. The question was then asked, but I have tried to replay it in my head. I absolutely understand that the Minister meant no offence but, out of context, I fear how it might be understood by those workers, such as chaplains, tutors and so on. By, in a sense, lumping them together with prisoners who have been employed, it could easily be misheard outside this House. I know that was not the Minister’s intention, but I ask him to put on the record that it was not what he meant.
Lord Wolfson of Tredegar (Con)
I am extremely grateful for the opportunity to do that. As I am sure everybody recognises, that was not the point I was making. I appreciate that it was regarded as lame by some people, but the point that I sought to make was that the distinction and purpose of the amendment was to expand the definition from prison officers to other people working in prison. My point was that from the way in which it is drafted—and I appreciate that it could be redrafted—it could and would be read so broadly as to include prisoners who were doing jobs in prison. It was certainly not what I was saying to place prisoners doing jobs in prison with chaplains and others who are working in prison. I am grateful to the right reverend Prelate for giving me the opportunity to make that clear, if it was not already.
Lord Brown of Eaton-under-Heywood (CB)
I seek one matter of clarification, although I should not need to. Is there no way, apart from raising the maximum sentence by legislation, by which government could bring to the attention of the prosecuting authorities, sentencing courts and so forth the aggravating features that cover all these amendments? There are the emergency workers in the first place, and the nauseating offence of potting, which I confess not to have heard of before, and assaults on prison officers. There are those who find themselves, in the ordinary course of their employment, exposed in these highly vulnerable circumstances to miscreance of an obvious character. Is there no governmental input to the Sentencing Council? Can the Government not influence those sorts of bodies to isolate the fact that these are manifestly aggravating circumstances, which should go to raise not only the likely sanction being imposed but the likelihood of prosecution?
Lord Wolfson of Tredegar (Con)
As the noble and learned Lord knows far better than I do, one has to distinguish between aggravating and mitigating factors and the likelihood of prosecution. With regard to the Sentencing Council, I am confident that it already has that point on board. The question before the Committee is that of maximum sentence rather than aggravating or mitigating factors. I have also said—and, I hope, explained—that there is clear guidance in place to make sure that, when these offences are committed, they are dealt with either through the courts or through prison adjudication.
Baroness Chapman of Darlington (Lab)
I just want to take the Minister back to the comments made by the right reverend Prelate the Bishop of Durham on the definition of prisoners as workers. I cannot think of any other legislation where a prisoner enjoys the same rights as a worker. There are many rights that workers enjoy in this country, but none of them that I am aware of apply to prisoners. There must be a way around this, perhaps by a government amendment or some sort of redrafting, that would allow the suggestion made to be incorporated.
Lord Wolfson of Tredegar (Con)
I think I made it clear earlier that I was making two points in response to this amendment. The point that we are focused on at the moment is whether we could have more—and I say this respectfully—felicitous drafting than the drafting of the amendment that we currently have. I have accepted in principle that one could, and I made that clear in my previous answer and my answer to the right reverend Prelate. However, I do not want us to lose sight of my first response, on the point of principle: we have a definition in the 2018 Act of “emergency worker”, and that was regarded in 2018 as suitable and fit for purpose. It treated that definition as a separate status and a distinct group, and the Government’s position is that definition was good in 2018 and remains so now.
Earl Attlee (Con)
My Lords, I am grateful to all noble Lords who have taken part in this debate. On Amendment 11 from the right reverend Prelate, I am aware of the problem that he describes, but I did not make my new offence cover other Prison Service staff. I deliberately excluded probation officers just for reasons of simplicity, but if I managed to make my potting amendment find favour with the House, I would have to decide who was to be protected by it.
I am slightly disappointed by my noble friend’s response, because I thought that I was offering him the best thing since sliced bread, but he turned me down. The problem for the Minister running the Prison Service is that he cannot direct the police force to investigate these issues and, as he carefully explained to the Committee, he cannot direct the Crown Prosecution Service to pay greater attention to these offences either. My noble friend has no tools to protect prison officers—so I suspect that the Prison Officers’ Association will be a little bit disappointed with his approach.
I think we identified the underlying issue, which is the probability of being prosecuted for these sorts of these offences, and we need to have another look at that. I shall, of course, withdraw my amendment, subject to the usual caveats and discussions with the Opposition Front Bench.
Police, Crime, Sentencing and Courts Bill
Wednesday 20th October 2021
(2 years, 6 months ago)
Lords ChamberRead Full debate Police, Crime, Sentencing and Courts Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 40-I(b) Amendments for Committee (supplementary to the Marshalled List) - (20 Oct 2021)
Lord Paddick
“Meaning of special constables
In all legislation in force applying to England and Wales (including legislation enacted after the coming into force of this section)— (a) the term “members of police forces” shall be deemed to include special constables, and(b) the term “constable” shall be deemed to include a special constable.”Member’s explanatory statement
The aim of this amendment is to ensure that special constables are considered to be members of the police service, as they are in Scotland.
Lord Paddick (LD)
My Lords, Clause 3 enables special constables to be represented by the Police Federation, which is an important and welcome acknowledgment of the role played by specials in police forces—but it does not go far enough. I have been surprised at the lack of knowledge among those I have discussed the amendment with surrounding the role of special constables, who are sworn servants of the Crown with all the powers and responsibilities of a regular police officer. The only difference is that special constables are unpaid volunteers whose only recompense is to be paid expenses. I have also been surprised to learn how widely special constables are now used across a range of policing duties.
When I was a serving police officer, specials were generally treated quite badly by regular officers, who referred to them as “hobby bobbies”. It was almost seen as a punishment for a regular officer to be paired with a special constable on patrol—a liability rather than an asset. Such attitudes were unfair and, in most cases, unjustified. As the devastating cuts to policing continued at the end of the coalition Government, special constables came to be increasingly relied on to perform an extensive range of duties, including being trained in public order to be used in the front line on potentially violent demonstrations. Special constables carry warrant cards, handcuffs and CS spray, can exercise force and make arrests, unlike police community support officers, who are unable to do any of those things. Their uniforms have evolved over time so that today they are barely distinguishable from a regular police officer.
To all intents and purposes, and as far as the law and the public are concerned, special constables are in every way the same as regular police officers, except they are unpaid volunteers. That equivalence has been recognised in Scotland, where they are considered to be members of the police force, but it is not the case in England and Wales. While I welcome the recognition that this Bill proposes to give special constables in allowing them to be represented by the Police Federation, I am at a loss to understand why they are not also to be considered members of police forces to which they belong in England and Wales, as they are in Scotland.
Special constables have a vital and increasingly important role to play. In many places, the visible policing presence on our streets has all but disappeared; specials could help to fill that gap. The nature of policing is changing, with increasingly complex and technical crime being committed, such as online fraud. While police forces cannot compete with tech giants in terms of salaries for those technically qualified and experienced, there are opportunities for those with technical expertise to devote some of their spare time to serving their fellow citizens by becoming special constables dedicated to cybercrime, for example.
If I recall correctly, the Labour Party would seek to recruit significant numbers of special constables, were it to be in government—but that requires more than a statement of intent. Being a special constable has to be an attractive proposition to potential recruits, and recognising them as full members of police forces would send a clear message as to how important and valued they are. Can the Minister explain to the Committee why special constables cannot be members of police forces in England and Wales when they are in Scotland? I beg to move.
Baroness Harris of Richmond (LD) [V]
My Lords, this amendment, proposed by my noble friend Lord Paddick, is one that I wholeheartedly support. Many years ago, when I was a magistrate, it was one of my happiest duties to swear in the new special constables. It was fascinating to hear their reasons for wanting to serve their communities voluntarily and to learn about their day jobs. Whatever motivated them, whatever their background, they shared the same driving commitment to help to keep us safe. They put themselves in as much danger as a full-time officer, and they do it voluntarily.
For many years, as my noble friend Lord Paddick, has said, full-time officers derided them. Fortunately, they began to see their worth and special constables are now, almost, fully integrated into the workforce and finally treated properly. I am delighted that my noble friend has brought forward this amendment and I support it totally.
Lord Coaker (Lab)
My Lords, I am very happy to discuss Amendment 12, moved by the noble Lord, Lord Paddick. It is really interesting and certainly gives us cause to think about the issues he has raised about special constables being members of police forces in England and Wales, as they are in Scotland. It will be interesting to hear the Minister’s response as to why that is not appropriate, or whether the legal difference between England and Wales and Scotland with respect to specials is an important difference and there is some logical reason for it. It is certainly something for this Committee to think about. We are grateful to the noble Lord, Lord Paddick, for bringing this amendment forward.
We also very much support the provisions in Clause 3, which allow special constables to join the Police Federation. This is a long overdue change, so the Government are to be congratulated on bringing that forward.
It is really important for us to put on record—given that our proceedings are read by many outside and watched by others—what will be the Committee’s unanimous view of the importance of specials and the work they do. All, or many, of us will have been out with our local police forces on the beat. I have at times been out with the specials. It is important to remember that, when a special turns up at an incident in a uniform, with the full powers of the police constable, the people to whom he or she is going do not ask them whether they are a special or whether, because they are special, they do not somehow put themselves in danger in the same way that a full-time police officer would. They are just grateful that a police officer—a uniform—has turned up to support them.
It is really important for us to state in this Committee debate that we support the specials and value the work that they do across communities up and down the country. It is also worth reiterating the evidence given to the Bill Committee in the Commons by John Apter, who said that special constables
“stand shoulder to shoulder with my colleagues. They have exactly the same powers and they carry exactly the same risks.”
In that short phrase, John Apter has completely summed up our view of the work that they do. Alongside that, Chief Superintendent Paul Griffiths, president of the Police Superintendents’ Association, said that special constables
“epitomise the relationship between the public and the police”.— [ Official Report, Commons, Police, Crime, Sentencing and Courts Bill Committee, 18/5/21; col. 26.]
It is important, in this short debate on the amendment, to put that on the record. I know it will be the unanimous view of the Committee, but I am also interested in the noble Baroness’s response—sorry, the Minister is the noble Lord; I will get it right. I have been in the Commons for a long time and it takes a little while to get used to—I am nearly there.
The amendment from the noble Lord, Lord Paddick, raises an important issue on which we need some clarification, and I look forward to the Minister’s reply.
Lord Berkeley of Knighton (CB)
My Lords, I want to amplify one point made by both previous speakers. I am sure that the Minister would agree that what we want to do in the police force—all parts of the police force—is to encourage recruitment. The feeling that one has standing encourages that enormously. I would just like to make this point: we want to encourage recruitment, and therefore if police special constables feel that they are part of the police force, they are more likely to join and stay.
Lord Sharpe of Epsom (Con)
My Lords, I am grateful to the noble Lord, Lord Paddick, for explaining his amendment. Before I get on to dealing with this amendment, I want to say that I was very moved by the noble Lord’s earlier comments. In the interests of full disclosure, I should declare that I was an inspector in the Royal Hong Kong Police. That is where I started out; I can confirm that one never forgets the smell of a mortuary.
Amendment 12 effectively seeks to dispense with the need for Clause 3 by ensuring that, for all purposes, special constables are treated in law as members of a police force. Our professional and dedicated special constables increasingly carry out a range of specialised and front-line roles in their mission to keep us and our communities safe, as the noble Lord, Lord Paddick, noted. He also made some very relevant points about the technical skills that they can bring. They often face the same risks as regular officers while on duty; they deserve the same protection and support as regular officers where appropriate. That is why, through the Bill, we are enabling special constables to become members of the Police Federation, should they wish to do so.
Having been subject to long-standing separate regulation in England and Wales, the distinct nature of special constables is recognised in law with clearly defined benefits that result directly from this separate status. In contrast, legislation in Scotland has long included special constables as “members of police forces” and has been drafted to take this into account. It would not be appropriate for special constables to have access to the same conditions of service, or indeed face the same restrictions, that legislation confers on regular officers. Including special constables in the existing definition of “members of police forces” would have that effect. Legislation on the pay and pensions of “members of police forces”, for example, is not relevant to special constables, who are unpaid volunteers, choosing to give up their free time to help strengthen our police forces. As warranted officers, special constables in England and Wales hold the office of constable and are therefore already included in the term “constable”. This means that, where legislation confers powers on a constable, they will also be exercisable by a special constable.
The noble Lord, Lord Coaker, mentioned how we value special constables, as did the noble Baroness, Lady Harris. I will digress briefly to set out what the Home Office is doing to recognise and support the special constabulary. The Home Office has raised the profile and status of the annual Lord Ferrers Awards, which recognise the outstanding contribution of volunteers in policing. We have consulted on proposals to extend the eligibility of the Queen’s Police Medal to special constables, along with proposals to lower the service threshold for bars to the Special Constabulary Long Service Medal from 10 to five years. Those proposals could support the retention of highly committed volunteers who may, for example, be incentivised by an award that recognises more realistically the length of service volunteers are able to provide and their ongoing commitment to public service. I hope that this also answers something of the question from the noble Lord, Lord Berkeley, about recruitment.
The noble Lord, Lord Coaker, referred to John Apter, chair of the Police Federation. I note that he started out as a special constable, which I suppose, by implication, suggests that that is a route into becoming a regular police officer.
For those reasons, we consider that this amendment is not necessary and could cause confusion to the status of special constables, which the law recognises as distinct from regular officers. Further, this amendment could have unwelcome, unintended consequences, for example by applying pay provisions to volunteers. I hope that, in light of my explanation and assurance, the noble Lord, Lord Paddick, will be content to withdraw his amendment.
Lord Paddick (LD)
My Lords, I thank my noble friend Lady Harris of Richmond for her support and the noble Lord, Lord Coaker, for his inquisitiveness and his recognition of the value of specials. I warmly welcome the noble Lord, Lord Sharpe of Epsom, to the Dispatch Box. I am not sure whether this was his first outing, but it was a very, very good one. As he will find out, we work collaboratively in this House and it is good to work with such a wonderful Home Office spokesman—if that is not too over-the-top.
However, I did not actually hear—or if I did, I did not understand—why special constables are included as members of police forces in Scotland, and how all the objections the Minister raised, in terms of why they could not be members in England and Wales, have been got around in Scotland. As this is the Minister’s first outing, I would not press him to give me an answer now if he would prefer to write. But something tells me he may have the answer in his hands, in which case I shall allow him to respond.
Lord Sharpe of Epsom (Con)
I will try. The noble Lord is asking why specials are treated as members of the police force in Scotland but not in England and Wales. Special constables in England and Wales have been subject to long-standing separate regulation for members of police forces, and their distinct nature is recognised in law, with clearly defined benefits that result from this separate status. By contrast, legislation in Scotland has long included special constables as members of police forces, and it has been drafted to take that into account. I hope that goes some way to answering the noble Lord’s question.
Lord Paddick (LD)
It was a good try, but it quite clearly does not answer the question at all. Specials in Scotland have always been considered to be members of police forces; they are not paid, but if that happened in England and Wales, they would have to be paid like regular officers. I would like, if possible, for the noble Lord to write to me with a fuller explanation, rather than just stating what the facts are; an explanation of why the facts are as they are would be extremely helpful. But at this stage, I beg leave to withdraw my amendment.
Baroness Randerson
Member’s explanatory statement
This would specify that the new standards only apply to “police pursuit purposes” rather than all “police purposes”.
Baroness Randerson (LD)
My Lords, I am pleased to have this opportunity to introduce this group of amendments, and of those, Amendments 13, 15, 16 and 18 are in my name. They are of course probing amendments at this stage.
The Government are seeking to change the standards by which police driving is to be judged. I should explain to noble Lords that I have some background on this issue, because for 18 years I was a JP, and over those years I dealt with a number of cases that involved police pursuit. Controversial cases where police pursuit leads to traffic accidents of course occur regularly.
I have my own personal experience of this. More than a decade ago, I was involved in one such incident. One evening, I was driving along a long, straight stretch of road in Cardiff—a two-lane road, with a mix of residential and commercial properties, that had intermittent central barriers. I suddenly became aware of cars coming towards me at considerable speed, well above the 30 miles per hour limit. It turned out to be a car driven by a very young man, with a passenger, pursued by two police cars. The problem was that they were on my side of the road, and I was on a part of the road with a central barrier. There was literally nowhere for me to go. There was a head-on crash, my car was a write-off, and there was a three-car pile-up because the car being pursued turned over and one of the police cars impacted it.
The seriousness of the crash was indicated by the fact that the road was closed for the night. We had three additional police cars on the scene, two ambulances, a fire engine and a police helicopter. I spent the night in A&E, but it could easily have been very much worse, because the passengers in the other cars suffered only minor injuries too.
Why were the police taking the risk of this pursuit? There were a number of pedestrians around—the crash happened in front of a pub. The official explanation was that the car was stolen, and I was told that the young men were suspected of at least one burglary—but that was a historical suspicion. However, until the pursuit, there was clearly no risk to life and no immediate danger of violence. It has always been clear to me that that pursuit was unlikely to have been justified.
My Amendments 13 and 16 are designed to probe how the Government envisage the new standards being applied. Since the Road Traffic Act 1988, police driving standards have been judged in the same way as those for any other driver despite the additional training they receive and the various exemptions that apply to them. Following a Police Federation campaign, there was a Home Office consultation which included a question on whether the new looser standards should apply only to pursuit or to police response driving generally. Clauses 4 to 6 give effect to the proposed changes, which would judge police driving against the standards of a competent and careful police officer with additional training. The new standards are to be applied to police purposes generally. However, this is a very wide definition. My amendment suggests that it should be limited to pursuit only.
I fully accept that there is an argument that it could also include I-grade—immediate grade—responses. I know that the grading of police responses varies from one force to another but, generally, I-grade calls are those where the immediate presence of a police officer will have a significant impact on the outcome of an incident. It is typically categorised as where there is likely to be a danger to life, a serious threat of violence, serious damage to property or serious injury. The response time is 15 minutes. The other grades of police response are generally called significant, S grade, or extended, E grade, and they do not involve a risk to life or injury. S grade gives a response time of 60 minutes and E grade 48 hours. Clearly, in neither of those cases is there a justification for extremely fast speeds and less than the normal, competent standards of driving that the rest of us ordinary mortals are expected to follow. I would therefore appreciate an explanation from the Minister as to why any kind of police purpose would be regarded as acceptable. We need a greater justification for these changes.
Amendments 15 and 18 also probe the impact of these changes by suggesting that the Secretary of State be given the power to extend the new standards to other emergency services. Noble Lords will understand that this is an inquiry. Ambulance drivers and drivers of fire engines also receive special training. They are highly skilled drivers, trained to break the normal rules of the road. They respond to calls where there is an immediate danger to life. It could be argued that that applies routinely in the case of ambulance drivers, whereas it probably applies fairly exceptionally in the case of the police. My question to the Minister is this: where do the other emergency services stand in relation to the changes to the rules that the Government are suggesting in this legislation? Are we to expect changes for other emergency services in further legislation, or is that not necessary for legal reason that I have not been able to uncover?
I realise, of course, that the two sets of amendments do not sit particularly well together. I am not arguing a case one way or the other. I am simply seeking to emphasise that these are probing amendments to see what is in the Government’s mind. What is their intention?
Earl Attlee (Con)
My Lords, I have Amendments 14 and 17 in this group. I hope—in fact I am confident—that my noble friend the Minister will give a full explanation of the purpose of these clauses in the Bill, in response to the noble Baroness, Lady Randerson. My concern is the inclusion of staff members in these new tests of dangerous and careless driving. I can understand the need to include civilian police driving instructors, but what I do not understand is the inclusion of other staff members. I hope that the Minister can explain why they need to be included.
Lord Paddick (LD)
My Lords, this is a difficult and contentious part of the Bill. There has been much debate for decades about the police approach to vehicle pursuit in particular, and the ability of emergency service drivers to disregard traffic signs and speed limits in an emergency. There have been tragedies where emergency vehicles on their way to serious and urgent incidents have ignored traffic lights or give way signs, or driven on the wrong side of the road, often in an attempt to save or protect lives, and tragically they have been involved in collisions with innocent members of the public, causing serious injury and sometimes loss of life, as my noble friend Lady Randerson has so graphically illustrated from her own personal experience.
This is perhaps the less contentious of the two areas. But even here, for police control room staff—I am sure the same happens with the fire brigade and the ambulance service—calls are graded as follows: emergencies, with arrival as soon as possible; immediate, with arrival within an hour; or routine. This is to ensure that police vehicles are not driven at speed unnecessarily.
I declare an interest as a former police officer who, although in possession of a full driving licence, attended a six-week, full-time police driving course just to become a standard police driver. I was not authorised to drive high-powered cars designed for use in responding to emergency calls and I was not allowed to become involved in vehicle pursuit of criminals, but simply to be a police driver answering routine calls. Of course, it is possible to become inadvertently involved in a chase, when a car that is asked to pull over refuses to stop, as happened to me on occasion, but as soon as a qualified driver was behind, I dropped out of the pursuit. Being an advanced trained driver involved many more weeks of intensive training; from memory, two six-week courses, with a very high failure rate. The courses were highly sought after and awarded to only the most experienced officers. Police drivers are trained to some of the highest driver standards in the world.
In addition, police control room staff have the authority to direct police vehicles to withdraw from pursuits where the driver of the police vehicle involved is not suitable to conduct the pursuit, where the seriousness of the offence alleged does not justify the risks associated with a high-speed chase, or where the driving conditions —the type of road, the time of the day or any other factor; my noble friend mentioned the presence of pedestrians, for example—present an unreasonable risk to the public and the officers who are involved in the pursuit.
Lord Coaker (Lab)
My Lords, I welcome the noble Lord, Lord Sharpe, to his place, and wish him well in his role. If I had realised that he was responding, I would have said that when I made my initial remarks. I apologise and look forward to our discussions.
One thing I did before discussing this group and the next group of amendments—which are incredibly important and deal with really difficult areas of law—was to Google some of the problems. Before I look at some of the examples, just from Googling, of where there have been problems around police pursuits of one sort or another, I thank the noble Baroness, Lady Randerson, for sharing her horrible, terrible and awful experience with the Committee. That is another example of the sorts of issues that can arise from a police pursuit, and thankfully she is here to tell us the tale. We all found it very moving.
As I say, just from Googling, there are various examples that show some of the difficulties: an M27 police pursuit and 100-mile-per-hour chase, with a driver weaving in and out of traffic; “Driver, 18, narrowly misses bus in police pursuit”; “Driver loses police in wrong-way pursuit”; “Car driven along a railway track to escape the police”. This is not to question any of those individual cases—I did not read them; I just looked at the headlines—but a quick Google shows the extent of the problems that arise. Clearly, as it stands, the Government are seeking to address a very real issue. It is not easy, because if you are the victim of a crime, or something is going on, you want the police to respond as quickly as possible. It is a difficult situation for the police, and these clauses seek to deal with that. I appreciate that these are probing amendments, as I think the noble Baroness, Lady Randerson, said, but they raise important issues that will need clarifying in both this group and the next.
We welcome these clauses because, like most people, we have been saying for a long time that there is a need for proper and improved protection for police drivers, who regularly put themselves in danger in the line of duty to pursue suspects. That is what we all want them to do. These clauses put recognition of the training that officers have had and the purposes of the journeys that they take into law. We should pay tribute to the Police Federation for the work it has done in campaigning consistently for this. As I have said already, however, we can see that issues arise from it—indeed, they have already been raised by the noble Lord, Lord Paddick, the noble Baroness, Lady Randerson, and the noble Earl opposite.
Amendments 13 and 16 in the name of the noble Baroness, Lady Randerson, narrow the clauses to police pursuit. We can see the purpose of the amendments when rereading the Bill, which says:
“Subsection (1B) applies where a designated person … is driving for police purposes”.
I suggest to the Minister that that is a bit vague. What on earth does it mean? Without being sarcastic, “police purposes” could mean that you get in a car to drive down the road because you have to go and see somebody about a crime. That is a police purpose. I am not suggesting that any police officer would therefore drive at 100 miles per hour to do that, but we can see the problem that the noble Baroness is trying to get at; “police purposes” is really wide-ranging. On the other hand—and no doubt the Minister will say this when he responds—saying “police pursuit purposes” narrows it down to the extent that we end up excluding the possibility of the police having an emergency response to things that we would all wish them to have an emergency response to. That is why, I suspect, the noble Baroness has made them probing amendments. Indeed, she said that if you thought somebody was in danger, or if a murder, serious rape or something like was that taking place, you would not want the police driving along slowly to get there. You would want them—in a proper way—getting there as soon as possible with an armed response or whatever response was appropriate.
On one hand, the Bill has, “police purposes”, and I am not sure that that is drafted as well as it might be, but then the definition we would want—“police pursuit purposes”—probably narrows it too much, which is why I am pleased it is a probing amendment. The Committee wants the Government to come back, I think, with something that encapsulates that competing and conflicting point about where we go with respect to that.
Amendment 17 from the noble Earl, Lord Attlee—again, this is the point of any Committee—removes any driver from the Bill who is not a constable or civilian driving instructor who is training a police driver. He is saying to the Government, and I think it is a really good point, that they have a long list of designated persons in the Bill—I will not read them all out. I remind the Committee that it does not apply just to the police force; it applies—and it is a good thing the Government added this to the Bill—to the British Transport Police, the Civil Nuclear Police Authority, the Chief Constable of the Ministry of Defence, the Scottish Police Authority and the National Crime Agency. These can be designated and it gives power to the chief constables and chief officers of those to designate a person, to give them the authority to drive in that way if they have received training. The noble Earl, Lord Attlee, is therefore right to ask why. What is the Government’s justification for extending this to that range? There might be a very good reason for it, but it is a point we need to understand.
To conclude on this group of amendments, can the Minister shed light on my earlier point as well as who is covered by the current list of designated persons in the Bill and why they have been included?
Earl Attlee (Con)
My Lords, if I may come in briefly before my noble friend the Minister speaks, I think the term “for police purposes” appears in other forms of road traffic law. I am not certain, and maybe the Minister can help us on that.
On “police purposes”, I have given the Committee an example of where a police driver might choose to go very fast indeed but perfectly safely. Suppose a passenger carrying vehicle, a minibus, breaks down on the motorway somewhere. As soon as the driver tells the police control room they are a passenger carrying vehicle and they have passengers in the back of that vehicle, I imagine that the police will try to get there as fast as they possibly can, to get a police car behind that broken-down vehicle. That would be a “police purpose”. It is not a pursuit, it is not after criminals; however, a police driver in those circumstances, because he is properly trained in the way that the noble Lord, Lord Paddick, says, would be expected to identify a change in road surface. The noble Lord, Lord Paddick, will remember being trained to identify a change in road surface, so actually, if he fails to identify a change in road surface, he could in fact be caught by the changes proposed by the Government.
Lord Sharpe of Epsom (Con)
My Lords, I am grateful to the noble Baroness, Lady Randerson, and my noble friend Lord Attlee for explaining their amendments. I think it is clear that we all want the same outcome, which is protecting police officers who are pursuing dangerous criminals, but also protecting the public. The Government believe that Clauses 4 to 6 of the Bill achieve a sensible balance in meeting these objectives. We believe police officers must be able to do their jobs effectively and keep the public safe without fear of prosecution for simply doing their job in the manner that they are trained to do. The noble Lord, Lord Coaker, pointed to some really quite poignant examples of exactly that.
Current laws do not recognise the training that police drivers undertake and the tactics they may have to employ to respond to emergencies and pursue criminals. The new test will allow courts to judge their standard of driving against a “competent and careful” police constable with the same level of training, providing assurance that their skills and training will be taken into account. The new comparison with a “competent and careful” police driver takes into account whether a police driver with the same training would have reasonably made the same decision under the same circumstances.
I was very moved by the personal experiences of the noble Baroness, Lady Randerson. Her Amendments 13 and 16 seek to specify that the new standard should apply only to “police pursuit purposes”, rather than all “police purposes”.
Earl Attlee (Con)
My Lords, could the Minister tell us what powers ambulance drivers and fire engine drivers have in terms of being able to disregard speed limits and traffic regulations? He may choose to write to me—that will be fine—but I think it would be very helpful for the Committee to know what those drivers can and cannot do. I understand his point that the requirements of the police are more extensive.
Lord Paddick (LD)
My Lords, with my 30 years’ experience in the police service, I am having some difficulty in understanding some of the Minister’s explanations, for example about when surveillance becomes a pursuit. We are talking about a situation where an officer is potentially facing a prosecution for careless or dangerous driving. In the ordinary course of surveillance, the people who are being followed will not know that they are being followed. That is what surveillance is. It becomes a chase when the people being surveilled recognise that they have a police vehicle behind them and try to escape. It then becomes a pursuit. So, with the greatest respect, I think that the Government need to sharpen their reasoning for dismissing amendments which, if my noble friend Lady Randerson does not pursue them on Report, I am very likely to.
Lord Sharpe of Epsom (Con)
I thank the noble Lord for that intervention. I think I gave some other examples, though, of things that do not necessarily qualify as police pursuit but are still none the less covered by this: emergency response, armed vehicle interventions and so on. I thought those would cover most of the noble Lord’s points. I take his point, obviously, that if you are under surveillance, you do not necessarily know that anybody is there—that is the whole point. At some point, that could turn into a pursuit; I suppose it depends on the specific circumstances. But I do take his point.
Lord Beith (LD)
My Lords, could I ask the Minister if I heard him correctly? I think that, in the early part of the remarks he read out, he used the phrase “pursuit or emergency.” That appeared to me to be quite a helpful definition of what we are talking about here, and excluded things that were neither “pursuit” nor “emergency”. Could that wording not be what the clauses should be based on, and was it not helpful of him to use it in the early part of what he said?
Baroness Randerson (LD)
I will wait for a moment or two. I do not know whether the Minister wants to answer now.
Lord Sharpe of Epsom (Con)
Can I come back to the noble Lord on that in a second, please? Sorry.
Baroness Randerson (LD)
I first want to thank the Minister for his response and all other noble Lords who have taken part in this debate. In particular, the quick interchange at the end has been a helpful response to the situation. My noble friend Lord Beith has I think raised a realistic solution to the problems with this legislation that this debate has shown up for the Government.
The noble Lord, Lord Coaker, and my noble friend Lord Paddick both referred to the controversies and tragedies that occur in these situations. There are endless stories of controversy. Any changes the Government make to the legislation will simply shine a harsher light on the problems that inevitably will occur. So the Government really need to tighten up their thinking on this, and I would ask the Minister to take on board my noble friend’s advice to consider some tighter wording. The Government’s own consultation in 2018 offered two options: the use of the phrase “police purposes” or the use of “pursuit”. That shows that the Government themselves must have been considering those options at the time—so there must have been a logical reason for offering them.
I would like the Minister to take the time between now and Report, when I am pretty sure the issue will come back, to look at potential amendments that the Government believe may be helpful. I thank all noble Lords who have taken part. The Government need to be on very sure ground here, because they have drawn a broad definition. “Police purposes,” as the noble Lord, Lord Attlee, said, is a very broad term, and the circumstances in which the new rules can be applied will be questioned. With that, I will withdraw the amendment.
Lord Sharpe of Epsom (Con)
May I respond to the noble Lord, Lord Beith? I do not know if this is appropriate. I am probably breaking all the rules. I apologise if I am. I think I said, “to respond to emergencies and to pursue criminals”. This applies to all policing purposes where the staff member has had training. I will expand on whether the new test means that the police officer would be prosecuted if they departed from their training and guidance under any circumstances. The police driver training includes decision-making in line with the national decision-making model. This allows for a degree of flexibility. Police drivers should also take account of guidance found in the College of Policing authorised professional practice. The new legislation compares the police driver’s actions with what a careful and competent police driver would reasonably do. In other words, a police driver will be prosecuted for dangerous driving only if they drive in a way that would not be considered reasonable by a careful and competent police driver.
Lord Paddick
“National standards of competent and careful constable
For the purposes of sections 4 and 5 the Secretary of State shall, after consultation with such persons as they consider appropriate, publish national standards expected of designated persons.”Member’s explanatory statement
This amendment would require the Secretary of State to publish national standards of what would be expected of a competent and careful constable under sections 4 and 5, against which their driving should be judged.
Lord Paddick (LD)
My Lords, Amendment 19 is supported by my noble friend Lady Randerson and the noble Baroness, Lady Jones of Moulsecoomb. Amendment 20 is supported by the noble Lord, Lord Bellingham. I asked for these two amendments to be degrouped from the group we have just debated because that group was about the principle of police officers being given dispensation from the usual tests applied in cases of dangerous and careless driving. These amendments are about a separate issue—the consistency of the likelihood of police officers being prosecuted on not.
The changes proposed by the Government in Clauses 4 and 5 are problematic in that they define the threshold for prosecution or conviction for dangerous or careless driving, set against,
“what would be expected of a competent and careful constable who has undertaken the prescribed training.”
The Police Federation, which provided a draft of this amendment, has reminded me that, while groups of forces tend to pool their resources in police driver training, none the less, there is no national standard. What would be expected of a competent and careful constable who has undertaken the prescribed training can vary from police force to police force. A tactic, such as physical contact by a police vehicle with a stolen motorbike, or a motorbike being driven by a suspect involved in an armed robbery, causing the driver of the motorcycle to crash, might be trained for and practised in some police forces but not in others. To be clear about what I mean, the police driver knocks the criminal off the motorbike by colliding with it—a tactic used by the Metropolitan Police Service.
This could result in a police driver, who was driving in exactly the same way as another police driver in a different police force, being prosecuted and potentially convicted; while the other officer in almost identical circumstances would not face any sanction, if that police driver had been trained in that technique and it was part of the policy of that officer’s police force. Amendment 19 proposes that a national standard be established to ensure consistency in the application of the law, and certainty for police drivers.
Amendment 20, proposed by the Police Federation and based on its wealth of experience in this area, offers an alternative approach by providing a reasonable excuse defence to an allegation of dangerous or careless driving. Instead of adhering to the standard of a careful and competent driver, a police driver could avoid prosecution or conviction, provided the departure from the standard was necessary, proportionate and reasonable in all the circumstances. This would take account of the relevant driver policy and training, the split-second decisions faced in real time by the driver and the honestly held belief of the driver at the time. This is similar to the dispensation allowed to armed officers who have to make split-second decisions to use their firearms.
I am not a lawyer and I cannot elaborate on whether such a reasonable cause defence is accepted in other similar scenarios. I beg to move Amendment 19.
Earl Attlee (Con)
My Lords, we are extraordinarily lucky to have the expertise of the noble Lord, Lord Paddick. I have just one anxiety about a national standard: conditions in the Metropolitan Police area are different from those facing, say, Devon and Cornwall Police. Devon and Cornwall Police might not have to dismount someone riding a motorbike illegally very often, whereas I suspect it is something the Metropolitan Police has to do quite often. On the one hand, I can see the benefit of national police standards, but I have an anxiety that they might not meet the different needs of different types of police force.
Lord Paddick (LD)
I am grateful to the noble Earl for his intervention. I think national standards would say that the tactic of colliding with a stolen motorbike was an acceptable tactic that officers could be compared against whether or not it was actually used by particular forces, bearing in mind the circumstances faced by different forces. So, legally, officers in Devon and Cornwall could use that tactic according to the national standard, but it would be very rare for them to use it—if ever at all.
Baroness Randerson (LD)
My noble friend has raised the issue of national standards. I want to approach this issue in a slightly different way. I have added my name to the amendment because I have concerns about clarity. The existing standards are set out in the 1988 Act, and we as drivers are all familiar with them. We passed our driving tests however long ago, but on an almost daily basis we practise following those standards—fairly rigorously, I hope.
According to this legislation, we are now moving to a set of standards based on a format for training of which we, with the exception of my noble friend, have no real concept. We do not understand exactly what is involved in this training and what is expected of police drivers. Indeed, I am sure this debate has been very instructive for us all in finding out a bit more about it.
Add that issue to the fact that standards are different from one part of the country to another and we have a difficult situation for the Government in applying this new approach. Good law has to be easily understandable. Publicising the details of these standards—making sure that the public, as well as police officers, understand them—is essential for acceptance by the general public. That will be essential if cases brought under this legislation are to succeed in court.
Baroness Jones of Moulsecoomb (GP)
My Lords, I have a confession to make: I love the traffic police. I have spent many happy hours in the front of a police van with an automatic number plate recognition machine, spotting illegal drivers. The fascinating thing about criminals is that not only do they break the law on drugs, guns and so on, but they do not pay insurance on their cars either. If I were a criminal, I would make sure that my car was perfectly legal, but for some reason they do not. So the traffic police are incredibly successful at catching criminals; at one point—I do not know if this is still true—their arrest rate was far higher than that of the average police officer here in London.
In the 12 years that I sat on the police authority, I took advantage of that to go out with the traffic police. I remember one spectacular day when they had a car-crushing machine next to the A1. All the vehicles speeding down the A1 saw that machine and slowed to legal limits. We were not actually crushing cars that had been taken that day; they had brought some cars out with them from central London. So I am a big fan. The traffic OCU serves an incredible function of keeping our roads safe.
I support Amendment 19. Of course, everybody expects the police who respond to blue-light emergencies to drive fast, overtake, go through red lights and so on, and it is right that the police are given the necessary legal protections to do their job in these situations. Then there are more controversial and dangerous tactics, such as officers aggressively ramming moped drivers who refuse to stop. We cannot leave that for the courtroom to decide—it has to be a political decision. Whether a tactic meets the standard of a reasonable and careful constable is political, because you cannot leave police officers uncertain about whether their behaviour is legal. It would also leave the public unsure about what standard of driving you can expect from our public servants. Amendment 19 addresses that issue and is an extremely neat solution.
Lord Coaker (Lab)
My Lords, the amendments would improve the Bill. The legislation in some respects is too loose, and needs to be tightened. I hope that, when we move from Committee to Report in a few weeks, the Minister will have had time to reflect on the previous group but also on some of the points being made here, because that will make what we all want much more likely to happen. I hope that he will be able to reflect on the points that noble Lords have made and come forward with the Government’s own amendments to take account of those points, some of which are exceedingly logical and good and would enhance the Bill and what the Government are seeking to achieve.
The amendments raise key issues in relation to the police driving provisions. The aim of the clause is not to allow the police to drive without safeguards or scrutiny but to ensure that they are not criminalised for what they have been trained to do. Amendment 19 raises a reasonable question about national standards for competent and carefully trained drivers. As we will come on to in Amendment 20, there are various levels of training, and the number of fully trained officers will differ between forces. However, that does not alter the fact that there is a need to set out in more detail and with more clarity what a nationally recognised standard will look like. Will it be covered in the training that officers receive, and is the Minister confident that the Bill makes it clear what a national standard means? The noble Earl, Lord Attlee, posed a reasonable question, which was answered well by the noble Lord, Lord Paddick, about what that means between different police forces such as Devon and Cornwall and the Metropolitan Police, and how they do things. Those are the sort of points that the Minister needs to raise.
On Amendment 20, the idea of a reasonableness defence is an issue that officers are concerned about, which was raised consistently in the Commons. The noble Lord, Lord Paddick, did not mention that quite as much as he did the national standards, but we need to ask how this whole area of reasonableness, which is used in the courts, stands with respect to this Bill. It is difficult to craft an answer, but the issue goes back to the level of training that an officer receives, which varies from force to force. It not only varies from force to force, however: the level of training varies within the police force.
Let me give an example for clarity. If I am a member of the public on the street, I know generally what a response car looks like, and you would expect a response car driver to have had the highest level of training, as the noble Lord, Lord Paddick, said he had received in the past. It is about a proper response driver responding to emergencies or pursuing a vehicle. That is what you would expect if you were a member of the public. But not all police cars are response cars. What about a police van? I have seen police vans driving after people. What happens then?
Is this level of training—police pursuit—available only to response drivers? What about other drivers, or will they be compared to the normal standard? This takes the police into very difficult territory. I have not been a serving police officer like the noble Lord, Lord Paddick, but I can only imagine that if someone said, “Officer, a mile down the road there is a really serious incident”, and a police van driver did not put the blue lights on and go down there, and as a consequence a murder or a rape took place, people are not going to say, “That officer driving the police van was quite right; he did not respond in the way that he should because he has not had the proper level of training”. This takes us into difficult territory, and it is also about the reputation of the police.
What happens, however, if the police van driver does that, but then crashes or injures somebody else? I thought that was the point of Amendment 20 and the reasonableness defence: you would expect the police officer driving the van to do that, even though they are not trained to the level of the police response driver. From the Bill, however, it is not clear whether the police van driver—I am making that up as an example—would be able to do that and respond to an emergency situation with the same level of protection that the Bill tries to give to a response-level trained driver, whereas the public would expect them both to respond in the same way.
That is the point of the reasonableness test that Amendment 20 seeks to drive into the Bill. I hope that I have given a clear enough example of the sort of situation that might arise for a police officer, whether operating in Devon and Cornwall, the middle of London, Sheffield, Cardiff or wherever.
This is the point of the Committee: it drives that level of detail that seeks to clarify the way the legislation is drafted—as we saw with the previous grouping, where there is a real problem around the phrase “police purpose”—but also tries to ensure that the legislation delivers in both its wording and its intention.
On the drafting of the Bill, can the Minister just give us some assurance that officers with basic police driver training would be protected if they found themselves having to respond to an incident that ideally required a higher level of training? That is a fundamental question and if I were a police officer driving a vehicle that was not a response vehicle, I would want to know whether I was protected by law in the way that we seek to protect other drivers.
Earl Attlee (Con)
My Lords, I think the answer to the noble Lord’s question is that, if the police officer is driving more aggressively than he is trained to do and he has an accident, he is in trouble because he is driving outside of what he is trained to do.
Lord Coaker (Lab)
May I speak? Sorry, I do not know what the rules are. That is the point that I was making, and I am asking the Minister: what is the answer? The public’s perception of that would be, frankly, dreadful from the police point of view. There is an issue here for the Minister to resolve and to clarify for the police forces and the people driving.
Earl Attlee (Con)
I have two points: one is that we are in Committee, so we can speak as many times as we like, and the other is that the public may have to be disappointed, because the police officer may not be able to do everything that the public expect. The public could complain; there is a complaints procedure, so the police could explain why they could not respond in the way that the public would expect.
Lord Sharpe of Epsom (Con)
Thank you, my Lords—I have enjoyed this debate. I am grateful to the noble Lord, Lord Paddick, for setting out the rationale for his amendments and I thank all other noble Lords who made a contribution. I was particularly delighted to hear that the noble Baroness, Lady Jones of Moulsecoomb, is such a supporter of the traffic police, although I found her relish for car crashes a little upsetting.
Lord Paddick (LD)
My Lords, I am very grateful to all noble Lords who have contributed to this debate. To my noble friend Lady Randerson, and the noble Baroness, Lady Jones of Moulsecoomb, I say that I have just started cycling in London again and it is terrifying; we need more traffic police.
I am also grateful to the noble Lord, Lord Coaker, particularly for the way he absolutely hit the nail on the head with his example of a police van driver who is not an advanced driver who is told by a member of the public that, 100 yards down the road, somebody is being murdered, but who has not received the level of training that they will be judged against. In the debate on the previous group, the Minister said that if they have not had the training, they will be judged like an ordinary driver; he also said that the legislation provides the protection that they need. But the example from the noble Lord, Lord Coaker, shows how they will not get protection under the law as proposed and drafted by the Government in the Bill.
The Minister said that these changes have been made in consultation. Dare I suggest that they were not made in consultation with the Police Federation? They have not been made in consultation with the officers who will be directly affected by the legislation, because it was the Police Federation that asked me to propose these amendments to the Bill. Again, I am afraid I must suggest that the Minister has been rather let down by his brief in not being able to address the very real concerns that noble Lords around the House have expressed. We will clearly come back to this on Report, but at this stage, I beg leave to withdraw my amendment.
Lord Rosser
Member’s explanatory statement
This amendment would require specified authorities subject to the “serious violence duty” to safeguard children involved in serious violence.
Lord Rosser (Lab)
We now move on to Part 2 of the Bill. The amendments in this group all relate to the issue of ensuring that safeguarding and tackling the criminal exploitation of children is a central part of the duty to reduce serious violence as set out in Part 2, with its duties on specified authorities to collaborate and plan to prevent and reduce serious violence.
There are a considerable number of amendments in this group. Amendments 21, 23, 36, 37, 42 and 43 would require specified authorities subject to the serious violence duty to safeguard children involved in serious violence.
Amendment 24 would require specified authorities to safeguard children involved in serious violence as part of the serious violence duty, including identifying and safeguarding children who are victims of modern slavery and trafficking.
Amendment 25 would require specified authorities subject to the duty to prepare and implement an early help strategy to prevent violence, support child victims of violence and prevent hidden harm. Early intervention is surely crucial to prevent violence before it occurs, and that needs to be in the Bill. Preventive safeguarding activity can be focused on offering support to a child and family through targeted or universal services at the first sign of issues in their lives becoming difficult to prevent them being coerced in activity associated with serious violence.
Amendment 27 would ensure that any children’s social care authority which was not already involved in the strategy would be consulted in the preparation of the strategy.
Amendment 49 would require specified authorities to collaborate and plan to prevent and reduce child criminal exploitation and safeguard affected children.
Amendment 50 introduces a statutory definition of child criminal exploitation. Children who are groomed and exploited by criminal gangs are the victims, not the criminals.
Amendment 52, in the name of the noble Baroness, Lady Newlove, is a probing amendment. It would require the Secretary of State to prepare and publish a strategy for providing specialist training on child criminal exploitation and serious youth violence.
While we support this part of the Bill, the statutory duty to reduce violence will not work in the way we need it to unless it includes the duty to safeguard children who have been pulled into that violence or are being impacted by it. These amendments would require authorities subject to the serious violence duty to safeguard children involved in serious violence, and would specifically add safeguarding children involved in violence and identifying and safeguarding children who are victims of modern slavery and trafficking as requirements of the serious violence duty. They would make preparing and implementing an early help strategy to prevent violence, support child victims of violence and prevent hidden harm a specific requirement of authorities as part of their serious violence duties and would ensure that any children’s social care authority that, as I said, was not already involved in the strategy to reduce serious violence, would be consulted in the preparation of this strategy.
The amendments on child criminal exploitation would require specified authorities to collaborate and plan to prevent and reduce child criminal exploitation and safeguard affected children, as well as introducing the statutory definition of child criminal exploitation to which I referred. The amendment in the name of the noble Baroness, Lady Newlove, to which I have already referred and which we support, would require the Secretary of State to prepare and publish a strategy for providing specialist training on child criminal exploitation and serious youth violence. I will say more about the amendments on child criminal exploitation shortly.
The Bill places a significant and welcome new duty on specified authorities to identify the kinds of serious violence that occur; to identify the causes of serious violence in the area; and to prepare and implement a strategy for exercising their functions to prevent and reduce serious violence in an area. While obviously prison and policing are crucial in terms of justice and bringing to book those who have committed offences, prevention of crime in the first place is the real long-term solution to reducing violent crime and creating a safer and better society. Case studies have shown that, if someone is in care, is vulnerable, has experienced domestic abuse in the home, has parents with addictions or has no parents at all, these are matters that make them more vulnerable to getting involved in violence later in life. If we can intervene at the earliest possible stages, we can have a significant impact not just on the lives of those young people but on society and on the costs to society of high levels of violence.
This part of the Bill is a step in the right direction towards doing that. However, while a public health approach to tackling serious violence that seeks to address the root causes is welcome, creating a statutory public health duty will not deliver if the desired result of reducing the number of children who are harmed by serious violence is not also achieved. An approach for tackling serious violence that does not also help to protect children from harm, does not include the full range of partners and interventions needed and does not consider some of the more structural factors that contribute to violence just will not deliver the desired outcome that surely we all want.
We need a strategy that equips the safeguarding system and the statutory and voluntary services to protect children from harm with the resources and guidance to do so. These amendments make the specified authorities involved in the serious violence duty safeguard children at risk of or experiencing harm and they refer in particular to children involved in serious violence in the area as a result of being a victim of modern slavery and trafficking offences under the Modern Slavery Act 2015.
I repeat that the statutory duty to reduce violence cannot be effective on its own without a statutory duty to safeguard children, as provided for in this group of amendments. Currently, the draft guidance on the serious violence reduction duty does not mention safeguarding. Can the Minister reassure the House that this will be revisited?
Amendments 49 and 50, and the amendment in the lead name of the noble Baroness, Lady Newlove, deal specifically with the issue of child criminal exploitation and are supported by organisations including Barnardo’s and the Children’s Society. Amendment 50 would introduce a statutory definition of child criminal exploitation, putting a recognised definition in law for the first time. It provides that exploitation is where:
“Another person manipulates, deceives, coerces or controls the person to undertake activity which constitutes a criminal offence.”
At the heart of this group is the fact that children and vulnerable young people who are being pulled into violence require a bespoke response that recognises their particular risk factors. I think it is fair to say there is a growing awareness of child criminal exploitation, but it is also irrefutable that, for so many children being exploited, we are failing to identify them and provide support in time to quite literally save their lives. Not only do we need to improve that support, and action at the point of crisis, we need to look at the long-term support required by a child who is traumatised by what they have experienced.
Baroness Jones of Moulsecoomb (GP)
My Lords, I have signed most of the amendments in this group because I think they are extremely valuable. I want to congratulate the noble Lord, Lord Rosser, on his very thorough exposition of why they are needed.
As I and others have mentioned many times, there is a serious failing of the police and the Home Office to safeguard children and young people from serious violence. This is most explicit in the police’s ongoing use of child spies, where they scoop up children who have got stuck in dangerous criminal situations and put them in even more danger by working them as an intelligence asset with very few safeguards. Obviously, Amendment 50 could then apply to police officers who put children in that sort of situation.
The serious violence duty is important, but it must include a duty to safeguard children and young people who are caught up in the chaos of organised crime. Early interventions, removing children from organised crime, and well-funded youth programmes are all key to ending this cycle of violence. Writing them off as destined for a life of crime and using them as disposable police assets is inhumane and dangerous. I hope that the Minister can change tack on this so that we can change many young lives for the better.
The Lord Bishop of Durham
My Lords, the right reverend Prelate the Bishop of Manchester was in his place earlier but has had to go elsewhere for the evening. He has asked me to speak on his behalf on the amendments in this group tabled in his name alongside those of the noble Lord, Lord Rosser, and the noble Baroness, Lady Jones. I thank the Children’s Society and Barnardo’s for their support and helpful briefings.
The Church has a particular concern for vulnerable children. As far as the Church of England is concerned, there are 4,644 schools in which we educate around 1 million students. This educational commitment is combined with parish and youth worker activities that bring the Church into contact with thousands of families each year. Through the Clewer Initiative, many parishes and dioceses have worked closely on the issues of county lines and confronting the blight of modern slavery. Accordingly, we have seen at first hand and, sadly, all too frequently the terrible damage caused by serious youth violence and by the criminal exploitation of children. The latter is an especially insidious form of abuse, which one victim has described as “when someone you trusted makes you commit crime for their benefit”.
Amendment 50, as we have heard, seeks to create a definition of child criminal exploitation that would sit alongside other definitions of exploitation already in the Modern Slavery Act. The present lack of a single statutory definition means that local agencies are responding differently to this form of exploitation across the country. Research by the Children’s Society in 2019 found that only one-third of local authorities had a policy in place for responding to it. By its very nature, exploitation through county lines crosses local authority boundaries, so it is imperative that there is a national shared understanding of child criminal exploitation so that children do not fall through the gaps if they live in one area but are exploited in another. A consequence of the current lack of a shared definition and approach is that many children receive punitive criminal justice responses rather than being seen as victims of exploitation and abuse.
Youth justice data shows that in 2019-20, 1,402 children were first-time entrants to the youth justice system due to drug offences, with 2,063 being first-time entrants due to weapon offences. Both issues are often associated with criminal exploitation through the county lines drug model. Despite positive work from several police forces and the CPS, many criminal cases are still being pursued against a child even when they have been identified as a victim of criminal exploitation.
Relatedly, too many children are coming to the attention of services only when they are arrested by police for drugs-related crimes, as early warning signs are not understood or are simply missed. We too often find that not all professionals involved in children’s lives fully understand this form of exploitation and how vulnerabilities manifest in children. There are countless serious case reviews that point to safeguarding interventions not being made earlier enough in the grooming process.
A statutory definition agreed and understood by all local safeguarding partners would enable professionals to spot the signs earlier and divert vulnerable children away from harm, in much the same way as the recently adopted statutory definition of domestic abuse is now helping to improve responses on that issue. I am sure that every Member of this House shares the desire to protect vulnerable children. Adopting this definition would send a strong message to those children that their abuse is seen, heard and understood.
This also leads me briefly to address Amendments 21, 23 to 27, 42 and 43, which would amend the serious violence duty. Concern with the serious violence duty, as presented here, is about a lack of clear commitment to the safeguarding of children. No differentiation is drawn between how this duty impacts on children as opposed to adults.
Children and vulnerable young people experiencing serious violence require a different response. Being involved in violence is often an indicator that children are experiencing other problems in their lives, such as being criminally exploited. It is important to understand these underlying causes of why children may be involved in violence, and for these underlying causes in a child’s life or in the lives of children within certain areas to be addressed. We need to intervene to protect and divert children, not treating them as adult criminals. This requires a co-ordinated approach to preventative safeguarding which focuses on offering support to a child and family through targeted or universal services at the first signs of issues in their lives to prevent them being coerced into activity associated with serious violence.
Safeguarding and protecting children and vulnerable young people from harm should be the first priority of statutory agencies, and in any subsequent duty for these agencies to co-operate with one another. The duty as currently drafted does not mention “safeguarding” once, nor does it signal the need for the specific involvement of children’s social care teams in creating a strategy to prevent violence in a local area. A failure to write into the duty the need to safeguard children risks young people falling through the cracks in statutory support and receiving a punitive response from statutory services. It makes the duty all about crime reduction at the expense of safeguarding. It would also hinder the ability of the duty to be truly preventative if it did not specify the involvement of children’s services.
I hope that we shall receive some assurances from the Minister on the commitment to safeguarding, ideally on the face of the Bill, but certainly a commitment that the issue of how the duty relates to safeguarding will be more closely considered in guidance.
Baroness Stroud (Con)
My Lords, I support Amendments 50 and 52, which seek to create a statutory definition for child criminal exploitation and provide training on child criminal exploitation and serious youth violence.
The intention of these amendments is to ensure that those who first encounter victims—most often, police officers on a child’s arrest—know what they are looking for and are prepared to respond to signs of child criminal exploitation and secure the intervention and support for children who are being exploited.
This amendment could well be needed to ensure that we no longer allow our most vulnerable children to slip through the cracks and end up in a cycle of exploitation, violence and criminality. I was particularly struck by a story published by the Children’s Society in which a child was repeatedly exploited to transport drugs and weapons, and his mother threatened by older youths when he failed to provide money to those coercing him into criminal activity. He was known to his youth offending team, but the extent of the ways in which he had been exploited did not become manifest until his tragic murder in January 2019. His story is just one of thousands.
The Children’s Commissioner has estimated that at least 27,000 children in the UK are currently at serious risk of gang exploitation. The national referral mechanism has begun to recognise the weight of this criminal exploitation as a form of modern slavery, and 2,749 of the 4,964 child victims that it encountered in 2020 had been subject to child criminal exploitation. However, only a minority of exploited victims ever reach the national referral mechanism. These amendments are designed to probe whether we need a clear definition and understanding of criminal exploitation, and training which equips local authorities to intervene and protect children from it.
It is important that we recognise that when a child is being exploited, first and foremost, as we have heard this evening, they are a victim. According to an FOI request by Barnardo’s, only one of 47 local policing departments responded with existing awareness and a strategy for combating child criminal exploitation, leaving 29 which had no approach and 17 which were unresponsive.
Without awareness of child criminal exploitation and a policy in place for its detection and eradication, children are arrested as criminals and enter the criminal justice system with no assistance against the coercion that they face. This often results in their continued exploitation on release and a perpetuated cycle of coerced reoffending.
Baroness Hamwee (LD)
My Lords, I agree very much with the concerns that have been expressed this evening, and I would because I have an interest which I should declare as a trustee of Safer London whose work is directed to deterring young people from becoming involved in crime. Giving young people the tools they need to resist being pulled into crime is a very wide agenda. As is obvious from the name, the work is confined to London, but it is needed all over.
As well as that, I remember the debates during the passage of the Modern Slavery Bill on what is meant by “exploitation”. I take the point about people—it is not just children—who may be perceived as criminals but who are actually victims, so I understand the calls for much better understanding of child criminal exploitation. I hope that what I am about to say is understood to be support for, not opposition to, the thrust of what is being proposed.
Amendment 52, tabled by the noble Baroness, Lady Newlove, on training is absolutely to the point. If all agencies and authorities were trained to recognise what they are seeing but not recognising, in a way that would answer all the other points that have been made. If the prevention and reduction of crime, which is what these clauses are about, means anything, surely it must include safeguarding. That is prevention. Safeguarding is not defined, which does not surprise me because it is comprised of an awful lot of component parts and is different in different circumstances. I would be interested to know whether the Minister call tell us what is already on the statute book in this area. Are we talking about bringing together provisions that should be brought together that are scattered, as can be the case, or are we talking about something new in statutory terms?
I do not think that we can leave the issue without referring to resources. If there were the resources to extend the excellent work being done by various organisations far more widely, both in the voluntary sector and to statutory authorities, I do not think we would be talking about all this. But I am quite convinced that it comes back to training to recognise what should really be in front of people’s eyes. I know it is easy for us, standing up in the Chamber, to say that, and I would not like to do the job that some police officers, teachers, health workers and so on do. But the training should support the achievement of everything that noble Lords are seeking this evening.
Lord Paddick (LD)
My Lords, there are a number of general points I need to make about the new legal duties to support a multiagency approach to preventing and tackling serious violence. I will try to make them in the appropriate group of amendments, but I hope the Committee will accept that there is a great deal of overlap.
The overwhelming response of the non-governmental organisations I have met with which have concerns about this part of the Bill is that, as drafted, it is actually about forcing agencies to support a police-led enforcement approach to serious violence—not a public health approach, or even a multiagency approach, to preventing and tackling serious violence. The Government’s own consultation on this issue gave three options: a new legal duty on specific organisations to effectively share information with the police; a new legal duty to revise community safety partnerships, the existing and well-established mechanism where local authorities and police forces work together to prevent and tackle crime, and where the local police chief and local authority chief executive are equal partners in doing whatever each partner and others can do to reduce crime and disorder; and a voluntary non-legislative approach. There was more support for a legislative approach than a voluntary one, but more respondents favoured enhancing community safety partnerships—40%—compared with a new legal duty to provide information to the police—37%—and, tellingly, the police supported equally options one and two.
Even the police, the sector most likely to benefit from a police-led enforcement approach, were ambivalent as to whether it should be a truly multiagency approach by enhancing community safety partnerships or a police-led enforcement approach. So why did the Government opt for the latter and not the former? A police-led enforcement approach was the Government’s preferred option from the beginning. These amendments, which we support, are the first manifestation of challenging that police-led enforcement approach, in that the legal duty does not sufficiently recognise that many young people, particularly those involved in county lines, are victims of criminal exploitation rather than free-acting criminals. Henry Blake is a former youth worker who draws on his personal experiences of working with at-risk young people in his powerful film, “County Lines”—a drama about one young man who is drawn into county lines drug dealing. I would highly recommend this film to any noble Lord who is unaware of the realities of county lines.
Many young people lacking family support and living in poverty find themselves groomed by adults who appear to show them the love and concern they desperately seek, and who treat them to meals in burger restaurants and buy them new trainers—something their often lone parent cannot afford. They promise them money, not just so they can afford the latest designer clothing that they need if they are not to be bullied by gangs, who see those who do not wear designer labels—even Nike and Adidas—as targets. It is not just so they can go to McDonald’s whenever they want, but so that they can help their mum put food on the table and make sure their younger sister has decent clothes to wear. I hope noble Lords can see how easily vulnerable young people are drawn into criminality, not just for pecuniary advantage but for the sense of belonging and the sense that someone is at last paying them some attention. For many, it is as much an emotional need as a financial one.
Of course, the reality is very different. The adults exploiting these young people take the vast majority of the profits of the drug dealing in which they are involving these young people whom they have groomed, and the youngsters take all the risks, often ending in violence from rival drug dealers. These young people are victims of criminal exploitation, and each one of us is to blame—not them. It is our fault that their single mothers have to do three minimum wage jobs to pay the rent and put food on the table and so, through no fault of their own, can rarely be there for their kids as most wish they could be. It is our fault that too many people do not have a decent place to live, because they cannot afford private rents for an appropriately sized home in a good state of repair, and that there is a shocking shortage of social housing and much of what exists is in an appalling state of repair. It is our fault that, as the cost of living spirals upwards, we take away £20 a week in universal credit from those most in need. The Government’s response is to force other agencies to divulge information that makes it easier for them to prosecute these victims of criminal exploitation.
That is why the Bill needs to radically change from a police-led enforcement approach to preventing and tackling serious violence to a truly public health and multiagency approach, starting with—although this is only the beginning of the changes needed—putting the safeguarding of children involved in serious violence in the Bill. That must include, as the noble Lord, Lord Rosser, suggests in his Amendment 50, and as both Barnardo’s and the Children’s Society have suggested, including a statutory definition of child criminal exploitation in the meaning of exploitation in Section 3 of the Modern Slavery Act 2015 and, as the noble Baroness, Lady Newlove, suggests in her Amendment 52, training for police officers in particular, to ensure that they are aware of child criminal exploitation and actively seeking evidence of such exploitation.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, I am most grateful to the noble Lord, Lord Rosser, for setting out the case for these amendments. I wholeheartedly agree that nothing is more important than safeguarding children at risk of harm. That is why we introduced reforms to safeguarding in 2017, which led to the establishment of multiagency safeguarding arrangements in 2019. The statutory safeguarding partners responsible for safeguarding—that is, local authorities, clinical commissioning groups and chief officers of police—are also named as specified authorities under the serious violence duty, so I would argue that it is truly a multiagency approach. This demonstrates the importance of safeguarding in protecting children and young people from involvement in serious violence. We expect that existing work to safeguard vulnerable children will link very closely with local efforts to prevent and reduce serious violence. Therefore, we do not believe that it is necessary to include a separate safeguarding requirement in this part of the Bill, and it would not be possible to do so without duplicating existing safeguarding legislation.
On Amendment 25, which would require specified authorities to prepare and implement an early help strategy, the noble Lord is absolutely right to highlight the importance of prevention and early intervention and this, of course, is the key aim of the serious violence duty. We recognise that early intervention and prevention are essential to reducing serious violence. The duty requires partners to work collaboratively to develop a strategy to reduce serious violence in their local area. We expect partners to work with upstream organisations, such as education providers and children’s social care, when developing this strategy to ensure that it covers actions that relate to early help and considers risks that occur before a young person becomes involved in serious violence. This ensures that any strategy will include early help for this cohort. We believe that it would be less effective to separate this out into an additional strategy.
Lord Rosser (Lab)
I thank all noble Lords who have spoken in this debate, and the Minister for the Government’s response. I will, of course, be withdrawing the amendment at this stage and I certainly do not want, at this late hour, to detain the Committee for very long.
I think we are back to the usual issue. As I understand it, the Government do not seem to disagree with the points made in this debate or the concerns expressed. It is just that they do not think that adding things to the Bill, in the way provided for in this group of amendments, will contribute to making the situation better. That, I suppose, is where we have, at the moment, a fairly fundamental disagreement. I will read the Minister’s response on behalf on the Government very carefully in Hansard and reflect on what they have had to say. My feeling at present, which may turn out to be unfair, is that the existing arrangements for safeguarding children and preventing their exploitation by criminal gangs are, frankly, not working as effectively as we want. As I say, I may be being very unfair in saying this, so I will read very carefully what the Minister had to say in Hansard, but the impression I am left with is that the Government believe that the present arrangements are working effectively and no significant change is needed.
Once again, if that is a fair reflection of what the Minister has been saying, there is obviously a fundamental disagreement between us—between everybody who has spoken on this issue, apart from the Minister, and the Government. After all, organisations dealing with the exploitation and safeguarding of children clearly do not hold the view that the present practices and procedures are effective.
I do not want to spend my time reiterating the points I made—that is not the purpose of summing up or responding at the end of the debate—but I do think there are significant differences of view between those of us on this side of the Committee and the Government over the effectiveness of the present arrangements. The Government appear to think that no change is needed, but I simply come back to the point that a statutory duty to reduce violence cannot be effective on its own—and that is what is provided for in the Bill—without a statutory duty to safeguard children also being placed in the Bill. We will need to reflect further on what we do on Report but, in the meantime, I beg leave to withdraw the amendment.
Police, Crime, Sentencing and Courts Bill
Monday 25th October 2021
(2 years, 6 months ago)
Lords ChamberRead Full debate Police, Crime, Sentencing and Courts Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 40-III Third marshalled list for Committee - (25 Oct 2021)
Baroness Brinton
“(1A) In exercising the duty under subsection (1), no information may be shared by a specified authority, or an individual within a specified organisation, which breaches doctor/patient confidentiality as set out in the General Medical Council Ethical Guidance on confidentiality.”
Baroness Brinton (LD) [V]
My Lords, I beg to move Amendment 22 and will speak to Amendments 48, 54, 61, 64, 68 and 71, which all cover doctor-patient confidentiality in Clauses 7 to 17 in Part 2, Chapter 1 of the Bill.
I particularly thank the General Medical Council, the British Medical Association, the British Psychological Society and the British Association for Counselling and Psychotherapy for their briefings. I also thank the noble Lords, Lord Patel and Lord Ribeiro, who have added their names to these amendments. Their knowledge of and expertise in the regulatory and practical reality of doctor-patient confidentiality is especially welcome. Bluntly, the requirement for a specified authority to hand over data to police and other bodies, as set out in the Bill, is in conflict with the requirement of doctors and those working with patient data to maintain doctor-patient confidentiality.
It is particularly disappointing that the issues I will raise, which I also raised at Second Reading, were covered in the GMC response to the government consultation on a public health response to serious violence in 2019. Unfortunately, not one of the serious issues the GMC raised has been dealt with since then, which makes me wonder if this is deliberate. I hope the Minister will be able to demonstrate that that is not the case.
Our amendments seek to protect a patient’s data as confidential to them and the healthcare professionals who look after them. Amendment 22 adds to Clause 7 to make it clear that, regardless of any other data from other public bodies, patient medical data is protected by rules of confidentiality. Amendment 48 adds the same provisions to Clause 8, Amendments 61 and 64 add these to Clause 15 and Amendment 68 adds them to Clause 16. Amendment 54 deletes CCGs and health boards in Wales from the list of specified authorities, thus removing entirely the duty on them to be part of the regulations in this Bill. Finally, Amendment 71 reiterates these exclusions from the powers that Clause 17 gives the Secretary of State on the direction of CCGs and health boards in Wales.
It is quite extraordinary that this Bill proposes that any Home Secretary can, at will, demand that doctors and other healthcare professionals must breach patient confidentiality, over and above their responsibilities of confidentiality to their patients and their commitments to their regulatory body. Part 2, Chapter 1 of the Bill, on functions relating to serious violence, would introduce a new legal duty for the relevant agencies
“to collaborate, where possible through existing partnership structures, to prevent and reduce serious violence”.
If enacted in its current form, the Bill, particularly Clause 16(5), may mean that health services are no longer confidential. I hope this is unintended.
The Bill explicitly sets aside the common law duty of confidentiality owed to all patients by all regulated health professionals. This will undoubtedly raise questions and concerns in the minds of doctors, who understand their responsibilities around patient confidentiality as a fundamental, ethical duty which is crucial to upholding the trust that lies at the heart of doctor-patient relationships.
Elsewhere, in countries where healthcare services are not seen as confidential, and where there is a resulting lack of trust in healthcare professionals appropriately protecting as well as sharing information, there are real consequences for the health of individuals, communities and wider society. The public health implications of individuals and communities not interacting with healthcare services and professionals are particularly urgent and concerning in the context of the ongoing global Covid-19 pandemic. Unfortunately, as drafted the Bill carries these risks.
This is not just a concern for doctors. If you stopped anyone in the street and asked them if the personal medical information they discuss with their doctor at their GP surgery or at a hospital could be passed on to any other public body, including the police, they would be astonished. The one thing they know, they say, is that doctors—which is shorthand for healthcare service professionals and their staff—absolutely have to keep their personal medical data confidential. The problem is that it is not clear in the Bill whether sensitive health information is properly protected from inappropriate disclosure to policing bodies. This is worrying on two levels. First, the data is still subject to the requirements of data protection law. Also, any decision to disclose personal medical data must take account of the common law duty of confidentiality owed to patients by their health professionals, however that information is held.
Healthcare professionals, including doctors, also have to respond to the ethical standards set by their regulatory body. As drafted, policing authorities can request patient information, including identifiable information, which clinical commissioning groups and health boards in Wales must provide to them. Whatever the merits of this requirement, CCGs and Welsh health boards can share identifiable patient information only if that information has, in turn, been actively shared with them by the health professional who holds that patient data.
Professional standards, as regulated by the General Medical Council and the Nursing and Midwifery Council, among others, mean that doctors and other healthcare professionals are able to release confidential patient information, in this case to a CCG or health board, where one of the following conditions is met: the patient gives their consent; the doctor judges that it is in the best interests of the patient to do so; the law requires them to disclose, which would not be the case here; or they judge that the common-law test for disclosure without consent would be met. The GMC guidance to doctors, Confidentiality: Good Practice in Handling Patient Information, is very helpful in setting out where these boundaries lie, but makes it clear that it must be the decision of the individual doctor because, rightly, the natural assumption must be that personal patient data must be kept confidential.
The Minister may argue that the organisational duty to share information with a police authority or individual police officer would not impose a duty on an individual health professional to make a disclosure to the CCG or to health boards in Wales. That is a fallacy. I have a word of warning for the Government: imposing the duty on CCGs and health boards will not make it easier for identifiable patient information to be readily obtained by a policing body. That is because all staff in CCGs, health boards and GP surgeries, as part of their admin, and hospital staff who are not regulated but are part of a healthcare team are also subject to confidentiality duties as part of their employment contracts. They access patient records as part of their role and, in so doing, they will have to comply with the Data Protection Act and those contractual obligations about ethical confidentiality. This means that even if the common-law duty to protect confidentiality is not part of their contract, because they are not regulated, the relevant staff member, at whatever level in the organisation, would still have a duty to comply with the request from a policing body. If the Bill were to pass unamended and, say, CCGs and health boards decided to abide by the law under the Bill, could they put pressure on staff to release those records that they have accessed by virtue of their role that breaches GDPR?
I have some questions for the Minister, to better understand how the Bill will not destroy the confidentiality of patient data. Will its provisions mean that authorities such as CCGs and health boards in Wales—and integrated care boards, following the passage of the Health and Care Bill next year—will no longer owe a common-law duty of confidentiality to their patients, clients and service users? Will this mean that health services are no longer confidential services? If a duty to provide identifiable information to policing bodies is introduced, what provisions will be made for possible recourse for a patient or service user who finds out that their confidential information was shared with the police and considers that they suffered some unfair or unjustifiable detriment as a result? Will this be dependent on them being able to make a claim that GDPR obligations had not been met by the data controller? Most importantly, what independent safeguards, such as court orders or use of the court, are available to stop or limit the sharing or use of personal information?
Will the Government remove provisions that state that disclosures of information to the police would not breach that duty of confidentiality owed by doctors and others to patients, clients and service users? Will the Government instead work with the professional regulation, with the profession, with patient groups and others to create statutory guidance to support any new duty to collaborate? If the Government seek to retain provisions which require specified persons to share information, would anonymised information be sufficient? Will the Government commit to amending the Bill to provide that policing bodies can only request anonymous information?
I appreciate that the Minister might not have all the information in front of her to answer these questions, so will she write to me with the answers and have a meeting with me and the noble Lords, Lord Patel and Lord Ribeiro, who have added their names to these amendments? I know that the noble Lord, Lord Ribeiro, apologises for not being able to be in his place this afternoon. I beg to move.
Lord Patel (CB)
My Lords, I support the amendments in this group in the name of the noble Baroness, Lady Brinton, to which I have added my name. The provisions in the Bill relating to serious violence introduce a new legal duty of disclosure that seriously threatens the doctor-patient relationship, especially in relation to patient confidentiality.
The Bill explicitly sets aside the common-law duty of confidentiality that I as a doctor owe to my patients. Doctors regard patient confidentiality as a fundamental ethical duty, upholding the trust that lies at the heart of the doctor-patient relationship. The Bill’s proposals that relate to disclosure of patient information threaten the common-law provision of confidentiality, the requirements of data protection laws and doctors’ ethical standards.
The General Medical Council, in guidance on professional standards, makes it clear to all doctors when and in what circumstances a doctor can release confidential patient information without a patient’s consent. This, in my view, covers the requirement for disclosure in situations of serious violence. The police having the ability to gain identifiable—I stress “identifiable”—patient information from health bodies without setting out clear reasons, which should be limited by statute, is fundamentally wrong. The Bill does not provide clear statutory arrangements that have the confidence of the medical profession, as highlighted by its regulator—the GMC—the BMA and some other health professionals, and, importantly, the data protection guardians. These bodies have raised serious concerns.
The noble Baroness, Lady Brinton, spoke eloquently and in detail on all the issues in moving her amendment, so I do not need to enlarge on that, but I support her comments. The Minister needs to set out more clearly the Government’s intention, scope and implementation of the powers in the Bill relating to access to patient data. The noble Baroness, Lady Brinton, asked some key questions that also cover some of my concerns. The issues are important. Might the Minister agree to meet the GMC, the BMA and representatives of other health professionals? I look forward to her response.
Lord Carlile of Berriew (CB)
My Lords, I apologise for not having taken part in the Second Reading debate, when I was unavoidably abroad for professional reasons, or in the first Committee day, when unfortunately I was recovering from coronavirus—an experience I would not recommend to any of your Lordships given my experience of it. I rise to speak having very much enjoyed the speech by my noble friend Lord Patel, because I thought he introduced an element of balance that had not quite reached the debate in the earlier moments, eloquent as the introduction from the noble Baroness, Lady Brinton, was.
I will cite two pieces of my own experience as evidence. I spent 10 years as a lay member of the General Medical Council and, during those 10 years, sat successively on the health committee and the conduct committee. The health committee is a form of conduct committee, but with an obvious emphasis, as its name indicates. We spent a great deal of our time discussing whether doctors can be fully relied upon at all times, and in particular at critical moments, to understand the limits of the duty of confidentiality. Because it is not an absolute duty; there is a balance between the private rights of the patient and the general duty of the doctor not to disclose information, and the public duty of the doctor to disclose information if there is, for example, serious danger of violence to the public. I fear that more work will be needed on the amendments being proposed at the moment if that balance is to be sustained.
My second piece of evidence relates to an inquiry I conducted in 2012 for the then Secretary of State for Education, which related to something called the Edlington case. The brief story was that two small and neglected boys, who were fractionally over the age of criminal responsibility, nearly killed another child in a wood. Fortunately, that child and their companion survived—one of them only just. In my inquiry, I looked at the sharing of information by a host of organisations—schools, general practitioners, social workers and so on. It was a clear conclusion of my report that, if key information had been shared, the child who nearly died would not have been assaulted, the two very unfortunate little brothers who committed the assault would not have spent the succeeding years of their lives in a custodial institution and the schools would have been able to create a situation in which the dreadful problems for everybody concerned did not arise. One of the key issues in that case was that the general practitioners did not fully understand the balance between their duty to the public and the rights of their patient—and near-disaster ensued.
To noble Lords moving these amendments and to the Minister, who I know listens to these debates extremely carefully, I say that this is not the time for people to take up closed positions on these matters. There is a lot of work to be done. I think my noble friend Lord Patel probably agrees with this, but I speak with great trepidation, because right in front of me are two of the most distinguished doctors in the whole country. We must ensure that, where it is necessary as a public duty, they and others need to be consulted to ensure that the balance is right and is therefore not the subject of the controversy we have been hearing about already this afternoon.
Baroness Chakrabarti (Lab)
My Lords, I do not disagree with the noble Lord, Lord Carlile, but I none the less think that the noble Baroness, Lady Brinton, and her colleagues are on to something. There is no question but that the noble Lord, Lord Carlile, is right that, under common law, doctor-patient confidentiality is not and has never been absolute. The question is when it is trumped by other considerations, and who decides.
It is always dangerous to suspect what the Minister will say in her eventual reply, but I suspect that she will say reassuring things, and her colleagues will have given her reassuring things to say, about the intention. I am sure that the intention is not for the wholesale trumping of doctor-patient confidentiality. There is no public interest in that and the Government would not want people to take that as the case, because it would be completely counterproductive not just to the effective functioning of public health but to law and order. To give an obvious example, if everyone involved in knife crime feels that there will be no confidentiality whatever in the emergency room or elsewhere, one runs the danger of people not going to get the vital help and emergency care that they need. I know that the Minister will understand that.
Going back to the detail—as this is Committee—when should there be a trumping and who decides? That is a worthwhile, detailed conversation to be explored between organisations such as the General Medical Council and the Minister and her team. Because, while it may not be the Government’s intention to trump common-law principles of ethics and confidentiality en masse, we have to remember of course that statute displaces the common law. If the statute is unclear and people think or perceive that the common law has been trumped and that the decision has been taken completely out of the hands of an individual practitioner on the advice of ethical bodies or ultimately taken out of the hands of a judge and that the principles of confidentially have been totally trumped, we have a problem—and that means the Government have a problem as well.
So I hope that, when the Minister eventually replies to this debate, she will not reject these concerns out of hand and will take on board the possibility of a bit more detailed discussion about when the duties to collaborate and so on should trump confidentiality, when not and, crucially, who is to decide. For my part, I would favour practitioners, properly advised, perhaps by more and further guidance from their professional bodies, and, if necessary in individual cases, by the order of a judge, possibly sought on an ex parte basis, as opposed to anything too wholesale or administrative. That is just my suggestion. I am sure that the Minister and her team will be able to come back with something that meets the concerns of the noble Baroness, Lady Brinton, and her colleagues before the next scrutiny stage of the Bill.
Baroness Fox of Buckley (Non-Afl)
My Lords, I am very minded to support this series of amendments. As the noble Baroness, Lady Brinton, and the noble Lord, Lord Patel, explained, doctor-patient confidentiality is far more than a common-law obligation. It is an ethical duty in a relationship of trust. Will the Minister consider whether the public understand what this aspect of the Bill compromises of that confidentiality?
Our doctors know a lot about us: the most intimate physical details, sometimes our psychological weaknesses, sometimes our darkest fears about life and death matters. While it has been a long time since we offered uncritical deference to our doctors, as patients and at our most vulnerable we are not equal partners and we need to trust that relationship, despite the power imbalance. So it is understandable that the General Medical Council and the British Medical Association are rightly worried that the Bill will smash the principle of confidentiality to bits.
The issue of confidentiality and trust will appear later in Committee in some other amendments that I shall speak to later, but my main question here is: why is this part of the Bill necessary? I genuinely do not understand. People involved in medical practice understand that, while confidentiality is an important legal and ethical duty, it is not an absolute. As the noble Lord, Lord Carlile, explained, it may be that some doctors get the balance wrong, but doctors are already expected to share confidential information if it is in the public interest, and that includes serious crime. However, this is presently understood as the exception, not the rule. At the moment, doctors need to consider the specific circumstances of what to share to satisfy the intended purpose and when to share it, and they have to weigh up the benefits and harms of disclosure.
Doctors are asked and trusted to exercise their professional judgment and to strike a balance between individual and community rights. I, for one, want to continue to trust medical personnel to make such judgments in good faith. Is the Minister saying that the Government do not trust them on this? It feels like an attack on professional discretion that will undermine doctors in the eyes of the public. At the moment, with the medical profession being under so much pressure and scrutiny—anger over no face-to-face GP appointments, tragic backlogs in hospital treatments—there is already tension between the public and the medical profession. If it comes out that when you go to the doctor, the sacred bond of confidentiality could in fact be expected to be broken, that will be very damaging for no good purpose.
Baroness Jones of Moulsecoomb (GP)
My Lords, I have made no secret of the fact that I think that this is an appalling Bill. When I started looking at the amendments, I had to struggle not to sign up to all of them, because they all made sense, but I had to let my noble friend Lady Bennett of Manor Castle sign some, and she signed Amendment 48. She apologises for not being in her place today.
The noble Baroness, Lady Brinton, and the noble Lord, Lord Patel, laid out why all the amendments in this group are so important. Bringing together all the local authorities and other bodies to reduce serious violence is an excellent initiative, but it cannot come at the expense of breaching key safeguards for sensitive personal information, especially medical information. The amendments are about striking the right balance so that authorities can work together without being under a duty to breach doctor-patient confidentiality. Without this, we risk ever greater government intrusion into our personal and private lives in the vague name of keeping us safe—something this Tory Government seem to be very keen to do by quite repressive measures. By supporting the amendments, we can ensure that the Government do not overstep the mark.
Lord Hope of Craighead (CB)
My Lords, I support the principle behind the amendments but will make two short points to elaborate on what has already been said. First, I support what the noble Lord, Lord Carlile, said about balance. This has been referred to as a common-law duty, but the common law does not strike hard edges in such matters; it leaves room for balance to take account of particular circumstances.
At one stage in my career, when I was a senior judge in Scotland, I needed to know the state of health of one of my judges, who I knew was terminally ill with cancer. I was able to persuade his doctor, his skilled adviser, to let me know the truth when the judge himself was not prepared to do that. I felt that was the right thing to do; he thought it was the right thing to do; and it was an illustration of balance. The information remained entirely confidential between ourselves, but I had to take a decision as to the extent to which I could trust that judge to continue to sit in open court. The advice I received was very welcome: I was able to allow him to sit in certain conditions, in the light of the information I was given. I give that as an illustration of the way in which balance can operate in practical situations.
The other point to which I want to draw attention is the difference between Amendments 22 and 48. On the one hand, Amendment 22 states simply that
“no information may be shared … which breaches”
the duty set out in the General Medical Council ethical guidance on confidentiality. That is a simple formula that merely requires looking at the way the guidance is expressed; no doubt, with the balances that are built into the guidance. On the other hand, Amendment 48 says that regulations
“must not require the release of personal health information if a doctor regards that release as a breach”
of the duty of confidentiality.
I rather wonder whether that would be the right way to go: to leave it up to the decision of a doctor without further consideration. With great respect to the medical profession, that may be taking a little bit of a risk, because there are situations where a doctor may feel under pressure and that would not be the right thing to do. I think the amendment would be strengthened by taking out the reference to the doctor and just laying it down as a matter of proper structure that the regulations should not require the duty of confidentiality, as set out in the guidance, to be breached, leaving individual doctors’ decisions out of it.
Lord Kakkar (CB)
My Lords, I support the principles of the amendments and declare my interest as a registered medical practitioner.
The debate in Committee has been most interesting in this regard, because it raises a delicate and deeply sensitive issue for any practising clinician—any practising healthcare professional—with the suggestion that something that is considered absolutely sacrosanct, the duty of confidentiality, may be in some way undermined.
That is, of course, not to neglect or fail to understand the fact that there are clear circumstances provided in the context of well-recognised and frequently applied professional guidance in which confidentiality may indeed be breached. But there is a suggestion that the way the Bill is drafted, there may be a deeply undermining impact on a very important principle, one that is so well recognised that it is protected in both data protection legislation and, as we have heard, common law. I wonder whether the Minister can explain why it is so important to achieve what are important objectives in the Bill that we need to undermine the common-law effect of such an important principle—confidentiality of medical information—and why they need to be promoted in the way proposed in the Bill. Have Her Majesty’s Government considered other ways to achieve their important objectives without creating this deep anxiety and uncertainty, because the full implications are clearly not well understood by the regulator or by professionals more generally, and which, we must therefore all feel, has the potential to be attended by consequences that could be deeply unhelpful to the nature and solidity of the doctor-patient relationship?
Baroness Hamwee (LD)
My Lords, I am well aware that we have some of the most senior lawyers in the country in the Committee today, and very senior doctors who have grappled with these issues, so perhaps I should put my point as a question. If the legislation provides for something that a doctor “regards”, is not the concept of reasonableness implied in that proposition, so the doctor must be reasonable in what he regards?
Lord Patel (CB)
My Lords, I am sorry to intervene again, but it may help the debate if I address some of the issues raised. I should have mentioned in my speech—but I deliberately did not—my personal experiences when I was approached on four occasions by the police to give some information about patients. I refused, because I followed the guidance of the General Medical Council, and at no time did that threaten or harm the health of the patient nor anyone else—relatives or any members of the public. On one occasion, I voluntarily informed the police about a patient who had approached me for completely different reasons, but I had noticed that harm was being done to her and, on subsequent occasions, it became quite clear that it was becoming a serious issue. Therefore, I disclosed information to the police; again, following the GMC guidelines.
The common law may have soft edges, but if a doctor follows the common law and the guidance the GMC issues, it works. On what happens when a doctor refuses to give information, despite the fact that the patient is being harmed or that the patient may cause harm to other people, then the doctor will be wrong in his or her duty, and therefore can be overridden. That is the only point I would make.
Lord Carlile of Berriew (CB)
My Lords, I hesitate to be disorderly, but I was asked a direct question by the noble Baroness opposite. I think in fact it has been pretty fully answered by my noble friend Lord Patel, but the noble Baroness phrased her question in the language of judicial review, and I would just point out to her that in the real world the possibility of the judicial review of a single medical practitioner in these circumstances is not realistic in the slightest, so it would not happen. If I may say so, it is a good question but the wrong good question.
Lord Paddick (LD)
My Lords, I thought there was no such thing as disorderly interventions in Committee. Everyone is free to speak as many times as they wish at any point in the debate, so I am very pleased that the noble Lord used that opportunity.
In this group we return to the issue, which I raised last Wednesday, of what the new legal duty is really about—a police-led enforcement approach to preventing and tackling serious violence rather than a public health approach. Many and various specified authorities come under this new legal duty, and there are various reasons why these authorities should not be forced to divulge personal information to the police, of which the pre-eminent, and perhaps most readily understood example, is patient confidentiality.
In addition to the excellent points made by my noble friend Lady Brinton and the noble Lords, Lord Patel and Lord Kakkar, I should also mention the joint briefing that noble Lords will have received from mental health professionals represented by the British Psychological Society, the representative body for psychology and psychologists, and the British Association for Counselling and Psychotherapy. They believe that the Bill as drafted allows the police to override the duty of medical confidentiality, eroding trust and confidence in clinical psychologists, counsellors and psychotherapists with the associated threat to public health, as we have heard from the noble Lord, Lord Patel, who also believes that it will undermine the relationship between him as a doctor and his patients.
Like medical doctors, these health professionals are able to share confidential information on public-interest grounds already, on a case-by-case basis, if that is necessary for the prevention, detection or prosecution of serious crime or where there is an imminent risk of serious harm to an individual. There is already a system in place, as the noble Baroness, Lady Fox of Buckley, has said. As the noble Lord, Lord Kakkar, has said, we support what the amendments seek to achieve, which is to prevent the Bill undermining patient confidentiality.
Whether we are talking about doctors in general practice or psychiatrists, psychologists or counsellors, there are already well-established, well-understood policies and procedures, practices and protocols to deal with the balance between patient confidentiality and the police being able to access confidential information in the exceptional circumstances where it is necessary for public safety. Perhaps the duty of confidentiality for those in other fields is less well established and accepted, and we will come to those in another group, but, at least when it comes to patients’ and clients’ health and well-being, surely there can be little argument that the existing provisions are adequate, work well and should not be overridden.
Having said that, I listened carefully to the noble Lord, Lord Carlile of Berriew, who pointed out that there is a balance to be achieved and that in the past medical practitioners have got that balance wrong where they perhaps should have passed information to the police. Surely, however, that is an argument for enhancing or reviewing the current system rather than arguably going much too far in the other direction and making it a legal duty that doctors breach medical confidentiality.
We on these Benches say that what the Bill tries to do in terms of compelling health professionals, in this case, to divulge information to the police goes too far. What needs to be done is simply going back and looking at any examples that the Government can give, as the noble Lord, Lord Carlile, has done, where current practice does not work effectively.
Lord Rosser (Lab)
I thank the noble Baroness, Lady Brinton, for raising the issue of medical confidentiality. She said the amendments provide that in exercising the serious violence duty, an authority or individual could not share or be required to share any information that would breach doctor-patient confidentiality as set out in the General Medical Council ethical guidance on confidentiality. One of the amendments would also remove clinical commissioning groups and local health boards from the list of authorities that are subject to the serious violence duty under Part 2 on the prevention, investigation and prosecution of crime.
As has been said, Clause 9 gives the Secretary of State the power to authorise by regulations the disclosure of information by or to a prescribed person, a specified authority or local policing body, an education authority, a prison authority and a youth custody authority. While the Bill states in Clause 9 that such regulations
“must provide that they do not authorise a disclosure of information that … would contravene the data protection legislation”,
that does not relate to a breach of any obligation of confidence owed by the person making the disclosure in respect of which the requirement is only that the regulations “may” provide that such a disclosure does not result in a breach.
Clause 15 on the disclosure of information provides for the disclosure of information but states:
“A disclosure of information authorised by this section does not breach … any obligation of confidence owed by the person making the disclosure”.
Yet, as has been said on more than one occasion today, it is the common-law duty of confidentiality that helps to uphold the trust of patients in health services, which can be extremely hard to gain and extremely easy to lose.
Clause 16, on the supply of information to local policing bodies, states:
“A local policing body may … request any person listed … to supply it with such information as may be specified in the request”,
but
“a person who is requested to supply information … must comply with the request”
and:
“A disclosure of information … does not breach … any obligation of confidence owed by the person making the disclosure”.
That sounds more like a demand than a request. The only caveat is that compliance with the request for information does not require a disclosure of information that would contravene the data protection legislation, although even then
“in determining whether a disclosure would do so, the duty imposed by that subsection is to be taken into account”.
The subsection in question is the one that the person so requested to supply information must comply with the request.
Could the Minister give a couple of examples of what that means in practical terms? What do the words
“in determining whether a disclosure would do so, the duty imposed by that subsection is to be taken into account”
actually mean in hard, practical terms?
Maybe I am wrong, but Clause 16 appears to legally require clinical commissioning groups and local health boards to provide confidential health information to the police, and Clauses 9 and 15 would grant CCGs and LHPs permission to share confidential health information with a wider list of recipients such as councils and educational authorities, as well as the police. Perhaps the Minister will put our minds at rest on this, but on the face of it this appears to introduce a mandatory blanket obligation for clinical commissioning groups and local health boards to share confidential health information with the police, replacing, as has been said, the existing system, which allows healthcare professionals to disclose confidential information on public interest grounds on a case-by-case basis if it is necessary for the prevention, detection or prosecution of serious crime or where there is an imminent risk of serious harm to an individual.
I hope the Minister, speaking on behalf of the Government, can address in her response the concerns that have been raised, and say what safeguards would prevent confidential medical information being inappropriately made available under the Bill, beyond the existing criteria, guidance and procedures for such disclosure in relation to public interest grounds. If the Government are saying—I am not entirely clear whether they are or not—that the present arrangements are not properly working or are no longer appropriate in today’s world, perhaps there is a need for further discussions by the Government on this aspect of the Bill to make sure that we get any change in the law right and maintain what has been referred to in today’s debate as “the right balance”.
We need to know far more about the real reasons for the change the Government are proposing, what its implications are and how it will be interpreted and applied under the terms of the Bill. I, too, hope the Minister will agree to further discussions on this issue in view of the concerns that have been raised and which are certainly worthy of a full and detailed response with examples.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, I thank all noble Lords who have spoken in this debate; it has been incredibly informative. On the last point made by the noble Lord, Lord Rosser, about further discussions, and as requested by the noble Baroness, Lady Brinton, I am very happy to convene a meeting. On that note, officials have met the GMC to discuss the data-sharing clauses. They have agreed to support the drafting of the statutory guidance and officials have also offered to meet the BMA, but a date has not been fixed. I would like to schedule the meeting that the noble Lord and the noble Baroness request, and it would be great if they would join it.
On the first point made by the noble Lord, Lord Paddick, about a police-led approach, in the serious violence duty draft guidance it is writ really quite large that this is not led by one agency or another but is a shared endeavour towards a public health approach. There are two pages on that, and I think the noble Lord might find that really helpful. At this point, I also thank the noble Lord, Lord Carlile, for both giving the benefit of his experience and bringing balance to the debate; “balance” seems to be a word quite often used in this debate.
Information sharing between relevant agencies is absolutely essential to the discharge of the serious violence duty. The issue before us is how such information sharing, particularly when it relates to personal data of identifiable persons, is properly regulated, and the scope of any restrictions on data sharing. I recognise that there are concerns, particularly in respect of patient information, and that we need to examine them carefully, but I am also concerned that at least some of these amendments seek to significantly weaken the provisions in Chapter 1 of Part 2. Amendment 54 is a case in point. It would have the effect of removing specified health authorities—clinical commissioning groups or CCGs in England and local health boards in Wales—from Schedule 1 and consequently remove the requirement for such authorities to participate in the preparation and development of local serious violence strategies.
I know that noble Lords would agree that the health sector has a very important contribution to make to local partnership working to prevent and reduce serious violence. The provision of local health data will be necessary to take a comprehensive view of the levels of violence being brought to the attention of services in a local area. Local health services may also be involved in the implementation of local strategies, for example where health-related support services are to be commissioned for those at risk of or involved in serious violence. I therefore do not think that it is appropriate to remove specified health authorities from this part of the Bill.
On the point made by the noble Lords, Lord Paddick and Lord Rosser, I would like to be clear that the information-sharing provisions under the serious violence duty do not place any mandatory requirements directly on GPs, doctors or other practitioners to disclose information that they hold. The power to disclose information in Clause 15 applies to information held by CCGs in England and local health boards in Wales, as they are specified authorities. Local policing bodies can request information under Clause 16 from CCGs in England and local health boards in Wales only when it relates to them, their functions, or functions they have contracted out, and only where that information is for the purposes of enabling or assisting the local policing body to exercise its functions under Clause 13 of the Bill. I think that was the point that the noble Lord, Lord Patel, referred to, unless I am wrong.
Confidential patient information can already be lawfully disclosed in the public interest where that information can be used to prevent, detect or prosecute a serious crime. However, such decisions about whether disclosures of confidential patient data are justified must always be made on a case-by-case basis, in line with data protection legislation, which is also the case for the serious violence duty provisions.
On the common-law duty of confidentiality, the point made by the noble Lord, Lord Carlile, about balance was really pertinently made. So many crimes that we can all think of, particularly against children—he mentioned a case that involved children—could have been avoided had practitioners shared relevant information. Existing statutory guidance on the Care Act 2014 already signals specific circumstances where the common-law duty of confidentiality and data protection legislation would not be contravened by the sharing of personal data—for example, where there is an overriding public interest.
Confidentiality can be overridden if there is a necessity—namely, abuse or neglect. Ordinarily, consent should be obtained but, where this is not possible, practitioners must consider whether there is an overriding public interest that would justify information sharing—namely, risk of serious harm. Again, that point was made by the noble Lord, Lord Patel. Confidential patient information can already be lawfully disclosed in the public interest where that information can be used to prevent, detect or prosecute a serious crime. However, such decisions about whether disclosures of confidential patient data are justified must always be made on that case-by-case basis.
I hope that I have provided some reassurance on this matter. As I indicated at the start, I know that there are particular sensitivities about sharing patient information, but, having heard the concerns, I will reflect carefully on this debate and convene the meeting that noble Lords requested ahead of Report. I hope that, with that, the noble Baroness, Lady Brinton, will be content to withdraw her amendment.
The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)
May I remind the Committee that the noble Baroness, Lady Brinton, is participating remotely? I apologise if I interrupted somebody who wanted to speak.
Baroness Chakrabarti (Lab)
Forgive me, but before the Minister sits down, can I ask her to reflect and, if she wants to come back, to address the issue of who decides? I am very grateful for her assurance about intention and that there is no attempt to go further than classical practice has gone, which is a public interest exception to general patient confidentiality. But if, for example, under the new provisions, there were to be a dispute between, say, the police and the relevant health authority and/or the relevant health authority and the individual practitioner, who would decide? That is of course crucial in relation to patient-doctor trust.
Baroness Williams of Trafford (Con)
The decision may be challenged, but the person who decides would be the person who holds the data.
Lord Paddick (LD)
My Lords, I am very grateful to the Minister for her explanations and for the promise of further meetings. It might help those further meetings if I raise the issues I have now. I am concerned at her saying that approaches cannot be made directly to medical practitioners but only through these other bodies. If the result was the same—that confidential medical information about individuals was divulged—that is not much of a reassurance. I am grateful for the information that officials met with the GMC and that it agreed to help with statutory guidance. Perhaps the Minister can meet with the GMC and it can help with amending the Bill.
The Minister said that the issue with some of the amendments is that they weaken the duties in the Bill. That is the whole purpose of the amendments. Regarding the draft guidance and its emphasis on a public health approach, that is not what is on the face of the Bill. The perception of all those I have spoken to—we will come to this issue when considering further groups—is that this is all about providing information to the police. To be fair, the Minister said so in her response. The belief among many authorities is that this is all about providing information to the police and is not a two-way process.
The Minister talked about the Care Act and said that there is already a duty to pass over confidential medical information if there is an overriding public interest. Where in the Bill does it say that there must be an overriding public interest before information is passed over?
Baroness Williams of Trafford (Con)
The detection and prevention of serious violence would be the relevant part, which also reads across to the Care Act 2014. There would have to be a public interest assessment and as I said, there is no mandation. But the body or doctor in question would, as the noble Lord, Lord Carlile, said, have to balance the importance of the prevention, detection, and reduction of serious violence with the disclosure of that information.
Baroness Brinton (LD) [V]
My Lords, I thank all noble Lords who have spoken on these amendments, especially those who are doctors—the noble Lords, Lord Patel and Lord Kakkar—and those who are lawyers. The noble Lord, Lord Carlile, and the noble and learned Lord, Lord Hope, rightly pointed out the balance of decision-making that every doctor must strike. I too made that point in referring to the excellent GMC guidance on confidentiality and good practice in handling patient information. I apologise if my point was not clear. It is not that doctors do not have to navigate the boundaries of confidentiality, because they do and I am quite sure there are times when they can be improved, as I said. As my noble friend Lord Paddick and others have said, this Bill contains powers that appear to override these responsibilities, demanding that CCGs and health boards in Wales pass on personal medical information; however, the doctor who logged that data is unable to take part in any decision about it being passed on.
The noble Lord, Lord Rosser, explained the concerns of those of us who have signed these amendments about these duties, which clearly override a doctor’s choice in making such a decision. The noble Lord, Lord Patel, said that circumstances are vital, since under this Bill he, as a doctor, would not necessarily be consulted by the CCG in question before it passed on any sensitive data to the policing body. I am grateful to the noble and learned Lord, Lord Hope, for Amendment 48, the wording of which I will look at before any amendment is brought back.
The noble Baroness, Lady Chakrabarti, and others talked about where the boundaries lie. We have heard repeatedly about the boundaries, but I want to pick up on my noble friend Lord Paddick’s question to the Minister. He asked her to point out to us exactly where in the Bill it sets the parameters for the GMC guidance and everything else we have discussed. I cannot find it, and nor can the GMC, the BMA and others who have briefed us. That is why we have tabled these amendments. We want this to be made clear. In a perfect world the data would be pseudonymised or anonymised, but we recognise that for some of these clauses that is inappropriate. Therefore, the doctor who has taken that medical information must be involved in any decisions.
I thank the Minister for the offer of a meeting and absolutely appreciate that this will happen. We understand that information will need to be shared between bodies—that is not the object of our amendment. We agree that the major issue is whether that information is identifiable and whether the doctor who made the original decision to record it is part of any decision about its being passed on. I completely understand the Minister’s concerns about Amendment 54. However, the question of the balance of the information being passed on—in this case, personal, confidential and identifiable medical data—clearly must be worked out more explicitly to give the registration bodies, doctors and nurses confidence that their use of the data will not be abused by others who may not have the full information required to address those difficult boundary issues. The doctor must have a say in any data being passed on.
I look forward to getting answers to my many questions in due course, so that we can all gauge who is making the decisions about the data being passed on and what level of information can remain confidential. I thank the Minister for her answers. I expect to return to this issue on Report and look forward to action in the meantime, such as meetings at which we can find those answers. For now, I beg leave to withdraw my amendment.
Lord Young of Cookham
“(3A) Specified authorities which are housing authorities must have particular regard to their housing duties when performing their duties under this section.”
Lord Young of Cookham (Con)
My Lords, this amendment is grouped with a number of other amendments giving priority for housing for those at risk. As I said at Second Reading, I very much welcome this Bill, particularly Part 2. I gave notice then that I would be tabling some housing-related amendments to make the Bill even better. I am grateful to Stella Creasy in another place, who has championed the cause of young people at risk and whose office has given me some very helping briefings.
The noble Baroness, Lady Blake, and I are job-sharing on this group. She will speak to Amendment 51, the principal amendment. In a nutshell, it seeks to specify in law what the Government say is happening anyway and should indeed be happening if best practice is to become universal in this highly sensitive area of gang violence, child exploitation and abuse.
Basically, the amendment would put children at risk in the same category for priority housing as families fleeing domestic violence—a measure introduced in the Bill as a result of pressure from, among others, my noble friend Lady Bertin. It would ensure that, instead of being forced to gather extensive evidence and demonstrate unique vulnerability—not easy if your life is under threat—such people were given priority for urgent moves. This would be automatic.
The noble Baroness, Lady Blake, will develop the case. I will confine my brief remarks to the other amendments in this group. Part 2 of the Bill outlines duties to collaborate to prevent serious violence. These amendments would ensure that housing authorities and registered social landlords were included in this new duty, and that there is timely information sharing between the police and housing authorities for the purpose of preventing serious violence. Any effective multiagency response must include housing; including housing in the Bill will support a comprehensive public health approach to tackling and preventing serious youth violence. Education, prison and youth custody authorities are listed in this part of the Bill but housing is not, despite the Explanatory Notes on this section of the Bill saying this on page 13:
“The Strategy explained that the Government’s approach was not solely focused on law enforcement, but depended on partnerships across a number of sectors such as education, health, social services, housing, youth services and victim services.”
These amendments complement those tabled by the noble Lord, Lord Paddick, and others involving the NHS and children’s social care, which we will come to in a moment.
Amendments 26, 29, 31, 38 to 40 and 44 would amend Clauses 7, 8 and 9. They would require the strategy for a local government area, as well as the related powers to collaborate and identify kinds of violence, to include housing authorities so that they are fully consulted as the strategy is drawn up and the actions they need to take are specified. The Minister may argue that, although the Bill specifies who must be involved in the plan—education, prison and youth custody authorities—it does not preclude others from being involved. However, as far as I can see, the Bill does not say that; it implies exclusivity to the three nominated authorities. Without Amendment 38, for example, housing authorities would not have to carry out their role in any plan to reduce violence.
Of the last amendments, Amendment 62 would require housing authorities to disclose relevant information, which they are not required to do at the moment. This is necessary. One serious review case study said that there was
“little evidence of the Housing Service being closely tied into the operational work of the Safeguarding Partnership. As a consequence information that was only known to the Housing Service took time to percolate to the other partners, while the implications of the housing stress under which Child C’s family was placed were not discussed in a multi-agency forum.”
Much of the violence that young people are at risk from is location-based, such as a gang on a particular estate. Housing providers may have an insight into this in a way that others do not. Without Amendment 62, that risk would persist; Amendments 66, 69 and 70 cover the same points.
These amendments would ensure that government policy is effectively delivered by ensuring that housing authorities are included in the Bill as key partners in protecting young people against gang violence. I beg to move.
Baroness Blake of Leeds (Lab)
My Lords, I support the amendments in the name of the noble Lord, Lord Young, to which I have added my name. I too pay tribute to Stella Creasy in the other place for her commitment and great foresight, as well as for the support of her team.
As we have heard, the purpose of this chapter is to prevent and reduce serious violence by requiring public authorities to co-operate and develop strategies for tackling this issue. The Government tell us that their aim is to build a public health approach to the reduction of serious violence. That aim is welcome only if we can put in place the right tools to achieve it. What we will keep coming back to throughout today’s debates is that a public health approach works only when it is genuinely focused on prevention and early intervention, and is properly invested in. If not, we will continue simply to treat the symptoms of serious violence, not its causes.
Lord Carlile of Berriew (CB)
My Lords, I support the amendments introduced so ably by the noble Lord, Lord Young, and the noble Baroness, Lady Blake. This has been an example of how good this House is at certain things, with two noble Lords with huge experience in the policy area under consideration—and I understand, in the noble Baroness’s case, a deep understanding of the housing situation in one of our major metropolitan cities, Leeds. We should listen to them with great care; I am sure the Minister will.
Other examples can be given of evidence showing that housing really needs to be included right at the core of all these considerations. A recent initiative by a very experienced retired criminal Queen’s Counsel, Bruce Houlder QC, focused on knife crime. The work that Mr Houlder—a very good friend of mine—is now doing, to some acclaim, demonstrates, among other things, that knife crime becomes a cultural issue in certain housing areas. It requires attention in a Bill such as this.
I want to add something about the Edlington case, which I mentioned earlier. One of the issues that arose in that case, which I included in my report to the Secretary of State, was that housing was not included in the consultative group trying to resolve the florid problems of the two children who became serious offenders. Had it been included, they would have been moved and would not have been allowed to stay in the housing where they were. It was absolutely fundamental as a mistake, and we are now nearly 10 years on.
I hope that the Minister responding to this debate will take on board what has been said and ensure that further consideration is given to these amendments.
Baroness Bakewell of Hardington Mandeville (LD)
My Lords, I rise to speak briefly to this group of important amendments, and declare my interest as a vice-president of the LGA.
The noble Lord, Lord Young of Cookham, and the noble Baroness, Lady Blake of Leeds, set out the reasons for these amendments, and I fully support them. Those responsible for providing housing have changed over the years, from the time when it was solely the purview of local authorities to now, when it is a mix of elected councils that hold housing stock themselves through to housing associations and registered social landlords providing a mix of accommodation for couples, families and, less frequently, single people living alone.
Whatever their circumstances, tenants all deserve to feel safe in their home and free from violent attack. Women and young people are often the target of violence, sometimes with catastrophic consequences. Some of this will be domestic violence; in other cases it will be gang related. Whatever the cause or outcome, it is essential that the housing providers have a robust strategy in place—first, to prevent violence in the first place and, secondly, to deal with the aftermath once it has occurred.
Housing provider co-operation with the police is essential in dealing with violent abuse. Relying on GDPR protection to avoid releasing information is unhelpful at best and, at the other end of the spectrum, borders on ignoring the violent act itself. Of course, this release of information on behalf of the housing providers does not extend to medical professionals, the subject of the previous group of amendments.
Violence is abhorrent and prevents people enjoying the safety they should feel in their home, whether that is a bedsit or a three-bedroom family home. Local authorities will receive complaints about the behaviour of their tenants from neighbours. This might be about noise or anti-social behaviour. In more serious cases, the complaints will be about violence suffered by children and women, and sometimes men, living in a nearby home. It is difficult for local authority housing departments and RSLs to take action on what might be a malicious complaint, but I believe that where a robust serious violence reduction strategy is in place, officers will have the confidence to act before the violence ends in a tragedy, as in the case study the noble Baroness, Lady Blake of Leeds, mentioned.
I have only one caveat: the Government should ensure that local authorities, whose budgets have been slashed over recent years, have sufficient funding to be able to produce and implement a violence reduction strategy and not be expected to fund additional work on their already overstretched budgets.
Society is becoming immune to the level of violence experienced by some communities. This has to be reversed. A serious violence reduction strategy for each community living in social housing, whoever the provider may be, is a step in the right direction towards raising the profile of the damage that such violence causes and beginning to tackle its reduction. I fully support this group of amendments.
Lord Bach (Lab)
My Lords, I support these amendments absolutely; they are practical and in the real world. From my experience as a police and crime commissioner over five years, it is quite clear that serious violence has a huge amount to do with place and a lot to do with housing in those places. If we are to have the partnership that is presumably behind the Government’s proposals on serious violence, it is absolutely essential that housing and those who control it have a vital role; without them, all sorts of disasters will occur.
When I was a police and crime commissioner, I would hear from police officers or citizens day by day about the problems in areas where they lived and the mismatch, sometimes, between those responsible for housing and their ability to talk to the police and get things done, on either side, as quickly as possible. These are very important amendments, and I hope that the Government will listen carefully to them.
Lord Paddick (LD)
My Lords, we support these amendments. It is not just victims of domestic violence who need help and support from housing authorities in escaping serious violence. Young people groomed and exploited by criminal gangs also need and deserve to be urgently rehoused in certain circumstances, as the noble Lord, Lord Young of Cookham, so clearly set out.
Again, this needs to be a truly multiagency approach to reducing serious violence and not a police-led enforcement approach. The police need to provide information to housing authorities where they believe that someone is being coerced into criminal activity and is threatened with serious violence if they do not comply, and that taking that person out of that scenario by rehousing them can reduce the risk of serious violence.
I repeat that option 2 of the Government’s consultation on the serious violence duty is the best option and the one preferred by the greatest proportion of respondents to the Government’s own consultation—that of enhancing existing crime and disorder partnerships. These are the existing and well-established mechanism, where local authorities and police forces work together to prevent and tackle crime and disorder and where the local police chief and the local authority chief executive are equal partners in doing whatever each partner and others can do to reduce crime and disorder.
Baroness Williams of Trafford (Con)
My Lords, I am most grateful to my noble friend Lord Young of Cookham for setting out the case for these amendments. I fully agree with him that local authorities and housing associations are able to make a significant contribution to local efforts to prevent and reduce serious violence.
In light of the fact that local authorities have responsibility for delivering services such as housing and community safety in local areas, we expect that such services will be a crucial part of the contribution that they make to the partnership arrangements, as they participate in the preparation and implementation of the serious violence strategy. We believe that they are therefore well placed to provide that strategic overview of, and information about, housing issues in the local area.
The statutory guidance for the serious violence duty, which has been published in draft and to which we have referred a few times this evening, highlights such duties and emphasises their relevance, as part of the work to meet the requirements of the serious violence duty. We do not think that it is necessary to explicitly state in the Bill that local authorities must have due regard to their housing duties as they fulfil the requirements of this duty because there will be a requirement for them to have due regard to the statutory guidance in any case.
Furthermore, current legislation already provides for those in most need to be prioritised for social housing, and statutory guidance makes it clear that local authorities should consider giving priority to those who require urgent rehousing as a result of domestic abuse and other types of violence. We will continue to work with the relevant sectors to ensure that the statutory guidance is clear on this point, ahead of a public consultation following Royal Assent and prior to the serious violence duty provisions coming into effect.
But, of course, we must do all that we can to identify and provide support to the individuals who are most at risk of involvement in serious violence, including those occupying social housing or who may be at risk of homelessness. But including registered providers of social housing within the provisions for the serious violence duty will not be necessary to achieve this.
As part of the work to prevent and reduce serious violence, specified authorities in a local area will be required to work together to identify the kinds and causes of serious violence and, in doing so, establish the groups of individuals who are most at risk in a local area.
Legislation already sets out that, when a local housing authority makes such a request, a private registered provider of social housing or a registered social landlord shall co-operate to such extent as is reasonable in the circumstances in offering accommodation to people with priority under the authority’s allocation scheme. This includes properties provided to those in priority need, including those with urgent housing needs, as a result of violence or threats of violence. Statutory guidance on allocations issues earlier this year, to which local authorities may pay due regard, makes this clear. It is also worth noting that the Tenancy Standard, issued by the Regulator of Social Housing, contains specific provision to ensure that private registered providers of social housing co-operate with local authorities’ strategic housing function.
Those who are at risk of violence should already receive support, if they need social housing and/or homelessness assistance, but local authorities must be able to respond to their strategic housing function and individual needs on a case-by-case basis. There is a risk that these amendments would inadvertently undermine the work of specified authorities to establish the most prevalent crime types and cohorts most at risk by mandating that a particular group falls under this category.
Furthermore, we must make sure that the duties placed on registered providers and local housing authorities are proportionate, bearing in mind both their size—there are, after all, 1,400 private registered providers of social housing in England, some of which are very small, and 165 local authorities that are social landlords—and the extent of their direct levers to deal with serious violence. They may therefore have limited direct capabilities, if any, to help to identify or prevent serious violence in the area. This is particularly true of small communities with reduced capacity and resources. The duties would therefore impose a material and unresourced burden.
We must also bear in mind the risk that social tenants may be inadvertently stigmatised as at risk of serious violence. Stigma was a key theme to emerge from the social housing Green Paper consultation exercise, and we must therefore be particularly careful not to further this perception and feeling.
I turn to Amendment 51. It is vital that all victims of serious violence who need to leave their home in order to escape violence are supported to access safe and secure alternative accommodation. It may be helpful for noble Lords if I explain how the existing provisions in homelessness legislation apply in relation to victims of violence.
A household is considered to be homeless if it would not be reasonable for them to continue to occupy their accommodation. Section 177 of the Housing Act is clear that it is not reasonable for a person to continue to occupy accommodation if it is probable that this will lead to domestic abuse or other violence against that person or another member of their household. This means that victims of violence or of threats of violence that are likely to be carried out, who need to move because it is not safe for them to remain where they are currently living, are able to access support from council homelessness services. Furthermore, if a housing authority has a reason to believe that a person is homeless, eligible for assistance and has a priority need, Section 188(1) of the Housing Act requires the housing authority to provide interim accommodation while it carries out further investigations.
If homelessness is not successfully prevented or relieved, a housing authority will owe the main housing duty to applicants who are eligible, have a priority need for accommodation and are not homeless intentionally. Households containing dependent children have priority need, as in the examples raised by the noble Baroness, Lady Blake of Leeds, relating to gang-related violence, which was mentioned also by the noble Baroness, Lady Bakewell, and the noble Lord, Lord Paddick.
In addition, a person might be assessed as having priority need if they are considered significantly more vulnerable than an ordinary person would be if they became homeless as a result of ceasing to occupy accommodation by reason of violence from another person or threats of violence that are likely to be carried out. Homelessness legislation therefore already makes provision for victims of serious violence to receive support to access alternative accommodation.
Many local housing authorities already work with the police and other partners to reduce the risk of serious violence, including through the provision of alternative accommodation. Where this works well, it is clear that it is very important that services such as youth offending teams, educational authorities and the National Probation Service work together locally to provide support for the household and the victim of violence. Housing alone without that support is clearly not a sustainable option. The new serious violence duty will facilitate this and is intended to generate better partnership working locally to further protect this cohort.
The draft guidance is clear that local authorities are responsible for the delivery of a range of vital services for people and businesses in a local area, including but not limited to children’s and adult’s social care, schools, housing and planning, youth services and community safety, so they will have an essential role to play in partnership arrangements. The inclusion of this detail in the guidance for the new duty, alongside the existing homelessness legislation and guidance, is the most effective way of supporting victims of serious and gang-related violence to relocate and start afresh.
While it is so important that those at risk of serious violence who are homeless or are at risk of homelessness are supported to find an accommodation solution that meets their needs and reflects their individual circumstances, we do not think it is right to extend automatic priority need to other victims of serious violence that is not domestic abuse. While the violence or threat of violence may be present in their community, it does not usually take place in the home itself.
We think that the current legislative framework and accompanying statutory homelessness code of guidance, combined with the statutory guidance on social housing allocations, strikes the right balance as it considers the vulnerability of the applicant on a case-by-case basis and is the most appropriate means of determining priority for accommodation secured by the local authority. This approach ensures sufficient provision for homeless victims of serious violence who are vulnerable as a result of that violence, while also ensuring that finite resources, including temporary accommodation, are prioritised effectively and accommodation is there for those most in need.
The second part of Amendment 51 seeks to place a duty on the Secretary of State to
“issue a code of practice”
covering Section 177 of the Housing Act. I say to my noble friend at this point that the statutory homelessness code of guidance already provides such guidance for housing authorities when a person at risk of violence or the threat of violence approaches a local authority in housing need. The statutory guidance on social housing allocations also makes it clear that local housing authorities should consider giving preference to such persons.
Lord Paddick (LD)
My Lords, can I ask the Minister to clarify something? I think the noble Baroness said that this additional duty was not necessary, as it was with domestic violence, because the violence does not happen in the home. In the example I gave, where a drug dealer owed money harasses and threatens a family to get their money back, surely you could say that that violence is happening on the doorstep, or perhaps inside the home if the drug dealer breaks the door down. Surely there is a need in those circumstances for that family to be rehoused to reduce serious violence and get them out of the way in a similar way to a victim of domestic violence.
Baroness Williams of Trafford (Con)
I think what I said to the House was that households containing dependent children have a priority need and that a person may be assessed as having priority need if they were considered to be significantly more vulnerable than an ordinary person would be if they became homeless as a result of ceasing to occupy accommodation by reason of violence from another person or threats of violence that are likely to be carried out. In terms of domestic abuse, it is widely acknowledged that domestic abuse crimes are committed inside the home, out of the view of the public, by household members. The changes made to the Domestic Abuse Act to extend priority need to people who are homeless as a result of being a victim of domestic abuse reflected that.
Baroness Blake of Leeds (Lab)
The Minister is setting great store by the guidance that is going to come forward. Can I ask her for reassurance that there will be adequate opportunity for those working on the ground to put across the point of view of the reality of dealing with families in some of the most distressing circumstances we could possibly imagine?
Baroness Williams of Trafford (Con)
Certainly, I completely concur with the noble Baroness and there will be ample opportunity to look at the draft guidance as well.
Lord Young of Cookham (Con)
My Lords, I am grateful to all those who have taken part in this debate, beginning with my co-pilot, the noble Baroness, Lady Blake, who made the point that this is all about prevention and early intervention, and housing is absolutely crucial if we are to achieve that. She mentioned the broad support for this group of amendments from organisations such as Shelter and Crisis and made the point that this is simply building on existing provisions and extending what is already the case for domestic violence to gang-related violence—I will come back to that point in a moment. The thrust of the amendment to which she spoke was to embed best practice in statutory guidance; she mentioned the tragic case of the child Chris.
I am grateful to the noble Lord, Lord Carlile, who referred to the work of Mr Houlder on knife crime—the scourge of many housing estates—and also referred to the Edlington case, which he mentioned in an earlier debate. That underlined the point that there can sometimes be fatal consequences if there is inadequate consultation between the housing authorities and police authorities—a point that was underlined later in the debate by the noble Lord, Lord Bach. I am grateful to the noble Baroness, Lady Bakewell, for her support; she made the point that there is a potential resource implication behind these amendments if they are to be fully effective. Again, the experience of the noble Lord, Lord Bach, as a police and crime commissioner was of real value to the debate; he emphasised the importance of strengthening the link between housing and the police.
I am grateful to the noble Lord, Lord Paddick, who expressed concern that the Bill was too focused on a police-led initiative. The impact of these amendments will be to broaden the base by including housing; other amendments later on will also help broaden the base. He was anxious that this should not be entirely police-led.
I am grateful to the Minister for a thoughtful, sympathetic and comprehensive response to the debate, informed by her experience as a council leader in the north-west but also by her time as a Minister in what was then the Ministry of Housing, Communities and Local Government, now the Department for Levelling Up, Housing and Communities—he said with some hesitation. She made the point that she expected housing authorities to participate—they were well placed to do so—and referred on many occasions to statutory guidance. The concern that I have, and some other noble Lords may have, is that there is a gap between statutory guidance and what actually happens on the ground; hence the case for legislation to make it clear that this is not just guidance, there is an obligation so to do.
I recall listening to exactly the same arguments we have heard this evening in resisting what became the Domestic Abuse Act, which gave a statutory right to be rehoused to those suffering from domestic violence. Previously, the argument was, “There are adequate powers for local authorities to do this under the housing legislation.” However, we have now taken the step forward and put it in the Domestic Abuse Act, and this will build on that precedent and extend it to gang violence. I am concerned by the gap between theory and practice, and this would embed best practice in legislation.
Having said that, as I said, my noble friend gave a thorough response which I want to reflect on, together with the contributions of other noble Lords who have taken part in this debate, and in the meantime, I beg leave to withdraw the amendment.
Police, Crime, Sentencing and Courts Bill
Monday 25th October 2021
(2 years, 6 months ago)
Lords ChamberRead Full debate Police, Crime, Sentencing and Courts Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 40-III Third marshalled list for Committee - (25 Oct 2021)
The Deputy Chairman of Committees (Baroness Henig) (Lab)
My Lords, the noble Baroness, Lady Brinton, will be taking part remotely in the debate on Amendment 28. I call the noble Lord, Lord Paddick.
Amendment 28
Lord Paddick
“(d) each NHS body in the area.”Member’s explanatory statement
This is to ensure that the local health sector is consulted when a a local plan is being prepared to prevent and reduce serious violence in that local area.
Lord Paddick (LD)
My Lords, in moving Amendment 28 in my name, I will speak also to the other amendments in this group.
Those under the new legal obligation to collaborate with each other to prevent and reduce serious violence are set out in Schedule 1 to the Bill and include clinical commissioning groups and local health boards, but they do not, for example, include hospital trusts. We will come to what should be included in serious violence in a later group, but in that group, the noble Lord, Lord Brooke of Alverthorpe, has an amendment to include violence that results in the victim receiving injury that requires emergency hospital treatment, or where the injury amounts to grievous bodily harm.
Leaving the definition of serious violence to one side until we reach that group, we know from the work of Professor Jonathan Shepherd of Cardiff University how important information about knife crime, for example, is to the police in tackling that type of serious violence. It therefore seems to be a serious omission that not all NHS bodies in the area are listed as bodies that must be consulted as provided for in Clause 7(4), particularly hospital trusts. This omission leads one to question again to what extent this is really a public health approach to tackling and reducing serious violence. I have suggested that hospital trusts, for example, are included as bodies that must be consulted, rather than specified authorities, to avoid hospital trusts being compelled to divulge sensitive personal patient information under the other provisions of this chapter.
Hospital trusts can also play an important role in allowing charities such as Redthread to engage with victims of knife crime at “teachable moments” when victims involved in gangs are at their most receptive to being approached to discuss a way out of their violent lifestyles, particularly when they have been seriously injured or their injuries are life-threatening. I have personally heard powerful testimony from a young father, the mother of whose child had committed suicide, realising when in A&E with a serious knife wound that his child might have to grow up without either of his parents if he did not turn his back on his violent past. This is an example of a truly multiagency, public health approach to serious violence, where those involved in violent gangs are not necessarily imprisoned—where they may be further brutalised—but are supported to turn their lives around.
The noble Baroness, Lady Bennett of Manor Castle, suggests that young people’s groups and religious and cultural groups must also be consulted. In these cases, such groups can have a crucial role to play in providing a safe alternative to the sense of belonging that many young people desperately seek and that criminal gangs appear to provide.
Baroness Brinton (LD) [V]
My Lords, I support Amendment 28, tabled by my noble friend Lord Paddick, which would add each NHS body in an area to the formal list of bodies to be consulted on a local plan, including why NHS bodies should not be a specified authority. I will use one example of how critical to planning they can be to support the argument.
Our Liberal Democrat colleague Caroline Pidgeon, a member of the Greater London Assembly, wrote a report in 2015 to the Greater London Assembly on knife crime. She encouraged the then Mayor of London to adopt the Cardiff model in A&E to help tackle knife crime. After a long campaign, Mayor Boris Johnson finally agreed, and one of the key recommendations in Caroline’s report was to collect anonymised data.
Currently all accident and emergency departments in London collect anonymised data on violent crime for those who need treatment. The scheme means that A&E departments share key information on things such as the location of crime and weapons used with the police and the Mayor’s Office for Policing and Crime, while protecting personal data. This data helps to guide interventions and prevention programmes and is invaluable in gaining knowledge on violent crime patterns. This is recognised as good practice, but there is an enormous amount of learning going on in our A&E departments as they collate that data. If the Government intend to emulate this elsewhere, it would also be helpful for the Bill to recognise that there is an enormous amount of expertise in our health bodies that can help tackle serious violence. It seems logical therefore that health bodies should also be statutory consultees.
Baroness Jones of Moulsecoomb (GP)
My noble friend Lady Bennett of Manor Castle is unable to attend your Lordships’ Committee today, so I am proposing Amendment 30 in her place.
Along with the other amendments in this group, our amendment will improve the Government’s attempts to reduce serious violence. Youth groups, cultural groups and religious groups are just a few of the organisations that should be consulted in the exercise of the serious violence duty. There are many others too, and there will be big gaps in any serious violence reduction plan that has not consulted with and included these groups. They know their communities well, often with a different angle from other health services, local authorities and so on, and are currently not listed in the Bill—but they definitely should be. Perhaps most importantly, they can often shine a light on the failures of those other bodies with respect to how they perhaps underserve or misunderstand their communities.
So I hope the Minister will outline how youth, cultural and religious groups will be properly involved in this serious violence duty.
Lord Blencathra (Con)
My Lords, as chair of the Delegated Powers and Regulatory Reform Committee, I support Amendments 33 and 41 in my name. I intend to speak only once on the whole Bill, unless the spirit moves me via my noble friend the Minister’s reply. She will know that there were quite a few recommendations in the Delegated Powers Committee report, but I have put down just these two amendments.
If the Committee will permit, I will take the first minute to run through the more general criticism we made of the delegated powers in the Bill. I will not return to this subject again. In our response to the memorandum, we said:
“We are surprised and concerned at the large number of inappropriate delegations of power in this Bill … We are particularly concerned that the Bill would … allow Ministers—and even a non-statutory body—to influence the exercise of new police powers (including in relation to unauthorised traveller encampments and stop and search) through ‘guidance’ that is not subject to Parliamentary scrutiny … leave to regulations key aspects of new police powers—to restrict protest and to extract confidential information from electronic devices—that should instead be on the face of the Bill; and … allow the imposition of statutory duties via the novel concept of ‘strategy’ documents that need not even be published.”
That is the subject of the amendments before us today, and that is what I shall major on.
We concluded our general introduction by saying:
“We are disappointed that the inclusion of these types of delegations of power—on flimsy grounds—suggests that the Government have failed when preparing this Bill to give serious consideration to recommendations that we have made in recent reports on other Bills.”
That is fairly scathing condemnation, and it is a bit unfair on noble Lords in this Committee and from the Home Office, because they had nothing to do with drafting these provisions.
We all know how it happens. The Bill has come from another place; Ministers who have served in the Home Office and other departments will honestly admit this. I dealt with about 20 Bills when I was in the Home Office. The Bill team and civil servants would come in and say, “Here’s the Bill, Minister”, and we would look at the general politics of it. Then they would say, “Oh, by the way, there are some delegated powers there. When you’re ready to come back again to tweak it, we can deal with it”. We all said, “Yes, jolly good; carry on”, but never paid any attention to them. I am certain that the Bill team in the Commons—the civil servants drafting the Bill—did not, and nor did the Commons Ministers. It came here and this bunch of Lordships have got a bit upset, and I suspect others will too.
I say to my noble friend the Minister to go back, as other Lords Ministers have to do, and explain to Ministers in the Commons and the Bill team—the Bill team thinks it is sacrosanct; it has drafted it and does not like people mucking around with it—that that bunch up the Corridor will want some concessions. My political antennae tell me that on Report there may be a few amendments made by noble Lords on all sides—amendments I might not approve of at all—but if we want to get somewhere, the Commons should make concessions on this, because they are really sensible.
Before I comment on the two amendments, I will give one example. We criticise the provisions on serious disruption; I think the noble and learned Lord, Lord Judge, wishes to remove them from the Bill. We say in our report that the Government have been able to draft a half-page statutory instrument describing serious disruption. If the Government can draft it there, stick it in the Bill, for goodness’ sake, and then it can be amended later.
That is enough general criticism. I apologise to my noble friend as she has to take it all the time, but other departments have been infinitely worse in some of their inappropriate delegations. The Home Office is not the worst offender.
Clauses 7(9) and 8(9)
“make provision for or in connection with the publication and dissemination of a strategy”
to reduce serious violence. Clauses 7 and 8 allow collaboration between authorities and a local government area
“to prevent and reduce serious violence”,
including to
“prepare and implement a strategy for exercising their functions”—
all good stuff.
Under Clauses 7 and 8, a strategy
“may specify an action to be carried out by … an educational authority … a prison authority … or … a youth custody authority”,
and such authorities are under a duty to carry out the specified actions. However, there is no requirement for such a strategy to be published; instead, the Secretary of State has the power, exercisable by regulations subject to the negative procedure, to
“make provision for or in connection with the publication and dissemination of a strategy”.
This power would appear to allow the Secretary of State to provide that a strategy need not be published if she so wished, or even to decide not to make a provision about publication at all. That does not make sense to us. My committee is
“concerned that the absence of a requirement to publish means that a strategy can have legislative effect—by placing educational authorities, prison authorities and youth custody authorities under a statutory duty to do things specified in it—but without appropriate transparency.”
We therefore recommend
“that the delegated powers in clauses 7(9) and 8(9) should be amended”—
that is, tweaked a wee bit—
“to require the publication of any action which is specified in a ‘strategy’ as one that an educational authority, a prison authority or a youth custody authority must carry out.”
That is a minor tweak—actually, so are many of the other things we recommend. We may be scathing in the report, but we are not asking that fundamental bits of the Bill be deleted or rewritten completely; we are merely asking for more transparency. Putting more things on the face of the Bill will save the Government rather a lot of grief in this House later on.
Lord Beith (LD)
My Lords, my name is on the amendment, following that of the chairman of the Delegated Powers and Regulatory Reform Committee. I commend the committee’s work in general, with more general comments on this Bill and the two amendments to which it has given rise in this particular case.
I am not persuaded of the merits of having a statutory structure for local co-operation strategies. I am strongly in favour of local co-operation; it should be happening everywhere to deal with serious violence and many other problems in the system. Where that is done and works well—as it has done in youth justice, to some extent—it demonstrates its value pretty quickly.
However, this is a statutory scheme; because of that, statutory obligations are created and there must be accountability for them. I am in a charitable mood so I will suggest that, if not exactly careless drafting, this did not anticipate the question, “What if no provision is made for publication of the strategy?” That is what the two amendments deal with. Perhaps the Government are undiminished in their intention that the strategies will be published and will therefore be accountable to the communities in which they are deployed but, as the Bill stands, it is weak on that point and it would be much better to make it clearer.
This is not by any means the worst delegated power issue to arise in the Bill—I am intrigued that the Home Office got off lightly tonight, with the chairman of the DPRRC calling it not the worst department. However, in this particular case, it needs to be made much clearer that, if statutory obligations are created and strategies have the force of statute, they must be published and must be accountable to the communities in which they operate.
Lord Brooke of Alverthorpe (Lab)
My Lords, I am grateful to the noble Lord, Lord Paddick, for his remarks. It will come as no surprise to the Minister that I have a few things to say about alcohol over the course of our deliberations.
The Home Office’s outcome delivery plan, published on 15 July 2021, highlights alcohol use as a principal driver of serious violence and other crimes. However, the plan does not include any measures to reduce alcohol use. Reducing alcohol availability, increasing alcohol price and limiting alcohol marketing are powerful levers already in the hands of the Government for reducing serious violence, but none of these is included anywhere. As drafted, the Bill appears to be blind to the ubiquitous role of alcohol in serious violence both in and outside the home.
In 2019, 176,000 people in England and Wales needed emergency hospital treatment after being injured in violent incidents. Most of this serious violence takes place after 10 pm and is alcohol related. This is just the tip of the iceberg, as the Crime Survey for England and Wales demonstrates so clearly. People living in the most deprived areas are six times more likely to be affected than those in the least deprived areas. Quite apart from triggering violence, intoxication increases vulnerability, including to sexual violence, as physical decision-making capability is eroded. Hate violence increases as inhibition decreases.
One of the solutions is pricing. Even tiny alcohol price increases make a big difference. A 1% increase across the on and off-licence trades is estimated to reduce the number of people injured in serious violence by at least 6,000 in England and Wales. But at the moment, the Government’s action is in the opposite direction: they freeze or even reduce the levies and duties on alcohol. We wait with interest to see what the Chancellor will do this coming Wednesday, because effectively what the Government have done in recent years by reducing the price of alcohol in relative terms is give a licence for people to drink more and commit more violence, particularly after 10 pm. I hope there is some chance that we will start taking a different view of that. The statistics should not be ignored; they have got worse, and we should be taking action.
I bring apologies from my friend, the noble Baroness, Lady Finlay, who is unable to speak today. Had she done so, she would have talked about the related issue of drugs. Drug-related homicides are increasing. There were 311 such homicides in England and Wales in 2018-19 and 337 in 2019-20.
If one takes the consequences of the abuse of alcohol and drug taking, one sees that we have not a diminishing problem but an increasing one. We need to take all the steps we can in any way open to us to try to ensure that we start moving in the opposite direction. The amendment that I bring to the Committee seeks to ensure that the consequences of alcohol, and the need for those consequences to be recognised, are recognised in the strategy that will be drawn up, which I hope will be worth while and worth pursuing.
Lord Coaker (Lab)
My Lords, I declare my interests in the register of interests. I am the independent chair of the Nottingham Crime & Drug Partnership. As this may cross some of the things I say, I am also a principal research fellow at the Rights Lab at the University of Nottingham.
The Bill requires authorities involved in the serious violence reduction duty to prepare and implement a strategy to prevent and reduce serious violence in their local area. These amendments are incredibly important because the strategy is about how we implement all the other things we are talking about. The amendments are about that strategy, what it should involve and how it can be made more effective. Such detail is what the Committee stage is about.
The Government’s figures from the impact assessment published on 30 June 2021 are simply unacceptable and we have to do something about them. They say:
“Since 2014 certain types of serious violence have increased markedly in England and Wales. Offences involving knives increased by 84 per cent between the year to June 2014 and the year to June 2020. Homicides increased by around 38 per cent and gun crime rose by 28 per cent between year to June 2014 and year to June 2020.”
In the year ending June 2020, 262 people were stabbed to death. In 2019-20, 4,800 admissions for assault by a sharp object were recorded, with some offences never reported. Redthread, which the noble Lord mentioned, is one of the special projects in Nottingham which deals with that. I say those figures not to be alarmist or to criticise, but to outline for the Committee, those who read our affairs and some who are no doubt watching them, that this is a colossal problem for us as a society. We are struggling to deal with it and do something about it.
I asked many Ministers in the other place and am starting to ask in this place, why this Bill will be different from other Bills. Nobody has passed a Bill on serious violence over the past 30, 40 or 50 years that has not sought to do exactly what this Bill is seeking to do. There has not been a police force, a justice system or a local authority across the country that has not sought to reduce serious violence. It is a failure of public policy for decades, but it is particularly pronounced at the moment. Whether it is drugs, alcohol or other things that are motiving and pushing it, the Committee are considering how this time it will be different. Why will the strategies we are putting forward now mean that the police, local authorities, NHS bodies, youth services, residents’ associations, wherever they are, are empowered to succeed in a way that strategies that were implemented before have not been successful?
I have been listening carefully to how many Members of your Lordships’ House are using their experience from wherever they have come from to inform the Government, because we want the Government to succeed. Virtually every single morning at the weekend you wake up to the news that somebody has been stabbed. Sometimes there is a 14 year-old involved in the stabbing, as was on the news recently. I listen to that with horror. How will this be better? The challenge for the Government in the best sense of the word is about how these strategies will work and how we will make them work.
I am really grateful for the work of the Delegated Powers Committee, which is not seeking to embarrass the Government. It wants to improve the legislation. What the noble Lords, Lord Blencathra and Lord Beith, said is quite significant. To repeat what the noble Lord, Lord Blencathra, very powerfully said, there is no statutory requirement on the Government in the Bill to publish the guidance. It said that it considers that there perhaps should be. It did not put it like that, but that is essentially what it said. In parliamentary language, it is saying to the Government, “You aren’t required to do it, but that’s not a very good idea, and you should.” Common sense would dictate that if guidance is going to guide people, surely the Government should be required to publish it or have it, and that is why the amendment is there.
Amendments 28 and 30 would add NHS bodies, young people’s groups and religious and cultural groups to the list of groups that must be consulted. The Minister will no doubt say, “It is our intention to do that; of course they will be consulted. We would never dream of doing it without consulting them”, but people want reassurance that these bodies, groups or parts of society are actually in the Bill.
On 13 September, the Government published the Home Office Measures in the Police, Crime, Sentencing and Courts Bill: Equalities Impact Assessment. The Government’s own advice to themselves says that
“there is also often a disproportionate impact of certain knife crime offences on young people. Therefore, greater benefits could fall to those with the same characteristics”,
and it goes on to talk about ethnicity and some other issues. So the Government’s advice is that young people are disproportionately impacted, therefore it might be a good idea to consult them about the solutions to this. I say to the Minister that that surely should be included in the Bill. There is nothing lost by it, whether with NHS bodies or young people. I can hear the reply now: “There is no need for it, because of course we will.” But it is so important for those things to be listed in the Bill. That legislation needs to be there, and those points were made by a number of honourable Members in the other place.
Amendment 32, from my noble friend Lord Brooke and the noble Baroness, Lady Finlay, as was outlined by my noble friend, is on alcohol and drugs as drivers of serious violence. I do not know whether my noble friend would agree, but alcohol and drugs are often, somehow or other, not given the same prominence in how we deal with this. I will give one example of how serious violence and alcohol are linked: if the police regard a particular football match as difficult, they will start much earlier in the day, before the pubs are open, essentially. Why do they do that? I am not a police officer—the noble Lord, Lord Paddick, might know better—but I presume that, if you start it then, the incidence of violence is likely to be less, although this is not definite. This cannot be overstated, so what will the strategy say about dealing with alcohol and drugs? This is fundamental to public health.
I congratulate the noble Baroness, Lady Newlove, the noble Lord, Lord Russell, and my noble friend Lord Rosser on Amendment 53. I understand that the noble Lord, Lord Paddick, is yet to be convinced by the national serious violence oversight board. It is a mechanism by which the signers of the amendment and those who support it seek to ensure that these strategies will work and contain something so that not just the local authorities delivering them but, somewhere along the line, somebody holds people to account for trying to deliver them. If a national oversight board does not do that, who will? Correct me if I am wrong, but I think the noble Lord, Lord Paddick, said that Her Majesty’s inspectorate might be able to.
To be honest, I am open to persuasion about what the mechanism should be, but the importance of the amendment cannot be overstated, because it says that the Bill and these strategies will work if there is some way of trying to understand whether they are working. What measures will be used and who is going to look at whether they work? Who is going to review the strategy to ensure it is any good? Who is going to share relevant data and good practice? Who is going to do that if not an oversight board? Somewhere along the line, people have to be held to account so, if Amendment 53 is not a good idea, what is? We cannot just let it run free and work; we need some way of measuring it and knowing that it is working.
Baroness Newlove (Con)
My Lords, I will speak to Amendment 53. I thank the noble Lord, Lord Coaker; to be perfectly honest, he has made my speech for me. I also thank the noble Lords, Lord Rosser and Lord Russell, for supporting this amendment.
Basically, everything has been said. However, as the noble Lord, Lord Coaker, asked in his passionate speech, why are we still talking about this issue? I know that the Minister listens; however, having spoken to Barnardo’s, and as a former Victims’ Commissioner and a victim of violent crime involving alcohol, I have a passionate desire to ensure that we get this right for children, because we are missing the criminal exploitation of children. I have met many victims of child sexual exploitation; what is the difference between that and child criminal exploitation? We need a multiagency approach—I feel that I am always on repeat in talking about this issue. The language and the proposals are the same, but we have to work together a bit more thoroughly and transparently.
I have attended many summits at No. 10, on sexual exploitation, knife crime—you name it, I have been to most of them over the past 11 years. Today we are still talking about serious violence, which is linked to criminal exploitation, and sadly it especially affects our young children. As the noble Lord, Lord Coaker, said, last week a 14 year-old was charged with murder. What kind of society are we living in today?
The violence in question is very serious. Last week, the police in England and Wales reported that between 11 and 17 October, they made just under 1,500 arrests. They seized weapons such as zombie knives, samurai swords and firearms, as well as £1.3 million in cash and drugs, by targeting those involved in organised drug crimes and county lines. Alongside the arrests, 2,500 vulnerable people, including children, were identified as in need of safeguarding. That is within just six days. It is an achievement to get all this together, but it clearly demonstrates that serious violence and criminal exploitation do not adhere to local area boundaries. We spoke in this Chamber about county lines but, once we had highlighted it, the drug lords widened their operations, moving the children across the country.
We have a duty to safeguard these children. Serious violence and child criminal exploitation are child abuse. If we are to stop this spreading, there has to be accountability. We like to talk the talk but, unfortunately, we are not walking the walk when it comes to what these children are put through in their daily lives. I have met 14 and 12 year-olds who are the most vulnerable in our society, absolutely captured by criminality. They do not have the education to say no, and they live in fear because the abusers do not stop at humanity. They like to grab their homes. They bring their families. We have drill videos and cuckooing—there is lots of this different lingo, and it all involves children, who are the drug mules in all of this.
Can you imagine having a child who gets involved in this, and your home then being scrutinised by a big fellow—most of them were—with a huge Samurai sword or a machete down his trousers? He looks quite normal to anyone else. Drill videos contain the lingo that gives messages to gangs. This is not in my script, by the way; this is about people I have met. This is about children who have no way of getting out. They need support on the ground.
That is why I am asking for this amendment. The noble Lord, Lord Coaker, put it well when he said that we need accountability. The amendment would ensure that the Secretary of State appoints a board known as the
“National Serious Violence Oversight Board”.
The Secretary of State would chair it and it would be accountable to Parliament; it would not be just window dressing.
The amendment proposes that we monitor delivery of the new serious violence duty across the country. This is not just for individual authorities to deal with; it is cross-country. The board would provide a national picture, identify national trends, see what is and is not working and share learning across the country. As I have said, no one agency can tackle this problem. I hope that the Minister will consider this amendment and see the benefits of establishing this oversight board.
“Ensuring accountability” are the two words that should be important, not “lessons learned”, when the horse has already bolted. A national serious violence oversight board would enable analysis of the national trends and proper scrutiny of what is and is not working. We owe it to these children to give them a better future.
Lord Russell of Liverpool (CB)
My Lords, I rise briefly to support what my friend, the noble Baroness, Lady Newlove, has just said. I echo her praise and thanks to another friend, the noble Lord, Lord Coaker, an ex-Parliamentary Assembly of the Council of Europe colleague, for his diagnosis—because that is essentially what this probing amendment is about.
It has become extremely fashionable for Her Majesty’s Government to do two things when they feel they are getting into difficult waters. First, they give responses whereby a series of rather large-sounding sums of money are trotted out to show that they care and are doing something about it. Usually, there is no mention of what effect those large sums are having.
The second thing Her Majesty’s Government have developed a particular tic for is developing strategies. As I have said before in this Chamber, when I hear too many strategies coming from various directions, my instinctive reaction is to reach for my tin hat and head for the trenches. By their very nature, strategies are aspirational. They try to understand a problem, and they suggest a solution. They do not guarantee what the outcomes will be, and they rarely have built into them accurate measures and KPIs to actually work out whether the much-vaunted strategy is delivering.
I entirely agree with publishing strategies, not least because in reading them and tearing them apart, you can work out whether they are complete rubbish or complete and utter rubbish or contain a germ of common sense and a direction. To take the example of the report which Her Majesty’s Inspectorate produced only three days after Second Reading of this Bill, what Zoë Billingham produced is a fairly coruscating read. If your Lordships have not read it, I recommend it, but probably not just before bedtime. It takes apart at all these strategies and initiatives, all the money that has been thrown in all sorts of directions in considerable sums over many years, and measures how effective all that effort has been. The report says in very stark terms—Zoë Billingham repeated this on “Woman’s Hour” a few days later in even clearer English—that it is simply not working because it is not joined up. Having a series of local strategies does not result in a national strategy that will deliver.
This probing amendment is designed to ask Her Majesty’s Government to look at the past, the present and the evidence of what has not been achieved, rather than the precious little that has, and not to repeat the mistakes of the past, with wonderful vague promises and aspirations—particularly when we are dealing with issues such as violence against women and girls and the effect on children, when we know we owe it to them to do better. We need proper oversight. There is a difference between a report and a strategy. We need a mechanism that measures and holds the Government and all the different statutory bodies involved to account. That is what the amendment is about, and I look forward to hearing the Minister’s reply.
Baroness Chakrabarti (Lab)
My Lords, I have surprised myself, because I did not intend to speak on this group, but I find myself needing to speak in support of the noble Baroness, Lady Newlove. Generally speaking, I am not a great fan of machinery of government changes, new quangos or even of new, multiple statutory duties, but if we are taking the trouble to legislate on something as serious as serious violence, we need to think about transparency, accountability, enforcement and resourcing. Talk is cheap, and legislation is a little more expensive—but the colleagues in that Box do not get paid so much. These principles have been the undercurrent of the debate on this group.
The noble Lord, Lord Blencathra, spoke eloquently on the part of the Delegated Powers Committee, and I did not disagree with a word, save to say that I was once a lawyer in the department advising him, and we are not going to blame the officials. My recollection was that Home Office lawyers were actually terrified of the Delegated Powers Committee; it was sometimes Ministers who were a little more blasé. However, every substantive point the noble Lord made was important. There is no point having guidance if it is not to be published—unless it is guidance to the security agencies. More generally, the noble Baroness, Lady Newlove, nailed it, as did my noble friend Lord Coaker. We all care about these issues. I worked on the Crime and Disorder Act when it was a Bill all those years ago, but we have heard the figures.
If it is worth legislating in this area at all, it is worth looking at how the legislation is to be enforced and resourced. That cannot be done in secret and we cannot just have directions from central government to starving local authorities; it must be public, it must be accountable, so I speak in support.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, I thank all noble Lords who have set out the case for the various amendments in this group. The noble Lord, Lord Coaker, pointed out that certain crimes are up, and he is absolutely right. He asked, rightly, how these strategies will be different. They will work only if they can measurably show something at the end. The noble Lord, Lord Russell of Liverpool, gave us some of the solutions: first, agencies working together in a multiagency approach, as the noble Baroness, Lady Newlove, says. Sharing data trends is one of the suggestions in the draft guidance: sharing those trends, where the hotspots are and where agencies can have a better focus on the needs of certain areas. Local needs assessment is going to be crucial, but the monitoring and reviewing against those three measures that the noble Lord, Lord Coaker, and, indeed, the Government set out will be the ultimate measure of success or otherwise. He is right to point out that successive Governments have had successive strategies to try to deal with these things—that is because it is just not that easy. If it were, someone would have worked it out by now. I think that is at the heart of what we are talking about this evening.
Lord Paddick (LD)
My Lords, I thank all noble Lords who have contributed to this debate, particularly my noble friend Lady Brinton for her support for my Amendment 28 and the noble Lord, Lord Blencathra, and my noble friend Lord Beith for powerfully explaining their amendments calling for the publication of strategies, despite my noble friend’s scepticism about having statutory strategies.
Other parts of the Delegated Powers Committee’s report criticise the fact that there is no indication that guidance issued to the Government will be published. There is also no requirement in the Bill to publish the serious violence reduction strategies; that is the main criticism in this group, as that clearly cannot be right.
The noble Lord, Lord Brooke of Alverthorpe, talked about drug-related homicides; I was not sure whether he was talking just about drug-fuelled perpetrators or other deaths associated with drug misuse. The noble Lord, Lord Coaker, graphically illustrated the alarming increases in serious violence, particularly knife crime—there has been an 88% increase in recent years. He asked a very important question: how will this part of the Bill, and the strategies associated with it, succeed where previous strategies have failed? I am not sure we have heard the answer to that.
I agree with the noble Baroness, Lady Newlove, that we need to do whatever it takes to make sure that we succeed this time, because we have not succeeded up until now—provided that whatever that is, is effective. Clearly, there is a need for national co-ordination, for the very good reasons she explained.
The noble Lord, Lord Russell of Liverpool, highlighted the need for smart objectives in strategies—specific, measurable, achievable and realistic objectives which have a timeframe. That is what effective strategies contain, and they do not appear to be present in the Bill. I thank the Minister for her comprehensive answers to the issues raised. She appeared to agree with the noble Lord, Lord Russell of Liverpool, but it is not simply about sharing trends and monitoring; crucially, it is about setting smart objectives.
The Minister talked about clinical commissioning groups and local health boards; I have been told by my noble friend Lady Brinton, our health spokesperson, that these bodies do not include NHS hospital trusts, which at least should be included as bodies that must be consulted in developing these strategies. Accident and emergency hospital data is even mentioned in the guidance referred to by the noble Lord, Lord Coaker, as a crucial measure of serious violence, yet accident and emergency hospitals are not even required to be consulted, according to the Bill. So we need to have further discussions on these issues.
Baroness Meacher
“(13) A specified authority is not subject to a duty in subsections (1) to (3) if or to the extent that compliance with the duty—(a) would be incompatible with any other duty of the authority imposed by an enactment, or(b) would otherwise have an adverse effect on the exercise of the authority’s functions.(14) In determining whether subsection (12) applies to an authority, the cumulative effect of complying with duties under this section must be taken into account.”Member’s explanatory statement
This ensures that public bodies are only obligated to comply with the serious violence duty to the extent it does not conflict with their other statutory duties.
Baroness Meacher (CB)
My Lords, I am sorry; I have a bit of asthma having had Covid last December, so I am not wearing a mask, and I have cut my speech somewhat. I hope I get through it.
I give notice of my intention to oppose the Questions that Clauses 9, 15 and 16 stand part of the Bill. The noble Lords, Lord Paddick and Lord Moylan, will respond to Amendment 65, and I very much agree with their concerns.
Amendments 34 and 60 would ensure that public authorities were obliged to comply with the serious violence duty to co-operate only to the extent that such co-operation did not conflict with their other statutory duties. Of course I wholeheartedly support helpful co-operation between statutory authorities, but not at the expense of the public services that we treasure so much. The work of doctors, teachers and other public servants relies considerably on the trust of their patients, students and others. If it became known, as it would do, that these public servants were working with the police and possibly divulging information to the police about them, it would have catastrophic consequences for those public services. I am sure that the noble Lords, Lord Paddick and Lord Moylan, and others will elaborate on this concern, but will the Minister do all she can to ensure that the Government table amendments to deal with these concerns about these demands on our public servants?
Clause 14 focuses on collaboration between educational, prison and youth custody authorities to prevent and reduce serious violence in an area. Of course, the aim is admirable. However, the three clauses, Clauses 9, 15 and 16, introduce the authorisation of disclosure of information by staff within the authorities listed in Clause 9(3). That list includes the prospect of the Secretary of State authorising disclosure not only by the named authorities—the local policing authority, educational authority, prison authority and youth custody authority—but, under subsection (3)(a), any other specified authority. This could, therefore, include doctors and other staff in a health authority, or staff from any other authority. Perhaps the Minister can explain what the Government have in mind.
It is helpful to consider these three clauses together, because they all relate to disclosure and all raise very concerning issues about the potential for regulations under this Act to take precedence over confidentiality obligations or even the Data Protection Act. Clause 9(4) says that a disclosure of information authorised by this section
“does not breach … any obligation of confidence owed by the person making the disclosure, or … any other restriction on the disclosure of information (however imposed).”
In my view, those words, setting aside these protections, are really concerning. Admittedly that is in order to achieve an important objective—reducing violent crime—but nevertheless it is unacceptable to do this.
Clause 9(5) suggests that the regulations should not contravene the data protection legislation. Fine, but the next phrase, in brackets, seems to undermine that commitment, which surely is important and should not be undermined:
“(but in determining whether a disclosure would do so”—
that is, contravene the data protection legislation—
“any power conferred by the regulations”
to the Bill
“is to be taken into account)”.
This provision reduces existing safeguards and protections. Clauses 15 and 16 use almost identical language to Clause 9, but Clause 16 focuses on the supply of information to local policing bodies. That would appear to be covered by Clause 15. This is not a matter of concern to me but it seems somehow extraordinarily shoddy to have a completely unnecessary clause in a Bill—unless the Minister can explain why it is there.
It would be most helpful if the Minister could clarify whether Clauses 9, 15 and 16 in fact provide for the regulations to the Bill to override or weaken the power of the data protection legislation and other confidentiality obligations of statutory authorities. If they do, the implications for trust in public services are devastating. The duty gives the police the power to require information from the named and unnamed statutory authorities, and mandates widespread data sharing without proper safeguards.
I want to focus for a minute on the fact that these clauses put on a statutory footing many of the failings identified by the Information Commissioner’s Office and MOPAC of the Met Police’s gangs matrix. The stated aim of the matrix was to enable the Met to identify and keep track of people involved in gangs—a laudable aim indeed. However, data sharing between the police and other agencies without safeguards meant that a stigmatising red flag followed people in their interactions not only with the police but with other service providers, including housing, education and jobcentres.
Some 78% of the people on the matrix were black, despite black people being responsible for just 27% of serious youth crime. Are we going to see a similar result across the country as a result of these clauses? Perhaps the Minister can explain. Some 75% of the people on the matrix had been victims of violence themselves but were still subject to enforcement-led interventions. The lifestyle consequences for people on the matrix, 40% of whom were not suspected of any violence, were appalling. People lost college places; others were threatened with eviction or, for example, were forced to report to the police in London despite having started a course at Cambridge University.
Can the Minister respond to the very real anxieties that the Bill, particularly Clauses 9, 15 and 16, will be counterproductive and lead to serious injustices, as was seen in the Metropolitan Police? Far from preventing serious violence, the risk is that these provisions will make it very difficult for young people to escape a life of drugs and crime and to turn to education and work as the way forward. No doubt the Minister is aware that the Met Police’s gangs matrix remains under review after the Information Commissioner’s Office ordered the force to rectify its breaches of data protection laws. The clauses seem to make lawful across the country the very same problems that the Met was criticised for and which caused such harms.
The clauses risk undermining trust in our local public services, thus undermining all the good work done by our committed doctors, teachers, youth workers and others, as well as trapping young people in a life of crime. I look forward to the Minister’s response.
Baroness Brinton (LD) [V]
My Lords, the noble Baroness, Lady Meacher, was absolutely right to introduce this group of amendments by focusing on the full range of public services that will be drawn into the demands by this Government, and by police and other bodies, to have access to the personal information of individuals. As she rightly pointed out, this includes health services. Although I will not repeat the point that I made on the group starting with Amendment 22 earlier today, it sets the picture for the overall complexities and contradictions that other noble Lords have been discussing all evening on this Bill.
The data protection guardian has said that there are concerns that these likely breaches contravene the Data Protection Act. As I mentioned earlier, so have the GMC, the BMA and other health bodies. It is extremely concerning that we now must think about confidentiality in other areas too. I have no doubt at all that there are times when the balance of when information should be passed back is vital. That is what the serious violence strategy is all about. The problem is that there are no safeguards set out and no clear boundaries. I do not understand why that is the case.
While we have been talking about bodies and specific authorities during the course of these amendments, I am equally concerned about whether this debate is happening for the wider public, to tell them that in this Bill their personal data may well not be kept confidential. We do not even have the guidance on the point at which the police will start to get that information. So can the Minister identify any such consultation or debate in the wider media and social media about these rules, which will change citizens’ private data confidentiality for ever? I also echo the point made by the noble Baroness, Lady Meacher, about this undermining trust in the bodies that have the data.
Amendment 65 makes the wider point that I referred to at length in the first group of amendments about the use of depersonalised information, but it sets out some guidelines and I strongly support this amendment too.
In closing, I say that the worry that many noble Lords have spoken of in various groups this evening is now becoming abundantly clear; it is just not clear where the rules and boundaries are, and I hope that the Minister will be able to help the House in this area.
Lord Paddick (LD)
My Lords, I have Amendments 35, 45, and 47 in this group. This is a very large group of amendments covering a range of issues and I apologise in advance for the length of my comments.
Noble Lords will forgive me for sounding like a broken record, but I go back again to the Government response to the consultation on the new legal duty to support a multiagency approach to preventing and tackling serious violence, which supports my own consultation with relevant stakeholders, which revealed universal concern that the Bill as drafted actually facilitates a police-led enforcement approach and not a genuine public health approach—a genuine multiagency approach to these issues.
The Government set out three proposals in that consultation: the one in the Bill, a new duty through legislation to revise community safety partnerships, and a voluntary approach. More responses were in favour of revising crime and disorder partnerships than the Government’s preferred approach set out in this Bill. Can the Minister tell the Committee what the purpose of the consultation was if the Government had already made up their mind?
The revising of crime and disorder partnerships was supported by 40% of respondents, including half of all police responses, compared with 37% in favour of the approach in the Bill. It is not too late to accept the result of the consultation and to revise crime and disorder partnerships. Amendment 35 is a probing amendment giving an example of how this might be done: for example, by adding authorities to existing crime and disorder partnerships.
Amendment 45 raises the concern that sensitive personal information, which this Bill forces public authorities and even doctors and counsellors to disclose, may be disclosed to private sector or third sector organisations that the Home Office, police forces or others may subcontract work to, to tackle or prevent serious violence, whose data security and personnel vetting procedures may not be as good as that of public sector organisations, and that this may result in sensitive personal information leaking into the public domain.
What assurances can the Government provide that such data, if public authorities are forced to share it, will be kept confidential? Cybercrime experts tell us that no database is secure and that data holders need to work on the basis that their security will be breached and that they need to have back-up plans. The more sensitive personal information about individuals is shared, the greater the risk that confidential information will end up in unauthorised hands, potentially used for illegal purposes such as blackmail, and ultimately end up in the public domain. Amendment 47 removes any requirement to disclose information that would breach an obligation of confidentiality.
Lord Moylan (Con)
My Lords, I lend my support to Amendments 34, 60 and 65 in the name of the noble Baroness, Lady Meacher, to which I have added my name. I do so particularly in regard to the Bill’s effects on local authorities, having 28 years’ experience of having served on one.
Local authority officers, especially those working in social services, are the most collaborative people possible—they have multiagency working written into their DNA—but within proper professional limits, especially concerning the guardianship of personal information. Their focus is always first and foremost, properly, on the welfare of their client—in the case of serious violence, often young people living in the twilight zone between potential offender and, at the same time, potential victim. Of course, the risk in these provisions is that the disclosure of information provisions in Clause 15 changes the relationship between social worker and client so as to drive the latter away from services that could in fact divert them from serious violence.
What I do not fully understand and has not been made explicit is whether Clause 15 alters or expands the existing legal and professional constraints that social workers operate under in relation to the release of information to the police. If it does not, what is the point of it? If it does, will my noble friend say in what way and to what extent it does so, and what the rationale is? It may be that my noble friend can satisfy my concerns about this, but in the meantime the amendments proposed by the noble Baroness, Lady Meacher, particularly Amendment 65 requiring depersonalisation of data, go some way to address those concerns, and I support them.
Baroness Hamwee (LD)
My Lords, this group enables me to raise a concern that will not be new to the Committee or to the Minister but has not been resolved as a general issue and is possible as the Bill is drafted. It is the reluctance of immigrant women—it is usually women—suffering domestic abuse to go to the police for help because they fear that information will be shared with immigration authorities.
Last week, the Domestic Abuse Commissioner published a report entitled Safety Before Status, and one of her recommendations is that
“the Home Office should introduce a firewall between police and immigration enforcement, accompanied by safe reporting mechanisms”
I cannot resist saying that it continues
“and funded referral pathways to support.”
Perpetrators can use a victim’s insecure status as a component of coercive control. They can use status that is not insecure, but the victim is led to believe that it is. If victims are to come first, it is essential that they know that they can seek support without putting themselves in danger of deportation. I was going to ask noble Lords to imagine what this means, but I am not sure any of us can: not only the financial and accommodation implications considerations but, in some communities, shame and abandonment by the family in the country of origin. There are a number of very difficult consequences—that is putting it too mildly.
The commissioner’s report says:
“Immigration abuse and insecure immigration status as a risk factor is not always identified in local safeguarding protocols, and often the risk faced by victims … is misidentified.”
She goes on:
“Information sharing with immigration enforcement undermines trust in the police and public services”—
a point that has been made this evening—
“and enables perpetrators to control and abuse survivors with impunity. A key reason why staff in public services share information with immigration enforcement is for the perceived purpose of safeguarding a victim. Data sharing in this capacity, however, can put the victim or survivor at risk … and, even where enforcement action does not take place can compound the experience of immigration abuse, pushing victims and survivors further away from support.”
I could not let this group go by without raising that issue.
Baroness Chakrabarti (Lab)
My Lords, I will briefly but wholeheartedly support the thrust of all the amendments in the group. The noble Lord, Lord Paddick, as a former policeman, put it very well: if everyone tries to be the policeman society is the poorer, but effective policing is also harder to achieve. To crystallise it, let us say that the noble Lord, Lord Paddick, is the policeman and I am the teacher or youth worker. If I am under any kind of duty, or perceived to be, to hand over my notes on an automatic basis or on demand to him, there is a significant problem not just for education and youth work but for trust and confidence in civil society, and indeed for my ability to go to the noble Lord when I have a specific overriding concern about an individual young person or student.
I understand where this comes from—it comes with the best intentions, because Governments of all persuasions have gone increasingly down this road of big data for many decades. It is not a party-political point, because when you are in government you are told, quite rightly, that central government is indivisible and that there is one Secretary of State. That is a very important central government constitutional principle, yet even central government is supposed to hold data for specific purposes.
There is an obvious attraction to creating a purpose that overrides all others on a wholesale basis, especially when it is something as important as combating serious violence. However, if it trumps not just other government purposes, such as tax collection or healthcare, but begins to trump local and professional confidential duties, we are really in trouble. As I said, with the best of intentions, this will undermine trust and confidence in a number of vital services and will, I believe, undermine the role of the police. When you are looking for a needle in a haystack, do not keep building an ever greater haystack.
Lord Rosser (Lab)
My Lords, I will be relatively brief, for two reasons. The first is the time. The second is that many of these issues were raised in our earlier debate on medical confidentiality.
The amendments in my name in this group would remove provisions in a number of clauses in this chapter of the Bill, allowing for obligations of confidence and restrictions on the disclosure of data to be breached. They target the same provisions that have already been raised by noble Lords in this debate. At this stage, the intention of my amendments is to probe the intended effect of these powers.
As we have heard, the Bill provides:
“The Secretary of State may by regulations authorise the disclosure of information”
between authorities involved in the serious violence duty. Clause 9(4) provides that those regulations
“may provide that a disclosure under the regulations does not breach … any obligation of confidence owed by the person making the disclosure, or … any other restriction on the disclosure of information”.
Subsection (5) goes on to qualify this somewhat, stating that the regulations must
“not authorise a disclosure of information that … would contravene the data protection legislation”.
However, it then provides that,
“in determining whether a disclosure would do so, any power conferred by the regulations is to be taken into account”.
What restrictions do the Government envisage being breached under the provision for “any other restriction” in Clause 9? What restrictions do they mean? Do these provisions differ from what is in place for existing duties that require joined-up working? The Bill states that the one restriction the regulations are not intended to breach is data protection legislation but, as I have said, it then seems to suggest that this will be qualified by the powers under the Bill. Can the Government expand on that in their response? In what way should
“any power conferred by the regulations”
be taken into account? Can the Minister give some examples?
The sharing of information and the prevention of silo working are, as has been said, vital for tackling crime and for safeguarding purposes. We have heard in previous groups, not least from my noble friend Lady Blake of Leeds on housing provision, what can happen when services are not able to work together to put necessary or urgent support in place. However, the wording in the Bill has given rise to considerable concern in organisations working on these issues, as has been said already. I will not repeat the points already raised but will touch briefly on a few issues before I conclude.
First, one of the key concerns that has been raised by organisations, and which was raised again during the debate this evening, is the erosion of trust that is risked if people feel that private information about them may be passed on in unexpected ways. In particular, there is a risk of young people feeling they cannot build the relationships of trust with social workers, teachers or service providers which are absolutely irreplaceable for preventing violence and keeping those young people safe. Do the Government recognise that risk that breaches of trust risk make it harder to achieve the aim of reducing violence? Who makes the decision about when it is or is not in a young person’s best interest that information is shared, an issue which my noble friend Lady Chakrabarti raised in an earlier debate?
Secondly, later in the Bill, we will spend time debating provisions to protect the privacy of victims of crime. This section explicitly defines
“becoming involved in serious violence”
as including victims of crime. How will these data-sharing provisions impact the victim of crime?
Finally, the Mayor’s Office for Policing and Crime and the Information Commissioner’s Office have both reported significant problems with the Met’s gangs violence matrix, an existing tool to identify and risk assess individuals involved with gangs. The key issues included the disproportionate inclusion of young black males on the matrix, and data protection, including serious data breaches. What proactive learning has been undertaken from the experience of the gangs violence matrix to prevent the same problems arising again under the provisions of this Bill?
I said I would be brief; I hope I have achieved that. Like other noble Lords, I look forward to the Minister’s reply.
Baroness Williams of Trafford (Con)
I thank the noble Lord for his brevity and thank the noble Baroness, Lady Meacher, and other noble Lords for setting out the case for these amendments. The noble Baroness put forward Amendments 34 and 60 which seek to avoid possible conflicts with competing duties. As the noble Lord, Lord Rosser, said, the arguments put forward in this debate are very similar to those discussed in relation to earlier amendments.
To engender an effective multiagency approach to preventing and reducing serious violence, we need all the relevant parts of the system taking equal responsibility and playing their part. The specified authorities for the serious violence duty, being the police, local authorities, probation, youth offending teams and fire and rescue authorities, clinical commissioning groups in England and local health boards in Wales, have been intentionally chosen because of the direct link between the work they already do and the need to prevent and reduce serious violence. Therefore, I do not feel it is necessary or correct to provide such authorities with the opportunity to be exempted from the serious violence duty, as we expect that it would complement the existing duties of such authorities rather than conflict with them.
I understand that there are wider concerns that this duty may breach other duties of the specified authorities, such as duties of confidence, the point most frequently mentioned, and I will come to address those shortly. However, I think that Amendment 34 would unhelpfully weaken the impact of the serious violence duty.
Similarly, in relation to Amendment 60 to Clause 14, we have intentionally required the initial collaboration between specified authorities and education, prison and youth custody authorities as part of the preparation of the local strategy in order to ascertain whether any such institution ought to be involved in the implementation of the strategy or, indeed, need not be involved, as the case may be. This is a crucial step in ensuring that the institutions which are affected by serious violence will be drawn into the work of the local partnership without placing unnecessary burdens on those which may not. Therefore, I do not think that such authorities should be able to opt out of this consultation, given that it would ultimately be in their interests to engage with the specified authorities at this stage in order to ascertain whether their future engagement in the strategy’s implementation will be required.
I understand Amendment 35 in the name of the noble Lord, Lord Paddick, to be a probing amendment about the relationship between the serious violence duty and the work of crime and disorder partnerships. I agree that crime and disorder reduction partnerships can and do play a vital role in ensuring community safety and reducing violent crime locally, but I do not think that they are or should be the only partnership model responsible for doing so. Again, the draft guidance makes it very clear in that context. The geographical reach of such partnerships might mean that they are not the optimum partnership model in all areas, which is why we have intentionally built in flexibility to allow local areas to choose the most appropriate multiagency structure to deliver this duty. However, I recognise that they have a key contribution to make to local efforts. That is why, in addition to creating a new duty, we will be amending the Crime and Disorder Act 1998 to include a requirement for crime and disorder reduction partnerships to have in place a strategy for preventing and reducing serious violence. Such a strategy would in any case meet the requirements of the serious violence duty if all relevant partners specified in the Bill are involved in its development and implementation.
The other amendments in this group bring us back to information-sharing. It might assist the Committee if I recap why we have included provision for the disclosures of information. The serious violence duty proposes to permit authorities to share data, intelligence and knowledge in order to generate an evidence-based analysis of the problem in their local areas. In combining relevant data sets, the specified authorities, local policing bodies and educational, prison and youth custody authorities within an area will be able to create a shared evidence base, upon which they can develop an effective and targeted strategic response with bespoke local solutions. Each of the authorities specified in the legislation has a crucial role to play, and it is vital that authorities are able to share their data to determine what is causing serious violence in their local areas. For example, information-sharing can contribute to local efforts by allowing authorities to identify patterns and trends, geographical hotspots and the most vulnerable victims. This data should be regularly reviewed by authorities to determine the effectiveness of the interventions they put in place at a local level.
I shall explain what we mean by information-sharing in this context. The noble Lord, Lord Rosser, asked a pertinent question. Clause 15 will create a new information-sharing gateway for specified authorities, local policing bodies and education, prison and youth custody authorities to disclose information to each other for the purposes of reducing and preventing serious violence. I must be clear that this clause will permit, but not mandate, authorities to disclose information to each other. It simply ensures that there is a legislative basis in place to enable information to be shared between all authorities exercising functions under Chapter 1 of Part 2. However, the clause ensures that any disclosures must be made in compliance with data protection legislation and cannot be made if certain prohibitions on disclosure set out in the Investigatory Powers Act 2016 apply.
The noble Lord, Lord Rosser, asked for examples of data types that may be shared by partners. To be fair, he asked me that under a previous group as well and I completely forgot to answer him, so I hope to combine the two answers in one at this point. Examples include hospital data on knife injuries, the number of exclusions and truancies in local schools, police recorded crime, local crime data, emergency call data, anonymised prison data, areas of high social services interventions, and intelligence on threats such as county lines, including the activity of serious organised crime gangs in drugs markets. I hope the noble Lord finds that information helpful.
Baroness Hamwee (LD)
My Lords, of course I would be glad to be updated, but I think that the Minister will recognise that, as the Bill stands, the position I spelled out would be possible: information could be shared with immigration authorities—and, of course, the Data Protection Act has an exemption in that regard.
Lord Paddick (LD)
I thank the noble Baroness for her explanation. I did not quite understand when she seemed to suggest that this was all facilitation and to enable different authorities to share information—and that there was no compulsion to do so. Could she therefore explain Clause 17, where it says that,
“if the Secretary of State is satisfied that … a specified authority has failed to discharge a duty imposed on it by section 7, 13(6), 14(3) or 16(4), or … an educational authority, prison authority or youth custody authority has failed to discharge a duty imposed on it by section 14(3), (4) or (5)(b) or 16(4)”,
then
“The Secretary of State may give directions to the authority for the purpose of securing compliance with the duty”
and can enforce that requirement by a mandatory order? In what way is that voluntarily facilitating the exchange of information? Clause 17 is all about the Secretary of State forcing authorities to share information.
Baroness Williams of Trafford (Con)
My Lords, the hour is late. Might the noble Lord permit me to discuss, perhaps in the next few days, the seeming contradiction between those two things?
Baroness Meacher (CB)
My Lords, as the Minister says, the hour is indeed late. I thank the noble Lords, Lord Paddick and Lord Moylan, in particular for their support, and other noble Lords for their speeches. I was going to make a rather similar point to the noble Lord, Lord Paddick, because the Minister made this provision sound very amenable and voluntary—“Don’t worry about it. There is no problem with trust. It is all just about general information.” That is not my reading of these clauses at all.
The noble Lord, Lord Paddick, made one issue very clear, but there are actually various bits of these clauses that build that general picture of anything but voluntary disclosure. There is a lot about modifying data protection and so on.
I hope that, one way or another, we can have a discussion with the Minister before Report because, otherwise, I fear that we will have to bring these amendments, or something like them, back. We would much prefer to sort this out, if we possibly can. With that, I beg leave to withdraw the amendment.
Police, Crime, Sentencing and Courts Bill
Wednesday 27th October 2021
(2 years, 6 months ago)
Lords ChamberRead Full debate Police, Crime, Sentencing and Courts Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 40-III(b) Amendments for Committee (supplementary to the Third Marshalled List) - (27 Oct 2021)
Baroness Bertin
Member’s explanatory statement
This amendment would clarify on the face of the legislation that the definition of serious violence, for the purpose of the proposed Serious Violence Prevention Duty, includes domestic abuse, domestic homicide and sexual offences.
Baroness Bertin (Con)
I apologise for being a bit quick off the mark earlier.
Amendment 55 would clarify in the legislation that the definition of serious violence, for the purpose of the serious violence prevention duty, would include
“domestic abuse, domestic homicides and sexual offences”.
While it is right to acknowledge the many male victims of domestic abuse and sexual violence—and this amendment would serve them also—the change we seek today is about stamping out a culture where violence against women and girls has been tolerated for too long. Zoë Billingham, the excellent outgoing inspector for Her Majesty’s Constabulary, described the level of violent and abusive offending against women and girls in this country as an “epidemic”. She is right: 1.6 million female victims of domestic abuse; 892,000 female victims of stalking; 618,000 female victims of sexual assault; 55,000 rapes, with less than a 2% charge rate; and, finally, 110 women murdered last year. Some names we know, but many more we do not. This grim tally should mark a watershed in our attitudes, and I heap praise on the domestic abuse commissioner and her team for their leadership in this regard.
I also thank my cosignatories—the noble Lords, Lord Polak, Lord Rosser and Lord Russell of Liverpool. This amendment is truly cross-party, as it should be. The strength of feeling on this issue bridges the political divide and, for once, I am absolutely delighted by the gender imbalance in this line-up of names. While of course it is men’s behaviour that is the problem, we must be careful not to pitch this as men versus women. This is about violent men versus the whole of society, but we need men—all men and all society—to engage in this and be part of the conversation and the solution.
The main justification for excluding sexual offences and domestic abuse from the Bill has been its focus on localism and flexibility, allowing local leaders to fit the strategy to local crime profiles. That is of course entirely reasonable when talking about gun and gang crime and such issues, where there are clear geographical hot spots, but this simply is not the case with domestic abuse and sexual offences; these crimes are happening everywhere. To my mind, localism is about where we put new housing estates and schools. It should never be about allowing individual areas to opt out of prioritising domestic abuse and sexual violence. This is the wrong issue on which to devolve decision-making, but it is already happening, which is why this amendment is more crucial and urgent than ever.
Of the 18 violence reduction units that have already been set up, only eight have included domestic abuse and sexual violence in their plans. Indeed, the Government’s own serious violence strategy makes no meaningful reference to sexual violence and domestic abuse, which is a problem, as often local boards refer back to it when making their policies. I am keen to stress that this amendment would not restrict flexibility at a granular level; of course a strategic needs assessment would still be carried out and specific interventions would differ from area to area.
I also say, on the record, that I absolutely do not doubt the Government’s commitment on this issue. I know they listen and I know they care. They listened to people on the front line a great deal during the passage of the Domestic Abuse Act, and look at the changes that have come in: the rough sex defence has been ended; revenge porn, coercive control and economic abuse offences have been extended; and upskirting is now a crime. Very importantly, they have extended the period of time in which you can put forward an assault charge based on domestic abuse; that was crucial. I will not list them all, as the list is long, but it is important to acknowledge that the Government have done a good deal. I hope they continue in that vein.
I strongly believe that explicitly including these offences in the duty would maximise the potential for a multiagency, public health preventive approach. We have talked about this a great deal in the House, and we all know that this is the only way to see real change on such a deep-seated societal issue. If we do not take this approach, we will be making these speeches again and again, for many years to come.
Lord Carlile of Berriew (CB)
I am grateful to the noble Baroness. Does she agree that the passing of her amendment, or something like it, would send out a clear message to the Crown Prosecution Service that its policy change-based failure to prosecute significant numbers of rape offences and other serious sexual offences should be reviewed as soon as possible?
Baroness Bertin (Con)
I thank the noble Lord for his intervention and absolutely agree. Of course, it would not solve the entire issue, but it would set us on the right path in sending that signal to the CPS, as well as to the police.
The multiagency, public health preventive approach is so important. Education plans, health plans and a more standardised perpetrator scheme would all be part of what this change could look like. It is important to note that the HMIC report that the Home Secretary commissioned warned that this duty, as it stands, would not go far enough in that regard.
The noble Lord, Lord Polak, mentioned in his speech at Second Reading that we need to make sure that such landmark legislation, the Domestic Abuse Act and this Bill, does not stand in isolation. We need to sustain the momentum of this ambition. Let us once and for all try to buck the trend of silo policy-making and bring together this work in a meaningful way.
As others have discussed in previous debates, it is right that the burden should not fall entirely on the police. I think we spoke about “broadening the base”, and that is why it is crucial that we get this duty right. Nevertheless, the specific policing response and the CPS response deserve a lot of attention. One-third of all violence reported to the police is domestic abuse related. This is not a small slice of their work. While their response to this crime has certainly improved over the past decade, and there are pockets of excellence and dedication, which we must acknowledge, there are still inconsistencies at every level in how the police respond to victims of domestic abuse and sexual offences, and shocking variations in how frequently—perhaps infrequently would be more appropriate—different forces use the protective powers available to them. I am sure that the noble Baroness, Lady Brinton, will speak at length on stalking; some forces around the country seem entirely unaware that stalking protection orders are available to them, and this has to change.
Another statistic that shocks me is that three-quarters of all domestic abuse cases are stamped with “no further action”. We know from the rape review that was launched this year, and as the noble Lord, Lord Carlile, has pointed out, that that happens with so many incidents of sexual offences. It cannot continue. The lottery of standards among the 43 police forces in this country, and within individual forces, means it very often boils down to who picks up the phone or who responds to the call as to how victims are dealt with.
I will make one further point before I finish. As with other high-harm crimes, such as terrorism and organised crime, I believe strongly that violence against women and girls should be marked with a clearer focus, better funding, minimum standards and far more national co-ordination. This amendment is only part of the answer—of course it is—but it could be instrumental in starting that journey to greater consistency. Small actions taken together can make a big difference. While this amendment is relatively simple, its effects could ripple out.
Finally, you do not wake up one morning and become a murderer or a rapist; you work up to it. The horrific chain of events leading to Sarah Everard’s terrible murder laid this bare in the starkest of terms. We have to act to do all we can to stop this kind of behaviour in its tracks before it escalates and takes lives. There is an opportunity in this Bill, and we must take it.
Baroness Brinton (LD) [V]
My Lords, before I speak to my Amendment 56, I will start by saying that I completely agree with everything that the noble Baroness, Lady Bertin, has just said. Amendment 56 adds to Amendment 55’s
“domestic abuse, domestic homicides and sexual offences”
the words “and stalking”, to be added to the definition of the serious violence prevention duty. As the noble Baroness identified, this is a keen interest of mine. I also support the noble Lord, Lord Carlile, pushing for a charging review for this range of crimes. Too often, they are either ignored or charged at a much lower crime rate.
The Minister will remember that, during the passage of the then Domestic Abuse Bill, many hours were spent looking at the typical progression of violence in obsessed perpetrators. Some of us asked the Ministers to look at the reverse structure of someone who had committed a crime of serious violence. All too often, the elements of behaviour were there from early on in their fixated behaviour. I understand that that is why the noble Baroness, Lady Bertin, and others have laid their amendment to ensure that this trajectory of behaviour starts to be monitored early; and it also recognises when domestic violence accelerates very quickly. Adding
“domestic abuse, domestic homicides and sexual offences”
is absolutely vital.
But I regret that stalking was not on the list in her amendment, and I will focus briefly on that. First, victims of stalking say that they often do not go to the police until around the 10th worrying event has happened. Shamefully, it often takes many more before stalking is taken seriously by the police. But many perpetrators of stalking, as I have said, progress in their fixated behaviour, and serious violence and homicide are too often evident.
The noble Baroness, Lady Bertin, referred to stalking protection orders. I was pleased when they were implemented, but they are far too sparingly used, and some victims are told, “That’s all you need. It’ll be fine now”. Yet injunctions still have to be taken out and cautions still have to be issued, and, all the while, their stalker’s behaviour is becoming worse and worse.
According to Dr Jane Monckton-Smith, stalking sits at point 5 of the eight points on the homicide timeline, due to the fact that risk to the victim escalates at the point of leaving an abusive relationship. Monckton-Smith’s 2017 study of 358 homicides, all of which involved a female victim and a male perpetrator, revealed stalking behaviour as an antecedent to femicide in 94% of the cases. These figures demonstrate how vital it is to work on prevention for stalking cases.
There is a misconception that stalking is almost exclusively perpetrated by people on former partners and, therefore, probably covered by domestic abuse. This is untrue. The real figure is closer to 50%. Too many victims of non-partner or former-partner perpetrators of stalking report that, the first time that they talk to the police, they are told that they are overreacting, and some, especially young women, are even told that they should be grateful for the attention.
So stalking victims are too often ignored, and that is worrying. There is no other word for it than “ignored”—I know. The man who stalked me and other colleagues—he stalked men, too—over a three-year period grew progressively more fixated. Among other very unpleasant acts, such as abusive anonymous letters and telephone calls, his violence was initially against property—breaking windows, pulling down signs and scratching cars—but, each time, it was a bit stronger, more aggressive and more distressing. It took well over a year and 130 incidents before the police started taking it seriously. But their attitude changed completely when, night after night, he started using a very large knife to slash tyres. Their forensic psychologist warned that they expected that he would start using that knife on his targets next. We all knew who the perpetrator was, and, finally, we saw that the police started to move. He was then arrested quickly, and he pleaded guilty.
More recently, in June this year, Gracie Spinks, who, like many stalking victims, was let down by police because they did not take any of the early reports and link them together, was murdered at the riding stables she worked at by a former colleague from a previous job. She had reported her concerns to police four months earlier. He had turned up unannounced at the stables. Separately, a bag containing knives, an axe, a hammer and a note saying “Don’t lie” was discovered very close to the stables six weeks before Gracie’s murder. That breadcrumb trail was all there, and it was typical of a serious stalker, too—the perpetrator profile is well known. Gracie’s father, Richard, has said that if only the police had connected the incidents, his daughter would not have died.
Neither Gracie’s nor my case would have been covered by Amendment 55. Stalking needs to be added to this section on the serious violence protection duty just as much as domestic abuse, domestic homicides and sexual offences.
Lord Polak (Con)
My Lords, I am very pleased to add my name to Amendment 55 and pay tribute to my noble friend Lady Bertin for her leadership on these matters. I was also pleased to have worked with my noble friend, together with the noble Lords, Lord Rosser and Lord Russell of Liverpool, during the passage of the Domestic Abuse Bill.
The amendment in our names is an extension of our previous work. I shall not repeat and rehearse the reasons why it is important that the definition of serious violence for the purpose of the proposed serious violence prevention duty must include domestic abuse, domestic homicides and sexual offences. For me, it is straightforward, and I make a simple appeal to my noble friend the Minister, who was so instrumental in piloting the Domestic Abuse Bill through Parliament with such professionalism, dedication and patience. There is an opportunity to cement and build on that historic and vital legislation, to build on what was achieved, so that it can be possible for the serious violence strategy to recognise domestic abuse and sexual violence. Can it be possible for a serious violence strategy not to recognise them as forms of serious violence? It would be difficult to understand.
The Domestic Abuse Commissioner, Nicole Jacobs, has said that the Government risk missing an opportunity to make a “historic shift” in the handling of this problem. She went on to suggest that this amendment could deliver a step change, ensuring a focus not only on crisis provision but on early intervention and prevention measures to stop abuse occurring. I totally agree with her.
The Home Office’s draft guidance says that local areas “could” consider violence against women and girls as part of the new duty if they choose to. I am still trying to get my head around “could”. How about “must”? This short and succinct amendment is so important, and I just do not understand who could not support it.
Lord Russell of Liverpool (CB)
My Lords, I also support the amendment in the name of the noble Baroness, Lady Bertin. I thank her for putting it so cogently and the noble Lord, Lord Polak, for following up.
The Minister has been nothing but consistent in advocating what the noble Baroness, Lady Bertin, described as localism, which is enabling local areas to decide for themselves what they include in their definitions of serious violence. Here I pay tribute—which may surprise some people—to our Home Secretary, because earlier this year, in the wake of the tragic murder of Sarah Everard, she commissioned a study by Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services, under the leadership of Zoë Billingham, referred to earlier, to look into the circumstances which had allowed the murder of Sarah Everard and so many other women to take place. That report was published three days after Second Reading of this Bill last month.
Lord Hunt of Kings Heath (Lab)
My Lords, I add my support for the noble Baroness, Lady Bertin, in Amendment 55, and I will speak in support of Amendment 56. I want to develop the theme that both she and the noble Lord, Lord Russell, have been talking about, which is of the inconsistencies in the local response to this huge challenge.
I go back to HM inspectorate’s report, because it laid this out. It started by paying tribute to dedicated professional police officers, which is absolutely right, but it found that, at individual level, victims reported very different responses, depending, as the noble Baroness said, on which officer they spoke to or which call handler took the call. It told us that some officers showed exceptional care and sensitivity, while others made the victims feel that they were not believed. We heard from the noble Baroness, Lady Brinton, about the specifics of her own case and the huge challenge that she had in getting the police to start to take it seriously.
The inspectorate goes on to say,
“at force level: there are unexplained variations in how frequently different forces are using the protective powers and orders at their disposal to protect women and girls; at local partnership level: roles and responsibilities for partners working together in multi-agency safeguarding arrangements vary considerably; and at national level: actions to improve the police response are split over multiple Government strategies. These structural, strategic and tactical inconsistencies must be addressed if the police and their partners are to make inroads in tackling the deep-rooted problem of VAWG offences.”
That is why we need some action at national level. If we leave it to local forces and the local safeguarding arrangements, I am afraid that nothing will happen to improve the situation.
I want to say a few words in support of our Amendment 56. We would like to add “stalking” to the noble Baroness’s amendment and perhaps persuade her to come back on Report with a more comprehensive amendment, if at all possible, because we are all batting off the same wicket. We know that stalking is a very serious crime, but it is underreported and underprosecuted. We debated this during the passage of the Domestic Abuse Bill. The case is as strong as ever. Stalkers are often mischarged with other crimes and it is common for the National Stalking Helpline to see high-level stalking cases managed as low-level nuisance behaviours. As a result, stalking behaviours are not being adequately identified. We believe that the noble Baroness’s amendment could be enhanced by the addition of stalking as a serious issue that is not being tackled effectively at the moment. I am sure that I speak for many noble Lords in hoping that we can pull all this together in a consensus amendment on Report.
Baroness Newlove (Con)
My Lords, I applaud my noble friend Lady Bertin’s eloquent speech about something so sensitive and dangerous.
During the passage of the Domestic Abuse Bill, we had lots of discussions about stalking. I rise to speak because my name is on Amendment 56. It saddens me that we are still battling in this area, which is so fragile and misunderstood by the agencies that are there to protect. I congratulate my noble friend the Minister, who listens to our speeches all the time and takes them on board, but I reiterate the seriousness of what my colleagues have said. We are talking about human lives. We are not talking about figures or money; we are talking about human lives that are being brutally lost.
This is where we need to gain some perspective on what we are doing in legislation. Legislation is important to legal people, politicians and your Lordships’ House but, on the outside, how does it protect an individual who is being stalked or is losing their life through domestic abuse? Where do we draw the line in saying, “Enough is enough, we’re going to protect you”? As we have heard, Dr Jane Monckton Smith’s report says that stalking sits at point five of eight on the homicide timeline due to the fact that risk to the victim escalates at the point of leaving an abusive relationship. We need to include stalking in my noble friend’s Amendment 55 because that is the only way in which the serious violence reduction duty will guarantee robust prevention work being rolled out consistently across the country. We talk about localism and centralism but, for everybody on the street, that is not language that they understand. This is about their safety and agencies understanding the issue.
In the dictionary, stalking is like a cat chasing a bird. Put simply, that is what is happening to these people. There is a delicate line in proving it when people are traumatised and are being brutalised in their home, in their workplace and wherever they travel. If we cannot get this right in the Bill, we simply are not listening to the figures on the human lives that are being lost every day. As we speak, somebody is being stalked and going through that. I ask my noble friends the Minister and Lady Bertin: please can we look at this? I would love to have this issue included at the end of Amendment 55.
Baroness Hamwee (LD)
My Lords, Amendments 57A and 59A have been grouped here. I am always hesitant to follow with a small, perhaps technical, point on important points such as have been made this afternoon.
My amendments are intended to inquire of the Minister the place of online activity in this issue. The clauses that we are looking at are very much place-based—this part of the Bill refers to “area” almost throughout—but what prompts the violence may not be place or area-based. Given the statutory requirements for the assessment of the criteria, my amendments probe whether the role of online activity has a place in that assessment. Grooming and other activities may be generated in one geographical or police force area but directed more widely.
There are examples, obviously, of violence online intended to prompt copying, which this amendment is not specifically directed at. I dare say that the answer to that will be the online harms Bill. But I would like to ask the question, perhaps in another way, of how this legislation is to work together and to be assured that we are not at risk of missing opportunities or leaving gaps.
Baroness Altmann (Con)
My Lords, I, too, support Amendment 55 in the name of my noble friend Lady Bertin, and I pay tribute to all the work she has done in this area. This is a relatively straightforward amendment which would send a very strong message to police forces, local statutory agencies and the public that domestic abuse and sexual violence are priorities to be both prevented and tackled.
Too often, our response to these types of crime comes too late for the victim. The benefits of this duty would be to ensure that we have a robust preventive approach that brings together a range of different partners and ensures that police forces are considering domestic abuse and sexual violence within the definition of serious violence for the proposed new statutory duty.
I, too, congratulate my right honourable friend the Home Secretary on calling for the HM inspectorate report following the tragic death of Sarah Everard. The report, whose authors I also congratulate, points to
“the co-ordinated and bespoke multi-agency response that is needed specifically for VAWG.”
It also says that the current drafting of the proposed serious violence prevention duty in the Bill does not go far enough.
The Government have already made significant progress on tackling domestic abuse through the Domestic Abuse Act, and I pay tribute to my noble friend the Minister and her team for all the dedication and hard work that have gone into that landmark piece of legislation. There is still more to be done. I think this amendment could be the missing piece of the puzzle to help maximise the approach in regard to domestic abuse, homicide and sexual offences.
I understand that the Government have some concerns that Amendment 55 could undermine the flexibility of the duty, but it simply clarifies the nature of the definition. It does not bind local areas to that definition, but it would require them to take this issue more seriously and would, I hope, prevent some of the dreadful acts we have heard about today and at Second Reading. This amendment is supported by the domestic abuse commissioner, and I join in the thoroughly deserved praise that the commissioner and her office have already received. I hope that my noble friend on the Front Bench, who I know cares passionately about these issues as well, will listen to the strength of the arguments on this amendment.
Baroness Wyld (Con)
My Lords, I start by apologising to the Committee for not speaking at Second Reading—I am afraid that I had a household full of Covid. I am finally here and delighted to support Amendment 55 in the name of my noble friend Lady Bertin, and congratulate her on her brilliant campaigning.
I am quite surprised that my noble friend still has to campaign. While I had Covid, I watched the debate from start to finish and listened to the Minister’s response. I think, first, that my noble friend’s amendment is clearly on the right side of the moral argument; there is no disagreement there. But because she is so persuasive, we have to test the counterarguments. I have done that, and I think that it is entirely properly thought-through and proportionate, so perhaps my noble friend the Minister could help me with some things I genuinely still do not understand about the Government’s hesitation.
I noted in particular the Minister’s reference to scope and her concern that other offences could, in effect, be pushed out should my noble friend Lady Bertin’s definition be added to the Bill. In other instances, however, where the Government believe that clarification is necessary, there are named forms of violence; for example, against property. This is a general question rather than a veiled assertion. Can the Minister clarify this for me?
The Lord Bishop of Gloucester
My Lords, I too add my support to the amendment moved by the noble Baroness, Lady Bertin. Many points have been covered, and I simply want to say that if the definition of serious violence is not expanded in this way, the concern is that many local areas will not consider it within their strategies.
Join-up on this is absolutely vital. Local strategies to prevent domestic and sexual violence through education, research and specialist violence reduction units are key, including primary prevention, which I have raised before in your Lordships’ House. We must do all that we can to enable work across services and through effective partnership.
As has been said, the Domestic Abuse Act is a very good thing, yet a lot of time was spent during the passage of that Bill in this House trying to highlight overlooked groups and issues. This amendment once again highlights these issues by creating the necessity of more joined-up thinking between key agencies and ensuring that they remain cognisant of the issues. This amendment is vital.
Lord Brooke of Alverthorpe (Lab)
My Lords, I support everything that has been said so far. I will speak to Amendments 57 and 58, in which I am endeavouring to specify the broad categories of serious violence, ensuring that any violence that is serious enough to result either in injury requiring emergency hospital treatment or harm constituting grievous bodily harm would meet the threshold for serious violence.
I am grateful for the general support I have had, especially from those noble Lords with long policing experience who see merit in what I present today. It might be that, as yet, we have not quite got the wording right. It is a bit like the debate that we have been having so far. There is a case for us coming together if in fact we can convince the Minister that, in principle, there is merit in what we are arguing; we could come together later, perhaps, to get the wording right, if the Government are to be so convinced.
My amendments are not solely about knife crime, but the intention is to ensure that the broad categories of serious violence are specified so that local partnerships must address such violence in their prevention plans and take full account of the information available on serious violence, which comes up in the A&E data. That is particularly important.
When the Home Secretary introduced the assessment of the public health duty—the public health measures—on 15 July 2019, he said that collaboration to reduce serious violence was particularly important. The Government have of course moved to introduce this legislation following that.
The violence that constitutes serious violence is not specified in this Bill. Good legislation depends on such specifications and definitions. It will rightly be for the local partnerships to decide how they will reduce serious violence, but it would be neglectful if this legislation does not state what serious violence includes.
The impact assessment signed by the Home Secretary relies heavily on the effectiveness and cost-effectiveness of the use by local partnerships of data collected in hospital accident and emergency departments for the prevention of serious violence. This approach, known as the Cardiff model for violence prevention, has been found in rigorous evaluations to reduce violence related to hospital admissions and serious violence recorded by the police by as much as 38%.
This approach has four principal advantages in the context of the Bill. First, it specifies a broad category of serious violence: violence serious enough to result in emergency hospital treatment. Secondly, it makes sense from a public health perspective, which is missing in what is, after all, a public health duty. Thirdly, following the implementation of the emergency care data set, the Cardiff model data on violence location, weapons and assailants, for example, can be recorded and shared for violence prevention by every NHS trust with an A&E. Fourthly, these NHS data are valid and reliable measures of serious violence, which would be available for joint inspections. Most importantly, even if just 5% of partnerships achieved the Cardiff-model benefits identified in the impact assessment, total benefits are estimated to be at least £858 million over 10 years and a reduction of around 20 homicides a year.
On Monday, the noble Lord, Lord Paddick, referred to the invaluable work of Professor John Shepherd at Cardiff University. Professor Shepherd has helped greatly in the scheme that has been running in Cardiff—he certainly helped me in preparing these amendments and for speaking today. He makes the point that, if the amendments are not adopted, the Bill when enacted is most unlikely to achieve the reductions in serious violence. There is nothing specific around which to achieve that objective. Violence that results in emergency hospital treatment, and which affects all age groups and both genders, in and outside the home, would not be considered serious. The Bill when enacted would not resonate or easily be owned by the NHS and by clinical commissioning groups; they would not be obliged to commission this approach.
We therefore have to make sure that the local authorities get the data, get an outline of what needs to be done, and then get a clear instruction, from within the Bill itself, that there must be action taken and that they must not ignore what has been produced in this very valuable information.
I therefore hope that we can move forward collectively in looking at the range of amendments and see if we can produce something that actually puts specifics in the Bill, that then can be acted on lower down the line.
Baroness Jones of Moulsecoomb (GP)
My Lords, I support Amendment 58 in the name of the noble Lord, Lord Brooke of Alverthorpe, but I think all of the amendments in this group are extremely worthwhile. The noble Baroness, Lady Bertin, gave a thoroughly well-argued pitch for her amendment, to which the Government have to listen. The noble Baroness, Lady Brinton, also argued very comprehensively for the inclusion of stalking, and I agree with that very strongly.
I wanted to sign every single amendment to this Bill, so I have ended up signing a sort of weird collection, and I apologise for that; I care about it all because I am so distressed about the Bill in general.
On Amendment 58, we need to know exactly what the Government intend with their duty to reduce serious violence. We talked earlier about intrusions, particularly relating to confidentiality, so it is quite important to have a redefined definition of serious violence. Because we have identified those intrusions, without safeguards, we must be sure that Parliament is clear and precise about the situations to which we intend this duty to apply; otherwise, we are left with a vague duty that interferes with people’s right to privacy in arbitrary and unfair ways. I very much hope that the Minister is listening and agreeing.
Lord Hogan-Howe (CB)
My Lords, I support Amendments 55 and 56, principally because, apart from their justice, it is naturally the right thing to do. As importantly, the amendments move the police into the preventive area more than they are now. I keep urging the Government and the Home Office in particular to make statutory the preventive duties. I am afraid that that is not yet taking shape, and this is a way in which it could do so.
There is a consequence of this. People have talked about the inconsistent approach around the country. That will generally tend to happen: with 43 organisations, we will always end up with an inconsistent approach. For me, 43 is at least 42 too many. That is my view; others will have different views but having so many organisations will lead to inconsistency.
More importantly, we are asking for officers to be more specialist in their investigative capacity. If it is left to the front-line officers, often they do not always have the time, or, frankly, the skills, to investigate these serious types of crime. The natural consequence of that is that more people will be moved out of uniform and into specialist areas. We all need to keep in mind that although part of the public will urge being able to see officers more often, officers are more effective when they are more specialist. How we get that balance right is difficult. This is not a plea for another 20,000 cops; it is about getting the balance right between the specialist who can be more effective and the uniformed officer who is more visible. That debate continues, and the amendments support that.
I rose to talk in particular about Amendments 57 and 58, which I support. Professor Shepherd has achieved some incredible things from his base in Cardiff. There are two big reasons why I support those amendments. The first is the constant bid for consistency. They provide a further test on the definition of serious violence, such as the requirement for hospital attendance, particularly at A&E. There is a danger, of course, that some people will attend A&E who do not really deserve to go there—they believe that they are seriously ill, when in fact they are not—but that risk is fairly low. Most importantly, as the noble Lord, Lord Brooke, said, the amendments will urge the health service to share the data it has to better inform the police and the Home Office on the strategies for the future. I am afraid that if the police can be inconsistent, so can the health service in sharing data that is vital to understanding the nature of serous violence around the country. Without that information, neither the Government nor the police, nor others, can take action.
For those reasons, I support these amendments, which are sensible conclusions.
Lord Carlile of Berriew (CB)
My Lords, I have already made a comment about serious sexual offences but there is something else that I want to raise, into which I have been provoked by my noble friend Lord Hogan-Howe. The point I want to make is about consistency. I do not agree with my noble friend that we should have a single national police force, but I do believe that 43 territorial police forces is a real recipe for inconsistency. I regret very much that successive Home Secretaries, from all political parties, have failed to take on this issue. What actually happens—Charles Clarke did it when he was Home Secretary—is this: when a Home Secretary has the courage to say they are going to reorganise police forces to bring policy consistency on issues such as this, immediately that Home Secretary is told by Members of another place that the world will fall apart if the Loamshire police force is abolished, because how could the world continue without it?
I was a Welsh MP for 14 years. There are still four police forces in Wales; there should not be. The Dyfed-Powys Police, the force in my constituency, operated generally well, but I could not possibly argue that more than one police force is needed, in Wales, at any rate. I therefore ask the Government to take consistency as a major theme in this matter and reflect—
Lord Hunt of Kings Heath (Lab)
We are going into a wider debate. My personal view is that we should never have abolished the Oxford City Police force in the 1960s, because we never recovered when it became part of Thames Valley Police, and we had our own watch committee. But there is an issue here, is there not, between what might be regarded as operational efficiency and overpoliticisation? Frankly, the experience in Scotland is not a good example of the risks of too direct a relationship between a national Government and a police force. That would surely be the risk in Wales.
Lord Carlile of Berriew (CB)
I realised when I started on this that there were one or two noble Lords around the House—I saw one agreeing with me, I think—who are, or have been, police and crime commissioners, who might disagree. I respect the noble Lord enormously, as he knows, but I say to him that the experience in Scotland was not good to begin with but is much, much better now.
I will cite just one piece of evidence. The small number of counterterrorism units operate very well as a group. They have a very good collegiate function and there is real consistency between their operations. In my view, the way that CTUs have developed is a paradigm for the reorganisation of the police. I do not want to prolong this part of the debate, but I urge the Minister to consider whether the best route towards consistency is to reorganise the police, reluctant though many will be.
Lord Judge (CB)
My Lords, perhaps we should leave the reorganisation of the police to another occasion. The first attraction of Amendment 55 is its utter simplicity and simple, clear language. You have no idea how anybody who has had to spend a lifetime looking at criminal justice legislation greets with acclaim a simple piece of legislation, which this is. There is no misunderstanding about it. It does what it says on the tin. Nobody can reconstruct it afterwards or say Parliament had a different intention—it is there.
More importantly, the argument is irrefutable. I had prepared quite a long speech to make today—long by my standards—but I will not make it. We have heard the arguments. This is a special, national problem—full stop. The best solution to a special, national problem is for it to be dealt with nationally. I therefore support this amendment.
Lord Paddick (LD)
My Lords, first, I have absolutely no doubt about the Minister’s commitment to dealing with the sorts of offences we are talking about today, particularly violence against women and girls. I also have absolutely no doubt about the Government’s commitment to tackling those issues. This makes the Bill even more puzzling. We support all the amendments in this group, but I want to look at this from a slightly different angle.
This group of amendments is intended to ensure that certain categories of crime are always included in the serious violence duty. It raises the wider issue of what this whole chapter of the Bill is about. Crime and disorder partnerships—noble Lords will know from previous debates that I am quite keen on these—have for many years been responsible for a multiagency approach to preventing and tackling crime and disorder in their areas, including serious violence. They have the advantage of being able to assess what local needs are and prioritise the crime and disorder that is a particular problem in their areas.
In light of these well-established existing partnerships, one must ask why there is a need for an additional serious violence duty. There has been much concern about knife crime in recent years and Scotland has demonstrated how successful a public health approach to the problem can be, where police enforcement is just part of a multiagency, multipronged approach to tackling knife crime. There may be characteristics of the knife crime problem in Scotland and solutions tailored to tackle them there that may not be completely transferrable to other parts of the UK, but the general principle is sound: law enforcement is only one of many approaches that need to be brought to bear on a problem.
If the Government were focusing solely on this type of serious violence, one could understand, in the face of the growing public concern, that a public health approach to knife crime might be mandated—but that is not what the Bill says. However, there are clues in other parts of the Bill that that is what the Government were initially thinking. For example, we will shortly come on to offensive weapon homicide reviews and serious violence prevention orders, which are all about knife crime.
The Bill talks about serious violence generally, including threats of serious violence but excluding terrorism. It goes on to talk—in Clause 12(4)—about a list of factors that must be taken into account, such as: the maximum penalty that a court could impose; the impact on the victim; the prevalence of the violence in the area, and the impact on the community. Presumably, other factors could be considered when the local area is considering its own serious violence. This effectively makes any violence serious—for example, hate crime. Hate crime should be considered serious violence because, by definition, it has a serious impact on the victim.
Amendment 55, from the noble Baroness, Lady Bertin, says that domestic abuse, domestic homicides and sexual offences should always be included in the serious violence duty. As the noble Lord, Lord Polak, said, how can any of these offences not be considered serious violence? If the Government do not accept this amendment, can the Minister say what types of domestic abuse, domestic murder or sexual offence are not serious, or in what areas they are not far too prevalent? Amendment 56 also includes stalking, for the reasons that my noble friend Lady Brinton so powerfully argued.
Amendment 57, from the noble Lord, Lord Brooke of Alverthorpe, includes all violence that results in emergency hospital treatment, or GBH—for very good reasons. As I mentioned in discussion on an earlier group, as the noble Lord did just now, the Cardiff model—that of sharing depersonalised accident and emergency information on knife and gun crime with the police—has proved invaluable. Furthermore, as the definition of serious violence includes threats of serious violence, my noble friend Lady Hamwee is quite right to point out that social media and other electronic communication—the impact of which may go beyond the geographic area for which the authorities that have a serious violence duty have responsibility—require a duty that goes beyond a single area.
In defining serious violence in such a wide way, the Government must either accept that all violence has the potential to be serious, or risk being accused of saying that violence associated with hate crime, violence against women and girls, domestic violence, and almost any other form of violence, is not serious, or should not be treated as serious in every police area.
What the Government should have done, and what they should do now, is go back and look at crime and disorder partnerships, which are already established and responsible for preventing and tackling all forms of crime and disorder—as their consultation on this issue said they should. They should look at where crime and disorder partnerships need to be strengthened —whether, perhaps, to include partners not currently involved—or where legislation needs to be changed to facilitate co-operation and the exchange of information, instead of mandating others to provide information to the police to enable a police-led enforcement approach to tackling serious violence—whatever that means. Of course, we will support all the amendments in this group for as long as the Government continue with such a broad definition of serious violence.
Lord Rosser (Lab)
My Lords, like other noble Lords I await with interest the Government’s response to all the amendments in this group. My name also appears on Amendment 55, which, at the beginning of this debate, was so ably and comprehensively moved, as we knew it would be, by the noble Baroness, Lady Bertin. This issue was raised by the shadow Minister for Policing in the House of Commons, and I only hope it receives a more enthusiastic hearing from the Government in this House, given that it is being presented with such strong cross-party support across the House.
The serious violence duty introduced by this Bill, as we know, requires local authorities, the police, fire and rescue authorities, specified criminal justice agencies and health authorities to work together to formulate an evidence-based analysis of the problems associated with serious violence in a local area and then produce and implement a strategy detailing how they will respond to those particular issues. Prison, youth custody and education authorities may also need to work with these core partners.
As more than one noble Lord has said, the amendment is clear and straightforward in its intention, which is to make clear in the Bill that the definition of serious violence for the purpose of the serious violence prevention duty includes domestic abuse, domestic homicide and sexual offences. That begs the question of why this amendment is necessary. As the noble Lord, Lord Polak, said, and he was not the only one, is it not obvious that domestic abuse, homicide and sexual offences must come within the definition of serious violence? Apparently it is not. Despite domestic abuse representing one-third of violent crime recorded by the police and despite 20% of all adult homicides and 50% of adult homicides where the victim is female being domestic homicides, the Government’s serious violence strategy does not recognise domestic abuse and sexual violence as forms of serious violence.
No doubt, that is one explanation why between April 2014 and March 2020 the annual number of domestic abuse-flagged cases referred to the Crown Prosecution Service by the police fell by 37%, with similar declines in prosecutions and convictions. No doubt, it is also one explanation why over the same period of time the annual number of prosecutions in rape-flagged cases fell by 55% and the annual number of convictions fell by 44%. No doubt, also, it is one explanation why in the year ended March 2020 only 9% of domestic abuse-related crimes and 1.4% of rape-flagged cases recorded by the police led to a charge or summons.
This Bill’s proposed serious violence prevention duty places a requirement on public authorities to collate and plan to prevent and reduce serious violence. While Clause 12 explicitly includes some named forms of violence, such as violence against property and threats of violence, to ensure that they are regarded as a form of violent crime across the board, violence against women and girls is not put in the same category, even though rates of domestic abuse and sexual violence, as so many other noble Lords have said, are consistent across England and Wales and do not vary greatly from one area to another.
Instead, intended Home Office guidance simply says that local areas can consider violence against women and girls as part of the new duty if they choose to and not that it is expected. Clearly, the Home Office is not too fussed one way or the other what areas decide on this very serious issue. There are attacks on statutes, and the Home Office gets very troubled. There are violent domestic attacks on human beings, particularly women, and the Home Office, however different the reality may be, appears so laid back that it wants to leave it to other people to make their own decisions on whether to regard these attacks as serious violence. It appears to want to leave it to other people to decide whether these dreadful attacks come within the scope of the serious violence prevention duty and the requirement on a range of public bodies, including local statutory agencies and the police, to work together to prevent and tackle serious violence with the aim of reducing the numbers of victims and perpetrators of such dreadful crimes.
Explicitly including domestic abuse, domestic homicide and sexual violence in the sexual violence reduction duty and its multi-agency approach would send a clear message to the police, prosecutors and a range of statutory agencies, including local agencies, that violence against women and girls is just not acceptable and that they all have to play a crucial role in tackling it.
At the moment there appears to be a distinction within the criminal justice system so that violence that takes place in the home or at the hands of an intimate partner is regarded as less serious than violence perpetrated in the public sphere. Only around one-half of police forces, as I understand it, have opted to take up Women’s Aid’s Domestic Abuse Matters specialised training on domestic abuse. As the noble Baroness, Lady Bertin, said, only eight of the 18 violence reduction units established in police force areas, which are funded by the Home Office and considered forerunners to the new violence prevention duty, name domestic abuse in their strategies.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, I assure noble Lords that I will not be getting into a debate about the number of police forces we should have, but I will say two things on that: first, consistency is key; secondly, good leadership is crucial. That said, I am grateful to my noble friend Lady Bertin, the noble Baronesses, Lady Brinton and Lady Hamwee, and the noble Lord, Lord Brooke, for setting out the case for these amendments, which have, quite rightly, attracted a wide-ranging debate about the scope of the serious violence duty. I am also pleased about the gender balance of the tablers of the amendments, and I join my noble friend Lady Bertin in paying tribute to the DA Commissioner and join the noble Lord, Lord Rosser, in paying tribute to the noble Baroness, Lady Royall, with whom I have worked on many occasions on stalking.
I will start by addressing Amendments 55 and 56. The Government remain absolutely focused on tackling violence against women and girls. There is no place in society for these abhorrent crimes. That is why in July we published a new cross-government Tackling Violence Against Women and Girls strategy, which includes a range of actions to help ensure that more perpetrators are brought to justice and face the full force of the law and that we improve support to victims and survivors and work ultimately to prevent these crimes, as the noble Lord, Lord Hogan-Howe, said, and send a message of clear expectation, as the noble Lords, Lord Carlile and Lord Rosser, pointed out.
The strategy builds on our existing work, as my noble friend Lady Bertin said, including the new legislation that we have brought forward, which includes specific offences of forced marriage, upskirting, and the disclosure of private sexual photographs. The Domestic Abuse Act, which secured Royal Assent in April and which I am very proud to have taken part in and led through your Lordships’ House, will strengthen our response to domestic abuse at all levels. The Act includes a new duty for local authorities in England to ensure the provision of support for victims of abuse, both adults and children, in refuges and other safe accommodation.
Amendment 55 seeks to make it clear on the face of the Bill that domestic abuse, domestic homicide and sexual violence are included within the meaning of “violence”. We recognise the importance of multiagency working to address these crimes, as my noble friend has stressed, and I assure noble Lords that the draft statutory guidance for the serious violence duty, published in May this year, does already make it clear that specified authorities will be permitted to include in their strategy those actions which focus on any form of serious violence which is of particular concern in a local area.
I note the point that noble Lords have made that domestic violence is prevalent in every area, but it could include domestic violence, alcohol-related violence, sexual exploitation, or modern slavery. Ultimately, the specified authorities are best placed to determine what the specific priorities are for that area based on the local evidence. However, all that said, I can see value in the intention of this amendment, to expressly provide on the face of the Bill—and avoid any doubt—that domestic abuse, including domestic homicide, and sexual offences, falls within the definition of “violence” that specified authorities should follow when considering what amounts to serious violence and making that evidence-based determination as to what the specific priorities should be for their area.
Regarding the specific addition of “stalking”, I thank the noble Baroness, Lady Brinton, for drawing attention to this important issue. I recognise that there are other forms of crime which disproportionately affect women and girls which local areas may want to consider for the purpose of the duty, and the draft statutory guidance highlights that they may wish to do this. However, we might risk creating confusion if we specified too many crime types under the meaning of “violence”, and we must consider carefully where to draw the line. I discussed this with the domestic abuse commissioner the other day and she agrees that the definition of “domestic abuse” should be broad enough to draw attention to this issue where it takes place in a domestic abuse context. In addition, while many stalking offences do take place in a domestic abuse context or ultimately involve violent behaviour, that cannot be said for all, and so I am not convinced that an express reference is appropriate.
In any event, we remain completely focused on our efforts to tackle these crimes. The Home Secretary will chair a new violence against women and girls task force to drive cross-government activity and help maintain public confidence in policing. We are funding the first full-time national policing lead in this area, Deputy Chief Constable Maggie Blyth, as I mentioned during the Urgent Question yesterday, and later this year we will publish a new domestic abuse strategy.
Having listened to the debate, I am in no doubt about where the whole Committee stands on this issue. We can all agree in this place that we need to do much more to tackle violence against women and girls. The multi-pronged strategy we published in the summer is directed to that end. We intend to build on that further, having listened to the views of the Committee. The Government agree that part of the response must include the police, local authorities, health bodies and the other agencies to whom the serious violence duty applies, working together to prevent and reduce domestic abuse and sexual violence in their area. Therefore, I agree with the aim of my noble friend’s amendment and will work with her ahead of Report to agree how we might best reflect this.
Amendments 57 and 58 would require violence to be defined as serious in a local area should it result either in injury requiring emergency hospital treatment or in harm constituting grievous bodily harm. I agree that such consequences are clear indicators of the seriousness of the violence in question, but we want to consider further any implications of adding such specific language to the definition of serious violence in the Bill.
The Bill already specifies certain factors that specified authorities must consider when determining what constitutes serious violence for their local area: the maximum penalty that could be imposed for any offence involved in the violence; the impact of the violence on any victim; the prevalence of the violence in the area; and the impact of the violence on the community in the area. We expect the specified authorities to use the evidence gathered from their strategic needs assessment to answer these questions and set the priority areas for their local strategies accordingly. We think that current drafting ensures that specified authorities consider the most harmful types of violence, including those resulting in acute physical injury, as part of their local strategies. However, we recognise the need to further consider the points made by the noble Lord, Lord Brooke of Alverthorpe.
Finally, Amendments 57A and 59A, in the name of the noble Baroness, Lady Hamwee, raise another important issue. It is true that serious violence is often not contained by local borders and, owing to electronic communication, perpetrators of violence are able to have an extended impact in areas far across the country and beyond. We fully recognise this, and it is why Clause 8 permits specified and relevant authorities to work across local government boundaries with other authorities and, in doing so, to collaborate on strategies that cover areas greater than those where they primarily provide services. This could include collaboration with authorities in neighbouring areas or further afield. We have also included advice within the draft statutory guidance to this effect. For this reason, we do not think these amendments are necessary.
The Government have been clear that internet companies must go further and faster to tackle illegal content online. It is already an offence to incite, assist or encourage violence online, and we will continue to work with the police to support proactive action against and to address illegal material posted and offences perpetrated online.
In conclusion, I assure noble Lords that I will reflect very carefully on this debate and, in particular, on the amendments in the name of my noble friend Lady Bertin and the noble Baroness, Lady Brinton. I will continue to work with them to find an agreed way forward ahead of the next stage. On that basis, I hope my noble friend will withdraw her amendment, on the clear understanding that we will return to these issues on Report.
Baroness Bertin (Con)
My Lords, first, I thank everyone for their powerful collection of persuasive speeches supporting the amendment in my name, for which I am hugely grateful. The House is at its best when it comes together on an issue that bridges the political divide and about which we all feel strongly. I am grateful to noble Lords for that. I thank the Minister for her support and what she just said in response, in particular to my amendment. She always gives a huge amount of time and she is such a diligent Minister. The Government are lucky to have her. I think I speak for the whole Committee when I say that she works incredibly hard and cares so much. I am grateful and I thank her.
I consider myself lobbied by my noble friend Lady Newlove, the noble Baronesses, Lady Brinton and Lady Royall—who is of course absent—and the noble Lord, Lord Hunt. My noble friend knows that I agree with every word she said on stalking. I cannot promise that I will change the amendment, but I promise that I will go to bat and lobby as hard as possible, because there is a huge problem here. Some 1.5 million people are being stalked a year, and less than 2,000 people are ever brought to justice. There is a massive problem here and, for too long, it has not been taken seriously enough. I want to work more on that, and I am grateful to my noble friend the Minister for saying that she will look at these amendments and that we can discuss this further before Report.
It is very difficult for me to respond to amendments that are not in my name, and I will probably not do justice to them, but I thank the noble Lord, Lord Brooke, for laying his amendments—he had hugely persuasive arguments—and the noble Baroness, Lady Hamwee, for the amount of work she does on these issues. She is absolutely right that social media companies need to be kept in check. I could not disagree with the points that she made.
That is where I will leave it, but I am grateful and look forward to Report. With that, I beg leave to withdraw my amendment.
Member’s explanatory statement
This amendment clarifies that references in Clause 13(2) to “the police area” are to the police area of the local policing body mentioned at the beginning of that provision.
Baroness Williams of Trafford (Con)
My Lords, Amendment 59 to Clause 13 is a drafting amendment. Clause 13 concerns the involvement of local policing bodies in local serious violence strategies. This amendment simply clarifies that references in Clause 13(2) to “the police area” are to the police area of the local policing body mentioned at the beginning of that provision. The noble Lord, Lord Paddick, has given notice of a stand part debate on Clause 13 so, if it please the Committee, I will hear from him, but, for now, I beg to move.
Lord Paddick (LD)
My Lords, we on these Benches want to probe whether Clause 13 needs to stand part of the Bill. Can the Minister explain to the Committee why there is a need for legislation to allow a local policing body, presumably a directly elected mayor or a police and crime commissioner, to assist in preventing or tackling serious violence?
I could understand if the clause stated that local policing bodies must assist or monitor what specified responsible authorities were doing and must report their findings to the Home Secretary, but that is not what it says. It says that such assistance, monitoring and reporting are voluntary, in that these bodies “may” assist, “may” monitor and “may” report.
Subsection (4) states:
“The Secretary of State may by regulations make provision conferring functions on a local policing body”.
Does that mean that, although in primary legislation—the Bill—all this is voluntary, the Secretary of State can by regulation make it compulsory?
Subsection (5) states that the functions contained in regulations
“may include provision ... for a local policing body to arrange for meetings”.
Why does the Secretary of State need to pass regulations for a directly elected mayor to hold a meeting? Can the Minister explain why Clause 13 needs to be part of the Bill at all? We on these Benches are struggling to understand why.
Lord Bach (Lab)
My Lords, I am grateful to the noble Lord, Lord Paddick, for this stand part debate. If the Committee will forgive me, I will say, as quickly as I can, a word or two about how I perceive the role of police and crime commissioners up until now.
Clause 13 is clearly an important element in establishing, from the Government’s point of view, a serious violence reduction duty on a more statutory basis—if I can put it that way—than exists presently. This obviously involves police and crime commissioners in particular. It is important to remember—I think this is what the noble Lord, Lord Paddick, was getting at, in part—that police and crime commissioners have, in their nine-year existence, voluntarily worked hard to establish partnership working and commission partnership services. In many cases, they have taken a lead in those partnerships.
There is a fundamental misunderstanding—not, I am sure, in this Committee—that, somehow, the only real role for police and crime commissioners is to hold their police force, and the chief constable in particular, to account. That is a crucial part of their duties, but I point out—the Committee does not need this pointing out—that they are not just police commissioners but crime commissioners as well. At the very least, they should have a significant duty to find ways to prevent crime and its effects on victims and society, working alongside partners, of course.
This is not about dealing with crime that has taken place, whether it is antisocial behaviour or serious violence. It means dealing with what has become a hackneyed phrase but is crucial here: the causes of crime, going back to early childhood development and early intervention. It is always about poverty and its effect on crime. It is about bad and lousy living conditions, and it always involves looking after the vulnerable, whoever they may be—we are all vulnerable at some stage or other in our lives. Above all, it is about preventing lives being thrown away, whether they are those of victims or perpetrators. I have to confess—noble Lords may have already realised that this is what I am about to say—that this kind of work or duty, as I call it, gave me and many other police and crime commissioners the greatest buzz of all.
It was crucial to achieving anything that one worked with partners, local and national, very much including government. To their credit, the Government set up violence reduction units, changed their support—I do not mean that in any bad way—and became very keen on the public health approach to dealing with these matters. That was a huge and important change, and many of us were convinced by the work that we did and seeing what happened in Scotland that this was the right course to take.
Where I was police and crime commissioner, we have what we call a violence reduction network, rather than a unit. I argue that it has achieved quite a large amount already, with great projects. My predecessor as police and crime commissioner for Leicestershire ran and started an office of the police and crime commissioner-run strategic partnership board, or SPB, which, by the time I left office, included all—I mean all—of the main public services in the area covered by the force, from local government to health, education, the police, fire and ambulance services and more.
The other example I give is that I was the chairman of the East Midlands criminal justice board. Other police and crime commissioners were chairs of their local boards or whatever they chose to call it. Clearly, if Clause 13 and other parts of this chapter pass into law, there will be—I am guessing that this is how the Government will put it—more statutory backing for this way of approaching the serious violence reduction duty. I am not against that in principle, but my one concern is that, in my experience, police and crime commissioners are a little bit like elected mayors: if they are good, they are very good, and they can make a huge difference, but if they are not so good, they can make a huge difference the other way.
I was lucky in that I had a brilliant team working for me in my office. As it happens, it has been decimated by my successor, but that is for another day, certainly not for today. Also, when I was there, other police and crime commissioners, whatever their party politics or lack of it, seemed to me to be able people who wanted to do the right thing and were very committed. As the noble Baroness and the Committee will know, many new police and crime commissioners were elected in May this year, which is no doubt a good thing, and many more of them were women—it is about time, too. It is too early to say whether they will grab these extra opportunities, but I hope that they will.
There are two big issues as far as the future is concerned in the real world. One, of course, is data sharing, which the Bill is very concerned about, and so it should be. So often, people of good will get together on behalf of organisations that are not prepared to share data. That has to change in this area, otherwise there will be no achievement. The second issue—I hate to mention it but it is the usual one—is funding. If we are going to fund all these exciting proposals, it will require government to take a leading step in that.
I am grateful to the Committee for listening to my speech. I thought it might be useful in terms of this clause.
Lord Rosser (Lab)
I thank the Minister for her explanation of government Amendment 59. She said it makes a minor clarifying change, and we have no concerns to raise on it. However, I look forward to the Minister’s replies on the questions and issues raised by the noble Lord, Lord Paddick, and my noble friend Lord Bach. I am not sure whether I have fully understood this issue, and if what I am going to say now indicates that I have not, I apologise in advance.
The noble Lord, Lord Paddick, indicated in his explanatory statement, which he repeated, that he has tabled the Clause 13 stand part Motion so that he can
“probe how the provisions of this Bill and the Crime and Disorder Act 1998 will work in practice; and the relationship between Crime and Disorder Partnership and Police and Crime Commissioners.”
As I understand it, Clause 13 provides that local policing bodies, such as PCCs and the Mayor of London, may assist authorities in delivering the serious violence duty, monitor how authorities are exercising their duties, report back on their findings to the Secretary of State and be given authority by the Secretary of State to assist the duty in specific ways, such as providing funding or convening meetings on the duty. It also provides that authorities must co-operate with local policing bodies. The Crime and Disorder Act 1998 created community safety partnerships, and that raises the issue of how this duty will interact with the existing duties on CSPs.
The Government have published draft guidance on the serious violence duty. It says:
“In order to comply with the duty it is not necessary to create a new partnership, instead the specified authorities should use existing partnerships where possible and with appropriate modifications.”
It goes on to say:
“The Duty is an opportunity to simplify and add focus to existing partnership arrangements rather than add any additional complexity to the current multi-agency landscape.”
Baroness Chakrabarti (Lab)
My Lords, with apologies for rising at this late stage, I lay my cards on the table and say that I have never been the greatest fan of legislating to require public officials to work together and creating byzantine edifices of legislative partnerships. However, I think that the noble Lord, Lord Paddick, has a point. If this is to stand, we need to understand whether “may” means “may” or “may” means “must” or whether “may” will become “must” because of regulations that will be made under what Clause 13(4), as it is now, will eventually become. That is just good law-making.
Unlike my wonderful noble friend Lord Bach, I have not been a great enthusiast for police and crime commissioners. I have to be clear about that. I always thought that it would lead to a politicisation of the police and, I am sorry to say that in many cases I feel that that has been the case. I will not dwell on the very crass remarks made by a particular commissioner in the wake of the Sarah Everard case. I am not a fan of that particular politicised mechanism for holding the police to account.
We will no doubt come to this in later clauses, but of course we must have a public health or more holistic approach to tackling—dare I say it—the causes of crime, as well as crime. But setting the policing bit and the Home Office above the other parts of the partnership, with the powers to mandate and the money and so on, is a journey we began with the Crime and Disorder Act, probably 23-odd years ago, when I had the privilege of sitting over there, in the Box. It is a journey that we still seem to be on. I am sorry to say that the poor old Home Office is often the dustbin department, picking up problems in society when it is almost too late. A lot of the deep-seated causes of crime come from other places and need to be tackled; yes, by preventive action—many noble Lords have made that point—but such preventive action belongs in education, in health and in tackling poverty and inequality. We all know this—I am preaching to the choir—but to set up an edifice whereby the senior partner, with all the powers to mandate and all the money to donate, is the policing bit, the security bit, the interior bit and the Home Office bit, is something we need to explore further, as I think the noble Lord, Lord Paddick, intends, during the scrutiny of these clauses.
Baroness Williams of Trafford (Con)
My Lords, I thank all noble Lords who have contributed to this debate. Clause 13 provides a power for a local policing body—namely, a PCC, the Mayor’s Office for Policing and Crime, or the Common Council of the City of London in its capacity as a police authority—to assist authorities in meeting the requirements of the serious violence duty. The noble Lord, Lord Rosser, was absolutely correct, as was the noble Lord, Lord Bach—as I always say, we are immensely lucky to have Parliament’s only PCC in our place; the benefit of his experience is incredibly useful.
Local policing bodies have an important part to play in convening partner agencies. PCCs and the Mayor’s Office for Policing and Crime, as elected local policing bodies, are the voice of the local community in relation to policing and crime. This is reflected in their current functions in relation to community safety partnerships. Local policing bodies are responsible for the totality of policing in their force area—the noble Lord, Lord Bach, pointed out some of the things that they get involved with—as well as for services for victims of crime. They will therefore have shared objectives in relation to the prevention and reduction of serious violence. That is why this clause provides local policing bodies with a discretionary role in supporting specified authorities with the preparation and implementation of their strategies, as well as monitoring their effectiveness and impact on local serious violence levels. I underline that the PCC role is discretionary and that it cannot be mandated through regulations.
The PCC, the Mayor’s Office for Policing and Crime, and the Common Council of the City of London will not be subject to the serious violence duty as specified authorities. However, as with the existing functions of these local policing bodies in relation to community safety partnerships, they may choose to collaborate with local partnerships. They may also take a convening role to support effective multiagency working.
Regulations made by the Secretary of State may provide further detail on the ways in which local policing bodies may assist specified authorities, including convening and chairing meetings, requiring certain persons to attend such meetings and providing funding to a specified authority to support the implementation of the local serious violence strategy. They will also have a power to require information for this purpose, as set out in Clause 16. In undertaking their monitoring functions, local policing bodies may report their findings to the Secretary of State to ensure compliance with the duty.
Specified authorities will have a duty to co-operate with local policing bodies when requested to do so. However, we have made clear in the draft support guidance the need for the relevant local policing body to consider the proportionality of additional requests and anticipated costs to specified authorities before making any such requests.
The overall objective is to provide additional support and leadership, if and when required, and not to place additional burdens on those authorities subject to the duty. The approach is very similar to arrangements in place for CSPs. There has been a mutual duty on PCCs and CSPs to reduce offending since the Police Reform and Social Responsibility Act 2011. I am sure noble Lords will agree that, to engender an effective multiagency approach to preventing and reducing serious violence, we must ensure that all relevant parts of the system play their part and have sufficient support in place to enable them to do so. We believe that local policing bodies, including PCCs, are best placed to provide that support. I take also the point made by the noble Lord, Lord Rosser, about funding.
Lord Paddick (LD)
I have just a couple of questions. First, what aspects of Clause 13 are local policing bodies currently not allowed to do that the clause allows them to do? Secondly—and I am grateful to the noble Lord, Lord Rosser, for articulating what is in the guidance—my understanding is that crime and disorder partnerships could be the mechanism chosen to deliver on the serious violence duties in a particular area, or it could be a different mechanism, and the police and crime commissioner might want to be part of that or might not. That does not appear to provide the clarity of leadership and accountability necessary to deliver a serious violence strategy. Perhaps the Minister can explain how this all works.
Baroness Williams of Trafford (Con)
My Lords, I shall try to. At the moment, PCCs and other local policing bodies have the powers to work with the specified authorities to support multiagency working. The serious violence duty is a new duty, and the legislation clarifies how it will fit together. PCCs are the elected bodies; they work with local forces. The multiagency working can be through the CSPs, or there is flexibility around how the local partnerships are constituted. Because it is a new duty, it is definitely worth clarifying in legislation how it might work out.
Member’s explanatory statement
This amendment requires the Secretary of State to obtain the consent of the Welsh Ministers before giving a direction under Clause 17 to a devolved Welsh authority.
Baroness Meacher (CB)
I rise to explore whether Clause 17 should in fact stand part of the Bill. I am grateful to the noble Lord, Lord Paddick, for his support. He knows a great deal more about all this than I do. I will focus my remarks on Clause 17(1)(a), which refers to Clause 16(4). That subsection makes clear that a person employed by any specified authority who is requested to supply information to a policing body must comply with the request. Of course, these bodies may include a health authority as well as an education authority, prison authority, youth custody authority or any other authority named by the Secretary of State.
My objections to Clause 17, if I have understood it correctly—and I am humble enough to know that I may not have—are rooted in my objections to the earlier clauses requiring disclosure of information by public servants to the police. Clause 17 seems to add insult to injury by giving the Secretary of State powers to issue directions to any public servant failing to provide information in order to secure compliance with the duty. Clause 17 goes on to say that a direction can be enforced by a mandatory order. Can the Minister assure the House that these clauses exclude the disclosure of information that could identify an individual? This is vital, as the Minister knows—and I have a great regard for our Minister, who understands these things.
A doctor or teacher, for example, may take the view that to pass information that risks identifying a patient, pupil or other individual to the police would be contrary to the interests of that person and would not contribute significantly to preventing or reducing serious violence. They may make a professional judgment not to disclose information that could identify a patient, pupil or other. I seriously question the Government’s proposals in Clause 17, unless this issue can be clarified.
For example, a patient may suffer from mental health problems and may be causing difficulties, but may still be making good progress in a therapeutic programme. It is likely to be utterly destructive to draw that person to the attention of the police. Likewise, if a child has severe behavioural problems at school, is vulnerable and is being targeted by a drug dealer but has agreed to co-operate with a cognitive behaviour programme and other support designed to deal with his or her problems, it would be incredibly damaging to involve the police at this point. That child could be driven into a life of drugs and crime instead of being carefully steered away from such a path.
Having worked as a social worker many decades ago—goodness knows how many—and worked with families with problems, and having also been on the Police Complaints Authority for nine years, I think I can look at these issues from both points of view. I have considerable regard for the police, despite being—indeed, perhaps because I was—involved in investigating complaints against the police for all those years. I understand that they do want information about young people who may be committing crimes. The noble Baroness, Lady Williams, knows well my view that a radical review of our Misuse of Drugs Act 1971 to focus on drug treatment, rather than criminalising sick addicts, would be a great deal more fruitful in reducing drug abuse and serious violence, including county lines, than this Bill, the serious violence prevention orders and these disclosure clauses.
I hope that the Minister will explain what penalties the Government have in mind if a public servant fails to provide information in accordance with a mandatory order. Are the Government at risk of criminalising public servants? I hope the Minister can reassure the House on these issues and that she will, if necessary, seek the agreement of her colleagues to reconsider the approach in Clause 17 before Report. I look forward to her reply.
Baroness Chakrabarti (Lab)
My Lords, I have to support what I have just heard from the noble Baroness, Lady Meacher, for reasons we began to articulate on Monday evening. Noble Lords will remember we began to have a discussion about what is to be shared and in what circumstances existing duties of confidence and existing professional duties need to be overtaken in the public interest. But who decides? The Minister kindly gave me a very specific answer at one point in our discussion, when she said that it will be decided by the person who holds the data, but, obviously, that can be subject to challenge. That of course is my traditional understanding of professional confidence.
Way before this, and way before the Crime and Disorder Act, that was the traditional position: if the doctor, the teacher or whoever is not minded to hand over to the police the data about a specific person, or more general data, the police will have to go to the courts and try to get a warrant. That is the place for those hopefully rare disputes between professionals and the police, who are coming at this from different positions, to be decided, rather than being decided by direction from the Secretary of State.
Of course, normally, we want the health professionals, the policing professionals and the educational professionals to be working in discussion and collaboration, but, where there is a rare dispute because of their different professional angles and ethics, it really is for a judge to decide and not for the Secretary of State to trump all those existing ethics and duties. I think the noble Baroness, Lady Meacher, is nodding at me. That is the concern I hope the Minister can address in her explanation and defence of Clause 17.
Lord Paddick (LD)
My Lords, I rise to support the noble Baroness, Lady Meacher, and I am very grateful to the noble Baroness, Lady Chakrabarti, taking us back to very late on Monday night, if the Minister remembers, when we were discussing Clause 15, on the disclosure of information. The Minister—I think, from memory, although it was late—implied that the disclosure of information was voluntary and that the clause was there simply to facilitate the disclosure of information. In challenging the Minister in that, I quoted from Clause 17.
I can be brief. Clause 17 enables the Secretary of State, if satisfied that a specified authority, educational authority or youth custody authority has failed to comply with the duties to collaborate or disclose information—including, presumably, sensitive personal information and information covered by a duty of confidentiality—to direct the authority to comply and enforce her direction through a mandatory order. That is what Clause 17 says.
I have already explained at length why professionals should use their professional judgment—as the noble Baroness, Lady Chakrabarti, just said—within existing policies, procedures, practices and protocols, rather than being forced to divulge sensitive personal information when it is not, on balance, in the public interest to do so. For example, there will often be a greater good to be derived from maintaining a relationship between, say, a youth worker and a young person at risk of becoming involved in serious violence than from divulging sensitive information to the police. All authorities dealing with these issues are committed to preventing and tackling serious violence. They may, from time to time, have a different perspective on the problem, or a different view on the best way to achieve what we all are desperately seeking to do.
This clause is one of the reasons why so many organisations believe that the Bill is really about a police-led enforcement approach, because it is the Home Secretary who can force them to comply, rather than the public health, multiagency, multifaceted approach that has been so successful in preventing and tackling knife crime in Scotland. Can the Minister give examples of where public authorities involved in preventing and tackling serious violence have obstructed efforts to achieve those objectives? If not, why is this clause necessary? We believe that Clause 17 should not stand part of the Bill.
Lord Ponsonby of Shulbrede (Lab)
My Lords, this group starts with government Amendment 72, which I will say a brief word about. The amendment requires the Secretary of State to obtain the consent of Welsh Ministers—not just consult them—before giving a direction under Clause 17 to a devolved Welsh authority. I understand that the change was requested by the Welsh Government, and we support it on this side of the House.
I turn to the debate on whether Clause 17 should stand part of the Bill, which was tabled by the noble Baroness, Lady Meacher, who introduced it, and the noble Lord, Lord Paddick. Their explanatory statement says that:
“The purpose of this amendment is to explore the extent of the Secretary of State’s powers to issue directions under this section and the consequences of failure to comply with such a direction.”
A number of very searching questions have been raised, and I have a few questions myself. It would be helpful if the Minister could give some more information on what a “direction” might be and what it might consist of under this clause. The central point made by both the noble Baroness, Lady Meacher, and the noble Lord, Lord Paddick, was about the context of police-led enforcement rather than a more equal arrangement between other agencies such as education and the National Health Service.
In the House of Commons, the Minister said that it is envisaged that this power will be used extremely rarely. Nevertheless, could the Minister give an example of when this power might be used and what checks might be in place when it is used? What would the prior steps be before a direction is considered? How would an authority’s progress in acting upon a direction be measured? Further, can the Minister say something about how the Government see this power working in practice?
I thought the noble Baroness, Lady Meacher, raised a particularly interesting question about what the sanction might be if a public servant fails to comply with an order to disclose information. My noble friend Lady Chakrabarti also spoke of the rare disputes between professionals and how these may be resolved by direction from the Secretary of State, rather than through the courts. She gave a historical context, if you like, to that status of professionals making their own judgments.
Baroness Williams of Trafford (Con)
My Lords, we expect that the duty will provide the right legal basis for improved multiagency working and draw in the correct set of partners to prevent and reduce serious violence effectively. We think it is right, however, to ensure that there are means of securing compliance should a specified authority refuse to play their part—in other words, in adherence of the duty. So we have included provision within Clause 17 for the Secretary of State to issue a direction to secure compliance, should a specific authority, educational institution, prison or youth custody authority fail to meet the requirements of the duty. For publicly managed probation service providers, prisons, young offender institutions, secure training centres or secure colleges, existing mechanisms can be utilised through the relevant Secretary of State to ensure compliance with the duty.
As a result of the amendment to this clause just agreed by the Committee, the Secretary of State must now obtain the consent of the Welsh Ministers before issuing a direction to a devolved Welsh authority, as the noble Lord, Lord Ponsonby, said.
I now take the opportunity to address concerns that were raised previously by the noble Lord, Lord Paddick —it was only on Monday night, but it seems quite a long time ago. Let me be clear: a direction can be issued only to certain specified or relevant authorities and not to individual front-line professionals or practitioners. In addition, directions can be issued only in respect of certain duties, as listed in Clause 17(1). On information sharing, no directions can be issued in relation to the exercise of the powers in Clause 15 or any regulations made under Clause 9, which enable but do not mandate information sharing. I hope that answers the question from the noble Lord, Lord Paddick.
Directions can be made by the Secretary of State in relation to a failure to discharge the mandatory duty in Clause 16 to share information with a local policing body. As I have said previously, the purpose of Clause 16 is to enable the local policing body—that is, the PCC and their equivalents—to request information in order to assist the specified authorities and monitor the effectiveness of local strategies. To reiterate—this may assist the noble Baroness, Lady Chakrabarti—this power would not enable the Secretary of State to directly compel an individual doctor, teacher or social worker to disclose personal information. Additionally, any direction given to an authority cannot require a disclosure which would be in breach of the data protection legislation. If an authority refused to comply with the direction due to concerns that doing so would breach the data protection legislation, the Secretary of State could apply for a mandatory order and the court would then determine the question. I hope that this clarification is helpful.
I assure the Committee that, in any case, we expect these powers to be seldom used and utilised only where all other means of securing compliance have been exhausted. I am sure noble Lords would agree that, in order for this duty to be effective, a system needs to be in place to ensure that authorities comply with the legal regulations we are proposing to help prevent and reduce serious violence.
A direction by the Secretary of State may require the authority in question to undertake specific actions in order to comply under the duty, and directions may be enforced by a mandatory order granted on application to the Administrative Court in England and Wales. Further detail on this process will be set out in statutory guidance, which will be subject to a public consultation following Royal Assent. I commend Clause 17 to the Committee.
Lord Beith (LD)
Can the Minister explain subsection (5), which sets out that
“the governor of a prison, young offender institution or secure training centre”
is not covered by these provisions?
Baroness Williams of Trafford (Con)
My Lords, the direction power is not available in relation to probation services provided by the Secretary of State or publicly run prisons, youth offender institutions, secure training centres or secure colleges. As I said earlier, existing mechanisms will be available to ensure that they are meeting the requirements of the duty. In addition, as I have already outlined, the Secretary of State must also obtain consent from Welsh Ministers before exercising the direction power in relation to a devolved Welsh authority.
Baroness Chakrabarti (Lab)
Before the Minister sits down, I have one further question about the protection on data protection. My understanding is that, essentially, it works by limiting the control and transfer of data to the purposes for which the data is held. However, if this legislation changes those purposes to include, for example, the serious violence duty, data protection will not help any more because there will be a purpose that overrides the existing primary purpose. Perhaps during the next few hours—or years—of this Committee, we could get some advice from our friends in the Box.
Baroness Williams of Trafford (Con)
The noble Baroness is absolutely right about data protection but there are exemptions. One is the detection, prevention and reduction of crime.
Lord Paddick (LD)
I am grateful to the Minister. I think I need to read what she said and compare it with what is in other clauses in the Bill because, although it is difficult to hold everything in one’s head, I am not sure that everything she said is consistent with what is in the Bill.
However, there are two specific questions that the Minister did not answer. The noble Baroness, Lady Meacher, asked what the sanction would be for failure to comply. Is it right that a mandatory order is an order of the Administrative Court to comply with a legal duty, and therefore failure to comply with a mandatory order would be in contempt of court? The second question, which I asked, was: can the Minister give examples of where public authorities involved in preventing and tackling serious violence have obstructed the efforts to achieve those objectives? If not, why is the clause necessary? I do not expect the Minister to have examples at her fingertips but perhaps she could write.
Baroness Meacher (CB)
I thank the Minister for her response on Clause 17. However, I wish to express a bit of concern. Although she assured the Committee that an individual doctor or youth worker would not be required to provide information, nevertheless an authority might well provide information, without consulting the individual doctor or youth worker, that would identify individuals who were receiving services in that authority. After the Minister’s response, I am not at all clear that we can be completely sure that this will not happen; I believe that there should be some wording in these clauses to specify that information from authorities about individuals would not be accepted if they provided it. This is an incredibly dangerous situation if individuals find that their authority has been divulging information to the police; it could destroy the efficacy of our public services—it is that serious.
I am not trying to be awkward; I just feel that we need some assurances in these clauses that individuals will not need to be concerned about the disclosure of information about them. Various subsections in Clauses 15 and 16 and so on indicate that, in looking at data protection, you must take account of the regulations in this Act. It is quite complex but it is not reassuring, if I may say so.
Baroness Williams of Trafford (Con)
My Lords, I am keen for this not to be left hanging in uncertainty. Perhaps a bit of further explanation will be helpful to the noble Baronesses, Lady Meacher and Lady Chakrabarti, and the noble Lord, Lord Paddick.
This is a backstop power that will be used rarely. However, if needed, it could be utilised; for example, where one of the specified authorities fails to participate in the preparation of the local strategy. If a direction was issued and the authority still refused to comply—that was the question asked by the noble Lord, Lord Paddick—on the basis that it believed that doing so would breach data protection legislation, the Secretary of State would need to apply for a mandatory order and the court would ultimately decide, but I do not think that there is any question of breaching data protection legislation.
Earl Attlee (Con)
My Lords, before the noble Baroness withdraws her objection to the clause standing part, I remind noble Lords that we are in Committee and can speak as many times as we like.
The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)
My Lords, it might be helpful to the Committee if I clarify what may be a slight confusion. The group was led by Amendment 72 but noble Lords will recall that Amendment 72 was agreed to in its place. The question that the Committee now has before is that Clause 17, as amended, stand part of the Bill.
Lord Paddick
Member’s explanatory statement
The aim of this amendment is to ensure that the guidance under this Clause is able to be scrutinised by Parliament
Lord Paddick (LD)
My Lords, in moving Amendment 73, I will speak also to Amendment 74 in my name.
Clause 18 states that those authorities that are, under this chapter of the Bill, under a duty to prevent and tackle serious violence
“must have regard to guidance issued by the Secretary of State”.
However, in the Bill, the only people the Secretary of State must consult are Welsh Ministers. As we will see in a later group, when it comes to similar guidance in relation to offensive weapons homicide reviews, Clause 31 requires the Secretary of State to consult
“persons appearing to the Secretary of State to represent review partners”
and
“such other persons as the Secretary of State considers appropriate.”
That is in addition to Welsh Ministers.
We on these Benches believe that the Secretary of State should also consult representatives of the authorities that will be subject to the guidance, and such other persons as may be appropriate to consult. That is the intention of Amendment 74. We also believe that such guidance should be statutory—that is, contained in regulations—to enable Parliament to scrutinise the guidance before those involved become subject to it, as set out in Amendment 73. I beg to move.
Lord Ponsonby of Shulbrede (Lab)
My Lords, we support the amendments put forward by the noble Lord, Lord Paddick. On Amendment 74, we believe it is vital that the Government should consult front-line organisations on the content of the guidance. They are the ones who know how this will, or will not, work in practice and their expertise is the driving force behind the duty. The Government have of course published draft guidance on this, and I ask the Minister whether this guidance is being consulted on.
Baroness Williams of Trafford (Con)
My Lords, that was quick for a Committee debate. I am grateful to the noble Lord, Lord Ponsonby, for setting out the case for these amendments, which relate to the power to issue guidance in relation to the serious violence duty. I am sure we all agree that legislation works far better, in practice, when it is implemented alongside clear guidance. In the case of the serious violence duty, we want to ensure that the guidance is clear on the expectations of all specified authorities, that it provides sufficient advice in meeting them and that it highlights best practice from across England and Wales. It is also crucial that such guidance is developed in collaboration with and with input from those who will be subject to the legislation and those who represent them to ensure that it is fit for purpose.
That is why, prior to the implementation of Chapter 1 of Part 2, we will publicly consult on the guidance to support the duty. As a first step, we have published the guidance in draft to assist the scrutiny of these provisions. I have a copy of it here. We welcome feedback on the draft and will take that into account when preparing an updated draft for consultation following Royal Assent to the Bill.
Clause 18 already expressly requires consultation with Welsh Ministers, as the noble Lord said, in so far as the guidance relates to the exercise of functions under this chapter by a devolved Welsh authority. But we are committed to going further and, as part of the public consultation on the statutory guidance, we intend to invite views from key representative bodies and other relevant persons, such as the Children’s Commissioner and the domestic abuse commissioner. Given this commitment, I do not think it would be appropriate, at this point, to include a broader duty to consult in the Bill.
The stated aim of Amendment 73 is to enable the guidance to be scrutinised by Parliament. In principle, I have no difficulty with that at all; it is open to Parliament to scrutinise guidance at any time. However, the effect of this amendment, when read with the provisions in Clause 21, would be to make the guidance subject to the affirmative procedure. I am not persuaded that this level of scrutiny is necessary—and nor, for that matter, was the DPRRC, which recommended that the negative procedure should apply in this case. We are carefully considering that committee’s report and will respond ahead of the next stage. In light of the commitments I have given, would the noble Lord be happy to withdraw his amendment?
Lord Paddick (LD)
My Lords, I am grateful to the Minister, but it was actually me who proposed these amendments.
Baroness Williams of Trafford (Con)
I do apologise to the noble Lord, Lord Paddick.
Lord Paddick (LD)
My ventriloquism skills are not so good that the Minister would think I was the noble Lord, Lord Ponsonby. But I am glad that the Minister is going to consider the regulations again. I am not sure that the intention of my amendment was to ensure that guidance would be approved through the affirmative procedure. Any procedure would be better than no procedure at all, and it does not look like there is any provision in the Bill for parliamentary scrutiny of guidance, so I am grateful for that undertaking. I will go back and look again at a later part of the Bill, which includes the need to consult on guidance. I may need to come back on Report and again challenge why, in that part of the Bill, guidance has to be consulted on, but not in this part. Having said that, I withdraw my amendment.
Lord Paddick
“(c) no other mechanism is available to review or hold an investigation or inquiry into the death”Member’s explanatory statement
The purpose of this amendment is to ensure that the reviews conducted under Clause 23 do not duplicate any other review taking place into the same death, for example a Coroner's inquest.
Lord Paddick (LD)
My Lords, in moving Amendment 75 I will speak also to Amendments 76 and 77 in this group, all in my name. We now come to offensive weapons homicide reviews and there are two points I will make initially. The first is to point to the evidence that the provisions on this in the Bill were probably, quite rightly and properly, about knife crime. Chapter 2 is about offensive weapons homicide reviews and, predominantly if not almost exclusively, homicides involving offensive weapons are knife crime offences.
Secondly, as with Chapter 1, the primary motive of the Government is to produce the illusion of doing something when the changes in the Bill have little practical beneficial effect. As we argued in Chapter 1, the Government’s approach potentially does more harm than good. Amendment 75 is a probing amendment to ask the Government why, just as Chapter 1 should have strengthened existing crime and disorder partnerships, this chapter should not strengthen the already considerable and comprehensive powers of coroners, if this were necessary, rather than creating a new and separate legal duty to conduct offensive weapons reviews—other than the obvious explanation that the Government could point to it and say they had done something about knife crime.
For every death where the cause of death is still unknown, where the person might have died a violent or unnatural death or might have died in prison or police custody, a coroner must hold an inquest. Clearly every qualifying homicide, as identified by Clause 23, and every potential qualifying homicide, even if the Secretary of State changed the definition by regulations, as subsection (7) allows, would be subject to a coroner’s inquest. Paragraph 7 of Schedule 5 to the Coroners and Justice Act 2009 provides coroners with a duty to make reports to a person, organisation, local authority, or government department or agency, where the coroner believes that action should be taken to prevent future deaths. All reports, formerly known as rule 43 reports, and responses must be sent to the Chief Coroner. In most cases, the Chief Coroner will publish the reports and responses on the Courts and Tribunals Judiciary website. Coroners are very powerful members of the judiciary. Attendance at a coroner’s court takes precedence over an appearance at any other court, if a witness is required to attend more than one court at one time, for example.
Can the Minister tell the Committee what consultation took place with coroners before this chapter was drafted? What was their response? What additional benefit would an offensive weapons homicide review have over a coroner’s report? If benefits were identified, what consideration was given to the coroner, rather than a review partner, being given the power to order a homicide review? Can the Minister also explain what happens if one of the review partners considers that none of the conditions in Clause 23(1) is satisfied, but another review partner considers that the conditions are met? Does the review take place despite the review partner’s objection, and, if it does, does the review partner that objected have to participate if it does not believe the conditions are met? Is there a hierarchy of review partners? So, if the police believe the conditions are met, must the review go ahead? And if a clinical commissioning group believes that a review should go ahead, but the police do not believe the conditions are met, does the review take place and do the police have to participate?
The Government may say that all this will be set out in regulations, but the existing provisions in the Bill are a shell of an idea, where this Committee is left to guess what actually happens in practice; what a qualifying homicide is, because that can be changed by regulation; who the review partners will be, because that will be set out in regulations; and what happens if there is disagreement among review partners about whether the conditions are met.
We already have child death reviews, domestic homicide reviews—on which more in a subsequent group—safeguarding adult reviews, and, now, offensive weapons homicide reviews. With the Bill as drafted, how many of the sadly too many knife crime deaths a year will be subject to a review? According to the Bill, factors that decide whether a review is necessary may include, for example, the circumstances surrounding the death, the circumstances or the history of the person who died, or the circumstances or history of other persons with a connection with the death, or any other condition the Secretary of State sets out in regulations. How many reviews do the Government believe will have to be conducted each year by our overstretched police, local authority and health services? I ask the Minister to not give the answer: “It depends what conditions are contained in the regulations”.
Amendment 76 is intended to ensure, as with the serious violence duty, that professionals, including doctors and counsellors, are not forced to disclose sensitive personal information that is subject to a duty of confidentiality, unless, in exceptional circumstances, it is in the public interest to do so, and in accordance with existing policies and practices, although I accept that these may be less stringent in the case of information regarding the deceased.
As before, Clause 31 says that review partners must have regard to guidance issued by the Secretary of State, but there is no mention of parliamentary scrutiny of such guidance. My Amendment 77 requires the guidance to be laid before Parliament to ensure parliamentary scrutiny. I beg to move Amendment 75.
Lord Beith (LD)
My Lords, I am glad to support my noble friend in questioning whether the processes outlined in this clause should be altered so that they protect the procedures that we already have and have had for a thousand years, to use the system of coroners to investigate unexplained deaths of a wide variety of types. Instead, we have the offensive weapons homicide review added to the system. It is unclear how this will relate to the coroner’s duties in a situation where such a death has occurred, because the coroner’s duties do not disappear because we have legislated this system into existence. I hope the Minister will clarify this point.
There was a time when the Government might have felt that the system of coroners was not quite up to the job in some areas. We had problems over the years with inconsistencies in standards of coroner, but considerable attention has been given to that in recent years and I think the system now has much more consistency about it. We are not subject to some of the problems of particular localities which existed in the past. The creation of a Chief Coroner, although in a more limited way than originally envisaged, I think has helped in that process.
It seems to me that the Government are not saying that the coroner system cannot handle this, they are simply legislating for an additional mechanism, because that seems to be a good, visible response to a problem that we all acknowledge is a serious one. But serious problems are not solved by creating more structures and processes, particularly in the circumstance where what is a qualified homicide appears to be so uncertain that the Government have to keep to themselves powers to change the meaning of qualified homicide while the legislation remains in force.
I am very unpersuaded about this system and certainly would like to know what coroners are supposed to do when they find themselves presented with the likelihood of such an inquiry taking place and may have their own duties in respect of the death that has taken place.
Lord Ponsonby of Shulbrede (Lab)
My Lords, the noble Lord, Lord Paddick, has made it clear that these are probing amendments. The noble Lord, Lord Beith, has just expressed scepticism about the number of initiatives which the Government have put forward in this section of the Bill.
Having said that, we support this part of the Bill on offensive weapons homicide reviews. Amendment 75 raises the question of what happens if a death is already covered by an existing review mechanism, and not duplicating reviews. When this question was raised in the other place, the Minister said:
“To avoid duplication of work, the Bill provides that these new offensive weapons homicide reviews will be required only where there is not an existing statutory requirement to review the homicide”.—[Official Report, Commons Police, Crime, Sentencing and Courts Bill Committee, 27/5/21; col. 268.]
Clause 23(5) provides that a review is not required under this chapter if a review of the death is already taking place under different arrangements. If I understand it correctly, I think this meets one of the questions raised by the noble Lord, Lord Paddick, in his amendment.
Amendment 76 deals with data protection. It would prevent data being shared for these reviews if it breaches an obligation of confidence or any other restriction other than the Data Protection Act. These issues were debated in detail on Monday in relation to the serious violence reduction duty. Obviously, data sharing is absolutely key to a homicide review to allow us to identify and learn lessons from the death, and to decide on actions to take in response. However, as raised in the earlier debate, we must know how this is to be balanced with safeguards.
Clause 29 provides that a person may not be required to disclose information under this chapter that they could not be compelled to disclose in High Court proceedings. It would be helpful if the Minister could talk us through the specific provision of potential High Court proceedings.
Amendment 77 is based on a recommendation of the Delegated Powers and Regulatory Reform Committee. The DPRRC has said that guidance on this chapter of the Bill provided by Clause 31 should be subject to parliamentary scrutiny and done through a statutory instrument subject to the negative procedure. We support the committee’s suggestion and call on the Government to look carefully at all the committee’s recommendations.
Lord Sharpe of Epsom (Con)
I am grateful to the noble Lord, Lord Paddick, for explaining his amendments to the provisions in the Bill which establish offensive weapons homicide reviews. Before I turn to the specifics of the amendments, it may assist the Committee if I first set out the context and rationale for the introduction of these reviews. Noble Lords asked a lot of questions and I will do my best to get to all of them. If I have missed any, I will write to noble Lords.
Every homicide is a tragedy and the Government are committed to doing all they can to prevent the senseless loss of life and tackle serious violence. We are naturally disturbed by data showing that homicide has risen by about a third in England and Wales between 2014-15 and 2018-19. We have also seen that homicides involving offensive weapons now make up a large and growing proportion of all homicides—approximately 354 out of 732 in 2019. Homicide is now the fourth leading cause of death for men aged 20 to 34, behind suicide, drug overdoses and car accidents. Yet there is currently no legal requirement to formally review the circumstances around the majority of homicides involving an offensive weapon.
This provision will require local agencies to consider the circumstances of both the victims and perpetrators during an offensive weapons homicide review, and identify lessons that could help prevent future deaths. By deepening our local and national understanding of homicide and serious violence, together we can improve our response and ultimately save lives.
The amendment would change the definition of a “qualifying homicide” whereby, alongside the other requirements already set out in Clause 23, an offensive weapons homicide review would be applicable only if no other mechanism is available to review or hold an investigation or inquiry into the death. We agree with the sentiment of the amendment that it would not be necessary or proportionate to require the review partners to conduct an offensive weapons homicide review where the homicide already meets the conditions for an existing review—for example, a domestic homicide review—as this would involve duplication of work and create an unnecessary burden on the review partners, yet produce the same outcomes. However, we do not consider the amendment necessary as Clause 25 already provides for the relationship between offensive weapons homicide reviews and other review requirements to avoid duplication of effort, including disapplying the duty to conduct an offensive weapons review in certain cases.
The noble Lord, Lord Paddick, cited coroners’ inquests as an example of existing reviews that would preclude a homicide from qualifying for a review under Chapter 2 of Part 2 of the Bill. We should remember that inquests are designed for a different purpose. They are legal inquiries into the cause and circumstances of a death, and are limited to the four statutory questions of who, where, when and how or by what means a person came about their death. Further to this, in many homicides where an offensive weapon is used, there will not be an inquest because the criminal trial will answer the statutory questions and an inquest will not need to take place.
The noble Lord, Lord Paddick, also asked if consultation with coroners had taken place at an official level. It has and that will continue during the design phase.
Lord Beith (LD)
It is important that we get this matter clear. If the coroner has begun an inquest, does that inquest fall within the limitation that the Minister has described, which would preclude a homicide review being started while that inquest is going on?
Lord Sharpe of Epsom (Con)
I thank the noble Lord for that intervention. As I understand it, yes it does. I expect I will be corrected by my officials later.
Lord Paddick (LD)
I am grateful to the Minister for giving way. It cannot possibly be right that a coroner’s inquest is not held if a criminal trial answers the statutory questions. Why is a coroner’s inquest into the Manchester Arena bombing currently taking place after two people have been convicted in criminal trials? I cannot believe that what the Minister just said is true.
Lord Sharpe of Epsom (Con)
I am not in a position to answer that question, I am afraid. I shall have to write to the noble Lord.
I can now confirm that coroners’ inquests will not preclude an offensive weapons homicide review.
In homicide cases where there is an inquest, its purpose would not be to provide the same in-depth review as an offensive weapons homicide review, which will identify points of failure, lessons learned and opportunities to intervene, which will help partners tackle homicide locally and nationally. Due to this, we do not consider that the amendment is necessary. I may have already said that, in which case I apologise. In fact, I have said that; I shall move on to Amendment 76.
Amendment 76 relates to information sharing in relation to confidentiality obligations and data protection in Clause 29. To review the circumstances leading up to a homicide involving an offensive weapon, to identify lessons and produce recommendations that will have a meaningful impact and save lives, the review will undeniably need to be able to access and consider information and material relevant to the homicide. Such information may include information about the victim or the alleged perpetrators or perpetrator. It may relate to their interactions with police forces, social services, health practitioners, educational institutions, employers or third-sector organisations. It may relate to information about their known associates.
It is not for the Government to determine what information is relevant. That will be for the review partners. I was asked by the noble Lord, Lord Ponsonby, about the High Court proceedings. That issue is dealt with in Clause 29, which sets the terms on which disclosures of information required or authorised by Clauses 26 to 28 may be made. I do not have precise details on the High Court proceedings but I will come back to the noble Lord, if that is all right. Clause 28 includes a power enabling review partners to provide information to another review partner for the purpose of enabling or assisting the review partners to arrange and carry out an offensive weapons homicide review.
I have mentioned review partners a number of times and it is worth digressing briefly to attempt to answer the question of the noble Lord, Lord Paddick, about the backstop, effectively—what happens if there is no review partner? That is not possible because in cases where there is no relevant review partner, the regulations also allow for the Secretary of State to be given the power to direct which partners are the relevant ones. I hope that answers his specific question.
Clause 28 also includes a power for review partners to require information from other persons. However, review partners may request information under this power only for the purposes of enabling or assisting review partners to arrange and carry out an offensive weapons homicide review, and the request may be made only to a person whom the review partner considers likely to have such information. The scope of the information that might be requested, and who it might be requested from, is therefore limited.
This power does not, however, affect the availability of any other duties or powers to share information such as existing lawful routes for information to be shared for safeguarding purposes or for the purposes of the detection and prevention of crime. As currently drafted, the provisions in the Bill ensure that relevant information may be disclosed, and such disclosure would not breach existing obligations of confidence, but any disclosure must still abide by the data protection legislation—that is, the Data Protection Act 2018 and regulations made under that Act, the UK General Data Protection Regulation, regulations implementing the GDPR and the law enforcement directive—and must not be prohibited by specified provisions of the Investigatory Powers Act. For example, where personal data is subject to the UK General Data Protection Regulation, that regulation sets out the principles, rights and obligations that apply to the processing of personal data, including exemptions from particular provisions that can apply in certain circumstances, as set out in Schedules 2 to 4 to the Data Protection Act 2018—for example, in the prevention and detection of crime.
Additionally, Clause 29 provides that a person cannot be required by Clause 28 to disclose information that they could not be compelled to disclose in proceedings before the High Court, meaning that information that is subject to legal professional privilege cannot be required to be disclosed. Due to those safeguards, we do not feel that Amendment 76 is necessary.
I should also like to confirm that we have consulted the Information Commissioner’s Office throughout the development of these provisions and will continue to engage with it as we develop guidance and prepare to pilot these reviews. We consider the information-sharing provisions in Chapter 2 of Part 2 necessary to facilitate an effective multiagency approach to preventing and reducing homicide and serious violence.
Amendment 77 would ensure that guidance under Clause 31 is laid before Parliament. The statutory guidance provided for in Clause 31 will assist the review partners in understanding the statutory responsibilities placed on them, as well as providing best practice on how to fulfil those responsibilities. Among other things, the guidance will provide further information on the notification requirements, the conduct of reviews, the content of the final report and information sharing. We intend to publish an outline draft of the guidance document to allow time for further development before consulting on the guidance, as required by Clause 31. The guidance document will be finalised and published ahead of the pilot commencing.
Lord Beith (LD)
Before my noble friend does that, can the Minister clear up a mystery? I remain mystified. A person has been stabbed, but no charge has been laid against anyone because the police have not yet identified who might have carried out the stabbing. The coroner opens and adjourns an inquest in those circumstances. What happens then? Is the coroner told that he must close down this inquest? Does the coroner continue to co-operate with the police in the normal way, as they bring to him the information that they have gradually obtained about how this death might have taken place? In passing, I should say that it would be wrong to give the impression that coroners do not, as a matter of course, draw lessons from public bodies and others which arise from any death that they report on.
Lord Sharpe of Epsom (Con)
I thank the noble Lord. I thought that I had made it clear, and I apologise for obviously not having done so, but no, OWHRs are not precluded by a coroner’s inquest.
Lord Paddick (LD)
My Lords, I thank the Minister for attempting to answer my questions. I am very grateful for his undertaking to write to me on any questions that were not answered. I just add one question to that.
One of my big regrets in life is not taking shorthand, so I must paraphrase what the Minister said. It was something along the lines of there being no existing legal duty to review the circumstances surrounding an offensive weapon homicide to prevent future deaths. I appreciate that the Minister is behind the curve, as he relies on a brief that is given to him before the contents of what I say immediately beforehand are known. Paragraph 7 of Schedule 5 to the Coroners and Justice Act 2009 provides coroners with a duty to make reports where the coroner believes that action should be taken to prevent future deaths. How is that not a legal duty to review the circumstances surrounding an offensive weapon homicide to prevent future deaths? If the Minister can add that to the unanswered questions, then, in the meantime, I beg leave to withdraw Amendment 75.
Lord Falconer of Thoroton
“Domestic homicide reviews
(1) Section 9 of the Domestic Violence, Crime and Victims Act 2004 is amended as follows.(2) For subsection (2) substitute—“(2) The Secretary of State must in all cases which meet the circumstances set out in subsection (1) direct a specified person or body within subsection (4) to establish, or to participate in, a domestic homicide review.”(3) After subsection (3) insert—“(3ZA) The Secretary of State must by regulations set out—(a) the type of data relating to domestic homicide reviews which must be recorded, including—(i) the number of domestic homicide reviews taking place across England and Wales annually; and(ii) the time taken to complete each individual domestic homicide review;(b) that the data must be recorded centrally in a Home Office database; and(c) that the data must be published annually.””Member’s explanatory statement
This new Clause seeks to modify the Domestic Violence, Crime and Victims Act 2004 to force the Secretary of State to automatically direct a domestic homicide review in circumstances as outlined in Section 9 of the Act. The new Clause also aims to improve data collection methodologies around domestic homicide reviews.
Lord Falconer of Thoroton (Lab)
This amendment deals with domestic homicide reviews, which are provided for in Section 9 of the Domestic Violence, Crime and Victims Act 2004. Domestic homicide reviews are concerned with where a domestic murder or manslaughter occurs, meaning where somebody over 16, living in the same household as somebody else, is murdered or is the victim of manslaughter, or some other crime, leading to death. The purpose of the domestic homicide review pursuant to Section 9(1) of the 2004 Act is to identify the lessons to be learned from the death. It is envisaged that it will be a multiagency review.
These domestic homicide reviews have proved to be of real value because they have identified the sorts of things which, if they were remedied, could help to prevent subsequent occurrence. The two big issues to emerge, time and again, in domestic homicide reviews are the proper recording of domestic violence complaints and whether the risk that the recording revealed has been properly dealt with, particularly by the police but also by other agencies. The Home Office published what lessons have been learned from a whole range of domestic homicide reviews in a 2016 document. I cannot find any subsequent document that brings together lessons learned.
We seek to do two things by this amendment, and there is a connected issue that I raised with the Minister before coming to this debate today. First, according to Section 9(2) of the 2004 Act, the Secretary of State has a discretion as to whether he orders a domestic homicide review in any case. On this side of the House, we consider that there should be a domestic homicide review in every case. Documents emanating from the Home Office suggest that it believes that there is such a position. Looking at Section 9 of the 2004 Act, it is quite difficult to ascertain whether or not there is an obligation in every case for there to be such a domestic homicide review. We think that there should be, and our proposed amendment to subsection (2) seeks to achieve that. I would very much welcome the Minister telling us what the position is in relation to it and what legal duty exists to ensure that there is a domestic homicide review. If there is any doubt about it, can he confirm that the Government’s position is that there should be a domestic homicide review in every case and that he would consider making the necessary legal changes to ensure that?
Secondly, we take the view that there should be proper recording of all that is learned from domestic homicide reviews, and, in particular, that the information is readily available in a centralised place to determine the sorts of things that lead to domestic homicides, so that it is available to everybody, in particular every police force that is dealing with it.
Thirdly, and separately—this is not specifically covered by the amendment, but I raised it with the Minister beforehand—a domestic homicide sentencing review was commissioned by, I think, the previous Lord Chancellor, on 9 September 2021. This has involved the instruction of Clare Wade of Her Majesty’s Counsel to look into the sentencing of people convicted of a domestic homicide. Will the Minister please say what the terms of reference of Clare Wade’s review are? When is it expected to report, and what will be done with its recommendations?
We start, on this side, from the premise that this Bill does not sufficiently address violence against women and girls in particular. In two-thirds of domestic homicides, of which there are about 150 a year, a woman is the victim. The pattern of sentencing by courts has evolved in such a way that in the case of victims of stabbing outside of a domestic context the courts are guided to give very heavy sentences, while for victims of stabbings in a domestic context the courts are not given such stringent guidance. We think that that needs to be looked at: a domestic killing should not be treated as less serious than one committed outside the home. I would be grateful to hear the Minister’s explanation of the position in relation to the review. I beg to move.
Baroness Bennett of Manor Castle (GP)
My Lords, it is a great pleasure to follow the noble and learned Lord, Lord Falconer of Thoroton. My noble friend Lady Jones of Moulsecoomb signed this amendment but is, unfortunately, unable to be in the House tonight and I speak in her place.
Essentially, I agree with everything the noble and learned Lord, Lord Falconer of Thoroton, said. I will add just a couple of points. It is worth noting that the National Police Chiefs’ Council and the College of Policing produced a report on domestic homicide in August, which described it as
“an entrenched and enduring problem.”
The report makes very disturbing reading. It records that just over half of suspects were previously known to police from domestic abuse cases, and another 10% were known for other offences, while 44% of households not covered by those categories were known to some other agency in some way. There is clearly an issue, therefore, with lessons learned.
It is good to have a report such as this: it is very useful and informative. But what is being proposed here is a register—something ongoing that can be a continual source of information and learning. We should make a couple of comparisons here. One is with air safety, where there is an assumption that whenever anything goes wrong every possible lesson will be learned and every piece of information will be extracted from it. We should be looking at domestic homicides in the same way.
Another parallel is with the Vision Zero approach to road crashes which many nations are increasingly adopting. We should be among them, and we should be looking to have zero serious injuries or deaths on the road. We know from the report that in nearly all cases of domestic homicide there has been an opportunity for someone to intervene. We should be looking towards a Vision Zero for domestic homicides.
Lord Paddick (LD)
My Lords, I listened very carefully to the arguments put forward by the noble and learned lord, Lord Falconer of Thoroton, supported by the noble Baroness, Lady Bennett of Manor Castle, but I am not sure that there needs to be a domestic homicide review in every case—or whether that is not already the situation.
In my experience, some cases of domestic homicide are very straightforward, and I remind the Committee of my remarks on the previous group: that coroners—rather than, for example, the Secretary of State—should perhaps have the power to order such a review if they believe it is in the public interest.
We support the need to ensure that lessons are learned from domestic homicide reviews, that they are regularly published, and that these offences are treated with utmost seriousness. Being attacked and killed in your own home, a place where everyone should feel safe, is far more serious than being attacked and killed on the street. That is why it is so important that any lesson that can be learned from any domestic homicide should be learned, and why the courts need to take these offences far more seriously than a random attack or a gang-related attack on the street.
Lord Sharpe of Epsom (Con)
I thank the noble and learned Lord, Lord Falconer, for his conversation this afternoon, which was very gracious of him.
As the noble and learned Lord has set out, this amendment seeks to amend the Domestic Violence, Crime and Victims Act 2004 to require the Secretary of State to direct a domestic homicide review to be carried out in circumstances outlined in Section 9 of that Act. The amendment also aims to improve data collection methodologies around domestic homicide reviews. I shall go into that now and, I hope, answer noble Lords’ questions in the course of my remarks.
As the noble Lord, Lord Paddick, noted, domestic homicides are an abhorrent crime. Every death is a tragedy. I will explain some of the measures we are taking to tackle the perpetrators of these crimes, because it is germane to this amendment. In 2020-21 £7 million was awarded to police and crime commissioners to fund 28 perpetrator programmes, including the Drive project, which works with high-harm and high-risk perpetrators. This year we have also allocated £11.3 million to further expand the geographic scale of perpetrator programmes.
I return to the amendment. Domestic homicide reviews are a valuable mechanism for understanding what lessons can be learned from these deaths to prevent further tragedies. We recognise that there is room for improvement in the way these reviews are conducted and the lessons applied.
Domestic homicide reviews should be considered where the death of a person appears to have been caused by someone to whom they are related or had an intimate relationship with, or by a member of their household, with a view to identifying lessons from the death. The statutory guidance dictates that these decisions are to be made by community safety partnerships at local level. The Home Office should be notified of these decisions by the CSP. CSPs comprise representatives from responsible authorities: police, local authorities, probation and health services.
The chair of the CSP holds responsibility for establishing whether a homicide is to be the subject of a DHR by giving consideration to the definition set out in Section 9(1) of the 2004 Act, as noted by the noble and learned Lord, Lord Falconer, and whether the statutory criteria in that section are satisfied. There will be occasions where a CSP may consider it inappropriate to conduct a DHR based on the information before it, either because the statutory criteria are not met, in its view, or for other reasons.
The Home Office expert quality assurance panel reviews all decisions not to proceed with a review. The decision is then ultimately escalated to the Secretary of State, who can exercise her reserve power in Section 9(2) of the 2004 Act to direct a community safety partnership to conduct a review. This was first utilised in the very tragic case of Ruth Williams. Since March 2021, the Home Secretary has made four such directions.
In a very small number of cases, it is possible that the criteria for a domestic homicide review are met, but it is agreed that a review is not the best way to ensure that lessons are learned from the tragic death, for example when there is inadequate information to proceed or when a different safeguarding review would be more appropriate. I reassure the noble and learned Lord that these decisions are taken very carefully by the quality assurance panel and the Home Secretary.
In short, domestic homicide reviews already take place in the great majority of cases where the criteria in the 2004 Act are met. Given this, and the existence of the Home Secretary’s reserve power to direct a review, we are not persuaded that the framework for triggering these reviews is wanting and in need of change.
Turning to the second aspect of the noble and learned Lord’s amendment, I accept that there are concerns about the collection of data relating to domestic homicide reviews. This is why the Home Office has undertaken to create a central repository to hold all domestic homicide reviews. Funding has been secured for this and it is expected to go live next year. Once introduced, all historical reports will be collected to ensure that there is a central database on domestic homicides.
Furthermore, I should add that Section 17 of the Domestic Abuse Act 2021, which comes into force on 1 November, will amend Section 9 of the 2004 Act to make it a requirement for CSPs to send all completed DHRs to the domestic abuse commissioner as soon as reasonably practicable after completion. This will be a useful source of information from which the commissioner can drive forward change.
To go on to the noble and learned Lord’s final question about the sentencing review, the Government recognise the legitimacy of the concerns around the sentencing of domestic homicide cases raised by the families of Poppy Devey Waterhouse and Ellie Gould and those highlighted by the Victims’ Commissioner and domestic abuse commissioner. That is why we are conducting a review into such cases. It will be a targeted review of how domestic homicide cases—specifically those involving fatal attacks on intimate partners or ex-partners—are dealt with by our justice system, and will take account of sentencing outcomes and available data. The first stage of this review, an analysis of data and relevant sentencing for cases of domestic homicide tried between 2018 and 2020, is now complete.
As the noble and learned Lord noted, Clare Wade QC has since been appointed as the independent expert to conduct the second and final stage of the review. This will involve the consideration of both internal findings and existing external analysis carried out by academics and campaigning organisations, followed by the identification of potential options for reform. The expectation is that Ms Wade will report back to the Secretary of State before the end of the year.
In conclusion, I hope that the ongoing work in the Home Office on domestic homicide reviews and the domestic homicide review repository that I have described reassure the noble and learned Lord that the objectives he seeks through this amendment are already in place or under way. On that basis, I hope that he will be content to withdraw his amendment.
Lord Falconer of Thoroton (Lab)
I am grateful to the noble Baroness, Lady Bennett, and the noble Lord, Lord Paddick, for speaking in the debate. I am also grateful to the noble Lord, Lord Sharpe, for his very comprehensive answer, though I find the answers that he gave quite concerning for three reasons.
First, he did not give a coherent basis for why there are domestic homicide reviews in some cases but not others. I completely accept that there might be cases where it was not appropriate, but the set-up of the statute gives no real indication in relation to that. He indicated that the Secretary of State had intervened on a few occasions, but did not give the basis. It would be helpful to know how many domestic homicides had a review and how many did not in the last two years and what was the basis for the selection. If he feels able to write, that would help me in considering what to do with this next.
Secondly, on the centralisation of information, he did not really come forward with a proposal for how one would improve the information in relation to that. I need to consider what he said on that. Thirdly, I may have missed it—I will need to read Hansard—but he did not say what the terms of reference are for Clare Wade’s review. Are they written down somewhere? Could somebody let us see them?
At this stage, of course, I withdraw my amendment.
Police, Crime, Sentencing and Courts Bill
Wednesday 27th October 2021
(2 years, 6 months ago)
Lords ChamberRead Full debate Police, Crime, Sentencing and Courts Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 40-III(b) Amendments for Committee (supplementary to the Third Marshalled List) - (27 Oct 2021)
Lord Rosser
“(c) the user who has given agreement under paragraph (b) was offered free independent legal advice on issues relating to their human rights before that agreement was given.”Member’s explanatory statement
This would require free independent legal advice to be offered to a person before they agree to extraction of data from a device.
Lord Rosser (Lab)
My Lords, I am associated with six amendments in this group: Amendments 79, 89, 92, 102, 106A and 107. Chapter 3 of the Bill deals with the extraction of information from electronic devices, which has increasingly become a routine part of criminal investigations.
In this group we are dealing with when victims are asked to hand over their phones as evidence and, more specifically, the issue of what have become known as “digital strip searches”. Rape victims, in particular, are normally asked to hand over digital devices and are subjected to having their privacy indiscriminately trawled through after they report a crime. Before I go any further, I pay tribute to the Victims’ Commissioner, Dame Vera Baird, for her leadership on this issue.
These matters were pursued in the Commons, and I shall just quote an extract from what my colleague, Sarah Jones MP, said during the Committee stage debates:
“Analysis of a rape crisis administrative dataset conducted by the office of the Victims’ Commissioner showed that one in five victims withdrew complaints at least in part because of disclosure and privacy concerns. Victims in 21% of cases had concerns about digital downloads, about disclosing GP, hospital, school and employment records, and about a combination of negative press coverage. Home Office data also shows an increase in pre-charge withdrawal of rape complaints. In the year ending December 2020, 42.8% of rape offences were closed as part of what is called the “evidential difficulties” category—where the victim did not support further police action against a suspect—compared with 25.6% in 2015. As we know, the charge rate for sexual offences is just 3.6%, and for rape it is 1.6%.”—[Official Report, Commons, Police, Crime, Sentencing and Courts Bill Committee, 27/5/21; col. 277.]
This issue of disclosure and privacy is a factor, too, in victims deciding whether even to report a rape or a crime in the first place. As I mentioned, these issues we are now debating were raised at every stage in the Commons by the Opposition, but we welcome the fact that the Government have listened to us and to the Victims’ Commissioner and have brought forward changes as reflected in government amendments to the Bill. I thank the Minister and the Bill team for their engagement on this part of the Bill.
The government amendments, to which the Minister will obviously refer, make much needed and welcome improvements to the Bill. There is more, though, that needs to be achieved, which various speakers in the debate this evening will no doubt cover, but we welcome the progress so far.
Government Amendment 81 deals with the key issue raised by the Victims’ Commissioner and our amendments: the power to extract information should not be used indiscriminately or to trawl through a victim’s life but should be used only where information is relevant to
“a reasonable line of enquiry”.
I particularly welcome that government Amendment 93 puts into the Bill that a victim can refuse to hand over a personal device and that they must be told that the investigation will not be ended just because they refused to consent to a download. Complainants being told that their cases will not continue unless they hand over the contents of their phone is exactly what independent sexual victims’ advisers and complainants have said has happened or happens on a daily basis. It is vital that the change not only legally limits what can be asked for but drives a culture change in how victims are treated. One hopes that this change to the Bill will provide a clear path forward.
However, I have a number of questions. The Government’s new clause says that a victim must not have “undue pressure” put on them to agree to data extraction. Surely being under any pressure in the context that we are talking about is undue. Do the Government not agree with that?
The new clause dictates that victims be provided with details in writing of what information is being sought and why and how it will be dealt with, explicitly stating that a victim can refuse to hand anything over, but what will be done to ensure that victims understand clearly and with confidence what is being asked for? A victim will often be in an extremely vulnerable state while they try to navigate and follow the system and what they are being asked for. Will the Victims’ Commissioner be involved in designing that written document, and will we have advance sight of it?
My Amendment 79, which is supported by the noble Baroness, Lady Jones of Moulsecoomb—for which I thank her—would answer the question of protecting victims as they go through this process. It would provide that a victim should be offered free, independent legal advice before they are asked to give consent to their device being accessed. There is precedent for this: the Home Office funded a pilot of independent legal advice dealing with digital download for rape complainants in Northumbria. The sexual violence complainants’ advocate scheme pilot engaged local solicitors to provide legal advice and support to rape complainants related to the complainant’s Article 8 rights to privacy. The pilot demonstrated what was happening in practice and found that about 50% of requests were not strictly necessary or proportionate. Some police officers who participated in the scheme expressed concern about this culture. The Home Office’s own pilot clearly demonstrated the need for and benefit of independent legal advice for victims in this area. I look forward to the Minister’s response on behalf of the Government.
There is a particular omission from the government amendments which we want to raise. Amendments in my name would require that the request for data be “strictly necessary and proportionate” to its purpose as part of a reasonable line of inquiry into a crime. Such a test, but which I think is worded as “reasonably necessary and proportionate”, is already a requirement of the data protection legislation for any such request for private material of this kind, but police practice has not always followed the Data Protection Act in this regard. We therefore seek this specific safeguard against too wide a search and too easy a rejection of other means of obtaining the information by including the “strict necessity” test in these clauses. I believe, although I will stand corrected if I am wrong, that the Victims’ Commissioner is of a similar view. I hope that the Minister will address this issue in the Government’s response.
I welcome Amendment 99, again tabled in response to issues that we have raised, which adds the Victims’ Commissioner, the domestic abuse commissioner and the Commissioner for Victims and Survivors for Northern Ireland to the list of people who must be consulted in preparing the code of practice. I also welcome the absolutely necessary amendments to the definition of adult to no longer include 16 and 17 year-olds.
Amendment 106A, a key amendment, would require the Government to extend the safeguards that we fought for in this section to third-party material. I am immensely grateful to the noble Lord, Lord Anderson of Ipswich, and the noble Baroness, Lady Newlove, for their support through adding their names to this amendment. Here we are talking about private material about a complainant that is held by a third party: medical records, school reports, social service records, or records of counselling or therapy that a person may have had, including pre-trial therapy.
It currently seems to be routine for excessive personal information to be requested from third parties. The results have a chilling effect on a victim’s confidence and are an immense invasion of privacy in contravention of the victim’s Article 8 rights to privacy. In one example case, a letter to school in which a rape complainant had, as a child, forged her mother’s signature to get out of a lesson she did not like was disclosed to the defence and used in cross-examination.
The Victims’ Commissioner reports on cases where a victim assaulted in their 30s is asked to consent to their child social services records being trawled. In cases of stranger rape, in which there has been no prior contact at all between the complainant and the accused, similar demands are made for a lifetime’s worth of information on the victim to be handed over. Independent sexual violence advisers report that these searches are demanded as standard and, of course, victims are regularly told that their cases will be dropped if they do not consent. The Victims’ Commissioner has said:
“It is my assertion that the only way to bring about a much-needed change in practice is to ensure that the framework in place to protect victims’ Article 8 rights is embedded in the legislation itself”.
Crucially, these protections, as I understand it, have the support of the National Police Chiefs’ Council lead for disclosure.
The police have offered their support, both on the grounds of reducing unnecessary infringements into a victim’s right to privacy and to reduce delays to investigations caused by the excessive and time-intensive pursuit of victims’ material that is not required by a reasonable line of inquiry. This, it is felt by the police, would reduce the likelihood of victim disengagement, which is one of the main challenges to overcome in order to improve performance in rape investigations. This is also an issue for organisations such as schools, NHS trusts and others that are approached for information and perhaps do not have the expertise on what is required of them. This issue has been raised with police and crime commissioners and investigated by the Information Commissioner.
A 2018 serious case review concerning sexual exploitation of children and adults with needs for care recommended a review of those practices. Referring to the spectacle he witnessed of vulnerable victims being cross-examined about their social services, school and medical records, senior barrister David Spicer stated:
“There is a strong argument that this is inhuman and degrading treatment prohibited by the European Convention on Human Rights and does not lead to fair administration of justice.”
The Victims’ Commissioner has also raised the recent issue that CPS guidance has been updated, apparently this month, to lower the threshold for disclosure of information. The update removes an existing narrow test for seeking to obtain third-party material based on previous case law, and instead lowers protections. This is a concerning development when, at the same time, the Government are agreeing to increased protections in other parts of the Bill.
The amendment on third-party material would require victims to be provided with details on what information is being sought and why, how it will be used, and for that information to pass a strict necessity test whereby requests would be permissible only as part of a reasonable line of inquiry. This amendment provides that victims must not be pressured or coerced into giving consent, and that other, less intrusive, options must be used where possible. Crucially, it provides that victims must be given access to free independent legal advice on their rights.
Lord Anderson of Ipswich (CB)
My Lords, I put my name to Amendment 106A, which the noble Lord, Lord Rosser, has just introduced thoroughly and persuasively. Although I have sat as a part-time judge in crime for many years now, I freely admit that I do not have the depth of background in this field of other noble Lords, not least the noble Lord, Lord Macdonald of River Glaven, who I see in his place. Nevertheless, I am inclined to support this amendment for three reasons, on which I hope the Minister might comment.
First, as I understand it, the amendment simply seeks to extend to third-party material the safeguards that have already been agreed by the Government in relation to data in the possession of the victim. Do the Government share that understanding? If they do not accept that the same protections are appropriate in those two situations, could the Minister explain why?
Secondly, the Victims’ Commissioner asserts in her detailed briefing that it has become “routine” for rape complainants to be asked to hand over excessive personal information, including third-party material. She cites, among other things, a CPS internal report reported in the Guardian in March 2020 to the effect that 65% of rape cases referred by police to the CPS for early investigation advice involved disproportionate and unnecessary requests for information. She quotes officers from Northumbria Police as saying that third-party material is a “real bone of contention” and:
“The CPS routinely ask us to obtain peoples 3rd party, medical, counselling and phone records regardless of whether a legitimate line of enquiry exists or not.”
Is that a picture the Government consider to be accurate?
Thirdly, it is said that this amendment has the full support of the National Police Chiefs’ Council lead for disclosure and of the Information Commissioner. That prompts me to wonder about the position of the Crown Prosecution Service, which seems equally relevant. Does the CPS take a different view from the policing lead and the Information Commissioner and, if so, how does it defend that view? I am sure that other noble Lords, like me, appreciate the difficulty of the task of the CPS and would give it a fair hearing. In summary, the Government seem to have a case to answer on Amendment 106A and I look forward to hearing from the Minister what that answer might be.
Baroness Bennett of Manor Castle (GP)
My Lords, I will speak briefly on my own behalf and that of my noble friend Lady Jones of Moulsecoomb, who is unable to be with us this evening. My noble friend attached her name to Amendments 79, 89 and 107. The noble Lord, Lord Rosser, has given us a very clear and complete explanation, so I just want to reflect on the average age of noble Lords, as we sometimes do. We really have to work quite hard to understand the way in which people’s lives are entirely contained in their phones, particularly younger people, and what an invasion it is to have that taken away.
The noble Lord, Lord Rosser, referred in particular to Amendment 107 and the situation of immigration officers. I have heard a number of accounts of what has been happening to people arriving, particularly from Calais and surrounding areas, on boats in the most difficult and fearful situations. For people who wish to contact family and friends to say they are safe or wish to make some kind of plan for the future, to lose their phone in those situations or have it taken away is very difficult.
We have not had an introduction to Amendment 103, tabled by the noble Lord, Lord Beith, to which I have attached my name. We have had expressions of concern from the Delegated Powers and Regulatory Reform Committee, and we really would like to hear from the Minister the justification for that. By oversight, I failed to attach my name to Amendment 104. As a former newspaper editor, I think we really need to get a very clear explanation of how confidential journalistic material could be covered under these circumstances. We have grave concerns about freedom and the rule of law in our society, and this is a particularly disturbing clause.
Lord Beith (LD)
My Lords, this is an important part of the Bill and an important and large group of amendments. I want simply to concentrate on the two amendments to which the noble Baroness has just referred: Amendments 103 and 104, which are in my name.
Amendment 103 follows concern from the Delegated Powers and Regulatory Reform Committee and its recommendation to deal with what it describes as an inappropriate delegation of power. The Bill leaves to regulation all provision about the exercise of the powers in Clauses 36(1) and 39(1) to extract confidential information. Regulations are to implement a code of practice, which will itself be consulted on. The committee believes these powers should instead be in the Bill, and I agree. However, I part company with the committee in its view that these powers, once put in the Bill, should be amendable by affirmative instrument. That is the creation of a Henry VIII power to modify primary legislation by means of secondary legislation, so I do not think it is the best way to handle the matter. Of course, one of the problems is that, whereas the process of creating the original material, if it is in the Bill, is an amendable process, that does not apply to any subsequent regulations which would definitely alter the material on the face of the Bill.
The Government’s argument for their approach—leaving it all to regulations—is that this is an area of fairly rapid technological change. It might become possible, for example, to extract a relevant subset of information rather than having to extract everything. However, that could be covered in the drafting of the Bill. A major change in the future would justify parliamentary legislation. If the technology really does change the situation dramatically, both Houses could deal with the matter by primary legislation.
I am sure there is a potential compromise under which the Bill could state more extensively and clearly the general principles governing the extraction of confidential information. It already does so to some extent, but if it did so further, it would narrow the range covered by regulations, if they are necessary at all.
It would also be helpful if the Minister could explain why the process to revise the code of practice from time to time would be subject to the negative procedure only. If the regulations which embody the code of practice are going to be changed significantly, why should that be only by the limitations of negative procedure?
Amendment 104 is quite different. It probes the provision in Clause 41(2)(a) covering confidential journalistic material with the meaning given in the Investigatory Powers Act 2016. The regulations are intended to cover the extraction and use of such material. It would be helpful if the Minister could set out the Government’s position and intention on confidential journalistic material and to what extent it is to be treated differently from protected material, such as legal privilege. We need that to be spelled out more clearly. I look forward to the Minister’s response.
Baroness Chakrabarti (Lab)
My Lords, I rise to speak in support of the broad thrust of all these amendments and in particular to support the most important one of all, which is Amendment 80 from the noble Lord, Lord Paddick, to which I have added my name.
To begin by way of balance—both political and gender balance—I pay tribute to the noble Baroness, Lady Newlove, who could not be here this evening but who has been incredibly supportive of women’s groups and has been alive to this issue for some considerable time. She was sorry not to be able to be here.
A few years ago, when I was sitting where the noble and learned Lord, Lord Falconer of Thoroton, sits now, I had the privilege of questioning a former Justice Minister about the legal basis for the practice that women’s groups and victims of sex crime had called digital strip searching. Many in your Lordships’ House groaned as if I was using an inappropriate phrase. To be honest, I did not get a lot of support from many noble Lords on any side of the House, but it is better to be late to the party than not come at all.
I say that to the Minister because there is no competition for sainthood here. All sides of this House are a little late to this issue, but we now have this precious opportunity to grapple with it. I do not think any of these formulations are perfect yet. I am so grateful to the Minister for discussing this with me recently, among other issues, as even the progress that the Government have made so far in these amendments can be improved.
I think the noble Lord, Lord Paddick, in his very simple Amendment 80, has done something incredibly important. I questioned the previous Justice Minister about the legal basis for taking these phones at all. Imagine that you have been raped or assaulted and have been through this horrific experience, but you do what a lot of people find very difficult to do—we know about the attrition rates—and go with a friend to the police station, to be told that you now have to hand over your device. The Minister will forgive me, but we discussed this together recently. If I were to hand my phone over, I am not just handing over an old-fashioned telephone; I have so many dear friends and family members whose numbers I do not know, because I click their names to call them. I have just been raped, but I am now giving away my contact with these people, my diary, my shopping lists and my browser, which shows all the mental health and other websites I have visited. Let us be clear: this is probably more intrusive than searching my home. The Minister will forgive me, but we discussed this together.
The Lord Bishop of Bristol
My Lords, some common themes are emerging. I rise in support of Amendment 107, which was tabled by the noble Lord, Lord Rosser, and to which I have added my name, alongside that of the noble Baroness, Lady Jones.
The inclusion in this Bill of immigration officers among those authorised to undertake digital extractions strikes me as extremely troubling, particularly in the absence of significantly more detail on the safeguards, including the meaning of “agreement” and the specificity of the data sought, and the relevant training and expertise of these officers. Voluntary provision and agreement to extract data must surely rely on a level of informed consent. If it is not, then “voluntary” and “agreement” are just empty words.
For vulnerable asylum seekers and other migrants who come to the attention of immigration officers, it is not remotely clear how such informed consent is to be assured under what is currently proposed. Asylum seekers have, by their nature, often experienced negative reactions with agents of the state. In 2020, the top five most common countries from which people were seeking asylum in the UK were Iran, Iraq, Albania, Eritrea and Sudan. These are, to state the obvious, not countries where citizens, never mind those who flee as asylum seekers, tend to develop trusting or positive relationships with state officials, particularly those in uniform. To this experience in their countries of origin we have to add the fear and unfamiliarity of their situation on arrival in the UK. The hostile environment and its successor policies have been immensely successful in at least one regard: many migrants have come greatly to fear our immigration officers and the powers that they possess.
In outlining what I have said so far, I am trying to explain the extraordinary power imbalance, to say nothing of the language barriers, in place between an immigration officer and asylum seeker. It is hard to imagine how, under such a scenario, informed consent for voluntary provision and agreement could legitimately be established. It is particularly hard to imagine when we see no safeguards provided for assuring what is meant by such agreement or on what specific data it is deemed legitimate to extract. It is crucial to get this right. The data-extraction provisions of the Bill look to place current and future practice on a statutory footing. This is important, because the present practice of immigration officers is extremely concerning.
When the Bill was in Committee in the other place, as we have heard, the Member for Rotherham raised an all too common example of an asylum hostel containing some 50 to 100 men, all of whom had had their mobile devices seized as they entered the country. This was done without clear explanation or debate, and certainly without informed agreement or consent. The men in question did not know what, if anything, had been taken from their phones or accessed. This is proving to be a common story expressed by those working in the refugee and asylum sectors. It has simply become part of the process that mobile devices will be confiscated, without clear explanation or consent.
As we have heard, data extraction is a particularly serious privacy interference. It ought to require a high bar of necessity to be reached to justify any such intrusion, and strict parameters on what data is being secured and for what purpose. By contrast, the Home Office has proven consistently reluctant to explain current processes, and I hope we might engage with it on how to take this forward.
As the lead Bishop on modern slavery and one of the Lords spiritual who works on migration issues, I am all too aware of the insidious evil presented by human trafficking and people smuggling. I therefore sympathise hugely with the Home Office, as it tries to counter organised crime in these areas. I do not doubt that there are cases in which data extraction could prove useful in that ongoing battle. However, I suggest in concluding that we can achieve the benefits of such activities without such widely drawn and unchecked powers for immigration officers. I hope the Government will engage in a full process of exploring how any relevant data can be obtained in a way that is consensual, limited, targeted and carried out by professionals with sensitivity training and expertise. In particular, I hope to hear more about how the extreme power imbalance produced by an immigration officer doing this extraction can be better addressed than the Bill does at present.
Lord Hayward (Con)
My Lords, as my noble friend Lady Wyld did earlier, I apologise for not being present at Second Reading. Like my noble friend, I had been diagnosed as a Covid sufferer only a few days beforehand and was unable to participate in the debate. Therefore, if I go slightly wider than one or two amendments, I hope the Committee recognises why.
In making my comments, first, I emphasise that what I say in no way minimises the impact that the failure to tackle rape and sexual assault is having on society, particularly women and young females. There is no doubt that there is a major problem. I think that all Members of this House, including me, are only too closely aware of cases of rape and sexual assault that have had a dramatic effect on the individuals concerned.
I take this opportunity to emphasise that this is not solely a women’s issue. This issue affects men in society as well, particularly gay men. I noticed that as I started that sentence the noble Lord, Lord Paddick, was nodding; we are particularly conscious of the impact that sexual violence and rape have in the gay community as well as among females. To everybody, not just those in this House, I say this: the regularity with which I hear this issue being discussed as if it is a female-only issue causes me enormous concern and, I think, causes a lot of people hurt.
Reference has been made to rape cases and non-reporting and people being deterred from reporting. I know of one particular case, very close to me, in which somebody was subjected to an attempted rape. They chose not to report it, not because they would have had to disclose their mobile phone but because they took the view that the police’s response would be, “Well, you put yourself in that position in the first place”. We have all heard that phrase in relation to women, but in this case, it applied to a man. It had no less effect, but that man took that decision under those circumstances.
On comments in relation to the police, in these debates, we always tend to refer to their failures. There are failures—there is no question about that—but we should also pay credit to the thousands of police across the country who handle this difficult subject incredibly well. Many of them are family men; they know what is going on. It is an incredibly difficult set of circumstances for them as well as for the individual concerned.
More specifically on mobile communications, I made my maiden speech in the other place several decades ago on telecommunications. You can download everything off a phone, as long as it has not been specially hidden in some way or other, in a matter of minutes, certainly a matter of hours. You need to hold a phone for a long period of time only if you have serious criminals who know how to hide the contents of the entries on it. I implore people not to exaggerate the delays that one is talking about. We all use our phones as our livelihood, as the noble Baroness, Lady Chakrabarti, said, but downloading can be undertaken incredibly quickly.
In conclusion, I now want to take a different route in the conversation. In doing so, as I say, I do not underestimate the problems of society regarding sexual assault and rape victims. However, can the Minister clarify how this legislation or other legislation will deal with individuals who are falsely accused? There has been much discussion this evening about victims, but there are all too many such cases—not a substantial number, but there are many cases. For example, noble Lords can think of the number of people in this Palace who have been found not guilty when cases have gone to trial. What rights do those people who are falsely accused have in terms of seeking access to their accuser’s phone—or, rather, what rights do the police have in gaining access? It is all too easy for somebody to make a false accusation and then say they have lost their phone or delay handing it over. If you delay by 12 months, the records have disappeared in the vast majority of circumstances because the phone companies do not store them for more than that. There are a series of questions that need answering, and in the same way as we deal with genuine victims, we need to give consideration to those who are falsely accused and face many problems.
Lord Paddick (LD)
My Lords, I have Amendments 80, 90A, 94, 96, and 97 in this group. I was hoping that this group might be an example of this House at its best, where reasonable and reasoned amendments have been tabled, the Government have seen and responded positively to them and the Bill could be improved as a result. We clearly do not all agree on everything yet, but what all sides of the House—including the Government —appear to agree on is that the Bill as drafted and passed by the other place in respect of Chapter 3 on the extraction of information from electronic devices is not fit for purpose.
I shall take my amendments first. The House of Lords Constitution Committee raised concerns about victims of crime not coming forward or withdrawing from the criminal justice process because they may have to hand over personal and sensitive data, particularly victims and survivors of violence against women and girls, including rape. Although the draft code of practice published by the Government includes guidance that suggests refusal to provide a device or to agree to the extraction of information from it should not automatically result in the closure of any inquiry or complaint—particularly in light of the dramatic reduction in charges and prosecutions for rape over the past five years—the committee recommended that safeguards that protect victims’ rights to privacy and guard against digital extraction as a condition for continuing an investigation or prosecution should appear in the Bill rather than in a non-binding code of practice. Amendment 80 addresses the issue raised by the Constitution Committee. I am very grateful for the support of the noble Baroness, Lady Chakrabarti, in her powerful and compelling contribution.
This issue is partially addressed by government Amendment 93, which states that a person must not have been placed under undue pressure to provide the device or agree to the extraction of information from it and that a written notice must be provided which states that the person may refuse and that the investigation or inquiry will not be brought to an end merely because of that refusal. As well as being given the information in writing, the person should be told this orally and be reassured by the investigating officer. The government amendment does not go far enough.
I would go further and say that what people store on their electronic devices and share with each other has changed dramatically over the years. In particular, those from older generations may not be aware of the degree of openness with which explicit images, for example, are routinely shared using electronic devices, potentially leading prosecutors and jurors to draw unjustified conclusions about the behaviour of victims of rape or sexual assault in particular, whether they be male or female. Thankfully, most right-minded people no longer think a woman wearing a short skirt is “asking for it”, but there may be a way to go before the sharing of intimate photographs, for example, is dismissed in a similar way. That is why it is essential that victims are reassured in the way these amendments are intended to provide.
Amendment 90A makes a slightly different point and covers a similar area to that provided by Amendment 92 from the noble Lord, Lord Rosser, in relation to the extraction of information from devices used by children and adults without capacity. In relation to both groups of users, the noble Lord, Lord Rosser, suggests that a “registered social worker” give authority for the extraction of information, in the absence of a parent or guardian, whereas, in Clause 37(3)(b), the Government suggest that
“any responsible person who is aged 18 or over other than a relevant authorised person”
can give authority. Although police constables and members of staff appointed as authorised persons by chief constables would be excluded, police members of staff not authorised would not be excluded.
From my own professional experience, I know that it is often difficult to get hold of parents or guardians or to get them to co-operate, for example by attending a police station when their child is in custody. Equally, it is difficult to get hold of a social worker, particularly outside office hours, where there may be only one or a few social workers on call, dealing with the whole range of social work responsibilities—hence the “appropriate adults” scheme was established to look after the interests of children and vulnerable adults in custody. Appropriate adults are volunteers, recruited through local schemes, who are selected for their ability to act with independence from the police. Schemes take into account volunteers’ attitudes and motivations and any other roles that they may hold. They undergo training in the appropriate adults role and undergo a criminal record—DBS—check, although a criminal record will not necessarily act as an automatic bar.
Amendment 90A seeks to find a compromise between allowing any responsible person aged 18 or over, including potentially those employed by the police, to give authority for the handing over and extraction of data from a child’s or vulnerable adult’s electronic device and the registered social worker who is not always readily available, proposed by the noble Lord, Lord Rosser, in his Amendment 89.
I apologise—this is a long group. Amendment 96 seeks to increase the authority level for the extraction of information to a senior officer—at a rank where someone of that rank is normally on duty 24 hours a day, seven days a week, and readily available—who is independent of the investigation and can objectively assess whether the conditions that allow for the extraction of information have been met. There are precedents across policing: for example, custody officers or those authorising the deployment of covert surveillance, where someone independent of the investigation makes these kinds of decisions.
Amendment 97 is again intended to provide parliamentary scrutiny of guidance, as is Amendment 102, proposed by the noble Lord, Lord Rosser, to which I have added my name. I agree wholeheartedly with my noble friend Lord Beith’s Amendment 103 that the restrictions on the exercise of power to extract information in relation to confidential information must be in the Bill and not simply contained in regulations. I understand the reasons for wanting to exclude immigration officers from the list of authorised persons who can extract information from electronic devices, as proposed by the noble Lord, Lord Rosser, in his Amendment 107.
On immigration officers, we share the belief that there should be a firewall between criminal investigations and immigration enforcement, to the extent that details about the immigration status of victims should not be passed to the immigration authorities but should be dealt with elsewhere. I can envisage circumstances where immigration officers may need to download information from electronic devices—for example, to tackle people smuggling—although I accept what the noble Lord, Lord Rosser, said, which was that that should perhaps be a matter for the police rather than immigration officers.
I also accept the very important point made by the right reverend Prelate the Bishop of Bristol about the particular vulnerability of asylum seekers and their lack of knowledge of what the law allows and does not allow immigration officers to do, and how we need many more safeguards for asylum seekers in this provision. We also wholeheartedly agree with Amendment 106A regarding requests for third-party material. If I had not been overwhelmed by the volume of amendments added to the Bill every day, I would have added my name to that amendment.
We all in different ways have attempted to provide a more robust but workable regime around the extraction of information from mobile devices. The best way forward would be for all noble Lords, including the Minister, to withdraw their amendments, for the Minister and officials to meet with us before Report, and for officials to take the best from each of these amendments and those discussions, to produce a single set of amendments to which hopefully we can agree, rather than having to put down amendments on Report to the government amendments agreed in Committee. Taking the debate offline will save time on the Floor of the House on Report, when the agreed amendments could simply be nodded through. However, it appears that the Labour Opposition are content to allow the government amendments to be agreed at this stage, despite the clear differences between what they are proposing and the government amendments.
The noble Lord, Lord Hayward, made the important point, as we did on these Benches when this House debated the Domestic Abuse Bill, that these issues also affect men. The noble Lord also praised the police, who are in a very difficult position, which the noble Lord, Lord Anderson of Ipswich, alluded to, where they find themselves under pressure from the Crown Prosecution Service to go further than maybe even police officers may be comfortable going in terms of accessing personal information from victims’ phones. I repeat the question asked by the noble Lord: who speaks for the Crown Prosecution Service in this debate?
I studied politics at university, I was a very senior police officer for years, I ran for Mayor of London twice and I have been a member of your Lordships’ House for over eight years, but I still do not understand politics. Suffice it to say that, without Labour support, there is no point in dividing the Committee if the Government move their amendments formally at this stage.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, I join the noble Lords, Lord Paddick and Lord Rosser, in apologising to the House for the length of my comments. It might assist the Committee if I begin with a brief overview of the provisions in Chapter 3 of Part 2 of the Bill. These provisions will establish, for the first time, a clear statutory basis for the extraction of information from digital devices with the agreement of the device user, and introduce safeguards to protect the privacy of victims, witnesses and others. I echo the comments of the noble Baroness, Lady Chakrabarti, that it is a vast intrusion. People’s lives are on their digital devices and I understand the sensitivity of that.
The current approach to the extraction of information from digital devices has been criticised as inconsistent and, as the noble Lord, Lord Rosser, says, as being tantamount to a digital strip search, where devices were taken as a matter of course and where, in many cases, all the sensitive personal data belonging to a device user was extracted and processed, even when it was not relevant to the offence under investigation. Clearly, that is unacceptable. This resulted in privacy and victims’ groups opposing this practice, particularly in cases where the device belongs to a victim or witness.
A consistent approach is clearly needed to ensure that requests for information are made with the victim’s right to privacy in mind and to ensure that all those agreeing to provide their sensitive personal data have all the information that they need to make that decision, including details on why their information is needed, how it will be used and their right to refuse to share that information without any negative consequences. This lack of consistency is of particular concern where the offences under investigation are those such as rape and serious sexual assault, where the victim is likely to be extremely distressed, as the noble Baroness, Lady Chakrabarti, said, and where rates of reporting and conviction are far too low.
Lord Hayward (Con)
I thank my noble friend for that answer, but I ask her to clarify her use of the words “where there is evidence”. In these circumstances, somebody who is accused will be making a counteraccusation, or a counterobservation, and therefore there may not be evidence. The evidence is likely to be on the phone in modern-day communications.
Baroness Fox of Buckley (Non-Afl)
To back that up, I point out that Oliver Mears, Samson Makele and Liam Allan were three young men who were nearly the victims of miscarriages of justice in those circumstances. If we say that a victim’s phone will be looked at, we are assuming that they are the victim, but it is an ambivalent point while somebody is innocent until proven guilty. We just have to be a little cautious about the language we use, because in one instance the police suppressed information—they had the phone details but did not put it forward—but in the others, it was on the phone that the proof was found. We just need balance. I do not want digital strip searches, but I do not want miscarriages of justice. People are squeamish about looking for evidence on people’s phones because they are presented as victims.
Baroness Williams of Trafford (Con)
Perhaps I should have said “alleged victim”; that goes to my noble friend’s point. Each case is different, but usually the remedy is through the court process and it is established where the perversion of justice might be taking place. But I thank my noble friend for his point about the alleged victim.
Lord Beith (LD)
I hope I am right, but surely there is nothing in the provisions being carried through now that would in any way relieve the prosecution of the obligation to disclose to the defence any material that came from this process and was potentially of assistance to the defence.
Baroness Williams of Trafford (Con)
The noble Lord is absolutely right, but I think my noble friend is making a point about where the tables are turned and the alleged victim is not the victim at all.
Baroness Chakrabarti (Lab)
In the sort of scenario being described, the suspect—not yet a defendant—will be able to say, “This was consensual and there is a text message that will demonstrate that.” Once that is asserted, that can be sought. It is not a justification for the kind of wholesale retention of mobile phones and trawling of data that people fear. I know that the hour is late and that the Minister wants to make progress, but I just want to put two questions before I sit down and let her finish her response.
First, I noticed while the Minister was speaking that the formulation used in my noble friend Lord Rosser’s Amendment 89 is “strict necessity”, whereas in the government amendments the test is of necessity—
Baroness Williams of Trafford (Con)
If the noble Baroness would bear with me, I am going to get on to that point about the read-across to other things. I hope that I have made it clear that I totally empathise with and get the point that my noble friend is making and that the remedy should be established through the court process.
Amendments 99 to 101 address a further point raised by the Victims’ Commissioner; namely, that she and other like commissioners have a statutory right to be consulted on the code of practice. This will give victims and witnesses further confidence that their concerns and priorities are represented in this code of practice.
Amendment 105 will ensure that the Scottish Ministers and the Northern Ireland Department of Justice are consulted before regulations are made to add, remove or amend an authority with devolved competence under Schedule 3.
Government Amendments 108 and 109 add to the list of authorised persons in Schedule 3. Amendment 108 will ensure that authorised persons in the Insolvency Service can exercise the Clause 36 power for the purposes of the prevention, detection or investigation of crime in pursuit of their functions, which include tackling financial wrongdoing. This was initially a mystery to me, but the Insolvency Service is an executive agency of the Department for Business, Energy and Industrial Strategy, hence the language used in the amendment, but it is important to note that the reference to an officer of BEIS is qualified because any individual falling within that description may exercise the powers only for the prevention, detection or investigation of crime. Schedule 3 already enables the Independent Office for Police Conduct to exercise the Clause 36 powers. Amendment 109 adds the equivalent bodies in Scotland and Northern Ireland.
As I have said, we believe that the government amendments address many of the points raised in amendments tabled by the noble Lords, Lord Rosser and Lord Paddick, but I will now turn to some of the other amendments in this group. Amendment 79 seeks to provide free independent legal advice to device users before they agree to the extraction of information from their device. Government Amendment 93 will ensure that device users are fully informed of the reasons that the information has been sought and how the information will be used. We do not think that provisions in this chapter are the right place to address what is a broader issue about the provision of legal advice to victims and witnesses given the wider impacts across the criminal justice system as a whole.
As regards Amendment 89, the noble Lord, Lord Rosser, highlighted the alternative drafting in respect of the test for the exercise of the Clause 36 powers. As the Bill is drafted, the authorised person must be satisfied that the exercise of the power is necessary and proportionate to achieve the relevant purpose. Under Amendment 89, this necessity test would become one of “strictly necessary”. The matter was also raised by the Victims’ Commissioner in briefings to noble Lords.
We understand that the reason for the concern is the strict necessity requirement in the Data Protection Act 2018. The powers in Clauses 36 and 39 must be read alongside existing obligations under the 2018 Act or the UK GDPR. In every case where authorised persons are extracting sensitive personal information from a device under these powers for a law enforcement purpose, such as preventing, detecting, investigating or prosecuting crime, they must continue to meet the strict necessity threshold in the Data Protection Act. It is therefore not necessary to duplicate that existing legal requirement in the Bill; it is there.
Lord Falconer of Thoroton (Lab)
I apologise for intervening. The Minister has been very helpful with this comprehensive response, but she said that the Government were not going to respond to the Delegated Powers Committee’s report until “the next stage”. It would be wholly unsatisfactory if they did not respond to that detailed report, which was issued weeks ago, until just before Report, because we have submitted a range of amendments. The House trusts the Minister, so could she do a bit better than “the next stage” and respond before Committee is over?
Baroness Williams of Trafford (Con)
My Lords, I will do my damnedest. I will take back the noble and learned Lord’s comments and see what is in the art of the possible. I can do no more than promise that, if he is happy with that—or rather, if he will accept it.
I will move on swiftly to Amendment 107, which seeks to remove immigration officers from Schedule 3, so that they can no longer exercise the powers in this Bill. Immigration officers play a vital role in protecting vulnerable people, in particular those who may be victims of trafficking, and it is important that they are able to obtain information that may be vital to these and other investigations. I therefore do not accept that immigration officers should not have access to these powers, subject to the same safeguards that apply to other authorised persons.
Finally, Amendment 106A relates to third-party material, an issue highlighted not just by the noble Lords, Lord Rosser and Lord Anderson, this evening, but by the Victims’ Commissioner, Dame Vera Baird. The amendment highlights a very important issue around the proportionality of requests for third-party material relevant to a victim. This material can be highly sensitive—for example, medical records. We agree that such material should only ever be sought where there is a reasonable line of inquiry, but we are aware that this is not always the case. There are examples where such requests cannot be justified, and this has a detrimental impact on the confidence of victims.
The noble Lord, Lord Rosser, also talked about written information given to victims. The police forces will use the digital processing notices developed by the NPCC for this purpose. The DPN, in layman’s terms, explains how the police extract the information, which information might be extracted, for how long it might be retained—that question was raised by the noble Baroness, Lady Chakrabarti, and answered in part by my noble friend Lord Hayward—and what happens to irrelevant material found on the device. The DPN makes clear that investigators must respect individual rights to privacy and must not go beyond reasonable lines of inquiry.
The Government wholeheartedly agree that there needs to be a consistent approach to ensure that requests for third-party material are made with the victim’s right to privacy in mind and to ensure that the victim is fully informed. This principle is key to a number of actions in the Government’s end-to-end rape review, which we published in June.
Moving on to the points made by the noble Lord, Lord Anderson, on Amendment 106A, our understanding is that the NPCC agrees in principle to the need for legislation but has not taken a view on a particular legislative solution. As I have indicated, this issue requires further examination, so I thank the noble Lord. I understand that the CPS similarly accepts the need for appropriate controls on access to third-party material.
The police and the CPS are working on new guidance for the investigators and victims which can be finalised after the Information Commissioner’s Office publishes its report on data in rape cases, which is due imminently. We will also consider whether a change is required to the Attorney-General’s guidelines. This will give us an opportunity to consider the broader landscape with regards to proportionality in requests for evidence from victims and whether further steps should then be taken. In terms of DPNs and involvement of the Victims’ Commissioner: yes, she has been involved with the development of the digital processing notices.
I apologise again for the length of my remarks to the Committee. The Committee has raised important issues in respect of the privacy of victims and witnesses, and it is very important we get the framework in the Bill right. I hope noble Lords will agree that we have listened to the concerns that additional safeguards should be set out in the Bill and will be content to agree the government amendments in lieu of their own. I say to the noble Lords, Lord Paddick and Lord Beith, that we will consider further their Amendments 97 and 103, and to the noble Lord, Lord Rosser, that we are very alive to the issues around third-party material. For now, I ask the noble Lord, Lord Rosser, to withdraw Amendment 79.
Lord Paddick (LD)
My Lords, very briefly: I really am grateful to the Minister. It is a very big group, and it is difficult to take in everything she said. But we have to be very careful. People will be reading the record of this debate. I think I heard the Minister say that the authorised person must explain that the investigation or inquiry will not be brought to an end if they refuse to hand over their device. That is not what it says on the face of the Bill. It says the person must be given a written notice.
These might have been many decades ago, but I know of situations where police officers shoved a piece of paper in front of somebody who was either a victim or a suspect—even somebody who could not read—and said something different from what was on the piece of paper. So I think we have to make it absolutely clear in the Bill, not just in the guidance or the codes of practice, that this must be explained, which was the meaning of one of my amendments.
The other thing I think I heard the Minister say—it is late—is that the authorised person must explain to the victim that refusal would have no negative consequences. That cannot possibly be right. For example, in a rape case where consent is an issue—where, perhaps, the defence argued that there were exchanges of messages or some such things that go to the heart of whether consent is an issue—and the victim refuses to hand over their device, there could be negative consequences when it comes to trial. Again, I understand that the Minister wants to be helpful and reassuring to victims, but we have to be absolutely clear what we are promising here, if it is being said on the record in this Committee.
Baroness Williams of Trafford (Con)
The hour is late. Because these things are so important, I will reiterate them in a letter to the noble Lord.
Lord Rosser (Lab)
First, I thank all noble Lords who have spoken in this debate. I also thank the Minister for her detailed response. I do not think she need apologise in any way for the length of it, since I am sure noble Lords would rather have a full response to the points that have been made than a shortened response. Like other noble Lords, I will read carefully in Hansard everything she had to say in reply to my amendments, as I am sure other noble Lords will in relation to their amendments. This part of the Bill has certainly been improved by the government amendments, which we welcome. But, equally, it can and should be further strengthened and improved.
There are a number of outstanding issues of concern, which I and other noble Lords have raised this evening and which I know Minister is aware of. I hope that she will agree to further discussions between now and Report on those issues of concern that have been raised in this debate. I know that the Minister is usually very open to holding such discussions—I see she is nodding—and will agree to that, as I say, between now and Report.
“(za) in a case where the authorised person proposes to exercise the power for a purpose within subsection (2)(a), the authorised person reasonably believes that information stored on the electronic device is relevant to a reasonable line of enquiry which is being, or is to be, pursued by an authorised person,”Member’s explanatory statement
This amendment has the effect that, to exercise the power in Clause 36(1) for the purposes of preventing etc crime, an authorised person must reasonably believe that information stored on an electronic device is relevant to a reasonable line of enquiry.
“(a) in a case where the authorised person proposes to exercise the power for a purpose within subsection (2)(b) or (c), the authorised person reasonably believes that information stored on the electronic device is relevant to that purpose,”Member’s explanatory statement
This amendment is consequential on the amendment in the name of Baroness Williams of Trafford at page 29, line 26.
Member’s explanatory statement
This amendment is consequential on the amendment in the name of Baroness Williams of Trafford at page 29, line 26.
Member’s explanatory statement
This amendment is consequential on the amendment in the name of Baroness Williams of Trafford at page 29, line 26.
Member’s explanatory statement
This amendment changes the definition of “adult” for the purposes of Chapter 3 of Part 2 so that it covers a person aged 18 or over.
Member’s explanatory statement
This amendment changes the definition of “child” for the purposes of Chapter 3 of Part 2 so that it covers a person aged under 18 rather than a person aged under 16.
““criminal offence” includes—(a) a service offence within the meaning of the Armed Forces Act 2006, and(b) an SDA offence within the meaning of the Armed Forces Act 2006 (Transitional Provisions etc) Order 2009 (S.I. 2009/ 1059);”Member’s explanatory statement
This amendment clarifies that the references in Clause 36(3) to a criminal offence include a service offence under the Armed Forces Act 2006 or under any of the Acts that it replaces.
Member’s explanatory statement
This amendment is consequential on the amendment in the name of Baroness Williams of Trafford which inserts a new Clause after Clause 37.
Member’s explanatory statement
This amendment is consequential on the amendment in the name of Baroness Williams of Trafford at page 30, line 8.
“(12) This section is subject to section (Requirements for voluntary provision and agreement)(requirements for voluntary provision and agreement).”Member’s explanatory statement
This amendment is consequential on the amendment in the name of Baroness Williams of Trafford to insert a new Clause after Clause 37.
“Requirements for voluntary provision and agreement
(1) A person (“P”) is to be treated for the purposes of section 36 or 37 as having—(a) voluntarily provided an electronic device to an authorised person, and(b) agreed to the extraction of information from the device by an authorised person,only if the requirements of this section have been met.(2) An authorised person must not have placed undue pressure on P to provide the device or agree to the extraction of information from it.(3) An authorised person must have given P notice in writing—(a) specifying or describing the information that is sought,(b) specifying the reason why the information is sought,(c) specifying how the information will be dealt with once it has been extracted,(d) stating that P may refuse to provide the device or agree to the extraction of information from it, and(e) stating that the investigation or enquiry for the purposes of which the information is sought will not be brought to an end merely because P refuses to provide the device or agree to the extraction of information from it.(4) Subject to subsection (5), P must have confirmed in writing that P has—(a) voluntarily provided the device to an authorised person, and(b) agreed to the extraction of information from the device by an authorised person.(5) If P was unable to provide that confirmation in writing as a result of P’s physical impairment or lack of literacy skills—(a) P must have given that confirmation orally, and(b) an authorised person must have recorded P’s confirmation in writing.(6) If P’s confirmation was given in writing and in hard copy form, the authorised person must have given P a copy of that confirmation (in hard copy or electronic form).(7) If P’s confirmation was given orally, the authorised person must have given P a copy of the record of that confirmation (in hard copy or electronic form).” Member’s explanatory statement
This amendment sets out the requirements which must be met before a person is treated as having voluntarily provided an electronic device, and having agreed to the extraction of information from the device, for the purposes of Clauses 36 or 37.
“(1A) The code may make different provision for different purposes or areas.”Member’s explanatory statement
This amendment enables a code of practice under Clause 40 to make different provision for different purposes or areas.
“(ca) the Commissioner for Victims and Witnesses,(cb) the Domestic Abuse Commissioner,(cc) the Commission for Victims and Survivors for Northern Ireland,”Member’s explanatory statement
This amendment adds the persons and bodies mentioned to the list of persons who must be consulted in the preparation of a code of practice under Clause 40.
“(2A) Subsection (2)(cc) does not apply on or after the day appointed under Article 4(4) of the Victims and Survivors (Northern Ireland) Order 2006 (S.I. 2006/2953 (N.I. 17)) (power to revoke Article 4).”Member’s explanatory statement
This amendment provides for the duty to consult the Commission for Victims and Survivors for Northern Ireland to cease to apply if an order is made revoking the provision which creates that body.
Member’s explanatory statement
This amendment is consequential on the amendment in the name of Baroness Williams of Trafford at page 34, line 19.
“(5A) The Secretary of State must consult the Scottish Ministers before making regulations under subsection (4) if and so far as the regulations make provision that would be within the legislative competence of the Scottish Parliament if it were contained in an Act of that Parliament. (5B) The Secretary of State must consult the Department of Justice in Northern Ireland before making regulations under subsection (4) if and so far as the regulations make provision that, if it were contained in an Act of the Northern Ireland Assembly—(a) would be within the legislative competence of that Assembly, and(b) would not require the consent of the Secretary of State.”Member’s explanatory statement
This amendment requires the Secretary of State to consult the Scottish Ministers or the Department of Justice in Northern Ireland before making regulations under Clause 42(4) which would be within the legislative competence of the Scottish Parliament or the Northern Ireland Assembly.
Police, Crime, Sentencing and Courts Bill
Monday 1st November 2021
(2 years, 6 months ago)
Lords ChamberRead Full debate Police, Crime, Sentencing and Courts Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 40-V Fifth marshalled list for Committee - (1 Nov 2021)
Lord Moylan
“Retention by the police of personal data relating to non-criminal conduct perceived to be motivated by hostility
(1) The processing of relevant data by a police authority in accordance with Article 6(1) of the GDPR and section 35 of the Data Protection Act 2018 is not lawful unless it is undertaken in accordance with regulations made by statutory instrument under this section.(2) In this section, “relevant data” means personal data relating to a data subject which is based in whole or in part on the perception by another person that the conduct of the data subject was motivated wholly or partially by hostility or prejudice towards any group of people sharing a characteristic and where the conduct in question is unlikely to constitute a criminal offence.(3) In this section, “a police authority” means—(a) a person specified or described in paragraphs 5 to 20 of Schedule 7 to the Data Protection Act 2018;(b) a person acting under the authority of such a person.(4) Subsection (1) does not apply in respect of the processing of information—(a) pursuant to an ongoing criminal investigation;(b) for the purposes of the internal administrative functions of the police authority.(5) Regulations under this section must—(a) identify different categories of personal data and processing of the personal data in question;(b) include provisions by reference to each of the various categories of processing and personal data as to—(i) the person or persons whose authority is required for the processing of the personal data;(ii) the notifying of the data subject of the processing of the personal data; (iii) the period for which the personal data can be retained (including provision for the granting of authority for extending that period);(iv) the disclosure of the personal data to third parties;(c) have particular regard to the importance of the right to freedom of expression and the extent to which that right is adversely affected by the processing of relevant data by any police authority.(6) A statutory instrument containing regulations under this section may not be made unless a draft of the instrument has been laid before, and approved by resolution of, each House of Parliament.(7) In section 113B of the Police Act 1997, after subsection (3) insert—“(3A) An enhanced criminal record certificate must not give the details of a relevant matter to the extent that doing so would result in the disclosure of relevant data as defined at subsection (2) of section (Retention by the police of personal data relating to non-criminal conduct perceived to be motivated by hostility) of the Police, Crime, Sentencing and Courts Act 2021.”(8) In this section—(a) the terms “personal data”, “data subject”, “processing” and “the GDPR” have the same meanings as under section 3 of the Data Protection Act 2018;(b) the term “characteristic” includes but is not limited to any protected characteristics under section 4 of the Equality Act 2010.”
Lord Moylan (Con)
My Lords, I rise to speak to Amendments 106, 326 and 330 in my name. In doing so, I have been requested to offer the apologies of the noble Lord, Lord Macdonald of River Glaven, who wished very much to speak on this amendment and whose name is on the list of supporters, but he was not able to be here because of professional obligations.
Amendments 326 and 330 are essentially minor consequential amendments; the meat, if you like, of the debate on these amendments is in Amendment 106. These amendments concern non-crime hate incidents. They are a subject of controversy and much debated, but I hope to persuade your Lordships’ House that this amendment is largely not controversial because it is essentially procedural in character and does not change current practice for recording those crimes.
With so many distinguished lawyers having indicated that they wish to speak in this debate, I hesitate to start by giving a brief summary of the legal background, but I shall do so tentatively and subject to their correction. A hate crime is a crime—it may, in principle, be any crime—that is conjoined with a motivation, on the part of the perpetrator, of hatred towards a particular or specified group. That hatred needs to be perceived either by the victim or by one of a number of other groups of people acting reasonably—for example, a witness, such as a police constable or whatever. It is an alloy, if you like, of a crime and a motivation.
But what happens if one part of that alloy is missing—if there is evidence of a motivation of hate but there is actually no crime or no action that constitutes a crime or meets the threshold for bringing a prosecution? That is the essence of the non-crime hate incident: a hate incident that occurs without being conjoined with a crime. Such non-crime hate incidents are often recorded by the police, and, if the perpetrator is known, they are recorded against their name, so to speak: they go to a record in the name of that person. At the moment, all this happens under guidance issued by the College of Policing. This guidance is quite extensive and elaborate, if you choose to look it up, but it has no statutory force or democratic supervision, and it is inconsistently applied between police forces.
I think that most noble Lords would agree that this is not a satisfactory position. The bulk of this amendment—all of it, apart from one subsection that I will come to shortly—effectively obliges the Home Secretary to issue guidance within six months of the passage of the Bill and to take account of certain matters in doing so, one of which is the human right to freedom of expression. It does not tell her what the guidance that she issues should contain or prevent her from adopting the existing guidance wholesale, should she wish to do so, but it brings the whole matter under political oversight for the first time. Because it is proposed that this should be done through a statutory instrument made under the affirmative procedure, it brings it to the attention, and makes it available for the comment, of both Houses of Parliament. So democratic accountability will be brought to this process for the first time, and I think that that can only be widely welcomed by Members of this House.
This amendment does not explicitly affect police practice in relation to any current police investigation. It does not apply to any police action in relation to hatred expressed towards an individual as opposed to that motivated by hatred of a group. Cases of stalking and things of that character directed at an individual would not be caught by the amendment.
That deals with the bulk of the amendment—all the parts of it—except subsection (7) of the proposed new clause. I am going to come to that separately because it is slightly different. Subsection (7) prohibits the police from including this data, if they have recorded it, when responding to requests for an enhanced criminal record check. As I say, it has a slightly different character to the rest of the amendment, but it addresses what I—and many others—perceive as an injustice.
Other noble Lords may speak later, giving instances of that injustice by referring to particular cases. I would like to address what I regard as the principle of the injustice. If you are accused of a crime, you have the opportunity to state your case and protest your innocence in an open court in front of an impartial judge and a jury. That is not the case if you have a non-crime hate incident recorded against your name. There is no process that those who believe themselves to be innocent of that allegation can pursue to clear their name apart from judicial review which, as we know, is an expensive and arduous process and not available to most people.
This can attach a stigma to a person’s name that will potentially last for the rest of their life. They will be stigmatised for many years for not committing a crime. That seems to be a real and serious injustice, but it is not merely abstract and, as other noble Lords may explain, particular cases illustrate it. Given that this is a largely procedural amendment that adds democratic accountability to a process, I hope it will find support on all sides of the Committee and, indeed, from the Government. I beg to move.
Lord Sandhurst (Con)
My Lords, it is a privilege to follow and support my noble friend Lord Moylan. If this speech is a little bit longer than I originally intended, it is to cover some of the ground that I understand would have been covered by the noble Lord, Lord Macdonald of River Glaven.
Making non-crime hate records has real-life consequences for an individual that are too important to be left unregulated. As we have heard, non-crime hate records are kept when no crime has been committed but the police decide that they have grounds for concern about how that person might behave in the future. Once such a record is made, it can remain for ever, without review. It will be disclosed in an enhanced criminal record request. It does not take George Orwell to show where that can lead. I suggest Sir Robert Peel would have been astonished.
I turn to the real-life case of Harry Miller of Lincolnshire. In 2018 and 2019, he posted tweets about transgender issues on Twitter. He holds gender-critical views but denies being prejudiced against transgender people. To quote from the judgment in the subsequent judicial review:
“He regards himself as taking part in the ongoing debate about reform of the law”.
Mrs B, a transgender woman, read the tweets and regarded them as transphobic. She reported them to Humberside Police, which recorded this as a non-crime hate incident. She was the only person to complain. A police officer visited Mr Miller at work to speak to him—in his workplace—about these tweets and left Mr Miller with the impression that he might be prosecuted if he continued such tweeting. In a subsequent press statement, an assistant chief constable raised the possibility of criminal proceedings if matters escalated. Imagine what that felt like for Mr Miller. He, however, applied for judicial review.
Mr Justice Julian Knowles, in a very fine and lengthy judgment, found that the police’s action towards Mr Miller disproportionately interfered with his right of freedom of expression. He reminded us that free speech is an essential component of democracy and of these words in the unpublished introduction to Animal Farm:
“If liberty means anything at all, it means the right to tell people what they do not want to hear.”
As the judge stressed, true free speech includes
“the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative.”
On the facts, the judge concluded that the tweets were lawful and there was not the slightest risk that Mr Miller would commit a criminal offence by continuing to tweet. That is the judgment in the High Court. Further, he said the police visit to the place of work, coupled with the subsequent press statement, combined to create a disproportionate interference with Mr Miller’s right of freedom of expression. He found that this had a potential chilling effect.
Therefore, the police should not continue to record non-criminal speech without proper oversight—that is what we ask. There must be clear criteria applied by all police forces uniformly. At present, the College of Policing lays down guidelines, but they are no more than guidelines: a police force is free, in principle, to depart from the guidelines. Indeed, the current guidelines state that:
“The recording system for local recording of non-crime hate incidents varies according to local force policy.”
That is not acceptable. These records, by definition, are of a non-crime; they are subject to no time limits; and the guidelines do not provide for mandatory periodic review, whether after one year, five years or 20 years. This is too important to be left to varying and uncertain police practice. Policy and practice in this field cannot properly be left to the wide discretion of different police forces. It should be for the Secretary of State, answerable to Parliament, to decide when, if at all, and in what circumstances and how such records may be made and kept.
A person’s reputation is of inestimable value. If a confidential record is made that he or she has spoken or behaved in a way that someone else has perceived to be motivated by hostility but which does not amount to a crime, that individual becomes a marked man or woman when a request is made by a current or prospective employer for an enhanced Disclosure and Barring Service check. As matters stand, that mark or stain can remain for ever, so what is at stake is very serious. This amendment will ensure that regulations set a definitive framework to ensure fairness; to ensure a consistent and fair process of selecting and recording personal data, identifying the different categories of personal data and its processing, identifying the persons whose authority is required for such processing, ensuring they are of suitable rank, the notification of the individual who is the data subject, how long the data may be retained and with what reviews. If someone is to be denied employment, we must be confident that the basis for this is sound and properly managed.
We have heard from my noble friend that the provisions will not apply to the processing of information pursuant to ongoing criminal investigation, nor for the purposes of administrative functions of the police authority. There will be no interference with operational policing. These amendments are needed to ensure that freedom of speech and opinion is not subjected, as the European court has said, to the heckler’s veto, and to create a proper balance between public safety, freedom of speech and protection of reputation.
Lord Pannick (CB)
My Lords, I have added my name to these amendments. It is a great pleasure to follow the noble Lords, Lord Moylan and Lord Sandhurst. In the light of their comprehensive description of the purpose of these amendments, I can be brief.
Much of the data with which the amendments are concerned relates to freedom of expression. Views are expressed or opinions are stated which offend or annoy other people but do not constitute criminal offences. The views or opinions may relate to religion, transgender issues, Brexit or a whole range of other sensitive and controversial questions. Sadly, many people have lost the willingness to discuss and debate; to say, “I disagree with what you say but I will defend your right to say it.” In today’s world a more typical reaction to opinions with which you disagree is to take offence, to demand a safe space, or to complain that your identity has been challenged or that your truth has been denied. Even though no crime has been committed, the police are asked to record the grievance and to retain the data.
I agree with the noble Lords that for the police to have an unregulated power—that is what it is—to retain and use data about such exercises of free speech deters the vigorous debate and discussion on which a free society thrives. It may be appropriate, in some circumstances, for such data to be retained and to be used. None of us is disputing that. But that should be according to law, authorised by Parliament and not just by the discretion of police authorities which choose to apply, or not to apply, guidance from the College of Policing.
I hope that the Minister will consider these amendments constructively and that she will be able to give them the Government’s support, whether in a revised version or otherwise, on Report.
Viscount Hailsham (Con)
My Lords, I strongly support the proposed new clause and I will give it all the support I can. The arguments put forward by my noble friends are, frankly, unarguable against.
There are three propositions that I think are affronted by this notification of non-crime hate incidents. The first is the chilling effect on free speech. The noble Lord, Lord Pannick, illustrated that very clearly. One has to be assured of the right to express one’s views without the risk of having this notification made against one.
Secondly, one has to recognise that these are very long-standing notifications, which can have a seriously prejudicial impact on individuals. That is thoroughly undesirable, especially as the individual has no right of appeal or an effective way of challenging. Judicial review, for most people, is not an effective way of challenging.
Thirdly, there is the point made by all noble Lords who have spoken so far. There is no statutory guidance; it is local police policy which influences the way these notifications are made. That is inherently unjust, having regard to the impact that this could have.
Finally, I welcome very much that the regulations are to be made by the affirmative procedure. However, as I have said in this House and elsewhere on many occasions, while that is a good thing in the sense that the comments made by your Lordships and those in the other place can be heeded, we do not have the power to amend the statutory instrument. I have long argued that this House and Parliament in general should have the power to amend the contents of statutory instruments. This is a good example of where that would be beneficial.
Baroness Fox of Buckley (Non-Afl)
My Lords, I enthusiastically endorse these amendments and thank the noble Lords, Lord Moylan, Lord Pannick, Lord Macdonald and Lord Sandhurst, for raising this crucial issue. The issue of non-crime incidents has been of concern to a number of us for some years and it is good that it is getting some parliamentary attention at last. I particularly credit those organisations and publications that have persistently raised it in the public realm and whose research informed my remarks, especially the Free Speech Union, of which I am on the advisory council, the anti-racist campaign Don’t Divide Us, and Spiked online.
Too many avoid the issue because it is rather tricky and contentious. One of the reasons it is difficult to raise is because nobody wants to look as though they are being soft on hate incidents. However, I am concerned that this in itself has led to a degree of chilling self-censorship and allowed some confusion to arise about what is and is not a crime when the police are involved.
When the public hear the phrases “hate”, “hate crime” or “hate incident”, they instinctively think of, for example, someone being beaten up because of their skin colour or being harassed in the street because they are gay, and they are appalled and shocked. We assume the worst kind of bigotry and our instinct is that something must be done. However, it is not so clear cut. According to the hate crime operational guidance issued by the College of Policing, hate crime is often an entirely subjective category, based on the perception of the alleged victim; I will come back to this.
What is extraordinary about the guidance on hate crime is what the police consider to be successfully tackling hate crime. The guidance says:
“Targets that see success as reducing hate crime are not appropriate”.
That completely befuddled me. The guidance says instead that the measure of success for the police is
“to increase the opportunities for victims to report”.
I fear that, in this act of enthusiasm to get more people to report hate, the police have muddied any clear distinction between what is criminal and what is not.
The focus on reporting initiatives led earlier this year to rainbow-coloured hate crime police cars patrolling local areas, with the aim of giving communities the confidence to come forward and report hate crime. However well-meaning, such awareness-raising initiatives often encourage people to come forward and report things that are not crimes at all. In fact, earlier this year, a police digital ad van trawled around the Wirral, warning that
“being offensive is an offence”.
Actually, being offensive is not a criminal offence. After a backlash, local police clarified that this was an error. Why did the police get it so wrong in terms of what is a crime?
This is not an isolated incident. A few years ago, Greater Glasgow Police tweeted an ominous warning:
“Think before you post or you may receive a visit from us this weekend.”
This was posted alongside a graphic that warned social media users to consider whether their treats were true, hurtful, unkind, necessary and then, right at the end, illegal. Then there was the South Yorkshire Police Hate Hurts campaign, which asked people to report any “offensive or insulting” social media posts to police officers. None of these is a crime and, in relation to a Bill named the Police, Crime, Sentencing and Courts Bill, it is a concern if the police do not know what is or is not a hate crime, so much so that Cheshire Constabulary recently admitted to conflating crime and non-crime in its hate crime statistics.
This amendment can potentially start unpicking this muddle, because the source of the confusion about what is or is not a crime lies in the creation of the category of non-crime hate incident. As we have heard, this category was established by the College of Policing and its guidance encourages police officers to overreach and police non-crimes. It is worth telling noble Lords how this is posed in the guidance. The NCHI guidance states:
“Where it is established that a criminal offence has not taken place, but the victim or any other person perceives that the incident was motivated wholly or partially by hostility, it should be recorded and flagged as a non-crime hate incident.”
Note the use of the word “victim” to describe the reporter or accuser, when no evidence exists that any crime has been perpetrated against him or her. The victim has to claim only that some action or speech was
“motivated wholly or partially by hostility”.
“Hostility” itself is a vague and subjective term. The guidance continues:
“The victim does not have to justify or provide evidence of their belief, and police officers or staff should not directly challenge this perception.”
Furthermore, any other person’s perception can be the basis for this, which is even further removed from any real incident, let alone crime.
Finally, the guidance notes:
“Police officers may also identify a non-crime hate incident, even where the victim or others do not.”
Why? It is because:
“Victims … may not be aware that they are a victim of a non-crime hate incident, even though this is clear to others.”
I find this a kind of dystopian, Orwellian, nightmare world. Imagine untangling your way through that; your name, unknown to you, can appear on a database intended for recording details of criminal offences and be subject to checks by vetting officers when you apply for jobs, as we have heard from noble Lords.
I hope noble Lords can see the dangers here. The subjective nature of the NCHI guidelines creates a real possibility of abuse of the system by people acting in bad faith. The NCHI guidance means that unfounded, spurious and malicious reports can be filed and never tested, let alone the fact that this data gathering distracts the police from pursuing real criminals. I was contacted by one person ahead of this debate, who said, “I had a visit from the police because a member of staff offended another member of staff, who works for me. No crime was reported. The police spoke to me for 40 minutes. In the meantime, the 200 pallets that I reported stolen the week before did not generate a phone call or visit.” Then there is the chilling effect of NCHIs on free speech, as other noble Lords have vividly spelled out. NCHIs can act as a threat, a kind of surveillance of free speech, by people who say it will eventually lead to crime. Anyone who is following the fate of gender-critical feminists, who are constantly accused of hate by a particular brand of trans activist, will understand just how damaging that is to free speech.
This Government tell us all the time that they are keen to oppose cancel culture. I fear that these NCHIs inadvertently contribute to that censorious climate of denunciation and the toxic climate of hate, which we are all keen to combat. I therefore urge the Government to consider these amendments carefully and remove this contradictory anomaly, which, I fear, brings the police and criminal law into disrepute.
Baroness Jones of Moulsecoomb (GP)
My Lords, I was not going to speak on this, because there are much bigger issues coming up later, but I had seen this in a reverse way. It is not completely clear, if you do not have a QC’s training or legal training of any sort, whether this amendment is trying to help or hinder the collection and retention of data.
To me, this seems like a good opportunity to talk about misogyny and other abusive behaviour that falls short of a criminal offence but none the less should be recorded on a person’s police record. The biggest benefit of retaining that data is that it might help in the future investigation of criminal offences. For example, if someone is a notorious misogynist but it has never reached the threshold of criminality, this will help the police’s line of inquiry if said person is later a suspect in a violent attack against a woman. As we all know, the justice system is biased very strongly against women committing crimes.
What I did agree with from all those offering support for the amendment is that proper oversight is absolutely necessary. There should be some regulation about this, because some of the anecdotes mentioned seem ridiculous. I still have not decided whether I support this; it would depend on how it dealt with proper oversight.
Lord Cashman (Non-Afl)
My Lords, I was not going to speak to this amendment, but like the noble Baroness who spoke before me, having listened I am so minded. I will study the amendment very carefully, but a balance has to be struck. That is always most difficult on issues of human rights and freedom of speech.
We have to deal with the reality that hate speech, whether intended as hate speech or not, can often incite physical acts of violence. During the pandemic we have seen not only homophobia—as a gay man I have a particular interest in that, but my interest is in all physical hate crimes—but an enormous rise in physical hate crimes, some of them reported as happening on the crowded Underground or in domestic situations, because people are in much closer quarters than they would otherwise be.
My reason for speaking is to add a note of caution about how we proceed. I will study the amendment in detail, as I said, but we must respect that speech that could be defined as hate speech, or perhaps is not, can often encourage individuals to take actions against people who they feel should not be within their communities or do not belong.
Baroness Noakes (Con)
My Lords, I support my noble friend Lord Moylan’s amendments in this group. Somehow, we have ended up in a position where freedom of speech—a precious part of our way of life—has been seriously constrained by something the police have invented themselves around perceptions of hostility. I find it incomprehensible that the Government have allowed the police to carve out this territory unchecked. Why has the College of Policing—a wholly unaccountable body—been allowed to invent a wholly new form of recording of behaviour that, by definition, is not criminal? Can my noble friend the Minister explain how we got here?
The recording of non-crime hate incidents is not trivial. It drains police resources from the other things they should be doing: reducing knife crime; actually solving crimes rather than recording them; or making women feel safe on our streets—just a few of the things that ordinary people think are more important. As we have heard, those who have non-crime hate incidents recorded against them are often completely unaware that it has happened, which, if nothing else, is a denial of justice. The information can be kept indefinitely and, most chillingly, can be reported to third parties under the Disclosure and Barring Service. This means that the police have created for themselves the ability to wreck people’s careers.
We live in a society where the expression of views that others disagree with is becoming dangerous. The case of Dr Kathleen Stock is the latest example of this. Disagreement is too often and too rapidly equated with hate or hostility. The mere existence of non-crime hate reporting fuels this intolerance. The police are actively encouraging non-crime hate reporting by giving a platform to people who claim to be offended by the views of others. It is a cancer in our society that we should eliminate before it becomes dangerously pervasive.
Amendment 106 is a complex amendment and I pay tribute to my noble friend Lord Moylan for his clear introduction of it. I hope that my noble friend the Minister will not hide behind a critique of the amendment but engage positively with the substance of the issues that my noble friend and others have raised.
Baroness Butler-Sloss (CB)
Having listened with great interest to what the noble Baroness, Lady Fox, read out as to the current guidance given by the College of Policing, and given the balance referred to by the noble Lord, Lord Cashman, it seems that the very first thing is that the guidance should be scrapped. It should not be waiting for the conclusion of this rather long-winded Bill. Somebody should be getting in touch with the college and either telling those there not to give any guidance at all or getting the Government to tell them in the meantime the sort of guidance that could go forward pending this excellent amendment, which I support.
Lord Forsyth of Drumlean (Con)
My Lords, I did not participate in Second Reading on the Bill, but I did get some correspondence that explained to me what was going on, and I just could not believe it. I am not going to repeat the arguments which were so eloquently put by the noble Baroness, Lady Fox, and the supporters of the amendment but I could not believe it. As an employer, I am required to do criminal record checks and if I got a response that said someone was guilty of hate crime, I am afraid their application would go straight in the bin. Yet we discover that people can be put on such a list without their knowledge, as my noble friend Lady Noakes said, and that their name will stay there indefinitely. That of course does not apply to people who have actually been convicted of crimes, so they are in the worst of all positions.
Then there is the arbitrary nature of this recording, so I wondered how big a problem this is. I am told that there have been 119,934 of these incidents recorded by 34 police forces and that 2,130 of them were done by children. It is extraordinary that this could be happening and is part of a wider concern where our free speech is being undermined. I went on Twitter; I think I lasted about three months. I have spent 40 years offending and upsetting people with the things that I said. So far as I know, I am not on a list as having committed a hate crime.
However, the essence of our democracy is that there should be free speech and that our police should be in the business of finding out what the evidence is, not turning into the people who conclude and are, in effect, prosecutors. I will not detain the House but among the examples given was someone who expressed the view that trans women should not have access to women-only spaces. Well, I believe that; is it a hate crime? Am I not allowed to say that? The fact that someone could be put on such a list indefinitely offends against our democracy.
I am sure my noble friend the Minister will have a brief, because all Ministers always do. I am sure she will have her brief from the Home Office—I worked in the Home Office for a while—and it will say that the amendment is not perfectly drafted and that some provision elsewhere could cover it, and all the rest. I hope she will throw that away and give an undertaking not only to bring forward a government amendment but, this very day, to get on to the College of Policing and end this absolute outrage.
Baroness Chakrabarti (Lab)
My Lords, I think I am probably quite woke, and proud to be so; none the less, I support the broad thrust of the amendment from the noble Lord, Lord Moylan, subject to a couple of caveats. The first caveat is a slightly light-hearted one. As a serial offender, I gently say to noble Lords and friends across the Committee that the overuse of adjectives named for great writers does not always help the cause of human rights. We have all done it: “Dickensian” for socioeconomic rights and “Orwellian” or even “Kafkaesque” for civil liberties. “Chilling” is similar. In fact, an online wit once said of my overuse of these terms: “That Chakrabarti woman finds everything chilling. She sees refrigerators everywhere.” That is just a gentle point about the way we frame this.
I support the broad thrust of this, but the problem is not just about allegations of hate. It is about soft information, as it is sometimes called, or allegations that are not capable of sustaining a criminal charge and should not sit on databases for years and years, or indefinitely. This problem has been growing for many years with the rise of the database state and the potential to hold all sorts of data, even if it never matures into a charge. That is dangerous.
In my previous role as director of Liberty, I saw many cases of this kind. Not all involved free speech. I remember one woman who had allowed her small children to play in the park while she went to a kiosk, and people thought they were unattended. She was cautioned by the police because she was at the borderline, they thought, of neglect, but there was no question of pursuing a charge. None the less, this data sat around for years and was hugely detrimental to her when she sought to work in positions of care.
This is not just about the glorious culture wars that have got everyone to their feet today. It is not about your views on trans inclusion or not, but about whether so-called soft information or police intelligence that never matures into a charge should sit unregulated, off the statute book, as a matter of police discretion and administration. Whatever our views on the free speech point, we surely have to agree with procedural point that the noble Lord, Lord Moylan, was right to make clear.
I remind noble Lords that free speech is a two-way street. It is not just about the woke and so-called cancel culture; it is also about protesters who feel that they attend demonstrations and sit on police databases for many years just because they have been caught on CCTV. We in your Lordships’ House would do a great service to the nation if, whenever we consider these so-called culture wars that centre around identity politics and in particular free speech, we remember that it is a two-way street. It is people on either side of very contentious arguments who sometimes want to “cancel” each other, and we should remember that.
My final point is a substantive one about the way I urge the Minister to take this forward. Given that the concern is about not just hate incidents but all soft information that may be held indefinitely, can the Minister’s response today—or on Report, with, I hope, substantive government safeguards—be comprehensive and address not just non-crime hate incidents but all soft intelligence and all police data about individuals that could be to their detriment going forward, whether it touches on free speech rights or other rights such as Article 8 rights to privacy and autonomy? Can this soft information that has been held administratively by the police be on the statute book and brought under proper regulation and control?
Lord Judge (CB)
My Lords, the issue is very simple. We surely have to decide whether hate crime and non-hate crime, and all their different manifestations, should be left to police guidance, or whether the issue is far more important than that and should be brought under the process of Parliament—legislative control and legislative process. To me, the answer is perfectly clear: the latter.
Lord Dobbs (Con)
My Lords, like the noble and learned Lord, I shall attempt to be very brief indeed. My understanding of the law is that it should bring about a degree of certainty in society and a degree of reconciliation. I fear that the Bill as it stands does neither: in fact, it does the opposite. It has the perverse impact of making division and intolerance more likely because it points the finger of accusation at people who have done no wrong. As such, it seems to me to be an intrusion too far. The perverse consequence of trying to stamp out hate plays into the hands of the oversensitive and the intolerant, and actually gives strength to those who want to damage others by making outlandish or, indeed, even malicious accusations.
Two weeks ago, we stood in this House paying tribute to Sir David Amess. The Chamber was filled with voices of alarm that social media and everything else had fuelled intolerance and injustice. These provisions might well be misused to pour petrol on those flames. The test of innocent until proven guilty is turned on its head: that is unacceptable. When officialdom is given the power to police the thoughts of the people, it crosses a dangerous line. I have said enough; I said I would be brief, but I am following in the footsteps of some very powerful speeches. I wholeheartedly support these amendments, and I hope that the Government and the Minister are in listening mode.
Baroness Meyer (Con)
My Lords, I want to make a point about something that is not directly related, but which I found quite odd. A few weeks ago, I was arrested for speeding. It was the first time in 40 years that I had actually done anything wrong while driving. Interestingly, the notice I received clearly said that the fact that I had no other points on my licence was irrelevant because that would be unfair to others. I do not understand how, if you have been a good guy and have never done anything wrong, that cannot be a positive factor, yet in this Bill we are accusing people and putting them immediately in the negative, even though there is no serious proof. I therefore support the amendment.
Lord Marks of Henley-on-Thames (LD)
My Lords, on behalf of these Benches, I too support these amendments, for all the reasons given by the noble Lords who tabled them. Of course, the principal amendment seeks regulations and lacks specificity. It does not seek to define all the circumstances for retaining, recording, using or disclosing personal data relating to hate crimes or non-criminal hate incidents or otherwise. That is sensible, and it is now for the Government to accept the principles that underly this amendment and come forward with proposals. Of course, I accept the caution which the noble Viscount, Lord Hailsham, brings to the question of regulations that are unamendable; nevertheless, this is a complex area that needs a complex response.
The principles engaged are important. As the noble Lord, Lord Moylan, pointed out, this amendment is not concerned with established hate crime or in any sense with defending hate crime. It starts from the principle that personal data deserves protection from the arbitrary retention, use and disclosure by the police, enforcement agencies and authorities generally, and the converse principle that disclosure should be subject to the rule of law and to principles of accountability—points made by many in this debate, and briefly but eloquently by the noble and learned Lord, Lord Judge, a few moments ago.
The conduct with which these amendments are concerned is not provably, still less proved, criminal—a point made by many. They seek to control the arbitrary retention, use and disclosure of personal information, based on a subjective perception of a citizen’s motivation, in the absence of solid evidence or proof. It is subjective, one notes, because it is often based on the subjective view of another citizen—no better informed, necessarily, than the citizen about whom the information is then held.
The noble Lord, Lord Moylan, spoke on the basis that subsection (7) was in a different category from the rest of the clause. I prefer the way that the noble Lord, Lord Sandhurst, put it, when he set out the principles that underlay the whole of this amendment. It is not often that I find myself agreeing with almost everybody in the House, including, at one and the same time, the noble Lord, Lord Forsyth of Drumlean, and the noble Baroness, Lady Chakrabarti—but I do. Even on this occasion, although I understand the hesitations voiced by the noble Baroness, Lady Jones of Moulsecoomb, she and the noble Lord, Lord Cashman, accepted the need for regulation in this area.
The amendment is directed at achieving sensible limitations on the retention, use and disclosure of data to others. This is an area where the Government ought to act and that has become controversial, with the emergence of guidelines that are, frankly, offensive to justice and parliamentary democracy. I therefore invite the Minister—I believe that I speak for the House in doing so—to return to the House with proposals that accept the principles that we have enunciated and will give rise to amendment of the Bill, to its vast improvement.
Lord Ponsonby of Shulbrede (Lab)
My Lords, as the noble Lord, Lord Marks, said, it is unusual to have such unanimity across the House in Committee on something that is superficially a very complex matter. I agree with two noble Lords in particular. The noble and learned Lord, Lord Judge, was very succinct: he said that the information that the police retain should be subject to parliamentary or government control and not to police guidance. I also agree with the noble Lord, Lord Marks, in being cautious about regulation and having a full role for Parliament in any rules that are introduced.
I am sure that this is a very complex matter. I have just been wondering whether, in my role as a sitting magistrate in London, I would see this information. I obviously routinely see the police national computer—PNC—list, which includes convictions, cautions and bail conditions. If we go ahead and have a “bad character” application for a trial, additional information may be disclosed to us—to do with allegations of, say, a domestic abuse nature.
I was also thinking about my role sitting as a magistrate in family court, where I routinely see allegations that have not been substantiated in any court but have been recorded over many years in social services reports. I think that it is right that I see those allegations when we as a court are making decisions about the way that children should be treated in the context of a family court.
I give those two examples, which are different to what noble Lords have spoken about, to acknowledge the complexity of the situation with which we are dealing. I am sympathetic to the points that have been made by noble Lords, but I am also sympathetic to the Government addressing this with an open mind. I will listen with great interest to what the noble Baroness says about whether they propose bringing back any amendments at a later stage of the Bill.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, I thank all noble Lords who have spoken in this debate, which has been very constructive. I thank my noble friend Lord Moylan for tabling the amendments. I applaud the noble Lord, Lord Cashman, for promoting the need for balance, and the noble Lord, Lord Ponsonby, for his concluding words.
I say at the outset that the Government do not disagree with my noble friend’s view that people should not be inhibited from saying what they think, provided that it does not transgress the legal framework that this Parliament has put in place. Noble Lords would all be concerned if the activities of the police were—even if inadvertently and quite possibly for the best of motives—having an adverse effect on particular individuals who had committed no crime. If that possibility were having a chilling effect, as the noble Lord, Lord Pannick, said, or causing people to temper their quite lawful remarks, that would be a most unsatisfactory state of affairs.
That is my starting point. I will try to set out some of the background to the issues raised by the amendments that are before noble Lords. My noble friend Lady Noakes asked: how have we got here? It is a key legacy of the Macpherson inquiry, set up to consider the issues surrounding the murder of Stephen Lawrence, and is intended to give the police the means to understand tensions within communities before they escalate to serious harm.
As the name implies, the data pertains to incidents that are not crimes. It can include location data to know where repeat incidents of apparent tension and hostility might occur—for example, outside a place of worship. In this respect, the data is vital for helping the police build intelligence to understand where they must target resources to prevent serious crimes that may later occur. The importance of such intelligence has been illustrated where its use could have prevented real harm. The tragic case of Fiona Pilkington and her daughter, subjected to persistent hate and abuse and where the police failed to draw the links to repeated incidents of harassment, is a prime example.
Of course, non-crime hate incidents may also include the collection of personal data. Some of these records will include an accusation of hate crime that has been made against a person but was not proven. I know there has been concern that such data might appear in enhanced criminal record checks, which are required for jobs such as working with children and vulnerable adults, and that a person could be inappropriately disadvantaged for expressing a sentiment that is in no way criminal.
Precisely to guard against that possibility, the disclosure of non-conviction data in such checks is covered by statutory guidance issued by the Home Office to chief officers of police. This makes it clear that the police should disclose such information only after careful consideration and when it is proportionate and relevant to the job in question. Data of this kind can be disclosed only on the say-so of a senior officer, who should also consider whether the individual concerned should be given the opportunity to make the case that the information is not shared. Individuals also have the right to request an independent monitor to carry out a review of whether information is relevant to the role for which they are applying.
In practice, it is rare for the police to disclose non-conviction information of any kind: only 0.1% of enhanced certificates included such information in 2019-20. However, I fully understand that the public are concerned with how the collection of non-crime hate incident data might infringe fundamental liberties, particularly free expression, and may harm a person’s future prospects. However, I do not think that it is as simple as saying that the issue could be resolved through the introduction of more stringent regulations governing the processing and disclosure of data. We need to avoid unintended consequences through any reform of this practice. First, we need to ensure that we do not tie the hands of police in collecting the non-personal location data that I describe, and which can be vital in building an understanding of hotspots where serious harm might occur; this takes us back to the point made by the noble Lord, Lord Cashman, about balance.
Secondly, it is important to remember that the process of determining whether a crime has occurred is not always linear or simple. While the law on hate crime is clear, the process of determining whether an offence was committed may not be. The use of non-crime incident recording can exist in the grey space between the police making initial inquiries and making records such as this, and a decision to take no further action due to lack of evidence, or where a suspect cannot be identified. Non-crime hate incident records often form part of the normal record-keeping of early criminal investigations.
Lord Forsyth of Drumlean (Con)
My Lords, I am not a lawyer, but can the Minister explain why she thinks that this is a matter for the College of Policing and not for Parliament and the Government?
Baroness Williams of Trafford (Con)
I am simply pointing out that the Home Secretary has been in touch with the College of Policing to see if this issue can be improved and reformed further. I was saying, “Let’s count nothing in and nothing out.” I hope that my noble friends Lord Moylan and Lord Forsyth of Drumlean will take comfort in my right honourable friend the Home Secretary having identified a problem for which she is seeking a solution.
There will be more to be said in the coming months, but I hope that for now I have said enough to reassure my noble friend Lord Moylan and that he will see fit to withdraw his amendment.
Baroness Noakes (Con)
My Lords, my noble friend invited the House to wait and see. Can she give us some idea of how long that wait might be?
Baroness Williams of Trafford (Con)
I can certainly promise my noble friend and noble Lords who have been involved in the debate this afternoon that I will go back and see if I can put a timeframe on it.
Lord Moylan (Con)
My Lords, when I tabled these amendments, I had no idea that they would find universal approbation in all parts of the House or attract the support of so many distinguished legal figures. It is quite humbling to look at the list and see my noble friends Lord Sandhurst and Lord Hailsham, the noble Lord, Lord Pannick, the noble and learned Lord, Lord Judge, and the noble and learned Baroness, Lady Butler-Sloss—all highly distinguished figures in one department of the law or another. Indeed, I may have missed some speakers whose careers I am not equally familiar with. They are all united on two fairly straightforward points: first, that the operation of the current system of recording can cause genuine harm, unjustly, to particular individuals; and secondly, that this process should be subject to statutory and parliamentary supervision. Really, that is the essence of the entire case for supporting these amendments.
There were many speeches, for which I am grateful. I do not have time to thank everybody but it was an excellent debate, with speeches made by many people who, like myself, do not have any pretensions to legal expertise, such as the noble Baroness, Lady Fox of Buckley, my noble friends Lady Noakes, Lord Forsyth of Drumlean and Lord Dobbs, the noble Baroness, Lady Chakrabarti—
Lord Moylan (Con)
Did I make a mistake there? Sorry. I am very grateful to everyone who has spoken.
I particularly draw attention to the remarks made by the noble Baroness, Lady Jones of Moulsecoomb, and the noble Lord, Lord Cashman. They both made a very important point, which is that it can be useful to the police in preventing crime in the future to have access to this information and, in certain cases, to retain it. I do not pretend that the drafting of the regulations envisaged by these amendments is going to be simple. It will have to take account of the important points that they made. But these amendments do not prejudge the weight to be given to those various factors when the Government come to draw up the guidance envisaged. I am very sympathetic to the points they made.
I would like to give everybody a gold star for their speeches, except possibly my noble friend on the Front Bench, who sadly struggled; it is a matter of bitter regret to me that goes to my heart. My noble friend Lord Forsyth of Drumlean put his finger on this: she struggled to explain, and did not really even attempt to explain, why these provisions should not be the subject of statutory supervision. She gave an example of harassment of an individual as to why this information should be retained. In my explanation of the amendment, I tried to point out that it would not affect harassment of individuals in individual cases. But if she feels that is not sufficiently clear in the amendment, I would be happy to accept further amendments from the Government that would make it abundantly clear. I hope that deals with one of the points she made.
My noble friend also said—and this is always an argument for doing nothing—that we must beware of unintended consequences of more stringent regulation. We have not asked for more stringent regulation or indeed for less stringent regulation; we have simply asked for proper regulation by properly constituted bodies. We are leaving it very much in the hands of the Home Office and my noble friend to come forward with something that they think appropriate.
I am very encouraged—if I can give some consolation to my noble friend—by her remark that her colleague the Home Secretary recognises that there is a problem and that some indication of some possibility of action was implied by that. Taking heart from that comment, I beg leave to withdraw the amendment.
“An officer of the department of the Secretary of State for Business, Energy and Industrial Strategy.”Member’s explanatory statement
This amendment provides for an officer of the department of the Secretary of State for Business, Energy and Industrial Strategy to be an authorised person for the purposes of Clause 36.
“The Police Investigations and Review Commissioner.A person designated by the Police Investigations and Review Commissioner under paragraph 7B(1) of Schedule 4 to the Police, Public Order and Criminal Justice (Scotland) Act 2006 (asp 10).An officer appointed by the Police Ombudsman for Northern Ireland under section 56(1) or (1A) of the Police (Northern Ireland) Act 1998.”Member’s explanatory statement
This amendment provides for the Police Investigations and Review Commissioner in Scotland, persons designated by the Commissioner in Scotland and persons appointed by the Police Ombudsman for Northern Ireland to be authorised persons for the purposes of Clause 36.
“Bail and primary carers
(1) Section 4 of the Bail Act 1976 is amended as follows.(2) After subsection (9), insert—“(10) Where a court determines whether to grant bail in criminal proceedings to a person to whom this section applies who is a primary carer for a child or pregnant, the court must—(a) consider the impact of not granting bail on the child or unborn child; and(b) presume (subject to victim impact or other relevant considerations) that it is in the best interests of the child or unborn child for bail to be granted.(11) In this section—(a) “child” means a person under the age of 18, and(b) “primary carer” means a person who has primary or substantial care responsibilities for a child.””Member’s explanatory statement
This Clause reflects the requirement for judge to consider the impact of not granting bail on a child when determining, in criminal proceedings, whether to grant bail to a primary carer of a dependent child.
The Lord Bishop of Gloucester
My Lords, I am pleased to move this amendment, which has the support of the noble and learned Lord, Lord Falconer, the noble Lord, Lord Dubs, and the noble Baroness, Lady Massey. I am grateful for the knowledge and wisdom they will bring to the debate. I declare an interest as Anglican Bishop for Her Majesty’s Prisons in England and Wales and president of the Nelson Trust.
The sentencing of a primary carer can have a serious detrimental impact on the rights of a child and their life chances, yet the fact that they are a primary carer is not consistently considered by the court making the sentencing decision. Amendment 110 would require judges to consider the impact on a child of the decision of not granting bail when determining in criminal proceedings whether to grant bail to a primary carer of that dependent child. Amendments 215 to 217 aim to address inconsistencies in sentencing by requiring judges and magistrates to give due regard to the impact of a sentence on any dependent children and their welfare when sentencing a primary carer. The intention of Amendment 218 is to gather the relevant data about the number of prisoners who are primary carers and the number of children who have a primary carer in custody. Given that there are five amendments here, I hope noble Lords will bear with me.
I know other noble Lords will cover in greater detail the recommendation of the Joint Committee on Human Rights that the rights of children whose primary carer is in prison be upheld. In the vast majority of cases, the primary carer is the mother, and this will be my point of reference today. However, I acknowledge that for some children the primary carer may be someone else. My starting point with these amendments is not that primary carers—mothers in the most part—should never be given a custodial sentence. It is instead that we must find a way for the least harm to be caused as a consequence of sentencing. Custodial sentences for mothers punish children, including the unborn, and that is not justice.
I believe not only that every person is created precious and with unique potential but that we are created as people of relationships and that perfect wholeness and harmony—shalom—is about everything in a perfect interdependent relationship: humanity and all creation; of course, I would add, rooted in God. If we want a criminal justice system which is about justice, safety, transformation and the flourishing of individuals, communities and society, we have to attend to the whole picture of relationships—the whole system, and indeed, the long term. If we are to strengthen family ties, reduce reoffending and disrupt intergenerational cycles of abuse, trauma and offending, there must be consideration of where and how a mother serves her sentence.
So often prison is not able to meet the rehabilitative needs of the people who are sent there and will also not be about enabling the better safety of the public or strengthening communities and society. Many women are often in prison for only a few weeks. The majority of women are there for less than six months and, according to the Prison Reform Trust:
“72% of women who entered prison under sentence in 2020 have committed a non-violent offence.”
Alternative community-based provision must be available, well funded and trusted by those making sentencing decisions.
Lord Falconer of Thoroton (Lab)
My Lords, it is a pleasure and a privilege to follow the right reverend Prelate. My name comes after hers on this amendment, and I strongly support what she has said. This is a very important set of amendments and I really hope the Government will take the opportunity that they give. The right reverend Prelate is not saying that those who have primary caring responsibility, or where an unborn child is involved, would get a free pass in relation to the sentencing regime or the bail regime. She is saying, with these carefully thought-out amendments, that there have to be proper arrangements for the courts to take these matters into account and recognise that they are a significant factor in many cases in determining a sentence.
If I could just take the Committee through these amendments, Amendment 110 says that where a court is considering whether to grant bail to somebody—that is, somebody who is not convicted of any criminal offence—they should have regard to the impact of not granting bail on a child for whom the defendant is the primary carer, or an unborn child, and that the court should presume, subject to victim impact or other relevant considerations, that it is in the best interests of the child or unborn child for bail to be granted. The right reverend Prelate is saying, “Weight the scales in favour of granting bail where there is a child for whom the defendant is the primary carer, or there is an unborn child.” That is sensible and should be the approach anyway.
Coming to the right reverend Prelate’s four other amendments, Amendment 215, which comes after Clause 131, says that the court should be under an obligation, through pre-sentencing inquiries, to discover whether the defendant is a primary carer for a child. That is obviously sensible, and no court would want to be in ignorance of that should it be sentencing somebody who is a primary carer. Amendment 216 says that where the defendant is a primary carer, the court must give reasons as to how it has dealt with the issue of primary caring. Again, that seems to be common sense. Amendment 217 says that where a court is considering imposing a custodial sentence on a primary carer or a pregnant woman, it must consider the impact of a custodial sentence on the child or unborn child and presume it will be detrimental to them. Amendment 218 would make sure that proper data is collected so that the criminal justice system is aware of the extent to which primary carers are imprisoned.
These amendments would mean that the interests of the child of which the defendant is the primary carer, or an unborn child, have to be explicitly considered and they are a weight—in many cases, a very considerable weight—in the scales. If we put these amendments into the Bail Act 1976 or the Sentencing Act 2020, which is where the right reverend Prelate is proposing they go, it will have an impact on sentencing. It is not enough, and it is a complacent view, as the Human Rights Committee found, to say, “Don’t worry; the judge has already taken it into account, it is referred to in the sentencing guidelines.” The evidence before the Human Rights Committee is that that was not the case. Put it into the Sentencing Act, as these amendments propose, and we will find that it then becomes a much harder thing for a court to avoid; it should be thinking of the rights of the child of which the defendant is the primary carer, or an unborn child. This is a significant opportunity for the Committee to make this Bill better, and I strongly support the right reverend Prelate.
Baroness Massey of Darwen (Lab)
My Lords, the amendments in this group are about ensuring the best interests and welfare of the child. We must remember that children are those under 18, not just little ones. The arguments have been admirably set out by the right reverend Prelate the Bishop of Gloucester and my noble and learned friend Lord Falconer. It is an honour to follow them both.
Viscount Hailsham (Con)
My Lords, I have a brief point to make. I find a great deal of attraction in the thinking behind the new clause. It has great force and has been eloquently moved. But the question I ask myself is: if one is going to extend these provisions to the primary carer of children, what about others for whom the primary carer is in charge? What about the vulnerable, the educationally challenged, the disabled and the aged? Once you begin to accept that the interests of the primary carer for children should be addressed in the way contemplated by the new clause, there is a lot to be said for widening its scope so that it applies to primary carers across the spectrum.
Lord Thomas of Cwmgiedd (CB)
My Lords, I rise very briefly to support the principle of these amendments. I warmly welcome what the Government are trying to do to roll back the use of prison for women. Everyone accepts that sending a woman to prison is generally something to be avoided at all costs. We need alternative provision as quickly as possible. However, we all know that this will take time. We have to deal with the situation in the interim.
In considering these amendments, I am acutely conscious of the burden that legislation is placing on the judiciary. One has only to read the Sentencing Code to realise what Parliament is actually doing to the judiciary in terms of complexity. However, what is important about the role of Parliament is to set out the principles. If I might try to answer the question raised by the noble Viscount, it is the interests of the child that we need to put at the heart of sentencing. We have put other interests there, but we need clearly to specify that one of the factors judges must take into account, whether on bail or in sentencing, is the interests of the child. Extensive work has been done in Wales and elsewhere: modern research shows that imprisoning a mother has a very serious effect.
Viscount Hailsham (Con)
I entirely accept what the noble and learned Lord is saying, but I am not sure I see the distinction in principle between having regard to the interests of a child—I accept that that is a very important consideration—and having regard to a vulnerable old person, or a person with serious educational disabilities. It seems to me that all of them are equally worthy of consideration in statute if you go down this particular road.
Lord Thomas of Cwmgiedd (CB)
If I might attempt to answer the noble Viscount’s question, paramount importance is given to the interests of the child because evidence has shown that, where there is abuse of children and where mothers are imprisoned, you pass on criminality to a new generation. That is the distinguishing factor. I therefore very much hope that we can look at these amendments for the principle. I am possibly not as keen as others on the detail, for the reasons I have given, but we need to show that one of the fundamental principles of sentencing is to take into account, through the interests of the carer, the interests of the child.
Lord Carlile of Berriew (CB)
My Lords, I agree entirely with my noble and learned friend who has just spoken that there is a principle here that needs to be considered rather than the granularity of these amendments. Indeed, I would say to the noble Viscount that, although we should try to achieve the protection of all people who are vulnerable, you cannot do everything at once. It is the whole of the life of the child in front of them that is affected if a parent is in prison.
The right reverend Prelate moved these amendments eloquently. I will say, very respectfully, that I think she omitted one or two key elements. These may lead one to the conclusion that we do not need quite complicated amendments but can achieve her aims, which I share, by a simpler method that is more evolutionary in its process. I might perhaps raise a couple of specifics. First, the information that the right reverend Prelate referred to is sometimes simply not before the court. That is because legal aid does not now provide solicitors with the earning potential—and it is not a high earning potential—to go out and investigate the reality of a child’s position. This means that the necessary information may not get in front of the court at all.
I had a conversation some time ago with somebody who was working as a manager of excluded primary school children in one of the London boroughs. She told me that she often rang the solicitors for 11 year-olds right at the top of the primary sector, or sometimes when they had just moved from the primary sector, to ask if they were aware of certain aspects of the child’s life—and they had no idea. They do not have the resources to make those inquiries. Furthermore, when cases come before the court, it is nowadays very rare in the Crown Court for a solicitor to be there instructing counsel in such cases, and, in the nature of the profession and the fees payable, counsel may have received the brief only the night before, and it may be a very junior counsel. These are the practical issues that judges encounter all the time.
I want also to say something about judges; I have a family interest in this, which I will not go into in great detail, despite the urgings of my noble and learned friend Lord Garnier. It is this: judges should be given credit for understanding the problems that the right reverend Prelate raised; she perhaps did not quite get there. Judges, many of whom are mothers themselves, hear these cases and understand perfectly well. They do not need a statute to tell them that it is not in the interests of a child for that child’s mother to be sent to prison .They do everything they can—on the basis of the information they are given, which may give rise to the real problem—to ensure that, if at all possible, a woman who has primary caring responsibility for a child is not sent to prison.
Lord Falconer of Thoroton (Lab)
I apologise for interrupting. The right reverend Prelate’s Amendment 215 says:
“A court must make inquiries to establish whether the offender is a primary carer for a child”,
and, if those inquiries suggest that the defendant is a primary carer, then, according to the amendment, the court has to direct a pre-sentence report on the circumstances of the child. Does the noble Lord object to that burden on the courts?
Lord Carlile of Berriew (CB)
I do not object to that burden on the courts, but I am surprised that it has to be placed upon the court. My view is that that sort of report should be part of the process when a young mother, for example, appears before the court. Mechanisms already exist that can ensure that such information is given. I am saying that we can achieve the same purpose more simply—for example, by the use of the Sentencing Council, if it is asked to concentrate on these issues.
I simply add this. The last statistics I have seen for women in prison, for 2020, show that 3.4% of prisoners are women. This is the lowest percentage it has ever been, and it is continuing to fall because the courts absolutely understand what those who tabled these worthy amendments are saying.
When the Minister replies, I hope he may be able to provide reassurance that the ends of these amendments will be achieved but in a more flexible way that can evolve over time, rather than by slightly clunky statutory provisions that, in my view, should not be necessary. Do we really need an Act of Parliament to ensure that courts give proper account to the paramount interests of children, which my noble and learned friend referred to a few moments ago?
Lord Bradley (Lab)
My Lords, I rise to make a short contribution to fully and strongly support the amendments. I declare my interests in the register, particularly as a trustee and vice-chair of the Prison Reform Trust. I first compliment the opening address by the right reverend Prelate the Bishop of Gloucester and fully associate myself with the arguments she made in opening this debate.
I will briefly give some background to these amendments. Following the publication in 2009 of my independent report to government on mental health, learning disabilities and the criminal justice system, a programme to establish liaison and diversion services across the country was commenced. This has continued to this day, supported by all Governments, with 100% geographical coverage of the country now achieved.
These services are based in police stations and courts and are made up of multidisciplinary teams comprising mental health nurses, learning disability nurses, speech and language therapists and other disciplines working together with drug and alcohol staff to assess the needs of the arrested person to determine whether it is appropriate to divert them away from the criminal justice system, depending on the nature of the offence, or to help and support the police in determining whether they should be charged. If they are charged, this assessment information passes through to the courts and, in partnership with the court staff and probation staff, they try to ensure that a more comprehensive picture of the often complex needs of the individual is available in the magistrates’ courts and the Crown Court at first appearance.
However, one crucial piece of information that is not necessarily available—for a variety of reasons that we have already heard in this debate—is whether the offender, most often when it is a woman offender, is a primary carer. In January 2021, I asked a Parliamentary Written Question about
“how many children were taken into care because their mother was given a custodial sentence in each of the last five years”.
Extraordinarily, the answer was that the data requested is not something that Her Majesty’s Prison and Probation Service records. It went on to say:
“In practice, it is Local Authorities overseen by the Ministry for Housing, Communities and Local Government … who are responsible for delivering operational support to families on child safeguarding, including for children affected by parental imprisonment.”
It further stated that the Ministry of Justice
“acknowledges that parental separation due to imprisonment disproportionately affects women. Individual women’s prisons”—
I have visited all of them over the recent past—
“collect information on caring responsibilities at the point of reception”
into prison.
There are many problems with this reply, but it essentially confirms the siloing of the information on primary carers away from the criminal justice system, and that first knowledge of such caring responsibilities is at prison reception. That is simply too late, as the damage to the family is already in train; we know that about a third of women in the prison population are on remand, and that, on 2019 figures, 33% of women remanded by magistrates’ courts and 40% by Crown Courts, did not receive a custodial sentence. We also know that about 50% of women were sentenced as we have already heard this evening, to fewer than six months in prison. Surely, therefore, as this group of amendments makes clear, by collecting this information on whether the offender is a primary carer—predominantly women, but also sometimes men—and ensuring that the judiciary properly considers this information and the best interests of the child, the damage to the family that remand and short custodial sentences inflict can be mitigated against.
Each of these five amendments contributes to this outcome, particularly pre-sentence reports, but it is important to stress that it is essential that pre-sentence reports are available to the court for all offenders, as this is a primary means through which sentencers can be informed of dependent children. This is clearly not the case at the moment, but sentencing legislation directs that sentencers must obtain a pre-sentence report for all cases unless they deem it to be unnecessary and are transparent in that decision.
As the charity Women in Prison identified in its supplementary evidence to the Justice Select Committee, the evidence from Her Majesty’s Prison and Probation Service showed that there was a decline in pre-sentence report volumes over the past decade. For example:
“In 2010, pre-sentence reports were received for 62% of all court disposals reducing to 53% in 2018. Therefore, almost half (47%) of sentences which result in a custodial or community order have no new PSR prepared to inform the sentence.”
Furthermore:
“There is a lack of data to disaggregate these figures according to gender and in answer to a parliamentary question in 2019, the Government could not say how many women in England and Wales had been imprisoned without a PSR.”
This is totally unacceptable. I hope that the new focus on this issue by the reconstituted national probation service will quickly achieve better results.
As a committed member of the Government’s advisory board on female offenders, I am pleased that the agreed strategy, which we have heard something about already today, includes strongly advocating for effective community sentences with continued investment in local women’s centres, as recommended by my noble friend Lady Corston in her groundbreaking report some years ago. Such an approach would help to ensure the successful completion of the community sentences and, crucially, would also ensure that children are not unnecessarily taken into care, that the primary carer does not lose their home or their employment, and that family responsibilities and commitments are protected.
I believe that the role of the liaison and diversion services can play a real part in helping to collect this information about primary carers, with agreed protocols on information sharing and confidentiality. Its timely presentation at first appearance in the courts will facilitate the reduction in the use of remand, the better use of bail and an increase in the use of community sentences, with the interests of the child and the role of the primary carer transparently considered by the judiciary. I therefore ask the Minister if he would clearly explain the Government’s position regarding primary carers and their children, and I urge the Minister to accept these invaluable amendments.
Lord Garnier (Con)
My Lords, it is a great pleasure to follow my fellow trustee of the Prison Reform Trust, the noble Lord, Lord Bradley. The whole House could agree with everything that he said. I thank the right reverend Prelate for introducing these amendments because, again, I do not think that they are, in their thrust, controversial at all.
I have stopped being a sentencer. I was a Crown Court recorder from 1998 until 2015, with a short gap when I was a Minister, and it became an increasingly difficult part of my judicial life. With the greatest respect to the noble and learned Lord, Lord Thomas, I suspect that he may once have been a recorder, but he spent most of his judicial life as a High Court judge, a Court of Appeal judge and the Lord Chief Justice. Essentially, when you get to that great height within the judicial system, you are dealing with life sentences and trying to work out the tariff that a murderer should get. You are not dealing with what a woman, probably in her late teens or early twenties, with a child should receive for her 10th offence of shoplifting—unless, of course, it came to the Court of Appeal Criminal Division. I have absolutely no doubt that the noble and learned Lord will have dealt with those sorts of cases on appeal with the attention, intellectual rigour and humanity that we would all have expected of him.
It may only be the noble Lord, Lord Carlile, and possibly the noble and learned Lord, Lord Falconer, who, like me, have sentenced what I might call “ordinary” criminals in the Crown Court. The noble Lord, Lord Carlile, is of course too modest to mention that his wife, Judge Levitt, now deals with these matters on a daily basis in the Crown Court. But one of the things that recorders and amateur judges like me, who perhaps do four or five weeks in a Crown Court during the course of a year, have to cope with is the sad people—be they men, women, young teenagers or adults—who come before us for repeated low-level but very annoying criminal offences, such as shoplifting in order to fund a drug habit and so forth.
The one thing that we were determined to do—I do not think that this is controversial—is not send people to prison when it would cause more damage than benefit, both to them, as individual defendants, and their children. Remarkably, the older teenagers and young people in their early twenties who had not just one but two or three children were our daily bread and butter, and we were anxious not to send them to prison if we could possibly help it because of the effect that it would have on their children.
I hugely thank two people, one of whom is in this Chamber, for their influence on my coming to understand the difficulties of sentencing and putting people in custody, particularly women. One was James Jones, the former Bishop of Liverpool, who was the right reverend Prelate’s predecessor but one—perhaps her immediate predecessor. The other is the noble Lord, Lord Ramsbotham, who, for me, is the source of information about the prison system. If you read his book about it, and the opening chapter, which concentrates on Holloway—now shut, thank God—you will begin to understand just a bit of the difficulties that amateur sentencers, magistrates and Crown Court recorders, but also the equivalent of Judge Levitt, have to cope with, day in, day out. These are anxious decisions about what to do with women and children whose offences are sufficient to cross the threshold for custody—but, if they are sentenced to prison, what collateral damage does that cause to others?
Baroness Jolly (LD)
My Lords, for two minutes, I want to throw a pebble into what seems like calm water. I totally support everything that the right reverend Prelate the Bishop of Gloucester has said. However, we need to ask ourselves: what is a child? If somebody talks to me socially and says, “Do you have any children?”, I say, “Yes, I have two.” They are grown-up men who flew the nest a long time ago.
However, adults with a learning disability are sometimes cared for by their parents, if they have chosen that the child should not go into care. Their family unit is mum and dad, who are in their 70s or 80s, and somebody with a learning difficulty who might be in their 50s. That is not what we think of as a nuclear family, but we still have to care for the child of those elderly parents, and when one parent dies there are all sorts of problems. Mencap has done a lot of work on this and I have worked with it on it. We really need to be careful about how we legislate for adults who have the mental capacity of a child.
Lord Marks of Henley-on-Thames (LD)
My Lords, I am extremely grateful to the right reverend Prelate for not just these amendments but the care and time she gives to compassionate consideration of the criminal justice system generally. I am also grateful to the other authors of this group of amendments. We on these Benches fully support them.
In this House, we have repeatedly stressed the special needs of women in prison and the effect of custody on women and their children. I entirely take the point made by my noble friend Lady Jolly and the noble Viscount, Lord Hailsham, that there are others who are cared for who need our concern. In terms of legislation, we have achieved no more than lip service. These amendments would put that right by imposing real duties on courts and judges to gather the necessary information and consider the effect of custody on children in making bail and sentencing decisions for their primary carers.
Duties would be imposed on the Government to collect the data necessary to enable informed decision-making about the effect of imprisoning primary carers on the lives and futures of their children. I agree with the noble and learned Lord, Lord Garnier, that Amendment 218 on data collection could—and should—have gone further than requiring data on the number of prisoners as primary carers and the number and ages of the children affected. For example, it would be helpful to include data as to the arrangements made for looking after those children following the imprisonment of their primary carers. For instance, we should know how many children have to be taken into care, a point made by the noble Lord, Lord Bradley. We can and should consider that further on Report.
Noble Lords have had the benefit of the excellent briefing from the charity Women in Prison. The statistics it has collated tell a grim story. More than 53,000 children each year are affected by their primary carers being sent to prison and 95% of children whose mother is imprisoned are forced to leave home. One sentence encapsulated it all for me: “We’ve been sentenced,” says a mother, “but they’ve been sentenced with us.”
This point was at the heart of the opening speech of the right reverend Prelate the Bishop of Gloucester. Parental imprisonment is for children a well-recognised predictor of mental ill-health, poor educational attainment and employment prospects, and future criminality for the children concerned. It is often said that criminality runs in families. The noble and learned Lord, Lord Thomas, said that in answer to the noble Viscount, Lord Hailsham. The extent to which we fail the children of carers in the criminal justice system tends to make that a self-fulfilling prophecy.
The problem is made worse by the preponderance of short sentences among those passed on women offenders. Some 62% of sentences passed on women are for terms of six months or less, despite all the evidence that such sentences do far more harm than good, that offenders who receive short sentences are generally far more successfully rehabilitated with community sentences than with prison sentences, and that the damage to children of imprisoning their primary carer stems principally from the initial, sudden separation—the loss of home, the loss of parental care, the dramatic changes for children, that follow immediately on parental custody, often without any preparation or warning.
In the Joint Committee on Human Rights 2019 report on children whose mothers are in prison, the committee quoted the 2007 report of the noble Baroness, Lady Corston:
“[t]he effects on the … children every year whose mothers are sent to prison are … nothing short of catastrophic.”
The committee cited the evidence of a girl called Georgia of 15, who I think is the girl whose evidence was mentioned by the noble Baroness, Lady Massey of Darwen. She said:
“On the day of her trial, I was at home in the living room, dancing to MTV, and I got a phone call from my brother. He said, ‘Mum’s gone’. I thought he was joking. I had to ask him about five times. From being the young girl who was dancing in the living room, I automatically took on my mum’s role. I did not even have time to adjust to the custodial sentence. It just leaped.”
The amendments in this group rightly cover bail—that is Amendment 110—as well as sentencing decisions. The effect upon children of a remand in custody of their primary carer may be even worse than that of a prison sentence. It usually comes at the very beginning of the criminal process, often without any warning at all, and its effect is immediate, devastating, and of uncertain duration. Against that background, it is highly significant, and frankly shaming, that a very high proportion of women remanded in custody—66% of magistrates’ remands, a higher figure than that given by the noble Lord, Lord Bradley, and 39% of Crown Court remands—do not ultimately lead to a custodial sentence, largely invalidating the original remand decision. Amendment 110 would make bail more likely for primary carers, which would be a real benefit.
For sentencing courts, the duties proposed in Amendments 215 to 217 would lead to an immediate improvement in sentencing practice, as judges complied with these duties imposed by law in the interests of the children, as the noble and learned Lord, Lord Thomas of Cwmgiedd, stressed, where until now they have been subject only to non-binding sentencing guidelines, a point made by the noble and learned Lord, Lord Falconer of Thoroton. For that reason, I disagree with the point expressed by the noble Lord, Lord Carlile of Berriew, who questioned whether these amendments were necessary at all. I completely agree with the view expressed by the noble and learned Lord, Lord Garnier, that judges and recorders are hugely concerned not to send women who are primary carers for children to prison. But the fact remains that far too many primary carers do get sentenced to prison. I believe that over time, these amendments—because judges and recorders follow the law—would also lead to a general change of culture among the judiciary, and possibly in government as well, preventing courts sending primary carers of children to prison.
Before closing, I will add a word or two about sentencing pregnant women to prison. It is particularly welcome that Amendments 216 and 217 cover the special position of the unborn children of pregnant women facing custody. We have all been appalled by the report last month of Sue McAllister, the Prisons and Probations Ombudsman, into the death of Baby A in September 2019 at HM Prison Bronzefield, and the care of Baby A’s mother in the time leading up to and around her baby’s birth, when she was left alone in her cell—an account also mentioned by the right reverend Prelate. But it should be remembered that Baby A’s mother was described in that report as
“a vulnerable young woman with a complex history who found it difficult to trust people in authority.”
That description can be applied to the majority of pregnant women who find themselves in prison and, indeed, to the majority of young women prisoners. We should take care not to forget that, particularly given that three out of five women in prison have minor children. I urge the Government to respond positively to these amendments.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
My Lords, perhaps I should first begin by apologising to the noble Lord, Lord Marks of Henley-on-Thames, for standing up at the same time as him. I am not sure whether I stood up too quickly or the noble Lord stood up too slowly, but we got there at the same time.
This group of new clauses relates to primary carers in the criminal justice system, and first I thank the right reverend Prelate and noble Lords for tabling these amendments. I know they were proposed in a recent legislative scrutiny report on the Bill by the Joint Committee on Human Rights, and this topic has been an area of interest to the Joint Committee during this and previous Parliaments. As set out during debates on the Bill in the other place, the Government support the principle behind these amendments. I hope, therefore, I will be able to provide to the House the reassurance that the noble Lord, Lord Carlile of Berriew, asked for. I can assure the noble and learned Lord, Lord Falconer of Thoroton, that we do take these points very seriously. More generally, I can assure the noble Baroness, Lady Massey, that when it comes to our sentencing reforms, we do consider the impact on children. However, the reason the Government do not propose to accept these amendments is that they do not consider them to be necessary, for reasons I will seek to explain.
When sentencing or considering the grant of bail to a defendant who is a primary carer of a child or who is pregnant, courts will consider principles established in relevant case law. There is a wealth of case law on this point. We have heard the contribution from the noble and learned Lord, Lord Thomas of Cwmgiedd, and I am reluctant to get into the details of criminal law in his presence. But it can perhaps be conveniently found in a case called R v Petherick in 2012—let me give the reference for Hansard: “EWCA Crim 2214”.
In that case, a single mother with a boy of 16 months was convicted—she pleaded guilty—of causing death by dangerous driving and driving with excess alcohol. The court set out nine points of specific and clear guidance—nine principles—which had to be taken into account with regard to sentencing. If I may summarise those in a sentence or two with no disrespect to the court, they make clear that the aims of custody have to be balanced against the effect that a sentence can have on others. That is the case both with regard to sentencing and with regard to pretrial detention. When I say, “on others,” this point is not limited to children, as a number of contributions to this debate have highlighted—particularly those from my noble friend Lord Hailsham, the noble Baroness, Lady Jolly, and, again, the noble and learned Lord, Lord Thomas. It does have broader application, and the court will obviously want to consider the effect of custody or pretrial detention on others who are dependent on the person who might go to prison. This is a point, therefore, with more general application.
I have talked about sentencing and remand in custody. When it comes to sentencing, the principles I have just set out, in broad terms, are reflected in detailed sentencing guidelines issued by the independent Sentencing Council. Courts are required by law to follow those guidelines, and the guidelines specify that being a “Sole or primary carer for dependent relatives” is a mitigating factor when sentencing an offender. The effect, therefore, is that the fact that the primary carer is such can tip the scales. What would otherwise have been a proportionate sentence if it was a sentence to custody can, if the person is a primary carer, become disproportionate. It can tip the scales.
As we heard from my noble and learned friend Lord Garnier, to whom I am grateful for his kind words, recorders and judges give—to use his word—anxious consideration as to whether a custodial sentence is required. Again, the position in law can be summarised like this: a custodial sentence can be imposed only where the court is satisfied that an offence, or combination of offences, is so serious that neither a fine alone nor a community sentence can be justified. Even where a court is of the opinion that the seriousness of an offence would ordinarily warrant a custodial sentence, it still has discretion to impose a community sentence after taking into account wider considerations. Community sentences are part of the important background to this debate. I think we will come to them later on in the Bill and I look forward to the thorough endorsement of the noble Lord, Lord Marks, of our proposals on community sentences, given what he said in this debate. That is the position with regard to sentencing.
On defendants awaiting trial, there is a general right to bail unless it is necessary for the protection of the public or the delivery of justice that the defendant be remanded in custody. A defendant accused of an imprisonable offence can be refused bail only where there is specific justification for that refusal, as specified in legislation. A number of noble Lords talked about the information which is available to the court about the personal circumstances of the defendant. The bail information report includes information about the direct effects on an individual and any dependants, should they be remanded in custody.
With regard to pre-sentence reports, which were also mentioned, guidance was introduced in 2019 for probation practitioners, in addition to the legislation already in place, which sets out that a request to the court for an adjournment in order to prepare a pre-sentence report is considered mandatory in cases involving primary carers with responsibilities for children or other dependants, and for those at risk of custody. An aide-memoire highlighting key areas for practitioners to consider when assessing the diverse needs of women in the context of offending was also issued in 2019 to assist probation practitioners to prepare those pre-sentence reports on women. We are currently running a pilot in 15 magistrates’ courts that specifically targets female offenders, as well as two other cohorts which have specific needs, for fuller written pre-sentence reports.
The noble and learned Lord, Lord Falconer, spoke about the importance of the courts giving reasons why they were refusing bail, for example, or sentencing somebody to custody. That duty is, with respect, unnecessary to impose on courts because they are already required by law to state in open court their reasons for deciding on a sentence. Moreover, where there are dependent children, sentencing guidelines, as I have said, require the courts to consider the impact on them at various points in the sentencing process. That is the effect of Section 52(1) and (2) of the Sentencing Code.
I turn to data, about which the noble Baroness, Lady Massey, my noble and learned friend Lord Garnier and the noble Lord, Lord Bradley, made points. I underline the point again from the Dispatch Box that data is critical. My noble and learned friend was very kind, but the fact is that I am quite keen on data. I am not the only person in the Government who is, but I certainly am.
I assure the noble Baroness, Lady Massey, that we have already committed to improving our work on data collection concerning primary carers in prison. That work is already under way. We already collect information on parental responsibilities but the current questions do not identify dependent children of primary carers using the correct definitions. We are therefore making changes to the questions to enable us to identify prisoners with primary carer responsibilities on their entry to prison, and to enable access to that information centrally—a point made, I think, by the right reverend Prelate.
We are already looking at how we can deliver our commitment to improve national data collection through changes to what is called the basic custody screening tool. That is completed shortly after somebody goes into prison and we want to capture more robust and reliable data on parental responsibilities. Responding to earlier reports from the Joint Committee, the Government have committed to collecting more data centrally and using that to inform policy and improve our services for prisoners with primary caring responsibilities.
Lord Falconer of Thoroton (Lab)
The first report of the Joint Committee on Human Rights in 2021 details in section 2 the concern expressed by the committee in 2019 that there was no data about carers who were in prison. The Government gave an assurance that they would do something about it in 2019. The committee produced another report in 2020, saying “You’re still not collecting that material”, and a Minister gave another assurance. In 2021, the committee wrote a third report—this report, containing these suggestions—saying that none of the previous assurances has been complied with. Why should we accept the assurances the Minister is now giving in relation to the 2021 report, when all previous assurances given to that committee have not been complied with, as detailed by the committee in its report, and as the Ministry of Justice has not denied?
Lord Wolfson of Tredegar (Con)
Work still has to be done, of course, but I hope that the noble and learned Lord will accept that we are doing more than we have done before. As I have tried to explain, we have put in place a process to identify what we need to collect and how we are going to do it. One must also take into account—the noble Lord who made this point will forgive me for not remembering who did so—that it can be difficult to get this information from people in prison. Some people do not want to provide information about dependent children and others who rely on them. I am not using that as an excuse, but one has to be alive to that point as part of the data collection service. All I can say to the noble and learned Lord is that I have this firmly in my sights. In this part of the criminal justice system, as, I would say, in others, data is really important and I am certainly focused on it.
I was going to make one other point on data, which I hope the noble and learned Lord will be pleased to hear. We will also consider not just the collection of data but what data can be published. It might be that not all data we collect can be published because of confidentiality issues, but we will certainly ensure that we publish what we can.
Lord Falconer of Thoroton (Lab)
This is a separate point. Amendment 215 would require the court to
“make inquiries to establish whether the offender is a primary carer for a child”
and, if it discovers that the defendant is, to then order a pre-sentence report about the circumstances of that child and the impact. Is the Minister asserting that that provision is currently in the sentencing guidelines?
Lord Wolfson of Tredegar (Con)
I hope I made that clear earlier; let me go back to my notes. I do not want to mislead the noble and learned Lord. As I understand it, the position is this: guidance was introduced in 2019 for probation practitioners, in addition to the legislation in place, which sets out that a request to the court for an adjournment in order to prepare a pre-sentence report is considered mandatory in cases involving primary carers with responsibility for children or dependants. The noble and learned Lord shakes his head—
Lord Falconer of Thoroton (Lab)
I am not disputing what the Minister says, but I read him as saying that that position is not reflected in guidance. He is saying something different: that if somebody asks for an adjournment to make inquiries, one has to be granted. That is obviously different from the amendment.
Lord Wolfson of Tredegar (Con)
I was going to come to the detail of pre-sentence reports a little later. Let me come to that and if the question is still alive, I will give way again.
I think I had completed what I was going to say about data, apart from one point. The right reverend Prelate asked about pregnancy data. In the time I have had available, I have been able to get the following response, but I am obviously happy to continue the conversation. In July this year, we published a national figure—for the first time, as I understand it—for self-declared pregnancies in the women’s estate and the total number of births that took place during the period in three categories: prisons, transit and hospital. That is found in the HMPPS Annual Digest. I do not know whether that has fully answered the question from the right reverend Prelate on specific data. If it has not, I am very happy to continue the discussion.
The Lord Bishop of Gloucester
I am very grateful to all noble Lords who have spoken in this debate this afternoon; it is now getting on for this evening. I am very aware of time and where we are in this group of amendments. There have been some thoughtful contributions and plenty to think about.
We have talked a lot about what is, and about the numbers of women in prison, but we must look at the reality. There might be things which are theoretically there, but we still have so many primary carers in prison, and while the amendment is about primary carers, it is also about the rights of the child. We were in danger in our debate of not keeping the child at the centre. I have heard what people have said about other dependants. I take that on board, but it does not take away from us focusing on children and the long-term intergenerational impact. We could have a good theological discussion later, but I used “Shalom” because we cannot have any of this discussion without looking at the whole picture.
I have respect for all that has been said about judges and I give them credit for what I have heard in the very powerful speeches today. One problem is that there is not always enough information about what else is available. We will be talking about community sentencing another time, but I have had judges and magistrates say to me, “We don’t know exactly what is available in this area that could be offered to this person.” We must keep this all in the round.
Data has come up again and again, and that is crucial. I am grateful to all those who have talked about its importance. We have been talking about the number of women in prison and what happens at sentencing, but, with due respect, it is not happening. If it were, we would not have the number of women in prison that we have and the number of children who are being adversely impacted by this. We must be careful about the theory, what is happening and why it is happening. Therefore, data is really important.
We talked a lot about pre-sentencing reports. They are crucial, but it is not just about a pre-sentencing report—it is the information it contains. Again, we know that lots of primary carers, particularly mothers, do not always want to say that they are mothers. We must look at why that is. Again, it is that bigger picture—it is not just the PSR but the information it contains.
I do not want to replay all the arguments that we have heard, and I thank noble Lords. There is something I still want to hold on to about the rights of the child, and about inconsistency. I have heard what the Minister has said, yet that issue of inconsistency is really important because of the reality of what we have in our prisons at the moment and the number of children being impacted.
While I am willing to withdraw the amendment at this stage, I hope that there will be further discussion about the rights of children and all that we must do to continue achieving the aims of the Female Offender Strategy, which is not where we are in reality. I pay tribute to the noble and learned Lord, Lord Falconer, the noble Lord, Lord Dubs, and the noble Baroness, Lady Massey, for their support. We want further discussion going forward but for now, I beg leave to withdraw the amendment.
Lord Paddick
“(1C) The constable must record the reasons for each determination including the assessment of each of the matters the subject of subsection (1B).”Member’s explanatory statement
This amendment, along with Lord Paddick‘s amendment to page 206 line 18, requires a custody officer to record case-specific reasons why it is necessary and/or proportionate to release a person on bail, including the reason for any conditions attached.
Lord Paddick (LD)
My Lords, in moving Amendment 110ZA in my name I will speak to my Amendments 110ZB, 110ZC and 110B and to Amendment 110A in the name of my noble friend Lady Harris of Richmond in this group.
We now come to pre-charge bail, also known as police bail, where the police need more time to investigate than the time limits for keeping someone in custody without charge allow. In 2017, in response to concerns that people were being kept on pre-charge bail for too long, particularly journalists under investigation as a result of the phone hacking scandal, the Government used 18 clauses of the Policing and Crime Act to severely curtail the time someone could be held on pre-charge bail.
At the time, briefed by police practitioners, we told the Government that their changes to police bail were unworkable and that they had gone too far the other way. Some 18 clauses of the Policing and Crime Act 2017 are now all but reversed, relegated to Schedule 4 to this Bill. There clearly needs to be a balance between the need for a thorough police investigation, diligently carried out within resource constraints—which, because of the significant cuts in police officer and police support staff numbers since 2010, have been considerable—and the adage that “justice delayed is justice denied”. The irony of telling the police to speed up their investigations while at the same time curtailing their ability to do so will not be lost on the Committee.
It must be necessary and proportionate for the police to release a person on bail, including the imposition of any conditions of that bail. I know from my own professional experience that custody officers tend to record something along the lines of “I am releasing this person on bail because it is necessary and proportionate to do so” or “because it is necessary to ensure that the person surrenders to custody” or whatever Section 30A of the Police and Criminal Evidence Act 1984 says may be a reason for releasing a person on bail. This is simply copied and pasted into the custody record. I was sitting here earlier reading that and realising that perhaps, as a police inspector reviewing detention, I might have been guilty of a similar act of simply copying generic paragraphs out of the Police and Criminal Evidence Act 1984.
This is not sufficient and Amendments 110ZA and 110ZB are designed to address this. The police officer should record the case-specific reasons why it is necessary and proportionate to bail the person and the case-specific reasons for imposing the conditions, if any, attached to the bail—not “to ensure the person surrenders to custody” but why the officer thinks this person is unlikely to surrender to custody; for example, because he has absconded in the past, perhaps. If the factors to be taken into account in paragraph 17 of Part 2 of Schedule 4 are included in the Police and Criminal Evidence Act 1984 in a new Section 30A(1B), so should be the requirement to say what it is about this person that makes release on bail necessary. Later in the Bill, in Clause 132(7), courts remanding children in custody will be required to set out their reasons for doing so in writing. This amendment requires the police to do the same when it comes to police bail decisions.
On Amendment 110ZC, following representations made by the Law Society—from my professional experience I see the merit in some and not others—I agree with it that the if the matter is straightforward, what is called in the legislation a “standard case”, a senior police officer should be able to extend bail only to a maximum of six months before the case is referred to a magistrates’ court for independent adjudication, rather than the nine months suggested in paragraph 29 of Schedule 4 to the Bill.
Baroness Harris of Richmond (LD) [V]
My Lords, my Amendment 110A is grouped with my noble friend’s amendments, as we have just heard, and is about bail principles. I bring it forward at the suggestion of the Police Superintendents’ Association and thank it for its help in doing so. In particular, I thank its president Paul Griffiths, with whom I have worked over a number of years, including on this issue in a previous police Bill; sadly, nothing has changed.
At the heart of every investigation is the requirement on police to collate, review and examine the evidence that is gathered. This should be without prejudice and the police are expected to pursue lines of inquiry that gather the facts, whether the facts support the victim’s account or that given by any suspect. For those investigations that require CPS authority, the information presented must allow the full-code test to be applied so that a decision can be made by the CPS as to whether or not the case progresses through the criminal justice system.
To ensure that the investigation is effective and efficient, it should be free from interference from factors that would seek to pervert the course of justice or cause a victim, witness or suspect to provide false evidence to the police, whether under duress or otherwise. The imposition of proportionate, appropriate, legal and necessary pre-charge police bail allows for the protection of the victim, suspect, witnesses and the general public, Correctly applied and checked, police bail is vital in ensuring that the investigation can progress fairly and comprehensively. It should be used only to protect and never to punish. Its imposition should be subject to appropriate review and audit procedures to ensure that the system is fair and maintains public confidence.
Currently, as we have heard, the breach of pre-charge police bail does not constitute a separate offence for the purposes of the PACE custody clock. If a person is arrested for breach of bail, the police will have to use the remaining time on the custody clock which relates to the substantive events for which they were bailed.
The current proposal in the Bill is that the custody clock will pause if a suspect is arrested for breaching police bail. In the majority of cases, the police will not be in a position to make a decision about whether that person on bail is charged for the offence for which they are on bail. The outcome is often release from custody with the same conditions, simply with a reiteration that the bail conditions should not be breached. Currently the police have less time to investigate the offence, and the risks to the investigation remain. The police would ask that any breach be regarded as a separate offence that can be charged on its own merit, if appropriate, using the established rules of evidence for offences.
Imposing pre-charge police bail can be significant in its impact on the human rights and liberty of a suspect and, as such, there must be a process that allows challenge and review. The primary decision-maker should always be the custody sergeant, as they are independent from the investigation. They are also responsible for the welfare and treatment of detainees, and they work on systems that allow for a clear and auditable rationale to be recorded and scrutinised.
The suspect and/or their legal adviser should always have the right to object to conditions, as they do with PACE reviews or extensions, and to have these objections noted on the record with the rationale clearly communicated. They should also have the conditions altered or amended if circumstances change, and that can be done in writing to a custody inspector. The suspect should always have the right to ask the courts to review bail conditions that they feel are inappropriate.
We have previously discussed appropriate authority levels for the time that a suspect remains on police bail. That should reflect the requirements of modern-day investigations such as forensic and e-forensic evidence.
I reiterate that pre-charge police bail should be imposed only where it is necessary and proportionate and protects individuals, the public and the investigation. Police should ensure that it is for the minimum time necessary to complete the investigation, that the rationale is clearly communicated to parties as appropriate and that an appeals process is in place—in addition, with a review process to ensure that the investigation is being carried out diligently.
Lord Ponsonby of Shulbrede (Lab)
My Lords, the two noble Lords who have spoken have fully introduced their amendments. Amendment 110ZC, from the noble Lord, Lord Paddick, would provide that a bail period could be extended only for a period of six months at a time, and not nine, so it would reduce the potential extension period before referral to a magistrates’ court.
I remind the Committee that I sit as a magistrate, and I occasionally do those hearings where I am asked to extend pre-charge bail. It is an interesting process for a magistrate because you see far more serious cases than you would in the normal course of events; it is the extremely serious cases where the police are looking for an extra period. They are often computer-based cases, in connection with child pornography-type offences. One common scenario that I see as a magistrate is that the police have made no progress in their investigations. That may be through a lack of resources or through them having other priorities, but, either way, there are often requests to extend the pre-charge bail period, sometimes for a matter of years, where the court or the magistrates making this decision are not given a particularly good reason. I would be interested to hear the Minister’s response to that amendment because it would inevitably put further pressure on the police to make progress on any individual case before it was brought to the magistrates’ court.
The noble Lord’s Amendments 110ZA and 110ZB would require custody officers to record case-specific reasons why bail and bail conditions were necessary and proportionate. I recognise the scenario that the noble Lord gave, of a cut-and-paste approach, and I would be interested in the Minister’s response to the points that he made. The final amendment in the name of the noble Lord, Lord Paddick, is Amendment 110B, requiring the police to publish annual statistics on the number of people released under pre-charge bail and the number released under investigation.
The noble Baroness, Lady Harris, spoke to her Amendment 110A, which would create an offence of breaking the conditions of pre-charge bail. It would supplement the powers of arrest available where conditions were broken, and the offence would be a summary offence. The noble Baroness went into some detail, which I thought was persuasive. She quoted the Police Superintendents’ Association, which said in evidence to the Commons Committee that
“bail conditions are imposed and then suspects continue to breach those bails. Of course, those bail conditions would be there to protect victims or even the wider public. It could be extremely useful to us for that to be an offence in its own right.”—[Official Report, Commons, Police, Crime, Sentencing and Courts Bill Committee, 18/5/21; col. 31.]
This matter was raised in the House of Commons, where it was spoken to by my honourable friend Sarah Jones in the context of Kay’s law, a well-known domestic abuse case where an abusive partner killed Kay while he was on pre-charge bail. I will not rehearse the speech that Sarah Jones made but it was very powerful.
The Minister’s response to the request, which we see here in Amendment 110A by the noble Baroness, Lady Harris, was that she wanted to look at a wider review of civil orders that could potentially be put in place as well as greater data collection, rather than specifically making an additional criminal offence. It is interesting to note that the Centre for Women’s Justice came out with a specific proposal whereby a breach of a bail condition triggers the presumption that the police will impose a domestic abuse prevention notice and apply to court for a domestic abuse prevention order. Of course the breach of a DAPO would be a criminal offence, so it would effectively create a “two strikes and you’re out” process.
The Minister, Victoria Atkins, whom I have always found very helpful when I have spoken to her about these and related matters, spoke about reviewing a greater array of civil orders, such as a stalking protection order or sexual risk order. It would be helpful if the Minister could say how long that review is likely to take and whether we are going to get any proposals at later stages of the Bill. I acknowledge that there are a number of potential ways of closing this loophole and that the amendment put forward by the noble Baroness, Lady Harris, is a particular proposal and there is a wider context. However, there is an urgency to this issue. There is an opportunity in the Bill to address that lacuna, if I can put it like that, and I look forward to the Minister’s response.
Lord Sharpe of Epsom (Con)
My Lords, I thank noble Lords for their contributions. These amendments bring us to the issue of the reform of pre-charge bail. The intention of the Government with this set of changes is clear: to create a more effective and proportionate pre-charge bail system through “Kay’s law”, as referred to by the noble Lord, Lord Ponsonby. Kay’s law has been so named after Kay Richardson, who tragically lost her life at the hands of her estranged husband while he was released under investigation rather than on bail. It is clear that we need robust decision-making around the use of pre-charge bail in order to ensure that it is used fairly. This is why we have removed the presumption against bail and introduced the risk factors to be considered by the custody officer.
Let me first address the amendments in the name of the noble Lord, Lord Paddick. Amendments 110ZA and 110ZB relate to record-keeping for bail decisions. I certainly agree that there should be a clear audit trail to evidence how these decisions have been made. I do not, however, consider that it is necessary to legislate for this, given that it is an operational process, but it is our expectation that custody officers are already keeping records of how they came to their decisions as part of best practice within each force. I acknowledge that this may not be done with the consistency we would expect, which is why it would be more appropriate to include provision for this in the national statutory guidance on pre-charge bail, which is to be published by the College of Policing.
Amendment 110ZC is concerned with the timescales for the review of pre-charge bail. Again, I fully recognise that we must provide the correct balance here—the noble Lord, Lord Paddick, referred to balance in his opening remarks—between the rights of those who may have been victims of crime and those who, at this stage, have yet to be charged with an offence. The new timescales provided for in the Bill, which have been subject to public consultation and engagement with law enforcement, charities and victims’ services, strike a fair balance and will create a system that works better for all involved. That being the case, the Government are satisfied that nine months rather than six is the appropriate point at which decisions around the extension of pre-charge bail in standard cases should be referred to a magistrates’ court. I am grateful to the noble Lord, Lord Ponsonby, for sharing his personal experience on this subject. As he said, it will place further pressure on the police, but on the opposite side, it would potentially clog up the courts if referrals were brought forward. Following our consultation, we believe it is equitable for extensions up to nine months to be made by a senior police officer, and only then should the matter be referred to the courts.
Amendment 110B would require police forces to publish data annually on the number of individuals released on pre-charge bail and those released under investigation. We heard some powerful arguments from my noble friend Lord Wolfson about data in the previous group, and I am about to reiterate some of those, because we agree that accurate data is crucial in order to monitor the impact of these legislative changes and ensure that they are operating as intended. I am pleased to inform the noble Lord that the information he seeks is already collected by forces and published by the Home Office annually through the Police Powers and Procedures bulletin. Perhaps to anticipate a subsidiary question, statistics on the number of individuals released on pre-charge bail have been published yearly since 2017-18. The Government have recently amended this collection to include the number of people released under investigation. This information has been collected for 2020-21 and will be published later this year.
One might reasonably ask, since it has been four years since the last round of reforms, why we still do not know how many people are released under investigation. There are 43 forces across England and Wales, as the noble Lord well knows, which use different case management systems and data warehousing. We have been collecting data on the number of individuals on pre-charge bail since 2017, first on a voluntary and now on a mandatory basis, and we have also started collecting more data on pre-charge bail in terms of offence, breach, demographic and so on, and on released under investigation and voluntary attendance. This is voluntary collection at the moment, but we are working with police and systems providers where forces have been unable to provide data to enable reporting with the intention of changing to mandatory collection following the reforms as system updates allow.
Turning to quite a different matter, the noble Baroness, Lady Harris, has tabled Amendment 110A, and I acknowledge her long association with this subject. This would create a new criminal offence of breaching pre-charge bail conditions where a person is arrested elsewhere than at a police station and where there is no reasonable excuse to do so. It is essential that we keep in mind the safety and welfare of victims at this stage of the criminal justice system, as well as balancing this against the risk of criminalisation of individuals who have not been charged with an offence. Noble Lords will be aware that debate around the consequences of breaching these conditions has been ongoing for a number of years. While I understand those concerns, I cannot agree that such a criminal offence would be a proportionate response to this issue. Pre-charge bail is just that: pre-charge. There has been no charge or conviction against the individual as yet. It would therefore be disproportionate to criminalise the individual at this point, particularly where they may face a harsher sentence for the breach than the one carried by the offence for which they were originally arrested. Bail should not be punitive in nature according to the principle of the presumption of innocence.
On top of this, the Government do not currently have an accurate snapshot of the number of individuals who breach their conditions each year—I fear we are back to data again. Without knowing how many people this would affect, such an amendment could well lead to unintended consequences, criminalising a potentially large group of people and tying up the courts system. I stress that there is obviously no desire on the part of the Government to allow suspects to breach their conditions wantonly. Where there has been a breach, police officers will look to consider whether a substantive offence is established, such as intimidation or harassment in the first instance. In certain circumstances, as the noble Lord, Lord Ponsonby, alluded to, there is also the option of a court order, such as a sexual risk order or the new domestic abuse protection order, breach of which is a criminal offence in itself.
The Bill also introduces a three-hour pause on the detention clock where an individual has been arrested for breach of their conditions. This will allow the police further time for progressing the case, either through investigation of the breach or preparing a substantive case for charging. The Government have already made a commitment in the Commons to increase the data collection in this area, which will provide a more detailed understanding of this issue. It is my hope that this may yield a more proportionate, tailored and workable policy solution in the future.
The noble Lord, Lord Ponsonby, referred to Sarah Jones’s amendment in the other place and asked about the Minister’s consultation. I fear I do not know the answer to that; I will get back to him on when it may be expected to report. She also acknowledged that the collection of data around breaches of conditions to better understand the scale of the problem was part of the problem we have here. I think the Minister’s response was welcomed by his colleague Sarah Jones in the other place and she was content to withdraw her amendment. It has been helpful to explore these issues, but in the light of my explanations, I invite the noble Lord to withdraw his amendment.
Lord Paddick (LD)
My Lords, I thank my noble friend Lady Harris of Richmond for her support and for so clearly and powerfully explaining her Amendment 110A. Arresting somebody for breaching pre-charge bail where the only thing the police can do if somebody has breached the conditions is simply to re-bail them under the same conditions undermines the whole purpose of police bail—there is no sanction at all. The Minister said, “Well, the person has not been convicted of an offence and they could end up being convicted of breaching the bail but not of the original offence.” I may have been dreaming, but I seem to remember being at Highbury Corner Magistrates’ Court, albeit the stipendiary magistrate concerned was known colloquially as “Shotgun Maclean”, and his saying to an arresting officer that, unfortunately, in a not-guilty offensive weapon trial, the officer had failed to prove beyond reasonable doubt that the defendant was guilty of possessing an offensive weapon, but for breaching court bail—in that when they first appeared in court the person was released on court bail to reappear for the not guilty hearing—he would go to prison for three months.
There is the whole argument about this being disproportionate for somebody who is not convicted of a criminal offence if they were convicted of breaching bail, but it happens already when people who are innocent breach court bail. This seems to completely undermine the noble Lord’s argument. The point of Kay’s law is to stop dangerous people being released under investigation with no conditions attached. Without a sanction for breaching the conditions that are imposed, the conditions have no weight.
I am very grateful to the noble Lord, Lord Ponsonby of Shulbrede. Regarding the sort of cases he referred to, I would expect—particularly if analysis of computers was involved, for example—that these would not be standard cases and that the Crown Prosecution Service would designate them as such, so the six-month or nine-month limit would not apply. I am not sure that the cases he referred to were relevant to the examples I gave.
I accept that the Government have consulted on this, but I would go back to the Law Society, which is on the other side of the argument—including as it does defence solicitors—and feels that nine months in a standard, straightforward case not involving such things as computer analysis would be a long enough extension for a senior officer. However, we will reflect on what the Minister has said and, in the meantime, I beg leave to withdraw my amendment.
“35A After section 46A (power of arrest for failure to answer to police bail) insert—“46B Offence of breaking conditions of bail(1) If a person who has been released on bail under section 30A(1) breaks any of the conditions of their bail without reasonable excuse they are guilty of an offence. (2) A person guilty of an offence under subsection (1) is liable on summary conviction to imprisonment for a term not exceeding three months or to a fine or to both.(3) In any proceedings for an offence under subsection (1) a document purporting to be a copy of the notice given to the person under section 30B and to be duly certified to be a true copy of that part of the notice is evidence of the conditions imposed.(4) For the purposes of subsection (3) the copy of the notice is duly certified if it is certified by the custody officer who took the decision or a constable designated for the purpose by the officer in charge of the police station from which the person to whom the notice relates was released.””Member’s explanatory statement
This amendment would create an offence of breaking conditions of pre-charge bail. It supplements the powers of arrest available where conditions are broken. The offence would be a summary offence.
Baroness Harris of Richmond (LD) [V]
My Lords, I am immensely grateful to my noble friend Lord Paddick, who has absolutely perfectly put my case again, and to the Police Superintendents’ Association. I will reflect on what the Minister has said but I am really disappointed because we have been here before. However, the Home Office is going to get more data, which is a very good thing. I will put this to the Police Superintendents’ Association to see what it has to say, because it has been banging on about this for a very long time. In the meantime, I am not moving my amendment.
Lord Beith
Member’s explanatory statement
This is a probing amendment to explore whether there is a potential gap in the law related to other teaching or supervisory positions of trust.
Lord Beith (LD)
My Lords, in moving Amendment 111 I will speak to the related Amendment 112. Here, we are being asked to amend the Sexual Offences Act 2003 to import some definitions into it. This presents some problems, to my way of thinking. We are dealing with “Positions of trust” and people who abuse those positions, using them to abuse, exploit or manipulate young people to consent to sex. The clauses before us in this Bill refer to someone who
“coaches, teaches, trains, supervises … on a regular basis, in a sport or a religion”.
That immediately prompts the question: why are other activities involving coaching or training on a close one-to-one basis not listed in the way that sport and religion are?
Baroness Brinton (LD) [V]
My Lords, my noble friend Lord Beith is right to lay his Amendments 111 and 112 to the Bill, asking whether to restrict Clause 45 and the Sexual Offences Act 2003 to those listed in positions of trust, currently including sport and religious activities. He has explained why his amendments have specifically added dance, drama and music, and I entirely support his argument. I am afraid that, over the years, there have been too many examples of young people aged between 16 and 19 and even, frankly, in their mid-20s, who have been abused or coercively controlled by people with whom they have been working on various activities. My noble friend cited the example of dance; I am afraid the same is true of the music sector, where a lot of teaching is one to one and supervision has to be taken to some extent on trust. That means the structures of safeguarding and support to ensure that that position of trust is not abused need to be rigorous.
Formal sports activity, for one of my children, started as an after-school club. Some children were then selected by the same school coach for the county team. There were then journeys to county practices and preparations, and competitions across England. There are now too many examples of sexual abuse by gymnastics coaches and staff, which is why the Whyte review was commissioned. Its interim report was published earlier this year and I look forward to seeing the entire report because, frankly, this is a problem in sector after sector, within sport and elsewhere, and I am beginning to wonder whether we need a formal review on each one before action is taken.
But this is not just a sporting issue, or even one just for dance, drama and music. Another activity that is currently excluded is chess. An almost identical process to the gymnastics example that I gave earlier was in evidence at the same school of my children, starting at primary and continuing through 11 to 18 secondary school. It started as an after-school activity and progressed to competitions at county or national level. There was one gatekeeper—the coach—and nobody else. To be clear, I am not aware of any cases of abuse in chess in the UK, but that is not true in other countries, notably the US, where there have been some scandalous cases in Philadelphia, California and Florida, which read almost identically to those that we have seen in gymnastics and other sports in the UK.
The root of the problem, as outlined by the organisation Mandate Now, is:
“The sexual and physical abuse of a child, or neglect, is not a reportable offence in either England, Wales or Scotland despite child sexual abuse being a crime in all jurisdictions. Bullying, emotional or verbal abuse, like sexual abuse currently, can only be addressed by ‘guidance’ which is unenforceable.”
That is why protection for those in a position of trust is absolutely essential. As the noble Baroness, Lady Grey-Thompson, discovered in her excellent review of the duty of care in sport in 2017, if there are no structures to ensure that organisations—in this case, schools and the governing bodies of the activity concerned—can hold their people to account, abuse and coercive control can flourish undetected.
I have a question for the Minister. I am struggling to understand why only one or two activities are being added at a time. As I said earlier, will the Minister say whether it will take a formal independent review of each area of activity before it is understood that anyone in a position of trust with these young people needs to be regulated in the same way?
Baroness Jones of Moulsecoomb (GP)
My Lords, this is slightly more complex than one might have thought. I thank the noble Lord, Lord Beith, for laying out the nonsensical way in which at the moment we exclude all the other categories. I do recognise the value of what the Government are trying to achieve in Clause 45: it is important that we stop predators from abusing positions of trust to prey on children and vulnerable people.
I also note, as no doubt the Minister will point us to, that this clause includes a Henry VIII power to add to or remove positions of power from the specified list. I normally loathe Henry VIII powers—I think they are extremely dangerous—but obviously I am weakening on this one.
It is also important not to cast the net of this offence too broadly or to define it too narrowly. I find it much more complex than when I first signed the amendment. There must be a level playing field, and a sports instructor should not be held to a higher standard or treated as a greater offender than, say, a dance tutor, because abuse of children is abuse and that is what we are trying to deal with here. I hope the Minister will work with your Lordships’ House to put together an amendment with which we are all happy.
Earl Attlee (Con)
My Lords, my task in this debate is easy: all I have to do is to support the noble Lord, Lord Beith, and say that I have rarely heard an amendment moved more comprehensively than he just did.
Lord Paddick (LD)
My Lords, we strongly support my noble friend Lord Beith. He has clearly explained his amendment: persons other than those mentioned in the Bill are in positions of trust. Although there is no evidence of widespread concern about instructors in dance, drama or music abusing their positions of trust, there are examples and fairly recent high-profile cases. My noble friend explains that either we should leave it to the courts to decide whether someone is in a position of trust or a more comprehensive list is required that is not limited, as my noble friend Lady Brinton said, to the examples in the amendments.
I agree with the noble Baroness, Lady Jones of Moulsecoomb, to some extent, although one could imagine that children are more vulnerable in certain scenarios and one-to-one situations than in others. But we support the amendments in the name of my noble friend Lord Beith.
Lord Ponsonby of Shulbrede (Lab)
My Lords, we too support these amendments, and I too found the introduction from the noble Lord, Lord Beith, to be comprehensive. The brief in front of me asks why some youth activities are included and others are not, which is the point the Minister will have to address when he winds up this brief debate. I will not repeat those points about why certain activities might be included and others might not, and I am sure that everyone who has spoken in this debate wants to achieve the same end, but there are different mechanisms to do that.
I agreed with the noble Baroness, Lady Jones of Moulsecoomb, who, as she said, somewhat unusually found herself in agreement with potentially using Henry VIII powers to amend legislation. While listening to this debate, I remembered the biography of a very famous English composer that I read recently, just a few months ago. He would fall foul of these regulations and would very likely go to jail on the basis of that biography.
I hope this problem is not widespread, but it is something that people are far more alert to these days than they were in the past. It is right that the Government should ensure that the appropriate structures are in place in each of the activities for which young people get support, so that, if things go wrong, the coaches or whoever is involved can be held to account in an appropriate way.
Lord Wolfson of Tredegar (Con)
My Lords, I am grateful to have the opportunity to respond to this short but focused debate. I am particularly grateful to the noble Lord, Lord Beith, for the measured way in which he introduced the amendment, which raises difficult issues, as I think all speakers have recognised.
The Government’s aim in this area can be briefly stated. I understand there to be relatively little or perhaps no disagreement across the Committee on this point, certainly in the light of what the noble Lord, Lord Ponsonby of Shulbrede, has just said. The aim is this: we seek to protect children from those who might take advantage of their position to sexually abuse them. The provisions we put in the Bill followed detailed review and consideration. We feel they provide the best protection for young people while still balancing—this is a critical point—where possible their right to fully consensual sexual relationships. I must underline that point at the outset, because it is very easy to overlook it.
The positions of trust offences set out in the Sexual Offences Act 2003 were never intended to apply in all scenarios in which a person might have contact with or a supervisory role in respect of somebody aged under 18. If you do that, in effect you raise the age of consent by silence. If we are going to have a debate about the age of consent, let us have one—but let us not have an inadvertent, sub silentio raising of the age of consent by having too wide a category of positions of trust.
I acknowledge that this is a very complex area. With respect, the noble Baroness, Lady Jones, said that this was a first for her because she quite liked a Henry VIII power. I am not sure whether it is a first for me that I am agreeing with her from the Dispatch Box; I think I have done it once before, but if it is not the first time it certainly does not happen too often. But I do agree with her that this is a very complex area, because we are trying to strike the right balance between protecting young people and respecting the right of those aged 16 or over to engage in consensual sexual activity.
Therefore, although it is very tempting to say, “Well, there’s been a case here and a case there, let’s widen the definitions”, we have to act on the available evidence—not anecdote, supposition or a case here or there, but real evidence. The question therefore is, as I think the noble Lord, Lord Beith, put it, if I can summarise his speech in five words, “Why these and not others?” I heard him say that I am unlikely to persuade him. I remember when judges said that to me. I rarely did persuade them—but let me have a go anyway.
The answer is this: we have looked across the field. We have spoken to a whole load of stakeholders, which I will not read into the record, but the number is vast. We have concluded that those who teach, train, supervise, instruct or coach in a sport or religion are particularly influential over a child’s development. That is why they should be captured in the positions of trust provisions. The reason is that those settings allow for roles that involve very high levels of trust, influence, power and authority. Particularly in the case of those involved in a religion, the figures are often also well-established, trusted and respected in the local community. Both sport and religion provide a child—a young person, I should say, as this goes to 18—with a strong sense of belonging, whether to a team, a squad, a community or a faith group. As noble Lords will understand, deep feelings held by the young in respect of those groups can provide unique and special opportunities for predators to exploit or manipulate them.
Another factor that we have taken into account is that when we come to sport as usually understood—for present purposes I do not want to get into the question of whether chess is a sport; that is perhaps for another government department—the physical nature of that activity means that coaches have legitimate reasons physically to touch in perhaps a more general sense than just touching, in other words putting their hands around, moving, manipulating and repositing the body of the young person they are coaching. A sports coach therefore has far more opportunities for physical contact than other roles. This again can be manipulated by abusers.
The amendment focuses on drama and music as further settings. Again, I hope it is clear from what I have said so far that I absolutely understand the motivation for these amendments but, without strong evidence to support their inclusion, I respectfully suggest to the noble Lord that there is no reason to include drama and music and exclude other settings in which adults work with children. I underline the point that it was never the intention that all settings where adults interact with children would be engaged. I suggest that it is dangerous to say, “Because there’s been a case here or a case there, we should include them.” We heard from the noble Baroness, Lady Brinton, that there had been a case involving chess in the United States. “Does that mean that we include chess here?” I ask rhetorically. I suggest the answer is no.
I will make one point on ballet—I am not sure whether that is a sport, an art form or perhaps both—of which I am obviously fairly ignorant. On the inclusion of dance, I suggest to the noble Lord that our definition of sport in Clause 45 includes types of “physical recreation” engaged in for the purpose of “competition or display”. I consider that this definition of sport would include dance. That might deal with the ballet point specifically, although I accept that the noble Lord’s point goes wider than just ballet.
I think the noble Lord, Lord Paddick, accepted that, in a number of these cases, there is no hard evidence—but we do have isolated cases. As I hope I have explained, we are seeking to rely on what appears to us to be the available evidence. To pick up the question, “What evidence would make you include new categories?”, the only answer I can give is that we are not limiting the nature of the evidence that will make us happy to consider other categories. I do not want to limit or straitjacket the sort of evidence we might look at in advance. If we find that new evidence emerges that might justify legislating further, we will do so. That is why we have put the Henry VIII power into Clause 45, so that we can add further activities if it appears appropriate—I emphasise “appropriate”—in the light of new evidence.
To come back to my main point, what we seek to do is strike this balance between safeguarding young people and, on the other hand, protecting the rights given to them by Parliament to engage in sexual activity on a consensual basis once they have reached the age of 16. I fear I might not have persuaded the noble Lord, Lord Beith, of the correctness of the Government’s position, but I hope I have explained it to him. I none the less invite him to consider withdrawing his amendment.
Baroness Hamwee (LD)
My Lords, before my noble friend responds, I feel very uncomfortable at the proposition that we should wait for examples of problems in specific sectors before there are provisions to deal with them. I think I have said enough, actually.
Lord Wolfson of Tredegar (Con)
I will reply very briefly to that point. When I say “new evidence”, I am not saying that there must be, God forbid, an incident. I am not circumscribing or limiting the nature of new evidence. If there is new evidence without there being an incident, we will look at that as well. I am certainly not saying that we will legislate only when, God forbid, there has been a terrible case. But one has to be careful. If one draws this net too widely, the effect is, sub silentio, to raise the age of consent. That was never the intention behind this provision.
Baroness Hamwee (LD)
My Lords, may I pursue that? What evidence are we talking about, then? We are all giving examples of where somebody in a position of trust might be by themselves with the person who trusts them. I do not follow what the evidence might be. I keep thinking of examples that have not yet been mentioned. Art lessons is another. I have been in an art lesson where the tutor has helped me to produce what I have ineptly tried to produce on a piece of paper. One could go on. What is “evidence” in this context?
Lord Wolfson of Tredegar (Con)
The art lesson may be a good example. With respect, there is a huge gulf between the relationship of somebody to their art teacher, if they go to an art group, and the sort of intimacy that a physical sports coach has with somebody or the sort of power, control and sense of authority that a religious leader has over a young person.
I shall give one example of evidence, picking a made-up country from private international law. Let us say that, in Ruritania, there is a huge number of cases of a particular category. It might well then be said, “We can see there is a problem with this category. It has happened in Ruritania. The circumstances are the same as in the UK. You should add that.” That is just one example. I do not want to limit the evidence that we would rely on but, with respect, we cannot say that, because there has been a case in an art class or a case here and a case there, we will include all these categories. We should not include every circumstance in which adults have close contact with under 18 year-olds. I think the noble Lord, Lord Paddick, wants to come in.
Lord Paddick (LD)
I am grateful to the Minister for explaining the Government’s position but I do not understand the argument that we are surreptitiously changing the age of consent. If a 16 or 17 year-old wants to have a sexual relationship with their music teacher, they had better find another music teacher; the solution is quite simple. They should not continue in a professional relationship and have a sexual relationship at the same time.
Lord Wolfson of Tredegar (Con)
With great respect, the point put to me by the noble Lord, Lord Paddick, shows that if we draw this too widely, we are limiting the ability of a 16 or 17 year-old to have a sexual relationship with that person. This the balance that we want to strike. At the moment, there is nothing to prevent a 17 year-old having a consensual relationship with a person with whom they have a tuition relationship or other kind of relationship. The question is: where do you draw the line? We say the line should be drawn at sport and religion. If you draw it too widely, you impact on that person’s ability to have a sexual relationship with other adults.
Lord Beith (LD)
My Lords, I start by answering one of the Minister’s questions: what would constitute evidence? The answer is: the same kind of evidence that was sufficiently persuasive for the Government to include sport and religion in this definition. I would expect it to be on exactly that level, bearing in mind the context, the professional relationship and how it operated.
I start where I agree with the Minister. We are not seeking to change the age of consent in this legislation; it would be the wrong place to attempt such a thing, even if there were strong arguments for doing so. What should determine the position that the law provides in this area should not be the selection of certain sports because there appears to be more or less numerical evidence of abuse; nor should it be an attempt to import some new age of consent; it should be on the same basis, whichever area of activity we are talking about.
The Minister said something very interesting which will cause us to reflect between now and Report. He said that, in the Government’s view, dance—or ballet, at any rate—is included. There is a compelling argument for that, which is one of the reasons I was inspired to put down this amendment in the first place. This is a very physical activity during which people who are themselves very skilled at it have to explain—and sometimes demonstrate or assist those they are teaching—some quite extraordinarily physical things. That is done by hundreds and thousands of ballet teachers, and has been for many years, with total propriety, but it is a context in which abuse can occur. In that respect, as the Minister obviously realised, it resembles the kind of definition he brought to bear for sport.
I agree also that there is a balance between, on the one hand, defining a position of responsibility and placing responsibilities and limitations on someone who has such a position, and, on the other, interfering with the rights of 16 and 17 year-olds who have reached the age of consent. My noble friend Lord Paddick highlighted the difficulties in achieving that balance when he pointed out that we would hardly welcome a situation in which it was generally accepted as okay for someone in that kind of professional relationship to continue a sexual relationship when attention was drawn to it. We would mostly expect the professional person to believe that they had to end the relationship, even if it were entirely consensual.
Lord Paddick
Member’s explanatory statement
This amendment is intended to probe the proportionality of the inserted subsection in comparison to other offences.
Lord Paddick (LD)
My Lords, in moving Amendment 113 in my name I shall speak also to the other amendments in this group. I declare an interest as a Liberal Democrat and someone generally against sentence inflation, but I have specific points to make on this clause.
Clause 46 effectively increases the maximum penalty for “destroying or damaging” anything by fire, or for any offence involving damage to a memorial, which means something “erected or installed”, or
“a garden or any other thing planted or grown which has a commemorative purpose”,
whether it is the statue of a national hero or a slave trader, a person’s grave or a pet cemetery. The clause does this by removing the financial limit on when the case can be tried at, or sent to, the Crown Court for sentence. Magistrates’ courts cannot send someone to prison, I believe, for more than a maximum of 12 months, but a Crown Court judge can send someone to prison for criminal damage where there is no threat to life for a maximum of 10 years.
To put this into context, Clause 2 of this Bill, as drafted, increases the maximum penalty for assaulting an emergency worker from one year to two years, while this part of the Bill increases the penalty for damaging a memorial from one year to 10 years. It is clear where the Government’s priorities lie; it is more important to protect a statue of Churchill than it is to protect our brave men and women police officers.
It gets worse. New subsection (11B) of Section 22 of the Magistrates’ Courts Act 1980, inserted by Clause 46, includes
“any moveable thing (such as a bunch of flowers)”
left in or on a memorial, as part of the memorial—so, a maximum penalty of 10 years in prison for damaging a bunch of flowers. Pick up a bunch of flowers placed at the feet of Churchill’s statue and hit a police officer round the face with it, and you can get up to 10 years in prison for damaging the flowers but only two years for assaulting the police officer. Amendment 113 is designed to probe the proportionality of subsection (11B). Amendment 114 is consequential.
In fact, bearing in mind that the limit for a summary-only trial—at least in the original Bill, and I cannot find any amendment to it—is £200-worth of damage, to replace, repair or restore the property damaged, it is unlikely that anything other than minor superficial damage would be below this value. There may well be a case to treat graves as a special case, where it can be deeply distressing if the burial plot is disturbed, but, aside from that, I am yet to be convinced that Clause 46 should stand part of the Bill, at least in its current form.
There is far more merit in protecting the living, as Amendment 115 proposes to do, than in protecting the memorials of the dead. Damaging life-saving equipment is a very serious matter, and there is far more merit in this amendment than in Clause 46.
Baroness Jones of Moulsecoomb (GP)
My Lords, I rise to support these amendments. We are now getting into the stuff that I will fight tooth and nail over. As an archaeologist and activist, I feel that I have a little bit of insight into this whole situation and perhaps into the ridiculous law that the Government are trying to introduce here. Instead of debating and discussing it and coming to a sensible resolution, this is part of a battle in a culture war, which is absolutely ludicrous.
History is important, but it is not fixed. People like to think that we all know what it is and it is in all the books, but, actually, as an archaeologist, I know that we reinterpret it all the time and are constantly making new discoveries. Just in the last week or so, we found Roman statues in a totally unexpected place. This is what happens: we change our minds about history and it gets rewritten.
The problem is that we have some very ugly history, which is littered with powerful and wealthy white men who, behind a thin veneer of toffish respectability, did some quite nasty things and were responsible for atrocities such as the enslavement of millions of people, genocides, war crimes and the grabbing of wealth from some of the many nations that we now call “developing nations”. Our statues ignore this history and pretend that it was benign and that these were good guys, which is simply not true: they were slavers and pillagers, and we ought to recognise that. Having their so-called heroism set in stone is actually quite offensive. There is no hint in many of these statues that they did some evil deeds.
People—many members of the public—do not like this, and they are showing their dissatisfaction with celebrating people who really should not be celebrated. They raped and pillaged, and the fact that they then spent a lot of money on universities, libraries or parks does not really make it all all right. So the question of what we should do with these monuments is important, but not easy. It should force us to confront the evils within our history and reflect on how they carry through to the social and economic conditions of our present.
Instead of leading on this quite important dialogue, the Government simply storm in with a new criminal offence, which I find so ludicrous that I feel I ought to go and speak directly to the Home Secretary about it. They are trying to put their fingers in their ears, sing “Rule Britannia” and pretend that all of this did not happen and that it was all okay—but it was not. Councils all over the country and the Government have to realise that statues are not something that we cannot change or remove. The fact is that some of these statues celebrate evil deeds, and the Government should recognise that.
I have more to say, if noble Lords wish.
Lord Falconer of Thoroton (Lab)
I apologise for not standing up promptly—I was expecting the noble Baroness to say more. I will deal with two issues in relation to this group. First, I will deal with the points made by the noble Lord, Lord Paddick, in relation to what is in effect an increase in the penalty for certain sorts of criminal damage. We on this side completely understand that certain sorts of criminal damage—for example, to the gravestone of a much-revered and loved person—that cause very little financial damage nevertheless absolutely cut to the heart of a community or an individual. Our view is that it should be possible, in certain circumstances, for that to be dealt with somewhere other than a magistrates’ court.
This absolutely over-the-top provision is not necessary to ensure that something like that, which does merit a Crown Court trial, should be dealt with in the Crown Court. I would have thought that a much more targeted amendment could have dealt with that, but this, which deals with absolutely every sort of thing, is unnecessary. You do need a provision to make sure that protection is provided in relation to things that are deeply offensive, such as the desecration of a grave—but, beyond that, the law works, by and large.
I also agree that a lot of thought has gone into this, but there is practically nothing in the Bill—except for one or two increases in sentences for violence—that deals with the protection of women and girls. Instead, there has been this very complicated provision. But, as I say, we accept that it will be appropriate in certain cases to allow for a trial in the Crown Court.
Our Amendment 115, which comes after Clause 46, is designed to deal with a practical issue in relation to criminal damage: the effect of vandalism on safety equipment. This amendment was moved in the other place by Sarah Champion MP, and it reflects a campaign that has been run by Simon and Gaynor Haycock, whose son, Sam Haycock, went swimming in Ulley reservoir in Rotherham in May 2021, on the very day that he finished school, aged 16. He went to help a friend who was in trouble. At the reservoir, a throw line that has a safety belt on it, which you can throw into the water to try to assist someone, is behind a locked cupboard. You can access the throw line only by ringing 999 and getting a PIN number from the police in order to get the line out. The delay in getting the throw line out may well have had tragic consequences on this occasion. The reason that it is behind a locked door with a PIN number is because of the vandalism of safety equipment. I wonder whether the Government could spend their time focusing on something that has a practical effect, rather than engaging in rather divisive culture wars. I very much hope that the Minister will feel able to say something to help Simon and Gaynor Haycock in their campaign.
The amendment proposes that it is made a specific offence to intend
“to destroy or damage any property which is considered life-saving equipment, including life-belts, life jackets, or defibrillators.”
Of course, it would already be an offence to do that, but it matters a lot to indicate that this is something that the law regards with particular hostility because it costs lives, including the life of Sam Haycock. I very much hope that the Haycock family will hear good news from the Minister tonight.
Lord Wolfson of Tredegar (Con)
My Lords, this group of amendments focuses on criminal damage and the need for Clause 46 to stand part of the Bill. Clause 46 addresses a sentencing limitation in the existing legislation to ensure that offenders who vandalise, attack or destroy memorials serve appropriate sentences that fit the severity of the crime.
The present position is this: where there has been criminal damage to a memorial and the value of that damage is less than £5,000, the court’s sentencing powers are limited in that the offence must be tried summarily and can attract a maximum penalty of only three months’ imprisonment or a fine of up to £2,500, which does not reflect in all cases the severity of the crime and the harm caused. We must remember that we are seeking here to provide a maximum sentence, not a mandatory sentence.
Clause 46 therefore removes this restriction by amending Section 22 of the Magistrates’ Courts Act 1980 so that where damage or desecration of a memorial occurs and amounts to an offence of criminal damage, the court will no longer be constrained in its sentencing options where the value of the damage involved in monetary terms is assessed to be less than £5,000. These are important changes that will ensure that courts can sentence appropriately, given the facts of the particular case.
I turn to the amendment from the noble Lord, Lord Paddick, to remove new subsection 11B from Clause 46(2) on criminal damage to memorials. New subsection 11B provides that moveable items such as flowers, flags or wreaths that are left in, on or perhaps adjacent to a memorial and—this is important—have
“(or can reasonably be assumed to have) a commemorative purpose”
will also
“be regarded as a memorial.”
It is important to recognise that items such as these, when placed at a structure such as a gravestone or—let us pick a topical example—the Cenotaph for the purpose of commemoration, albeit temporarily, should be covered by the clause. If someone goes to the Cenotaph, takes all the wreaths and chucks them around and destroys them, the fact that the value of those wreaths might amount to £4,683 ought not to prevent the court treating that offence with the severity with which I think everybody would regard it.
In the summer of 2020 there were attempts to set fire to the flag on the Cenotaph. The sentencing of those who burn the flag on the Cenotaph should not be limited by the value in monetary terms of the piece of fabric consumed by fire that is part of the memorial—ditto damaging a poppy wreath. The problem is that under the amendment that the noble Lord, Lord Paddick, wishes to make, those acts of vandalism and damage would not be covered as damage to a memorial. That is not right.
There are occasions when moveable objects such as these, when placed on a memorial, gravestone or similar structures, constitute the very essence of a memorial. A rose, when placed on the tomb of the unknown warrior, ceases to be—if I can put it this way, with apologies to Shakespeare—just a rose; it is something else. Those items should get the same protection as the memorial itself.
I therefore strongly disagree, respectfully, with the noble Baroness, Lady Jones of Moulsecoomb, when she says this is just about culture wars. It is not. Let me be absolutely clear: this Government have no problem with discussion, debate or challenge. If you want to say that Nelson was a great man or a terrible man; if you want to focus on Churchill’s successes in World War II or his actions in the Bengal famine, that is absolutely fine. What is beyond debate, I am afraid, and puts you into the proper realms of the criminal law, is defacing monuments.
Let us take an example from law. I did a little research, and it turns out that both the Grey of Gray’s Inn and the Lincoln of Lincoln’s Inn were leading advisers to Edward I, who in 1290 published the edict to expel the Jews from Britain. Does that mean I should go around defacing bits of Gray’s Inn or calling on Lincoln’s Inn to change its name? No. Because we recognise that these are matters for debate.
We can debate and discuss, but here we are talking about defacing monuments: criminal damage. That is not a debate on history. That is destroying the cultural fabric of this society. I heard the noble and learned Lord, Lord Falconer, say very deftly, if I may say so, that if it is a memorial to—I think I jotted this down correctly—“a much-revered and loved person”, that ought to perhaps go to the Crown Court and not the magistrates’ court. I respectfully suggest that a much-revered and loved person to one group of people is perhaps entirely the opposite to another; I do not agree that that is a workable basis for the law.
We have to say that the monuments we have are the monuments we have; they deserve protection. If we want to change a monument and have it pulled down, there are ways to do that. We can have a debate in your local council or a vote—it depends who the monument is being put up by—but we cannot have a right to deface monuments knowing that the protection given by the criminal law is too low in certain circumstances and, I suggest, extremely low in these circumstances.
The noble and learned Lord will forgive me if I do not respond in this debate to the point about violence against women and girls; we will debate that on many other occasions.
I now turn to the noble and learned Lord’s amendment about damaging or destroying life-saving equipment. I say at the outset that the case he outlined is extremely distressing and appalling. I hope I may be allowed to say that my sympathies and the Government’s of course go out to the family. The fact that it had to be locked with a PIN is, as I understand it, the genesis of his argument and what provoked the amendment. We therefore understand and agree on the intention behind the amendment. It is almost incomprehensible that anybody would damage or destroy obvious life-saving equipment.
While I understand the need for an effective deterrent, I respectfully suggest that the amendment will not have the desired effect, for the reason he almost touched on: it is already an offence to intentionally or recklessly damage or destroy property, including life-saving equipment, under the Criminal Damage Act 1971. The maximum penalty is 10 years’ imprisonment. Additionally, Section 1(2) of that Act goes further and makes specific provision for an aggravated offence of criminal damage where the defendant intends to endanger life or is reckless to such endangerment. That offence already attracts the possibility of life imprisonment.
If in this case it could be shown that the defendant intended to endanger life or was reckless, we already have a maximum potential sentence of life imprisonment. If that is not already proving an effective deterrent, perhaps the better course of action is for the various government departments responsible for water safety, health and safety and law enforcement to come together, see what is not working and identify working solutions.
Lord Falconer of Thoroton (Lab)
It is very helpful of the Minister to tell us what the law is—accurately, I am sure. I do not think it is well known that if you damage life-saving equipment, you might be falling foul of Section 1(2) of the Criminal Damage Act—that is, you might be recklessly endangering life—because generally you will not intend to do that. That is why it is important to have a provision that makes it clear in the Bill, because most people do not have the benefit of the noble Lord, Lord Wolfson, to tell them what the law is.
Earl Attlee (Con)
It seems pretty obvious that if you get hauled before the courts for damaging life-saving equipment, you are going to be in deep trouble. What you do not know is what the penalties are.
Lord Wolfson of Tredegar (Con)
We seem to be reaching a measure of agreement. I still say, with respect, that because we have that on the statute book at the moment, it is not appropriate to re-legislate in another place. I will take away the points put to me by the noble and learned Lord about more education and sign-posting, and clarifying and explaining to people what the law is. If people do not know what the law is in the Criminal Damage Act 1971, it is unlikely that they are going to be any more familiar with the Police, Crime, Sentencing and Courts Act 2021, as I hope it will be. If we have it in the law, however—and we do—with the reckless addition of a maximum sentence of life imprisonment, I suggest that that ought to be sufficient. On that basis, I invite the noble Lord not to proceed with the amendments. I hope that I have already responded to the amendment of the noble Lord, Lord Paddick.
Earl Attlee (Con)
My Lords, as usual, my noble friend has been very helpful, but what he has not convinced me about is why there is an increased deterrence value in having a maximum sentence of not, say, two years but one of seven years. I do not see why going to seven years is going to increase the deterrence value of the new offence.
Lord Wolfson of Tredegar (Con)
I am sorry, is my noble friend now back on the memorials point?
Lord Wolfson of Tredegar (Con)
The short answer to that is that I did not make my argument on the basis of deterrence. Sentencing encompasses a number of factors: there is deterrence; there is the actual punishment for the offence; there is marking society’s disapproval at what was done. I hope that I made my argument very clearly on the first two. I was not suggesting that people would necessarily be deterred; I hope that they will be, but that is not the main basis of my argument.
Lord Paddick (LD)
My Lords, I thank all noble Lords for taking part in this short debate, particularly the noble Baroness, Lady Jones of Moulsecoomb, for her support, albeit coming at the issue from a slightly different angle to the one from which I was coming. I also thank the noble and learned Lord, Lord Falconer, for picking up on what I said, which is that this needs to be more targeted. I specifically said that Clause 46 “as drafted” is not suitable. It needs to be much more accurately targeted; otherwise, it enables people to make the accusation that I did not make, that this is about dramatically increasing the penalty for what could be very minor damage to a statue of a very divisive figure. In fact, I made reference to the fact that doing anything to a grave, for example, could be deeply distressing and it may be that the penalty needs to be increased for that particular purpose. Clause 46, however, goes far too wide and draws those who feel that it is about culture wars into the argument, where that would not be the case if it were more far more tightly drawn; but at this stage, I beg leave to withdraw my amendment.
Police, Crime, Sentencing and Courts Bill
Monday 1st November 2021
(2 years, 6 months ago)
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Lord Paddick
Member’s explanatory statement
This amendment is consequential on Lord Paddick’s amendment to page 40, line 14.
Lord Paddick (LD)
My Lords, I rise to move Amendment 116 and speak to my Amendments 117 to 121 inclusive in this group.
Clause 48 gives the police the power to compel people to have their photograph taken at a police station without their consent. It includes someone arrested for a recordable offence and released without being charged or otherwise being prosecuted for an offence, if they have not previously been photographed, the previous photograph is unavailable or inadequate, or a constable thinks that another photograph might be useful to assist in the prevention or detection of crime.
We have had concerns for some time about those not convicted of a criminal offence having their photographs retained by the police, but forcing a person to attend a police station and taking their photograph without their consent in such circumstances seems draconian. However, the clause goes further. It includes anyone who has been convicted abroad of an offence which would have been an offence if committed in England or Wales, if the police do not already have a useable photograph of the person so convicted or if a police officer thinks that it might be useful to have another one.
Aside from how the police would know about such a conviction, particularly since the UK has lost access to EU databases that record all convictions in EU countries, some countries are notorious for having legal systems that fall far short of what would be considered acceptable in the UK. Surely, at least in relation to overseas convictions, there should be some judicial safeguard to ensure that such a conviction is safe, rather than a constable being able to force someone to be photographed in such circumstances. My probing Amendment 117 removes the conditions associated with an overseas conviction, and the other amendments are consequential. I beg to move.
Lord Coaker (Lab)
I thank the noble Lord, Lord Paddick, for his amendment. I have a very brief comment for the Minister. The Explanatory Notes say:
“Section 64A of PACE confers a power on the police to take photographs from a person who has been detained in a police station and/or arrested. If a person is arrested, charged or convicted without a photograph being taken, there is no power to require them to attend a police station later for this to be done, although there is such a ‘recall’ power in … PACE relating to taking of fingerprints and DNA samples.”
There are so many important things in this Bill, and this is yet another. The noble Lord is quite right to point this out. Therefore, why was it thought not to be necessary to include the taking of photographs in the original legislation but now is thought to be necessary? What is the evidence for the change in legislation to include photographs?
Also, the noble Lord, Lord Paddick, made the very important point about the extension of that power to overseas offences. Does that extension of power include not only photographs but fingerprints and DNA samples?
Lord Sharpe of Epsom (Con)
My Lords, I am grateful to the noble Lord, Lord Paddick, for explaining what he described as probing amendments.
Clause 48 amends the Police and Criminal Evidence Act 1984 to allow the police to require certain persons to attend a police station at a stipulated date and time for the purpose of taking their photograph. Comparing facial images, along with DNA and fingerprints, is a key tool for police to quickly identify and eliminate suspects. Under existing legislation, people who are arrested are taken to a custody suite to have their fingerprints, DNA samples and photographs taken straight away. If this is not done, there is a recall power to require those who have been arrested, charged or convicted to attend a police station so that their fingerprints and DNA samples can be taken. However, this power does not cover photographs and Clause 48 will address this omission, which I hope goes some way to explaining the question asked by the noble Lord, Lord Coaker—I think it was an omission rather than being deliberate—and bring consistency.
As things stand, opportunities to take photographs are being missed—
Lord Coaker (Lab)
I am sorry to interrupt, but is the Minister saying that it was a mistake? It was an omission; was it a mistake?
Lord Sharpe of Epsom (Con)
I am saying it was an omission. I am not saying it was a mistake, because I do not know whether it was, but it was an omission. I think there is a difference.
As things stand, opportunities to take photographs are being missed. This means that matches to crimes the person may have committed in the past or may commit in the future are not made. As the noble Lord explained, these amendments specifically intend to probe the necessity and proportionality of the provisions in proposed new subsections (1H) and (1I) of Section 64A of PACE. These provisions cover occasions when the police have been notified of a conviction in another country that has an equivalent offence in England and Wales. Where there is no photograph on file, or it is of poor quality, police will now be able to ask an individual to attend a police station to have one taken for the purposes of preventing or detecting a crime. To ensure appropriate oversight, this will require authorisation at the minimum rank of inspector.
As I said at the start, these provisions simply align the police’s ability to take photographs in certain circumstances with provisions that already exist for DNA and fingerprints. In that sense, we are therefore not breaking new ground. We are dealing here with individuals who have been convicted of a criminal offence, albeit in another country. In the interests of protecting people in this country, it is right that the police should be able to take and retain a photograph of a convicted person in these circumstances. I hope that the noble Lord agrees, particularly given the existing precedent in PACE, that this a necessary and proportionate power, and that he will therefore be content to withdraw his amendment.
Lord Paddick (LD)
I thank the noble Lord, Lord Coaker, for his support. I have to say to the Minister that I am really none the wiser about the questions I asked. There is a catalogue of cases where people are convicted overseas and where it turns out that the convictions are unsafe and unsatisfactory because of the inadequate legal systems that operate abroad. Yet this is a blanket power for the police to summon and photograph anybody on the basis of an overseas conviction. The noble Lord has not addressed how there could be any safeguard against such an unsafe and unsatisfactory conviction overseas.
The Minister talked about where the police have been notified of an overseas conviction, but I do not understand what the mechanism is by which the police would be notified. So my questions remain unanswered by what the Minister said and I hope that, between now and Report, the Government will be able to answer them, otherwise we will be having another debate on Report. At this stage, I beg leave to withdraw my amendment.
Baroness Chakrabarti
“Arrest without warrants: safeguarding
In section 24 of the Police and Criminal Evidence Act 1984 (arrest without warrants: constables), after subsection (4) insert—“(4A) A constable exercising the power conferred by subsection (1), (2) or (3) may not require or ask the person under arrest to enter a vehicle or premises other than a police station unless at least one other constable is present in the vehicle or when entering the premises, as applicable.””
Baroness Chakrabarti (Lab)
My Lords, I have the duty of opening this debate on amendments tabled by noble Lords in response to Sarah Everard’s abduction, rape and murder by a man who was, at the relevant time, a serving police officer, and further to the public outpouring of revulsion and distrust arising from revelations about how the perpetrator was allowed to thrive in the police service, despite repeated concerns about his character and conduct over so many years. These emerged in particular during sentencing proceedings just over a month ago.
My Amendment 122 attempts to address the fact that as a matter of hard law—as opposed to soft guidance, practice, or anything of that kind—a lone arresting officer is currently permitted to require a person subject to arrest to enter a vehicle or premises other than a police station. This gives rise to obvious dangers of abuse of power and dangers to the majority of officers who, unlike the man in question, undertake hazardous and vital public protection duties in good faith.
I am grateful for the support of the noble Lord, Lord Paddick, and the noble Baroness, Lady Jones of Moulsecoomb. I think the subsequently tabled Amendment 123, in the name of the noble Lord, Lord Carlile of Berriew, attempts to tackle a very similar mischief. He will forgive me, I hope, if in a moment I explain why I prefer my original proposal.
My Amendment 275 requires that the inquiry into matters arising from the Sarah Everard atrocity—for that is what it is—be put on a statutory footing under the Inquiries Act 2005. I am grateful not only for the signature of my noble friend Lord Rosser but for that of the noble Baroness, Lady Newlove, and my friend the noble and learned Lord, Lord Brown of Eaton-under-Heywood. I am also grateful for the support that the noble Lord, Lord Paddick, and a number of other noble Lords from across your Lordships’ House have expressed for this endeavour.
Once more, I hope that my noble friend Lord Rosser —and my noble friend Lord Coaker on his behalf—will forgive me for preferring my precise formulation to his Amendment 281, not least because in this matter the ideal outcome must be for the Home Secretary to hear the legal and public confidence arguments and by her own volition launch a full statutory inquiry under the 2005 Act, long before the Bill before your Lordships’ Committee becomes law.
Finally, I will support my noble friend Lord Rosser’s Amendments 282 and 283, which seem so important given the obvious needs for better training and vetting in the police service.
Amendment 122 amends Section 24 of the Police and Criminal Evidence Act 1984 governing the powers of police constables who arrest without warrant. It would prevent a police officer in or out of uniform from requiring an arrested person to
“enter a vehicle or premises other than a police station”
unless or until a second officer is in attendance. They would still be able to restrain the arrested person to prevent an escape if so required and, if necessary, to seek bystander assistance in so doing. However, there would be no question of a sole plain-clothed or uniformed officer driving off with an arrested person. This clear and simple change to our law must be better for the safety of all citizens and constables alike.
We now know that the first phase of the hideous abuse of power against Sarah Everard perpetrated by a predatory, murdering rapist was that he went hunting for a young woman under the cloak of dusk and draconian lockdown laws. He persuaded Sarah that he was arresting her under suspicion of breaching those same lockdown laws—something, by the way, that should require those laws being perhaps amended or repealed. While some senior voices in policing had the gall to suggest that she and other women are somehow too naive or compliant, and others have tried to suggest that we ought to perhaps flag down traffic, demand to speak to the control room on an officer’s radio or resort to private sector safety apps on our own mobile phones, it seems that no amount of new guidance to either citizens or constables can substitute for a clear and well-publicised change to primary legislation that everyone can understand.
Lord Carlile of Berriew (CB)
My Lords, it is a genuine privilege to follow that eloquent introduction to this group of amendments by the noble Baroness, Lady Chakrabarti. I make it absolutely clear from the outset that, for me, this is no competition between amendments: we are absolutely on the same page, in the same chapter and in the same book. In my view, it would be inexcusable for any Minister to reject these amendments on the grounds that they are not sufficiently well drafted.
The noble Baroness and I are both Back-Bench Members of your Lordships’ House; neither of us is a parliamentary draftsman. Yes, we are perfectly capable of drawing up a basic amendment or new clause and of obtaining advice elsewhere, as I am sure we both have. What we both trying to say, however, is that there needs to be a solution to the fear that now exists among young women about lone male police officers. It is a solution that the Government have to produce and that parliamentary counsel has to draft and put in a form that will be clear both to women and to the police.
Our feelings of sympathy for the family and friends of Sarah Everard are in no way diminished by the passage of time. Indeed, it is vital that we should keep this story running until we reach a satisfactory ending. If I may be forgiven for putting a personal slant on this, we are fortunate enough to have five daughters. One is a young professional woman, single, living with friends in a shared flat in Clapham, just like Sarah. She goes out with her friends or on her own and walks across the common, just like Sarah. She walks home when she feels like it and is obviously responsible in the way that she approaches her journey, just like Sarah. And she was brought up absolutely to trust the police, just like Sarah.
All those assumptions have been smashed on the ground as a result of this case. I am sure that we are not the only family who, for obvious reasons, sit up at night looking on Find My Friends, worried about the whereabouts of our children—although they tell us now that they are worried about our whereabouts and use Find My Friends for that purpose. We are genuinely concerned as they go about their lawful lives day and night. We have taught them the basic conventions of good self-protection and safety but, of course, one of the basic tenets of that domestic advice was that you can always trust a police officer: if something goes wrong and you can see a police man or woman, turn to them; they will see you right. We and they are now shocked to the core by the number of cases of police sexual misconduct that have come to light. This case is the very worst of the very worst, but it does not sit in a category all of its own. More than 70 incidents of police sexual misconduct, almost all by male police officers, have now come to light and been investigated to a greater or lesser extent.
Sarah Everard should, of course, still be alive and free to come and go as she wishes. In her death, she should not have to be remembered for the unspeakable things that happened to her, to which the noble Baroness referred—for the abuse of her person when alive and the desecration of her body in death. She must not be seen to have died in vain. It is our duty, in both Houses of Parliament, to take the appropriate steps to demonstrate to the world at large that Sarah Everard did not die in vain and that other young women—other women—will be protected from such events so far as is possible. That is our responsibility.
Lord Hunt of Kings Heath (Lab)
My Lords, I will speak to my Amendments 281 and 282, which concern police culture and police training. I say at once that I agree with my noble friend that the woeful police response, which the noble Lord, Lord Carlile, emphasised, sums up a real issue about culture that I do not see being tackled cohesively.
I understand why my noble friend favours her amendment because she wants an all-embracing Lawrence-type inquiry. I can see the strength of that. The benefit of the amendment that my noble friend Lord Rosser and I have signed is that it focuses on the culture of the police, which is a very important facet.
I was very struck by HM Inspectorate’s report, Police Response to Violence Against Women and Girls, which showed woeful inconsistency between the way police forces conducted themselves. The inspectorate highlighted that, at the level of individual cases, victims reported hugely different responses depending on which call handler they spoke to. Some were very sympathetic, others made the victim feel that they were not being believed. At force level, there were hugely unexplained variations about how forces used their protective powers and orders at their disposal. At local partnership level, the roles and responsibilities for partners working together in a multiagency safeguarding arrangement varied considerably. At the national level, actions to improve police responses were split over multiple government strategies. This surely has to be addressed if we are to make real inroads into these deep-seated problems about violence against women and girls.
Behind this woeful inconsistency, lack of leadership and lack of priority lies a great cultural impediment in so many of our police forces. I know that the Minister has commented before on the performance of her own police force, Greater Manchester Police, but I was struck by the Manchester Evening News investigation into the force last December. She might not want to comment on it and she might think it is not accurate, but it looked into the primary reason why the force missed 80,000 crimes last year. As noble Lords know, this led to action being taken, new management and a new chief constable, but what the Manchester Evening News said is that it discovered a tendency for
“obfuscation, denial, secrecy and an instinct to defend the indefensible”,
taking
“misleading and inaccurate statements, denial of official criticism and legal stonewalling; police officers fearful to report failure and those attempting external scrutiny being brushed off.”
As the article says:
“Understanding and fixing the causes and solutions of what was dubbed a ‘rotten’ culture four years ago will … be central to that”.
I do not want to tar every police force with Greater Manchester’s brush, but lying behind that are major issues about how the police conduct themselves, which is very relevant to our debate.
I was interested in the interview with the former Justice Secretary, Robert Buckland, in the New Statesman on 27 October. Commenting on the Sarah Everard case, he said that instead of being “defensive”, senior officers must be “constantly vigilant” about weeding out dangerous officers and supporting those who need to improve. He said:
“Leadership is all about being honest and there will be times when the police have to own up.”
Where are the signs that most police forces and most police leaders understand that? I do not think there are many signs at all.
Then there are the comments of Sir Tom Winsor, Chief Inspector of Constabulary, to the Commons Home Affairs Select Committee recently. He warned of a culture of colleague protection. He said that forces needed to be “much more assiduous” in throwing out probationary officers who had a fondness for violence or exercising power, exhibited misogyny, racism or homophobia, or showed a lack of maturity and judgment.
Why on earth did he have to make that comment in the first place? Why on earth do police forces not exercise a considerable degree of vetting over probationary officers at that crucial first stage? He went on to say—and this is controversial—that professional standards units, which countered corruption, were often not staffed with the best people, which meant that substandard officers, whom he referred to as
“cancerous growths within the force”,
were not identified or pushed out. He gave the example of a group of male officers in the locker room who did not challenge or report two colleagues who boasted of picking up a female assault victim and taking her home, where she was raped. The pair were ultimately prosecuted but nothing happened to the officers who did not report them.
I rest my case. There are so many examples of a really damaging culture. We can see this being played out in relation to this awful, horrendous number of crimes against women and girls. We can change the law. We can do all sorts of things like that but until we change police culture, I do not think we are not going to have the effect we need.
I like both amendments and clearly, on Report there will be an attempt to composite them—if I may use that word, which my noble friends here will well understand and not love. So far, we have heard weasel words from the chief police officers. There is little indication that they understand that the culture they lead has got to change. I very much hope that this House, through our debates on this Bill, will be able to influence a change of direction.
Baroness Jones of Moulsecoomb (GP)
My Lords, this issue of trust in the police is an interesting one. Trust has been eroding for many years now. Two cataclysmic events in the past couple of years have really made a difference. The first—not chronologically—is the murder of Sarah Everard and the way that the police policed the vigil and the ludicrous comments that solo women should hail a bus if they feel in danger and so on. Really, the whole police force needs some serious attention and serious guidance, and perhaps even a new police commissioner. That might be a very good idea.
The other thing was that during the pandemic we had law and we had guidance and then we had what the Ministers were saying at regular press conferences. That got very confusing for the police, to the point where they were trying to move people on for sitting and resting during a walk. That did not help the police and that was not the police’s fault. That was the Government’s fault for not being clear about instructions.
I support all the amendments in this group and agree that we need a statutory, judge-led inquiry. It cannot be allowed to drift past without real challenge by a judge. You have to remember that this was not somebody pretending to be a police officer: this was a real police officer abusing his position to abduct, rape and kill. The fact that he had a reputation already in the police is extremely damaging. This is a culture that we all know exists, and it should be fixed.
On Amendment 282, I have spoken many times here in your Lordships’ House about training for the police on domestic violence, because they have a reputation for assaulting quite a lot of the people they live with. We have to make sure that they get this sort of training. As far as I know, only about half the police forces in England and Wales have so far had domestic violence training. If they do not have that training, it really cannot be argued that they know what to look for and how to treat victims of abuse, so that is extremely valuable and important.
Baroness Blower (Lab)
My Lords, briefly, I speak in support of Amendments 122 and 275 in the name of my noble friend Lady Chakrabarti—who has already made an eloquent and erudite contribution, as the noble Lord, Lord Carlile, said—and other noble Lords. I will also echo elements of the noble Lord’s contribution.
Amendment 122 encapsulates and incorporates precisely the advice that I would now want to give to my own two daughters and, in due time, my own grand-daughter, in the light of what we all know happened to Sarah Everard. There has been talk of flagging down buses or otherwise seeking assistance, in the case of a lone arresting officer seeking to require a person subject to arrest to enter a car or, as the amendment says
“premises other than a police station”.
I simply do not find such advice or suggestions helpful or sufficient. These suggestions would not, I am afraid, assuage the well-grounded fears of many women in the wake of recent events and revelations about the behaviour of some police officers. The amendment, however, sets reassuring and necessary parameters, and I am in full support of it. We must use this legislation to afford clarity and safety to women.
With regard to Amendment 275, again, I believe that action taken hitherto by Her Majesty’s Government is insufficient and that a statutory inquiry, for all the reasons advanced already in this debate, is needed. It is needed to learn lessons but also to give a signal that we will now begin to restore the faith and trust in the police which has been so manifestly and extensively damaged.
Lord Paddick (LD)
My Lords, I have to tell the Committee that I find these debates very difficult. I was a police officer for over 30 years and, for part of that time, a senior police officer. Like the overwhelming majority of hard-working, decent and honest police officers in this country, I find it very difficult to hear this sort of debate and to say the sorts of things that I will say now. I do not have the same sympathy for senior police officers who are failing in their leadership. I recall speaking privately to a former Commissioner of the Metropolitan Police and asking that individual, “What on earth is going on at the moment?”. He said, “Well, Brian, I think when the police come under pressure, diversity goes out of the window”. The police have been under a lot of pressure because their resources have been reduced, because knife crime has become an epidemic and because of the horrific situations we find ourselves in.
As the noble Lord, Lord Carlile, said earlier, it is not just about Sarah Everard. In the last two weeks we have had a Metropolitan Police officer charged with rape and another with indecent images of children. There were a whole series of cases that point to a real issue with the culture in the police service, and in the Metropolitan Police in particular. So I completely understand and support the principles behind the amendments, and I have indicated my support for Amendment 122 by adding my name to it.
I want to bring some real-world practicality to bear on the amendments. Amendment 122, in the name of the noble Baroness, Lady Chakrabarti, suggests that a police officer
“may not require or ask the person under arrest to enter a vehicle or premises other than a police station unless at least one other constable is present in the vehicle or when entering the premises”.
Not only does that go to the heart of the Sarah Everard scenario, but it is entirely consistent with best practice for the protection of the person arrested and the arresting officer. I should explain that in the police a person who has been arrested is called a prisoner, and I will do the same.
First, it does not specify that the provision should apply only to a woman or a child, as Amendment 123 does. The noble Baroness pointed out how there might be legal difficulties with that but, as she said, what if the arresting officer is gay or the person arrested is a gay man? Where would the protection be for the arresting officer against allegations of inappropriate behaviour in those circumstances, or the protection for the arrested person, if we restricted it only to a woman or a child? As the noble Baroness said, a black person may also have fears about getting into a vehicle when there was only one officer present. From my own professional experience, I have lost count of the number of reports of black people who have been beaten up on the way to the police station. The issue that we need to address here is male violence perpetrated by police officers, whether directed at a male or a female prisoner, although women may understandably feel more threatened with a lone male arresting officer than a male prisoner would. Amendment 122 would provide protection for the police officer and for the person arrested, whatever sex or sexuality they may be.
Secondly, it is very dangerous for a lone police officer to drive with a prisoner in the car. The prisoner could attack the officer while driving even if handcuffed, as we saw with the tragic death of police Sergeant Matt Ratana, who was shot in Croydon police station by a handcuffed prisoner. Ideally, police officers should patrol and respond in pairs wherever possible, and at least one of those police officers should be female, but that is not always possible. Ensuring that two police officers are present is an important and almost always adequate safeguard.
As the noble Baroness, Lady Chakrabarti, said, and as the Minister said in answer to an Oral Question on Thursday, only about one-third of police officers are female—even fewer, I believe, in the Metropolitan Police—so the practicality of requiring a female officer to be present, as Amendment 123 demands, may not always be possible, and in some cases it would not be appropriate to release the prisoner if a female officer could not attend the scene.
I turn to the other aspects of Amendment 123. Giving the person arrested
“an immediate and reasonable opportunity to contact another person”
could have serious officer-safety implications. I myself have been subject to attempts to rescue a person that I had arrested, albeit that it was in Brixton a few months before the Brixton riots. There is a real danger that the arrested person could summon people to effect her escape from police custody. And, as I think the noble Lord, Lord Carlile of Berriew, alluded to, the problem with the arresting officer providing a telephone number purporting to be the number of a police station or control room, were he to have criminal intent, is that he may have an accomplice on the telephone number given to the prisoner.
Long delays between arrest and arrival at the police station, in my professional experience, expose both the arresting officer and the person arrested to danger. It may not always be possible, for example if the prisoner is violently resisting arrest, either to explain her rights to her or to provide them in writing. Again, in my professional experience, people do not want to be arrested by the police and are unlikely to attend a police station if allowed to go free. I completely understand the sentiments behind both these amendments. I have serious reservations about the practicality of Amendment 123, but I have no hesitation in commending Amendment 122 to the Committee.
I also strongly support Amendment 275, which calls for a Macpherson-type inquiry, under the Inquiries Act 2005, into the Sarah Everard atrocity and all the surrounding issues. This is something akin to the issues of public trust and confidence around racism that came out of the tragic death of Stephen Lawrence and that the Macpherson inquiry looked to address. We are facing an equivalent situation here in terms of misogyny and violence against women and girls. It is absolutely appropriate that we have a similar inquiry to the Macpherson inquiry to deal with that. I prefer Amendment 275, for that reason, to Amendment 281.
I also support Amendment 282: mandatory training for all officers, not just recruits, on violence against women and girls. Of course, culture is the most difficult thing to change, but training is an important part of changing that culture. I also support Amendment 283, with the caveat that I believe the vetting procedures used in the recruitment of all police officers need to be urgently reviewed, not just for officers transferring between forces.
The noble Baroness, Lady Jones of Moulsecoomb, talked about the Sarah Everard vigil. I will refer to this at length when we come to the public order parts of the Bill, but I was an advanced, trained senior police officer in public order. I read the Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services report into the Sarah Everard vigil. How HMIC came to the conclusions that the police did everything right, on the basis of what it wrote before it got to that conclusion, I have no idea. The evidence in that report is completely contrary to that conclusion, in my professional judgment. So, there is something seriously wrong here: how can we change the culture if we have that sort of whitewashing by HMIC?
The noble Lord, Lord Carlile of Berriew, raised issues around police leadership and police culture and what I have described before as a culture of cover-up rather than own-up. I have always believed the way to build public trust and confidence is, when there is misconduct, to show you are ruthlessly dealing with it rather than trying to cover it up to protect the reputation of the force. I will say more about that when we come to a later group on the duty of candour. The noble Lord is absolutely right: there is a failure of leadership at the top of the police service. It makes me very uncomfortable to stand here and say that, but it is something I felt when I was in the police service and continue to feel now. I absolutely support these amendments.
Lord Coaker (Lab)
My Lords, it is getting quite late in the evening, but I think everyone here would agree that this has been a fantastically high-quality debate on one of the most crucial issues facing our country today. I hope that many members of the public, let alone our fellow Peers, will read the brilliant contributions of my noble friends Lady Chakrabarti, Lord Hunt and Lady Blower, the noble Lords, Lord Carlile and Lord Paddick, and the noble Baroness, Lady Jones —I think I have mentioned everyone.
This really is an important debate, and at its heart is the trust and confidence the public of this country have in the police. We will not change attitudes and these issues with which we wrestle until we can ensure that the public trust the police. It is really hard, and it must have been difficult for the noble Lord, Lord Paddick, to say some of the things he did, but that is the reality and the police have to accept it. We all agree that the vast majority of police officers are good and do their duty, et cetera, but it does not alter the fact that the statistics tell us that there is a serious problem. This is not about blaming anybody; it is about saying what we are going to do about it.
I completely agree with the noble Lord, Lord Carlile, that this is not—and nobody has suggested it is—a competition of amendments. From his experience, my noble friend Lord Hunt knows that, between all noble Lords, we should be able to devise a set of amendments on which we all agree and which have, at their heart, a desire to improve the policing of this country and restore the confidence and trust of the British people. That is what all these amendments are about.
One or two issues arise from them. There has to be a statutory inquiry. I frankly cannot believe that the Government would resist that. There is just incredulity, because it just makes every sense. As my noble friend Lady Chakrabarti laid out, that is why the Inquiries Act was passed, and successive Governments have used it as the vehicle to deal with serious problems to which you want a response that people can agree with and have confidence in. You can set up other inquiries, which will all be well meant and do a good job, as the noble Baroness, Lady Casey, and others will. This is not to say that they will not do a good job, but I say to the Government that at the heart of this, public confidence is everything. It is the holy grail. It is the only vehicle that people will think of as correct. If you go to the supermarket, down the pub or to the sports club, or if you walk down the road and say it is a public inquiry led by somebody of stature, in whom people can have confidence, it will take you over the first hurdle, because people will believe its conclusions, whatever they are. All of us find it unbelievable that the Government are resisting this. Whichever amendment we choose as the best, surely we can agree on the principle of a statutory inquiry. It is certainly something to which we will have to return on Report, if the Government resist.
Why am I and the Chamber so exercised about this? We have heard very eloquently of the horror of the Sarah Everard case. Every now and again there is some horrible crime that unites us all in its horror. There is always something that ignites passion and fury within the public and the political establishment that demands action and that something more is done, beyond the normal “This is shocking, this is terrible”. This has to be a lightning rod that says, “No more, we’re going to change”. It cannot go on, and the Minister understands and knows this.
I googled it again. Time after time we hear it. This week, a serving Metropolitan Police officer was charged with rape. Channel 4’s “Dispatches” reports that 2,000 police officers have been accused of sexual misconduct over the past four years, which includes over 370 accusations of sexual assault and almost 100 of rape. A mugging victim came forward to the BBC with her experience when she reported her attack. The police officer on duty asked if he could take her out on a date, whether she was single, what she wore to work and whether he could take pictures of her. According to the BBC report, he was so confident that there would be no repercussions for his behaviour that he did it in writing on his official police email account. It is unbelievable and shocking at the same time.
I know Sue Fish because she is the former chief constable in Nottinghamshire, the area which I represented for a number of years. She said:
“This isn’t about an individual officer. This is about a prevailing culture within policing.”
We ought to be able to find a way around this. Notwithstanding the other amendments tabled by my noble friend Lady Chakrabarti, Amendment 281, tabled by my noble friends Lord Rosser and Lord Hunt, and the noble Baroness, Lady Jones of Moulsecoomb, talks about a statutory inquiry to look at this issue of culture. Obviously, there is a need for some sort of statutory inquiry into what happened to Sarah Everard, but we must get to the root of what is happening with respect to the culture in the police. It is not everyone, but it is a significant number of police officers, which is why in Amendment 281 we have said that there must be a statutory inquiry
“into the culture of policing and the prevalence of violence against women and girls”,
to include members with specific
“expertise in the prevention of violence against women and girls”
and various recommendations to be made to it, and so forth and so on.
One thing I find here is that all noble Lords read the amendments, so I will not repeat everything that is in the amendment, but, if we cannot change the culture, we have a real problem. I will tell you what I think. The vast majority of police officers are sick of it and want something done about it, and the vast majority of police staff want something done about it. They are looking to our Government to do something about it, working with senior police officers. We talk about leadership, but we have a leadership role as well. It goes back to the signposting of a statutory inquiry as being so important—because that is the lightning rod that you hold up to the public to say, “We get it, we understand it, we realise why you’re so upset about it, we’re upset about it and that’s why we’re going to use a statutory inquiry to do something about it”.
I know that I am getting passionate about it, but if we resort to a calm, reasonable, almost closed-shop type of inquiry that has a look at it but does not have that sense of urgency, that sense that this is a moment when we need to grasp this issue, we will fail. We talk in later amendments about vetting and training. All those things are crucial, and something must be done about them.
Let me say this as well. I know that the Minister gets this, because she has already made a commitment to look at recognising violence against women and girls as serious violence, and to look at how it is assessed. That is a really important step forward, but the Government have the power to do more. They must not waste this opportunity, out of the horror of what happened in the Sarah Everard case, and in the horror of all the cases that we read about, all the inquiries recently by Zoë Billingham that talked about the “epidemic”, and all the recommendations in that report.
So what are we going to do now which shows that this time it will be different? Will we not have a statutory inquiry, however it is organised and whatever its terms of reference, which does something about what many people in this country are looking to their Government to do something about?
We want trust and confidence in the police. We have to find a vehicle by which the concerns that are raised in this House, the other place and across the country, are recognised, realised and something is done about them. A statutory inquiry surely has to be one way of doing that.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, I am most grateful to the noble Baroness, Lady Chakrabarti, and the noble Lords, Lord Coaker and Lord Carlile, for raising the very important issues arising from the terrible abduction, rape and murder of Sarah Everard, which has appalled us all and, as the noble Lord, Lord Carlile, says, time will not fade; every time our daughters leave the house it reminds us. It is imperative that Sarah’s family and the public understand how a police officer was able to commit such a terrible crime so that we can stop it from ever happening again and restore to our police forces that trust and confidence that the noble Lord, Lord Coaker, talked about.
As noble Lords will be aware, my right honourable friend the Home Secretary has recently announced her intention to launch a two-part non-statutory inquiry—I will go on to talk about that—into the circumstances surrounding Sarah’s murder. The first part of the inquiry will look at Sarah’s murderer and his tenure at the Metropolitan Police leading up to his conviction, as well as assessing any missed opportunities to hold him to account for his conduct.
The second part of the inquiry will look at any specific issues raised by the first part, which is likely to include wider issues across policing, including, but not limited to, vetting practices, professional standards, discipline, and workplace behaviour. A lot of noble Lords tonight have talked about the culture of the police, not just in the Met but all over the country. This is the opportunity to look at any systemic flaws in vetting or issues around policing culture that the noble Lord has highlighted in his amendment. We expect that the separate inquiry established by the Metropolitan Police Commissioner, being led by the noble Baroness, Lady Casey, into the culture and standards of the force, will feed into part two of the inquiry established by the Home Office.
I very much recognise the arguments around establishing an inquiry under the Inquiries Act, but I also understand the critical need to provide reassurance to the public at pace. A non-statutory inquiry satisfies the need to move at pace, allowing greater flexibility, and it can be tailored to the issues. We expect that the police forces for which Sarah’s murderer worked will all be witnesses to, and comply with, the inquiry. In February 2020 we amended regulations—this is an important aspect—to ensure that police officers are under a duty to co-operate as witnesses with investigations, inquiries and formal proceedings under the revised standards of professional behaviour. They are guilty of a disciplinary offence if they fail to do so.
The Home Secretary has also been clear that the Government will, following consultation with the chair, convert the inquiry into a statutory inquiry if it is determined that it cannot otherwise fulfil its functions. The Government are aiming to appoint a chair shortly and can then confirm the terms of reference. An update will be provided to the House at that point.
In relation to immediate concerns about the vetting of police transferees, the College of Policing updated its guidance this year having taken into account a recommendation from HMICFRS’s 2019 report Shining a Light on Betrayal: Abuse of Position for a Sexual Purpose. Forces should now assess details of transferees’ performance, sickness record, complaints, business interests, notifiable associations and corruption intelligence. Furthermore, the inspectorate is now undertaking an urgent thematic inspection of force vetting arrangements following a request from the Home Secretary. This will specifically look at whether forces are vetting transferees in accordance with the guidance.
Lord Paddick (LD)
My Lords, I realise the hour is late, but there are two things I would like to mention. First, I am very interested in what the Deputy Commissioner Sir Steve House said. I do not know when he said it, but it does not seem to chime with the fact that, two weeks ago, I was challenged by a lone officer in plain clothes. That seems to be completely contrary to what the Minister said he announced.
Secondly, the Minister says there should not be an inquiry under the Inquiries Act 2005 because we need to move at speed. I can tell noble Lords that the Metropolitan Police never moved quicker on racism than when it was announced that there would be an inquiry under the Inquiries Act. It was not when the inquiry reported that the Metropolitan Police swung into action to deal with racism. It was absolutely ready with an answer as soon as that inquiry reported, because it knew what the problems were and realising that this was all going to become public in an inquiry galvanised it into action.
Baroness Williams of Trafford (Con)
I note the noble Lord’s points and I do not disagree with him. I ask the Committee to understand the commitment of the Home Secretary. She is deadly serious about ensuring that the inquiry moves at pace and, if necessary, converting it to a statutory inquiry if it is not meeting its commitments.
I will get the date for the noble Lord, Lord Paddick, and the Committee. The announcement from Dame Cressida Dick was on 20 October, some 11 days ago, but I will get the date on which Sir Stephen House made those comments.
Baroness Chakrabarti (Lab)
My Lords, I am hugely grateful to all Members of the Committee for the substance and tone of our proceedings. I am particularly grateful to the noble Lord, Lord Carlile, who dealt with our minor points of detailed difference with such grace. If I may say so, what I really took away from his comments was the sense of a loving father speaking of his daughters and the hope that we might one day return to a moment when all our daughters and granddaughters can trust the police. I was also struck by the way he worked with the young woman lawyer in trying to bring matters forward with such urgency. I thank him so much for that.
I agree with my noble friend Lord Hunt of Kings Heath that we have to get to the culture of obfuscation and denial—understandable human instincts when we want to protect our colleagues and the service that we love. I say to the noble Lord, Lord Carlile, that if it had been a scandal of equivalent proportions at the Bar, we would feel as uncomfortable as the noble Lord, Lord Paddick, so we understand these things.
I say to my noble friends that my Amendment 275 also deals with culture, but this is not about precise amendments—this is too important for that—but about trying to persuade the Government on both of these issues, of trust and confidence on the one hand and effective change on the other, with which we are attempting to deal in this whole group of amendments. This is about trying to persuade the Government on the power of arrest on the one hand and the inquiry and the training and vetting on the other.
The noble Baroness, Lady Jones of Moulsecoomb, made such an important point when she talked about that period of lockdown and the way that that has, in a sense, exacerbated every problem in the world but also problems around the fault-lines between hard law, guidance, perceptions of the law and trust in policing and what really is the right thing. It was in that lockdown that this atrocity was perpetrated.
Of course, she was also the Member of the Committee who pointed out that, just hours or days after the perpetrator was charged, someone made the insensitive decision to police that vigil in that way. Whoever did so must have known what we were yet to find out. The noble Baroness, Lady Jones, spoke of the young woman who now features in all of the videos and photographs. We know that, subsequently, she has been stalked by serving police officers on her Tinder account. So we really are in trouble, and we are trying to respond to a really significant problem of culture and trust in policing in this country. We are not fabricating this. No one thinks that; I know that we are all on the same page.
My noble friend Lady Blower was also clear that guidance will not be enough. We have gone too far for that in relation to any of the really serious specific issues that the noble Lord, Lord Carlile, and I and others have been trying to address in these amendments.
I thank the noble Lord, Lord Paddick, for everything that he is doing in this group and on the Bill more generally. I say to him and anyone who is now feeling very concerned about and suspicious of policing in this country that there is another side. I would like to believe that the noble Lord, Lord Paddick, still represents more of what is real and true in our policing service and in our democracy built on the rule of law. I hope that we can all listen to him and heed his practical advice. The word “gallant” is used for the military; there is no equivalent for the retired senior police officers in your Lordships’ House, but there are many retired commissioners and others here. But it is the noble Lord, Lord Paddick, who has been engaged with the Bill day after day and has spoken from the heart and from years of practical experience. We have to heed him. I was heartened by hearing him discuss, on Amendment 122, the approach where we do not want lone police officers driving off with arrestees, for the protection of either. That is best practice, but we now need to put that into hard law to reassure everyone and as a matter of good governance.
My noble friend Lord Coaker said passionately—and he is so right—that we have crossed a line in terms of public trust. Once lost, it is really hard to regain. That is why he made the point, again and again, that a full statutory and judge-led inquiry is part—just part—of trying to regain that trust. Can any of us imagine a Lawrence or Macpherson inquiry that was not judge-led and on a statutory footing, with all the iconography and symbolism of justice that comes with that?
Lord Paddick
“Post-charge detention of children
(1) The Police and Criminal Evidence Act 1984 is amended as follows.(2) In section 38, for subsection (1)(b) substitute—“(b) if the arrested person is a child, the grounds inserted into the Legal Aid, Sentencing and Punishment of Offenders Act 2012 by section (Youth remand) of the Police, Crime, Sentencing and Courts Act 2021 apply;”.” Member’s explanatory statement
This amendment would bring the PACE criteria for police remand of children into closer alignment with the court remand criteria.
Lord Paddick (LD)
My Lords, I rise to move Amendment 123A in my name. I apologise to the Committee. If I had had my wits about me, I would have grouped it with the previous police bail amendments. I am grateful to Transform Justice for bringing this issue to my attention and for its help and support in drafting this amendment.
The Government continue to place tighter restrictions on when courts can remand children in custody. Those are much stronger than the restrictions currently placed on the police when they decide whether to remand a child in custody to court. Court criteria, most of which do not apply to the police, include that: the child must be between 12 and 17 years of age and be legally represented, other than in exceptional circumstances; they must have been charged with a violent or sexual offence or have been charged with an offence where an adult would have received a custodial sentence of 14 or more years; or they have a recent history of absconding while remanded; or they have a history of committing imprisonable offences while on bail; and there is a real prospect of a custodial sentence for the offence in question. In addition, remand in custody must be necessary to protect the public from death or personal injury or to prevent the child from committing further imprisonable offences.
The police remand many more children in custody than the courts. In 2019, the year with the most recent data available, over 4,500 children were remanded in police custody compared with 884 children remanded in custody by the courts. Some 60% of children remanded in custody by the police had been charged with non-violent offences and only 12% of those remanded in custody by the police went on to be remanded in custody by the courts. Two-thirds of children remanded in custody by the police do not receive a custodial sentence.
In Clause 132, the Bill suggests further strengthening the restrictions on courts remanding children in custody, including that the history of breaching bail or offending on bail must be “significant”, “relevant” and “recent”. If detention is being considered for the child’s own safety, this would be possible only if the risk cannot be safely managed in the community. It would have to be “very likely” that the child would receive a custodial sentence rather than a “real prospect”. Courts would also be under a statutory duty to record their reasons for imposing custodial remand, including a statement that they have considered the welfare of the child in their decision and that they have considered alternatives.
The Bill as drafted does nothing to tighten the restrictions on the police remanding children in custody, or even to bring them into line with existing court restrictions. Amendment 123A intends to bring the Police and Criminal Evidence Act criteria for police remand of children into closer alignment with the court remand criteria. I beg to move.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I am very grateful to the noble Lord, Lord Paddick, for moving his amendment. As the Committee might be aware, I sit as a youth magistrate, usually at Highbury magistrates’ court. I have to say that I was not aware of the difference in the remand criteria; I should have known but I did not. I also thank Transform Justice for bringing this to my attention. The noble Lord has very thoroughly explored the differences in the number of youths remanded by the police versus those remanded by the courts. I would be interested to hear what the Minister has to say in response.
Baroness Williams of Trafford (Con)
I thank the noble Lord, Lord Paddick, for raising this important issue of children remanded in custody. I quite agree that police custody is not a suitable environment for children and that they should not be detained there unless it is absolutely necessary.
The provisions introduced by this Bill will amend the “tests” set out by the Legal Aid, Sentencing and Punishment of Offenders Act 2012, also known as LASPO, which must be satisfied before the court remands a child to custody. These are intended to ensure that custodial remand is used only as a last resort, where there are no other options and it is necessary to protect the public.
Before the courts get involved, if a child is charged with an offence, Section 38 of the Police and Criminal Evidence Act 1984 provides that the police must release them either on bail or without bail pending their appearance at court, unless one or more specified conditions apply. These conditions are that the child’s name or address are not known or are not believed to be genuine; there are reasonable grounds to believe the child will not appear in court to answer bail; the detention is believed to be necessary to prevent the child committing an offence, causing physical injury, loss or damage to property, or interfering with the investigation of offences; or the detention after charge is believed to be necessary for the child’s own protection or in their own interests.
I would like to reassure the Committee that there is already a degree of alignment between police bail and court bail, and the police custody officer must have regard to the same considerations as those that apply when a court is considering whether to grant bail under the Bail Act 1976.
I acknowledge the concern that many more children are remanded post charge by the police than are remanded by the courts while awaiting trial, as the noble Lord, Lord Paddick, outlined, and that this may give rise to consideration of risk-averse decision-making by the police. I do not necessarily believe this to be the case. It is important to remember that post-charge detention by the police serves a different purpose from youth remand in the courts, so it is unrealistic to expect an exact alignment of the conditions required to make decisions.
With this in mind, it is perfectly possible for the police to make a decision to remand a child post charge and for the courts to make a decision not to remand the same child to custody, and for both these decisions to be reasonable based on the evidence and circumstances before each party. In the overwhelming majority of cases, a child remanded by the police will be held for no more than 24 hours.
I also acknowledge the concern that police remand is a driver of custodial remand—that is, for example, that a court is more likely to view a child remanded by the police as dangerous. I am not aware of any data showing a causal link between police remand and custodial remand. A comprehensive evidence base comparing the circumstances whereby police bail after charge decisions are made under Section 38 of PACE would be needed, giving consideration to the threshold for grounds to refuse bail and whether custody officers have access to and apply all relevant information when making a bail decision.
Before I conclude, I take this opportunity to put on record my thanks and the Home Office’s gratitude to Brian Roberts, who was the department’s expert on the Police and Criminal Evidence Act. Sadly, he died last month after 50 years of public service as a police officer and then an official in the department. He is greatly missed by his colleagues.
On the basis of my remarks, I hope the noble Lord will be happy to withdraw his amendment.
Lord Paddick (LD)
My Lords, I thank the noble Lord, Lord Ponsonby of Shulbrede, for his support.
I am afraid that there is a bit of a pattern developing here in the Government’s responses. On the one hand, the Minister said there is “a degree of alignment” between police remand in custody of children and court remand in custody. Some 4,500 children being remanded by the police and only 884 by the courts does not sound to me like alignment.
The Minister also said a child would never be remanded in police custody for more than 24 hours. Do courts sit on a Sunday? What happens to a child arrested on a Saturday afternoon? They are going to be in custody a lot longer than 24 hours.
Unfortunately, as I say, it is becoming a bit of a theme that the Government’s responses to amendments do not appear to be factually accurate. We need to review that. I am afraid I do not find the Minister’s response satisfactory, and no doubt we will return to this on Report. In the meantime, I beg leave to withdraw the amendment.
Police, Crime, Sentencing and Courts Bill
Wednesday 3rd November 2021
(2 years, 6 months ago)
Lords ChamberRead Full debate Police, Crime, Sentencing and Courts Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 40-V(b) Amendments for Committee (supplementary to the Fifth Marshalled List) - (3 Nov 2021)
“Poaching of game
(1) The Game Laws (Amendment) Act 1960 is amended as follows.(2) In section 2(1), after “committing” insert “, has committed, or is about to commit”.(3) In section 4—(a) in subsection (1)—(i) after “section thirty” insert “or section thirty-two”, and (ii) at the end insert “or any animal, vehicle, or other article belonging to him, or in his possession or under his control at the relevant time.”;(b) in subsection (2), after “gun”, in both places it occurs, insert “, animal,”;(c) at the end insert—“(6) Where a person is convicted of an offence under the Night Poaching Act 1828 or the Game Act 1831, the court may order the offender to reimburse any expenses incurred by the police in connection with the keeping of any animal seized in connection with the offence.”(4) In section 4A(1), for “section thirty of the Game Act 1831 as one of five or more persons liable under that section” substitute “section 1 or 9 of the Night Poaching Act 1828, or section 30 or 32 of the Game Act 1831”.(5) After section 4A insert—“4B Disqualification Orders(1) Where a person is convicted of an offence under either the Night Poaching Act 1828 or the Game Act 1831, the court may, instead of or in addition to dealing with the person in any other way, make an order disqualifying the person from having custody of a dog for such period as the court thinks fit.(2) A person who is disqualified from having custody of a dog by virtue of an order made under subsection (1) may, at any time after the end of the period of one year beginning with the day on which the order was made, apply to the court that made it for a direction terminating the disqualification.(3) On an application under subsection (2) the court may—(a) having regard to the applicant’s character, conduct since the disqualification was imposed, and any other circumstances of the case, grant or refuse the application, and(b) order the applicant to pay all or any part of the costs of the application,and where an application in respect of an order is refused no further application in respect of that order may be made before the end of the period of one year beginning with the day on which the application was rejected.(4) Where a court decides not to make an order under subsection (1) in relation to an offender, it must—(a) give reasons for the decision in open court, and(b) if it is a magistrates’ court, cause the reasons to be entered in the register of proceedings.(5) Any person who has custody of a dog in contravention of an order under subsection (1), is guilty of an offence.(6) Disqualification from having custody of a dog under this section includes disqualifying a person—(a) from owning dogs;(b) from keeping dogs;(c) from participating in the keeping of dogs;(d) from being party to an arrangement under which they are entitled to control or influence the way in which dogs are kept;(e) from dealing in dogs;(f) from transporting dogs;(g) from arranging for the transport of dogs.””Member’s explanatory statement
This new Clause is intended to broaden the powers available to the police and the courts for dealing with illegal hare coursers. Measures include providing for forfeiture of animals on conviction and permitting the recovery of expenses incurred by the police in housing a seized animal.
The Lord Bishop of St Albans
My Lords, I declare my interest as president of the Rural Coalition. In moving Amendment 124, I will speak also to Amendment 128 in my name. These amendments seek to strengthen police powers to deal with illegal hare coursing and, more generally, the illegal poaching of game.
Amendment 124 would amend the Game Laws (Amendment) Act 1960 to broaden the police’s powers to remove or arrest an individual trespassing on land where there is clear intent to trespass in pursuit of game, as defined by Section 9 of the Night Poaching Act 1828 and Section 30 of the Game Act 1831. It would also allow the police to seize any vehicles or animals used for the killing or taking of game found in the possession of the trespasser, and would allow the court to order
“the offender to reimburse any expenses incurred by the police in connection with the keeping of any animal seized”.
Further, the amendment seeks to broaden the court’s ability to limit repeated violations by issuing disqualification orders for those individuals convicted under the Night Poaching Act or Game Act for having custody of a dog or dogs.
Amendment 128 would increase the maximum fines for those found trespassing in pursuit of game and remove the distinction between a person and a group of “five or more persons” when determining the severity of a given fine to allow for individual convictions.
The diocese that I serve, which covers Hertfordshire, Bedfordshire, Luton and bits of London, includes many rural areas, and I know from conversations with landowners and farmers just what a problem illegal hare coursing is. It is not just the damage to land and property that causes anxiety, it is the threats, verbal abuse, intimidation and violence. This includes metal bearings being fired into tractor cabs; attempts to bribe farmers to allow hare coursing on their land; ringing farmers’ doorbells in the evening when they know that the farmer is out and the wife and children are at home; and direct threats that state that they know where the farmer lives, should the farmer report a hare courser.
One person described coursing as equivalent to being under siege—constantly having to repair damage from break-ins, and being scared for their own safety and that of the farm equipment. It is an illegal and barbaric practice that runs amok across the private property of farmers and landowners and helps facilitate organised crime, through the enormous sums that change hands in high-stake illegal betting.
Before tabling this amendment, I contacted senior members of the Hertfordshire police for their views. One spoke of how this amendment would give them confidence that hare coursing was being taken seriously and that, that being so, one of the most effective preventive tools would be to take the means to commit the offences away from the offenders.
Given the high value of the dogs used by those involved in illegal hare coursing, these amendments seek to address a substantial weakness in the existing law by extending the seizure and forfeiture powers for all poaching offences to include vehicles and dogs. That, alongside court-imposed custody of dog disqualification orders, would create the strongest possible deterrent to illegal hare coursers. These changes would address the current challenge of limited police resources, including having to pay for kennelling costs without being able to reclaim those costs from the offenders.
The current legislative framework for prosecuting hare coursing is failing farmers and landowners and it needs reform urgently. The NFU’s rural crime survey found that 41% of farm businesses had experienced hare coursing in 2020, and that figure went up to 60% in Yorkshire and 67% in East Anglia. I understand that Defra is consulting on provisions that are very similar to the ones outlined in this amendment, and I am encouraged by the comments of the Minister in the other place to the effect that the Government are taking this issue seriously and are committed to introducing new laws to deal with it. However, I am concerned that in the interim farmers and landowners will continue to be harassed, bullied and threatened by illegal hare coursers—and may well be so for another year, or two years, or longer, unless the Government bring forward legislation quickly.
The legislative changes that I am proposing command the support of some of the UK’s largest rural organisations, including the National Farmers’ Union, the Countryside Alliance and the Country Land and Business Association.
Our police and courts need the backing of the law to properly deal with illegal hare coursing and I ask the Minister to provide the Government’s timetable for introducing new laws to better deal with it, unless they are prepared to accept these amendments.
I thank other noble Lords who have signed these amendments, in particular the noble Baroness, Lady McIntosh of Pickering, who, due to a clash, is in another debate. The noble Baroness asked me to read out a couple of comments that she was very keen to be made in this debate. “I am delighted,” she writes, “to add my name to this amendment and to lend it my strongest possible support. Tough action must be taken against the despicable crimes of hare coursing and lamping, the latter of which involves perpetrators from built-up areas such as Cleveland and West Yorkshire coming to rural areas, such as North Yorkshire, and leaving deer with such unspeakable injuries that the landowner is obliged to call a vet to put the animals out of their pain.”
“Rural crime,” the noble Baroness goes on, “must be taken more seriously and put on a par with all other crimes, in terms of not just reporting such offences but procuring and punishing the offenders.” She concludes by saying that “rural communities are being neglected, and that that cannot continue.” I am grateful for the support of the noble Baroness and other noble Lords. I beg to move.
Lord Carrington (CB)
My Lords, I declare my interests as farmer and landowner, as set out in the register, and as someone who has been directly and indirectly affected by hare coursing on more than one occasion.
I am pleased to add my name to Amendments 124 and 128 tabled by the right reverend Prelate the Bishop of St Albans. They concern the Game Laws (Amendment) Act 1960, the Night Poaching Act 1828, and the Game Act 1831, none of which are very recent, nor do they take account of developments, particularly in modern illegal hare coursing. Instead, these amendments take account of modern access to land in 4x4 vehicles, the high-value gambling with dogs and the easy facility of the organisation of these activities through social media. Sites such as dragondriving.co.uk, the Facebook group “Let the Jackers See the Hare with Coreys” and biglink are used to advertise meetings, suitable vehicles and such like.
The right reverend Prelate has given details of the NFU survey. I will not repeat those figures, but they are pretty concerning. Hare coursing has existed for many years, but more recently there has also been an increase in deer coursing, which has also been referred to. The main drivers of these activities have been the ready access to and retreat from land by 4x4 vehicles, the high stakes in illegal betting, and social media. The consequences have not been difficult to see. They include violence and intimidation to anyone who has tried to intervene, and severe damage to standing crops, hedges, gateways, and anything else that gets in the way of hare coursers. Existing laws and sentencing are dealt with by the amendments.
A Private Member’s Bill received wide support. and an amendment was tabled in the other place on this Bill. The response by the Minister was that Defra was aware and dealing with the issue. Nothing further has been heard yet. This lack of action is regrettable, and I very much hope that the Minister will now accept this amendment, or at least come up with his own proposals. Failure to move on this issue is likely to lead to people taking matters into their own hands, with all the dangerous consequences that this involves.
A farm manager local to me has experienced threats to his life by phone calls, slashed tyres, windows catapulted and a stone landing on his sofa where his wife was sitting, catapulted windscreens, intimidation on foot and by vehicle, the revving of engines, the shooting of a dog, and so on. Others, whether gamekeepers, wardens or just neighbours doing their duty, have had similar experiences. This must stop. The police do their best, but are often too late or constrained by the evidence.
At a case at Boston Magistrates’ Court in Lincolnshire in September, the farmer who brought in the police arrived at the court and was kept safely away from those charged with the offence of hunting a wild animal with dogs. The Crown Prosecution Service thanked him for his bravery and support in the case and commiserated on the damage to his crops and livelihood but explained that, due to an administrative problem regarding helicopter CCTV footage, they had to stop the charges faced by the defendants. Imagine the alarm and distress caused to, and still experienced by, the farmer, as he was directly confronted with the defendants as they left the court as free men.
A more successful ending to such an episode that did not involve the police and was told to me by the farmer concerned was when some Travellers, or tinkers, had stolen the farmer’s dog. Bravely, and with others, he entered the Travellers’ camp and removed a dog, which happened to be a greyhound. Stalemate ensued, until it became apparent that the greyhound was a champion and very highly valued. Negotiations took place between farmer and Traveller, resulting in a meeting in a layby where the dogs would be exchanged. At the layby, deadlock ensued while the order of release was agreed as to which dog would be released first. The farmer prevailed and his spaniel was duly released. The Traveller waited expectantly for the return of the greyhound, which duly happened, but instead of a fit champion, a very happy and overfed greyhound was released, to the laughs of the farmer and his friends.
Obviously, the forfeiture of an animal, as long as it is accompanied by the ability to recover expenses, particularly that of food, works well. I therefore urge the Minister to accept these amendments so that the countryside can be rid of this awful and damaging activity to communities, individuals, dogs and wildlife.
Baroness Jones of Moulsecoomb (GP)
My Lords, I am very happy and pleased to support these amendments, which would improve the powers for police and courts to tackle wildlife crime such as illegal hare coursing. Wildlife crime is by its nature difficult to police. When I was on the London Police Authority, I asked the Met police to start logging crimes committed on farms, which they did not do at the time. The problem is that the crimes are often committed far from police stations—especially so since the Conservative Government have closed quite a lot of those police stations. They are also seen as less of a priority than burglary and even traffic offences. There is some exciting new technology that the police can use to overcome these difficulties of geography and resources, but you need the right powers and the power of sentencing.
I have a friend who culls a deer herd for a local farmer. He was out, I think last week, and all of a sudden, two police cars turned up—this was in the middle of nowhere—with their blues and twos going. The police thought that he was a poacher. As he was standing there with a gun, a knife and a dead deer it was a quite difficult argument to make, but they did finally understand and managed to speak to the farmer. My friend takes responsibility for culling deer that have been harmed by poachers and then left to die in pain.
These amendments have practical solutions so that offenders can be perhaps deterred, but certainly punished and prevented from causing further suffering. They are amendments that the Government should accept in full.
The Earl of Caithness (Con)
My Lords, I support the amendment moved by the right reverend Prelate. It might surprise your Lordships to know some of the numbers. I am grateful to the Suffolk Constabulary for the figures of incidents of illegal hare coursing. These were the incidents reported—so not necessarily all the incidents—between 1 September 2019 and 31 March 2020. There were 139 incidents reported in 230 days. That means there was more than one incident a day for the police to deal with. The penalties for this illegal behaviour are not sufficient. That is why the right reverend Prelate’s amendments must be agreed.
I want to talk a little about hares, because they have been on the Biodiversity Action Plan list almost since its formation, in 1995. I am hugely grateful, as we all are, for the work done by the Game & Wildlife Conservation Trust, which has been monitoring hares for many years and scientifically working out what their best habitat is. The noble Lord, Lord Carrington, gave us a graphic description of the horrors that farmers have to face, but, if one looks at it from the hare’s point of view, they too would like these amendments.
If the farmer has too many hares on his property—particularly on the eastern side of the country, where the illegal poaching and coursing takes place, because that is where most of the hares are—the farmer will be tempted to reduce the number of hares to discourage poachers. If the laws are not strong enough and the police cannot keep the situation under control, the only sensible option for the farmer is to legally reduce the number of hares to such that it is not attractive for these people to come and drive over their land, smash their gates and cause intimidation. I am sure that, from the hare’s perspective—as I said, they are on the Biodiversity Action Plan, and numbers have been reducing since 2010—they would welcome the strengthening of the law.
I hope that my noble friend will not bat this away by saying that Defra is going to produce something. I think we are all a bit fed up of waiting for Defra to produce things—we need action now. By accepting these amendments, there is nothing here that will cut across what Defra might or might not produce in the fullness of time.
Baroness Bakewell of Hardington Mandeville (LD)
My Lords, I will speak in favour of Amendments 124 and 128 in the names of the right reverend Prelate the Bishop of St Albans, the noble Lord, Lord Carrington, and the noble Baronesses, Lady McIntosh of Pickering and Lady Jones of Moulsecoomb. I would have certainly added my name had there been room on the list.
The right reverend Prelate has laid out the case for these amendments extremely clearly. Hare coursing is, at present, illegal, but the penalties are not sufficient to deter the really determined criminal fraternity. Big money changes hands during this obnoxious practice, so it is necessary to increase the penalties to assist in preventing unnecessary cruelty to hares and to reimburse the police for the trouble involved in catching and prosecuting the perpetrators. The noble Lord, Lord Carrington, has spoken from personal experience of the effects of intimidation from those participating in hare coursing.
I fully support the measures in Amendment 124, in particular those listed under proposed new Section 4B(6), which gives the list of the disqualification orders, from owning a dog right down to arranging the transportation of dogs. It is entirely appropriate that those subject to disqualification orders should pay for the costs of keeping animals that have been seized and the cost of applying to have their disqualification lifted, whether it is successful or not.
Section 5 of the Hunting Act, which bans hare-coursing events, is rarely used, mainly because of the very tight definition of what constitutes an event. Now is the time to change the way hare coursing is prosecuted to ensure that successful prosecutions can take place. The seizure of both dogs and vehicles is important to ensure that criminals are not able to carry on regardless in another venue.
Hare coursing has devastating effects on farming families. It is classified as poaching, and these amendments apply to all forms of poaching in terms of seizure and confiscation.
The right reverend Prelate has already referred to the NFU’s rural crime survey and I will not repeat those figures. But nearly half of all farming businesses have been targeted by these organised criminal gangs. The right reverend Prelate also set out the threats that farmers have to suffer. It is time to put a stop to this practice and to the high-stakes gambling that profits from this cruel and abhorrent practice.
I welcome the reimbursement of kennelling costs to the police, who have the task of seizing the dogs involved. This is long overdue. As autumn is the current season for hare coursing, which takes no account of dependent, vulnerable young, now is the time for this change in the law to be implemented without delay.
Lord Curry of Kirkharle (CB)
My Lords, I refer to my interests on the register. Until recently, I was a farmer myself, and I have experienced, as the noble Lord, Lord Carrington, explained, the impact of illegal hare coursing—illegal activity—on my land.
I shall not go through the data and all the statistics, which have already been conveyed to the Committee by previous speakers, but I fully endorse the two amendments proposed by the right reverend Prelate the Bishop of St Albans and supported by other noble Lords.
The destruction, pain, distress and expense are difficult to quantify. As well as the experience outlined by other noble Lords, it has been my experience that fences have been broken down, livestock have escaped and crops have been trodden on, particularly in wet weather. These things cause enormous distress, and it is a considerable expense to clean up afterwards. Of course, farmers dare not take the law into their own hands, because the consequences of doing that are very apparent, and can be high-risk.
As has been said, all the key rural organisations very much endorse and support these amendments, and I hope that the Minister will accept them and see them as a really positive step forward. They would make the countryside a safer place, not just for people but for hares, deer and other animals.
Baroness Jones of Whitchurch (Lab)
My Lords, I am grateful to the right reverend Prelate the Bishop of St Albans for introducing this important debate. As we have heard in this debate, illegal hare coursing is becoming an increasing problem in rural areas, particularly in flatter, arable areas, where the land is open and easier to access.
I am also grateful to the noble Lord, Lord Carrington, who I thought very well illustrated that farmers increasingly feel isolated when having to deal with these problems. They feel that they are fighting this alone —and that point was equally well made by the noble Baroness, Lady Jones. It is true that, all too often, police forces—including rural police forces—have given priority to more traditional crimes, such as burglary, rather than recognising that these are serious crimes that need to be addressed.
Noble Lords have rightly highlighted the implications of hare coursing. Hare coursers and poachers regularly cause criminal damage to gates, hedgerows, fences and growing crops. This comes at a huge cost to farmers and landowners, wasting man hours as they are forced to look for and repair damage—and then they have to foot often very expensive bills for repairs to this damage and the need to increase security infrastructure, often involving installing CCTV cameras. This is extremely time-consuming, frustrating and upsetting for many farmers, whose land is the single most important asset of their business and their livelihoods.
As we have heard, it is not just about the damage that illegal coursers cause to land and property; verbal abuse, threats, intimidation and violence are all faced by landowners and tenants. The Crown Prosecution Service website admits that:
“Hare coursing can cause significant disturbance in the countryside and is a cause of serious concern to those who live in rural communities”.
There is a common fallacy that hare coursing is just a bit of poaching, but increasingly we know that it is closely connected to organised criminals and involves enormous sums of money changing hands, through high-stakes illegal betting. Coursing is often filmed from a vehicle and live-streamed across the internet. I remember talking to a rural police officer a couple of years ago who had been involved in some raids on hare coursing. He said that the minimum bet is £50 and people are betting in multiples of £50, so it is not just small sums of money changing hands here. There is obviously also the implication that there is money-laundering taking place. Those taking part in illegal hare coursing are often guilty of other crimes as well, such as road traffic offences, including the driving of unlicensed and uninsured vehicles, drug taking and the possession of firearms. Many of these criminals are also involved in major rural crime, such as theft to order and, on occasions, modern slavery.
The noble Earl, Lord Caithness, rightly pointed out that hares are a species we need to treasure because they are increasingly scarce, and coursing obviously impacts negatively on the brown hare population. The Country Land and Business Association estimates that tens of thousands of hares are slaughtered each year and, as the noble Baroness, Lady Bakewell, said, illegal hare coursing does not respect the breeding season, when vulnerable young are still dependent.
The key ingredient of poaching offences is trespass. The older game laws are still the preferred route for prosecuting illegal hare coursing, and legal guidance from the Crown Prosecution Service says that the more effective tools for prosecuting are either the Game Act 1831 or the Night Poaching Act 1828. Is it not about time that we had up-to-date, effective laws, where penalties will act as a proper deterrent? Although the powers of the police and courts have been strengthened by more recent legislation, particularly the Game Laws (Amendment) Act 1960, the older legislation needs to be strengthened in terms of seizure and forfeiture powers, specifically in relation to dogs and vehicles.
Police forces are working together to deal with hare-coursing offences. They have found that the dogs are the coursers’ key asset and that the ability to seize dogs is proving an important deterrent. Unfortunately, this means that police forces must fund kennelling costs and cannot reclaim the costs from offenders via the courts. Given the high value of the dogs to those involved in illegal coursing, this is a substantial weakness in the existing law. The police have asked for years to be given this power. Does the Minister agree that, for rural communities and farmers in particular, hare coursing is not simply a nuisance but a serious blight on the livelihoods and well-being of those affected? Does he agree that the current overall framework governing policing and sentencing does not act as a sufficient deterrent?
We support these amendments, which, together with a joined-up approach across the criminal justice system, can begin to address the devastating impact that illegal hare coursing has on farming communities, the wider rural community and wildlife across England. I therefore hope that Ministers will give these matters serious consideration and I look forward to the Minister’s response.
Lord Sharpe of Epsom (Con)
My Lords, I thank all noble Lords for their participation in this debate. I have considerable sympathy with the right reverend Prelate’s wish to see greater powers available to the police and the courts in dealing with hare coursing. I have to declare an interest here as I am a member of the BASC, which is a member of the hare coursing coalition.
This vile activity has no place in our countryside. It involves cruelty to the brown hare and, along with the noble Baroness, Lady Jones of Whitchurch, I thought that my noble friend Lord Caithness made very important points on biodiversity and populations. It causes real harm to rural communities, with all the associated menacing and criminal practices so eloquently described by the right reverend Prelate, the noble Lord, Lord Carrington, and others. As we have already made clear, including when this issue was debated in the Commons, this Government are determined to take action. Our action plan for animal welfare sets out our commitment to crack down on illegal hare coursing-related activity, providing law enforcement with more tools to address this issue effectively, including through legislation when parliamentary time allows.
Officials in both the Department for Environment, Food and Rural Affairs and the Home Office are working through the options in detail. My honourable friend the Parliamentary Under-Secretary of State at Defra, Rebecca Pow, is responsible for leading on this topic. She has begun detailed discussions of a range of possible measures, including in areas covered in these amendments. These were discussed at a round table she chaired in June. It is important to consider all the options carefully to ensure that the proposals that we bring forward will be effective in achieving the intended aims.
This work will, unfortunately and necessarily, take a little time, but we need to get it right, so I cannot offer the right reverend Prelate any encouragement that the Bill is the right one through which to take the matter forward. However, I assure him that the measures that he put forward in these amendments will be considered most carefully as we develop our proposals. This issue is being taken seriously: I reassure him on that point. Unfortunately, however, I cannot give him the timetable he has asked for. I nevertheless hope that he will feel able to withdraw his amendment.
The Earl of Caithness (Con)
My Lords, that was a hugely disappointing reply. What is the difficulty for Defra and the Home Office in accepting this amendment? It does not impinge on the slow, laborious work that they are doing. Quite rightly, they have to take that seriously but, if one does not seize this opportunity to legislate in one area of the bigger picture, then we are losing a huge opportunity. What is the difficulty in accepting this? If it is accepted and it works for perhaps two years, when the next piece of legislation comes forward, it could be amended. The Minister should think of the damage that could be done in that intervening time.
Lord Sharpe of Epsom (Con)
I am obviously sorry to have disappointed my noble friend Lord Caithness with that reply, but I can only repeat what I said earlier. I am afraid that these things take time, and the consultations are ongoing. We intend to do something about this problem.
The Lord Bishop of St Albans
My Lords, I share the disappointment of the noble Earl, Lord Caithness, because I am unclear exactly what the problem is; I have not heard anything substantive. I know that people working across rural areas in almost every sphere are absolutely passionate and are behind these amendments. There is a huge groundswell. I have been quite surprised, having tabled the amendments, at the appreciative comments from so many different groups. I totally accept that these amendments present only one solution, and I am aware of—and I welcome—the efforts of the honourable Member for North East Bedfordshire, who is an MP in my diocese and tabled the Private Member’s Bill in the other place. I will be meeting him before too long.
With the absence of any government proposals at this stage to deal with the matter, or to give any sort of assurances about timing, I am minded to bring these amendments back at Report. I would, however, be very happy to meet the Minister if that would help, to further discuss these proposals and see if we can find some way forward. With that in mind, I beg leave to withdraw the amendment.
Lord Falconer of Thoroton
“Offence of pet theft
(1) The Animal Welfare Act 2006 is amended as follows.(2) After section 2 (“protected animal”) insert—“2A Definition of pet A protected animal is a “pet” for the purposes of this Act if it provides companionship or assistance to any human being.”(3) After section 8 (fighting etc.) insert—“8A Pet theftA person commits an offence if they dishonestly appropriate a pet belonging to another person with the intention of permanently depriving that other person of it.”(4) In section 32 (imprisonment or fine) before subsection (1) insert—“(A1) A person guilty of an offence under section 8A (pet theft) (as inserted by section (Offence of pet theft) of the Police, Crime, Sentencing and Courts Act 2021) shall be liable—(a) on summary conviction to imprisonment for a term not exceeding 51 weeks, or a fine, or to both;(b) on conviction on indictment to imprisonment for a term not exceeding 4 years, or to a fine, or to both.(A2) When the court is considering for the purposes of sentencing the seriousness of an offence under section 8A it must consider the following as aggravating factors (that is to say, a factor that increases the seriousness of the offence)—(a) the theft caused fear, alarm or distress to the pet, the owner or the pet or another person associated with the pet;(b) the theft was for the purposes of commercial gain.”(5) In section 34(10) (disqualification) after “8,” insert “8A,”.”Member’s explanatory statement
Combined with two other proposed amendments after Clause 54, this new clause seeks to create a new offence of pet theft.
Lord Falconer of Thoroton (Lab)
My Lords, I approach our deliberations in this Committee with some degree of despondency today. We are addressing the rule of law in this; we are, in effect, saying that the law is not being sufficiently complied with in order to get better compliance with the law for our citizens. The key aspect of the rule of law is that it applies to everybody. Approximately 45 minutes ago, in the other place, as a result of a government-whipped vote, somebody who had been found guilty of a breach of the conduct obligations of the House of Commons was, in effect, let off. The Government used their majority to let him off. It is very difficult for the citizens of this country to take Parliament seriously as an enforcer of the rule of law if the position is that, when one of the Government’s own looks like they are in trouble, they use their majority to let them off. The whole point about a code of conduct enforced independently is that it applies to whatever political party you are in. I look at these deliberations in Parliament, therefore, with a degree of real, personal despair. It is about much more than simply the conduct of the Government: it is about how the public will view Parliament.
Baroness Bakewell of Hardington Mandeville (LD)
My Lords, I speak in favour of this small group of amendments in the name of the noble and learned Lord, Lord Falconer of Thoroton. He set out his case eloquently, and I fully support him on the move to introduce an offence of pet theft.
During lockdown, the family pet had an extremely important role in helping to keep the mental health of families in reasonable order. People were allowed to take exercise; if they had a dog, this meant slightly longer exercise. For those living alone, especially the elderly, there was a living creature to talk to—one that did not contradict or answer back. Children with small furry pets were able to spend more time with them and, hopefully, take more responsibility for their care, cleaning and feeding regimes.
Lockdown meant that there was an increase in demand for pets from all quarters. Some wanted cats and kittens; others wanted a dog. There was a boost in the need for puppies and the price rocketed. Sadly, the latter often resulted in the illegal importation of puppies who had been separated from their mothers too early. Like other Peers, I am sure, I had friends who were searching for a puppy. I stressed to them all that the puppy must be seen with its mother, not alone, and had to be more than 12 weeks old before it could be separated from its mother without harm.
Having acquired a puppy or kitten, or a full-grown cat or dog, it is devastating to have that beloved pet taken away by opportunistic criminals. There are examples of pet dogs being stolen to order. Some owners were afraid to take their pet out for a walk, in case it was stolen while they exercised it. This is not acceptable.
As has already been said, a pet is classified as the owner’s property, which it is—but this does not take account of the emotional distress caused. An elderly person will have lost their only constant companion. A child will have lost the friend they could play with and confide in when times were tough, especially when there were no school friends to talk to during lockdown.
As the noble Lord said, the Government set up a pet theft task force to tackle an increase in incidents during lockdown, with 2,000 dogs being reported as stolen last year. However, as a pet is currently seen only as property, with theft attracting a potential maximum sentence of seven years, this sentence is attached to the monetary value of the pet, which is treated as goods, not the emotional impact of the loss, so the maximum sentence is rarely reached.
Stealing a beloved family pet to bring monetary reward to the criminal should be treated with a more serious penalty which will both deter others and adequately punish the perpetrator. The task force has made recommendations, including introducing an offence of pet theft. Charities involved in animal welfare are keen to see sentences for this crime match those contained in the Animal Welfare (Sentencing) Act 2021. If the Minister is not minded to accept these three amendments, perhaps he could tell us when the Government plan to introduce the necessary legislation on pet abduction. An explicit commitment on a timescale would be very welcome in this debate, as thieves continue to steal pets while the current derisory sentences are in place.
Lord Craig of Radley (CB)
My Lords, I support this amendment. During lockdown, mobile pet grooming businesses sprang up, with vans appropriately fitted out to wash and dry dogs, cut their nails and do whatever was needed. Regrettably, some of these mobile vans have been used as a way to steal pets, whose owners might never see them again or might be asked for a ransom payment. My daughter and her cockapoo Eddie use a reputable mobile grooming facility, but the risk of a pet being stolen in this way, particularly prevalent during lockdown, will continue if the deterrent in this amendment and the others is not adopted.
Earl Attlee (Con)
My Lords, I rise briefly to support these amendments. The noble and learned Lord, Lord Falconer, told us roughly how many pets had been stolen. Can the Minister tell us how many prosecutions have taken place for theft of a dog?
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
My Lords, I rise to respond to an amendment about pet theft, but I will start by saying a few words about amendment theft. The noble and learned Lord, Lord Falconer, stole some of the Committee’s time to give us a lecture about the rule of law. I regard the rule of law as a matter of supreme importance, but let us remember what it is and is not.
First, it is not a law; it is a constitutional principle. Secondly, we can have a debate about the scope of the rule of law. The rule of law as adumbrated by Lord Bingham, for example, has a different scope from that set out by Lord Justice Laws in his book; there are different views as to the breadth of the rule of law. But everybody agrees that one has to abide by the law as set out by a court. There was no court in the circumstances set out by the noble and learned Lord. The only court involved is the court of Parliament and, with great respect, the other place was quite within its rights both legally and, I suggest, morally to set out its own procedures.
Lord Falconer of Thoroton (Lab)
Do I understand the Government’s position to be that there is no element of the rule of law engaged in complying with the court of Parliament, and in particular the requirements of Parliament?
Lord Wolfson of Tredegar (Con)
What happened today was Parliament complying with the rules of Parliament, because ultimately Parliament regulates itself. That is how it works. The phrase “rule of law” in the normal sense means a Government or an Executive abiding by the rule of a court. The only relevant court here is the court of Parliament.
However, I now turn to pet theft. I am sure we will come back to the rule of law, and perhaps the human rights issues, when we discuss the Judicial Review and Courts Bill. On pet theft, I thank the noble and learned Lord for tabling this amendment. As he set out, on this point there is actually very little between us. The topic of pet theft caused some consternation in the other place, and—again I agree with the noble and learned Lord on this—quite rightly so. Pets should not be seen as just property; that is at the heart of this issue. Pets are cherished members of the family, so it is right that we take time to consider, as the Government are doing, what measures we can and should take to tackle this abhorrent behaviour.
The Government’s Pet Theft Taskforce reported on its findings in September. It recommended a number of measures to address this crime, including a new offence of pet abduction. Your Lordships might ask why we should create such an offence when a simple pet theft offence might suffice. In that regard, I note that the noble and learned Lord’s amendment in large part mirrors the wording in the Theft Act 1968. However, I suggest to the Committee that we need to reconsider how pets are treated in law, because they are not just possessions or chattels. Therefore, I respectfully suggest that the wording of the Theft Act is inapt; it does not encompass the issue sufficiently. As the noble Baroness, Lady Bakewell of Hardington Mandeville, set out, that is particularly the case now we have seen so many cases of pet theft during the Covid period. We recognise that animals should therefore be treated as more than property. We are already bringing forward legislation to crack down on puppy smuggling and other cruel crimes, and I hear the points made by the noble and gallant Lord, Lord Craig of Radley, and my noble friend Lord Attlee.
In the new offence of pet abduction, we will seek to bring into focus not merely the taking of a piece of property or a chattel but the impact on the animal and its welfare when a stranger takes a pet away from its carer. This new offence, alongside the other recommendations from the task force, will make it harder for thieves to abduct and sell pets, make it easier for the police to catch them, and ensure that any welfare concerns can be appropriately reflected in the punishment given to offenders.
I will pick up two shorter and, I accept, more minor points which are relevant to this issue. First, the noble and learned Lord’s consequential amendment expands the scope of Section 17 powers under PACE. That section allows a constable to enter and search premises for the purpose of arresting a person for specified offences, and the amendment would include the new pet theft offence in that. We suggest that this is unnecessary. Because the amendment proposes to make the offence triable either way, the Section 17 powers would already be available.
Secondly, the noble and learned Lord has tabled an amendment in respect of Scotland. The Committee will be aware that crime and justice are devolved. Therefore, it would be for the Scottish Government and Scottish Parliament to consider whether they wanted a specific offence under the distinct operation of Scots law.
Coming back to the main issue, the Government have announced that they will take appropriate action. I am afraid I cannot put a date on that today, but I hear the strength of feeling on this issue. The Government have made their intentions clear, and I hope that, whatever future debates we may have on the rule of law, the noble and learned Lord will withdraw his amendment.
Lord Falconer of Thoroton (Lab)
Are the Government intending to table an amendment to this Bill to deal with pet theft?
Lord Wolfson of Tredegar (Con)
I cannot commit to that, but, as I say, I have heard the strength of feeling and what the noble and learned Lord has said on this topic. I am sure we can have future discussions on this point.
Earl Attlee (Con)
My Lords, will my noble friend take the precaution of instructing parliamentary counsel to draft suitable legislation just in case?
Lord Wolfson of Tredegar (Con)
My Lords, I shall put it this way: I am well aware that if we wanted to table the amendment to this Bill, we would need a properly drafted clause, and we know how to go about that.
Lord Falconer of Thoroton (Lab)
My Lords, I am very grateful to everybody who has spoken in the debate, with considerable force. There was a universal view around the Committee. I am disappointed to hear that there appears to be a retreat from what was promised in the Commons. I am grateful to the Minister for the points he made on my amendments, which we will take into account when we bring them back on Report. I anticipate that if he does not, we will, and will almost certainly seek the opinion of the House in relation to it.
On the broader point, I am absolutely amazed that the Minister thought that killing off the tribunal when one your friends had been found guilty by it was not a breach of the rule of law. I beg leave to withdraw the amendment.
Lord Paddick
“Misuse of Drugs Act 1971: power to search for possession of drugs for personal use
(1) The Misuse of Drugs Act 1971 is amended as follows.(2) In section 23 (powers to search and obtain evidence), after subsection (2) insert—“(2A) The constable conducting a search under subsection (2) must explain to the suspected person the grounds for suspicion and must record the explanation.(2B) Subsection (2) does not apply if the constable also has reasonable grounds to suspect that the drug is—(a) in the possession of the person for that person’s personal use only, or(b) in the vehicle or vessel for a person’s personal use only.””Member’s explanatory statement
This amendment would remove the power of the police to search a person or vehicle for possession of controlled drugs for personal use only.
Lord Paddick (LD)
My Lords, in moving Amendment 129, I will speak also to Amendment 276 in my name. It is unfortunate that these amendments were not grouped with amendments concerning the new violent crime prevention orders, as these, too, relate to police stop and search.
As well as being a police officer rising to the most senior levels in the Metropolitan Police over the course of more than 30 years, I worked in Brixton in south London between 1980 and 1982, in the 1990s, and again in the early 2000s. I was a police sergeant during the Brixton riots, a chief inspector and acting superintendent in the 1990s in Brixton, and I was the police commander in Lambeth, unusually in the rank of commander—the equivalent of assistant chief constable—in the early 2000s. In so saying, I am an expert on police stop and search. I realise that an expert is somebody who knows a little bit more about a subject than other people do, but I think I fall into that category, particularly in areas with high levels of visible minority communities and a poor track record of police community relations.
In 2001, Lambeth, with Brixton at its heart, had the highest street robbery rate in western Europe and high levels of burglary, and criminals were openly dealing crack cocaine and heroin on the streets. We were 100 police officers short of the 1,000 officers we were supposed to have in Lambeth. I recall an incident when I was a sergeant in 1982, the year after the Brixton riots, that clearly demonstrated that the community was concerned about street robbery, and not about possession of small amounts of cannabis for personal use. When we chased a handbag thief into an illegal gambling den, the youth was ejected from the premises into our waiting arms; when we chased someone who we thought had cannabis, the door was slammed in our faces.
In 2001, it was more than just community priorities, and that involved the arrest of one of my officers for allegedly taking cannabis from suspects on the street and keeping it himself. But one of the prime motivations for suggesting on the front page of London Evening Standard that the police should not arrest people for small amounts of cannabis for personal use was that there were far more important things for the police to spend their time on—both far more serious crimes that were at endemic levels and crimes that were a priority for the community. Clearly, possession of small amounts of cannabis was not one of them. When the “no arrest” policy was introduced, a public opinion survey found that well over 80% of people in Lambeth were in favour of the approach—slightly lower among the black community but still over 80%.
Following intense media debate and the submission of detailed data about how long it took officers to process someone arrested for cannabis—two officers over four hours each—plus the administrative work by police support staff and the CPS to prepare the case for court, the court time involved and the usual conditional discharge or small fine on conviction, this all persuaded the then commissioner to agree to a six-month pilot in Lambeth, where no adult was arrested for possession of small amounts of cannabis. These are the sorts of penalties courts are imposing today for possession of small amounts of class A drugs for personal use, if the case gets to court at all—many cases are dealt with by means of a police caution.
Despite false stories in newspapers, an independent assessment by the Metropolitan Police Authority of the pilot, which was extended to 12 months, showed reductions in all forms of serious crime, an increase in the amount of cannabis seized—as officers were able to quickly and easily deal with any that they found by seizing it and warning the person on the street—and an increase in the number of class A drug dealers arrested. Fears of an influx into the borough of those seeking cannabis proved to be the reverse of what actually happened.
Police and community priorities change. Now, in many areas of the country, knife crime is the priority, rather than street robbery. Noble Lords will quite rightly think that properly targeted stop and search is a powerful weapon in taking knives off the street, particularly if third-party information—community intelligence—points to those who are the knife carriers.
Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services has done some number-crunching on stop and search, and I am very grateful to Matt Parr —he might not be thanking me in a moment—who briefed Peers on the issue last week. Some 63% of police stop and search is for drugs; over 80% of those stop and searches are on suspicion of possession of small amounts of drugs for personal use. On average, only 9% of police stop and searches—less than one in 10—are intelligence-led; the proportion varies by police force between 23% in the best performing and 1% in the worst. These are HMICFRS figures. The top five police forces in the UK account for 90% of all stop and search carried out. Policy Exchange, a centre-right think tank, published a report a few weeks ago that found the Metropolitan Police had the highest rate of stop and search of any police force and the lowest rate for apprehending drug dealers.
Tackling knife crime is the Government’s priority, it is our priority, and it is the priority of many communities, but, looking at the facts as presented by HMICFRS, it is not police officers’ priority when it comes to stop and search. My Amendment 129 would not allow the police to stop and search someone on suspicion of personal possession of a small amount of a controlled drug for personal use. The police already cannot search for possession of illegal psychoactive substances that are not covered by the Misuse of Drugs Act; in fact, possession of small amounts of illegal psychoactive substances for personal use is not even an offence.
We are not talking about not tackling drug dealing—that is not covered by this amendment; indeed, there will be more police resources available to tackle drug dealing. We are not even talking about an untried and untested leap of faith. When we did not arrest people for simple possession of cannabis over a 12-month period in Lambeth, the police ended up concentrating on more important offences instead, more serious crimes and crimes that were a priority for the community.
We have too few police officers at this time, as I had in Lambeth when I was the police commander. We have too much serious crime, as I did when I was the police commander in Lambeth. We need to focus scarce police resources on what really matters; whatever that priority is, it is not possession of small amounts of drugs for personal use.
The key to effectively reducing serious violence is the police and communities working together, with communities providing information to the police about who is involved in serious violence, so that the police can concentrate their efforts, particularly stop and search, on those carrying and using knives. Policy Exchange believes that community policing is key. Other metropolitan forces, such as Merseyside, the West Midlands and West Yorkshire, do less stop and search and more community policing than London’s Metropolitan Police, and they are far more effective at arresting those involved in drug dealing.
Nothing is more damaging to police-community relations, trust and confidence in the police than poorly targeted stop and search. From standing in the middle of Brixton, being bombarded with bricks, paving slabs and petrol bombs, as I was in 1981, following a massive poorly targeted stop and search operation, I can tell noble Lords that that is the sort of damage it does. Visible minorities are four times more likely and black people nine times more likely to be stopped and searched by the police than white people, but they are no more likely to have something illegal in their possession than white people. That is when the police have to have reasonable grounds to stop and search people. Amendment 129 would not allow the police to stop and search for small amounts of controlled drugs for personal use, removing the cause of so much hostility between the police and communities, whose support and co-operation are vital in reducing serious violence.
That is not the only disproportionate form of stop and search. In 2010, the then Home Secretary, Theresa May, responding to a European Court of Human Rights judgment that suspicionless stop and search under Section 44 of the Terrorism Act was illegal, said:
“The first duty of Government is to protect the public. But that duty must never be used as a reason to ride roughshod over our civil liberties”,
adding that the then Government would not have appealed the judgment, even if they could. She said that the court found that the powers were
“drawn too broadly—at the time of their initial authorisation and when they are used”
and
“contain insufficient safeguards to protect civil liberties.”—[Official Report, Commons, 8/7/10; col. 540.]
That is very similar to the position we are in today with Section 60 of the Criminal Justice and Public Order Act, which still allows indiscriminate stop and search.
The purpose for which the police are using Section 60 goes far beyond what Parliament intended it to be used for. When this power was given to the police there was a recurring problem with rival gangs of football supporters arranging to meet at a specific time and place, arming themselves with weapons. Noble Lords will immediately see the point of a Section 60 power to search everyone in the area at the time rival gangs planned to meet, without the need for reasonable suspicion in these particular circumstances. This rarely, if ever, happens today.
Instead, if there has been a stabbing, the police will routinely impose a Section 60 order in the area surrounding the incident. That is not what it was intended for and of limited use in such circumstances. The first thing a knifeman will do after stabbing someone is dispose of the weapon and go to ground. Even if he is in the area, there is usually a description, from witnesses or CCTV, and other powers of stop and search based on reasonable suspicion can be used. I maintain that the Section 60 power is being misused and is ineffective.
The second problem with Section 60 is that indiscriminate stop and search causes untold damage to police-community relations. As I have said, people from minority-ethnic communities are four times more likely to be stopped and searched by the police and black people are nine times more likely. But when it comes to Section 60, where no reasonable suspicion is required, that figure rises to you being 18 times more likely to be stopped and searched by the police if you are black than if you are white. The overwhelming majority of these people have nothing on them to justify such a stop and search. Community intelligence is vital to make stop and search effective in tackling knife crime, but communities are losing trust and confidence in the police because too many innocent members of their communities are being stopped and searched using Section 60.
Baroness Jones of Moulsecoomb (GP)
My Lords, it is a pleasure to support the noble Lord, Lord Paddick, in tabling this amendment, and it is the reason that we first met. When I heard about this commander down in Brixton who had an innovative way of dealing with cannabis possession, I went down there very quickly to meet him and find out exactly what he was doing, and I was very impressed.
He has laid out the rationale behind the amendment extremely thoroughly and with great insider knowledge, but I will throw in what the Green Party has been saying for the past 50 years. Our drugs policy is to create a regulated drug and alcohol market that is focused on safety and harm reduction, which our current policy is clearly not. In the interim, decriminalisation is important, but it will never be as effective at reducing crime and improving health outcomes as a fully regulated system.
Many police forces have de facto decriminalised cannabis. They have seen that it just does not work to keep on with this targeted racist behaviour. The amendment would be a very welcome step. At the moment, it is a gateway power which allows the state to interfere with people and search them for something that should not even be illegal. As the noble Lord, Lord Paddick, said very clearly, it alienates communities at the very point at which you need those communities to help the police with intelligence. I have been out with quite a few stop and search teams. I have seen it done well, but that was the exception. I have seen it done okay and done extremely badly. It is an issue of training as well as for the law itself, and it is used in discriminatory ways. This is a brilliant amendment. Well done to the noble Lord, Lord Paddick, for tabling it.
Baroness Chakrabarti (Lab)
My Lords, I speak to Amendment 276, to which I have added my name. Suspicionless stop and search is a significant problem for community relations in this country. It is a significant problem for trust in the police. In recent days, we have rightly given a great deal of time and attention on all sides of your Lordships’ House, including in this Committee, to trust and confidence on the part of women, and young women in particular, but we must not forget other aspects of broader trust and confidence, including the issue of young black men and policing.
Decades after the Lawrence inquiry, we still need to keep returning to this issue. No power or set of powers has probably done more to weigh against the strides made by the late Sir William Macpherson and by everyone across politics, including former Prime Minister, Theresa May, to try to address problems with stop and search. No power has been more problematic than that of suspicionless stop and search in general and Section 60 in particular.
This is really not a partisan issue. Your Lordships know that, long before I came to this House, I was a civil liberties campaigner and not popular with Governments of either stripe in relation to powers such as these. In my view, there has been an authoritarian arms race about law and order in this country for too long. No Government are perfect. No Opposition are perfect. This is a good moment to look at stop and search. There is no better parliamentarian to be leading us in this conversation than the noble Lord, Lord Paddick.
The problem with suspicionless stop and search is this. No human is perfect; therefore, no police officer is perfect. Stop and search, conducted by humans of other humans, even with reasonable suspicion, is problematic, but there is no choice if we want to combat crime and investigate offences that have happened or that might yet take place. We have to have powers to stop and search. They are problematic, even when based on reasonable suspicion because what is reasonable suspicion? Who do we think is going equipped? Who do we think meets the profile of somebody who committed an offence a few hours ago? Of course, it is hard for any citizen, including constables, to rid themselves of all the baggage that comes with being in this—or any—society. Those problems are so compounded when reasonable suspicion is taken out of the equation.
Section 60 of the Criminal Justice and Public Order Act gives the power—which is triggered by a senior police officer, but a police officer none the less—effectively to change the criminal law in an area for the period in which that power is triggered. In that particular part of town, there is effectively a suspicionless stop and search zone. We are often talking about urban areas, and areas with a very high density of people from certain communities. The noble Lord, Lord Paddick, can correct me if I am wrong. Within that area, young black men in particular know that that is a stop and search zone. Their first encounters with the police service are often very negative.
Because of the rise of the internet, mobile phone use and videos of incidents, this material is now there to be viewed. I have seen some very disturbing scenes of quite young boys being stopped and searched, without suspicion, on streets not many miles from here. These young boys and men do not have the protections that they have post-arrest in the police station. Arrest is based on reasonable suspicion. Officers usually stop a young man. The noble Lord, Lord Paddick, gave the statistics. If you are a young black man you are many more times likely to be stopped and searched than if you are a young white woman, let alone a middle-aged woman like me.
Sometimes officers will be situated in a particular place. I understand their reasons. They are worried about knife use, for example. Some young men are being stopped on a routine basis. Sometimes big, burly officers make a human wall around a boy of perhaps 13 or 14 years-old. I have seen the pictures. People in that community—bystanders, if it happens in the daytime—will be trying to remonstrate with the officers. They will be held back. This young man—13, 14 or 15 years-old —is having his first encounter with the authorities. He is frightened. He is behind this human wall of big, burly officers. There is not even reasonable suspicion that he has done something wrong.
It seems to me that this is very dangerous—and it is not an occasion where I can even blame the police. It is an occasion when I have to look to the statute book itself, because this is about legislators, not police officers. I have been critical in other debates, and I am afraid that I will have to be critical about some decisions that the police have made. But this is a legislative problem, because legislators from both major parties have allowed this regime to be triggered for suspicionless stop and search, and it has created problems over many years. It really is time to address this.
This seems like a radical probing amendment from the noble Lord, Lord Paddick, but if Section 60 were removed from the statute book, what would be the consequence? There would still be ordinary, democratic, rule of law-based powers to stop and search with reasonable suspicion. That is a fairly low threshold in any event, I would argue, but this ability and power to designate particular areas—everybody knows where those areas are and who is affected in them—would go. I cannot think of a more positive signal and progressive step for any Government, any party and any legislator who cares about race relations in this country, and cares about rebuilding trust in policing and the rule of law.
So once more I find myself thanking the noble Lord, Lord Paddick, and I feel that I will do so again a few more times in this Committee.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I have some questions for the Government on Amendment 129, in the names of the noble Lord, Lord Paddick, and the noble Baroness, Lady Jones of Moulsecoomb.
Drugs policy and the drugs trade have come up in our debates on this Bill as part of the debate on the serious violence reduction duty, particularly regarding child exploitation and county lines. It will come up again shortly when we look at the groups of amendments on road safety and dangerous driving under the influence of drugs and alcohol. There is a complexity of links in multiple areas of policy, be they poverty, health or criminal justice. On the serious violence reduction duty, the Government’s stated aim is to reduce serious violence through a public health approach. So my question to the Minister is: what work is being done alongside those plans to look at a coherent public health approach to drugs policy? As with serious violence, there needs to be a focus on what reduces harm, not just what deals with the symptoms.
Amendment 129 is specifically about removing the power of the police to search people for drugs for personal use only. The noble Lord, Lord Paddick, gave a very informative history lesson, if you like, on his part in the “no arrest” policy in Brixton. I thought I might update what he was saying with my perception as a magistrate who sits in criminal and youth courts in London. I can say with reasonable confidence that I very rarely see in front of me, for the possession of class B drugs alone, either a youth or an adult who is of good character. I really cannot remember the last time I saw that in a court in which I was sitting. In my experience, when that is charged, other matters are charged as well, or the amount of drugs found on the person is at a much higher level but, nevertheless, the CPS chooses to charge that person only with possession rather than possession with intent to supply. Nevertheless, it is an interesting amendment, and the noble Lord raised a number of interesting points about the appropriateness of that power of the police under Amendment 129.
Baroness Chakrabarti (Lab)
Could I put an ethical and constitutional question to my noble friend, who is both an experienced parliamentarian and a magistrate? When I go to the airport, I understand that I shall be subject to some search, and I have no problem with that—first, because I understand that an airport is a very sensitive place and, secondly, because everybody will be subject to the same search as me. Therefore, I feel no disgruntlement. Equally, with ordinary stop and search powers, if I am stopped and searched on reasonable suspicion of a criminal offence, I may know that I am completely innocent but I shall understand that I have been stopped and searched on reasonable suspicion of a criminal offence.
What is the ethical and constitutional justification for stop and search without suspicion, when everybody is not stopped and searched, as at the airport? If not a suspect and if not everybody, who then? My fear is that, subject to the answer that my noble friend—and, I hope, in due course, the Minister—will give, the answer is that that in-between stop and search, a suspicion under Section 60-type stop and search, is almost inevitably an arbitrary and therefore potentially discriminatory stop and search.
Earl Attlee (Con)
The noble Lord, Lord Ponsonby, made a very interesting speech. For about the first 40 years of my life, I lived in north-west London and—on this discrimination point—I have never been stopped and searched by the police. I have had my vehicle stopped a few times, but I can perfectly well understand why the police did it. So it is quite an interesting point on discrimination.
Lord Ponsonby of Shulbrede (Lab)
My noble friend asked me a very interesting question, but I am not sure that I can answer it. I suppose that the short answer is that I am very conscious that this is a divisive issue and one that the police themselves have strong views on. They do not agree with each other—I have certainly heard a range of views within the police about its effectiveness or its blanket use being ineffective. I think that the answer is that the Government need to look at this issue very sensitively and be very aware of the distrust that it breeds within communities, particularly ethnic minority communities.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, I thank all noble Lords for their contributions and thank the noble Lord, Lord Paddick, for explaining the amendments, which relate to stop and search powers. We can always rely on him to share his experience on the ground. I also thank the noble Lord, Lord Ponsonby, for his very thoughtful contribution at the end.
Amendment 129 seems to be a step in the direction of decriminalising drug possession, but I do not think that the noble Lord has ever disguised his wish to see that happen—ditto, the noble Baroness, Lady Jones of Moulsecoomb. As the noble Lord will know, this Government have no intention of decriminalising drug possession. Our approach on drugs remains clear: we must prevent drug use in our communities, support people through treatment and recovery, and tackle the supply of illegal drugs.
The noble Lord gave the statistic from Matt Parr saying that 63% of searches were for drugs. He is absolutely right on that. We make no secret of our intention to disrupt drug markets, because that is often part of the police’s strategy for tackling serious violence, and possession searches may come in response from reports from CCTV or the public or from factors that officers more obviously encounter on patrol, such as drug transactions. The noble Lord, Lord Ponsonby, seemed to reflect that in talking about the types of issues that he sees in the magistrates’ courts.
There is a substantial body of scientific and medical evidence to show that controlled drugs are harmful and can damage people’s mental and physical health, and our wider communities. The decriminalisation of drugs in the UK would not eliminate the crime committed by the illicit trade, nor would it address the harms associated with drug dependence and the misery that this can cause to families and communities. I bet that everyone in your Lordships’ House can think of someone who has been affected. The police therefore have a wide range of powers at their disposal to deal with drug-related offences, including the powers to search and obtain evidence under the Misuse of Drugs Act 1971. How the police choose to pursue investigations is an operational decision for chief constables, but we are clear that we expect them to enforce the law.
I return to the question from the noble Lord, Lord Ponsonby, about what we are doing to assist young people away from drugs. He will know that we invested tens of millions of pounds in the National County Lines Coordination Centre; he will also know that we do not wish to criminalise young people—our prime aim is to move them away from a life of drugs and some of the criminal activity that can sit alongside it.
On Amendment 276, the police should have the powers they need to keep the public safe and combat serious violence while ensuring that these powers are used fairly and within the law. The Government fully support the police in the fair use of stop and search to crack down on violent crime and protect communities. It is only right that these powers are used to stand firm against criminals who break the law.
Every knife taken off our streets is a potential life saved. While I am grateful to the noble Lord, Lord Paddick, for his statistics, I will give some of my own. In 2019-20, stop and search removed over 11,000 weapons and firearms from our streets and resulted in over 74,000 arrests. Crime statistics have previously shown that increasing proactive policing such as stop and search is helping the police find more knives and arrest more criminals.
That said, the noble Lord is right to highlight the vital importance of ensuring that officers are using their powers based on intelligence and legitimacy, to ensure that the rights of the individual are upheld. Section 60 of the Criminal Justice and Public Order Act 1994 gives police the powers to stop and search individuals or vehicles, in anticipation of or after an incident of serious violence, to find offensive weapons or dangerous instruments. They do not need grounds to suspect that the person or vehicle is carrying these items.
Because of its suspicionless nature, the use of Section 60 must be limited in geographical scope and duration, and must be authorised by an officer of at least the rank of inspector. That is to ensure that these powers are used proportionately and only where necessary. PACE Code A sets out that use of Section 60 should be authorised only where there is a reasonable belief that serious violence may occur, and that this should be based on objective factors and led by intelligence. The authorising officer should communicate this intelligence to officers on the ground. When carrying out searches under a Section 60 authorisation, officers should search only individuals likely to be involved, having regard to the intelligence that led to the Section 60 being authorised.
Section 60 searches make up a tiny proportion of the stops and searches carried out by police officers: in the last year they were just 3% of all searches carried out. Despite its low level of use, the police tell us it is a vital tool to tackle serious violence. These powers can also act as a deterrent to prevent offenders carrying weapons, by increasing the perceived risk of detection.
That is why the Government announced, as part of the beating crime plan in July this year, the relaxation of the five voluntary restrictions on the use of Section 60. This follows a two-year pilot during which we gathered and analysed data from forces and community scrutiny leads on their perception of the changes, which told us that officers felt more confident using Section 60 during the pilot, and that the relaxations better reflected the operational reality of policing and the pressures and conditions officers face on the ground. It also showed that many forces had implemented their own best practices to reassure themselves internally that this power was being used legitimately and with accountability.
The noble Lord, Lord Ponsonby, pressed me on this and I will say that there are a number of legal safeguards, including statutory codes of practice and the use of body-worn video, to ensure that officers are accountable during a search, including any conducted under the powers in the Misuse of Drugs Act. We publish extensive data on these powers, which allow police and crime commissioners and others to hold forces to account. HMICFRS also inspects force level disparities and the use of stop and search as part of its regular inspection programme. I assure the Committee that no one should be subject to the use of stop and search powers based on their race or ethnicity, and that safeguards exist to prevent this.
Baroness Chakrabarti (Lab)
Before the Minister sits down, will she briefly address the question I put to my noble friend Lord Ponsonby, because I think it is crucial to what a legitimate use of Section 60 looks like. If I am a young man who feels I might be particularly affected by this, and after a crime there is an area that has been designated and cordoned off and everybody is being stopped and searched when they enter those two streets—like at the airport—I can understand that. Similarly, if I am stopped and searched under “reasonable suspicion” powers, I understand: I may be innocent, but there is a reasonable suspicion that I meet the profile of the suspect, or I have otherwise given rise to suspicion in my conduct. But how is Section 60 ever to be used in a way that is not arbitrary, and therefore most likely discriminatory? Why have I been targeted for a suspicionless search? How can I be legitimately targeted for a suspicionless search?
Baroness Williams of Trafford (Con)
Of course, Section 60 is based on local policing intelligence in specific local areas. The noble Baroness has already pointed that out. I have talked about the safeguards, including statutory codes of practice, the use of body-worn video and external scrutiny; I will also talk about the use of data. The Home Office collects more data on stop and search than ever before. The data is published online, allowing local scrutiny groups, PCCs and others to hold forces to account and we discuss it with the relative NPCC leads in forces to understand why disparities occur, if they occur. HMICFRS inspects forces’ stop and search data annually, and extensive data is also published to increase trust and transparency. So, there are a number of things on which we test ourselves and are scrutinised to ensure that stop and search is not being used in an illegal and discriminatory way.
Earl Attlee (Con)
My Lords, my noble friend the Minister did not disappoint me, because she mentioned the phrase “operational independence” for the police. Would she be entirely content if a local police commander decided that he or she was not going to have their officers do stop and search unless they thought it was absolutely essential?
Baroness Williams of Trafford
It is part of that operational independence of the police that they know what is best for their area; therefore, it might be relevant for police forces in a certain area not to have much occasion for the use of Section 60 stop and search.
Lord Paddick (LD)
My Lords, I am very grateful to the noble Baronesses, Lady Jones of Moulsecoomb and Lady Chakrabarti, for their support for these amendments. I agree with the noble Lord, Lord Ponsonby of Shulbrede, that the issue of drugs is very complex: it needs a complex approach and stop and search of this nature is not the way to go. When I suggested to the commissioner that we did not arrest people for cannabis in Lambeth, former MP Ann Widdecombe accused me of usurping the power of Parliament: she cannot accuse me of that now.
Turning to the response of the Minister, almost her whole argument around Amendment 129 was an argument against decriminalisation, yet this amendment does not call for the decriminalisation of personal possession of drugs. It is all about focusing the police on serious crime, rationing scarce police resources by focusing them on what is really important to communities and to the courts. We heard from the noble Lord, Lord Ponsonby, that he rarely saw anybody in front of him for possession, particularly of class B drugs, unless by chance—usually it is when the police find cannabis when they have arrested the person for something else. They are there for the substantive offence and they get charged for the cannabis as well, for example.
The noble Baroness talked about the harm caused by drugs. Why, then, are new psychoactive substances not controlled by the Misuse of Drugs Act not an offence? Why is personal possession of psychoactive substances not illegal under the Psychoactive Substances Act, if drugs cause so much harm? Why is alcohol not illegal when we look at the harm that alcohol causes? But we are not talking here about decriminalisation; we are talking about getting the police to focus on what is important. As far as Section 60 is concerned, I support stop and search. I have said how important stop and search—properly focused, acting on community intelligence and focusing on those who are suspected of carrying and using knives—is, and how important Section 60 is.
The Minister talked about the figures between 2019 and 2020 and the number of weapons that stop and search removed. This is not an argument about removing the power of the police to stop and search; it is about focusing intelligence-led stop and search on taking knives off the street to be even more effective. The figures that the noble Baroness gave about the number of weapons taken off the street, I assume, are not weapons found by using Section 60. If Section 60 searches were only 3% of all searches, and only 1%—one in a hundred—of Section 60 searches find a weapon, then the figures that the noble Baroness quoted cannot possibly be about Section 60. Why is she using figures about stop and search generally when the amendment she was addressing is about Section 60? It is a blunt instrument.
The noble Baroness is right; it has to be an inspector who authorises a Section 60. Until a couple of years ago, it was a superintendent who had to authorise a Section 60. That is why there has been a 2,800% increase in the number of times Section 60 orders are issued, and that is why Section 60 is so ineffective, with only one in 100 searches resulting in a weapon, and why it is so damaging to police-community relations, which are essential to tackling serious violence.
The noble Baroness said no one should be stopped and searched based on their race. You are 18 times more likely to be stopped and searched under Section 60 if you are black than if you are white. The two things do not add up. Of course nobody should be searched on the basis of their race, but the facts are that you are 18 times more likely to be stopped and searched if you are black than if you are white. That is why Section 60 is so damaging and so ineffective. That is why I brought this amendment but, in the meantime, I beg leave to withdraw Amendment 129.
Lord Paddick
“Duty of candour
(1) The Secretary of State must within 12 months after this Act comes into force—(a) consult such persons as they consider appropriate, and(b) lay before both Houses of Parliament a report regarding the matters in subsection (2).(2) Those matters are means of achieving a culture of transparency in police forces and prosecuting authorities in England and Wales including a statutory duty of candour in their dealings with the victims of crime and the relatives of victims of crime.(3) The proposed duty is subject to any exemption required in the interests of national security.”Member’s explanatory statement
This amendment is based on a recommendation from the Report of the Daniel Morgan Independent Panel, to create a statutory duty of candour to be owed by law enforcement agencies to victims and their families.
Lord Paddick (LD)
There is no rest for the wicked. I rise to move Amendment 130 in my name and support Amendment 132A in the name of the noble Lord, Lord Rosser, which seeks to achieve similar things.
I must first declare an interest. When I was a deputy assistant commissioner in the Metropolitan Police—the equivalent of a deputy chief constable—I told the truth about a misleading statement made to the News of the World by the then commissioner of the Metropolitan Police about the shooting dead of the innocent Brazilian, Jean Charles de Menezes, by the police in 2005. Another senior officer leaked to the BBC the content of the statement I had made to the Independent Police Complaints Commission, which was investigating a complaint by the family of the deceased that the police had misled the public. In response, the Metropolitan Police issued a press release saying it knew the officer who had given evidence to the IPCC and what he said—what I said—was not true.
The deputy commissioner at the time tried to bully me into issuing a press statement saying that I was mistaken. Instead, I instructed solicitors to threaten to sue the Metropolitan Police if it did not retract its press statement which effectively called me a liar; I was not the easiest senior officer to manage, as noble Lords can probably work out. The Metropolitan Police withdrew the press release and paid my legal fees. The IPCC subsequently confirmed what I had told it was true, but the die was cast; I was subsequently forced out of the police service for telling the truth. I think it is important for the Committee to know where I am coming from when I talk about this issue.
My amendment is based on the recommendation in the Report of the Daniel Morgan Independent Panel to create
“a statutory duty of candour to be owed by … law enforcement agencies”
to victims and their families. The Daniel Morgan Independent Panel was announced by the former Home Secretary Theresa May on 10 May 2013 to address questions arising from and relating to police involvement in the murder of Daniel Morgan; the role played by police corruption in preventing those responsible for the murder being brought to justice; the failure to confront that corruption; the incidence of connections between private investigators, police officers and journalists; and the alleged corruption involved in the links between them.
It is not possible or necessary to go into all the findings of the independent panel, but I want to give two examples. First, the Metropolitan Police admitted on more than one occasion that police corruption had impacted on bringing those responsible for Daniel Morgan’s murder to justice, but when asked by the independent panel what that corruption was, and what impact it had had, the Metropolitan Police refused to provide an answer. This is even though Tim Godwin, the then acting commissioner of the Metropolitan Police, had made a formal admission of corruption on behalf of the Metropolitan Police at a meeting of the Metropolitan Police Authority. The Metropolitan Police’s response to the panel was, “You’ll have to ask him what he meant.”
Secondly, at every stage following the initial investigation of the murder, the Metropolitan Police maintained that the initial murder investigation had been carried out in accordance with the standards of murder investigation at that time. It was only seven years after the independent panel was formed that the Metropolitan Police made the panel aware of the existence of the London Homicide Manual, which set out the standards expected of murder investigations at the time of Daniel Morgan’s murder. This document proved that the initial investigation was not, in fact, carried out in accordance with the standards expected at the time. Such a lack of frankness, candour and honesty is a disgrace that these amendments seek to address.
Lord Rosser (Lab)
My Lords, I thank the noble Lord, Lord Paddick, for introducing this group and referring to his personal experiences on the issue we are debating. The amendment in my name would likewise establish a statutory duty of candour on the police workforce and is similar in effect to that he moved. It would create a statutory duty on law enforcement to act at all times in the public interest and with transparency, candour and frankness, and to assist in court proceedings, official inquiries and investigations where its activities, including omissions, may be relevant. I will be brief because the Committee is already familiar with this issue and I do not intend to repeat everything that has just been said by the noble Lord.
In his 2017 report on the pain and suffering of the Hillsborough families, Bishop James Jones proposed a duty of candour to address
“the unacceptable behaviour of police officers—serving or retired—who fail to cooperate fully with investigations into alleged criminal offences or misconduct.”
As has already been said, in June this year, the Daniel Morgan Independent Panel recommended
“the creation of a statutory duty of candour to be owed by all law enforcement agencies to those whom they serve”.
The chair of the panel, the noble Baroness, Lady O’Loan, said in this House that
“the creation of the duty of candour in matters such as this is vital for the integrity and effectiveness of policing”.—[Official Report, 22/6/21; col. 134.]
The report of the independent panel was frankly withering on the events that had influenced its recommendation. My thoughts, and I am sure those of all in the House, are with the Morgan family and the Hillsborough families, who have shown such courage and been denied justice for some three decades.
When the Daniel Morgan Independent Panel report was published, the shadow Home Secretary called on the Government to publish a detailed timetable for when the report’s recommendations would be implemented, and called for urgent action on the long-overdue establishment of a duty of candour. In answer to questions in June from Members on all Benches of this House, the Minister responded that the Government were considering the duty of candour as part of their response to Bishop James Jones’s report and wanted to engage with the families before publishing a response. In the House of Commons, the Home Secretary said of the duty of candour that
“work is taking place across Government on how those wider issues will be addressed, but, at the same time, there is absolutely no justification for delay.”—[Official Report, Commons, 15/6/21; col. 130.]
We now have before us a flagship home affairs and justice Bill from this Government in which they have found space to prioritise offences against statues and being noisy while protesting. Where is the prioritisation of the reforms needed in light of these failures of justice? What engagement has occurred with the Hillsborough families and the family of Daniel Morgan since June? Can the Minister confirm tonight that the Government will accept the recommendation for the duty of candour? How developed are the Government’s plans to bring forward reform, and when can Parliament expect to see legislation?
It is for the Government to ensure and prove to both the families and the public that these appalling failures of justice can never happen again. Frankly, it is time for the Government to cease dithering; it is time for the Government to act.
Baroness Jones of Moulsecoomb (GP)
My Lords, I congratulate the Lib Dem and Labour Front Benches on tabling these amendments. I had to laugh when I saw them, because you sort of assume you can expect duty of candour; it really should not have to be emphasised in the way that it has been here.
I have had a number of clashes—perhaps I should say experiences—with the police not exercising candour in situations where they really ought to have done. Examples include freedom of information requests, subject action requests, legal proceedings, police complaints and the Independent Office for Police Conduct. The end result of all these processes, which others have gone through as well, has been a great deal of frustration and anger and very little progress. I trusted the police less; I am sure most people would find this to be their experience. Rather than feeling that wrongdoing had been put right and the truth exposed, I felt there were cover-ups.
Obviously, if we pass this amendment, we ought to expect candour in the other place as well, but I feel that would be a step too far. I am afraid that the Government are not very honest—in fact, they are duplicitous. The Minister—the noble Lord, Lord Wolfson—talked earlier about what they have done today as being morally right, but I think that is absolutely wrong. It is wrong of him even to say that; it was not morally right. Coming back to the amendment, I say that a duty of candour is something we ought to expect from our Government, but we absolutely cannot. Therefore I am not very optimistic about these amendments, but the Government really should put them in the Bill.
Baroness Chakrabarti (Lab)
My Lords, I am more optimistic about these amendments than the noble Baroness, Lady Jones of Moulsecoomb, and want to help her find some optimism. However, I first pay tribute to the noble Lord, Lord Paddick. I feel that his speech is historic and will be remembered in this country for a very long time. It must have been so hard to make; we all know that it is hard to speak out of turn in general, but it is particularly hard when you are speaking about your own profession, service, career and friends. I hope that Members across this Committee will share that tribute to him.
I hope the noble Lord will forgive me—he has trailed this already—that in terms of these amendments we have to prefer that tabled by my noble friend Lord Rosser. I congratulate my noble friend on not just his speech but this amendment, which was no doubt prepared with his colleagues and team. This is why I am optimistic. I do not believe that the Minister—the noble Baroness, Lady Williams—is unsympathetic on this issue. There is not really a problem with something like the amendment proposed by my noble friend, not least because he anticipates the potential challenges that might come the other way. For example, there is of course a need to protect privacy, data protection and national security. Any duty of candour would have to be subject to those things, but my noble friend has already done so much of the thinking. The Minister also has the considerable resources and expertise of government, the government legal service and parliamentary counsel at her disposal, but I remind her that the Daniel Morgan review was commissioned by a Conservative Home Secretary, who had been and gone as Prime Minister before the review was published, with its excoriating comments, some of which I repeated on Monday evening.
Lord Pannick (CB)
My Lords, I, too, support these amendments. The statutory duty of candour is vital not just to affect the culture of the police and enhance public confidence in policing but to give confidence to those police officers who face enormous internal pressures from their colleagues not to be candid. They need support; they need a statutory regime they can point to in order to justify to their colleagues what is required.
The noble Lord, Lord Rosser, quoted some of what the Home Secretary said in answering questions in the House of Commons on 15 June, and I will quote one other statement she made. She was specifically asked by Yvette Cooper about the duty of candour, and her response was that
“there is absolutely more to do here.”—[Official Report, Commons, 15/6/21; col. 132.]
I very much hope the Government will accept the amendment in the name of the noble Lord, Lord Rosser, but, if they do not, what more are they going to do in this area?
Lord Thomas of Cwmgiedd (CB)
I rise briefly to support both amendments. The amendment in the name of the noble Lord, Lord Paddick, looks at this from the position of the victim. It is, of course, right to acknowledge the huge progress that has been made over the last 20 or so years in improving the position of the victim—but we have not got to the end of the road. The important point of his amendment is that it gives further protection to the victim at two important stages: first, where things have gone wrong and there is an inquiry, and secondly and much more importantly, in the victim exercising the right of review where there has been a failure to prosecute. It seems to me, therefore, that the duty of candour is yet another step in putting the victim—as is so often said by politicians on both sides—at the heart of the criminal justice system.
The amendment in the name of the noble Lord, Lord Rosser, looks at this from a broader perspective, which encompasses the position of the defendant and the greater public interest. We should think of experiences over the years. One can go back, for example, to a problem that arose in Tiger Bay in Cardiff over 30 years ago, where the inquiry into the Lynette White murder investigation went on and on. One cannot help feeling that, if there had been a duty of candour, it would have brought that very damaging case to an end.
I say nothing about the undercover policing inquiry as it is still ongoing, but it seems that there is ample evidence that we need to enshrine this duty of candour to protect the position of the defendant and the wider public interest by making it absolutely clear that the police owe that duty—and they should be grateful to have that duty imposed on them, because we need to restore, above all, confidence in our constabularies.
Lord Hope of Craighead (CB)
My Lords, I support these amendments as well. I look at the situation from an unusual perspective and with the unusual experience of sitting as the senior judge in Scotland in a criminal appeal. It was a case of murder, and I was not able—because I was sitting in a court where all the evidence was already out—to develop what was at the back of my mind, which was that the police had identified the wrong individual, who was then accused and convicted. I will not go into the facts of the case for obvious reasons, but it struck me that the court at that late stage was powerless to deal with what I thought had not been a frank and fair police investigation. I make that point simply because stages are reached where the situation is beyond recall, but I was deeply disturbed by what had happened in that case and could not do anything about it. So I welcome the steps that are being taken to improve the standard of candour among the police at all stages in the investigation of crime and its aftermath.
Baroness Williams of Trafford (Con)
My Lords, I commend the noble Lord, Lord Paddick, for once again sharing his experiences with the Committee in moving his amendment and the noble Lord, Lord Rosser, for tabling his. The noble and learned Lord, Lord Thomas of Cwmgiedd, summed it up very well: we have not got to the end of the road. The noble Lord, Lord Pannick, also challenged me about what the Government are going to do. I hope I can explain to both noble Lords how we are going to get to the end of the road and what we are going to do.
Noble Lords have rightly highlighted the very important fact of transparency within police forces and prosecuting authorities when dealing with victims of crime and their families. I totally agree with noble Lords about the importance of placing this at the heart of engaging and supporting victims and their families and, as we have talked about so much over the last week or so, the importance of regaining trust in the system.
There are a number of areas where the Government have already made progress and where work is ongoing to improve integrity and transparency in policing. In relation to the amendment in the name of the noble Lord, Lord Rosser, it is worth highlighting the introduction of the College of Policing’s statutory code of ethics in 2014, which makes clear the requirement on all officers to act within their powers and with integrity.
In February last year, we amended the policing standards of professional behaviour to make it clear that failing to co-operate as witnesses in investigations and inquiries can be a disciplinary matter. This means that there is now a clear framework in place to hold officers to account where they fail to reach the high standards the public expect of them. Ultimately, a significant breach can mean that an officer is dismissed and placed on the barred list. The noble Lord, Lord Paddick, rightly asked me why no officer had been disciplined following the Daniel Morgan independent panel. The IOPC is still considering that, so we could still get a call-in referral. On the failure to co-operate, those regulations have been in force since February 2020, so anything before that would be difficult to enforce.
I turn to the concept of a duty of candour. Like the noble Lord, Lord Rosser, I pay tribute to the bereaved families and survivors of the Hillsborough disaster, who have campaigned for a statutory requirement for candour in public life. This idea, as noble Lords have said, was also endorsed by the Daniel Morgan Independent Panel as a means of ensuring that law enforcement agencies are fully transparent with the public.
It is absolutely right that the Government carefully consider the arguments made around the duty of candour. This is not the first discussion we have had about it in this Chamber. There is ongoing work across government, and we continue to work closely with our partners to carefully consider all the points of learning in Bishop James Jones’s report concerning the bereaved Hillsborough families’ experiences and from the Daniel Morgan Independent Panel report. Before we respond to Bishop James Jones’s report, we believe it is important that the families have an opportunity to share their views, as it is critical that the lessons that can be learned from their experiences are not lost. We hope to do that as soon as is practicable. The Home Secretary has committed to updating Parliament in due course on the Daniel Morgan Independent Panel report.
I fully understand and empathise with the interest in the introduction of the duty of candour. The Government have already made significant changes to ensure that officers can be disciplined if they mislead the public, and we are committed to properly consider and respond to the recommendations for a duty of candour, as highlighted in Bishop James Jones’s report.
I hope that, having had the opportunity to debate this and given the work that is ongoing, the noble Lord will be happy to withdraw his amendment.
Lord Paddick (LD)
My Lords, I am very grateful to the noble Lord, Lord Rosser, for reminding us of the resilience and suffering of the Hillsborough victims’ families and of the Morgan family, and to the noble Baronesses, Lady Jones of Moulsecoomb and Lady Chakrabarti. I too prefer the noble Lord’s amendment; we tabled ours first. We need to address this issue.
The Minister said that this is not the first time that we have had a discussion about the Daniel Morgan Independent Panel report and the duty of candour, but it is the first time that we have had an opportunity to do something about it. It is, as the noble Lord, Lord Rosser, said, very disappointing that the Government did not take the opportunity of this Bill, which is so obviously the vehicle that should be used to get a statutory duty of candour on to the statute book. I hope the noble Lord will bring back his amendment on Report, so that we can divide the House on this very important issue, because this needs to happen. Wherever you look, this is urgently needed, whether we talk about Hillsborough, Daniel Morgan or what is happening in the Metropolitan Police at the moment—even yesterday, officers were convicted of offences.
The noble Lord, Lord Pannick, raised the very important point about support for officers. I am still regarded as a traitor by some in the police service because I told the truth about what happened after the shooting of Jean Charles de Menezes. The noble and learned Lord, Lord Thomas of Cwmgiedd, spoke powerfully about the need to protect victims, and the noble and learned Lord, Lord Hope of Craighead, gave his own worrying example of the need for better, greater candour on the behalf of the police.
We will come back to this on Report but, in the meantime, I beg leave to withdraw Amendment 130.
Baroness Hayman
“Voyeurism: breastfeeding
(1) Section 67A of the Sexual Offences Act 2003 (voyeurism: additional offences) is amended in accordance with subsections (2) and (3).(2) After subsection (2), insert—“(2A) A person (A) commits an offence if—(a) A records an image of another person (B) while B is breastfeeding;(b) A does so with the intention that A or another person (C) will look at the image for a purpose mentioned in subsection (3), and(c) A does so—(i) without B’s consent, and(ii) without reasonably believing that B consents.”(3) In subsection (3), for “subsections (1) and (2)” substitute “subsections (1), (2) and (2A)”.”Member’s explanatory statement
This amendment would extend the definition of voyeurism in the Sexual Offences Act 2003 to make it an offence to take a photograph or video of a person breastfeeding without that person's consent.
Baroness Hayman (CB)
My Lords, this amendment is in my name and those of the noble Baronesses, Lady Cumberlege and Lady Brinton, and the noble Lord, Lord Pannick. I am grateful to all of them for their support.
This amendment seeks to provide protection for mothers from being photographed or videoed without their consent while breastfeeding their babies. I suspect that few Members of the House will have been aware that such unpleasant, intrusive and distressing behaviour takes place at all, and will be surprised that it is not actually an offence. I suspect that even fewer would seek to defend what the then Minister, Victoria Atkins, described in Committee in another place as
“this unacceptable, creepy and disgusting behaviour”.—[Official Report, Commons, Police, Crime, Sentencing and Courts Bill Committee, 24/6/21; col. 748.]
Ms Atkins paid tribute in that debate to the many women who have shared their experiences and distress, and their demands for a change in the law in recent months, as do I.
I particularly congratulate Julia Cooper, who began the campaign for a change in the law after her own experience, and initiated a petition that has now been signed by over 30,000 people and supported by organisations such as the National Childbirth Trust, La Leche League and Mumsnet. Her experience was this: during a visit to a park in Greater Manchester, she noticed a man first staring at her as she fed her baby and then attaching a long-range zoom lens to his camera and taking photographs. She confronted him and asked him to delete the photos. He refused, saying it was his right. She then approached a park warden. He also unsuccessfully asked the man to delete the photos and then said that there was nothing more he could do because the law offered no protection. The response of Greater Manchester Police was exactly the same: sympathetic but powerless. Other women have come forward with similar stories and described how deeply distressing and violating an experience it has been, and their shock at having no recourse when their privacy has been invaded in this way.
This amendment therefore seeks to provide protection and a remedy for individuals affected by this unpleasant behaviour, and to deter and, if necessary, punish those who perpetrate it. But the context is not simply a matter of protecting the individual. Successive Governments have supported and protected women who breastfeed their babies, and continue to promote this public good. The Department of Health encourages women who can and choose to do so to breastfeed their babies because it brings powerful public, as well as individual, health benefits. Only last week, the Chancellor allocated £50 million to support breastfeeding in his package of help for young babies and young families. The Equality Act protects breastfeeding mothers from discrimination in employment and the provision of services. So it is illegal for a cafe owner to refuse to serve a breastfeeding mother, but not for a man to hover over her with a camera, videoing her as she feeds her baby in a playground.
Far fewer babies are breastfed in this country compared with many others in Europe and beyond. It is very obvious from repeated surveys on the issue that embarrassment and the logistical difficulty of combining feeding a baby with “normal life” is one of the main deterrents that keeps breastfeeding rates in this country so low, with all the detrimental effects on individual and public health. Failing to sanction unwanted, intrusive photography can only add to women’s reluctance and their fears.
Noble Lords will recall that, in 2019, Parliament took action against another unpleasant, intrusive aggression against women, upskirting, by passing the voyeurism Act. But the provisions of that Act are very narrowly defined and do not protect women in the circumstances we are discussing today. This amendment mirrors the provisions of the 2019 Act by adding the photographing or videoing women breastfeeding without their consent to the list of prohibited acts under the Sexual Offences Act 2003, to which the provisions of the Voyeurism (Offences) Act then apply.
When this issue was discussed in Committee in another place, the Minister did not query the need for action, and obviously shared the disquiet among Members at the present situation. She suggested that the matter could be considered in the strategy on violence against women and girls, but that strategy has now been published without any reference to the issue. Her main argument, however, was that we should wait for the Law Commission, which is reviewing the law around the taking, making and sharing of internet images without consent. That is a very broad subject, and we know how slowly grind the wheels of such a report’s journey to legislation. Even when the Law Commission recommends action, there is no guarantee that it will be agreed. Fewer than 50% of Law Commission reviews commissioned in the past decade have, as yet, led to legislative change. Rather than waiting on a review that may or may not be accepted by the Government after more consultation, and then for a relevant legislative vehicle, we have the chance in this Bill to act on the specific, clearly defined issue and to protect mothers and babies now.
I am ashamed to say that it is nearly 50 years since I first entered Parliament. One thing that I have learned in that time is that legislative time can be as precious a commodity as financial resources. This Bill gives us the opportunity to protect women from the damage and distress that is currently occurring. I hope that the House and the Minister will agree that we should grasp that opportunity. I beg to move.
Baroness Brinton (LD) [V]
My Lords, I have added my name to this amendment. I start by thanking the campaigner, Julia Cooper, who the noble Baroness, Lady Hayman, quoted earlier, for her extraordinary diligence and campaign and her 30,000-signature petition to Parliament. I also thank the excellent Pregnant Then Screwed charity and Stella Creasy MP for their briefings.
The noble Baroness, Lady Hayman, has spoken eloquently on the need to add to the offence of voyeurism that of those breastfeeding. I echo her comments on the critical need to encourage mothers to breastfeed for as long as possible—hopefully for a minimum of six months. The truly long-term health benefits to babies are well evidenced, not least in the extra immune protection they are given, lasting for years. It is good that Clause 13(6) of the Equality Act 2010 currently protects breastfeeding women by saying that any business that displays less favourable treatment, or denies a woman access to goods or services, because she is breastfeeding can be in breach of the Act. This has been tested in the courts under the employment discrimination in McFarlane and another v easyJet Airline Company Limited, where the employer did not provide reasonable adjustments for new mothers who returned to work while still breastfeeding. However, there is no protection in itself of the act of breastfeeding, so it cannot be used to require the police or the courts to act to tackle the practice of taking photos or videos without consent.
I was pleased to be a member of the Liberal Democrat team supporting the Voyeurism (Offences) Act 2019, which created the criminal offence of up-skirting. Offenders now face up to two years in jail and being placed on the sex offenders register for taking a picture under a person’s clothing without them knowing, with the intention of viewing their genitals or buttocks. This law banned the degrading practice, with the intention of deterring perpetrators, better protecting victims and bringing more offenders to justice. As the law specifies the location in the body to which the Act applies as being below the waist, this legislation does not protect those who breastfeed from a similar intrusion. I remind your Lordships’ House that we did not need to wait for a Law Commission to decide whether that Act should go through.
Julia Cooper’s experience, outlined earlier by the noble Baroness, Lady Hayman, is chilling. The 30,000 people who have signed her petition, and the evidence taken from Pregnant Then Screwed, show that this is not an isolated incident. Polling by YouGov in May this year shows that 75% of the public think that breastfeeding voyeurism should be banned. One new mother told Pregnant Then Screwed: “Just a few weeks ago, in my first time out with my new-born, feeding on a park bench, a man walks past, gets a camera out and, pretending to take a photo of something behind as he walks by, the camera tilts down on me. He caught me off guard so I didn’t say at the time, but I am now far more conscious of who is looking and would call them out. But we shouldn’t have to think like this.”
Why should we not follow the recommendation of Victoria Atkins MP, the Government proposal that the ongoing Law Commission review on taking, making and sharing intimate images without consent is the correct vehicle for legislation? This review is currently expected to report in the spring of 2022 and might make recommendations to expand the list of protections under voyeurism legislation, but even this is not guaranteed.
This simple amendment echoes the up-skirting legislation by seeking to amend the Sexual Offences Act 2003. It also uses the language of the 2019 Act and would require consent to photograph or record breastfeeding without prosecution, ensuring that women breastfeeding are given the same protection. If passed as part of this Bill, it would quickly—in legislative terms—give protection to women who breastfeed, without compromising the Law Commission review, which would have time to consider this change, if necessary, in more depth.
It is important to say that the amendment has the support of the National Childbirth Trust, the La Leche League and the Breastfeeding Network. Those of us in favour of the amendment are pleased that the Government think that it is unacceptable for breastfeeding voyeurism to take place. I thank the Minister for that, but will he say why, if the Government support the principle of the amendment, it would be acceptable to delay its implementation for years, which would be the result of taking the Law Commission route? Why not use the route of the up-skirting legislation, which did not have to wait for the Law Commission? I hope that the Minister will be able to support the amendment.
Baroness Cumberlege (Con)
My Lords, with great alacrity, I support the amendment put forward so clearly by the noble Baroness, Lady Hayman. The noble Baroness, of course, has had a very distinguished career. We think of her as our first Lord Speaker in this House, but she also has a wide experience in health and other matters beyond. However, I just thought: “Breastfeeding? Why is she coming forward with an amendment on breastfeeding?” Then I understood that, when she was in the House of Commons, she was the first woman in Westminster to breastfeed. That must have taken a lot of courage and I congratulate her on that. Not only that, but, of course, as a Member of Parliament in the Commons, she also had the skills to manage the organisation of her constituency as well as a new baby. We know that new babies can be all-encompassing.
The noble Baroness, Lady Hayman, and I are fellow practitioners in breastfeeding. She has four sons and I have three sons. My aunt had six sons, and I thought that the writing was on the wall: three is plenty. I have to say that they have grown up and they are very nice young men. We, the practitioners of breastfeeding, know that breast is best. There is no argument about it: it is best for babies and best for mothers too. In fact, my husband said to me the other night: “It is best also for us, you know—the partners—because we don’t have to get up at two in the morning to feed the baby.” So he said there was a bonus there.
When I was a junior Minister in your Lordships’ House, I did my very best to promote designer food for babies. That is what we called it. We know that it improves the baby’s immune system, the respiratory system, the digestive system, the heart and circulation, the joints and muscles and much more. It is such an important start to life.
Lord Pannick (CB)
My Lords, despite being a lawyer, it is a great pleasure to follow three such excellent speeches. I have added my name to this amendment, in part to emphasise what is obvious—that this is a matter of concern not just to women who breastfeed but to men, particularly men who are fathers, husbands and fathers-in-law, all of whom are affected by this subject.
When the Minister replies, I think he will express two concerns about these amendments, unless he is prepared to accept them, which I hope he will. He might say there is a concern that Amendment 131 is too broadly drafted. I do not understand such concern, because the drafting is very simple. It ensures there is a criminal offence only where the woman concerned does not consent and—this is vital—the defendant photographs or videos the breastfeeding for the purpose of obtaining sexual gratification, or to cause humiliation, distress or alarm.
That is a very limited mischief. It is properly drafted, since it adopts in its definition the ingredients of the offence of upskirting, which is already on the statute book, so it is a confined mischief. There is no question of capturing someone who innocently takes a photograph, and, in the background, there happens to be a woman who is breastfeeding. However, as we are in Committee, if the Minister thinks that the drafting can be improved, I, and the other signatories to this amendment, I am sure, would be very happy to see an improved version.
The other concern, which I know that the Minister will express, and which has already been addressed, is that the Law Commission is due to report on the law relating to intimate image abuse. It had a consultation which closed in May. The report is awaited. We certainly will not see it this year. The Committee may be interested to know that it is a consultation paper that covers 423 pages of material, a wide range of subject matter and complex issues. After the commission reports, sometime next year, there is no possibility of any legislation being brought forward for months, and that is optimistic. Who knows when the Government may reach a conclusion on any of these topics, particularly the specific narrow topic that we are discussing today? Who knows—the Minister does not—when there will next be a legislative opportunity to bring forward proposals such as those promoted by the noble Baroness, Lady Hayman?
It is time to address this because the case for a change in the law on this specific subject is simply overwhelming for all the reasons that the Committee has heard. There is no question of delay here because the conduct is every day causing great distress to the victims. We already have the model legislation in the upskirting provisions that Parliament has approved, which have been enacted and which are working very well.
In July, this Government announced their intention to take steps to protect women from violence and harassment. The amendments tabled by the noble Baroness, Lady Hayman, provide an opportunity for the Government, at no financial cost, to take a small but important practical step.
Earl Attlee (Con)
My Lords, I support this Amendment and agree with every word that noble Lords have said. My strong advice to my noble friend the Minister, bearing in mind that this is a policing Bill, is to come quietly. The alternative is to have another 45 minutes on Report, lose a Division and get into ping-pong. It is much easier to agree in due course.
Baroness Jolly (LD)
My Lords, I feel quite inadequate. I only have two sons, not six, and two were a handful. Clearly, I am a huge supporter of this amendment, and was completely unaware of somebody wanting to watch someone breastfeed. I am pleased that we are today trying to stop this or at least make it clear that this is beyond the pale.
Lord Falconer of Thoroton (Lab)
My Lords, we have witnessed a rather remarkable half an hour in the House where an overwhelming case was made. I pay a special tribute to the noble Baroness, Lady Hayman. I thought her case was overwhelming until I heard the noble Baronesses, Lady Brinton and Lady Cumberlege. I then thought, “Goodness me, there are more reasons than those which the noble Baroness, Lady Hayman, has given.” My mind then moved to the possibility of legal difficulties and whoosh, the noble Lord, Lord Pannick, came in and dealt with them all.
What is the reason for not doing this? The noble Lord, Lord Pannick, gave two possible reasons. He dealt with what might be the arguments in relation to the breadth of the amendment, and I completely agree, but if the Government have some good reasons for why this amendment should be changed, I am sure that the House will deal with them. The other reason given was the Law Commission. As the person responsible for the Law Commission over a long period of time, over 50% of its reports never see the light of day. It takes a long time to get there.
I ask myself another question. Can you imagine any provision or suggestion that the Law Commission would make which would cut across this amendment? I cannot. I would expect the noble Lord—sadly not the noble and learned Lord—the Minister, to give reasons why this will not happen, because like the noble Baroness, Lady Cumberlege, I was encouraged by the extract that she read of what sounded to be an incredibly understanding speech by Victoria Atkins in the other place, which was then dashed. The Law Commission is manifestly not a legitimate excuse. It should be treated with utter contempt if it is advanced as a reason. From the point of view of the Government, the work has been done by the campaigners, Stella Creasy and the crack squad of amenders that we have just heard from, so it costs the Government nothing to put it into the Bill. There will be some additional costs to the criminal justice system, and the police will deal with a number of cases, though I suspect not many, so there is not much public expenditure. The question for the Minister is: why not?
Lord Wolfson of Tredegar (Con)
My Lords, my noble friend Lord Attlee indicated that I should come along quietly. I am not going to do that; however, I hope that I will come along realistically and clearly in setting out the Government’s position. There is no dispute in this Committee that the behaviour we are talking about is absolutely abominable and indefensible. I therefore appreciate why a proposed new clause on this distressing subject of breastfeeding voyeurism has been tabled for debate. I start by expressing my unequivocal support for the mothers who have experienced this sort of appalling behaviour.
As the noble and learned Lord, Lord Falconer, said, we have heard a number of really outstanding speeches, some of which were very personal in terms of people’s history and families. I respectfully endorse the point made by the noble Baronesses, Lady Hayman and Lady Brinton, that this is not just a matter of protecting privacy or preventing distress; it is also important because we want to promote the very real benefits of breastfeeding. I take all the points made in that regard on board; I also take on board the point made by the noble Baroness, Lady Jolly, on the bonding time—the quiet time, if I can put it that way—that breastfeeding provides. On whether breastfeeding also benefits fathers because we do not have to get up at night, on that I will—if, as a Minister in a UK Government, I am allowed to dip into a foreign legal system for a moment—plead the fifth amendment.
To pick up a point made by the noble Baroness, Lady Hayman, I assure the Committee that, depending on the specific circumstances, it may be possible—I underline “may” because I accept that it will not be possible in all circumstances—to capture this sort of disgusting behaviour under some existing offences, including public order offences and offences dealing with harassment and stalking, along with the common-law offence of outraging public decency. However, this is not a complete answer; I do not put it forward as such. We recognise that the law in this area is not always clear, and that consideration should be given to improving it. That is why we asked the Law Commission to review the law around the taking, making and sharing of intimate images without consent, to identify whether there are any gaps—or, rather, what the gaps are—in the scope of protection already offered to victims. The review looked specifically at voyeurism offences and non-consensual photography in public places, including whether the recording and sharing of images of breastfeeding should be included in the scope of “intimate” images for the purposes of any reformed criminal law.
However, a change in the law here will not be straightforward. I will explain why in a moment. With an amendment such as the one moved by the noble Baroness, there may be a variety of situations in which it is still not an offence to take a picture of a person breastfeeding. That is why the Law Commission’s review is looking into intent, the definition of “image” and other circumstances relevant to this issue. As the Committee is already aware, the Law Commission’s work has gone at some pace. It obviously has an important eye for detail; that is why it is there. It intends to publish its recommendations by the spring of next year, so we are certainly not trying to kick this ball into the long grass. We are proactively considering what more can be done to tackle this behaviour and protect mothers now, ahead of the Law Commission’s recommendations for reform of the law in this area.
However, I respectfully disagree with the noble Baroness, Lady Hayman, that this issue is clearly defined in her amendment. I want to pick up on the point made by the noble Lord, Lord Pannick, if I may; we have had the benefit of some discussions. A number of points look like drafting points but are not, because they really go to the question of the scope of the proposed amendment and what it is seeking to encompass. Let me give a couple of examples, without turning the Committee into a legislative drafting session. Here is example A; I will try to use the initials from the amendment. A takes a photo of his wife, partner or girlfriend on a beach in her bikini, intending to use that image for his own sexual gratification. Another woman, B, is on the same beach, breastfeeding her baby, and is unintentionally caught by A in the picture. I heard what the noble Lord, Lord Pannick, said, but I respectfully suggest that this would be caught by the proposed amendment. A would have no defence as, first, he intended the picture for sexual gratification and recorded the image for that purpose. Secondly, he would have no defence of consent by B because B did not consent. A would also not be able to have the second defence of reasonably believing that she was giving consent because he had no idea at all that she was in the picture.
That is one example, but this goes further than drafting. Let us say that A was aware that B was caught in the background of the photo but was not aware that she was breastfeeding. Again, A would not be able to say that B had consented or that he reasonably believed that she had consented. Further, would an image of someone breastfeeding that did not actually include the act of breastfeeding—for example, a photograph capturing only a breastfeeding mother’s face—be captured under this amendment? What parts of the body, if I can put it that way, would we require the image to capture? As the noble Baroness, Lady Brinton, explained, this is different from the upskirting offence because the law there condescends to particular parts of the body that must be captured in a photo. Would we wish to capture images taken of breastfeeding regardless of whether it is in a private, semi-private or public setting?
I underline to the Committee that I do not raise these matters as drafting points or to be difficult. On the contrary, it is because this issue is so important that we must get the nature, boundaries and scope of the offence absolutely correct.
Lord Pannick (CB)
Does the Minister accept that his second potential problem would easily be dealt with by a drafting amendment to make it clear that the offence relates to a photograph or video of a breast? It would not be difficult to draft that. In relation to his first concern, which, as I understood it, was that if someone takes a photo of their wife or girlfriend breastfeeding for the purpose of sexual gratification and there is some other woman in the background—oh, I am sorry, have I misunderstood?
Lord Falconer of Thoroton (Lab)
Before the Minister answers that question, does he not also agree that we have perhaps seven or eight weeks before we get to Report, so the pettifogging points he is making could plainly be dealt with if we all sat round a table and agreed a draft?
Lord Wolfson of Tredegar (Con)
In drafting legislation, the first thing we need to do is make sure that we agree on the nature and scope of the amendment. I have tried to make it clear that I am not putting these points forward as pettifogging points of drafting. There are important points underlining this about what we want the amendment to cover. I do not know whether the noble Lord, Lord Pannick, was about to rise again; should I give him an opportunity to do so?
Lord Pannick (CB)
It may be thought by the Committee that the first example that the Minister gave was somewhat esoteric and unlikely to occur in practice. The risk of such esoteric events occurring is more than outweighed by the actual mischief that this amendment seeks to address. In any event, the same objections—the noble and learned Lord, Lord Falconer, called them pettifogging; that is his word, but I understand why he said that—could well be raised in relation to upskirting, in that pictures could be taken in whose background there is some other unfortunate woman. Perhaps the Minister might wish to reconsider these matters. We would all be happy to sit round a table and agree a draft that meets these points.
Earl Attlee (Con)
My Lords, I have been in your Lordships’ House for nearly 30 years. I have seen plenty of examples where, eventually, the Government have given way on an issue and parliamentary draftsmen have been able to draft far more complex provisions than these.
Lord Wolfson of Tredegar (Con)
We are all united in our admiration for the parliamentary counsel and draftsmen, absolutely—there is no doubt about that. I do not know whether the noble Lord, Lord Pannick, is an habitué of Instagram. If he were, he would appreciate that the example that I have given is far from unlikely: people take photos of their wives or girlfriends or, indeed, of people who they do not know, but who are not breastfeeding, for all sorts of purposes. Under the definition in the amendment at the moment, if a person is caught in the background of a photo breastfeeding, there would be an offence.
Baroness Hayman (CB)
My Lords, I am extremely grateful to everyone who has spoken in the debate and for the support that has been shown, from all sides of the Committee, for taking action to combat a wrong that everyone accepts should not be allowed to be perpetrated. I have got a law degree, and I do not want to be rude about lawyers—and of course I listened with huge interest and respect to what was, if I may say, a very legalistic response, after the warm words and acceptance in principle on the issue from the Minister. He respectfully suggested to me that the best course was to wait for the Law Commission—he said for a few months. It would be a few months, maybe, for the first round of the Law Commission, but a lot more than a few months before we got the possible legislation.
I respectfully suggest to the Minister that there is another interpretation. We could legislate now and, when we have the Law Commission report on the wider issues, and we are looking at all the esoteric—I think that was the perfect word—examples that he gave, we could then put right anything that was wrong. But in the meantime we would have taken action and, in the meantime, on the 80:20 rule, we would have done a great deal to protect women.
Not all women can breastfeed and not all women want to breastfeed, but those who do deserve the protection of the law. With respect to a possible meeting with the noble Lord between now and Report to try to make this a better amendment in terms of drafting—I take his point about purpose, but I think the Committee knows what the purpose is, and we could get an amendment that would do some good. In the meantime, I beg leave to withdraw the amendment.
Lord Dholakia
“Low-value shoplifting
(1) The Anti-social Behaviour, Crime and Policing Act 2014 is amended as follows.(2) Omit section 176 (low-value shoplifting).”Member’s explanatory statement
This new Clause repeals section 176 of the Anti-social Behaviour, Crime and Policing Act 2014, relating to low value shoplifting
Lord Dholakia (LD)
My Lords, the purpose of the amendment in my name is to remove Section 176 from the Anti-social Behaviour, Crime and Policing Act 2014. With regard to what is affectionately known as shoplifting, it is estimated by the British Retail Consortium that businesses lose £770 million a year to shop theft—and retail theft crimes are rising year on year. According to figures available from the Home Office, there was an overall increase in retail theft of 19.1% between 2014 and 2018, compared with an increase of 4.96% between 2010 and 2014. This is no surprise.
Section 176 of the Anti-social Behaviour, Crime and Policing Act 2014 allows anyone accused of shoplifting anything under £200 to plead guilty by post, as if they had been given a parking ticket. Use of this legislation is often cited as a cost-saving exercise, but the truth is that it does not save money. In fact, it does the opposite, as everyone loses, whether it is customers who end up paying higher prices or the retailers who lose their jobs when the business fails. But it is still being used, with Thames Valley Police for example informing local shops that they will not send out officers to deal with shoplifters who steal less than £100-worth of goods. This piece of legislation has, therefore, massively reduced the deterrent to theft and the punishment that an offender can expect, with many savvy criminals exploiting the situation to steal with virtual impunity.
Just one in 20 of all shoplifting offences are now prosecuted, while the number of cautions for such thefts have fallen from 40,000 to just 5,000 in a decade, according to figures obtained under the Freedom of Information Act. In addition, it is worth noting that it takes an average of 30 offences before an individual is convicted of a shop theft that results in a custodial situation. It is soul destroying for hard-working businesses to have their livelihood literally stolen away from them. The British Independent Retailers Association has come to see me on a number of occasions; its crime survey for 2021, just completed this month, shows that two-thirds of its members see most crimes against businesses valued at less than £200, while two-thirds of members also reported a disproportionate increase in the theft of goods worth less than £200 since this threshold was put in place in 2014. This shows that businesses are losing more and more each year to this type of crime, as it is currently being left unchecked.
John Barlow, a BIRA member in Nottingham, rightly pointed out that the police are basically telling kids, “Help yourselves”. Of course, there are more serious crimes that the police need to solve, but you cannot just give thieves a licence to steal. Shop theft is not a victimless crime; in fact, smaller independent retailers feel the impact of retail crime more acutely than larger retailers, which typically have better security systems, employ guards and security staff, sell larger orders and have better margins and economies of scale. Conversely, a small retailer operating on a typical margin of 8% would need to sell £2,500-worth of goods to make back £200 of stolen goods. In addition, they are often working alone, unable to call in back-up from another staff member, and left literally at the mercy of the perpetrator and the trauma of the event. How can this be right?
The removal of this legislation would send a signal to those who perpetrate shop theft: it is very clear that you will be prosecuted; your actions matter; and you will be held to account. It would show that this Government really hold our retailers, who have kept our country going through the pandemic, in high regard, and that the retailers can have confidence that justice will be served. I beg to move.
Lord Paddick (LD)
My Lords, we support my noble friend Lord Dholakia in wanting to protect small shopkeepers by calling on the police and CPS to take low-level shoplifting more seriously. Repeated low-level theft adds up and, as my noble friend has just said, when the profit margins are typically around only 8%, you need to sell a lot of goods to make up for those losses. This is particularly a problem if perpetrators do not believe that the police and courts will take effective action. I would welcome a response from the Minister to reassure small shopkeepers that the Government take this issue seriously—and that includes what action they will take in response to my noble friend’s amendment.
Baroness Jones of Moulsecoomb (GP)
My Lords, I am not sure that this requires a change in the law; I think the problem lies elsewhere. Section 176 should have been an improvement; low-value shoplifting offences should have been dealt with much more quickly and efficiently.
The Home Office guidance for implementing Section 176 is very clear. It sets out, for example, that repeat offenders, organised criminals and people going equipped should all be referred to the CPS for prosecution, rather than using the simplified procedures. I am interested to hear the Minister’s thoughts.
Something has gone wrong. I am going to guess that it is a consequence of 11 years of austerity inflicted on police forces. Rather than being a legal problem, it is a simple operational matter of the police not having the resources to deal with the problem—they cannot respond, investigate or prosecute. I think the solution lies in policing and not the law.
Lord Ponsonby of Shulbrede (Lab)
My Lords, we too want to protect shopkeepers. I endorse the points made by the noble Lord, Lord Dholakia, backed up by the noble Lord, Lord Paddick. The noble Baroness, Lady Jones of Moulsecoomb, made an interesting point when she said it was not necessarily a mistake of law but in the application of the law that this problem has emerged.
I too received the briefing from the British Independent Retailers Association; its figures are stark. I also have the previous statements by Kit Malthouse, the relevant Minister. He has said that he is happy to look at the data to see what it tells us about the operation of the policy, now that we are four or five years in. I do not think there is any problem with us reviewing the data internally, deciding whether the policy is working and then promulgating some kind of best practice. However, in January 2021, in response to a Written Question on when the Government was planning to review the operation of Section 176, the Minister said that it would be part of a wider, post-legislative review of the Act but that no date had yet been set.
The point I want to make to the Minister is that there is some urgency on this. The system does not seem to be working very well. From my own experience as a magistrate sitting in London, I cannot remember the last time I saw a youth come to court for shoplifting—they never come to court for shoplifting; we see them for much more serious offences. I am not saying that they should be brought to court for shoplifting but that they are being dealt with in another way and it is questionable whether that alternative is appropriate. We do see low-level shoplifting in adult magistrates’ courts, but it tends to be by multiple, repeat offenders, who are part of a gang. We see that element of shoplifting, but we do not see occasional, low-level shoplifters in court very much. They are being dealt with in other ways, and this may be part of the problem.
Lord Sharpe of Epsom (Con)
My Lords, I am grateful to the noble Lord, Lord Dholakia, for tabling his amendment and for explaining it in considerable detail.
I start by expressing my support and respect for all those who work in the retail sector. Shops are the lifeblood of our communities and neighbourhoods. As the noble Lord pointed out, that fact was perhaps amplified by the pandemic. It is important that businesses should be free to trade without fear of crime or disorder. I recognise the significant impact that shoplifting can have, not only on businesses but on the wider community and consumers. It is vital that perpetrators are brought to justice. As the noble Lord, Lord Dholakia, pointed out, it is not a victimless crime.
Lord Dholakia (LD)
My Lords, I thank the Minister for his explanation. A large number of these businesses are owned by people from our diverse communities, and corner shops are areas of high crime rates. They have made a number of representations to me. I shall discuss the Minister’s comments with them and, if need be, come back later, if possible. In the meantime, I beg leave to withdraw the amendment.
Police, Crime, Sentencing and Courts Bill
Wednesday 3rd November 2021
(2 years, 6 months ago)
Lords ChamberRead Full debate Police, Crime, Sentencing and Courts Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 40-V(b) Amendments for Committee (supplementary to the Fifth Marshalled List) - (3 Nov 2021)
Baroness Chakrabarti
“Commissioning of police weapons, surveillance equipment or investigatory technology
(1) Save as provided for by regulations under this section or as specifically authorised under other legislation, no constable, police force, police and crime commissioner or other policing body may commission the development or deployment of weapons, surveillance equipment or investigatory technology.(2) The Secretary of State may by regulations—(a) authorise a relevant policing body to commission the development or deployment of weapons, surveillance equipment or investigatory technology specified in the regulations;(b) specify technologies or providers that may or may not be commissioned by any relevant policing body;(c) prescribe conditions that must be met by any technologies or providers if they are to be commissioned by any relevant policing body;(d) authorise a person, or panel of persons, to monitor such commissioning as is authorised and compliance with such conditions as are prescribed.(3) Regulations under this section must be made by statutory instrument.(4) Regulations under this section—(a) may make different provision for different purposes or areas;(b) may make financial, consequential, supplementary, incidental, transitional, transitory or saving provision.(5) A statutory instrument containing regulations under this section may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.”
Baroness Chakrabarti (Lab)
My Lords, Amendment 132B—a probing amendment—is in my name and that of my noble friend Lord Hain. The Committee will know that everyone here is engaged with scrutiny of the present Bill because we believe that police powers, criminal justice measures and the criminal law need to be on a clear and, for the most part, statutory footing—certainly on a clear legal footing. A brief skim of this very hefty piece of legislation will throw up references to well-established and legendary Acts of Parliament. The Police and Criminal Evidence Act is an obvious one, as is the Public Order Act; the list goes on. These measures, over the years, have come to govern police powers in particular: powers of arrest, investigatory powers, and so on.
However, because we are nearly a quarter into the 21st century, so much technological development—some of it just as intrusive as traditional powers of arrest and subsequent investigatory powers—has proceeded apace. I, for one, despite having been around this territory for a couple of decades, am not clear about the statutory footing for much of it. That is really the legal and constitutional basis for this probe, if I might put it like that. In a moment, my noble friend Lord Hain will use a more specific example that spurred us to table this amendment, even though that was only a couple of days ago.
In a sense, this is not that dissimilar to the amendment that the noble Lord, Lord Moylan, and many of his friends on the Benches opposite debated a few days ago. That was about non-crime information sitting around on databases, potentially to the detriment of citizens. His cry then, supported vociferously by people from across the Committee, but particularly that side, was that it must be on a statutory footing. The same must be true as a matter of law, not least the law of the European Convention on Human Rights but constitutional principle, in relation to the commissioning of weapons, surveillance equipment, investigatory technology and new algorithmic technology—much of which is currently under investigation by the new House of Lords Justice and Home Affairs Committee, ably chaired by the noble Baroness, Lady Hamwee, who is in her place, and comprising many illustrious Members of your Lordships’ House.
Lord Hain (Lab)
I speak in support of Amendment 132B, in the name of my noble friend Lady Chakrabarti, to which I have added my name, and which provides for a new clause in the Bill. I ask the Minister to listen quite carefully and consider bringing back a government amendment on Report to address the issues that we have raised. There is a really important issue about the accountability and scrutiny of these developing technologies of surveillance and weapons.
The purpose of the proposed new clause is to ensure that drones and other new surveillance or weapons technology can be deployed by the police only within parameters and regulations set by the Secretary of State; in other words, it seeks to ensure proper parliamentary accountability and scrutiny rather than leaving it as a matter of exclusive police discretion. As my noble friend Lady Chakrabarti has pointed out, when, in the past, other forms of technological surveillance, and indeed digital technology, were not properly regulated, they started to encroach on privacy in a major way. We have all seen examples of that or experienced it ourselves.
Police in England and Wales are considering using drone-mounted cameras that could film high-quality live footage from 1,500 feet—457 metres—away, which raises concerns among civil liberties campaigners. The National Police Air Service—NPAS—which provides air support to 46 police forces, has asked private companies for information about systems that offer both airborne imaging and air-to-ground communication. A government website stated on 21 September:
“The imaging systems are intended for use on BVLOS (Beyond Visual Line of Sight) remotely-piloted aircraft systems: ‘Drones’.”
The NPAS told potential bidders that the systems should be capable of transmitting live, high-quality images even in low light, using electro-optical or infra-red systems. It said that this would enable officers to pick out detail such as facial features, as well as clothing and vehicle registration plates, at a distance of between 500 feet and 1,500 feet. The NPAS added that the cameras should be able to operate on a drone that stays in the air for up to four hours and flies up to 30 miles from the base station from which it is controlled.
Drones have been used by various English and Welsh police forces, including the Metropolitan Police, which has explained that they have been deployed to survey crime scenes and provide live footage of operations. That is all to the good as a response to serious crime. It seems, however, that the NPAS may plan a national rollout of drone technology, which raises all manner of civil liberty issues, including privacy, how much autonomy will be granted to private companies operating such drone technology for surveillance by the state, and whether it will target legitimate protesters as opposed to criminals and terrorists.
I ask these questions because these important issues cannot simply be a matter for operational police decision-making. They should be placed within an accountable regulatory environment that can be scrutinised by Parliament. CCTV is already ubiquitous and operated by private companies able to watch whatever we do, certainly in urban areas. Surveillance of the vehicles we drive is also universal. Big tech companies are increasingly monitoring almost our every move.
Deployment of police drones with algorithmic and facial recognition technology should be properly regulated. This is the essence of what I am asking the Minister to respond to. Drone surveillance has even been used to stalk dog walkers during lockdown. It is not acceptable for a Home Office spokesperson simply to say, recently:
“Use of drones is an operational matter for police forces.”
Nor is it sufficient for Ministers to say that the police are already subject to the Air Navigation Order and the general data protection regulation. Although it was reported in the Guardian that the Home Office says increased use of drones would allow police forces to replace helicopters, reducing noise and carbon emissions, that should not be a reason to duck the necessity for proper accountability and scrutiny. I stress, to the Minister and to your Lordships’ House, that this amendment does not seek to block police deployment of drones for legitimate purposes such as to tackle criminals, drug or people traffickers, terrorists, or racist or fascist demonstrations targeting black, Jewish or Muslims citizens.
The Undercover Policing Inquiry, to which I gave evidence earlier this year, has already revealed stark injustices and abuses of liberty and privacy. The High Court has recognised this in its recent judgment finding against the Metropolitan Police in a case brought by environmental protestor Kate Wilson, who was intimately and improperly befriended by undercover police officer Mark Kennedy. Other example like this were revealed by the Undercover Policing Inquiry. I mention these because they relate to accountability, scrutiny and proper regulation. One undercover police officer told the inquiry that she did not know why she was infiltrating one feminist group, as only four people attended a meeting she went to. But she was deployed in this way, instead of on serious undercover police work, such as what I saw and approved as Secretary of State for Northern Ireland. That was legitimate undercover police work.
This amendment is about ensuring drone technology is used to put serious crime under proper surveillance, is accountable and does not get out of control, as undercover police officers did. I have spoken previously in this House, on another Bill, about the improper use of undercover police officers to monitor and put under surveillance anti-Apartheid demonstrators, instead of pursuing the South African security services who were bombing Nelson Mandela’s headquarters in London. I will not go on about this, but my point is that the deployment of undercover police officers should have been more properly regulated. I hope that the current inquiry, headed by Judge Mitting, will produce recommendation to that effect, given that it was set up by the Government, which I welcome. The question is how deployment is regulated and who makes the ultimate decisions. I believe it should be based on a warrant—which I signed hundreds of, as Secretary of State for Northern Ireland and when substituting for the Home Secretary or Foreign Secretary—to deal with serious crime.
To give an example of what I think would have been a legitimate deployment of drone technology if it had existed then—I will describe this generally so as not to give away what was really going on—I witnessed graphic video-based surveillance of paramilitary members with guns seeking to attack fellow citizens in Belfast when I was Secretary of State for Northern Ireland in 2005. That was done for entirely legitimate purposes. I will not describe how exactly it was done because I do not think that should be publicly revealed. The operation of a drone in that situation—because drone technology did not exist in the form that it does now—would have been entirely legitimate and I saw at first hand the way it could be legitimately deployed.
However, I can also see how this could be spread, if it is simply an operational decision by police, to target non-violent demonstrators and environmental activists. We may not approve of their methods, but we have already seen members of Extinction Rebellion put on a terrorist list by police forces. When that was revealed they of course said that they should not have been. This is about parliamentary scrutiny and accountability. Without such accountability, how do we know that drone-based surveillance is not being targeted on illegitimate purposes like undercover police officers most certainly were?
If the noble Baroness is willing to look at this, and she might find some technical reasons why our amendment is not acceptable to her, it may be that the same kind of authority should be given as under the warrant procedure for authorising surveillance. As I have just explained, I signed hundreds of those as Northern Ireland Secretary of State and in other capacities. Maybe that is one of the ways in which ultimately the Secretary of State would take the decision and be ultimately accountable under the legislation that Parliament passes. Parliament can therefore scrutinise, if not every decision, then the general pattern of decisions made. We need something similar for drone surveillance and this amendment tabled by my noble friend provides for that. I hope the Government will address this so that we do not have to bring back the same amendment or a similar one on Report, because the Government will have recognised this is an important issue and taken the initiative themselves. I ask her to consider that.
Baroness Jones of Moulsecoomb (GP)
My Lords, way back in 2004 I was the Deputy Mayor of London—when there was only one deputy mayor and not a whole host of them. In that role I attended DSEI, the arms fair. What struck me was that there was a terrifying amount of military equipment being sold and repurposed for use by police forces and Governments against their own citizens. That was a few years ago and I imagine the situation has got much worse since.
On another occasion I was outside a kettle in Whitehall chatting to the senior police officer trying to give him some good advice about how to communicate with the crowd. He had a phone call, he stepped away to take it and when he came back, he said “I’ve just been told not to speak to you any more.” I asked, “Who by?” and he pointed at the helicopter that had been flying over us. That was the first time I realised just how powerful the cameras were; they had not only been able to photograph me but also recognise me which, from the top of my head, I would have thought almost impossible.
There is always a great amount of mission creep with this type of technology and people can get carried away with it. Our own Prime Minister infamously wasted hundreds of thousands of pounds of public money buying illegal water cannons when he was Mayor of London. They ended up rotting down in Kent and I am not sure we ever managed to sell them—perhaps we sold them for scrap. As far as I know there is still no oversight or regulation of the facial recognition technology. I would be very interested to hear the Minister tell me about that, because I have been agitating for that for some time.
Baroness Bryan of Partick (Lab)
My Lords, I support Amendment 132B in the names of my noble friends Lady Chakrabarti and Lord Hain. Most of us were blissfully unaware that there was something called the National Police Air Service. We might have thought of it monitoring traffic problems and advising on detours, or perhaps tracking a getaway car through the streets. We probably thought that our local police service was undertaking this. Certainly, we would have expected such a service to have been accountable.
We were somewhat surprised to find that responsibility for commissioning this service in England and Wales is held in West Yorkshire and is becoming part of the remit of the Mayor of West Yorkshire. It was unnerving to read in the Guardian that there is to be a massive development in the role of the National Police Air Service without reference to Parliament, especially as it is considering the use of the technologies which have been described and which take us into worrying areas of policing that involve the use of drones, possibly fitted with facial recognition technology, and greatly increase the degree of public surveillance. Can the Minister say how much, if any, of the information captured will be accessible to the private company involved in its provision?
Amendment 132B aims to ensure that the commissioning of such equipment should be a matter for Parliament so as to ensure proper accountability and scrutiny. If there is one thing we should have learned from recent concerns about policing, it is that all aspects of policing should be accountable and open to public scrutiny. The antithesis of accountability is having an election every few years for a police and crime commissioner who is usually elected on the basis of a low turnout with little local understanding of that person’s role.
Can the Minister reassure the Committee about another aspect of accountability? When contracts are awarded for aspects of policing, they should be transparent and not clouded by being classified as commercially sensitive and therefore less open to public scrutiny. As other noble Lords have said, I hope that the Minister will take account of this amendment and the nature of the concerns it expresses.
Baroness Hamwee (LD)
My Lords, the noble Baroness has referred to the Justice and Home Affairs Committee, which I chair. It is currently undertaking an inquiry into the use of new technology—I stress new, by which I mean artificial intelligence—and the application of law. I do not wish to pre-empt whatever the committee may recommend. We will certainly look at issues of so-called hard or soft regulation. We will also look at procurement standards, transparency—by which I mean intelligibility both to those who use AI and to those who are the subject of it—and accountability. The list of issues seems to increase with every evidence session. At a recent session, a witness said
“certain things with AI will always be the same. We will always have a data issue, a bias issue and an explainability issue”.
I do not think it appropriate to go into any detail this evening, other than to say, “Watch this space”.
Lord Paddick (LD)
My Lords, we support the principle of the amendment the noble Baroness, Lady Chakrabarti, has tabled. Picking up a theme here, facial recognition technology is an example of where officials are concerned. For example, the guy who is responsible for the regulation of CCTV has very serious concerns that the technology is running ahead of the regulations and that this needs to be addressed. As my noble friend Lady Hamwee said, the use of artificial intelligence is another new and developing area where Parliament should at least consider whether these new technologies need to be subject to debate in Parliament and regulation.
However, I am not sure about the example of drones, which are sort of a replacement for police helicopters. I left the police in 2007; 14 years ago, with something not very imaginatively called “heli-tele”, police helicopters could pick out people’s faces from however many thousand feet they were up in the air and transmit those images to officers on the ground who had television monitors in front of them. It was extremely useful to see where crowds were moving in a fast-moving demonstration situation. Clearly, you can have a lot more drones than you can have helicopters, because they are a lot cheaper and so forth. The increased use of drones may be of concern, but the way in which they are being used is no different from what huge helicopters have been doing for years, whether members of the public were aware of it or not.
The noble Baroness, Lady Jones of Moulsecoomb, talked about the Mayor of London and water cannon. Again, I think it was Theresa May as Home Secretary who refused to allow their deployment. Unfortunately, if the Mayor of London had actually listened to experts in public order policing, they would have told him that they are more or less useless for the sort of things he was hoping to use them for. I think he felt that water cannon would be useful following the widespread riots across the country. In fact, in that scenario they are completely useless. They are lumbering giants of things that cannot possibly keep up with marauding gangs going round and looting and so forth.
I think my noble friend Lady Hamwee has hit the nail on the head—it is new technology that needs to be considered and regulated, or at least debated in Parliament to see whether it needs to be regulated. To that extent, I support the amendment in the name of the noble Baroness, Lady Chakrabarti.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I have very much been in listening mode on this. Amendment 132B would require the oversight of the Secretary of State for police bodies to commission or deploy weapons, surveillance equipment or investigatory technology. I welcome the questions raised. All the speakers have thought about this matter far more than I have, and I look forward to the Minister’s response with interest. I do not know whether she is an expert on heli-tele, but I take the noble Lord’s point that technology as a whole is running ahead of regulation. That goes to the heart of the points made today. I also take the points made by the noble Baroness, Lady Hamwee, on the purposes of her committee in looking at the possible regulatory approaches, such as a hard or soft approach.
Things are moving very fast; we all know that. We are all challenged in our day-to-day lives in the way we communicate with people. This institution has been challenged in the last 12 months, and things have changed dramatically. With an open mind, I look forward to the Minister’s response.
Baroness Williams of Trafford (Con)
I thank the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Hain, for setting out their case for this amendment. I can do no better than echo the comments of the noble Lord, Lord Paddick, on heli-tele, which were absolutely to the point. I think the Committee is generally referring to some of the new, emerging technologies and the framework around them.
I have done quite a lot of work in Parliament on LFR and biometrics, but very little in this Chamber, so I am very pleased to have a chance to debate this with noble Lords this evening. I refer the Committee to some of the work I have done in the Science and Technology Committee on LFR, biometrics, forensics and so on. It makes for riveting reading.
We are really aware of the issues that noble Lords have raised. There are some links to the matters we debated on Monday relating to confidence in policing and the importance of policing by consent. We are mindful of the need to ensure that the police’s use of technology is appropriate, and it might assist the House if I begin by setting out some of the existing legal framework in this space. What noble Lords have talked about tonight covers a vast area, but I will give some of the headlines for a flavour of what we are doing.
The framework includes police common law powers to prevent and detect crime, the Data Protection Act 2018, the Human Rights Act 1998, the Equality Act 2010, the Police and Criminal Evidence Act 1984, the Protection of Freedoms Act 2012 and law enforcement bodies’ own published policies. This framework places important obligations on those responsible for the deployment of technology, including the need to undertake data protection and equality impact assessments, and has provisions to regulate automated decision-making where there are significant implications for the individuals affected.
I also want to assure the Committee that the Government recognise the importance of ensuring that there is strong evidence around the use of technology in policing. To this end, we supported the appointment, in June, of Professor Paul Taylor as the National Policing Chief Scientific Adviser. Ensuring that all technological developments in policing are based on good evidence and the best understanding of science is absolutely crucial. Professor Taylor chairs a police science and technology investment board, which demands rigorous quality assurance of all proposals. He is also represented on the relevant National Police Chiefs’ Council committees and is developing national research and development guidance with the College of Policing.
We also recognise the need for appropriate co-ordination of investment decisions across the policing landscape. Therefore, with oversight from the ministerially led strategic capabilities and investment board, we are supporting the development, mobilisation and implementation of the 10-year national policing digital strategy, to ensure that the right infrastructure is in place across policing to harness and exploit the benefits of data and analytical capabilities.
Work under way includes establishing an NPCC data board to promote a consistent approach to developing data literacy; assessing efficacy, ethics quality and standards; and establishing a central data office within the Police Digital Service, which aims to improve data management and sharing across policing. The data office will provide the essential infrastructure for the sector to ensure strategic direction, central co-ordination, and accountability on national expectations of locally held data. Work is also under way to develop a national data ethics governance model, building on the work West Midlands Police has done to establish an ethics committee to advise on data science projects. The national model will also be developed in collaboration with the Centre for Data Ethics and Innovation and the Home Office.
Lord Hain (Lab)
Can the Minister say something more about facial recognition technology? She has covered this to some extent, but what is different from the heli-tele era that the noble Lord, Lord Paddick, described, or the incident in Belfast I described, when you did not have facial recognition technology? This is going that way if it is not there already, and does that not raise important regulatory questions, or is this being addressed by the committee she has just described? I would be grateful if she could elucidate.
Baroness Williams of Trafford (Con)
I have not engaged with the committee. The committee could invite me, but I think it spoke to Home Secretary in the past few days. Live facial recognition is the comparison of images against a watchlist, whereas heli-tele seems to be—from what the noble Lord, Lord Paddick, was describing—aerial CCTV. The two are quite different and are governed under different laws. The LFR is a comparison against a watchlist, and that is why it is different.
Baroness Bryan of Partick (Lab)
I wonder whether the Minister will mind me intervening. My concern was not that the police and crime commissioners were not elected, but that the one that serves West Yorkshire is elected only by West Yorkshire, yet it is commissioning work on behalf of other areas in England and Wales that properly should be done here in Parliament.
Baroness Williams of Trafford (Con)
If the noble Baroness wants to elucidate further—perhaps not in the Committee—on those issues, I would be very happy to engage with her on them. The only point I was making is that they are elected.
Baroness Chakrabarti (Lab)
My Lords, I am grateful to all Members of the Committee who spoke on this amendment. I want to be clear: it was a probe, and my ideal scenario would not even be for a regulation-making power in a great big criminal justice Act, it would be an Act of Parliament itself. I say to the Minister—and I mean this genuinely in a constructive spirit—that it was a Conservative Government in 1984 who introduced what is now the Police and Criminal Evidence Act.
What I am really saying is that there is so much of this kit and technology developing apace that we need something at least equivalent to the Police and Criminal Evidence Act to put questions of commissioning and regulation—of who decides what the tests are and what the accountability is in relation to all this development and commissioning of this new technology in the policing space—in one Act of Parliament. Again, it is not a partisan point; I would be saying this whoever the Government were. That was a really important piece of legislation in 1984, and the time has come for something like it. There happens to be another Conservative Government, and I think something like that will come.
What I said to the noble Lord, Lord Wolfson—sitting down—I said a couple of years ago to his predecessor: what is the legal basis of telephone extraction? I was told data protection and consent, or something of that kind. Here we are now, a couple of years later, in response to concerns, and there is going to be under this Bill a clear statutory framework.
Baroness Williams of Trafford (Con)
I hope the noble Baroness does not mind me intervening, but I again refer her to the Science and Technology Committee, because the Policing Minister talked about gaps in the legislation. In fact, the honourable Member Graham Stringer was pleading for legislation, and I refer her to the comments the Policing Minister made in that regard.
Baroness Chakrabarti (Lab)
I thank the Minister for that, and I will certainly go back to look at that. When she made her comments, I asked about the statutory framework, the legal basis. A list came back which began with the common law, the Data Protection Act, the Human Rights Act and the Equality Act—all good things—but my suggestion is that, as a matter of good governance, sound regulation and accessibility for the public—this is not about just civil liberties concerns and privacy but public money and accountability—all this regulation should be under one framework. That way there will be consistency across all 46 police forces in relation to where the commissioning should be, which providers are considered to be ethical and which are not, how they are to behave and what the conditions are, and then, once the technology has been developed, how it is to be deployed. I do not think it is asking a lot to suggest that this should all be under a single statutory framework. It would be something that the Minister and her Government could be proud of, and there could be a regulatory framework that could last for many decades, just as, broadly speaking, the Police and Criminal Evidence Act did.
I thank all noble Lords who spoke. To go back to my noble friend Lady Bryan of Partick’s point, where is the statutory underpinning of a National Police Air Service? Where is the Act says that says “there shall be a National Police Air Service”? I am not aware of it. Where is the Act of Parliament that set up a national College of Policing? I am not aware of it. It may exist somewhere, but I have not found it and I do not see it. I am not doing this to score points; I think it would be good governance and good legislation from which many generations and many Governments in future might benefit.
With that, and with my gratitude for taking this seriously, I hope that I have planted a seed for future thinking. The committee chaired by the noble Baroness, Lady Hamwee, on which I have the privilege to sit, will no doubt develop this conversation with the Minister in due course. I thank everyone for their patience and engagement, and I beg leave to withdraw the amendment.
Baroness Whitaker
“(d) a constable, following a request of the occupier or a representative of the occupier,”Member’s explanatory statement
This is a JCHR recommendation. This amendment would provide that, as part of the conditions for the new offence of criminal trespass only a police officer could request a person to leave land and only following a request by the occupier of the land.
Baroness Whitaker (Lab)
My Lords, I am proud to open the debate on these amendments. They are a means of addressing another very serious departure from the principles of social justice by the Government. I support most of the amendments in the group, which are mostly different ways of tackling the same problem.
I will speak to Amendments 133 and 149 in my name and those of the right reverend Prelate the Bishop of Manchester, and the noble Lords, Lord Bourne of Aberystwyth and Lord Alton of Liverpool, for whose support I am very grateful. The lengthy trajectory of this Committee has prevented the noble Lord, Lord Alton, speaking in person, and the rail disruption after the sad accident near Salisbury has also derailed the noble Lord, Lord Bourne, who told me that he considers our amendments proportionate, sensible and wholly right.
I declare interests as president of Friends, Families and Travellers, co-chair of the All-Party Parliamentary Group for Gypsies, Travellers and Roma, and other positions as noted in the register. I am also grateful to the Joint Committee on Human Rights for its percipient report devoted wholly to the significant difficulties of Clause 62.
Our Amendment 149—the main one—would do away with the problem that the harsh and probably illegal provisions of Clause 62 purport to solve. If agreed, Clause 62 will not be the cruel anomaly that it is. The problem is, of course, the lack of authorised encampment sites, both permanent and transit, whether publicly or privately owned. Our amendment would oblige local authorities to provide adequate accommodation for Gypsies and Travellers residing in or resorting to their area—that is, permanent and transit sites as required. They are already required to assess the need for sites under planning law, so they should know what will be required in law. This means that Gypsies and Travellers would be treated on a par with other homeless families, except, of course at much lower cost than building housing, but because very many authorities have been so negligent in even making assessments, we have also provided a power of ministerial direction if need be.
The Home Secretary does not appear to understand the situation. On 8 March she wrote:
“As of January 2020, the number of lawful traveller sites increased by 41%”.—[Official Report, Commons, 8/3/21; col. 21WS.]
The error here is that this increase refers to transit pitches for individual caravans for a limited period of time. It actually resulted in only 10 additional transit pitches a year, not permanent pitches on permanent sites. There had in fact been an 8.4% decrease in the number of local authorities permanent pitches, as shown in Ministry of Housing, Communities and Local Government figures. Will the Minister apologise for this mistake on behalf of the Government?
The real picture is that, in January last year, for example, only eight of the 68 local authorities in south-east England had identified a supply of permanent deliverable sites to meet the unmet need. That means that 60 had not complied with the Government’s planning policy for Traveller sites. In January this year, there were at least 1,696 households on the waiting lists for permanent pitches in England. As of last March, the last funding round for applications for Traveller sites had awarded funding for only two schemes across the whole country, and that was only for new transit sites. In the context of the overall housing shortage, these numbers may not look large but they are huge in relation to the small number of Gypsies and Travellers who still travel—for instance, in January last year, there were only 694 of them—and to those who need to stay on permanent sites while their children are in school or their elders receive medical care.
Baroness Brinton (LD) [V]
My Lords, I declare my interest as a vice-president of the Local Government Association. I am also a patron of the Traveller Movement and an officer of the All-Party Parliamentary Group on Gypsies, Travellers and Roma. The noble Baroness, Lady Whitaker, is a long-standing co-chair of that group, and it is a pleasure to follow her. I agree with everything she has said.
In this large group, I have added my name to Amendment 136 and to Clauses 62 and 64 stand part. I shall leave others to talk about the amendments, while I focus on the overall effect of those clauses and why they should not stand part of the Bill.
Since the mid-1990s, I have seen closely how society in our country manages its relationship with the Gypsy, Roma, and Traveller community. As chair of education in Cambridgeshire, we worked very closely with our Gypsy and Traveller community, and our schools, to make it easier for children to access school when their parents moved for work—usually, but not only, following the patterns of generations moving from farm to farm to work at whatever the seasonal needs required. The families that we knew found it hard to access education, and the difficult reception that they faced from very hostile communities meant that all too frequently, children were bullied, in and out of school. Our district council community officers worked closely with these families to support them. The most distressing things that I heard directly from families then are still true today, and possibly even worse, because now, adults, including teachers, abuse and bully Traveller families, and even children in school.
On Clause 62 on unauthorised encampments, it is worth remembering that well over a decade ago, local government was asked by the Government to provide more authorised encampments based on the planning needs of their own Traveller communities. The reality was that far too many councils not only did not create the number of encampments needed in their area but have closed other existing ones. As a result, it is harder for a family to find a pitch on an authorised encampment. Without a base, it is much harder to access services such as education, health and even work. It is a vicious circle that this clause makes much worse.
Friends, Families and Travellers conducted research into compliance with planning policy for traveller sites and assessed the need and supply of Gypsy and Traveller pitches in 2016, and again in 2019, analysing Gypsy and Traveller accommodation assessments and local plans from all planning authorities in the south-east of England. The most recent findings revealed shockingly low numbers, with only eight out of 68 local authorities meeting their identified need for Gypsy and Traveller pitches. There is a similar picture across the country.
Despite the statements of the Home Secretary, there was an overall 8.4% decrease in pitches on local authority Traveller sites between 2010-2020. As a result of these pressures, the Gypsy and Traveller community, working with local authorities and landowners, has created other solutions to managing encampments that have been developed over recent times, such as negotiated stopping, where arrangements are made on agreed stopping times and to ensure the provision of basic amenities such as water, sanitation and refuse collection.
Part 4 of the Bill contains some of the most hostile legislation seen against one community. The introduction of a new criminal offence where trespassers have the intent to reside will apply when a person is residing, or intending to reside, on land without consent and has been asked to leave by the occupier, their representative or the police; has at least one vehicle with them on the land; has caused, or is likely to cause, significant damage, disruption or distress; has failed to comply with this request as soon as reasonably practicable and has no reasonable excuse for doing so. Failure to comply without “reasonable excuse” can lead to the police exercising powers to seize a vehicle—and let us remember that that is someone’s home, with all their possessions in it—as well as imprisonment and a fine. All these measures are completely disproportionate, but the severity of the seizure of a home and possessions is extraordinary.
The impacts of these measures will be catastrophic for an individual and a family suddenly without a home or possessions and with potentially any family member over 18 years of age thrown straight into the criminal justice system. Beyond the immediate impact, this will also affect the welfare of the whole family and severely impact on the children, who would lose their home and could face children’s services interventions, possibly with the family breaking up.
These proposals are being put forward despite the existence of a range of other eviction powers for encampments, and despite the range of alternative solutions grounded in a humane and common-sense approach, such as the provision of more sites and stopping places. There are already a wide range of eviction powers for encampments, which can be exercised as swiftly as within an hour and which can be triggered if incidents of anti-social behaviour occur. These enable a response based on conduct, not on what a landowner might think is “likely”. The powers will disproportionately affect this minority and ethnic communities, and are likely to be in conflict with equality and human rights legislation, as the noble Baroness, Lady Whitaker, has outlined.
The Lord Bishop of Manchester
My Lords, I support Amendments 133 and 149 in my name and the names of the noble Baroness, Lady Whitaker, who has spoken so eloquently, and the unavoidably absent noble Lords, Lord Alton and Lord Bourne. I also wish to support Amendment 147 in the name of the noble Lord, Lord Rosser, and others. I refer noble Lords to my interest in policing ethics that is set out in the register.
As I said at Second Reading, Gypsy, Roma and Traveller people have been a vital part of the economy of our nation—not least its agricultural sector—for many generations. Their mobility has enabled them to provide labour at the point of need for shorter or longer periods of time. The consequence of that very flexibility is that they have not acquired fixed land, property or dwellings over generations, but are constantly at the whim of the availability of sites and pitches for their vehicles and caravans. The labour shortages that presently beset us might serve as a reminder that we owe a debt to those who have provided a flexible workforce in times past. Instead, this Bill seeks to push them towards criminality while making no adequate alternative provision for them.
Amendment 149 is vital to the integrity of the Bill. It will repair the damage caused by the repeal of the Caravan Sites Act 1968 and give local authorities a statutory duty to provide authorised sites and adequate numbers of pitches. The present law is clearly failing, as the noble Baroness, Lady Whitaker, said, and as the noble Baroness, Lady Brinton, reiterated. Sixty out of 68 authorities in the south-east are not at present complying with the Government’s own planning policy. The problem with Clause 62 as it stands is that it seeks to respond only to the consequences and not to the cause. The world-renowned Desmond Tutu, formerly archbishop of Cape Town, famously remarked that it is not enough to fish bodies out of the river; we need to take a stroll upstream to see who is throwing them in. Amendment 149 addresses the cause directly; indeed, with it in place, as the noble Baroness, Lady Whitaker, said, there may be little need for any of Clause 62 as drafted.
The present situation, with a planning policy but no clear statutory duty, places local authorities in an unenviable position. There are few, if any, votes in providing sites for Travellers; if there were, undoubtedly the planning policy would be upheld. On these Benches, we understand that sometimes the role of a bishop is to take responsibility for the unpopular decision that no parish priest dare take for fear of alienating some among their congregation. Amendment 149 will provide similar support for local councillors and council officers who seek to provide for Gypsy, Roma and Traveller people, sometimes in the teeth of hostile and prejudiced opposition.
Sometimes Ministers respond to requests for amendments such as this by indicating that the issue has merit but that some other, future Bill is the more proper route through which to deal with it. However, in this case, such argument should be afforded very little weight. Amendment 149 is not tacked on to a clause seeking to deal with very different matters; it lies at the heart of tackling the issues that Clause 62 purports to address. If there is to be a Clause 62 at all—and that is a matter for your Lordships’ consideration —this amendment is central to it.
I now turn briefly to the other amendments to which I have referred. I am grateful for the draft statutory guidance the Minister has shared with some of us: I hope that this indicates a willingness to work with those of us particularly interested in the clause. However, as it stands, it does not provide adequate safeguards against the clause being used prejudicially. Nor does it tackle the points of principle that amendments in this group seek to address. Amendment 133 may seem a matter of detail, but it is important detail. It is a matter of principle. As the noble Baroness, Lady Brinton, said, to allow a landowner or other third party to escalate a matter of trespass to the level of a criminal offence without reference to any constable is a very grave matter. It could provide statutory support for decisions taken on pure prejudice. A judgment on whether particular circumstances constitute criminality is not something that, in situations such as this, should be devolved to any private individual, let alone one who may have a direct interest in the land or property in question.
As well as these matters of principle, there are strong, pragmatic reasons for this amendment. The presence and leading role of a police officer will be an important safeguard against abuse of the law, as well as assisting in providing a robust evidential chain should a prosecution follow. I hope the Minister will be able to accept this modest amendment or agree to meet us to find a mutually acceptable alternative before Report.
Finally, Amendment 147 seeks to include Gypsy, Roma and Traveller people within the same general safety net that applies to other households. The law properly places a high bar on depriving anyone of their home. The process by which a mortgage lender or residential landlord can evict a person from their dwelling is surrounded by robust safeguards. It takes time, and it should take time. Those affected, who may include children, vulnerable adults and others to whom a relevant local authority may have a duty to provide accommodation, need to be afforded adequate protection from seizure while they either identify and move to an alternative location or are given access to some other safe and secure place to live.
The safeguards that your Lordships’ House has enacted over many years and that mitigate the risks of homelessness for the vast majority of other members of our society cannot simply be disregarded and disapplied, or reduced to the level of statutory guidance, when it comes to this one small section of our community. Where such basic rights are to be lost, it should surely require far more egregious circumstances than the offence of criminal trespass that this clause seeks to create. All these matters would be far better dealt with in a Bill focused on the provision of safe and secure accommodation for all our people, including those whose lifestyle and culture is rooted in travelling. If Part 4 is to remain as a small and ill-fitting part of this very wide-ranging piece of legislation, we have much work to do to make it fit for purpose. I believe that the amendments to which I have spoken form a necessary part of that revision.
Baroness Jones of Moulsecoomb (GP)
My Lords, I will speak quickly, because I am speaking on behalf of my noble friend Lady Bennett of Manor Castle. It is wonderful to see such a huge coalition of Peers tabling amendments and speaking on this issue. I imagine that Gypsy and Roma Travellers, peaceful protesters, van-lifers, wild campers and anyone else threatened by this proposed legislation will be glad to see the opposition that is coalescing in your Lordships' House, and I foresee a struggle for the Government on this. Far from criminalising trespass, we should be opening up more land for access to the public and enhancing our enjoyment of our magnificent countryside.
We should remove these clauses completely. It is a nasty section of the Bill. It is discriminatory and dangerous. It will be to the detriment of the reputation of the Government—if it can be any more damaged—if they struggle to keep these clauses in. There are many other useful amendments in this group that we support, but the Government would be very wise to compromise on this issue.
Lord Garnier (Con)
My Lords, it may well be that the Government are wise to compromise on this issue. There is a fair amount in Part 4 that has excited controversy in this House, in the other place and among the wider public. But I would not want it to be thought that, because Part 4 and the clauses that may be subjected to these amendments—which have been articulately and powerfully advanced by the noble Baroness, Lady Whitaker, and those who have spoken after her—are rightly subject to trenchant criticism, for all the reasons that have been advanced so far, the solution that appears in the amendment paper is necessarily the right one. The proponents of the amendment may well be right, but the solution they put forward to deal with the legitimate problem they have identified may not be. Unquestionably, the number of Traveller sites provided by local authorities is woefully small and may well be one of the great reasons for Gypsies, Roma and Travellers trespassing.
I just want to gently put a slightly different line of thinking. Twenty-five years ago, as a Member of Parliament, I was rung by a very distressed farmer in my constituency, whose land was being trespassed on. I do not know if they were people who come within some statutory definition of Traveller, though they certainly were not Gypsies or Roma. They had a host of trucks, most of which were unlicensed. There must have been about 40 individuals—men, women and children—trespassing with these vehicles. They also had dogs, and these dogs were running wild and disturbing, damaging and, in a few cases, killing my constituent farmer’s sheep. I fully appreciate that requiring one of the conditions in this clause through the amendment to be triggered by the presence or the say-so of a police officer would provide greater certainty that something unlawful was happening. I say unlawful, because that covers the civil aspect of this as well.
Baroness Bakewell of Hardington Mandeville (LD)
My Lords, I declare my interest as a vice-president of the LGA and a member of the APPG on Gypsies, Travellers and Roma. In speaking to this important group of amendments I thank the noble Baroness, Lady Whitaker, for her powerful speech and the noble Lord, Lord Rosser, for tabling the amendments to which I put my name.
All these amendments deal with the issue of residing on land without consent. Amendment 135 states that a police officer can ask P to move only if there is a relevant caravan site within the local authority area. Last Thursday the noble Baroness, Lady Young of Old Scone, initiated a debate on the importance of having a land use strategy. In my contribution I stressed to the Minister that as part of a land use strategy, all local authorities should identify land for a Gypsy, Roma or Traveller site. Unless all local authorities, regardless of where they are, have sites identified and fully serviced for the use of the Travelling community, Part 4 of the Bill will result in huge miscarriages of justice.
This amendment is based on a JCHR recommendation and would mean that a person commits a crime of trespass only if they refuse to move when there is a space on a site within the local authority area, so sites must be available in all local authority areas. Amendment 136 requires a senior police officer to conduct consultations with relevant bodies and carry out an assessment of the personal needs of those on the land, including children. I can envisage a situation where such an assessment is not carried out, the families are evicted from their home and their vehicles seized. The adult family members would do all in their power to prevent this happening, which could result in them being classified as committing offensive conduct such as verbal abuse and threatening behaviour. That could result in them being detained in prison, with the result that their children, having been left homeless by the seizure of their vehicles, would be taken into care.
Just what problem is this part of the Bill trying to solve? As far as I can see it is creating problems on all fronts.
Amendments 137 to 142 would leave out the words
“or is likely to be caused”
in respect of the aggravation that is anticipated when the Travelling community arrives on the land. It is not sufficient to anticipate that there will be damage and disruption; it has to have occurred before any action can be taken. How do the police proceed if they believe that a burglary is about to be committed? Do they arrest the likely culprit while he or she is doing their shopping or bathing their children, and no crime has yet been committed? No; they have to wait until the actual crime is in process before acting.
This classification of the Travelling community as villains of the piece has to stop. They have become the last section of our communities that it is acceptable to vilify and discriminate against, and they are marginalised simply because they choose a different way of life to the settled community. They are bullied both as children and adults, and their way of life is not respected.
Amendments 143 and 144 remove the penalty of imprisonment. As it is, Gypsies, Roma and Travellers are already over-represented as a classification in our prisons. Why on earth would the Government wish to add to this? This is 2021; it is simply unacceptable to penalise a section of our population in this way because of their way of life and the culture they wish to follow.
Amendment 145 removes “insulting words or behaviour” from the definition of “offensive conduct”. In my experience, the Travelling community themselves are more likely to be recipients of insulting words and behaviour than to be doling them out.
In the draft guidance circulated by the Minister, under “Significant”, it says:
“distress caused by offensive conduct such as verbal abuse and threatening behaviour. This may include a level of distress which changes behaviour, rather than distress which amounts to ‘disgust’. For example, this may include behaviours which may cause fear when walking close to the encampment which prevents a person from leaving their house.”
This is complete rubbish. The Minister must think again. This is not the way in which a civilised country behaves.
I have put my name to Amendment 151. The Delegated Powers and Regulatory Reform Committee was impressed by the number of inappropriate delegations in the Bill. It was particularly concerned at those in Clause 64 concerning trespass, which it felt should be the subject of parliamentary scrutiny.
I have spoken in this Chamber before of the public meeting I chaired many years ago when looking for a transit site for Gypsies. At that meeting, it was thought appropriate for one man, a local authority councillor, to stand up and say that the only thing to do with Gypsies was to stand them up against a wall and shoot them. All people deserve to be treated with respect and have their way of life respected. All deserve to have a home in which to bring up their children and care for their elderly relatives. If this is a caravan, then so be it. It is not for me or anyone else to judge that this is unacceptable.
It is the role of local authorities to provide adequate land for housing for their current residents and to anticipate what will be needed in the future. That provision must include sites for caravans and vehicles for the Travelling communities, both permanent sites and transit sites for those passing through. This is not rocket science, as the saying goes; it is basic human rights.
I have put my name to Amendment 147, which would prevent a police officer having the power to seize a vehicle that is a person’s home. Imagine a family, living in such a vehicle, that has managed, against the odds, to get their child into the local school. The mother is expecting a second child and has managed to get an appointment at an ante-natal clinic while her child is in school. She picks her child up from school and they return to find that their home has been seized and removed. They have nowhere to go, nowhere to prepare a meal and nowhere to sleep for the night. What other section of our community would be treated in this way? My noble friend Lady Brinton has spoken passionately about this. The Minister and the Government really need to think again.
Amendment 151 would ensure that this happens and that the guidance, which is not the same as the law itself, is properly scrutinised. There are many instances when the Government issue guidance on a subject but do not actually issue a statutory instrument which would make this a legal requirement. This causes confusion and is extremely unhelpful. Given the nature and serious consequences of this part of the Bill, I support others in attempting to ensure it is removed and made fit for purpose. I look forward to the Minister’s response.
The Lord Bishop of London
My Lords, I have listened with interest to what noble Lords have said on this group of amendments, and I rise to add my support to them, particularly Amendment 149.
In 2019, the General Synod, the parliament of the Church of England, held a serious and lengthy debate on the treatment of Gypsy, Roma and Travelling communities. It noted the long and ugly history, going back at least as far as the Egyptians Act, passed by your Lordships’ predecessors in 1530, which sought to ban further immigration from Romani Gypsies and to deport resident Gypsies.
In preparation for that debate, a paper was circulated, entitled Centuries of Marginalisation; Visions of Hope. This was both sobering and a call to action. It was a challenge to the Church to do more, including providing sites and freeing up land. We have not made enough progress on the promises made at that time. In all humility, I should say that the Church, like so many other social institutions, has too often fallen short or even been complicit in the discrimination and marginalisation felt by these communities. That has been a failing on our part, and it was chastening to listen to the stories in that debate and to hear the level of abuse, discrimination and pain which has been caused. The synod’s resolution called on the
“Bishops in the House of Lords to continue to speak out boldly against legislation that seeks to further marginalise Gypsies, Irish Travellers and Roma”.
It is in that vein that I feel the need to address the Committee today, because I fear we are in danger of making the situation still worse.
It is 10 years since Michael Hargreaves and Matthew Brindley wrote in Planning for Gypsies and Travellers, a publication by the Irish Traveller movement, that
“There are no stopping places, few transit sites, no emergency sites and families on the road face constant eviction”.
The lack of permanent sites and the difficulties of getting planning permission due to local opposition, egged on by a hostile media, is the single biggest issue facing the Gypsy and Traveller communities. Not only has this not changed in the intervening decade but the Bill risks significantly exacerbating the situation.
Amendment 149 would be a small but necessary remedy to that exacerbation, returning us, as several have already noted, to a previous status quo. It would remove the current tyranny of the majority problem, which sees sites for Travellers weighed against electoral concerns. Unauthorised encampments are a consequence of inadequate authorised ones. This is not new, nor is it surprising, but it is possible to remedy—and I would urge Ministers to give serious consideration to this amendment.
Repeatedly, Ministers have told your Lordships’ House and Members in the other place that the Bill does not represent an attack on the Gypsy, Roma and Traveller way of life. Yet that sentiment is clearly not shared by many in those communities who have written to Bishops, and, I am sure, to other Members of your Lordships’ House, in advance of this Bill. It is certainly not the opinion of the Churches Network for Gypsies, Travellers and Roma, to which I would like to add my thanks, along with my friend the right reverend Prelate the Bishop of Manchester and the noble Baroness, Lady Whitaker. I hope that it is not too late for the Government to take steps to ameliorate what is presently proposed.
Baroness Lister of Burtersett (Lab)
My Lords, I will speak to Amendment 136, to which I have added my name, but I support all these amendments, which attempt to mitigate the injurious effects of Part 4 on one of the most marginalised communities in our society. I will leave to the end my more general comments relating to the clause stand part debate, and I apologise for not being able to make it to Second Reading, because I was away.
Earl Attlee (Con)
My Lords, in responding to this group of amendments, I shall make four points with varying degrees of effort.
First, I commend the work of the noble Baroness, Lady Whitaker. She is one of the few people in Parliament who is prepared to speak up for the GRT community, which she has done for many years. In this context, we should also remember the work of the late Lord Avebury. It really shows the benefit of having an appointed House, complementing an elected one. While my next point might not find favour with the noble Baroness, I hope that she, and other noble Lords, will be rather more relaxed regarding my last two.
Secondly, we keep discussing the unwillingness of local authorities to provide sufficient sites for Travellers to meet the demand. A possible concern of local authorities is that demand might be insatiable. A far bigger concern is that local authorities are answerable to their electorates. As we have discussed, there is no sector of our society more despised and feared than the Travellers. I accept that local authorities have legal obligations and that they are not adhering to them.
It may help the Committee if I describe my own lived experience, which is not unusual for people who operate in the countryside. I have a small workshop near Basingstoke where I undertake pro bono engineering work, largely in support of a museum that is a registered charity. Every single day I go there, I have to expend 30 minutes of work releasing and, later on, securing my equipment so that it is too difficult for Travellers to steal it. In the countryside, everybody has to take similar anti-Traveller precautions, which are expensive and result in significant loss of productivity.
One day, the heavy-duty padlock for my workshop container was literally ripped off the door mechanism. Fortunately for me, there was nothing of interest to them inside. It was thought that they were looking for quad bikes. Soon after, and near that location, a farmyard complex was broken into and a quad bike was stolen. At a nearby farm, Travellers broke into a 40-foot shipping container. They applied such brutal force to the lock mechanism that the container was shifted 12 inches from its original position. Fortunately, there were no quad bikes to steal. I mention quad bikes because, in August 2019, PC Andrew Harper was killed by Travellers resisting arrest for the theft of a quad bike.
It may surprise the Committee and the outside world to hear that I am not wealthy. I am the original impoverished Earl. However, in January 2012, I was able to buy the one and only new vehicle that I have ever owned. It was a Land Rover Defender and, to put it mildly, I became emotionally attached to it, as most Defender owners do. On 21 October, when I was in your Lordships’ House, that vehicle was stolen from a railway station. It is very unlikely that I will ever see it again. It was most likely in a shipping container before I left your Lordships’ House.
Obviously, I cannot claim that it was stolen by Travellers. What I can report, however, is that when Hampshire police successfully raided a Traveller site near Odiham on 25 October, they recovered about 25 vehicles, including three Land Rovers and several quad bikes. Sadly, mine was not among them. I understand that this well-planned operation required 60 police officers in order for it be undertaken safely and without risk of disorder. This would have been a force-level operation and would have taken some time for the police to plan.
The inescapable fact is that, collectively, Travellers are above the law. When the police have good reason to believe that stolen goods are located at a Traveller site, there is little they can do about it. I asked the noble and learned Lord, Lord Falconer of Thoroton, a Question on this very point on 15 October 2002. Afterwards, when we had a chat in the Prince’s Chamber, he said to me, “Not bad, not bad.”
My third point, which may be more palatable to most of the Committee, is that the provisions in the Bill are unlikely to help much, if at all. Despite the difficulties being experienced by the police, which I have already referred to, according to the Prison Reform Trust’s Bromley Briefings, 5% of the prison population identifies as being from a Gypsy, Roma or Traveller background. This is a totally disproportionate ratio that cannot be accounted for by bias, although bias probably exists to some extent. It is clear to me that a large proportion of the Traveller population is illiterate, innumerate and unable—and unwilling—to engage in exclusively legitimate economic activity. The youths convicted of killing PC Andrew Harper, I understand, fall into that category. However, I do not believe that a nomadic lifestyle cannot be legitimate. There must be plenty of things that Travellers can do to help our society.
My fourth and final point concerns solutions. How to prevent the Traveller community bringing up their children with the weaknesses and defects I have referred to is a complex social and cultural problem, and is not for me. The prison system is a different matter. According to the chief inspector’s monotonously depressing reports, all we do with prisoners of this nature is keep them in one building with extremely limited purposeful activity, fail to address their weaknesses and then wonder why we have a general reoffending rate of about 65% within 12 months of release.
Lord Berkeley (Lab)
Can I ask the noble Earl a question? It seems, from listening to his speech, he is saying that all Travellers are criminals. He did not quite say that all criminals are Travellers, but he got some way towards it. What is his solution? Is it to deport them to some offshore island, so they do not affect our way of life?
Earl Attlee (Con)
When the noble Lord looks at my speech carefully, he will see I said there is legitimate economic activity for Travellers. I accept that plenty of Travellers engage exclusively in legitimate economic activity. I decided not to tease the noble Lord and ask him who he thought was stealing all the electrical cables from the railway system.
Baroness Chakrabarti (Lab)
My Lords, the lateness of the hour and eloquence of many of the speeches tonight mean that I can be brief, but I feel compelled to say a few words in this debate. First, to the noble Earl opposite, to cite particular crimes committed by particular people of whichever community is no justification for a measure that targets all members of that community. We could all cite the statistics of people in prison. We know, for example, there is a disproportionate percentage of black and brown people in prison. Would that justify further criminalisation and demonisation of people who look more like me and less like the noble Earl? I think not.
Earl Attlee (Con)
When the noble Baroness looks at my speech in Hansard, she will see that I am arguing, as I will in relation to my Amendment 241, that we need to do something useful with people when they are in prison. The system we have does not address their needs.
Baroness Chakrabarti (Lab)
I am grateful to the noble Earl for that. Gypsy, Roma and Traveller people are a tiny percentage of our population in the United Kingdom. Undoubtedly, they are one of the most demonised minorities, not just in our nations, but historically and in Europe. We would not have a post-World War II human rights framework but for atrocities perpetrated against minorities, including Gypsy and Roma people.
It is very upsetting to look at Part 4 of the Bill. It is a disgrace. I am sorry to have to say this, but Part 4 is an inherently discriminatory piece of legislation. It is as discriminatory as previous ignominious legislation targeting east African Asians or gay people. If it passes in its present form it will be notorious. I have no doubt at all that it violates Articles 8 and 14 of the convention, at the very least, as other noble Lords have said. I praise the eloquence and perseverance of my noble friend Lady Whitaker in particular, and of many noble Lords and right reverent Prelates.
They know whereof they speak: to persecute people for their nomadic lifestyle—to criminalise the Traveller way of life—is the equivalent, I have no hesitation in saying, of criminalising people for their dress, their food or their prayers. It is a significant attack on their way of life to criminalise them for stopping in places when they have nowhere else to stop. Part 4 is that despicable. I signed one of the amendments; I could have signed any of them. This part, however, should not stand in any primary legislation in a civilised country.
This bit of the Bill is being put forward as part of a very populist and nasty culture war, to use the phrase of the noble Baroness, Lady Jones. It is very dangerous. As the honourable Member for Maidstone, who has not been in this Chamber—perhaps one day she will come—but whose name has been mentioned at many points today, said, be careful about the difference, the fine line, between being popular and being populist. We might well remember that when we consider this part on Report.
My final thought is that in a former role I once had the privilege of chairing a meeting—it was, as I recall, at the Conservative Party conference. The audience was very sceptical about the value of human rights, and the Human Rights Act in particular. It was, potentially, a tricky meeting. I chaired a speaker who was addressing concerns in the audience about prisoners having human rights. Again, that is not a popular group in our society—prisoners and human rights is a bad cocktail. He was saying that prisoners have human rights and that some of them even thought that they had a right to a flushing toilet. What a disgrace that was—the audience was very upset and wanted to scrap the Human Rights Act, as some people still do. This eloquent and learned speaker said that it was very simple to deal with the problem: just fix the loo.
Fix the loo—do not demonise the prisoner, do not scrap the Human Rights Act, just fix the problem that is giving rise to the concern. In this case the fix would be to give people stopping places and the support that they need. The criminal law will deal with burglary and with people using their dogs to terrorise people, and will protect the innocent farmer. I wonder whether the eloquent speaker and passionate defender of the Human Rights Act who spoke at that meeting will remember the occasion, as I always have. He was, of course, the noble and learned Lord, Lord Garnier.
Lord Garnier (Con)
I remember that remark very well, and I adhere to everything that I said then. I hope that the noble Baroness is not setting up an Aunt Sally. The speech that I gave a moment ago did not criticise the proponents of these amendments. It criticised much of the content of Part 4 of the Bill. All I asked was that in seeking to provide a solution for one group of people we did not create a problem for another group.
Baroness Chakrabarti (Lab)
I am grateful to the noble and learned Lord, Lord Garnier, for that. There is ample criminal law and ample tort law for nuisance. There are ample laws to protect people from burglary, nuisance and so on. This measure, however, is targeted. The euphemism is so thin: “without permission, with vehicles”. I wonder who we are talking about there. The euphemism makes this racial discrimination even more obscene.
Lord Paddick (LD)
My Lords, we strongly support all these amendments. As the noble Baroness, Lady Whitaker, and my noble friend Lady Bakewell of Hardington Mandeville said, the crucial point here is that if legal sites were provided it is unlikely that these provisions would even be in the Bill. Having adequate sites is likely to be cheaper than the cost of taking legal action against those who have no option other than to trespass. As the right reverend Prelate the Bishop of London and the noble Baroness, Lady Lister of Burtersett, said, the Bill’s provisions, whether by accident or design, will very clearly disproportionately impact an already vulnerable minority: the Roma, Gypsy and Traveller communities. What would happen if the Government and local authorities made it a criminal offence for motorists to park their cars illegally and then did not provide enough spaces for motorists to park legally? There would be uproar.
My noble friends Lady Brinton and Lady Bakewell told the Committee from their extensive experience about hostility towards Gypsy, Roma and Traveller communities. I have to say to the noble Earl, Lord Attlee, that when he reads back what he said in Hansard it will be open to interpretation that, for every crime he described where he could not say who the perpetrator was, he implied that all those crimes were committed by Travellers, without any evidence that they were responsible for those particular crimes. That is why there is so much hostility towards these communities because speeches such as that can be misinterpreted as, “The noble Earl is saying that those communities are responsible for all these crimes, even the ones where we do not know who committed them.”
Earl Attlee (Con)
The only difficulty, of course, is that it is the countryside police offer who tells the victims that it was the Travellers.
Lord Paddick (LD)
My Lords, the noble Earl is far more responsible than a police officer because I can take him to police officers in London who will say that all crimes in London are committed by black people.
My noble friend Lady Brinton also reminded the Committee that there are existing laws to deal with these situations. That goes to the point that the noble and learned Lord, Lord Garnier, raised. The National Police Chiefs’ Council has said that existing laws are adequate. The police say that more laws are not needed for this sort of offence. If the police are saying that, why are the Government bringing forward this legislation?
Rather than go through all these amendments, all I will say is that I agree with what my noble friends and other noble Lords have said. Part 4 should be removed from the Bill in its entirety because existing legislation is more than adequate.
Lord Rosser (Lab)
I congratulate my noble friend Lady Whitaker on her powerful and persuasive speech introducing her amendments and opening this debate, as we expected it would be. As the noble Earl, Lord Attlee, said, my noble friend has been a determined campaigner on behalf of the Gypsy and Traveller communities.
As has been said, Part 4 relates to unauthorised encampments, which it criminalises, creating an offence if someone resides or intends to reside on land without consent in or with a vehicle. The Bill also gives landowners a role in criminalising a person who is trespassing, strengthens police powers to deal with unauthorised encampments, prohibits a person re-entering land without a reasonable excuse within 12 months and gives the police the right to seize property, including people’s caravans, which could be a family’s primary residence. The Bill also amends police powers associated with unauthorised encampments in the Criminal Justice and Public Order Act to lower the threshold at which they can be used, allow the police to remove unauthorised encampments on or partly on highways and prohibit unauthorised encampments that are moved from a site returning within 12 months.
Lord Young of Norwood Green (Lab)
My Lords, I was waiting to hear this amendment being moved, which is why I have waited to make my contribution. If you had asked the community where I live—it is not a rural community, although we have a village green—what they thought of Travellers roughly five years ago, there would have been a fairly non-committal response. However, after an incident in which a significant number of vans were parked on the green, and large amounts of rubbish were collected and deposited on it, the attitude changed significantly. As a result of that, we had to build bunds or mounds to stop them coming on the village green. It did change people’s attitudes.
Let me make clear where I come from on this issue. I used to be a member of the All-Party Parliamentary Group on Gypsies, Travellers and Roma. I no longer am, because my point of policy difference with it was that, when illegal acts are committed by Travellers, they are not prepared to condemn them and say “Not in our name”, which to me was an important aspect. Of course, I am against discrimination towards Gypsies, Roma and Travellers. It is a small minority who commit significant offences; let me make that clear. With all due respect to the noble Earl, he was too sweeping in some of his statements; I do not associate myself with that. However, to pretend that there are not problems, even on official sites, is to deny serious reported incidents, including things such as modern slavery. Serious activities take place and we cannot just turn a blind eye to them.
Baroness Chakrabarti (Lab)
Will my noble friend give way? He has just come to a very important part of his remarks. Every community is capable of committing crime, and therefore we have criminal and civil laws that apply to all communities rather than specific measures targeted in a discriminatory fashion.
Lord Young of Norwood Green (Lab)
I thank the noble Baroness, but I think I made it clear in my contribution that I do not believe the Government’s proposals are right or necessary. Do not find a difference with me on those grounds, because it is not what I am suggesting.
If we really want to find a solution to these problems—I think one of the right reverend Prelates made a point about discrimination in education—lots of schools take real pride and make an effort in accommodating Gypsy, Roma and Traveller children. They are the examples of best practice which the Government should encourage. It is not true to say that all Gypsy, Roma and Travellers are illiterate and innumerate—far from it. In fact, one person I met who impressed me was a young woman from a Traveller family who had taken herself through university and become a teacher and an absolute credit to her community. We should beware of sweeping generalisations. They do not help us in these circumstances.
I am aware of the lateness of the hour, but I wanted to make this contribution. I like to think that my activities in support of the Gypsy, Roma and Traveller group will not cause me to be labelled as unfairly prejudiced or discriminatory. Ever since I was capable of doing it, I have fought all my life against any form of discrimination, whether it is anti-Semitism, racism or discrimination against Gypsy, Roma and Traveller groups.
My plea to the Minister when she gets to her feet is to take into account the fact that there are some genuine concerns from a number of us about the nature of the government proposals and whether they will help the situation and are necessary—or whether the existing laws are such. I also do not believe that the nature of the amendments, if I take that of my noble friend Lord Rosser as an example, is a solution to the problem. That is why I suggest that, before we reach Report, the Minister convene a meeting, which might enable us to find a bit more common ground than appears to exist in the Chamber at the moment.
Baroness Williams of Trafford (Con)
My Lords, I thank all noble Lords who have spoken in this debate on Clauses 62 and 64. I am grateful to have had discussions with the noble Baroness, Lady Whitaker, and am happy to have further discussions with the noble Lord, Lord Young of Norwood Green, before Report.
These clauses deliver on a clear manifesto commitment to tackle unauthorised encampments. It is worth quoting directly from the Conservative manifesto, as the commitment was in explicit terms. The manifesto said:
“We will give the police new powers to arrest and seize the property and vehicles of trespassers who set up unauthorised encampments, in order to protect our communities. We will make intentional trespass a criminal offence”.
The noble Baroness, Lady Lister, and others have challenged me to say, if I was not talking just about the Gypsy, Roma and Traveller community, who I was talking about. It is anyone who sets up camp on unauthorised land and causes significant damage, disruption or distress. My noble and learned friend Lord Garnier gave us an example, and he was not even sure who the individuals were. When I go on holiday to Cornwall, I see examples of unauthorised encampments, and I do not know who the individuals are. It is a wider problem than just Gypsy, Roma and Travelling communities.
We have brought forward the measures in Part 4 because we understand the challenges many locations across the country face when individuals cause significant damage, disruption or distress to communities, businesses, and landowners. The financial cost of cleaning up sites and repairing damage can also be significant. It is not a sound assumption to say that landowners will have sufficient resources to be able to clean up after some of the damage that is caused to their land. The measures are a proportionate means of protecting the rights of communities. While we must ensure fair and equal treatment for Travellers, and recognise that the majority are law-abiding, as the noble Lord, Lord Young of Norwood Green, said, we are equally clear that we will not tolerate law-breaking and we are determined to ensure that the police have the powers they need to support and serve their communities. That is why we are introducing this new criminal offence as a proportionate means of protecting the rights of communities.
It is very important to recognise that the threshold for the new offence is high. The act of taking a vehicle on to someone else’s land without their permission is not in and of itself criminalised by this clause, nor is an “unauthorised encampment” in itself an offence. There are several conditions to the offence, all of which must be satisfied for someone to be found guilty of the offence. Most importantly, the offence requires conduct or residence that causes, or is likely to cause, significant damage, disruption or distress. I would hope that no one in your Lordships’ House would condone such conduct.
I move now to the amendments. The three government amendments in this group, Amendments 134, 146 and 148, are simply clarificatory in nature so I do not propose to say more on them at this stage.
Amendment 133 in the name of the noble Baroness, Lady Whitaker, would have the effect that no criminal offence is committed unless the police make the request to the trespasser to leave. This would remove the ability of a landowner to trigger the offence by requesting that trespassers leave their land, and would slow the enforcement process down, while using more police resource.
As I have said, the new offence targets only those who cause significant damage, disruption or distress and who do not leave when asked to do so. It is right that on those occasions where significant harms have taken place, enforcement action should be taken to protect citizens and businesses. This amendment would remove the ability for police to act more quickly where they need to in response to unauthorised encampments causing significant harm, disruption or distress.
Noble Lords have raised concerns that this means that those on unauthorised encampments could be criminalised simply because the landowner does not want them there or because they hold prejudiced views towards people. This is simply not the case. The police will need to continue to collect evidence to form reasonable grounds for suspecting that the offence has been committed, and the offence will apply only where specific conditions have been met. In addition, we expect that the police will continue to have regard to their duties under the Human Rights Act 1998 and to their duty to safeguard the vulnerable before and when taking enforcement decisions.
A few noble Lords referred to the word “significant”, specifically the noble Baroness, Lady Brinton. It is widely used in legislation, and examples are set out in the draft statutory guidance. This type of qualifying term is used for other offences without government guidance; for example, the Public Order Act 1986 refers to
“serious disruption to the life of the community”,
and Section 14A of that Act, on prohibiting trespassing assemblies, refers to “significant damage”.
On the Human Rights Act, the Government believe that the measures are compliant with the ECHR and the Equality Act 2010. We respect the rights of the Traveller community to follow a nomadic way of life, in line with their cultural heritage. Enforcement action will not be based on race or ethnicity. Anyone who causes significant harm, disruption or distress and does not leave when asked to do so will commit the offence.
Amendment 135 in the name of the noble Lord, Lord Rosser, seeks to provide that the offence is committed only when a suitable site has been offered. There is no justification for causing significant harm, disruption or distress—the lack of availability of a pitch on an authorised site cannot be an excuse for such conduct. As I have said, the fact of the unauthorised encampment is not in itself an offence. If significant harms are being caused, it is only right that the police have powers to tackle those harms, and that those harms should incur enforcement action in the way that any other criminal behaviour would.
Amendment 136 in the name of the noble Baroness, Lady Bakewell of Hardington Mandeville—I know she has had to leave, or else she will not get her last train home—would require a senior police officer to conduct a welfare assessment before considering if enforcement action is proportionate. I can assure the Committee that, in making decisions around the seizure of property, the police will need to take into account welfare considerations and vulnerabilities, and, where possible, should liaise with local authorities regarding suitable accommodation, just as they currently do.
Therefore, we do not think that this amendment is necessary. The police already give full consideration to their responsibilities under their public sector equality duty, and to the potential impact that issuing a direction to leave, or utilising powers of arrest and seizure, may have on the families involved, before they reach a decision on taking enforcement action. Each case will be dealt with on its own merit and according to the evidence.
Baroness Lister of Burtersett (Lab)
I am sorry to interrupt. Perhaps at this point the Minister could say what is meant by not gold-plating these considerations, because it gives the impression that, ultimately, they can be put to one side.
Baroness Williams of Trafford (Con)
I thank the noble Baroness for that. The “gold-plate” quotation has been mentioned twice tonight, and I must confess that it was novel to me. I suspect that the answer is that, within anything such as the Equality Act or the Human Rights Act, there is interpretation—you could abide by every single aspect of it, or not. But I will write to the noble Baroness, because I think the Committee requires clarification on just what it means. It is too late to guess at this time of the night, so I will write to her.
Amendments 137 to 142, again in the name of the noble Lord, Lord Rosser, would remove the “likely to cause” condition of the offence. We think this is an important element of the offence because provision that the offence can be caused if significant damage, disruption or distress is likely to be caused enables the police to intervene where people are suspected of repeatedly causing significant harms. This is particularly relevant in cases where those who cause damage move a short distance away, only to enter other land and cause more damage. It is only right that the police can intervene quickly in these cases of suspected serial criminal behaviour.
I point out that an offence based on likelihood of harm occurring or similar is not unique to these provisions, nor is it a novel requirement in criminal law. As for other offences, the factual circumstances and evidence of each case will determine whether a “significant” level of damage, disruption or distress has been caused or is likely to be caused, and this will be for the police—and ultimately, of course, the courts—to determine.
Amendments 143 and 144, in the name of the noble Baroness, Lady Bennett of Manor Castle, would limit the maximum penalty for the offence to a fine of up to £2,500. We think that, given the nature of the conduct covered by this offence, it should be open to the courts to impose a custodial sentence of up to three months. Of course, it will be for the courts to decide the appropriate penalty in each individual case.
The noble Baroness, Lady Massey of Darwen, tabled Amendment 145, which would seek to remove “insulting words or behaviour” from the definition of offensive conduct. As we indicated in our response to the JCHR, we believe that landowners should be protected from being insulted on their land, and the provision in Clause 62 mirrors that in the 1994 Act. It is only right that there is consistency within the law.
I turn now to Amendment 147, which would remove the vehicle seizure power from the offence. Seizure powers are already conferred on the police in relation to a person’s failure to comply with a police direction to leave land under the trespass provisions in the Criminal Justice and Public Order Act 1994. It is right that police should have an equivalent power in the context of the new criminal offence where the level of harm is significant for the offence to be committed before police would consider using, and are able to use, seizure powers. If people do not commit significant harms, or leave when asked, they will not be caught by the offence and will not risk having their vehicle seized. Without the power to seize vehicles, enforcement action is likely to be hindered, and the harms can continue while people and vehicles remain on the land.
Police decisions to seize vehicles should continue to be taken in consultation with the local authority, where appropriate. As is the case for existing provisions, the local authority would need, where possible, to offer assurance that they have relevant measures in place to meet any welfare and safeguarding needs of those affected by the loss of their accommodation, particularly the vulnerable, before police take enforcement action.
We expect police will continue to undertake any enforcement action in compliance with their equality and human rights obligations and will continue to consider harm to local amenities, the local environment and the rights of nearby residents.
Where a decision is made not to charge the person, the police must return the property as soon as is practicable. If at any time a person other than the suspect satisfies the police that property that is retained belongs to the person at that time, and belonged to them at the time of the suspected offence, then the police must return the property to the person.
Amendment 149 seeks to reintroduce a statutory duty on local authorities to provide sites for Gypsies, Roma and Travellers. The Government’s aim is to increase the provision of Traveller sites in appropriate locations and to maintain an appropriate level of supply. The planning system, taken as a whole, is capable of meeting the needs of the Traveller community. It places sufficient requirements on local authorities for what they must do to provide sites.
As the noble Lord, Lord Rosser said, a duty to provide sites was introduced in 1968. As more sites were needed, the basis on which the duty was introduced changed. Like the rest of the population, most Travellers aspired to own their own home and to live on a private, rather than a public, site. In recognition of this, planning policy seeks to promote more private site provision, while recognising that not all Travellers can afford their own site. Local authorities and social housing providers are able to bid through the £11.5 billion affordable homes programme 2021-26 for the funding of new sites.
The noble Baroness, Lady Lister, asked when the GRT strategy was due. I understand that the Department for Levelling Up, Housing and Communities—now affectionately known as DLUHC—is working closely with other government departments to progress the strategy, which will be published in due course. I know the noble Baroness is going to roll her eyes at that because she does not like that term “in due course”. We remain firmly committed to its delivery.
The noble Baroness, Lady Whitaker, brought up the numbers. The Traveller caravan count is a count of caravans, rather than sites. None the less, it should be recognised that, in January 2020, there were 6,506 Traveller caravans on sites provided by local authorities and private registered providers in England. This was an increase of 10% on the 1994 Traveller caravan count. As of January 2020, the number of authorised transit pitches had increased by more than 40% since January 2010.
Finally, Amendment 151 seeks to provide that the guidance to be introduced under Clause 64 should be subject to the negative procedure, as recommended by the Delegated Powers Committee. We are carefully considering all the Delegated Powers Committee’s recommendations. We will respond to its report ahead of the next stage. In coming to a final view on its recommendation in relation to Clause 64, we want to take into account the Government’s broad approach to parliamentary scrutiny of statutory guidance such as this. In a letter to the DPRRC in October 2018, my noble friend the Lord Privy Seal said:
“There is a vast range of statutory guidance issued each year and it is important that guidance can be updated rapidly to keep pace with events. There is nothing to prevent Parliament from scrutinising guidance at any time. I certain exceptional circumstances it may be appropriate for guidance to be laid before Parliament or be subject to the negative procedure.”
It is our firm belief that the new offence provided for in Clause 62 is appropriately framed. It targets significant harms, not simply the act of residing in a vehicle on land without permission. As I have said, the new offence delivers on a clear manifesto commitment to strengthen the protection to communities from unauthorised encampments. I apologise to noble Lords for that quite lengthy explanation. I hope that the noble Baroness, Lady Whitaker, will withdraw her amendment.
Lord Rosser (Lab)
From the Minister’s reply on behalf of the Government, I rather inferred that the Government were confirming that the police can seize a vehicle, even if it is a family home and leaves people homeless. I should like the Minister to confirm that this can happen under the terms of this Bill.
Baroness Williams of Trafford (Con)
I am just looking for my wording now. I think that what I said to the noble Lord in reply is that the police should take into account welfare considerations where possible and should liaise with local authorities regarding suitable accommodation, just as they currently do. They should give full consideration to their responsibilities under the public sector equality duty, as well as to the potential impact that issuing a direction to leave, or utilising powers of arrest and seizure, may have on the families involved before reaching a decision on taking enforcement action. If I could just complete my last sentence, obviously each case should be considered on its own merits.
Lord Rosser (Lab)
I hope the Minister will forgive me for saying this but that is a lot of words. I read into it that, under the terms of the Bill, despite all those words, the police can seize a vehicle even if it is a family home and results in homelessness, because nowhere did the Minister say that they cannot do so.
Baroness Williams of Trafford (Con)
The noble Lord is correct, but the police would have to take into account the various factors that I set out. Obviously, each case is different.
Baroness Whitaker (Lab)
I am grateful for the Minister’s attempts to sanitise Part 4, although I did not quite understand her explanation of the Home Secretary’s misleading remarks.
The hour is late. It would not be right for me now to take issue with every point the Minister made, although I would like to. She will have noticed the widespread concern evidenced in many thoughtful speeches about the import of Part 4. I would not say that those concerns have been assuaged by her response. She will also have noticed that stereotyping is still with us, here and there.
However, I am grateful to the noble and learned Lord, Lord Garnier, for his appreciation of the general problem, although I do think that his one anecdotal example could be dealt with perfectly well by the present police powers. However, his suggestion that Clause 62 could attract a compromise in relation to site provision encouraged me to hope that the Minister will discuss a better solution before Report.
On that basis, I beg leave to withdraw the amendment.
Member’s explanatory statement
This amendment clarifies that the power under section 60C(1)(d) of the Criminal Justice and Public Order Act 1994 is a power to require a person to leave the land in question, to remove property from the land or to do both.
Member’s explanatory statement
This amendment clarifies that the powers of seizure in section 60D(1) of the Criminal Justice and Public Order Act 1994 apply to property that belongs to a person suspected of an offence under section 60C of that Act, is in their possession or is under their control.
Member’s explanatory statement
This amendment expands the definition of when proceedings are commenced for the purposes of section 60D(6) of the Criminal Justice and Public Order Act 1994 to cover when a person is charged under any provision of Part 4 of the Police and Criminal Evidence Act 1984.
Police, Crime, Sentencing and Courts Bill
Monday 8th November 2021
(2 years, 6 months ago)
Lords ChamberRead Full debate Police, Crime, Sentencing and Courts Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 40-VII Seventh marshalled list for Committee - (8 Nov 2021)
Lord Garnier
“(11A) After section 68(3) insert—“(3A) In proceedings for an offence under this section it is a defence for the accused to show—(a) that they were not trespassing on the land, or(b) that the activity in response to which the aggravated trespass was committed was unlawful activity.””
Lord Garnier (Con)
My Lords, I am grateful to my noble friend Lord Shrewsbury and to the noble Baroness, Lady Bakewell of Hardington Mandeville, for signing my Amendment 150 to Clause 63. Unfortunately, he is unable to be here today because of an unforeseen medical appointment, but has read my speech in draft and has told me that he agrees with it. Whether it comes out as I wrote it is entirely a different matter. In any event, it comes with the usual caveat—the mistakes are mine; the support is his, and I am grateful for it.
The amendment is simple and straightforward. There is no reason in principle or justice why it should not be accepted. That said, I am not so naive as to think that, just because I am arguing for it, it is perfectly drafted or that the Government or the majority of the Committee will agree with me. I will not press it to a Division, but I shall listen carefully to what my noble friend the Minister says in response before deciding whether and how to take the matter forward beyond Committee.
Clause 63 of the Bill amends Section 68 of the Criminal Justice and Public Order Act 1994. I have nothing to say about the policy behind Clause 63 but, since it is there, as I indicated at Second Reading, it gives me an opportunity to right a wrong contained in Section 68 of the 1994 Act. That section defines the offence of aggravated trespass. In so far as it is relevant to my amendment, it provides, first, that:
“A person commits the offence of aggravated trespass if he trespasses on land and, in relation to any lawful activity which persons are engaging in or are about to engage in on that or adjoining land, does there anything which is intended by him to have the effect—
(a) of intimidating those persons or any of them so as to deter them or any of them from engaging in that activity,
(b) of obstructing that activity, or
(c) of disrupting that activity.”
Section 68(2) says that:
“Activity on any occasion on the part of a person or persons on land is ‘lawful’ for the purposes of this section if he or they may engage in the activity on the land on that occasion without committing an offence or trespassing on the land.”
Viscount Hailsham (Con)
Can my noble and learned friend clarify the standard of proof? I assume that it is the civil standard for the accused person, namely the balance of probabilities. Would it be wise to include that in the Bill?
Lord Garnier (Con)
Many things could be added to the Bill and many could be taken away but the general thrust of the law, as my noble friend well understands, being a barrister of considerable experience, is that where a burden is placed upon a defendant in a criminal matter, it is set to the civil standard of proof.
Baroness Brinton (LD) [V]
My Lords, I am grateful to the noble and learned Lord, Lord Garnier, for explaining his amendment in such helpful detail. However, my focus is on suggesting that Clause 63 should not stand part of the Bill. The principal reason—much of which we debated the other day, so I will not go into it in great detail—is the effect on the Gypsy, Roma and Traveller community. It is particularly about the use of the vague and expansive provisions of significant “disruption” and “distress”. “Damage” may be easier to define, but there are perhaps some issues about that as well.
Clearly, a range of provisions is already on the statute book which criminalise committing criminal damage. Section 1 of the Criminal Damage Act 1971 allows courts to grant injunctions against people engaging in antisocial behaviour—I could go on. The real concern is that this is clearly targeted at the Gypsy and Traveller community. To repeat a point that I made the other day, the definition of “significant” is not clear in the Bill. The Supreme Court recently characterised “significant” as follows:
“like the skin of a chameleon, the adjective takes a different colour so as to suit a different context.”
However, “disruption” itself has also been controversial in the context of public order legislation and is hugely open to interpretation. Part 4 directs authorities to focus exclusively on disruption caused by roadside camps, rather than inviting this to be balanced against the relative disruption caused by evicting Gypsy and Traveller families, to ensure that the response is proportionate.
“Distress” is also a broad and highly subjective category. The National Police Chiefs’ Council asked, in its evidence to the Joint Committee on Human Rights,
“whose distress? Is it the landowner’s? Is it a perception?”
This nebulous term may, in this context, also be informed by stereotypes and prejudices against Gypsy, Roma and Traveller communities. We heard noble Lords last week making assumptions about the distress that the presence of camps alone may cause—of having an encampment nearby—and that this was also the source of crimes. Most noble Lords who said this also said that they could not prove it, but certainly among the community there is considerable distress already.
As I said, there are existing powers to address this. Section 61 of the Criminal Justice and Public Order Act 1994 gives the police the power to remove people from land where the landowner or occupier takes reasonable steps, and Section 62A allows the police to direct trespassers to remove themselves and their vehicles and property from land where a suitable pitch or relevant caravan site is available within the same local area. This is particularly important in terms of the data that we heard about the other day—that there are fewer authorised encampments available. There are more unofficial ones, but it is a real problem for people travelling from one area to another and intending to carry out their lawful business if they cannot find somewhere to go. The difficulty with Clause 63 is that it heaps further problems upon them but uses terms which are not well defined and are utterly nebulous, and which put this community at further risk of having their way of life criminalised.
Baroness Chakrabarti (Lab)
My Lords, there is so much to get through. First, I disagree with the noble and learned Lord, Lord Garnier; secondly, I agree with the noble Baroness, Lady Brinton, about the clause not standing part.
The noble and learned Lord, Lord Garnier, has partly pre-empted my concern regarding his Amendment 150. Some of us in this Committee and more generally in your Lordships’ House have an allergy to reverse burdens in the criminal law because they generally go against the golden thread of English justice: that it is for the prosecution to prove its case beyond reasonable doubt and not for defendants to prove their innocence. That is a general principle which some of us hold dear. The noble and learned Lord, Lord Garnier, is quite right that over many years that principle has been eroded.
He referred to a number of regulatory offences, which I take to be offences in a confined area of privilege. Regulatory offences are appropriate for activities that might even be licensed, such as driving a vehicle or practising medicine. Regulatory offences are not the right analogy to make with just going about your life, including as a citizen who seeks to protest against issues such as GM foods or climate catastrophe. Therefore, his analogy seems quite wrongheaded. From a human rights perspective, he is aggravating the pre-existing damage of the problematic offence of aggravated trespass.
Trespass and nuisance ought generally to be a civil matter. Trespass is usually dealt with and resolved between reasonable citizens without recourse to law. I believe in civil legal aid if necessary, even though it has been all but obliterated in this country, but neighbour disputes generally ought to be a matter between me and my neighbour, not a matter for the criminal law, unless what my neighbour is doing to me crosses a line that offends all in society. I have a general problem with criminalising the civil law, but worse than that, in the context of aggravated trespass—aggravated by the intervention of the noble and learned Lord, Lord Garnier—certain types of trespass are singled out for criminal treatment, are they not? It is not the trespass of my neighbour who is polluting my land or building on my land, cutting over the margins of the boundary for reasons of profit or greed. It is the trespass of my neighbour who comes on to my land to protest and obstruct—for example, an environmental protestor—because in doing damage to my land I am damaging the environment. Therefore, with respect, the noble and learned Lord, Lord Garnier, is once more prosecuting a culture war in which people he may or may not disagree with are being treated worse in relation to their freedom of expression or, potentially, their property rights, than those who choose to pollute the land, for example. In my view, that is a mistake.
Finally on Amendment 150—again, to be fair, this has been pre-empted by the noble and learned Lord—subsection (a), on the reverse burden defence, suggests that in the offence of aggravated trespass, it is for the defendant to prove that they were not trespassing. That is astonishing: it is like saying that in my defence for assault, I must demonstrate to the civil standard that it was not me who assaulted my noble friend—who was sitting there quite innocently until I metaphorically assaulted him.
That is really quite rich indeed, and shows the underlying thinking here: some people, whose opinions are clearly not considered worthy by some Members of this Committee, are to be guilty until proven innocent, and they seem, in this context, to be demonstrators. In the broader context, in this Part of the Bill, the guilty ones are of course Travellers—as a job lot. This was put so well by the noble Baroness, Lady Brinton, and I will not repeat her reasons, save to say that there is something so inherently unattractive about discriminating against a particular group. We have seen it in many societies, including in our own over so many years. I thought we were in a better place than this.
If people are committing burglaries, let them be prosecuted for burglary. If people are perpetrating nuisances, let them be dealt with like anyone else; there are burglaries in urban and rural areas and there are nuisances everywhere. Let everyone be dealt with equally. Please do not single out one of the most vulnerable minorities, in size, economic power and everything else; do not single out a particular community for less favourable, targeted and demonising treatment. That is essentially why I do not think that Clause 63 should stand part of the Bill.
Viscount Hailsham (Con)
My Lords, may I just intervene very briefly? I agree with the noble Baroness when she says that, in general, trespass should be a civil remedy. I am absolutely clear that she is right about that, but it is important to keep in mind that securing a civil remedy is not a rapid process: it really takes quite a long time to get the required order from a court. I represented a rural constituency for more than 30 years, and I know that the kind of trespass to which my noble and learned friend is addressing his amendment, which is encompassed in Clause 63, causes an immense amount of distress to the rural community. There is a very special reason to abrogate the general rule, which does of course make the civil remedy the appropriate one for trespass. I commend this provision to the Committee, subject to the amendment, on which my noble and learned friend is entirely right.
Baroness Bakewell of Hardington Mandeville (LD)
My Lords, I apologise to the Minister that I had to leave before the end of the debate on Wednesday due to the fear that I would not be able to get home.
I congratulate the noble and learned Lord, Lord Garnier, on this amendment, to which I have added my name. The noble and learned Lord set out his case very clearly: aggravated trespass interfering with farming activities should not be tolerated. Cutting hay versus planting GMO are some of the examples he gave. I am personally against GMO crops, but I would not support trespassers attempting to prevent this happening. There are other avenues for expressing views about the activity taking place. The freedom to express a view should not take the form of an illegal activity or aggravated trespass.
The noble and learned Lord, Lord Garnier, gives very powerful arguments, especially in relation to war crimes. There are others in this Chamber this afternoon far more knowledgeable on these legal aspects than me, including the noble Baroness, Lady Chakrabarti. I listened very carefully to the speech given on Wednesday evening by the noble and learned Lord, Lord Garnier, and have sympathy for the scenario he painted. It is right that the plight of landowners and farmers should be considered as part of the issues surrounding Part 4 of the Police, Crime, Sentencing and Courts Bill.
I also support my noble friend Lady Brinton in her comments on whether Clause 63 should stand part of the Bill. For a great number of years, Gypsy, Roma and Travellers have been stopping in what they consider to be their traditional resting places. They have done this often with the consent of the relevant landowner or farmer, and there has been little, if any, aggravation with local communities. They have sometimes stopped on common land, again with little impact. Over the years, landowners have changed, farmers have retired, and new tenants have come in. Attitudes have changed and what was once tolerated is no longer acceptable.
With no provision for smaller family groups in their habitual stopping places, encampments have sprung up in some unsuitable places, where farmers fear their stock and property may be at risk. Sometimes gates have been left open and stock escaped, to be rounded up later. Both these examples, and the more serious one that the noble and learned Lord, Lord Garnier, spoke about, are dealt with in this Part of the Bill. All this is inconvenient and there will often be rubbish to clear up after the Travellers have left. This is an inconvenience to the owner or tenant of the land, but is it really to be classified as a criminal offence?
If local authorities were to fulfil their obligations to provide sites for the Travelling community, both permanent and transit, the police, landowners and farmers would be able to direct the Travellers to these sites. Providing housing and accommodation is a legal requirement of local authorities, as is to plan for future numbers. It therefore follows that planning for Gypsy, Traveller and Roma sites should be part of this. The Minister, the noble Lord, Lord Greenhalgh, has reiterated several times that the Government are encouraging local authorities to do this. Just what does he mean by “encouraging”? It is a bit like the interpretation of “significant” in terms of causing nuisance and distress. Just how persistent are the Government in their encouraging?
Trespass has to be proved, and, certainly, aggravated trespass has to be proved to be an unlawful activity, but is it for the perpetrator to prove that they have done aggravated trespass? Either they were not trespassing on the land or they were committing aggravated trespass. Why has that got to be proved by the perpetrator? If the aggravated trespass has occurred, it is right that this should be dealt with properly. However, it is important that the causes relating to a classification of aggravated trespass have to be of a very serious nature and not just idiotic phrases such as “fear of walking close to an encampment” or “smoke from bonfires”.
As we debated during the Environment Bill, fly-tipping is a significant scourge for the landowner and farmer to have to clear up. For this to be a criminal offence against the Travelling community, it has to be “excessive”. It is often the case that the Travelling community will be blamed for crimes that have been committed without any evidence. On Wednesday, when a noble Lord said that he believed that damage and theft by Gypsies and Travellers had occurred, no evidence was provided to support this allegation. We were left to assume that there was a site for Travellers on the doorstep. Similarly, aggravated trespass is serious and must be proved in order for eviction to take place.
On Wednesday, the Travelling community were classed as being illiterate, innumerate, and unwilling to engage in economic activity. This is not the case. The Travelling community do wish their children to receive an education, but in order for this to happen, they need sites on which to reside so that their children can be admitted to school and learn to read, write and have numeracy skills. I have been on a Gypsy site and talked to the elders about the provision of sites. When one elderly Gypsy was required to read a document, he asked his son to do it for him, claiming that his eyesight was poor. I suspect he felt ashamed that he could not read but, like others in all communities, he sought to hide the fact. Lack of literacy is not confined to the Travelling community.
In her response on Wednesday evening, the Minister quoted the Conservative manifesto in relation to making intentional trespass a criminal offence. There will be a great deal in any Government’s manifesto that, for one reason or another, does not make it on to the statute. That same manifesto made a commitment to introduce an animal sentience Bill. That Bill has been duly introduced and had its Committee stage but, like this Bill and Part 4 before us today, it was very poorly drafted. The animal sentience Bill received a very rough passage during Committee, the majority of the criticism coming from the Government’s own Benches. There is no sign of it ever reaching Report stage and I suspect it will be quietly shelved. Hopefully, this section of the Police, Crime, Sentencing and Courts Bill will also be either radically altered or shelved.
Arguments against the provision of sites are that it will attract Gypsies and Travellers into the area where the site exists and that the local authority will be overwhelmed. This is nonsense. On Wednesday, we heard that 694 Gypsies and Roma are actually travelling, requiring transit pitches. This is a problem that could be solved by enforcing local authorities’ obligations to provide for this section of the community. Aggravated trespass is not a solution for anything.
Baroness Whitaker (Lab)
My Lords, I wonder whether the interesting amendment from the noble and learned Lord, Lord Garnier, might not have some unintended consequences that I, personally, would find very welcome. What if the “unlawful activity” included acts contrary to the Human Rights Act and the Equality Act? What if the landlord was trying to turf out Gypsies and Travellers who had no other home to go to? I believe that he will no doubt have an answer to that question.
More generally, on Clause 63—and I agree wholeheartedly with what the noble Baroness, Lady Bakewell of Hardington Mandeville, said—the openness of the terms, so eloquently laid out by the noble Baroness, Lady Brinton, amount to a tremendous allowance for prejudice. We should be in no doubt that this is very common. The hate crime reporting organisation, GATE Herts, funded by the then MHCLG, has ample evidence of explicitly Nazi sentiments being used whenever a Traveller or Gypsy community wanted to move on to a site. Stereotyping is the norm in these records. We heard examples in your Lordships’ House last week of whole communities being tarred by one incident. It is the same as somebody saying that white people should be barred from walking on the street at night because of a few incidents of night-time vandalism; it is that kind of remark, and it is prejudice. If such a remark urges violent action—the removal of Gypsies and Travellers—surely it is illegal.
Following the Minister’s remarks last Wednesday on police guidance in this kind of situation, she expressed some surprise at the use of the term “gold-plated”. Is “gold-plated” not a dog-whistle call to opponents of human rights? Most of us are proud of the Human Rights Act 1998, and how it reinforced our position as a leader in establishing a human rights culture after the Second World War. Be that as it may, the Human Rights Act, and behind it the European Convention on Human Rights, is our law—either one complies with the law or not. Gold-plating of human rights is not a term understood in law, and its implications, in this context, are to diminish any putative offence against the Human Rights Act. I think that Clause 63 is not helpful and should go.
Lord Paddick (LD)
My Lords, Clause 63 amends Section 61 of the Criminal Justice and Public Order Act 1994. Section 61 addresses the situation that the noble and learned Lord, Lord Garnier, alluded to on Wednesday—at Hansard col. 1313—when he told us that, 25 years ago, as a Member of Parliament, he was rung by a very distressed farmer in his constituency, whose land was being trespassed on. I make that 1996, but perhaps it was before the 1994 Act was effective.
As my noble friend Lady Brinton has said, Section 61 of the 1994 Act provides a power to remove trespassers on land. I will quote subsection (1):
“If the senior police officer present at the scene reasonably believes that two or more persons are trespassing on land and are present there with the common purpose of residing there for any period, that reasonable steps have been taken by or on behalf of the occupier to ask them to leave and … that any of those persons has caused damage to the land or to property on the land or used threatening, abusive or insulting words or behaviour towards the occupier, a member of his family or an employee or agent of his, or …that those persons have between them six or more vehicles on the land, he may direct those persons, or any of them, to leave the land and to remove any vehicles or other property they have with them on the land.”
Subsection (4) states:
“If a person knowing that a direction under subsection (1) … has been given which applies to him … fails to leave the land as soon as reasonably practicable, or … having left again enters the land as a trespasser within the period of three months beginning with the day on which the direction was given, he commits an offence and is liable on summary conviction to imprisonment for a term not exceeding three months or a fine not exceeding level 4 on the standard scale, or both.”
That is the law now, unamended by this Bill.
As many noble Lords said on Wednesday, what is the problem that Part 4 is trying to solve, when there are clearly adequate powers already in existence? Clause 63 simply brings Section 61 of the 1994 Act into line with the rest of Part 4 of the Bill. For the reasons so thoroughly and persuasively argued on Wednesday, this clause, like the rest of Part 4, should not stand part of the Bill.
Section 68 of the 1994 Act, as amended by the Anti-social Behaviour Act 2003, is the offence of aggravated trespass, where
“A person commits the offence of aggravated trespass if he trespasses on land and, in relation to any lawful activity which persons are engaging in or are about to engage in on that or adjoining land, does there anything which is intended by him to have the effect … of intimidating those persons or any of them so as to deter them or any of them from engaging in that activity … of obstructing that activity, or … of disrupting that activity.”
I am getting the sense of hunt saboteurs, HS2 protestors or, perhaps, those protesting against genetically modified crops, rather than Gypsy, Roma and Travellers. Section 68 appears to me to refer to deliberate interference with lawful activity by means of trespass, rather than coincidental interference; for example, ploughing a field that travellers are trespassing on. Unlike the noble and learned Lord, Lord Garnier, I am not a lawyer, but perhaps the Minister can clarify the difference between Section 68 and what we have been talking about up until now.
As far as Amendment 150 is concerned, as the noble and learned Lord, Lord Garnier, explained, it attempts to correct an error in existing legislation. I agree with the noble and learned Lord that the activity being disrupted should be and needs to be unlawful, rather than the trespasser simply asserting that he believes that it should not be happening. I am not sure that the accused should have to prove that they were not trespassing. As the noble Baroness, Lady Chakrabarti, has said, that seems to be going perhaps a bit too far. We support the amendment in principle, in as far as the activity on the land that is being disrupted needs to be unlawful, rather than just being asserted as being unlawful.
As we leave this part of the Bill, I want to again acknowledge the long and tireless campaign by the noble Baroness, Lady Whitaker, to defend Gypsy, Roma and Traveller communities. I fear that, at Report, we may need to adopt a different approach than simply removing all the clauses in Part 4 from the Bill, in the light of what the Minister said on Wednesday, at Hansard col. 1330, when she quoted from the Conservative Party manifesto:
“We will give the police new powers to arrest and seize the property and vehicles of trespassers who set up unauthorised encampments, in order to protect our communities. We will make intentional trespass a criminal offence.”
That is very interesting wording. New powers do not necessarily mean more draconian powers. I respectfully suggest that on Report this House should bring forward new powers that provide the necessary protections for all our communities, including Gypsy, Roma and Traveller communities. For example—I quote from the manifesto—it could be argued that making
“intentional trespass a criminal offence”
entirely supports Amendment 135 in the name of the noble Lord, Lord Rosser, providing that, where Travellers have no suitable legal pitch on a relevant caravan site situated in the local authority’s area, the trespass should not be regarded as intentional.
It is absolutely right that we, and many others in this Committee, express our outright opposition to Part 4 as drafted but, when we return to these issues on Report, it will be with more sophisticated amendments to take account of the wording in the Conservative Party manifesto—and the convention of not blocking, at least not entirely, commitments made by the governing party in their manifesto—that protect all communities, including Gypsy, Roma and Traveller communities.
Lord Rosser (Lab)
My Lords, I will be relatively brief. We had a lengthy debate on the previous day in Committee about Part 4 on unauthorised encampments, and expressed our strong concerns about what is proposed in Part 4. I will just reiterate a couple of points. Certainly, our understanding is that the police seem to think the existing law adequate; indeed, so do local government officers who have direct involvement with the Gypsy, Traveller and Roma community.
The noble and learned Lord, Lord Garnier, put forward Amendment 150 on the basis that it is putting right a wrong. The obvious concern is that, in so doing, it creates new wrongs or new unfairness, not least in relation to the Gypsy, Traveller and Roma community. The noble Lord, Lord Paddick, probably quite rightly said that much of the debate might suggest that this amendment was aimed at others, perhaps those involved in protests over GM crops or HS2. Certainly, it involves a change as far as the onus of proof of the accused is concerned. The noble and learned Lord said that he is not going to press the amendment to a vote in Committee. I hope I am not misrepresenting what he said, but I think he said he would wait for the Minister’s response before deciding how and if to progress the matter further. We have our concerns about Amendment 150 and what exactly it might mean, but at this stage we stand in the same position as him: we will wait to hear what the Minister says on behalf of the Government in response to Amendment 150. At the moment we have fairly strong reservations about its implications, but we will listen to what the Government have to say.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, I thank all noble Lords who have spoken in this debate. I particularly thank the noble Baroness, Lady Bakewell of Hardington Mandeville, for her apologies, which in fact I got the other night. It was very courteous of her to give them.
Before I turn to whether Clause 63 should stand part of the Bill, let me deal with Amendment 150 in the name of my noble and learned friend Lord Garnier, which relates to the offence of aggravated trespass, as he outlined. The effect of this amendment would be to introduce a statutory defence to the offence at Section 68 of the Criminal Justice and Public Order Act 1994, as he explained. It would require the defendant to show that they were not trespassing, or that the activity which they intended by their trespass to obstruct or disrupt or cause intimidation in respect of was unlawful.
Lord Paddick (LD)
I am grateful to the Minister for that explanation. With regard to the other examples that she has found over the weekend, showing that the law is not targeted at Gypsy, Roma and Traveller people, is it not the case that under the Equalities Act the law should not disproportionately impact on any particular community, not that they should not be the sole focus? Therefore, if the changes as drafted would disproportionately impact on the Gypsy, Roma and Traveller communities, would that still not be contrary to the Equalities Act?
Baroness Williams of Trafford (Con)
My Lords, I have said all along, and the proponents of the amendments that we have discussed have underlined, that the absolute majority of the Gypsy, Roma and Traveller community are law-abiding people, so this is not something that disproportionately impacts on them. It is about people who cause destruction to other people’s land and property.
Lord Garnier (Con)
My Lords, I am grateful to all those who have spoken in this debate. I am particularly grateful to the noble Lords, Lord Paddick and Lord Rosser, for their qualified support for the principle behind my Amendment 150.
The noble Lord, Lord Paddick, gently chided me—or if not me then a class of people—for being unsophisticated. It may well be that it was my lack of sophistication that annoyed the noble Baroness, Lady Chakrabarti, who, not for the first time—we saw it again last Wednesday—tilted at a windmill. I thought I had made it clear in the course of my speech that proposed new Clause 68(3A)(a) in my amendment was there in error and we should concentrate on proposed new paragraph (b). She is of course perfectly entitled to make whatever remarks she wishes, but the gravamen of my amendment was to reverse the burden of proof in relation to the unlawful activity point in paragraph (b) and not, as I think I had accepted, in relation to who should prove the trespass. Having cleared up that point, I think we can make a lot more progress.
I am also grateful to my noble friend Lord Hailsham for his support. Beyond that, I have nothing to say because, as I said in my opening remarks, the policy behind Clause 63 is for the Government to defend and to persuade this House and the other place about. However, there is some room for discussion. I know the Minister has had an enormous amount of work to do in dealing with the Bill, and indeed has a lot yet to do, so she has my every sympathy. However, if she can find time perhaps to have a quiet discussion with me and others of like mind about proposed new Clause 68(3A)(b) in my Amendment 150 regarding the unlawful activity point, I would be most grateful. That having been said, this debate has now reached its natural conclusion for today’s purposes and I beg leave to withdraw the amendment.
Lord Berkeley
“Causing death or serious injury by dangerous or careless driving when under the influence of drink or drugs
(1) The Road Traffic Act 1988 is amended in accordance with subsections (2) to (7).(2) In section 2A (meaning of dangerous driving)—(a) for subsection (1)(a) and (b) substitute “he commits a breach of one or more rules of the Highway Code in a way that causes inconvenience, intimidation or danger to one or more other road users that is sufficiently serious that it would result in a person being disqualified automatically if the person drove in that way during a driving test”;(b) omit subsection (3).(3) In section 3ZA (meaning of careless or inconsiderate driving)—(a) in subsection (2), for “the way he drives falls below what would be expected of a competent and careful driver”, substitute “he commits a breach of one or more rules of the Highway Code that causes inconvenience or intimidation to one or more other road users but which is not so serious as to amount to dangerous driving as defined in subsection 2A(1)”;(b) omit subsection (3).(4) Section 3A of the Road Traffic Act 1988 is amended as follows.(5) In the heading, for “by careless” substitute “or serious injury by”.(6) In subsection (1), omit “without due care and attention, or without reasonable consideration for other persons using the road or place”.(7) After subsection (1) insert—“(1A) If a person causes serious injury to another person by driving a mechanically propelled vehicle on a road or other public place, and the conditions in subsection (1)(a) to (d) are also met, he is guilty of an offence.”(8) Part 1 of Schedule 2 to the Road Traffic Offenders Act 1988 (prosecution and punishment of offences: offences under the Traffic Acts) is amended in accordance with subsections (9) and (10).(9) In the entry relating to section 1 of the Road Traffic Act 1988 (causing death by dangerous driving), in column (4) (punishment), for “14 years” substitute “Imprisonment for life”.(10) For the entry relating to section 3A of the Road Traffic Act 1988, substitute—
RTA section 3A(1) | Causing death by driving while under the influence of drink or drugs | On indictment | 14 years or a fine or both | Obligatory | Obligatory | 6-11 |
RTA section 3A(1A) | Causing serious injury by driving while under the influence of drink or drugs | (a) Summarily (b) On indictment | (a) on conviction in England and Wales: 12 months, or a fine or both. On conviction in Scotland: 12 months or the statutory maximum or both.(b) 5 years or a fine or both. | Obligatory | Obligatory | 6-11 |
Lord Berkeley (Lab)
My Lords, we come to Part 5. I shall also speak to Amendments 167, 168 and 169. I am grateful to the noble Baroness, Lady Jones of Moulsecoomb, my noble friend Lady Hayter of Kentish Town and the noble Lord, Lord Russell of Liverpool, for their support for some of these amendments. This group contains four of several amendments put forward by a coalition of groups, including British Cycling, Cycling UK, Living Streets, RoadPeace and the Road Danger Reduction Forum—I declare an interest as a former vice-president of Cycling UK—and they have one thing in common: the intention to protect the lives of vulnerable road users.
Before explaining the amendments, I should clarify that they are all examples of issues that I and these groups have been urging the Government to consider as part of the wider review of traffic offences and penalties that the Government promised in 2014, seven years ago, but have still not carried out. I will say more about that when we get to Amendments 159 and 165, but I shall make two comments now that I hope will provide some context. The first is that the call for a wider review is now backed by a growing list of road safety groups as well as motoring groups. The second is that without that review there is a real danger that the Government’s very limited proposals in the Bill to amend road traffic law could in fact be counterproductive.
Part 5 currently contains just three proposed changes. First, it increases the maximum sentence for causing death by dangerous driving from 14 years to a life sentence. Secondly, it does the same for causing death by careless driving when under the influence of drink or drugs; these are traditionally seen as equivalent offences. Thirdly, it introduces a new offence of causing serious injury by careless driving, with a maximum sentence of two years. These amendments were consulted on as part of a rather limited review of road traffic offences and penalties in 2017—that is four years ago—and a number of parliamentarians in both Houses have been urging the Government to enact them ever since.
Baroness Hayter of Kentish Town (Lab)
My Lords, I want to speak to Amendment 152, to which I have added my name. I welcome Clause 65, because it recognises the additional responsibility that a driver has who causes death by virtue of having drunk before she or he got behind the wheel of a car. It is always deliberate to do that. Every single person knows that it is dangerous to drive after drinking—it is never a mistake; it is never careless; it is never an oversight; it is never an unforced error. It is a deliberate act to get behind the wheel of a potentially lethal weapon, putting other people at risk, when under the influence. So it is quite right, as in the Bill, that the sentence for the most egregious of outcomes—killing someone—should carry the additional penalty when, quite unnecessarily, driving ability was impaired through drink.
I am personally and obviously most aware of this as a result of the actions of a drunken driver who killed my mother on the day before my 10th birthday. But another factor contributed, and that was the absence then of seat belts. There were years of campaigning, including an attempt in 1979 by the noble Lord, Lord Rodgers, who, as Secretary of State for Transport, said:
“On the best available evidence … compulsion could save up to 1,000 lives … a year”.—[Official Report, Commons, 22/3/79; col. 1720.]
After 13 failed attempts by Back-Benchers in both Houses, some 40 years ago, late in the evening of 28 July 1981, a Lords amendment in the name of Lord Nugent of Guildford succeeded in the Commons.
I was there to witness it, having an interest not just in drinking and driving but in seatbelts because of what happened to my mother. I recall my noble friend Lord Robertson, the chair of the National Seat Belt Survivors Club, speaking. There were many now in your Lordships’ House, including three in their seats today, who voted for that seatbelt amendment—I give a special call-out to my noble friends Lord Anderson, Lord Field, Lord Foulkes, Lord Campbell-Savours, Lord Clark, Lord Cunningham, Lord Dubs, Lord Prescott, Lord Soley, Lord Rooker and Lady Taylor, to the noble and learned Lord, Lord Clarke, and to the noble Lords, Lord Beith, Lord Baker, Lord Hailsham, Lord Horam, Lord Howell, Lord Hunt, Lord McNally, Lord Wigley, Lord Patten and Lord Patten of Barnes. Incidentally, I have a list of the others who voted the wrong way that night.
In 1982, the year before the new seatbelt law was enforced, 2,443 people were killed on our roads. By 2016, despite more cars being on the road, the figure had dropped to 816, so the estimate of the noble Lord, Lord Rodgers, was not an exaggeration. Why is that important to Amendment 152? It is because the sort of accident, caused by drink, which killed my mother might today, thanks to that seatbelt law, along with greatly improved rescue and medical interventions, have led not to death but to serious injury. But without Amendment 152, if death followed, the sentence would reflect the contribution of alcohol, but if the person survived, even with what are euphemistically called life-changing injuries, the contributing factor of alcohol would not be reflected in the sentence. That cannot be right, and that is what this amendment seeks to address.
Although I have not added my name to it, I support Amendment 168. It seems extraordinary that, where someone has either killed or injured someone though drink-driving, they could even think about driving again while disqualified. It seems like sticking two fingers up to society’s abhorrence of this irresponsible behaviour. A sentence of three years where people, disqualified, take to the wheel again seems a sensible measure. To get behind the wheel of a car having killed or injured someone, while being disqualified and therefore uninsured, seems a contemptible act. I hope that that is also an amendment that the Minister will feel able to accept.
Baroness Jones of Moulsecoomb (GP)
My Lords, I declare an interest as the president of the Road Danger Reduction Forum. I point out that our road traffic laws are quite outdated these days. The laws and the penalties have been patched together over the past few decades and the review is long overdue. I hope that Ministers will take that back.
At some point in history, it became acceptable for people to be killed by cars—pedestrians and cyclists. Other drivers just became collateral damage for our car-obsessed culture. I simply do not understand that.
I support all these amendments and am grateful to have worked with the noble Lord, Lord Berkeley, and the NGOs which put so much effort into pulling them together. There seems to be a horrific gap between the penalties for killing someone with your car and killing someone in any other way. Personally, I would like to see mandatory lifetime driving bans brought in for many road traffic offences. At the moment, you can be found guilty of killing someone with a car and be allowed to drive yourself home from the court—it is absolutely unbelievable.
We talk so often about “accidents”, which is completely wrong, because that pre-supposes the outcome of any investigation of a collision. If you are saying it was an “accident”, you are saying, “Oops, sorry, couldn’t help it”, but there is always a cause for such incidents. During my time on the Met police authority, I got the Met police to change its designation of those events from “road traffic accidents” to “road traffic incidents”. We cannot prejudge why it happened.
There is also a huge amount of victim blaming. The noble Lord, Lord Berkeley, mentioned the case of the person who accelerated away. When I was knocked off my bike by a motorist, I was on a green light and the motorist was not. He just did not look. I had life-changing injuries from that. I did not do anything about it or follow it through because I think he genuinely just did not look properly, and what is there to do about that? At the same time, we accept such incidents far too often, and we cannot blame the victims all the time; we have to, at some point, start blaming the person who is driving a tonne of metal and who is extremely well protected in the case of any collision.
Let us please replace these patched-up, ancient laws with something that fits today’s circumstances, especially when we are trying to encourage more people to get out of their cars and get on bikes, walk home or get on buses. This really needs to change.
Lord Russell of Liverpool (CB)
My Lords, I was very happy to put my name to all these amendments. As you will be aware, the Cross Benches do not suffer from having Whips to tell us what to do, but when a call comes from the All-Party Parliamentary Group for Cycling and Walking, which I have the privilege of being an officer of, that is as near to a three-line Whip as a Cross-Bencher would recognise.
I was a head-hunter for 30 years, so, during that time, one met a range of human beings, many of whom had a particularly high view of the value of their own contribution in a variety of ways. One learned that there were three things in particular that the male of the species thought they were extraordinarily talented at. One of them was making love—I will leave it to noble Lords and noble Baronesses to decide whether the males of their acquaintance meet that hurdle.
The second is that, when interviewing someone, most men, particularly senior businessmen, think that they are extraordinarily talented at telling—within about 30 seconds—whether they are any good. The evidence suggests that they are 100% wrong all the time.
The third thing that many men think they are extraordinarily talented at is driving. Most of us tend to think that we are pretty good drivers—above average—and while, like most human beings, we occasionally make a mistake or forget one or two things that we should not forget, we are pretty relaxed and generous towards ourselves.
In researching this group of amendments and others that follow, the most clear and consistent factor across the whole range of road traffic offences and behaviour is that they are dealt with in an almost entirely inconsistent manner. The inconsistencies jump out at you, because many of the terminologies used are open to interpretation. Many of these terminologies were created and put into statute or guidance in the 20th century—and we are now, in case noble Lords had not noticed, in the 21st century. In the last two decades, the influence of technology has increased hugely, as all of us who drive are very aware.
I, perhaps, have a high danger capability, but I have bicycled in London for 40 years, on and off, and I drive. When I drive, like most people I have at least one device working in my car. One such device cleverly tells you when there are speed traps coming up, or policemen lurking by the side of the road—or whether there’s been an accident ahead. Equally, however, one is often listening or talking, or, even worse, texting. When I bicycle, I have nothing in my ears and I have all my senses about me. What I see, day in, day out, is pretty egregious behaviour, whether by motorists, cyclists or people on e-scooters—including e-scooters ridden by parents taking their four to five year-old children to school, standing in front of them with neither of them wearing a helmet, something that I find fairly alarming. I see this all around: it has become normal.
Until and unless we are more consistent and clearer about how we define acceptable behaviour when driving, or using any form of transport, and what is unacceptable—what is legal, what is illegal, and the gradations between them—we will continue to have an unacceptable level of inconsistency and more heart-rendingly tragic stories. My goodness, you find a lot of them if you do your research.
It is difficult to find rhyme or reason for such inconsistency. The Minister, as a lawyer, is well aware of the dangers that arise when there is inconsistency in how the law is understood. The Minister will also be aware, as are many lawyers, of the many opportunities that inconsistency affords lawyers. When there is inconsistency, or lack of clarity, in the law, it benefits a huge and very profitable industry in this country consisting of law firms that specialise in enabling people to escape, in a variety of ingenious ways, what are almost certainly the right penalties. That industry exists because of these inconsistencies.
These are clearly all probing amendments, but my plea to the noble Lord is that there is real reason and logic behind them, which is that a lack of clarity leads to inconsistency and stories of human tragedy.
Earl Attlee (Con)
My Lords, I am grateful to the noble Lord, Lord Berkeley, for his introduction to this group, and his outline of the problems. I also agree with much of what the noble Lord, Lord Russell, said about inconsistency. Unfortunately, however, the provisions in Clause 65 are rather unfair and disproportionate. This provision does not address the mischief. We already have the highest per capita rate of imprisonment in Europe, at 133 per 100,000, and this will not help.
I support Amendment 168, for the reasons outlined by the noble Baroness, Lady Hayter.
Clause 66 follows hard on the heels of Clause 65 in terms of its undesirability. Can the Minister confirm that these changes would increase the prison population, and if so to what extent?
One of the mischiefs is that, in the event of any road traffic accident, collision, or whatever you like to call it, the insurance companies and relevant contracts forbid policyholders from contacting the other party and, in particular, expressing any form of remorse or forgiveness. This totally flies in the face of the principle of restorative justice. The families, friends and victims can rightly feel aggrieved, due to the insurance regime and not the criminal law. There are other difficulties which I will not weary Committee with. The noble Lord, Lord Berkeley, was right to refer to serious injustices.
There is a problem with securing convictions for dangerous driving; convictions and prosecutions are often for the lesser offence of careless driving. I have much sympathy for the comments on careless driving and dangerous driving by the noble Lord, Lord Berkeley. I can say what the two offences are, but I have difficulty knowing how they are applied.
Clause 65 is about careless and dangerous driving in connection with drink or drugs. The maximum penalty for Clause 65-type offences is currently 14 years, and I have rarely seen anything like that applied. The Government are now proposing a more serious penalty—a life sentence—than for grievous bodily harm without intent.
The problem with the new provisions is that some of the substance thresholds for drug-driving offences are very low—well below the level causing impairment as advised by scientists. Furthermore, some substances can remain in the body for quite a while. Some people, such as noble Lords, never take recreational drugs. For some communities and socioeconomic groups, however, drug-taking is common. This could result in serious unfairness, with some offenders faced with a life sentence when their driving at the relevant time was not actually impaired by drugs.
Amendment 152, in the name of the noble Lord, Lord Berkeley, proposes a new definition and distinction between careless driving and dangerous driving, by reference to the standard required to pass the driving test. I remind Committee that I hold a qualification as an HGV driving instructor, albeit that it is a bit out of date.
It is surprisingly easy to get an automatic failure on a driving test, particularly under the heading “Examiner takes action”. Suppose that a candidate is driving along a main road but has left their left hand indicator on. Suppose that another vehicle is waiting to emerge from a side road and could be fooled into thinking that the test candidate intends to turn left off the main road. At that point, the examiner will say, “Cancel your signal”. That would be an automatic failure, because the examiner took action. I do not think, however, that any of us would call that dangerous driving. I think, therefore, that Amendment 152 is flawed.
However, I agree that it is too difficult to secure a conviction for dangerous driving. I wonder whether the careless driving offence ought to be confined to a momentary or short lapse in driving standards while the new offence of reckless driving ought to consider whether there has been a pattern of numerous, relatively minor contraventions that, taken gather, make for a much more serious offence. I suggest that the Minister sets up a meeting with relevant officials and subject matter experts so that we can discuss these important matters offline and understand them better.
Lord Hope of Craighead (CB)
My Lords, I want to provide my support for a remark made by the noble Lord, Lord Berkeley, in the course of his speech. He said that the emphasis should be more on disqualification than on imprisonment. One can understand that, when a jury or magistrate is considering what to make of the facts of the case, the threat of imprisonment may influence the decision to go for the softer option rather than the harder one, whereas disqualification does not have that connotation at all. There is a lot of force in the noble Lord’s point.
I also support the point made by the noble Baroness, Lady Jones of Moulsecoomb. She talked about the patchwork of offences and the need for a much more balanced approach that looks at all the various offences across the board, rather than fitting together one or two things. That is what this enormously long Bill, which, I suggest, is really not suited for this kind of treatment, does.
Having made those remarks by way of support, if one examines the wording of the proposed new clause, one can see that it is a little risky to try to find new wording to replace the well-understood, well-trusted and frequently used phraseology that we have at the moment. For example, in the new meaning of dangerous driving, we are told that that would be where somebody
“commits a breach of … the Highway Code in a way that causes inconvenience, intimidation or danger”.
The word “inconvenience”, which is one of the three alternatives, does not seem appropriate for dangerous driving. I suggest that, if this is to go any further, this word should come out because it is not descriptive of the effect of dangerous driving at all. Similarly, the next subsection defines “careless or inconsiderate driving” and includes “intimidation”, which does not really fit with what one is talking about when one talks of careless driving or driving without due consideration for other road users.
I draw these points to the Minister’s attention because they show that it is a quite a delicate matter to alter the existing wording, which I would wish to preserve instead of trying to introduce a fresh definition.
Finally on definitions, in subsection (4), the words “serious injury” are equated with
“causing death by careless driving”
and the proposal is to insert “or serious injury”. What amounts to a serious injury is difficult to define but, if one is moving in that direction, one would have to introduce additional words, such as “serious injury”. One finds an example in Clause 66, where there is a definition by reference to the existing standards in the criminal court.
I am not sure that that goes far enough when one considers the consequences of some of these offences and the threat of imprisonment, but one has to give very careful thought to what is really meant by “serious injury”. Is somebody breaking their wrist due to falling on the ground enough? Is something that requires them to go to hospital enough? Or is one looking at something much graver? That brings it closer to the idea that one is trying to bridge what might seem to be a gap, where somebody is injured so seriously that it is only by the skill of a surgeon that death is avoided—I can quite see that there is something that needs to be addressed there—but just using the words “serious injury” may mean walking into a trap that it would be better to avoid.
Lord Judge (CB)
My Lords, I will speak briefly. The Road Traffic Act and all its many successors have left us with a law in which a simple textbook, Wilkinson’s Road Traffic Offences, is about as fat as a successful marrow. It is absurd that our law is so complicated on something that everybody, or nearly all of us, does every day. Our children will learn it; the day they get to the age of 17, they will want to drive, and so on and so forth.
I entirely agree that this is a patched-up proposal. Personally, I strongly support the idea that we should get this review conducted and analyse exactly what it is that we want to achieve with a modern law relating to road traffic. That law should address not merely the conduct of a person at the wheel of a car but the conduct of a person on an e-scooter or a person riding a bicycle, some of whom are appalling in the way they ride. It should also include pedestrians who step out into a path and make a driver pull away, causing them to knock somebody else over. We need synchronisation of our laws on these issues, which is why I support the noble Lord, Lord Berkeley.
That said, I want to make a different point and indicate how strongly opposed I am to a proposal that would enable a prison sentence to be imposed on a motorist who was not driving dangerously or taking deliberate risks, and was not under the influence of drink or drugs, but simply made a mistake while at the wheel. I agree with the noble Baroness, Lady Jones, that “road traffic accident” is not the right phrase to use. It is a road traffic incident, which must be examined, as the evidence shows.
You can, perfectly reasonably, accuse someone who drives without due care and attention of being negligent, but criminal culpability is inevitably low because it is negligent. Driving without due care and attention is an offence; it is negligence. However, we do not send people to prison for negligent mistakes causing serious injury in the context of, for example, the medical profession. A mistake is made. It is negligent. There is an action. Various steps are taken in respect of the doctor, the nurse, or whoever it might be. The result to the victim is very serious. So, when we examine whether a doctor or a nurse may be prosecuted, we look not for evidence of negligence, a lack of due care or a mistake, but for something demonstrating that he or she fell far below the standards required by that profession of that individual in that job at that time. We must be careful not to introduce a different standard of approach to motoring offences. We must remember that this offence is also committed by the young mum whose children in the back of the car start howling because there is a wasp in the car, in the way that children do. Is she momentarily distracted? Yes. Should she have stayed rigidly looking to the front? I suppose so. Is it realistic to think that she, or most mums, would stay that way when her child is screaming in the back? No. Let us keep it realistic.
I am also troubled by the way we approach consequences in the whole of this road traffic law. We have situations where identical culpability can lead to completely different sentences because there has been a death. Of course a death is dreadful, but does the offence become more serious because there are two or three deaths? Personally, I think it does, but there is a question that needs to be answered: how far are we addressing the culpability of the driving as against the consequences? Death by dangerous driving is no trouble; after all, you are driving dangerously. Drink driving is no trouble; you choose to have a drink. Driving to take risks and show off to your friends is no trouble; you are driving dangerously. However, we need to be cautious about the introduction of prison sentences for people whose standard of driving amounts to negligence, not gross negligence.
Baroness Randerson (LD)
My Lords, I echo the sentiments of the noble Lord, Lord Berkeley, in thanking the coalition of organisations that have briefed us on Part 5, because they are experts in the field. The short debate we have had reveals the crying need for a comprehensive review of driving sentences. The Government’s push is towards increasing penalties—longer prison sentences—and each of these amendments tackles an issue that needs attention that the Bill is really not going to provide.
The four amendments in this group have little in common with each other. I agree with the local and learned Lord, Lord Judge, on the difference between different offences which could have a very similar outcome. There is a world of difference between causing death while drink-driving or drug-driving, which is a conscious decision that you make, and causing injury or maybe death by carelessly opening your car door: that is at the other extreme. By chance, I saw such an incident last week. I saw a motorist drive up carefully and park, then get distracted by their passenger who had left something behind and who leapt back into the car to retrieve it at the last moment. The driver opened the car door in the path of a cyclist who was not showing lights and it was at night. Now, no great injury was caused in that case, but it could have been. I was standing there waiting to cross the road and I have absolutely no doubt that it was nothing other than distraction and carelessness from a driver who was driving carefully. There is a general push in the Bill towards stiffer sentencing, whereas we should be looking at more effective and appropriate sentencing for drivers, the overwhelming majority of whom are not of the criminal classes and do not have a criminal intent when they drive.
We also need to be designing our roads in a way that makes them much safer. The number of amendments tabled to Part 5 relating to road traffic reinforces my view, and that expressed here today, that we need a thorough review of the laws and penalties that govern driving. I shall say more about this later on my own amendment on this issue. Finally, I refer to the comments of the noble Lord, Lord Russell, who drew attention to the inconsistency of the current legislation. Add to that the fact that it is wildly out of date and there really is a need for government action.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, I had proposed to speak specifically to my noble and learned friend Lord Hope’s amendments, which are in another group but, frankly, these amendments are all mixed up together and I am rather surprised that they are not grouped. I agree with everything that the noble and learned Lord, Lord Judge, said. What it surely comes to, first, is that it is a good idea to look at the astonishing way the law has developed over recent decades.
When I went to the Bar 60 years ago, basically there was dangerous driving and careless driving, as there has been ever since. As now, there were well-recognised meanings and levels within the process of administering this law, and the courts—the magistrates’ courts particularly—and the practitioners know about that. There was also the very rare and very grave offence of motor manslaughter—manslaughter in the context of motoring. That applies to gross negligence cases and is a common-law offence. There is no maximum sentence but life is available. Then, gradually, over the years, sentences became more draconian. A two-year prison sentence was made available for death by dangerous driving. Then, in 1988, 14 years—seven times the original sentence—became the stipulated maximum sentence for causing death by dangerous driving. Now, of course, it is proposed to go from 14 years to life. Is it really contemplated that, short of some quite extravagant case of manslaughter, anybody really ought properly to go to prison for more than 14 years?
Lord Rosser (Lab)
I will, once again, I hope, be relatively brief. We welcome Clause 65 and the Government’s actions to increase sentences for those who cause death by dangerous or careless driving under the influence of drink or drugs. Here, at least, is one part of the Bill where we can support its intentions.
We also support the aim of the amendments in this group, which seek to improve road safety and keep dangerous drivers off our roads. I pay tribute to all those, including many noble Lords, who have campaigned to improve road safety and reduce deaths and serious injury. We particularly add our support to Amendment 152, which would widen those protections and increase sentences for causing serious injury while under the influence of drugs or alcohol. Having said that, of course, there can be a slim difference between serious injury with a life saved and serious injury with a life lost.
Clause 66 inserts an offence to fill a gap in the law of causing serious injury by careless or inconsiderate driving. I note some of the comments that have been made in respect of causing serious injury by careless or inconsiderate driving, but certainly we support the basic intentions of what is proposed.
The issue of car dooring has been raised for some years by cycling groups, and we have called on the Government to develop a comprehensive new national cycling safety campaign, aimed at not just cyclists but motorists. During the lockdown, cycling increased by, I think, as much as 200% at weekends, with significant increases during the week. We will not be able to build on that progress—I am sure we all regard an increase in cycling as progress—unless we take action to make our roads safe enough to cycle on. What plans do the Government have to look at road safety issues impacting cyclists, as well as other drivers?
I look forward to the Minister’s reply to this debate and to the amendments which we have been discussing.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
My Lords, I am grateful to the noble Lord, Lord Berkeley, and others for speaking to these amendments. This group considers the sentencing of road traffic offences, and I propose to take each one in turn, if I may. I hope that the noble Lord will understand if I do not comment on the specifics of the particular cases he mentioned; not only do I not personally know about them but, as a matter of general approach, it is unwise for a Minister to comment on a court’s decisions in particular cases when they have obviously not heard the evidence and seen the facts. I do, of course, extend my condolences to the victims in those cases. I also acknowledge the moving contribution from the noble Baroness, Lady Hayter of Kentish Town, and her particular background in this area.
The noble and learned Lord, Lord Judge, reminded us that the law in this area is complex; it now fills a very weighty tome, Wilkinson’s Road Traffic Offences. I will come back at the end of my remarks to the question of an overall review, which the noble Lord, Lord Berkeley, also mentioned. Despite the fact that they perhaps take up more space than they ought to, I think it is fair to say that the current driving laws, while not perfect, work well in the vast majority of cases.
Importantly—this theme ran through the Committee’s debate and was a point made by the noble Baroness, Lady Jones of Moulsecoomb—we have to strike a balance between the culpability of the driver and the harm or consequences which they cause. That is particularly important in the area of driving, where a moment’s inattention can have such drastic consequences.
I will not comment on the other two areas of life which the noble Lord, Lord Russell of Liverpool, speaking unwhipped, put before us. However, it is often commented that the average person does think that they are an above average driver. Even my maths is good enough to realise that we cannot all be above-average drivers, at least not all the time.
The fact that some of these amendments seek to lower the culpability required before an offence is committed, and others seek to raise the level of culpability needed, might indicate that, broadly speaking, we have the balance about right at the moment. I will speak to the amendments in turn, but I can assure the noble Baroness, Lady Jones, that victim blaming is no part of my or the Government’s response to any of them.
Amendment 152, which aims to replace Clause 65 in the Bill, does two main things. First, it would replace—I think the noble Lord said it “redefines”, but it effectively replaces—the current objective test of what amounts to careless or dangerous driving with a new test which is, essentially, linked to breaches of the Highway Code. The new test would apply to all offences which relate to or incorporate careless or dangerous driving. Secondly, the new clause would replace the existing
“causing death by careless driving under the influence of drink or drugs”
offence with new offences of causing death “or serious injury” by driving under the influence of drink or drugs. The Government have serious concerns about the way this amendment would change the current law. We believe that it would render the current law inconsistent, unworkable and unjust. I will try to explain why we say that.
Given the particular nature of driving, bad driving offences are based not on establishing the intent of the driver but on considering the standard of the driving. The test in law compares the driving of the defendant to that of a notional careful and competent driver, so it is an objective test. If the driving falls below that of the careful and competent driver, the driving is careless; if it falls far below that standard, it is dangerous. This amendment seeks to replace that objective test based on the standard of a person’s driving, which is the current law, with a new definition of dangerous driving which applies to all offences of dangerous driving, including causing death or serious injury.
As we have heard, the proposed new test is linked to breaches of the Highway Code, and here the problem starts. Noble Lords will know that the Highway Code contains references to behaviour that gives rise to criminal offences, and that those offences are set out elsewhere in legislation. But it also contains advisory provisions which are not criminal offences. We should be clear that, when we talk about a breach of the Highway Code—when you do something which it says you should not be doing—you are not always referring to something which amounts to criminal offending. Indeed, often breaches of the Highway Code are not criminal offences.
As the noble and learned Lord, Lord Hope of Craighead, pointed out, under this amendment the standard for dangerous driving could be met by a breach of the Highway Code that causes no more than a little “inconvenience”—one of the tests in the amendment—to another road user. At the same time, the offences covered by dangerous driving attract significant custodial penalties, despite the attempt to limit this offence to “serious” breaches of the code. Serious breaches are, in turn—and, with respect, I suggest inappropriately and impractically—defined in relation to passing or failing a driving test. So where does that get us, when we put it all together?
Baroness Hayter of Kentish Town (Lab)
Is the Minister saying that if we drafted this slightly better, with “dangerous driving” included, he might accept it?
Lord Wolfson of Tredegar (Con)
I will be very careful here because the law in this area is really complex. I was going to say this later but will preface it now. I am very happy to have a discussion on these points. I am reluctant to reply to a drafting suggestion from the Dispatch Box but, if the noble Baroness writes to me, I will certainly write back and we can have a discussion. I hope that is helpful and answers her question.
On this part of Amendment 152, the five-year maximum penalty for causing serious injury also contrasts with the two-year maximum proposed for the new offence of causing serious injury by careless driving in Clause 66, although the culpability levels are broadly similar. Saying clearly what should not need to be said, we recognise the seriousness of driving while unfit to do so through drink or drugs, but we also must have laws that reflect the various levels of culpability of drivers across the piece. Perhaps it will be more useful to discuss this against another draft, if that is what the noble Baroness wants. This draft does not strike a fair balance and therefore we cannot support it.
Turning to Amendments 167 and 168, I assure the noble Lord, Lord Berkeley, that we take road safety seriously. The sanction of disqualification is a very helpful tool, an integral part of the overall approach to road traffic enforcement and, therefore, to promoting road safety. However, again the sanction of disqualification must be proportionate. He proposes amending disqualification periods for stand-alone offences from two years to five years. We are not persuaded that an increase of that magnitude is warranted for all the offences which the amendment would encompass. For example, two offences that would fall within the amendment involve causing serious injury to other road users, and another covers any offence where the driver has incurred a disqualification in the previous three years. The proposed increase is unduly harsh in these circumstances.
We would want to think carefully and coherently across the piece about amending the periods of disqualification for various offences. We want to keep sanctions at the right level, and we keep this under constant review. With respect, the noble Lord has much to contribute to the road safety debate. I would be very happy to meet him and others to discuss potential changes to the existing periods of disqualification. Perhaps we can arrange that. I heard what my noble friend Lord Attlee said, and recall that on the then Domestic Abuse Bill, we found that what we called a teach-in was quite useful. That might be a useful way of organising this, with specialist officials in the MoJ and/or the Department of Transport. I will be in touch with the noble Lord on that.
Also, in the context of disqualification, the noble Lord proposes reducing, from three years to two years, the timeframe for which offences would be regarded as repeat offences. As repeat offences, this would trigger a longer disqualification period, of two years rather than 12 months. Three years is the time for the totting-up process. We think that it is useful to keep the same period for repeat offences.
I turn to the amendments to the penalties for repeat instances of certain offences. The noble Lord proposes an increase in the minimum period of disqualification from three years to 10 years. Ten years is a considerable period of disqualification. It would affect not only the disqualified person but possibly their families in serious ways. We must remember that those convicted in these circumstances often also face a custodial sentence in addition to any driving ban that they receive. Therefore, one must look at the disqualification period in that context.
The length of a driving ban is at the discretion of the courts. They sometimes impose a lifetime ban. The noble Lord will know, but I will make it clear to the Committee, that the courts have a statutory duty to take into account the impact of a custodial sentence when imposing a driving ban, so it is not diminished by the period spent in custody. However, we do not think that a minimum period of 10 years would be proportionate in respect of the offences that currently carry a three-year minimum period of disqualification for repeat offences. The three-year period is a minimum. As I have said, the courts can disqualify in excess of that if necessary.
The noble Lord also proposes a minimum disqualification period of two years for drivers convicted of dangerous driving. A person who is convicted of dangerous driving is still subject to obligatory disqualification for a period of one year. That can be increased by a judge in light of particular circumstances. Again, we are not persuaded that a conviction of dangerous driving warrants a longer minimum ban, nor do we propose to accept the proposal to reduce the penalty for the offence of causing death by careless or inconsiderate driving from five years to two years. This is a good example of the balance I spoke about earlier. As the noble and learned Lord, Lord Brown, mentioned, when death results, the law often looks at things differently. When drivers cause the death of another person, a road user of any sort, through unacceptable behaviours such as careless driving, the penalties have to be sufficient to reflect the seriousness of their actions.
Turning to the amendments on the offence of driving while disqualified, if this sanction is to work effectively, people must be forced to adhere to the disqualification period. We know that that is not always the case. That is why we have a dedicated offence of driving while disqualified, which carries a maximum penalty of six months in prison. We consider that the right penalty for that offence. It is sufficiently effective in discouraging people from driving while disqualified and we do not believe that a longer period would be any more effective.
Finally, the noble Lord proposes an amendment which seeks to make it an offence to cause death or serious injury when opening a car door, with a penalty of a fine, imprisonment or both, obligatory disqualification from driving and obligatory endorsement of penalty points. We believe that the new offence is unnecessary, because causing death or serious injury when opening a door would already be covered by existing offences under Regulation 105 of the Road Vehicles (Construction and Use) Regulations 1986, which is brought into play in this context by Section 42 of the Road Traffic Act 1988.
More generally, while I recognise the importance of checking the road carefully before opening a car door, the penalty must be proportionate. The penalty for the current offence is limited to a fine and we do not have any evidence base upon which to agree or accept that the new and much higher penalties for the offence proposed by the amendment are warranted or justified. However, we are updating the Highway Code to improve guidance for opening vehicle doors carefully and safely to minimise any risk this may pose. We have been promoting what I think is called the “Dutch reach”, where you reach across—I will try to give an example from the Dispatch Box—to open the door with the hand which is further from it, because that forces you to look around.
There is another point here. It is called the Dutch reach because it comes from Holland, where a lot of people cycle. To pick up a point made by the noble Lord, Lord Rosser, cycling is good for people not just when they are cycling but when they are driving. If you are a cyclist, you can also become a better driver, because you are more aware of cyclists on the road. We certainly appreciate the point and are looking at it.
I will pick up two further points from the noble Lord, Lord Berkeley. First, on the example he gave, I am not sure I took it down accurately, but my initial reaction was that alcohol is always an aggravating factor. However, I will check Hansard and can perhaps write to him with a specific response on that point. Secondly, on the 2014 review, that was announced and we have been working on it. We published a consultation on driving offences and penalties relating to causing death or serious injury and are now bringing forward proposals for reform of the law, which we committed to in our response to the consultation. My colleagues at the Department for Transport are taking that work forward on the broader issues of road safety.
Finally, the noble Baroness, Lady Randerson, said that she would pick up her point in a later group so, with respect, I or my colleague will respond to it then. My noble friend Lord Attlee asked about an increase in the prison population. The short point here is that people go to prison only when the court cannot impose another offence and they go to prison immediately only when it is sufficiently serious that the sentence cannot be suspended. I hope that gives him some reassurance. I am grateful for the support of the noble Lord, Lord Rosser, on Clause 65. I note his support for the amendments, but for the reasons I have set out, I hope those proposing these amendments will feel able to withdraw them.
Baroness Jones of Moulsecoomb (GP)
Before the noble Lord sits down, I point out that he is arguing for the status quo when we have already said that there is no rationale behind it. There is no rationale behind two years or three years. The fact that he thinks it sounds reasonable is really not good enough. It is urgent to get this review together. Which organisations have the Government taken advice from on this, before bringing in these new penalties? Who did they take advice from? It sounds as if they did not take it from people who understand the situation as it is on the roads.
Lord Wolfson of Tredegar (Con)
I am afraid that, with respect, the noble Baroness is wrong on both points. There are provisions in the Bill which change the law considerably; there are quite a few in this area. I am certainly not arguing for the status quo but rather for the provisions we have put in the Bill. I have sought to explain why, if we are going to change other parts of our road traffic offences, we need to do so carefully and make sure that there are no unintended consequences. I hoped my explanation of the new test for dangerous driving based on breaches of the Highway Code and the consequences that brings with it was a good example of that.
As to who we have consulted, I assure the noble Baroness that my department and the Department for Transport speak frequently to a range of stakeholders. Perhaps I can write to her with a list, exhaustive or possibly non-exhaustive, of the people we have spoken to.
Baroness Jones of Moulsecoomb (GP)
I also point out that when the Minister demonstrated the Dutch reach, he did so from the point of view of a Dutch car rather than an English one. Perhaps he would like to practise that at home.
Lord Wolfson of Tredegar (Con)
The noble Baroness and I are sitting on opposite sides of the House. If I was driving, I would normally open the door with my right hand, so I was turning round to open it. I think my example was right, but I will look at the video tonight and write to the noble Baroness if I was wrong.
Earl Attlee (Con)
My Lords, my noble friend has been very helpful, but I am slightly worried that he does not fully appreciate how difficult it is to secure conviction for dangerous driving. On the Dutch reach, could we not include this in the driving test, which would mean that driving instructors would have to teach their students how to do it? I like to think I am an experienced driver and I carefully check my mirror before opening the door. Not doing so is an easy mistake for a novice driver to make, but it would be easy to train those drivers to use the Dutch reach.
Lord Wolfson of Tredegar (Con)
I am certainly aware of the differences between dangerous driving and careless driving. Dangerous driving is reserved for those instances of driving which fall “far below” the objective standard. The question of whether the Dutch reach should be included in the driving test is a matter for colleagues at the Department for Transport. I will pass that suggestion on; I hope they will get back to my noble friend on that point.
Lord Berkeley (Lab)
My Lords, we have had a fascinating debate on these amendments and I have no regrets about tabling them. They came from the group that the noble Baroness, Lady Jones, mentioned—she has also thought about this very carefully. I would like some further information on whether they talk to each other. They will look at what the Minister has said tonight with great care and read the comments from the many other noble Lords and noble and learned Lords who have spoken. It has been fascinating to hear the different views.
One thing that we need to focus on is the need for safety. The Dutch reach is just one example. I have cycled in Holland quite often; motorists there tend to be much more careful when opening doors, but so are cyclists. In Holland, you do not get the kind of aggressive, Lycra-clad people who so many motorists in this country dislike. However, that is no excuse for causing any danger to them.
What also follows from the Minister’s comments is that there needs to a reflection on getting people to think before they offend, because a lot of people do not, and when they offend say, “Oh, it was a mistake,” or whatever. People need to be responsible for their actions.
Thirdly, there is a wide lack of enforcement, which noble Lords have alluded to, covering motoring, cycling and occasionally walking. Some of my amendments reflect the feelings of people at the vulnerable end of the spectrum that there is a lack of enforcement, and they would like to see things tightened up and balanced.
Lastly, I am concerned, and have been for many years, about how the Minister’s department and the Department for Transport work together, or occasionally possibly do not. I have no evidence that they have not worked together on this matter, but it would be helpful to hold discussions with both departments before Report. I see that the Minister does not like my amendments. We do not like some of his. We are a long way apart, but it would be helpful to try to move together. On that basis, I beg leave to withdraw my amendment.
Baroness Stowell of Beeston (Con)
My Lords, I will speak to this amendment and my other amendments in this group. First, though, I welcome my noble friend Lord Sharpe to the Front Bench, and I look forward to his response.
These amendments are about pedicabs. I will briefly explain the problem, and then come to the solutions and proposed way forward. For any noble Lords unsure about what I am referring to, pedicabs are passenger vehicles operated by a cyclist at the front pulling a small carriage at the back. Sometimes they are known as rickshaws. Noble Lords may have seen them lined up on Westminster Bridge touting for business from tourists. They are often covered in flashing lights and blaring out loud music. They are mainly found in the West End and other tourist hotspots, whether that is Oxford Street and other major shopping zones during the day, or Leicester Square, Soho and the theatre district at night.
We have an unacceptable situation. These vehicles are legal, but, believe it or not, they do not need insurance. There is no way to identify the drivers, there is no requirement for operators to undergo criminal records checks, most vehicles do not undergo any safety or maintenance checks, and there is no control over the fares charged. Pedicabs are the only form of public transport in the capital that is completely unregulated.
It may assist the Committee if I explain very briefly the history of how this unacceptable anomaly occurred. Nearly 20 years ago—lawyers here will be able to expand on this—pedicabs were defined in case law as stage carriages in Greater London under the Metropolitan Public Carriage Act 1869, so do not fall under Transport for London’s licensing powers. This is not the case elsewhere in England and Wales, where they are defined as hackney carriages and subject to local licensing and regulation.
The upshot is that pedicabs can ply for hire in any street or place in Greater London. They are acting with impunity and in competition with black cabs, and where appropriate with licensed taxis, for custom. To state the obvious, those vehicles are subject to a range of regulations and exacting standards. It will not surprise the Committee that this impunity and the full knowledge that they cannot be held to account leads to a wide range of safety and traffic incidents. This includes dangerous driving, such as going the wrong way up one-way streets—I have personally seen pedicabs come on to pavements—nuisance driving, parking in bus lanes, and impeding traffic. There is a range of passenger safety issues associated with roadworthiness, and some vehicles have motorised the bicycle at the front, creating more risks to passengers. Hit and runs are not uncommon.
Then there is the nuisance and anti-social behaviour, which has a detrimental effect not just on businesses and residents but on the reputation of our capital city. There is aggressive touting for business; ripping off passengers with outrageous charges; very loud music played all day and night; harassment of passengers, including women; violence between drivers; and even reports of facilitating drug dealing across the city.
The Anti-social Behaviour Crime and Policing Act 2014 has been useful to some extent, but it is only a short-term measure, as it takes a huge amount of evidence, time and police resource to apply. We need regulation to prevent those wishing to give our capital city a bad name having the chance to do so in the first place. Having said all that, there are some reputable firms that want regulation. Indeed, there is an environmental case for pedicabs to be part of London’s public transport system, but that can happen only if they come under the control of Transport for London.
What is the solution? Before I explain my amendments, I want to highlight a better solution. My honourable friend Nickie Aiken, MP for the Cities of London and Westminster, has been campaigning tirelessly on this issue since she was elected in 2019. She has cross-party support from London-based MPs, many of whom have campaigned on this issue since Labour was in government. Her Private Member’s Bill, due its Second Reading on Friday 19 November, would bring pedicabs under the remit of Transport for London and allow it to introduce proper regulations. That would bring London into line with the rest of England and Wales. The Bill, and what it will achieve, is supported by MPs, the Mayor of London, Westminster Council, Kensington and Chelsea Council, other affected councils, Transport for London, the Soho Society, the Marylebone Association, the Heart of London Business Alliance, and a wide range of other bodies that are members of the Regulate Pedicabs Coalition. No one is against this, so I know she is pushing at an open door when it comes to government support. For the last five years, Minister after Minister has promised to introduce legislation to make this regulation happen when an appropriate legislative vehicle is available, but so far none has arrived.
So, here is what I am asking. First, I would like the Minister to confirm that the Government will support Nickie Aiken’s Private Member’s Bill if it gets a Second Reading on 19 November. But notice that I said “if”, because, even with the Government’s support, we face a real risk of not getting that far. This is the third attempt to introduce legislation via a Private Member’s Bill. Nickie’s Bill is the fifth due to be debated on that day, so there is a real danger that it will not get a Second Reading and will fall again. To be fair, this Private Member’s Bill is a suitable vehicle because it is simply bringing London in line with everywhere else, where local authorities can already regulate. It is not introducing new policy; it is just correcting something which needs to be corrected.
Lord Pannick (CB)
My Lords, the noble Baroness has made a powerful speech, which I find entirely compelling. My only concern is that her amendments are far too modest. If the Private Member’s Bill does not proceed satisfactorily, I suggest that she brings forward on Report an amendment which makes it a criminal offence to operate such a vehicle in London without a licence.
Lord Berkeley (Lab)
My Lords, I am probably alone on this one: some years ago I went away from my wedding service in a pedicab in London, and I rather enjoyed it.
I understand where the noble Baroness is coming from, but I think the definition in this amendment will cause a few problems. It says that a pedicab is
“a pedal cycle, motor cycle or power-assisted cycle, or such a vehicle”—
I did not know that cycles were vehicles, but maybe that is right—
“in combination with a trailer, constructed or adapted for carrying one or more passengers.”
My daughter used to take her children to school sitting in a trailer on the back of a bicycle, and that would be covered by this amendment. I do not quite see why she should not continue to do that. It was not motor-assisted, but it could have been. This needs looking at.
I think what the noble Baroness is getting at is that she does not like the look of these things. I would agree—they do not look particularly nice. The biggest problem is that many are not insured. That is a serious problem. Whether they need controlling or licensing by TfL needs a bit of debate. The black cabs obviously do not like them because they take away business. Are we in the business of protecting black cabs because they look nicer than these pedicabs that go around with not just lights flashing but some pretty horrible music coming out of them sometimes? On the other hand, are we here to regulate music and pedicabs? I do not know. The key for me is that they should have third-party insurance at the very least. Whether their fares should be controlled is a debate that is probably down to TfL to decide. Secondly, who is going to enforce this?
The other type of “vehicle”, if you can call them that, are freight cycles, which are beginning to appear in the streets of cities, London included. Sometimes they have two wheels, sometimes three or four—I do not have a clue which—but they distribute freight to outlets in the city as an alternative to trucks and vehicles, which cause a lot of pollution if they are not electric. Do we want to prevent them going around? They might be plying for hire, and the customers would be moving freight, not passengers. Whether they should be insured is debatable, because cycles are not required to be insured at the moment, and I expect we will have a debate about scooters in a couple of years’ time. But it is questionable whether a freight cycle, with or without power assistance, should be covered by this. I suggest that it should not be. This goes back to the only issue on which I think I disagree with the noble Baroness, which is insurance, because they are carrying passengers for hire. If I am carrying my family or some friends as passengers in a trailer on the back of my bike, I do not see why I should have to be insured if I do not feel like it. I think that is the same as on a bicycle.
I hope the noble Baroness will consider these issues. If she comes back on Report with a changed amendment, she should confine it to things which really matter from the safety point of view, rather than widening it to freight, family trips or something else.
Earl Attlee (Con)
My Lords, I rise briefly to support my noble friend. It is ludicrous that pedicabs are regulated in some parts of the country but not in London.
Baroness Randerson (LD)
My Lords, the noble Baroness has made a very strong point about an issue which applies only in a specific part of the country. Most of us do not have experience of this issue. As the noble Lord, Lord Berkeley, said, there is a more general trend in the use of bikes as cargo bikes—and, indeed, my own son also used to take his young children around in a little cart behind his bike. It used to worry me greatly. The girls no longer like to be reminded of it, but they seemed to think it was great fun at the time. Of course, the issue of insurance is important. It seems to me that the point the noble Baroness has made is that there is a long-overdue need for a review of hire services—vehicles for hire—and since the use of bikes is much more common these days, we really should include them in that review.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I too agree that the noble Baroness made a compelling speech, with which a lot of people who live in London will have a lot of sympathy. I also agree with my noble friend Lord Berkeley, who raised the issues of cycles for freight, insurance and how the very rapid development of small electric vehicles and bicycles expanding their remit in London is a wider problem that needs to be addressed. The noble Baroness, Lady Randerson, also made that point.
As I have said to the Committee before, I sit as a magistrate in London, very often in Westminster. I remember dealing with pedicabs a number of years ago. Those offences were brought to our attention by Westminster City Council. From memory—this is a number of years ago—it was usually to do with pedicabs being parked on pavements, with the police bringing people to court through the council and impounding some vehicles. I have not seen those offences for several years now. I do not quite know what has changed—perhaps Westminster City Council does not feel it has the power to do that anymore, I do not know; it is a moving target. Nevertheless, I think the central point of the noble Baroness’s amendment is powerful.
I do not know whether there are any practical problems with harmonising the regulations with the rest of England and Wales, so I look forward to what the Minister says on that point.
Lord Sharpe of Epsom (Con)
My Lords, I am grateful to my noble friend Lady Stowell for comprehensively setting out the case for these amendments, which relate to the regulation of pedicabs. As she pointed out, Clause 66 relates to motor vehicles which are defined as “mechanically propelled”. They are the most dangerous and cause the most harm, so it is logical that they are the focus of this clause.
The noble Lords, Lord Berkeley and Lord Ponsonby, and the noble Baroness, Lady Randerson, mentioned other types of similar vehicle that might be caught by this, so it is perhaps worth mentioning what the Government are doing on cycling offences. In 2018, we held a consultation to consider cycling offences causing serious injury or death, as well as reviewing existing cycling offences. The Government feel that any new offences applicable to cyclists, with or without a trailer, are best legislated for as a package, rather than piecemeal. Moreover, we believe that there should be a separate framework of cycling offences, as compared with motoring offences, as it may not be proportionate to apply to cyclists offences intended for drivers of motor vehicles and their corresponding penalties. The response to the consultation will be published in due course—I hope before the end of this year, but early next year at the latest.
The wider question of the regulation of pedicabs, including that of noise nuisance caused by sound systems located on pedicabs—which I agree from experience can be ear-splitting—is not a straightforward issue. In England, pedicabs generally fall under the taxi and private hire vehicle licensing regime, as various noble Lords have mentioned, in that they can be regulated as a hackney carriage—a taxi. The exception to this is London, where, as my noble friend Lady Stowell explained, they fall outside the existing taxi legislation. It should also be noted that taxi and private hire vehicle legislation is a devolved matter in Scotland and Wales, although the legislation that applies in Wales is the same as that which applies in England.
The Government are aware of the long-standing concerns that pedicabs contribute to safety and traffic-related issues in central London. The current situation in London means that there are few existing powers to control pedicab operations effectively. This has meant that pedicab operators, drivers and their vehicles are not licensed, there are no requirements for drivers to undergo criminal record or right-to-work checks, as there are in other industries, and there is no fare control. And there may very well be insurance issues, as the noble Lord, Lord Berkeley, mentioned.
The Government agree that it is in the interest of safety and fairness to passengers to fix this legal anomaly and, as my noble friend Lady Stowell noted, a Private Member’s Bill that would enable Transport for London to regulate pedicabs in London is currently being taken forward by Nickie Aiken MP—the Pedicabs (London) Bill. I am pleased to confirm that the Government intend to join the very long list pointed out by my noble friend and support this Bill. I am therefore happy to offer her a meeting with the Minister, my noble friend Lady Vere, to discuss this further, if she would like. I commend my noble friend for raising this issue. We agree that it needs to be addressed, and I hope she is reassured that the Department for Transport is on the case. For now, I hope my noble friend feels free to withdraw her amendment.
Baroness Stowell of Beeston (Con)
My Lords, I will certainly withdraw the amendment. I am grateful to my noble friend the Minister for making clear that the Government support the Private Member’s Bill, and I will of course accept the offer of a meeting with my noble friend Lady Vere—although, if it is a meeting we have to have because the Private Member’s Bill has not been successful in its Second Reading on 19 November, I hope the Minister is ready and prepared for action to take us further forward.
I am grateful to the noble Lord, Lord Pannick, for his suggestion, which I will certainly consider, if necessary, and discuss with the Government in the first instance. I would very much prefer government support if it is necessary to take this step.
I also reassure the noble Lord, Lord Berkeley, that it is certainly not my intention, nor that of my honourable friend Nickie Aiken in her Private Member’s Bill, to include the kinds of vehicles he describes—the domestic arrangement where a parent may have a small trailer on the back, with small children in it. This is about vehicles that charge passengers to transport them.
I also take on board the points made about the nature of the new ways of transporting freight using cycles within London. That is why I emphasised in my opening remarks that, on pedicabs more generally, there was a time when there was a real effort to ban them altogether. Now we realise that, with today’s environmental challenges, there is scope for vehicles that use pedal power, as opposed to standard motorised power.
I am grateful to all noble Lords who spoke in support, and to my noble friend Lord Attlee. I hope that I do not need to come back on Report to detain your Lordships further on this but, if I have to, I will. I beg leave to withdraw the amendment.
Lord Hope of Craighead
“(3) A person is to be regarded as having caused a serious injury to the other person using the road or place only if it would have been obvious to a careful and competent driver that the way the person was driving at the time of the accident was likely to cause serious injury to that other person.”Member’s explanatory statement
This amendment would introduce a test for the words “causing serious injury”, which is needed as a conviction for this offence would attract a sentence of imprisonment.
Lord Hope of Craighead (CB)
In moving this amendment, to which the noble Baroness, Lady Randerson, has put her name, I will speak also to my opposition that Clause 66 stand part of the Bill, to which the noble Baroness, Lady Randerson, and the noble Lords, Lord Marks of Henley-on-Thames and Lord Pannick, have added their names.
The essence of the point I wish to raise, which is about imposing sentences of imprisonment for the consequences of an act of careless driving, was put across with great clarity by my noble and learned friend Lord Judge, in his contribution to the previous debate. But if your Lordships will forgive me, I would like to take some time to explain my position on Clause 66, as it raises important issues that affect every driver, however careful and considerate they almost always are.
Clause 66 seeks to introduce a new offence of causing serious injury by careless or inconsiderate driving. As the law stands, causing death by careless driving is a separate, distinct offence but causing serious injury by careless driving is not. That might suggest there is a gap in our law that needs to be filled. Indeed, at one time, it was thought that the fact that a serious injury had resulted from careless driving was not to be taken into account at all when the motorist was being sentenced for careless driving, but that is no longer the case. Under the current sentencing guidelines, that harm has been caused to others is now a relevant factor when a court is sentencing for careless driving, so there is, in practice, now no such gap. It seems that the issue at the heart of this debate is whether the current sentencing approach goes far enough, whether it needs to be changed, and if so, how far, and in what respects.
The Minister in a contribution to the previous debate referred to the need for balance in sentencing. Under the current sentencing guidelines, one finds a balance. Cases are to be assessed in three categories according to the degree of culpability and the extent of the harm. A case where serious injury has been caused will be in the top category where the culpability is higher or the middle one if the culpability is lower. The maximum fine in both cases is I think £5,000. The appropriate fine level is higher for the top category, for which disqualification is possible but not mandatory, and it permits the imposition of seven to nine penalty points. Cases involving serious injury with lesser culpability, which are in the middle of the category, will attract five to six penalty points but no disqualification.
Clause 66 seeks to provide that disqualification is to be obligatory in all cases of causing serious injury by careless driving, that the upper range of penalty points be extended and that there be no limit on the fines that may be imposed. However, it also proposes that a conviction for this offence may result in imprisonment of up to 12 months if prosecuted summarily or two years if on indictment. The contrast between what the penalties are now and what they would be if this clause were to be enacted in its present form, given that serious harm is already a relevant factor under the current guidelines, is astonishing. That is why I thought it right to draw attention to the issue and to the need for the proposal to be explained and fully justified.
Careless driving is something that every competent motorist will seek to avoid but, human nature being what it is, they will not always be able to do so. Lord Diplock explained the difference between dangerous or reckless driving and careless driving in Regina v Lawrence in 1982—Appeal Cases 510. As he put it, driving is dangerous or reckless where it creates an
“obvious and serious risk of causing … injury … or … damage”.
However, he went on to explain that it is not necessary to show that a driver was conscious of the possible consequences of what he was doing for him to be guilty of driving without due care and attention. Section 3, he said,
“takes care of the kind of inattention or misjudgment to which the ordinarily careful motorist is occasionally subject without its necessarily involving any moral turpitude, although it causes inconvenience and annoyance to other users of the road.”
The noble and learned Lord, Lord Judge, gave striking examples of situations that may arise that caused that kind of situation to occur—the wasp in the car with children, for example. Lord Diplock did not mention causing injury, but I suggest that the fact that a serious injury has resulted from that kind of driving does not alter his assessment of the culpability of the offence—the nature of the offence itself. Of course, the circumstances will vary from case to case, but the offence does not necessarily involve any moral turpitude, criminal mind or wicked behaviour at all. A moment’s inattention may be enough.
The fact that the punishments now being proposed for this offence include imprisonment of up to one year if the offence is charged summarily and up to two years if it is brought under indictment is particularly striking. That is a massive increase in the available penalties. Prisons, after all, are nasty, brutal and dangerous places. Quite rightly, imprisonment is reserved under our road traffic law for only the most serious cases where there has been a deliberate breach of the law of some gravity. This prompts me to ask a number of questions to the noble Lord. Why is such a severe penalty now being proposed for something that does not involve a deliberate breach of the road traffic law but which is mere negligence or inattention? What is the reason for this? What research has been carried out into the need for it, and what thought has been given to the consequences of imposing such a penalty for acts of mere carelessness, albeit that a serious injury has been caused?
One may take the example of the mother in the car with the wasp; something has happened because the children were alarmed and she had a moment’s inattention, and a serious injury resulted. Does a person in that situation really deserve a sentence of imprisonment, or even the severe worry of being faced with the possibility of imprisonment? After all, the imprisonment is one thing, but the fact that you are charged with an offence with a penalty of imprisonment is itself a very serious matter indeed, which is not to be taken at all lightly. I suggest that imprisonment as a punishment for such an offence on its own that is being posed here—of course, I leave aside situations where drink or drugs have been taken, which is a different situation altogether—is grossly excessive and wholly inappropriate.
The risk I fear most when I venture out on to the roads is that of accidentally hitting a cyclist. That risk increases as the days grow shorter, we have increasing hours of darkness and, let us face it, not all cyclists are very visible to people driving motor cars along the road, however careful they may be. They do not always wear Lycra and bright colours and it is sometimes extremely difficult to see them and indeed to be sure which direction they will take their cycle in as you approach them. I fear these cyclists when I see them. There are so many situations where it is not possible, despite one’s best efforts, to create the space that is needed when overtaking. You may have a bus coming towards you on the other side of the road. Of course you can slow down, as I often do, and wait for the cyclist to get to a broader place in the road, but it is not always possible to do that. One has to exercise judgment and take as much care as possible.
However, what if the worst was to happen? The cyclist has fallen off the bicycle and breaks a wrist, possibly an arm or a leg. Of course you stop, because there has been an accident resulting in injury. The police have to be called and, no doubt, an ambulance too. There is then the real possibility of a charge of causing serious injury by careless or inconsiderate driving. In a situation of that kind, almost always the driver will be blamed as the person who caused the accident—that is the way things turn out. Then there is this real prospect of a prison sentence. There is nothing in Clause 66 to tell the magistrates when that would or would not be appropriate. Is that really acceptable? Another question for the Minister: has any thought been given to what the Sentencing Council’s guidelines might be if this offence were to be introduced?
Many of your Lordships will have received an email from Cycling UK with recommendations as to how our current road traffic law should be reformed. The noble Lord, Lord Berkeley, with his amendments in an earlier group, has drawn attention to a number of its recommendations. Its interest in promoting these reforms is very obvious in view of the very real risks that cyclists undertake every day. However, I was particularly interested in its comment on Clause 66, and I hope that I have understood it correctly when I say that it suggests that there should be a greater focus on disqualification and less on imprisonment. Indeed, the noble Lord, Lord Berkeley, made that very point in his speech in an earlier group. Cycling UK suggests that the maximum sentence on summary prosecution should be reduced to six months—of course, I would say that it should not be there at all—and that account should be taken of other circumstances not mentioned here that would increase culpability. I would regard that as an improvement if one is to introduce this offence at all; you look for something else, such as taking drugs or driving without insurance or when disqualified. I do not support all that Cycling UK proposes, but there is an indication in what it is saying, which I endorse, that the Government need to think again, and much more carefully, about what needs to be done to alter the current approach to sentencing, which, as I have suggested, strikes a balance as to what is appropriate between the various degrees which may fall within the ambit of this offence.
Baroness Randerson (LD)
My Lords, as the noble and learned Lord explained very effectively, Clause 66 inserts a new Section 2C into the 1988 Act, introducing a new offence of causing serious injury by careless or inconsiderate driving. The offence is committed by driving
“without due care and attention, or without reasonable consideration for other”
road users. Serious injury is defined as physical harm amounting to grievous bodily harm under the terms of the Offences Against the Person Act 1861. As the noble and learned Lord set out, the proposed penalties are two years’ imprisonment and/or a fine on indictment and a maximum penalty on summary conviction of 12 months and/or a fine.
The noble and learned Lord, Lord Hope, and I are unashamedly having two stabs at this issue. Amendment 155 takes the narrow view, introducing a test for the words “causing serious injury”. This is needed because it will be an imprisonable offence. The Government have defined “serious injury” but not “causing”. Our amendment suggests a form of words which indicates that to be found guilty of this you have to have displayed blatant disregard for the normal rules of care on the road. It is important for us to remember that driving is the one day-to-day activity by which a law-abiding citizen can kill another law-abiding citizen through simple inattention. I expect most noble Lords are drivers and, if they search their hearts and memories, I am sure they can think of an incident in their driving history when they have done something careless—when they have failed, despite perhaps taking care, to notice a cyclist or another car. Usually that is a moment that passes without anything terrible happening, but sometimes there is an accident.
If we are going to move towards imprisoning motorists for being careless, we need to be extremely careful. Criminalising motorists is a dangerous direction. Most motorists involved in accidents which result in serious injury or death are stricken by an overwhelming sense of guilt. In many cases, it wrecks the rest of their life. Rather than needing imprisonment, they need to ensure that in future they are much better drivers. Why do we send people to prison? We send them to prison to protect society. It is not likely that we need to protect society from the normal careless driver. We need to send them to prison to punish them—to be punished for simple carelessness.
The suspicion must be that the Government are seeking to create a new offence to catch those motorists who are charged with, but not found guilty of, dangerous driving. For 20 years, I was a magistrate. It is, and was, normal for alternative charges to be brought: careless driving and dangerous driving. I well recall occasions when the CPS simply failed to prove dangerous driving for one reason or another. I believe we are in a dangerous position if we start creating new offences to cater for the failure of prosecutors to make their case. Just as there is a difference between murder and manslaughter, there is a clear difference between careless driving and dangerous driving. In opposing that the clause stand part, we are proposing that there is no need for this new offence. As an alternative, we offer Amendment 155, which provides much-needed clarity on the degree of carelessness that must be involved.
There is a tendency to a knee-jerk reliance on custodial sentences. Most drivers, even bad drivers, do not need prison to improve their behaviour. Prison costs the public purse massive amounts of money. It destroys marriages and families and the ability of the prisoner to get a job on release. It often destroys their mental health. Prisons are not called “universities of crime” for nothing; they create better criminals. Bad drivers need more appropriate sentences. Careless drivers need more appropriate sentences, such as driving bans, retraining, which is really important, community sentences, restorative justice or fines, but not prison, except in the most extreme and persistent cases.
Lord Pannick (CB)
My Lords, I have added my name to the suggestion that this clause should not stand part of the Bill. I agree entirely with what was said by my noble and learned friend Lord Hope and the noble Baroness, Lady Randerson, on the punishment of imprisonment. There is an important difference of principle between causing serious injury by dangerous driving and causing serious injury by careless or inconsiderate driving. The principle is that the offence of causing serious injury by careless or inconsiderate driving falls into the category of “There but for the grace of God, go I”. It is very difficult to see why the penalty of imprisonment should be appropriate when all the steps being taken in the criminal justice system are to recognise that we send far too many people to prison and that prison has, as the noble Baroness, Lady Randerson, eloquently said, very adverse consequences for the offender, their family and society generally. The Government need to present a most compelling justification for a proposal that more people should be sent to prison in circumstances such as this.
Earl Attlee (Con)
My Lords, I support everything that noble Lords have said so far. Unless the clause is significantly amended along the lines suggested, I could not possibly support it if it were taken to a Division.
Lord Thomas of Gresford (LD)
My Lords, as this is about causing serious injury by careless or inconsiderate driving, the state of mind—the mental element—is involved. The noble and learned Lord, Lord Hope, referred to the case of Lawrence in 1982, a decision of Lord Diplock. In that same year I was appearing before the Appellate Committee in a case called Caldwell, in which a person who was intoxicated had gone to sleep in the doorway of a hotel, lit a fire to warm himself and severely damaged the hotel. The issue was whether he was reckless in so doing. What was his state of mind, his mental element? It was agreed that he had no intent to do it but Lord Diplock held that the conviction should be upheld because an ordinary person who was not intoxicated would have realised the consequences of what he was doing, although Caldwell himself had not done so. He spent quite a long time in prison, and it took 22 years for my argument to succeed in the case of G in 2002, when Lord Bingham held that Caldwell had been wrongly decided and that the test of the mental element has to be subjective—that is, it is necessary for the person to have a subjective understanding of what is going on. That is very similar to the issue we are discussing in this case.
However, I believe that Clause 66 is simply wrong in principle. It threatens to penalise the outcome of the offence—serious injury—with imprisonment when the mental element of the offence of careless driving is no more than negligence. I accept that there is a precedent for penalising driving offences by reference to outcomes. Clause 65, relating to causing death by dangerous driving or careless driving while under the influence of drink or drugs, has that effect, but dangerous driving and careless driving while under the influence of drink or drugs both have a far more serious mental element than simply careless driving. Dangerous driving involves falling far below the standard of a reasonable driver, and the drink or drugs offence involves deliberate impairment. In either case, the offending driver is knowingly taking a risk with the safety of other road users, so it is his mental element that is being punished in those serious cases.
On the other hand, as other noble Lords have said, careless driving involves driving that falls below the standard of care of a prudent driver—no more than carelessness, negligence or, in the terms of the clause itself, “inconsiderate” driving. A mistake, or inadvertence, may suffice. To make such an offence imprisonable because it results in serious injury is not a step that we have ever taken before, and offends against the principle that the seriousness of an offence should depend not just on the act done but on the state of mind of the offender.
Almost every accident is the result of negligent driving on the part of at least one of the drivers involved—that is, in the absence of mechanical failure or an unexpected event, such as the wasp sting that we have heard about, but such events are extremely unusual. Sadly, a vast number of accidents involve serious injury—a broken limb, for example, being “serious injury” for this purpose. The vast majority of accidents arising from negligence, whether or not they cause serious injury, do not lead to prosecutions. The clause would leave it to police and prosecuting authorities to pick out the few accidents that they wished to lead to prosecution, and would expose drivers to the risk of imprisonment for an accident that arose out of a simple mistake.
Lord Falconer of Thoroton (Lab)
The noble Lord has made a very interesting speech, but is it right that negligence and the harm that it does cannot be reflected in imprisonment for any criminal offence? What is the position in relation to health and safety at work? My understanding of the law is that once someone is convicted of what is in effect negligence in relation to providing conditions at work, the court can take such matters into account—for example, if they were negligent and someone lost an eye, that would increase the penalty, and imprisonment would be a possibility. I might be wrong about that.
Lord Thomas of Gresford (LD)
That is an interesting point. Manslaughter can obviously be by negligence.
Lord Thomas of Gresford (LD)
Gross negligence, yes—although it is interesting that the word “gross” is put before it. But these are different offences, and it may be that I should confine my criticism to the road traffic situation and not extend it as a general principle of English law.
Lord Beith (LD)
My Lords, there have been some powerful contributions to this debate. I agree with the comments that the noble and learned Lord, Lord Hope, and my noble friends have made.
It is perhaps necessary that we should say in the debate that there are members of the public whose families have been drastically affected by serious injury resulting from careless driving who feel that there should be a stronger penalty, and that the particular circumstances in the accident with which they are familiar justify a stronger penalty. This is the simple point I want to make: the territory that we enter here is of believing that prison is the only way that society can say, “We are not going to put up with this. This is very bad. Drivers should drive better, and people should be aware of the dangers that they engage in if their concentration lapses.” Prison is probably one of the least effective ways of dealing with the individuals that we are talking about.
As my noble friend Lady Randerson pointed out, the effects of these accidents—or rather incidents, following the noble Baroness, Lady Jones—which result in serious injury are devastating for all those involved. However, the Government need to resist the constant temptation to believe that spending a lot of money on sending people to a place that will not improve their driving—or indeed anything—but is likely to lead to despair and reduce their ability to contribute to society in years to come is a sensible course of action. They should recognise that this is a misuse of the expensive, although important, resource of custody.
Lord Berkeley (Lab)
My Lords, can I just ask the noble Lord, Lord Thomas, why he thinks that an offence in the transport sector might be different from the Health and Safety at Work etc. Act? Is it because transport is a middle-class crime and health and safety is not, on the whole, or is there something different?
Lord Thomas of Gresford (LD)
Driving is an activity which is universal. Equally, the mistake—or negligence—is also universal, and I do draw that distinction. I appreciate where the noble Lord is coming from, but that is the distinction I make.
Lord Marlesford (Con)
My Lords, I very much agree with the noble and learned Lord, Lord Hope, and other noble Lords who have spoken. It seems that there is a perfectly obvious, very serious penalty which can be applied to the most egregious cases of careless driving, where there is very serious injury, and that is a lifetime ban on driving. That would be much more effective than imprisonment.
Earl Attlee (Con)
My Lords, there is an obvious difference between an offence of careless driving and a health and safety offence: the health and safety offence is ongoing—someone is operating a dangerous machine, they have not done proper risk assessments—whereas an offence of careless driving can be a momentary lapse.
Lord Judge (CB)
My Lords, I wonder whether I should say that I am not going to make a second speech polishing up my first. I apologise to my noble and learned friend Lord Hope that I got my words in before he did.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I have to say that I find myself in the somewhat invidious situation of supporting the Government. The Labour Party supported this clause in the other place; we agree that it fills a gap in the law and allows the high level of harm caused by these incidents to be recognised.
The debate has focused essentially on the possibility of imprisonment for careless driving, and the noble and learned Lord, Lord Hope, made it clear in his speech that that was the burden of his objection and the reason he was moving his amendment proposing that the clause do not stand part of the Bill.
The burden of the argument made by the noble Lord, Lord Thomas of Gresford, was that the mental element in the case of careless driving is no more than negligence and the noble Earl, Lord Attlee, said that that would be a momentary lapse, which would have a serious consequence. But when one looks at health and safety legislation, you can indeed have momentary lapses which have very serious consequences. Magistrates occasionally deal with health and safety legislation as well. In addition to that, as part of health and safety legislation that I have seen, it is about a more systemic approach to health and safety within the environment of the factory or whatever you are talking about. Nevertheless, there can be momentary lapses that lead to serious consequences and there is the possibility—although it may be unlikely—of a prison sentence for the director of a company who is responsible for health and safety matters.
As I introduce this, I acknowledge that I find myself in an unusual situation of supporting this element of the Government’s proposals. Nevertheless, I would hope that it would be a very exceptional case, where there is such egregious negligence, that resulted in a prison sentence, when the vast majority of cases are momentary lapses, possibly with tragic results. I would have thought that those types of cases would not result in a prison sentence.
Earl Attlee (Con)
My Lords, the good thing is that the party opposite is being consistent, because it introduced the offence of causing death by careless driving.
Lord Wolfson of Tredegar (Con)
My Lords, the noble and learned Lord, Lord Hope, objects to Clause 66 standing part of the Bill and has tabled Amendment 155 in its place. We have had a very interesting and more wide-ranging debate than we perhaps anticipated when the amendment was put down. Thanks to the noble and learned Lord, Lord Falconer of Thoroton, we have got on to gross negligence. In the time available, it reminded me that it was Lord Cranworth in Wilson v Brett, back in 1843, who said that gross negligence is actually only
“negligence with a vituperative epithet”
attached. That is a little legal chestnut about what gross negligence actually is—in the civil context, I accept.
We need to focus on the fact that we are looking at driving offences, and I will come back later to whether it was a valid comparison put forward by the noble Lord, Lord Thomas of Gresford. The amendment we are dealing with here is perhaps the reverse of the approach taken in the earlier group to Amendment 152. Some of the speeches made in that context, such as that made by the noble and learned Lord, Lord Judge, are also applicable here. With Amendment 155, the noble and learned Lord, Lord Hope, hopes to add additional requirements, thereby raising the threshold for the new proposed offence of causing serious injury by careless driving.
As I said on the previous group, we are back to the issue of relatively low-culpability offences that can attract custodial sentences because the consequences can be catastrophic. Of course, I hear the point made by the noble and learned Lord, Lord Hope—it was a sort of “There but for the grace of God go I” point, if I can summarise it in that way—but, as I have said, there is a balance to be struck between the culpability of the driver and the harm that they cause. The Government believe that the current position—whereby a driver who by careless driving has caused serious injury, including perhaps very serious or life-changing injuries, may only be fined—is wrong. That is why we have created this new offence and why we believe it should be incorporated in the Bill.
I respectfully agree with the point made by the noble Lord, Lord Beith, that we have to have sight of, and due regard to, the consequences of the driving. If I may, I will come back a little later to the other point the noble Lord made, about whether prison is the only way to respond to that.
Having said that, we recognise that the standard of driving required for this offence is relatively low. Careless driving can sometimes amount to no more than a short period of inattention—we had the example of the wasp on the back seat—but we do not agree with the noble and learned Lord that we need to add a requirement explaining what we mean by “causing serious injury”, or that the definition should provide that the notional “careful and competent driver” would know that their driving was likely to cause serious injury. I am grateful for the support—at least on this amendment—of the Benches opposite and of the noble Lord, Lord Ponsonby. He also asked whether prison is the right response, and I will come back to that too.
I make three substantive points in response to the proposed amendment and the clause stand part proposal. First—I will make this point relatively softly, because I think the noble and learned Lord, realistically, if I may say, accepted that there may be drafting issues with the amendment and the scope of it—it would create inconsistencies in the law and that is because this additional test would apply only to this new offence of causing serious injury by careless driving and does not, for example, apply to the offence of causing serious injury by disqualified driving, where it might be argued that the level of culpability is even lower, because there is nothing actually wrong with the driving there at all. I will come back to that in another context.
Lord Pannick (CB)
With his enormous experience of various areas of the law, can the Minister think of any example of where a sentencing court has decided that it is appropriate to send someone to prison, whether in a health or safety context or in any other context, merely because of carelessness? I ask this out of genuine innocence and ignorance.
Lord Wolfson of Tredegar (Con)
I wonder whether health and safety is not, in fact, an example. This is not my area of the law, and I am reluctant to give examples from the Dispatch Box, but I think we have to balance the degree of culpability with the consequences. As the noble Lord, Lord Beith, said, and as the responses to the consultation showed, it is very difficult to look in the eye the family of somebody who has been killed through careless driving, where the standard has fallen below that of a competent driver—not far below; that is dangerous—and say that the most we can do is fine the driver.
Lord Pannick (CB)
I understand the Minister’s argument. My question is whether there are any actual, practical examples of people being given a prison term because of carelessness. Maybe the Minister does not know. I entirely understand that. I would be grateful if he could write to me with an answer.
Lord Wolfson of Tredegar (Con)
Of course, and I will write to the noble Lord with an answer. I just want to be clear what exam question he is setting me. I assume that he is excluding recklessness. He is putting that in a separate box from mere carelessness.
Lord Pannick (CB)
I am considering the proposed offence of carelessness. To be clear, my question is whether there are practical examples of sentencing courts sending people to prison for acts of carelessness. Maybe the noble and learned Lords, Lord Judge and Lord Hope, know the answer. I do not. I suggest it may be relevant.
Lord Wolfson of Tredegar (Con)
The noble and learned Lord, Lord Judge, is very kind. I was going to say that, because I am standing up, I will spare the blushes of the noble and learned Lords, so that they do not have to get up. We will look at the exam question from the noble Lord, Lord Pannick. We have to be careful with our terms. It may come back to the point that I made to the noble Lord, Lord Thomas: we must be careful not to confuse “careless”, as in careless driving, with negligence. It is not necessarily the same concept.
I think I was about to sit down and allow—
Baroness Randerson (LD)
I simply wanted to add that, when the Minister writes to us, perhaps he could give due consideration to the word “inconsiderate”. One could, unusually, be sent to prison for it.
Earl Attlee (Con)
My Lords, on a couple of occasions, my noble friend the Minister has said that the only disposal available to the courts is a fine. Surely, disqualification is available? For most of us, that would be a very severe penalty.
Lord Wolfson of Tredegar (Con)
I accept that it may be a severe penalty. It depends who you are dealing with, and the circumstances. There are other factors which the courts have to bear in mind when considering the particular effects of disqualification on a particular driver.
Lord Hope of Craighead (CB)
I hope the Minister has sat down, because I thought it was time for me to wind up. I am very grateful to all noble Lords who have contributed to this debate.
I hope the Minister will appreciate—I think he does—that my Amendment 155 is simply an attempt. I said that it was not cleverly drafted, and he has made it clear that it has problems attached to it. The essence of my intervention is on Clause 66 and imprisonment. Disqualification is fair enough. I can see that taking people off the road meets almost every situation. The same is true with fines. It is quite remarkable that there are no other non-custodial penalties. What about other orders, such as retraining, community service, or something of that kind? They are not mentioned here. As the noble Lord, Lord Beith, pointed out, the emphasis on imprisonment as the alternative is endemic in the Government’s approach. It is seriously wrong in this situation.
Two phrases came up in the course of the discussion. The noble Lord, Lord Ponsonby, said that only in an “exceptional case” would a custodial sentence be thought appropriate; I understand that and entirely follow it, of course. The Minister said that he contemplated a “serious, life-changing injury” where he might find it difficult to look into the eye of the victim and say, “We cannot equate it to the sort of sentence that involves imprisonment. We cannot provide a custodial sentence to make up for the devastating consequences of the injury.”
The problem is that, as it stands, the clause is completely open-ended. There is absolutely no qualification to narrow down the situation described by both noble Lords. That is what I was trying to do with my Amendment 155, and is part of my complaint. If you introduce sentences of imprisonment, you really have to think about whether the nature of the offence or the circumstances that give rise to that kind of penalty should be more carefully defined. Otherwise, we are at the mercy of magistrates, who vary and may misunderstand the situation.
Of course, as I mentioned in my earlier speech, the mere threat of imprisonment is a devastating situation. I go back to example given by the noble and learned Lord, Lord Judge, of the mother in the car. Her children will ask, “Mummy, does that mean you’ll have to go to prison?” The family must live with the possibility of imprisonment and all its consequences until, eventually, the moment arises when the sentence is pronounced. Even when there is no imprisonment, the fact that this hovers over a family in that situation is devastating enough.
I hope that the Minister will think more carefully. Perhaps the noble Lord, Lord Ponsonby, will also think more carefully about his party’s approach to this problem, because there is more to it than was thought at first sight. I welcome the suggestion of ongoing discussions; I hope that, with the noble Baroness, Lady Randerson, we will be able to have a discussion with the Minister to see whether some attempt can be made to qualify the open-ended nature of this offence to make it a little less devastating.
For the time being, I beg leave to withdraw the amendment.
“(c) a local authority or traffic authority;”
Lord Tope (LD)
My Lords, in moving Amendment 156, I will also speak to Amendment 163.
First, I must declare my interest, particularly for these amendments. I am the co-president of London Councils, the body that represents all 32 London boroughs and the City of London Corporation. I am also a vice-president of the Local Government Association.
Amendment 163 is the substantive amendment. It seeks to start the legislative process that would enable London borough councils and/or Transport for London to enforce speed limits of 30 mph or below—I have in mind the 20 mph speed limits in particular—on roads for which they have responsibility and, if they so wish, to apply to the Secretary of State and receive consent.
Lord Berkeley (Lab)
My Lords, I have put my name to this amendment, because it is a really useful proposal from London Councils. The noble Lord, Lord Tope, has well outlined the purpose and the benefits. The idea of a target of zero road deaths—I think that Sweden has a target going back 20 years—is a really important thing to go for in London.
Noble Lords will have seen the changes that have happened in London and other places because of the Covid epidemic. A couple of years ago, London provided much better cycle lanes and reduced some car widths and, in the process, reduced speeds. As someone who cycles around London all the time, I welcome that personally. Hackney, which was one of the first boroughs to go for this, is a pleasant place to pedal around now. It is key that this is done on as great a devolved basis as possible. Devolving it to the London councils seems an excellent idea; I am absolutely persuaded that they are capable of doing it.
The noble Lord, Lord Tope, touched on the £445 million of revenue generated by parking fines in London alone. The RAC Foundation appears to criticise this as milking the motorist but, as the noble Lord said, those people have contravened a regulation so we should not have any sympathy for them. If they had obeyed the regulation, be it on parking or speeding or whatever else, they would not have deserved to be fined. If they do not like being fined, it is quite simple: they should obey the legislation. I look forward to hearing what the Minister has got to say on this but it would be a first step in devolving some of these issues, which should be decided locally. If it is successful, it needs to go to other cities as well.
Lord Sandhurst (Con)
My Lords, I support these amendments. I do so as a resident and ratepayer of the London Borough of Wandsworth; I declare that interest. I was encouraged to speak in this debate and support these amendments by the Conservative leader of that borough. He believes that they are desirable and will be beneficial to the residents of his borough, and he will be answerable to his electorate in due course.
In short, these amendments will, subject to the Secretary of State’s approval, enable but not oblige a borough to take up powers over speeding restrictions and traffic light contraventions. The aim is very simple: to stop people speeding. Because the boroughs anticipate that taking over the management of speed enforcement will create something of a virtuous circle, they will be more energetic about it than the police are. They will enforce speed limits because they have a financial stake in it directly and, because they enforce it and recover the costs, they will have to recycle the money they get in highway improvements, traffic calming and road safety generally.
What is there not to like about that? It will benefit residents and road users. Better enforcement will bring down speeds on residential roads. Lower speeds reduce the level of pollution and particulates. Better enforcement by boroughs will make residential roads safer for pedestrians and cyclists. It is a commonplace that an accident at 30 mph can kill; a pedestrian hit at 20 mph or less has a much more viable chance of survival without even serious injury. So, if these amendments are accepted, there will be immediate health and safety benefit to residents in any borough that chooses to adopt them.
Giving boroughs control over speeding and traffic lights is simply a no-brainer. I stress that boroughs will not be compelled to adopt these powers; it will be for each borough to do so when the time is ripe and it is in a position to carry them out. In summary, these amendments will bring great benefit to the citizens of London.
Lord St John of Bletso (CB)
My Lords, I am afraid that I take a converse view on this. London has a massive problem with increasing traffic congestion, and I do not believe that reducing the speed limit to 30 mph is going to bring the death rate down to zero. On the converse, one of the biggest problems in London is pedestrians crossing the road more transfixed on their mobile telephones than on watching oncoming traffic. I am not opposing this amendment; I am just saying that reducing the speed limit will not necessarily bring the death rate down to zero.
Baroness Hamwee (LD)
My Lords, I do not think that my noble friend is proposing to reduce the speed limit. It is about enforcement of whatever the speed limit is.
Baroness Randerson (LD)
My Lords, this is a very ambitious amendment from my noble friend. It would involve significant changes to the role of local authorities. Before people say that that is not appropriate, it is worth bearing in mind that local authorities already deal with parking issues, which are in the minds of the general public, very akin to the issue of speeding offences. They also have powers, in London and in my city of Cardiff, to deal with certain moving traffic offences, such as entering yellow boxes, driving in bus lanes and so on. It actually does not make local authorities any more popular, so it is important that it is thought through carefully.
Lord Rosser (Lab)
My Lords, like the noble Baroness, Lady Randerson, I do not intend to stand here and announce our 100% support for what is proposed. We are interested in the issues raised and certainly look forward to the Government’s reply. To state the obvious, I say that local councils are key partners and innovators in improving road safety and encouraging the use of different modes of transport. What is proposed is quite a major step forward from that.
I will add one point, to which the answer may well be that the solution is obvious. Simply, if we end up with new powers or duties in this area being granted to local authorities, they must be accompanied by funding. The reply may be, “Well, of course they’ll get the money, because they’ll get it from any fines they might impose”, but it may not be quite as straightforward as that. Making such a move might put a bigger burden and workload on local authorities than might be envisaged. If people are thinking of going down this road, they should make sure that, from whatever source it may be coming, the funding is available.
As I recollect, the Government have plans, for which local authorities have been waiting a little while, to increase local authority powers to manage local roads, under the Traffic Management Act 2004. If I am right, will the Minister give us an update on where we stand on that and what kind of issues the Government are considering as part of any such plans? As part of that, have the Government looked at the issue of speeding enforcement—as suggested in these amendments—at local authority level when looking at any planned increases to local authority powers in this area? As I said at the beginning, we are interested in the issues raised by these amendments and look forward to hearing the Government’s response.
Lord Paddick (LD)
I apologise to the Committee: I was not going to say anything, but I could not resist. There is clearly an issue with people receiving endorsements on driving licences and potentially being disqualified from driving not being dealt with in the criminal courts and through the appeal process that they provide. On the issue around lack of enforcement, does the Minister have any information about the potential use of speed cameras in 20 miles per hour zones to increase enforcement and to what extent speed cameras are self-financing, in terms of the money they generate versus the cost of running them?
Lord Sharpe of Epsom (Con)
I thank noble Lords for taking part in this short but very interesting debate. As the noble Lord, Lord Tope, has explained, Amendment 163 would afford local authorities greater powers in managing speed and traffic light offence enforcement on their roads. I take it that Amendment 156 then seeks to extend the National Driver Offender Retraining Scheme so that it also can be operated by local authorities in respect of decriminalised offences.
The most dangerous traffic offences are punishable by either immediate disqualification from driving—as with drink and drug driving—or endorsement. I am sure that noble Lords agree that, because of their seriousness, none of these offences has been decriminalised and nor should they be—a point that the noble Baroness, Lady Randerson, alluded to. The purpose of endorsements is to disqualify from driving people who show repeated dangerous behaviour and pose a threat to other road users, through the process of totting up penalty points, which of course is a key distinguishing feature of parking fines.
I remind noble Lords that speed offences are one of the types of offence referred to as the fatal four, along with mobile phone use while driving, not wearing a seat belt, and drink and drug-driving. Speed offences share a common feature with these other offences: they are prominent in the causation of fatal and serious collisions. We could not accept a situation where there were some speed limits that the police had no power to enforce.
Likewise, contravening a red traffic light can lead to serious and fatal collisions and that should not be decriminalised either. Traffic lights are provided to manage safety concerns at junctions, and offer safer places for people to cross the road. We have a good compliance record with red traffic lights in this country, and decriminalising enforcement would be likely to undermine that. That would impinge on the safety of all road users, but particularly vulnerable road users, including pedestrians and cyclists.
The Government are concerned that enforcement of civil penalties is not subject to the same rigorous scrutiny as criminal enforcement, and this would affect public confidence and their level of support. In particular, it would be likely to set back the growing public acceptance of speed and red light cameras. The public strongly agree that speed cameras save lives and are not there to make money. That is clearly demonstrated in the findings of the Department for Transport’s 2020 National Travel Attitudes Study, which showed that 59% of respondents agreed with the statement that speed cameras saved lives and only 41% agreed with the statement that they were mostly there to make money. Those figures are an improvement on those of 2011, when the equivalent numbers were 51% and 55% respectively. The Government, therefore, have no intention of decriminalising any of these offences: we believe that doing so would wrongly signal to the public that these dangerous behaviours had become less important.
Furthermore, the police are the primary enforcers of criminal offences, and have so far been responsible for delivering speeding courses. The National Driver Offender Retraining Scheme is run by UK Road Offender Education, a subsidiary of the Road Safety Trust, which is owned by the 43 police forces. This provides central governance, standards and consistency. UK Road Offender Education works with leading experts in road user behaviour to develop, review and deliver high-quality behaviour change courses—and I can personally attest that they work.
The scheme works alongside PentiP, the national Home Office fixed penalty processing system that is used by all police forces in England and Wales. This ensures that a repeat offender is not offered a second course within three years but is instead offered a fixed penalty notice and penalty points, otherwise court proceedings follow. We are not aware of a strong need to allow local or traffic authorities to charge for speeding courses, and there is a lack of evidence for the benefits, or indeed consequences, of doing so.
Unfortunately I cannot give the noble Lord, Lord Rosser, the update that he seeks, but I will write to him. I am afraid that also goes for the question from the noble Lord, Lord Paddick: I will write to him too. Given my answer, however, I hope that the noble Lord, Lord Tope, will see fit to withdraw his amendment.
Lord Tope (LD)
My Lords, I am grateful to the Minister, particularly for revealing how close he came to a criminal conviction on this. The fact remains, whether we like it or not, and generally the public do like it, that there are 20 mph speed limits not just all over London but all over the country, which are by and large not enforced, and drivers know it. Their being disregarded in such a way brings the law into ridicule. As I said in my opening comments, I accept that we have an issue here. I have discussed it with my noble friend Lord Paddick, who I first had discussions with when he was borough commander in Lambeth and I was chair of the Metropolitan Police Authority’s finance committee, when he told me Lambeth was not sufficiently resourced.
These issues must be tackled. We cannot go on with a lot of 20 mph speed limits which most motorists take no notice of, and absurd and ludicrous enforcement rates. I said this is the start of a process; I hope the Government will engage in debate and conversation about how to tackle this, and work with London borough councils and others—as this is a nationwide issue—to see how we can better solve this problem. We do not want this to be batted back and forth like the parking debate in London 30 years ago, when the Met believed they would be severely disabled if they were not enforcing parking in London. I bet they would not say that now. If we asked the Met to take back responsibility for parking in London, your Lordships know what the reaction would be.
I will withdraw my amendment, but this debate will not go away. I hope that the Government, local authorities and others engage in positive thinking about how we solve this and make local authorities, which are by and large responsible for getting the 20 mph speed limits introduced, responsible—I stress the word—for their enforcement too. I beg leave to withdraw the amendment.
Police, Crime, Sentencing and Courts Bill
Monday 8th November 2021
(2 years, 6 months ago)
Lords ChamberRead Full debate Police, Crime, Sentencing and Courts Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 40-VII Seventh marshalled list for Committee - (8 Nov 2021)
“Alcohol limits
(1) In section 11(2) of the Road Traffic Act 1988 (interpretation of sections 4 to 10), the definition of “the prescribed limit” is amended as follows.(2) For paragraph (a) substitute—“(a) 22 microgrammes of alcohol in 100 millilitres of breath,”.(3) For paragraph (b) substitute—“(b) 50 milligrammes of alcohol in 100 millilitres of blood,”.(4) For paragraph (c) substitute—“(c) 67 milligrammes of alcohol in 100 millilitres of urine,”. (5) In section 8(2) of the Road Traffic Act 1988 (choice of specimens of breath), for “50 microgrammes of alcohol in 100 millilitres of breath” substitute “31 microgrammes of alcohol in 100 millilitres of breath”.”
Lord Brooke of Alverthorpe (Lab)
My Lords, Amendment 157 would insert a new clause to lower the drink-drive alcohol limit in England and Wales from 80 milligrams to 50 milligrams of alcohol for 100 millilitres of blood and to make appropriate adjustments for breath and urine samples too.
I remind the House that I moved a similar amendment to the Road Traffic Act at Second Reading of a Private Member’s Bill on 29 January 2016. A full report is in Hansard of that date—in vol. 768, no. 102. I spoke then for 20 minutes. I reassure noble Lords that I am not going to do anything like that today.
Lord Brooke of Alverthorpe (Lab)
However, on rereading this speech, I was so pleased with the evidence-based arguments that I had advanced—which, as I say, I am not going to repeat this evening—that the more I read it, the more I realised what a shame it was that although the Bill went through this House, and I remind my colleagues here that they voted for it last time around, the Government would not give it time when it went to the Commons for it to be dealt with there.
Since 2015, matters have got worse rather than better, particularly in the last two years. The figures plateaued between 2015 and 2018, but we saw some serious injuries and deaths in 2019—a total of 2,050. A total of 230 people died, up from 200 in 2015, when I last addressed this issue. There was also an increase of 8% in seriously injured casualties compared to 2018. Will the Minister confirm whether the figures I am quoting are correct? If I am not right then I would be pleased to be corrected, but I think I am on the right track.
This country had a very good record in the last century. We led most of Europe. We trailblazed in addressing injuries and deaths on the road and all the aspects of them. However, over the years our leadership has started to diminish. This is in part because we have been unwilling to change. Had we gone back to my 2015 data, I would have been talking about Baroness Castle and the way that she introduced it, and asking how we alighted on the 80-milligram figure. It was plucked out of the air with not a great deal of evidence behind it, and work done subsequently indicated that it was very high indeed and should have been lowered.
We have ended up here, where we see that the rest of Europe is at 50 or below, with some as low as 20, and only two countries—England and Wales and Malta—have retained the figure of 80. The question is: have we done the right thing in persisting with holding to 80? Some of the Scandinavian countries that are doing extraordinarily well in reducing deaths on the road are way down at the 20 milligrams level.
Why do these countries have lower limits? It is because all the evidence shows that 80 milligrams in the blood increases the risk of a driver’s involvement in a collision, by three times for collisions leading to injuries and by about six times for collisions leading to death. Even at the lower BAC level of 50 that I am advancing in my amendment, and I am grateful to my colleagues who are supporting me—the noble Baronesses, Lady Randerson and Lady Finlay, have put their names to this amendment—carries substantial risks for people who are inebriated at that level. It is not an easy ride; it is a risky one. Those levels of risk, if the Government are prepared to accept our figures, would be reduced respectively to about 1.5 and 2.5 times more, by comparison with the figure of 80 milligrams. That is a stark difference.
I ask the Minister to say why the Government declined in 2016 to make the change and whether these academic assessments are right that we are permitting people to legally drive at a limit that is a danger to life and limb and we refuse to change it. Where is the evidence for continuing with what we are doing at the moment?
The Scottish Government, as we are aware, cut the limit to 50 milligrams in December 2014, Northern Ireland has legislated to follow suit, and the Welsh Government would like to do the same if they had permission from us. Initially, Scotland saw a decrease in the number of deaths and injuries, but later reports show that what has been happening there is not quite so encouraging as they first experienced.
I will be very straight about the facts. I am not going to pretend that it produced as good a result in Scotland as we would have liked, but there are some other factors to be taken into account there. They did not run any particularly big advertising campaign to try to drive it home. They did not give any further resources to enforcement. There is a range of things they could have done to make it more effective. Initially, certainly, there was some beneficial change. Lives were saved. If a few lives were saved, I am sure they would argue that it was worth doing. They probably need to do more now. The Minister was nodding. I anticipate that he will quote Scotland and say that they need to keep an eye on it—the Scottish results are not convincing enough for us to change.
I have identified a weakness, and I share the view that enforcement is vitally important. With the help of the noble Earl, Lord Attlee, we have produced a solution on the enforcement front in Amendment 164, to which he will speak at greater length. We always try to be helpful. It is important to cut the number of deaths and the rising number of serious injuries. We must find any possible way to discourage people from drink-driving. Reducing the limit to 50 would be a discouragement. Support for the second amendment, to introduce random breath testing, need not necessarily mean incurring the use of greater resources. We believe that, on balance, it would provide a deterrent which would have a very dramatic effect on the way thatusb people who still continued to drink and drive would respond.
There is evidence from abroad. It has been particularly effective in Australia, where they have followed this practice. Australia had a very bad record on drinking and driving. The introduction of random breath testing has changed it quite dramatically. People no longer drink and drive as they used to do. Lifestyles have changed. We can do the same in this country.
The life of each individual is unique. It behoves us to take every opportunity to end the selfish killing and maiming by drunk driving. There is a particular category of repeat offenders. The reality is that the police often know who these people are, but unless they commit a traffic offence, the police cannot stop and breath-test them. If the second amendment is adopted, along with the first, I believe it would make a quite dramatic change in lifestyles and in respect for each other. Random breath testing would reduce deaths and injuries.
Driving under the influence of drugs is also an important issue to be addressed. We are not endeavouring to do this, or to complicate the issue here. In this context, we are simply dealing with alcohol. We will need to come back and look at people who take drugs. For the moment, this is about alcohol. It is about a relatively modest change with no great requirement for additional resourcing. It is about focusing on the area that really needs addressing. I trust that, this time round, the Government are prepared to support it, rather than to oppose it in the way that they did last time.
Baroness Finlay of Llandaff (CB)
My Lords, I have added my name to this amendment. I declare that I chair the Commission on Alcohol Harm.
This amendment would simply bring us in line with other EU and Commonwealth nations. It has been estimated that this amendment alone could save at least 25 lives a year and prevent 95 casualties. This may not sound like a large number, but the majority of those who die on the road are young adults or children in accidents involving drink-driving. Men are far more likely to have been drinking: 78% of male drivers were involved in drink-drive accidents, against 69% of men in other types of accidents. Where casualties are involved, the numbers are also higher for men—67% where alcohol was involved, against 60% for all reported accidents.
Sadly, Wales does particularly badly, with a higher percentage of casualties in drink-drive accidents than in Scotland or England. When we look at the age of people involved, it is quite chilling. Most of the pedestrian casualties are children and young adults, most of the pedal cyclist casualties are children and young adults, and the motorcyclists are young adults. The car occupant casualty rate is higher when alcohol has been involved in the accident. The drink driver does not only kill themselves; the tragedy is that they will kill somebody else’s child or parent. If death is not the outcome, life-changing injuries often are. It has been estimated that around 5%—one in 20—of all casualties in reported road accidents involved alcohol in one way or another; often at least one driver or rider was over the drink-drive limit.
I look back in horror at my childhood, when “Have one for the road” was said as somebody left the house after coming round for dinner. The accident rate then was absolutely appalling; many people of my age can probably remember somebody who died in one of those accidents. However, if we look at 2019, despite Covid looming across Christmas and the festive season, there were 230 verified drink-drive fatalities, with a provisional estimate of 280 fatalities for that year involving drink. That constituted 13% of all casualties on the road, and there were 7,800 drink-drive casualties, accounting for 5% of all casualties on the roads.
In the report from the alcohol harms commission that I chaired we pointed out that in 2017, the Department for Transport estimated that 310 pedestrians and 110 cyclists were casualties in drink-drive accidents, including 60 children aged nought to 15. One police witness, Sergeant Mick Urwin, described the impact of drink driving. Apart from the perpetrators, who lose their licence and often their job and may be imprisoned, the greatest impact is on the family of someone killed or seriously injured by a drunk driver. It is devastating. He explained that
“delivering a death message to a parent, brother, sister, son or daughter to inform them that someone has been killed by a drink driver is not something I ever got used to.”
We had evidence from the ex-wife of an alcoholic about how difficult it was to persuade her children not to get in the car if they thought that daddy had had a drink. Fire officers told us that they now rescue more people from road collisions than house fires, and many of them are due to drunk-driving. A survey by Drink Wise, Age Well of 16,700 people over 50 found that drink-driving was commonplace among high-risk drinkers: 30% reported that they had driven when they thought they were over the legal limit in the preceding year. That is a huge number of people who are aware that they have drunk too much but who think they will get away with it.
If one young parent dies in a drink-drive accident, they are likely to leave orphaned two or three children. Those children’s life chances are seriously damaged, with higher rates of mental health problems and lower school attainment; they are less likely to get into higher education; and they are at a higher risk of suicide later in life—in other words, this year’s drink-driving fatalities leave decades of societal difficulties ahead. The tragedy is that these are avoidable accidents. The simple message: “Do not drink and hold the car keys” is the one to give the public. We all know that simple messages work. We all know that legislation gives messages. That, combined with the simple message that one in eight road deaths involves a driver over the limit, can be enough to bring about the change that we need across society. I do not know of anybody, other than perhaps those in the alcohol retail industry, who objects to lowering the drink-drive limit. We have an NHS that is struggling, a court system with backlogs, and terrible backlogs for psychological support services for young children who are bereaved.
We had a debate earlier about road safety. Nobody will be damaged by lowering the drink-drive limit, but every year hundreds of people will die, and thousands will be damaged, by not acting now. I hope the Government will see it is time to come in line with the rest of the Commonwealth.
Earl Attlee (Con)
My Lords, I rise to oppose Amendment 157 and speak to Amendment 164 in my name and that of the noble Lord, Lord Brooke of Alverthorpe. I am currently drinking only small amounts of alcohol, so I have no personal interest in this matter.
I have listened carefully to the arguments in support of Amendment 157, but I still do not believe it will have the effect desired. I think that all noble Lords in the Committee will agree that any consumption of alcohol will lead to a deterioration in driving standards and increase the risk of an accident. The noble Lord, Lord Brooke, asked where the current limit comes from. The Grand Rapids study of 1964 showed that the risk of having an accident rapidly increased at a blood alcohol concentration—BAC—of 80 milligrams per 100 millilitres of blood or the equivalent. That is why our current limit is set at that level, and I think that is the correct level.
My understanding is that compliant drivers feel uncomfortable driving with a BAC of more than 30 milligrams. My feeling is that the majority of drivers adhere strictly to a limit of 50 milligrams in any case, and when they are caught driving at more than 80 milligrams, it is often a stupid, but criminal, mistake which can arise for a variety of reasons which I will not weary the Committee with. The evidence for this contention is that when the 50-milligram limit was introduced in Scotland, the initial compliance improved by only 12% and I suggest that when a contravention occurred and was detected, it was often the kind of “mistake” I referred to. In this country, we rightly have severe penalties for exceeding the current limit; it is also socially unacceptable. Other countries, as observed by noble Lords, have a limit of 50, but without the severe penalties, at that BAC, that we have.
After the Scottish Government lowered their BAC limit, the noble Lord, Lord Brooke, and I were very keen to see the data, but, I suspect, for slightly different reasons. I was worried that I might be wrong. If that had turned out to be case, I would be supporting Amendment 157. The Scottish Government commissioned research to measure the effect of their changes to the BAC limit. The conclusions were that the change made no detectable difference to the accident rate in Scotland. I never expected it to, and I will explain why in a moment. The Committee will have been grateful for the frankness of the noble Lord, Lord Brooke, when he touched on this point.
The proponents of Amendment 157 will have to explain to the Committee why they think the results in England and Wales would be any different from those in Scotland. According to 2019 DfT statistics, of a sample size of 243 dead drivers, 34% had a BAC of 10 or more, so had been drinking, 25% had a BAC of 51 or more, 23% of 81 or more, 22% of 101 or more, 16% of 151 or more, and 5% were at 200. What these figures show is that most non-compliant drivers are not just slightly over the limit, but far over the limit.
I have argued from the government Dispatch Box that there is a cohort of drivers who are unregulated drinkers. They are clinically dependent upon alcohol, they do not know how much they have been drinking, and they pay absolutely no attention whatever to the legal limits—thus, changing the limit will have no effect on them. The police do not find it very difficult to detect drunk drivers who have made the criminal mistake I have already referred to. They tend to overcompensate and drive too cautiously, and so give themselves away, and thus can be legally stopped by the police. Unfortunately, an unregulated driver is much more difficult to detect. They will drive fluidly for relatively short distances, and therefore with a lower chance of even being seen by the police, let alone being caught.
As proposed by the noble Lord, Lord Brooke, the only way of dealing with and detecting these very dangerous drivers who are unregulated drinkers is for the police to undertake operations where they stop every driver to check that they have not been drinking. I accept that the amendment might not be perfectly drafted, and that some civil rights precautions may have to be put in. However, not only would the police detect more of these very dangerous drivers but the deterrent effect would be considerable. Although it may be imperfect, Amendment 164 achieves this.
Baroness Jones of Moulsecoomb (GP)
My Lords, I declare an interest as president of the Road Danger Reduction Forum. I support both these amendments. It is absolutely ridiculous that we have such high alcohol limits, and we really ought to bring them down. We should say that no alcohol is permitted when you are driving—when you are in charge of a tonne of metal.
I want to make a small point, but it is something that road safety campaigners care very much about. We have heard the word “accident” used a lot. Road safety campaigners ask that we do not use the word “accident”, because that presupposes that it was accidental. It prejudges the situation, and that is clearly not right when something might come to court. They ask instead that we use the words “incident”, “collision” or even “crash”, but not “accident”. There is also an argument for saying that we should not use the words “road safety”, because that is the solution to the problem; the problem itself is “road danger”. We have to get our head around these differences, because it changes the way we perceive such situations.
Baroness Hayter of Kentish Town (Lab)
My Lords, I will not repeat what I said earlier about my own mother having been killed because of a drunk driver—though I did not mention at the time that I also lost my brother-in-law in a different accident. The people who did this were not dependent, unregulated drinkers at all; they were perfectly normal people, who got behind the wheel of a car when they had been drinking. As the noble Baroness just said, this is not accidental. It is deliberate: these people have a drink and then get into a car.
But things have altered in those 60 years. I mentioned seatbelts earlier, and there has obviously been the breathalyser. When I first started campaigning on this, the Government’s Christmas campaign that year was “Stay Low”—it was not even “Don’t Drink”. So we have made enormous progress, and we should not forget that. But it is a journey, and we have not got there yet. We ought to continue on that journey.
Listening to some of the earlier debate, I heard the argument that the way to solve this is not to use sentencing or to send more people to prison. I have a lot of sympathy with this. I think there are times when prison is right, but what we actually want is prevention: we want to stop people getting in a car after they have had a drink.
Just like the changes I have mentioned, we also have to celebrate the fact that the Government and industry have done a lot. There has been a really good dialogue. There is now zero-alcohol beer—my fridge at home is full of it—that tastes very good. It is not like the early stuff; it is very good. There has been a big investment by industry to make that available—you can now get my favourite tipple, Guinness, with zero alcohol. There is the acceptability of water with meals, and a number of pubs serve coffee. We have to accept that this has been a whole-society move, but, as I say, we should not just stop where we have got to; we need to continue on the journey.
Just as the industry has been very good, we should acknowledge what the Government did in the Budget, when they moved to what a number of us have been asking for—oh, for lots of years: that the tax on alcohol should correlate with the strength of the alcohol in the drink. The Government have done that. It will take time for it to be implemented, but we are moving in the direction of understanding that. All of those are great things. It means that there is a much greater choice of drinks, either in the pub or while drinking at home.
However, there is still a problem: people are getting into cars when they have been drinking. I find it extraordinary, even at 50 milligrams. I do not drink at all when I am driving because I know that my foot would simply not hit the brake as fast, even after one drink. I know it would not, so I do not do it at all. Driving round London at the moment, even at 20 miles an hour, I see some cyclists—and I am a cyclist—going round without lights on and wearing dark clothes; you often have to hit the brake very fast. We may need to continue to move that way.
Therefore, I really favour this drop to 50 milligrams. It works very well in France, where much more is done, with proper random breath tests—closing off a road and checking everyone going through. That is what I would like to see. You do not have to do it very often, by the way, just every now and again.
The other possibility—I know we have discussed it in earlier debates—is whether we could move at least to 50 milligrams for new drivers; say, in the first five years of being qualified. My guess is that, once they get used to driving without drinking at all, they would continue that through life. I think some thought and creativity could be given to that.
We need to go further. I hope the Government do not say that they are doing everything they can, that they have an advertising campaign, that everything is brilliant and that we do not need to move any further. While sometimes they have come through Private Members’ Bills, often the changes we have had have been from the Government, whether through Barbara Castle or others. There is a responsibility on the Government to take it a bit further. Therefore, I hope that the response we get will be “Yes, it is time to do more”. And these may be just the two amendments that we need.
Lord Paddick (LD)
My Lords, very briefly, from my professional experience, there is no safe level of alcohol for a driver. The message should be clear to all drivers that you should not drink and drive. I think that the limit should not be set at zero, because you can still have alcohol in your system the following day and there may be a need for some leeway, but at a level a lot lower than is currently the case. Certainly, the levels that are suggested in this amendment are reasonable. There needs to be a significant reduction in the alcohol limit, but perhaps not set at zero.
The other thing to say—I am sure the Minister will address the Committee on this—is that I am not sure that the second amendment is necessary, as the police are entitled to stop any driver to check their documents. If they then detect alcohol, provided the officer is in uniform, they can administer a breath test. I will leave that for the Minister to confirm.
Baroness Randerson (LD)
My Lords, I added my name to Amendment 157. I need to say very little following the speakers today, who have greater expertise than I have—and, of course, the noble Baroness, Lady Hayter, has her own tragic experience to bring to this debate.
I spoke about this issue during Oral Questions last week, and I just want to emphasise a couple of points that I made then. The limit we currently have is 54 years old; the science on which it is based has moved on, and it is outdated. We are not leading the world; we are lagging behind the rest of the world. From Australia to Scotland and the whole of the rest of Europe, we are behind.
Lord Rosser (Lab)
My Lords, I am sure that the House will be grateful to my noble friend Lord Brooke of Alverthorpe and his co-signatories for raising these issues again. This is a vitally important debate. We know that prior to the last election, a Transport Minister said that the Government had no plans to change the drink-drive limit. They did not believe that a case had been made and instead would focus on enforcing the current law. However, in January 2021, the Parliamentary Advisory Council for Transport Safety reported that the UK’s current system to prevent drink-driving was no longer adequate. It recommended a major review across the board on drink-driving, including lowering the legal limit.
Rather importantly, on the issue of enforcement, the PACTS report found that:
“Levels of police enforcement had decreased by 63% since 2009 and there are indications that drivers believe they are less likely to be caught.”
We know that drink-driving is one of the biggest causes of road deaths, at 13%, and that in the last decade 240 people have been killed each year where a driver was over the limit and that 17% of drink-drive offences are committed by a reoffender. We also know that levels of police enforcement have decreased quite substantially.
It is relevant to ask the Government what they are doing in this regard. Having said, prior to the last election, that they would instead focus on enforcing the current law, clearly that is not what has happened. Indeed, the situation appears in that regard to have got worse. Are the Government actively looking at international comparisons that have been referred to today, and the fact that we are higher when it comes to the legal limit than virtually every other country? Have they been looking at, for example, random breath tests? What do they make of the evidence? My noble friend Lord Brooke of Alverthorpe, has been open about Scotland having introduced a reduced drink-driving limit in 2014 which brought them into line with most other countries in Europe. My understanding is that it has been accepted by the public and, interestingly, it has not significantly impacted pubs and restaurants, which was one of the arguments against going down the same road as Scotland. It does not appear to have overloaded the police or the courts, which was another argument, and it seems that Northern Ireland may go even further, at least with a zero limit for novice and professional drivers.
I will listen with interest to what the Government have to say about why we should be so far adrift on international comparisons, and to what the Government have to say regarding the situation in Scotland. I appreciate that my noble friend Lord Brooke of Alverthorpe has given a very accurate statement of the situation, but those arguments which were advanced at the time for not bringing us in line with Scotland, in relation to impacts on pubs and restaurants and the police and courts, for example, have not materialised, as far as I know. I wait to be corrected if I am wrong.
The PACTS report recommended, among other things, mandatory breath-testing powers for the police, a reduction in enforcement levels to be reversed, a lower breath-test limit for England and Wales and for the Government to pay more attention to drink-driving, alcohol harm and night-time economy policies. When he was commenting on the report, the executive director of PACTS said that:
“After 10 years of declining levels of enforcement and social media campaigns aimed at young men, it is time for a new, more comprehensive approach to reducing the toll of drink drive deaths and injuries. Drink driving is often cited as a road safety success story, yet it remains a major killer and progress has ground to a halt since 2010. Not only is better enforcement important but also the problems of mental health and alcohol dependency need to be recognised.”
What has come across in our debate this evening is a recognition that we seem to have stopped making progress; and we are still much higher compared with most other countries involved in the international comparisons. Some of the things that were said about Scotland—that it would be a difficulty if we came down to their level—have not materialised in Scotland. Drink-drive deaths are still at an unacceptable level. We seem to have stopped making progress.
I hope that in the Minister’s response we are going to hear what plans the Government have to bring down the level of drink-driving. It is not good enough that somebody puts forward a proposal to lower the limit and the Government do not agree with it. If the Government do not agree with it, what do they intend to do to improve the situation? Arguments have been advanced tonight as to why bringing down the limit would improve the situation. You can certainly say with random testing that, if the limit is lower, the chances are the random testing is likely to have a more dramatic effect than if the limit is at the present higher level—where we seem to have reached a situation in which a number of those who drink and drive seem fairly convinced they will not be caught or get into difficulties as a result.
I hope we will hear from the Minister tonight what the Government are doing. I hope it will not just be a case of the Government saying, “We don’t agree with an amendment to bring it down to 50, we don’t agree with an amendment about random breath testing”, because if that is their response, it is purely negative. It is saying “We are not prepared to go down the road of the ideas that have been advanced, but we do not have any fresh ideas ourselves—we do not have a programme for reducing drink-driving”—and that, surely, is what we all want to do in view of the level of deaths. I hope we will get a positive response from the Government and a recognition that we need to do something, not rejection out of hand of every idea that has been put forward in our debate this evening.
Lord Sharpe of Epsom (Con)
I am grateful to everybody who contributed to this debate, and I am particularly grateful to the noble Lord, Lord Brooke, for setting out the case for these amendments. I reassure the noble Lord that the Government take road safety very seriously and believe that any form of drink-driving is unacceptable and a serious road safety issue. The Government are committed to tackling drink-driving and ensuring that those guilty of this offence and all such offences are detected and punished. I am unable to confirm his precise figures, but for 2019 the final estimate was that between 210 and 250 people were killed—in deference to the noble Baroness, Lady Jones of Moulsecoomb—in incidents, where at least one driver was over the limit. If I can improve on those figures I will write to the noble Lord.
That number is broadly in line with recent years. We have a combined approach of tough penalties and rigorous enforcement along with highly respected and effective THINK! campaigns. This reinforces the social unacceptability of drink-driving and reminds people of the serious consequences that drinking and driving can have on themselves and others. The Government are obviously aware that the drink-drive limit in England and Wales is one of the highest in western Europe, hence our approach, which I have just outlined.
Turning specifically to Amendment 157 to change the prescribed limits, it is unclear whether it would deliver the desired result—a point well made by my noble friend Lord Attlee. More work needs to be done to see if there will be any such benefit as a result of a reduction in the drink-drive limit. The recent academic study by Bath University demonstrated that there had been no benefit to road safety in Scotland as a consequence of reducing the drink-drive limit. This research highlighted there being no change across all types of accidents involving alcohol as a result of the introduction of a stricter drink-drive limit in Scotland in December 2014.
The Government note—as the noble Lord, Lord Tope, predicted, I am afraid I have to say this—that the University of Glasgow published an independent evaluation of the impact of the reduction of the legal blood alcohol limit in Scotland in the Lancet in December 2018. This evaluation took advantage of the natural experiment created by the lowering of the limit in Scotland only and compared data on weekly road traffic collision rates and alcohol consumption, based on off and on-trade sales data, between Scotland, the intervention group, and England and Wales, the control group. The study found that lowering the drink-drive limit was not associated with any reduction in total road traffic collision rates or serious and fatal road traffic collision rates, but that the change was associated with a small reduction in per-capita alcohol consumption from on-trade alcohol sales, to the point from the noble Lord, Lord Rosser.
Another area that the Government would want to explore in detail is any effect of minimum pricing of alcohol on drinking and driving. We are aware that there is also a public health aspect to drink-driving in both prevention and rehabilitation of those convicted for such an offence.
Earl Attlee (Con)
If the police stopped every vehicle travelling along a certain road, how would that be unfair and disproportionately impact certain communities?
Lord Sharpe of Epsom (Con)
With respect to my noble friend, it would very much depend on the road and how the policy was being implemented, which would be an operational consideration, but I take his point.
I am very happy to put the noble Lord, Lord Brooke, and others who have spoken in this short debate in touch with the Road Safety Minister in the Department for Transport so that they can continue to discuss the further important issues raised by these amendments. I can sense the mood of the Committee, and the noble Baroness, Lady Randerson, quoted some very powerful statistics on public attitudes here, so I urge noble Lords to seek that meeting.
Finally, before I ask the noble Lord to withdraw his amendment, I associate myself with my noble friend Lord Wolfson’s remarks about the personal comments from the noble Baroness, Lady Hayter; she has my deepest sympathy. For now, I invite the noble Lord to withdraw his amendment.
Lord Berkeley (Lab)
Before the Minister sits down, would I be right in saying that, five years after my noble friend made his previous speech, which apparently lasted a bit longer, the number of convictions for drink-driving has gone up by 25% and all the Government can offer is that they will study the figures for a bit longer and do nothing else? Am I being unfair?
Lord Sharpe of Epsom (Con)
With respect, I do not know whether the noble Lord is being unfair, because I do not have the statistics. I will write to him.
Earl Attlee (Con)
My concern is that the Minister does not seem to have any policy that directly targets those drivers who I would describe as unregulated drinkers. His policy may have an effect on people who have made the mistake that I referred to and have around 80 milligrammes of alcohol in their blood, but for the unregulated drinkers who drive far in excess of the legal limit, his policies seem to be totally irrelevant.
Lord Brooke of Alverthorpe (Lab)
My Lords, I am grateful to all noble Lords who have taken part in this short debate. Other than the noble Earl, Lord Attlee, who raised some objections, and I will come to them in a moment, the noble Lord, Lord Paddick, who raised a point about what the police can and cannot do, and the Minister, who had a different interpretation, I think everybody has been singing from the same hymn sheet. The evidence is there and it has got worse. The Government have the opportunity today to set out their stall on what they intend to do. While the Minister has done his best, he has been trying to make bricks without straw. I think the group is very happy to come together and have a meeting with appropriate people on the Government’s side. We will be very pleased to do that, but I give the Minister due notice that this is coming back on Report. It is not going to be left as it is at the moment; some change is required.
Regarding 50 milligrams, I would probably go for 20—the Scandinavian figure. I am sure that the Minister would argue it would make no difference. What matters is the message that is sent to the public at large about what is and is not acceptable. It is wrong that the Government permit a dangerous limit to be in force. Okay, 50 may not be the right limit, but it is less dangerous. I say to the noble Earl, Lord Attlee, that the evidence comes from the work to which we referred. It did not look just at the 80 but at 50, and the further down you go, the less the risk. It is a simple fact of life. The Government either accept it and live with it or change it. I believe that the public are ready for change and that it is wrong that so many people are being maimed and having serious injuries, and the number has been rising. This needs addressing. This matter will come back.
I was very reasonable. I did not make a great thing about Scotland, as I know that some of the evidence is not helpful. There are other counterarguments, which my noble friend Lord Rosser on the Front Bench, advanced in defence of the Scottish position but it is not as comforting as we would wish. The issue is about how we relate to the public at large and how the Government project what is needed to make a change. We are not looking to involve a great deal more police in it or to upset people by being disproportionate. We are looking to present a deterrent. Most people will change their attitude if they think they are at risk of being stopped, and we would start to see some change taking place. We will have the meeting but this will be back on Report.
I suggest to the Minister that he should explore being a bit more flexible. We are prepared to put a sunset clause in the amendment so that the Government can go back to 80 if they wish or to run an experiment, but it is time to make some change rather than leaving life as it was way back in 2015 and see a continual worsening of the position. I beg leave to withdraw the amendment.
Baroness Randerson
“Definition of “exceptional hardship”
In the Road Traffic Offenders Act 1988, after subsection 35(4), insert—
“(4A) In subsection (4)(b) above, the hardship that would be caused by an offender’s disqualification should be regarded as exceptional if and only if it is significantly greater than the hardship that would arise for a large majority of other drivers if the same disqualification were imposed on them.(4B) In assessing whether the hardship arising from the offender’s disqualification would be exceptional, a court may take account of—(a) any circumstances relating to the offender’s economic circumstances or location of residence that would make it exceptionally hard for him to access key services such as grocery shops and postal, banking and healthcare facilities,(b) any hardship that would be incurred by the offender’s family or others who are disabled and who depend on the offender to provide care for them, and(c) any other circumstance which it believes would make the hardship genuinely exceptional.””Member’s explanatory statement
This new Clause provides a definition of “exceptional hardship” for the purpose of RTOA.
Baroness Randerson (LD)
My Lords, at various points in the Bill, the Government are seeking to increase penalties and create new offences, but it is fairly pointless increasing penalties on paper if you regularly allow people to avoid them through what has effectively become a legalised loophole. People avoid a driving ban under the totting-up procedure by pleading exceptional hardship. The problem is that this excuse is being used far from exceptionally. I recall, when in court as magistrates, that we would expect such a plea from some solicitors as a matter of routine for all their clients. The reality is that the definition of exceptional is very broad and applied unevenly.
To give an example, in 2015 Christopher Gard killed cyclist Lee Martin. It was the ninth time he had been caught using his mobile phone while driving. Magistrates had repeatedly accepted that a ban would cause exceptional hardship. There is a case on record of a man being allowed to continue to drive because of the “exceptional hardship” it would cause him if he could not walk his dog—he had to drive a mile to the local park to do that.
This amendment provides a definition of “exceptional hardship”. It is exceptional
“only if it is significantly greater than the hardship that would arise … if the same disqualification were imposed”
on the great majority of drivers. To assist, it gives examples of what the court can take into account.
For example, where you live: if you live 10 miles from the nearest shops and healthcare facilities, halfway up a mountain with no bus service nearby, the ability to drive is clearly very important to you—although, of course, if you live with other family members, you would not be likely to face exceptional hardship because they could probably drive you there instead. If you have to drive as part of your job and will presumably lose your job if you cannot drive, then that would be exceptional hardship; although one wonders whether any employer would want such a bad driver. At the moment, with the shortage of drivers, they might put up with it but in normal circumstances, not so. Clearly, if you are disabled, or a carer on whom a disabled person relies for being taken to the shops, to healthcare and so on, then you would experience exceptional hardship if you could no longer drive. The noble Lord, Lord Berkeley, and I are not being hard-hearted; we are, instead, seeking to ensure that the “exceptional hardship” proviso is used as it was intended to be used.
Finally, to give this some context, in 2020 in England, 33,196 drivers were disqualified under the totting-up procedure and 8,764 people are currently driving around with more than 12 points on their licence. Noble Lords will immediately see from those figures that the “exceptional hardship” plea is being accepted in such a high proportion of cases that it cannot be regarded as exceptional. I urge the Government to give consideration to the need to tighten up that definition.
Lord Berkeley (Lab)
My Lords, I support this amendment and I shall add just a few words to the noble Baroness’s excellent introduction. I have a friend in Cornwall who is quite famous and about a year ago he was caught driving at about 80 mph in a 50-mph zone. He already had 12 points on his licence, so he pleaded exceptional hardship because he had to visit his ailing mother every day. He was allowed to keep his licence. Two months later, exactly the same thing happened and he made the same plea. As noble Lords will know, you cannot make the same plea twice for the same offence and the magistrates took away his licence, which made him very angry. But he should not have been angry, because there is an easy solution to this: do not do it in the first place.
The noble Baroness gave many examples of exceptional hardship. I could give a lot more, but I am not going to at this time of night. However, there is a solution to this, which is, do not do it in the first place. Stick to the speed limit, do not go through red traffic lights or whatever else people might think about.
This is not a question of hardship. It is a question of not doing it in the first place so that you are not taken to court and maybe convicted. The definition that the noble Baroness has put in this amendment is a very good one. If the Minister does not like it, perhaps he can come back with an alternative before we get to Report, but we need to find a solution to the 83,000 drivers who have escaped driving bans in the past 10 years because, unless they learn to behave, driving is going to get more dangerous. I hope that the Minister will agree at least to look at the text and come back with something else before Report.
Lord Russell of Liverpool (CB)
My Lords, I support the noble Baroness, Lady Randerson.
In doing a little bit of research for this, I went on to the internet and put in “road traffic offences exceptional hardship”. I think I referred in an earlier intervention earlier to the huge legal business that exists to assist drivers who wish to contest some of the allegations against them for their driving. If you put that phrase into a search engine, first of all, you find a huge number of law firms giving you chapter and verse on the ways in which one can plead exceptional hardship. Pressing where it says “videos” gives a whole series of videos where very convincing lawyers, looking very smooth, tell you with a great degree of confidence—probably on the basis of some financially lucrative experience—just how it is possible to contest a ban and plead exceptional hardship. The very fact that it is so easy to find and is clearly a large and lucrative business tells us immediately that something is clearly wrong. The law is, to some extent, making an ass of itself. For those who are able to benefit from it, it is a very profitable endeavour.
Having a licence is not a right; it is a privilege. If people misuse and abuse that privilege, it is completely right that it should be removed. An awful lot of those people who do regard it genuinely as a right, and are deeply affronted at the idea that they should be stopped, are precisely the people against whom a ban is the most effective. In many cases, their driving and their ability to be seen by others driving, often rather flagrantly, is part of their persona and part of their identity. In a sense, removing their ability to drive is a form of emasculation. Despite being male, I am all in favour of emasculation when it comes to an egregious offence like that.
Again, we are looking at huge inconsistency. I will use only one example; it is such an egregious example that I hope your Lordships will forgive me. There is a gentleman called Alex McFarlane who, in only three months—between June and August 2014, so in one year—triggered safety cameras seven times and did not respond to a single penalty notice. In that three months, he managed to rack up a total of 42 points on his driving licence. When he came in front of the magistrates in Southend, what did he say? He said, “If banned, I will lose my job and my home, and I will be unable to pay off my debts”. The second point he made was the clincher. “Since the incident”, he claimed, “I have been treated for a nervous breakdown, which led to a spending spree and me incurring very heavy debts”. The magistrates accepted his plea. I rest my case.
Earl Attlee (Con)
My Lords, I rise to support the noble Baroness. My only complaint is that I do not think it is aggressive enough. I have driven for several decades. I have driven for hundreds of thousands of miles. Touch wood, I have never been prosecuted for a moving traffic offence. The penalty points system is a good system. If I picked up three points for speeding, or for some minor offence, I would be extremely careful not to reoffend. So I do not understand why, if people get a few points, they cannot take the lesson and be compliant. I strongly support the noble Baroness’s amendment.
Baroness Jones of Moulsecoomb (GP)
My Lords, it is a pleasure to follow the noble Earl, Lord Attlee, and actually agree with him for a change. The wording is not strong enough, so well done to the noble Baroness, Lady Randerson, for putting this amendment forward.
As the noble Baroness said, at the moment, “exceptional hardship” is anything but exceptional. I cite the case of a person who was exempted from a ban because he said that he had to walk his dog and drive to the nearest park, which was a mile away. I find that absolutely extraordinary; it leads me to think that magistrates ought to get a bit more tuition.
Essentially, points on a licence and the threat of losing that licence are an important part of ensuring that people drive safely and take care of other road users. Around 8,800 people are still driving despite having 12 or more points on their licence, and there is a whole industry of solicitors advising drivers on how to work the system in this way. It is very frustrating for the traffic police who care about enforcing the law and find themselves working hard to bring people to justice and get them convicted, only to see those people allowed to drive home after the case.
There are times when hardship may be truly exceptional, for example if an offender is the sole carer of a person with a disability who would suffer if the offender were unable to drive. Even then, it is a failure of the state if the only way a person with a disability can survive is by getting lifts from a person who is such a dangerous driver that they should not be allowed on the road.
Amendment 158 would ensure that “exceptional hardship” is a true exception rather than just a plea of convenience. Our current road traffic laws, as I started to say earlier, are based far too much on the convenience of drivers rather than justice and safety for other road users. This amendment would ensure that the very worst drivers on the roads do not have a convenient excuse to keep driving.
Lord Rosser (Lab)
This issue was also raised by my colleague, Ben Bradshaw MP, in the Commons. As has been said, exceptional hardship is the plea a person can use when charged with road traffic offences to avoid losing their licence if not being able to drive would cause them exceptional hardship. Obviously, as we have heard, the concerns about the system are that exceptional hardship is being agreed to too frequently for repeat offenders and in spurious cases.
What has quite clearly been asked of the Government —that is, what is being sought—is a tightening-up of the definition of exceptional hardship. I ask the Government to say in their response, first, whether, in their view, there is an issue with exceptional hardship being agreed to rather too frequently. Do the figures show that the number of times exceptional hardship is being agreed to is going up year by year? As I understand it, between 2011 and 2020, there were more than 83,500 cases where drivers did not receive a driving ban by pleading exceptional hardship. Do the Government have a feel for whether it is the case that instances of exceptional hardship being agreed to are increasing? Are they aware of any areas, perhaps in relation to courts, where there is what they regard as best practice, where the system is working well?
I remember once being told that “exceptional hardship” was something that people suffered, for example, at times of war. When it comes to the loss of a licence, perhaps we are talking more about a form of inconvenience than necessarily about hardship. Even in the more extreme case where somebody was able to persuade you that they would lose their job, presumably it is relevant to ask, “Well, that may be the case, but if it is for a short period of time, will the employer be prepared to live with it and give out other duties that do not involve driving?” Perhaps, if they are going to lose their job, it would suggest that the employer is not necessarily highly enamoured of their performance. But, even in a case where you might lose your job, it must surely be assessed against “exceptional hardship”: what would the individual’s prospects be at that time of getting another, completely different job that did not involve driving, if a ban would cause them to lose their job that involved driving?
I know that there are other instances where people come out with examples of it being almost impossible to get to work but where it turns out that, if they were prepared to get up an hour and a half earlier in the morning, they might be able to get there by public transport—but somehow it is regarded as an “exceptional hardship” to have to get up so much earlier to get there by public transport and it taking longer to get home. So I am aware of the way these arguments get used and put forward, and we need to be careful to draw a clear distinction between what is “exceptional hardship”, with a proper definition of “hardship”, and what may be closer to “exceptional inconvenience”.
I simply repeat what I asked earlier: do the Government have a feel for this one? Do they have any information on the extent to which “exceptional hardship” is being used and accepted more as an argument? Do they have any examples of where the wording is being applied in perhaps a more realistic manner, and are they looking to take action in this area? What is being asked for in this amendment is that we should tighten up the definition of what constitutes exceptional hardship. I await the Government’s response with interest.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, I thank all noble Lords, and particularly the noble Baroness, Lady Randerson, for her explanation of this amendment, which seeks to define the term “exceptional hardship” that applies in the context of a court’s decision on whether to impose a driving ban.
I reassure the Committee that the Government take road safety extremely seriously. Drivers who reach 12 points should automatically be disqualified from driving, to protect themselves and others. However, sentencing, including the imposition and length of a driving disqualification, is properly a matter for our independent courts, based on the facts of each case—we have heard of a number of interesting and diverse cases this evening. Courts have the discretion not to disqualify, or to impose a reduced disqualification, if they are satisfied that there are mitigating circumstances justifying a claim of “exceptional hardship”.
This amendment to introduce a definition of “exceptional hardship” is unnecessary, detrimental to judicial discretion and of questionable utility in assisting a court in applying the “exceptional hardship” test. It would introduce a narrow definition that would not be able to account for all circumstances that were presented to the courts and would remove the courts’ freedom to use their experience to reach decisions accordingly.
It might assist the Committee if I read out the sentencing guidance that is already in practice—from my mobile phone. It says:
“When considering whether there are grounds to reduce or avoid a totting up disqualification the court should have regard to the following … It is for the offender to prove to the civil standard of proof that such grounds exist. Other than very exceptionally, this will require evidence from the offender, and where such evidence is given, it must be sworn … Where it is asserted that hardship would be caused, the court must be satisfied that it is not merely inconvenience, or hardship, but exceptional hardship for which the court must have evidence … Almost every disqualification entails hardship for the person disqualified and their immediate family. This is part of the deterrent objective of the provisions combined with the preventative effect of the order not to drive … If a motorist continues to offend after becoming aware of the risk to their licence of further penalty points, the court can take this circumstance into account … Courts should be cautious before accepting assertions of exceptional hardship without evidence that alternatives (including alternative means of transport) for avoiding exceptional hardship are not viable.”
It concludes by saying:
“Loss of employment will be an inevitable consequence of a driving ban for many people. Evidence that loss of employment would follow from disqualification is not in itself sufficient to demonstrate exceptional hardship; whether or not it does will depend on the circumstances of the offender and the consequences of that loss of employment on the offender and/or others.”
I hope the Committee found that guidance helpful.
Baroness Randerson (LD)
I thank the Minister for her response and also thank noble Lords who have taken part in this short debate. I respond by pointing out that 12 points do not come out of nowhere; they are the result of repeated offences. In other words, drivers who acquire them have been ignoring the signs for a long while, in most cases.
I take issue with the Minister’s characterisation of this as interfering with judicial discretion. The amendment says that it would be exceptional
“only if it is significantly greater than the hardship that would arise for a large majority of other drivers if the same disqualification were imposed on them.”
That is a simple indication of what “exceptional” means. It goes on to talk about the things the court could take into account, including
“economic circumstances or location of residence”
and any hardship to the family, especially to people who are disabled or for whom the offender provides care. Finally, it includes
“any other circumstance which it believes would make the hardship genuinely exceptional.”
That is about the broadest definition I can imagine.
Courts are used to having and following sentencing guidelines. The Minister indicated that to us, in some detail. I urge the Government, despite the Minister’s reaction, to look again at the sentencing guidelines to see what can be done. Of course, this is a probing amendment, but the statistics say it all: for one reason or another, the courts are not applying this in an exceptional manner, and the Government ought to look at why that is the case. I will of course withdraw the amendment.
Baroness Randerson
“Review of road traffic offences
The Secretary of State must carry out a review of all road traffic offences and penalties.”Member’s explanatory statement
This amendment requires the Secretary of State to carry out a review of all road traffic offences and penalties
Baroness Randerson (LD)
My Lords, this amendment simply calls for a review of road traffic offences. It refers back to the debate we had earlier. My amendment is very broad—and deliberately so. Other amendments are much more specific and deal with worthwhile issues, but the haphazard range of amendments laid to the Bill is a result of its broad coverage of topics. The amendments that have been laid are just a snapshot of a wide range of issues that require attention and modernisation. I do not believe that this Bill is the place for any kind of systematic look at road traffic offences; they need their own Bill.
The Government undertook a consultation and review in 2014 with that kind of action in mind, but nothing happened. Of course, that 2014 review is now hopelessly out of date and would have to be undertaken again. I want to run through a few of the issues that are significant today but which were hardly worthy of note in 2014. The first is e-scooters. The Government have dozens of so-called pilot schemes under way, but wherever you live in the UK, e-scooters are visible nowadays. They pose problems and need regulation. The situation has gone way beyond any form of government control. I suggest that the Government will find it difficult to impose regulations now after such a period of a lax approach, but they really have to do something about them. In practice, e-scooters are sold with no attempt to explain to people that they are illegal on public roads and pavements outside the pilot scheme areas.
E-scooters pose a danger. In 2020, 484 casualties were officially recorded as the result of e-scooter accidents. Of those, 384 were the users themselves, one of whom, a 16 year-old boy, was killed. Some 128 of those involved in accidents were seriously injured, including a three year-old girl who received life-changing injuries. Reports this year suggest that at least 11 people have been killed so far, but, of course, that has to be officially recorded.
Another issue that hardly featured in 2014 is smart motorways. I do not want to dwell on the details of those, because last week we had the report from the Transport Select Committee in the other place, but it recommended a halt to smart motorway developments until significant safety improvements had been made and more powers for the ORR to block schemes until safety concerns had been dealt with. Clearly the Highway Code needs amending to deal with smart motorways. Since only 29 miles of smart motorway have been running for five years or more, they clearly did not feature in 2014.
Other issues that need tackling are: autonomous vehicles—road regulations and layouts, driver behaviour and legal responsibility all need tackling as a result of those; the trend towards more 20-mile-an-hour zones, as we discussed earlier today; and the fact that, for environmental reasons, road layouts need to change to encourage more walkers and cyclists. Those are always put together in the same paragraph, but in fact their interests are not identical and can conflict.
Bikes themselves are not what they once were. The welcome increase in the number of people cycling, and more people using bikes to commute, means that cyclists are often in a hurry and there is often a conflict with pedestrians and other road users. Electric bikes, which are certainly a recent innovation, are on occasion ridden much faster than the legal limit of 15.5 miles an hour, because you can tamper with the maximum speed. Cyclists can and do injure and kill, as well of course as very often suffering in accidents themselves. Cyclists who cause accidents can be charged only under the 1861 Act, which I referred to earlier today, with “wanton and furious driving”. The fact that we have to refer to an Act that is more than 150 years old is an indication that there is a need for a proper and comprehensive review of road traffic offences.
For those reasons and a host of others, we need a review, not this Christmas tree of a Bill. This is a probing amendment and I will of course withdraw it in due course. However, my question for the Minister is simple: when can we expect a proper road traffic Bill? When can we look for a proper review to modernise our roads?
Lord Berkeley (Lab)
My Lords, I will speak briefly on Amendment 165 in my name and in the names of the noble Baroness, Lady Jones of Moulsecoomb, and the noble Lord, Lord Russell of Liverpool. We are grouped together with Amendment 159 in the name of the noble Baroness, Lady Randerson. I think we are both looking for the same thing, which is a review of road traffic offences, which we discussed a little earlier this evening. It seems that the time has come to put a time limit on this. We suggest two years from the date of the Bill’s enactment.
As I mentioned earlier, this started in 2014. In 2015-16, the Commons Transport Committee reported with an inquiry on road traffic law enforcement, the All-Party Parliamentary Group for Cycling and Walking reported in 2017, with an inquiry on cycling and the justice system, and in 2018 there was a Westminster Hall debate on road justice and the legal framework, which revealed a cross-party consensus on the need for wide-ranging reforms. Many of the amendments we have discussed tonight demonstrate the need for reform but also the very wide range, scope and potential, and to some extent the differing opinions, which is of course quite normal.
In addition to the groups I have mentioned, there needs to be discussion not just with road safety and road user groups but with representatives of the police, the legal professions and local authorities. It is interesting to reflect that, seven years on from 2014, we could have had that debate by now and we could be passing laws that would save lives by taking the most dangerous drivers off the road.
I hope I can persuade Ministers that there is time for such a review now. I suspect we will be told that there are no current plans. However, the amendments which we and other people have tabled to Part 5 indicate that a review is needed. I suggest that it is time to address the awful additional pain and deaths that so many people have suffered as a result of the failure to review and change the law, and I look forward to the Minister’s response.
Baroness Jones of Moulsecoomb (GP)
My Lords, I think we have made the point that there is a huge inconsistency between road traffic offences and other offences causing injury and death. The penalties are simply not similar in any way.
Many years ago, when I first started getting interested in traffic crime, I went out several times with the traffic police and saw a number of investigations and crashes. At the time, I was told about some incidents that had happened and the sentences that the drivers had got, and these were horrific crashes. A police sergeant working there said to me that if he wanted to kill somebody, he would use his car. He would either get off scot free or would get a minimal sentence because, finally, you can always claim that it is an accident.
Lord Russell of Liverpool (CB)
My Lords, I support both amendments, including that of the noble Lord, Lord Berkeley, of which I am a co-signatory. As discussed earlier, most UK road traffic legislation predates the modern era and lags some way behind. I am ancient enough to remember that in the 1950s, when travelling around probably at high speed with my mother in her two-seater red MG, RAC officers would stand to attention and salute as we went past, after seeing the RAC badge. That does not seem to happen any more. I can also remember the designer of the Mini, Sir Alec Issigonis of blessed memory. He had two rules when driving a car. First, he did not allow a wireless—as they were then called—in his car, because he thought that was a distraction. Secondly, if anybody was a passenger in his car, including Lady Issigonis, silence was required. He felt that any discourse was a distraction from driving. It is rather different now with the array of technology in one’s car, including technology allowing the car to talk back. Perhaps some people find that preferable to having their other half talk to them, but that is another matter.
I live in SW6, where the roads are like the wild south-west. I go around a lot by bicycle, and every day I see the most extraordinary and flagrant driving and bicycling. At a local Tesco Metro there is a security guard, who I know is there when his state-of-the-art electric bicycle is locked up outside. I spoke to him and looked at his bicycle, as it is a great deal more powerful than mine. I asked him, “How fast does it go?” and he said, “About 50 miles an hour.” I said, “Do you realise that’s illegal?” He said, “Oh yeah. I had it down the road the other day, and a couple of police officers came up admiring the bicycle, asked me how fast it would go, and were very impressed.” That is a strange state of affairs.
The noble Baroness, Lady Randerson, mentioned e-scooters, which I see all over the place. They are incredibly dangerous. The noble and learned Lord, Lord Hope, talked earlier about Edinburgh, where the bicycle lanes have been designed in such a way that they are now full of leaves. There is no equipment to clean them, so people are in mortal danger if they ride a bicycle in a bicycle lane. That is not good.
That is only part of the problem. As the Minister may recall, during the debate on some earlier aspects of the Bill, we talked in particular about a report from September by Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services. It so happens that that same institution produced a report in July last year called Roads Policing: Not Optional. It looked at the state of road policing and the enforcement of the types of laws and regulations across England and Wales about which we are talking. If you are responsible for enforcement, it is not a happy read. It says:
“we found that the importance of roads policing has been in decline”
for many years. In some instances, it found police forces where the officers in charge of road policing were not familiar with the relevant road traffic laws which they were meant to enforce. It asked several questions about the state of enforcement of these laws:
“How effective are the national and local strategic approaches to roads policing? Roads policing in some forces is inadequate … How well are capability and capacity matched to demand? Often capability and capacity doesn’t meet demand … How well do the police engage with the public and partners? A lack of co-ordination hinders effective engagement with the public and partners … How well are police officers trained to deal with roads policing matters? Roads policing training should be standardised and accredited.”
It then made a series of 13 eminently sensible recommendations.
If we are to have a wholesale review of road traffic offences, it has to be done hand in hand with enforcement. There is no point in having laws and regulations if we are incapable of enforcing them consistently. You may say that the time is not now but, at some point in the future, we are going to have to do something before more and more people are killed and there are more and more complex remote vehicles, e-scooters and all the rest of it. Why not just acknowledge that and bite the bullet now, rather than kick the can down the road, which we have been doing for so many years?
Lord Rosser (Lab)
My Lords, I will be brief because I think that the arguments in favour of these two amendments have been made very powerfully. They are both intended to require the Secretary of State to carry out a review of road traffic offences and penalties. As has been pointed out, there have been so many changes with our roads and new vehicles in recent years as to justify in itself the need for the review which these two amendments seek. As I understand it, the Government promised a full review of road traffic offences and penalties back in 2014. So far as I know, this has not yet happened. In expressing our support for these amendments and for what they seek to achieve, I simply ask what has happened to the promised review so far as the Government are concerned.
Lord Sharpe of Epsom (Con)
I thank all noble Lords who have participated in this relatively short debate. As we have heard, Amendments 159 and 165 would require the Government to conduct a full review of road traffic offences. I shall make a number of brief points in response.
First, we do not consider it appropriate to include a requirement in legislation for the Government to undertake a review, especially in the case of Amendment 165 from the noble Lord, Lord Berkeley. The Government are concerned that this amendment sets out, without consultation or regard to practicalities, the terms of reference and timing of such a review. We are also concerned that the amendment does not fully grasp the range and complexity of the review which the Government would be required to undertake. Nor, might I suggest, does it consider who is best placed to conduct such a review—the Government, an independent body such as the Law Commission, or an expert panel.
Secondly, I point out the announcement of a review of driving offences and penalties in May 2014 by the then Secretary of State for Justice. The Government did conduct a review; I hope that goes some way towards answering the question from the noble Lord, Lord Rosser. As part of that internal review, we considered a range of concerns that had been raised by campaigners, victims and parliamentarians. In the debate on an earlier group of amendments, my noble friend Lord Wolfson committed to writing to the noble Baroness, Lady Jones of Moulsecoomb, and some of those concerned participants.
The review focused on the most serious offences that can result in death or serious injury, and the results are what we see now in Clauses 65 and 66 of the Bill. As we have already debated, the Bill includes provisions that will increase the maximum penalty for causing death by dangerous driving from 14 years’ imprisonment to life—again, I refer to the points made by the noble Baroness, Lady Jones of Moulsecoomb. Provisions in the Bill will also increase the maximum penalty for causing death by careless driving while under the influence of drink or drugs from 14 years to life imprisonment and create a new offence of causing serious injury by careless driving. These provisions have been long awaited, and they have widespread support. Those reforms also fit within the existing framework of road traffic offences. They are therefore consistent and proportionate responses and should be allowed to take effect before any further reform is considered.
I take note of the list that the noble Baroness, Lady Randerson, gave of other things she thinks should be considered, but, without going into detail on all of it, I will make just a couple of points. First, I mentioned in the group of amendments on pedicabs that there is a consultation on cycling which began in 2018 and is due to report towards the end of this year or the beginning of next year. I hope that will help to answer some of those questions about the changing nature of cycling. On e-scooters, they are of course illegal unless they are hired and, if the rider is not insured, they can be impounded. I take the points made by the noble Lord, Lord Russell, about enforcement very seriously—these rules are not being enforced, and they perfectly well should be. I also say to the noble Lord that I am extremely jealous of his mother’s red MG—my mother had a Ford Popular, and we used to have to hide on the back seat.
My last point is simply this: while we do not think it is necessary to legislate to require such a review, or to set out its terms of reference in such a restrictive way, the Government are not ruling out a wider review of road traffic offences in the future. As the noble Baroness, Lady Randerson, said, there will be a whole bunch of considerations when we have the advent of technologies such as autonomous vehicles—not just road traffic considerations but things such as who insures them, how you insure them, and whether you are insuring the car, the driver, the software or the hardware. There are a whole variety of different implications. We will, of course, keep the law under review both in terms of specific offences and where it is necessary to reform the structure of the legislation. But having had this opportunity to debate this issue, I invite the noble Baroness, Lady Randerson, to withdraw her amendment.
Baroness Randerson (LD)
I thank the Minister for his response and other noble Lords for participating in this short debate. I have to smile a little to myself because the Minister seemed to argue that the amendment would have been more acceptable if it had been more prescriptive and had tied the Government’s hands more. However, I realise that the Government have to find reasons not to accept an amendment.
I take issue with the haphazard approach of the Government’s transport-related clauses in the Bill. They are a series of unrelated issues plucked from dozens that need attention. I understand the problems that the police have in attempting to enforce the rules on e-scooters. E-scooters are sold in most cases with effectively no reference to what is legal and what is not. If a police force in area A has a pilot project and area B immediately next door does not, it puts the police force in area B in the difficult position of enforcing a series of rules about illegality that do not apply immediately next door or down the road. There are so many pilot projects that they have undermined attempts by the police to enforce the law.
Having said that, I hope the Government will bear in mind the need for review on so many fronts, and I will, of course, withdraw the amendment.
Lord Paddick
“Power of police to stop vehicles
(1) Section 163 of the Road Traffic Act 1988 is amended as follows.(2) In subsection (1), after “vehicle” in the second place in which it occurs, insert “, and switch off the engine,”.”Member’s explanatory statement
This new Clause to the Road Traffic Act 1988 would require a person to switch off their engine after being stopped by a constable in uniform or a traffic officer, and make it an offence not to do so.
Lord Paddick (LD)
My Lords, if the Committee will forgive me, I was not quick enough off the mark in the previous group when we were considering exceptional hardship. The Minister said that the Government opposed the amendment because it limited judicial discretion. As we will see in upcoming clauses, clause after clause of this Bill limits judicial discretion by means of primary legislation. I will remind the Government of what the Minister said in relation to that previous amendment when we come to those clauses.
I move Amendment 160 in my name and, in so doing, express my thanks to the Police Federation for raising this issue and for its assistance in drafting the amendment. Section 163 of the Road Traffic Act 1988 gives powers to the police to stop vehicles, which goes back to the previous group where we were discussing drink-driving. Section 163(1) says:
“A person driving a mechanically propelled vehicle on a road must stop the vehicle on being required to do so by a constable in uniform or a traffic officer.”
Section 163(3) says:
“If a person fails to comply with this section he is guilty of an offence.”
Similarly, Section 164 provides the power to require the driver to produce their driving licence. This poses several real dangers and unnecessary risks to our front-line police officers while dealing with such driver checks. The problem with the current legal framework is that an officer has to leave the relative safety of their own vehicle to make any request or to examine the driving licence. The driver of the stopped vehicle is under no obligation to get out of the vehicle or to switch off their engine.
The current law places officers in a vulnerable position in relation to the driver and occupants of the vehicle. They are permitted to remain in the vehicle to either flee when the officer is most vulnerable or even to use the vehicle as a weapon, as the noble Baroness, Lady Jones of Moulsecoomb, said in an earlier amendment. This is a common occurrence, even in my professional experience, where drivers try to flee after you have got out of the police vehicle and spoken to them. The risk to the officer would be minimised by creating an obligation for the driver of the stopped vehicle to leave the vehicle, but it is also important to ensure others who may be present in the vehicle are not able to then drive the vehicle away, or at the officer, after the original driver has got out.
This amendment is intended to highlight this gap in the law, although I accept that it is not suitable as drafted. I am grateful to my noble friend Lady Randerson for pointing out that electric cars, for example, do not have an engine that can be switched off in the traditional sense of the words and that other vehicles do not require a set of keys to be in the ignition to start the engine. However, noble Lords will see exactly what the problem is and how, potentially, the risk to police officers could be minimised if, for example, the driver was required to immobilise the vehicle and get out of the car, unless there was a reasonable excuse for not doing so, for example if the driver was disabled. I look forward to a sympathetic response from the Minister, and I beg to move.
Baroness Jones of Moulsecoomb (GP)
My Lords, I am sorry, but I am going to speak on this if the noble Lord, Lord Berkeley, is not going to.
Baroness Jones of Moulsecoomb (GP)
I feel very strongly about this. It offends my sense of justice that people who do hit and runs never pay for their crime. They are a menace to society, with only six months’ maximum sentence for leaving someone for dead having hit them with a car and, of course, the figures are going up year after year—
Lord Paddick (LD)
I think the noble Baroness may be speaking to the next group rather than this group.
Baroness Jones of Moulsecoomb (GP)
I am. Sorry, ignore that. Strike that from the record. I will come back to that.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I was interested in the explanation of this amendment by the noble Lord, Lord Paddick. As he rightly said, there are all sorts of potential issues—one can think of electric cars—and reasons this may not be workable as it has been drafted. Nevertheless, the noble Lord made the point about the vulnerability of police officers when they are in this situation, and of course the vast majority of cars do use conventional engines at the moment.
The other point made by the noble Lord is that a driver is under no obligation to get out of the vehicle. I have to say that, in the current circumstances, if there was a lone woman in the vehicle and a lone police officer asked her to step outside, that may be problematic. Nevertheless, that is not the burden of the noble Lord’s amendment. He has raised an interesting point; we want to protect police officers in vulnerable situations, and I look forward to the Minister’s reply.
Baroness Williams of Trafford (Con)
My Lords, if I understand the noble Lord, Lord Paddick, correctly, this amendment is aimed at improving the safety of police officers at the roadside. I share his concerns and want to reassure him that the safety of police officers is vitally important to this Government, as is demonstrated by our programme of work on the police covenant. I will not echo the arguments made to the noble Lord by the noble Baroness, Lady Randerson, on the defects of his amendment, but I want to say that we are committed to ensuring that the police have the powers that they need to protect people.
The British model of policing is based on consent, and the exercise of police powers, including the Section 163 power, needs to be transparent, fair and legitimate to ensure that the public can remain confident in policing. I am supportive of the intention behind the extension of this power, but more evidence and consultation are needed to demonstrate that it would provide benefits to officers’ safety and build support for the effectiveness and legitimacy of the proposal to extend the power. I can say to the noble Lord that we will work closely with the National Police Chiefs’ Council, the College of Policing and the Police Federation to explore these issues further and consider what more can be done to improve officer safety at the roadside. On that basis, I hope that he will withdraw his amendment.
Lord Paddick (LD)
I thank the noble Lord, Ponsonby of Shulbrede, for his support in principle. I think it would be problematic if the lone female driver was asked to get into the police vehicle, but I am not sure that the female driver would be in danger by getting out on to the roadside.
I am very grateful to the Minister for her support for the intention behind the amendment. As I acknowledged, more consultation is required, and I am very grateful that the Government are prepared to discuss these issues further with the National Police Chiefs’ Council and the Police Federation. On that basis, I beg leave to withdraw the amendment.
Lord Paddick
“Failing to stop or report accidents involving actual or potential serious or fatal injury
(1) After section 170(4) of the Road Traffic Act 1988, insert—“(4A) A person who fails to comply with subsection (2) or (3) when he knew that the accident had caused serious or fatal personal injury, or where he ought reasonably to have realised that it might have done so, is guilty of an offence.”(2) In Part 1 of Schedule 2 to the Road Traffic Offenders Act 1988 (prosecution and punishment of offences: offences under the Traffic Acts), after the entry relating to an offence under RTA subsection 170(4), insert the following—
“RTA section 170(4A) | Failing to stop and give particulars after accident involving actual or potential serious or fatal injury or to report accident | On indictment | 14 years | Obligatory | Obligatory | 6-11” |
This amendment creates a new offence of failing to stop or report accidents where the driver knew that the accident had caused serious or fatal injury, or where he ought reasonably to have realised that it might have done so, with a maximum sentence of 14 years custody.
Lord Paddick (LD)
My Lords, Amendment 161 is in my name, supported by the noble Baroness, Lady Jones of Moulsecoomb—as we already know. I am grateful to Living Streets, British Cycling, RoadPeace, Cycling UK, and the Road Danger Reduction Forum for their joint briefing and suggested amendment on this issue.
Currently, the maximum penalty for the offence of failing to stop to report accidents is a six-month custodial sentence. This may be appropriate in cases where someone has simply driven off after scratching the paintwork of someone else’s parked car, but not when someone has been left for dead by the roadside.
The briefing provided by two noble Lords cites the case of Scott Walker, who was struck and killed by a driver who was driving without insurance, failed to stop at the scene of the collision, failed to report the incident and then tried to conceal his involvement by having his car repaired to cover the damage. The sheriff who heard the case said that the maximum sentence of imprisonment
“would not adequately reflect the gravity of the offence.”
The parliamentary petition calling for tougher laws when someone dies and the driver fails to stop attracted more than 104,000 signatures.
Section 170 of the Road Traffic Act 1988 as amended requires:
“where, owing to the presence of a mechanically propelled vehicle on a road or other public place, an accident occurs by which … personal injury is caused to a person other than the driver of that mechanically propelled vehicle … The driver of the mechanically propelled vehicle must stop and, if required to do so by any person having reasonable grounds for so requiring, give his name and address and also the name and address of the owner and the identification marks of the vehicle … If for any reason the driver of the mechanically propelled vehicle does not give his name and address under subsection (2) above, he must report the accident … A person who fails to comply with subsection (2) or (3) above is guilty of an offence.”
The amendment would add a new subsection creating a new offence, where the driver knew or ought reasonably to have realised that the accident had caused serious or fatal personal injury, with a maximum penalty of 14 years’ imprisonment. As with the previous group, this amendment is intended to highlight the inadequacy of existing legislation.
Again, I accept that the wording may not be right; for example, the Road Traffic Act would need to be amended throughout, as other noble Lords have said, replacing the word “accident” with “collision” or “incident”, as some of these incidents involve deliberate acts, rather than being accidents, and the 14-year term may not be the right one. But the law is inadequate when someone fails to stop after a collision involving death or serious injury. I beg to move.
Baroness Jones of Moulsecoomb (GP)
My Lords, as I said before, I support this amendment very strongly because hit-and-runs are a menace.
One of the problems is that the families who suffer from having somebody killed or injured rarely feel they get justice. That seems completely wrong. This amendment would mean that a judge has available the range of sentences necessary to reflect the severity of the offence. Sometimes the existing six months might be enough, and other times 14 years in custody would be the only option that can punish the wrongdoing and deter others from driving away from a serious collision. I am not big on increasing prison sentences, because I think we have far too many people in prison already, and many of them are there for the wrong reasons. But in this case, when you deliberately harm a person, prison is the place for that sort of violent person.
Judges should have the option of a lifetime ban for people who hit and run. There is no excuse for fleeing the scene—it is trying to escape justice. People should not be back on the road once they have done that. Hit-and-run is a cowardly thing; it is an attempt to escape and to not admit that you have done something wrong. Quite often, it can mean the difference between life and death for the person you have hit. This is a valuable amendment and will mean justice, not only for victims but their families and friends.
Lord Berkeley (Lab)
My Lords, I have added my name to this amendment. One of the most telling statistics is that there were 28,000 hit-and-run collisions in 2017, all involving failure to stop and report collisions that involved actual or potential serious or fatal injury. This number had increased by 43% since 2013—in only four years. That is a very significant increase and, as other noble Lords have said, the current maximum penalty for a hit-and-run collision is six months in prison which, as the noble Baroness said, might be all right in some circumstances, but not in others.
The other issue is that, now that most people have mobile phones in their cars, there should be a general duty to report collisions while at the collision scene. Yes, there are a few places in this country where there is not any signal, but very few compared to where there is; and if it is not possible, the driver or rider may subsequently report the collision and produce their insurance certificates, if appropriate, at a police station or to a constable. This should all be done within two hours of the collision, because 24 hours means that, if there were any risk of alcohol or drugs having an effect, that could be lost in that time. This is a really important amendment, and I would be interested if we could find some more up-to-date statistics on what has happened since 2017, because it is a very serious issue.
Lord Ponsonby of Shulbrede (Lab)
My Lords, my right honourable friend Ben Bradshaw spoke to his amendment, which was along similar lines, in the other place, to increase the sentences for this type of offence from six months to a possible 14 years. I agree with most of the points made by the noble Baroness, Lady Jones, and particularly her opening point: in general terms, I do not like sentence inflation. This is a very large potential inflation in sentences. Nevertheless, I take the point that she and other noble Lords have made, that a maximum of six months in custody for failing to report a serious or fatal injury during a road traffic accident seems like an unduly light sentence for the most extreme cases.
We have heard reference to the petition; I understand that it will be debated in the House of Commons later this month. I have a question for the noble Lord, Lord Paddick. I would be interested to know how this would interact with existing sentences. For example, if a person has committed an offence causing serious injury or death by dangerous driving, would the expectation be that they would also be sentenced to a number of years for not reporting the accident? How would the two charges work in combination with each other? I have an open mind on these amendments, and I look forward to the Minister’s response.
Baroness Williams of Trafford (Con)
My Lords, as noble Lords have explained, Amendments 161 and 166 relate to the offence of drivers failing to stop. We know that in a small number of cases, the failure to stop might be related to an event that leads to the death of, or serious injury to, another person, but in the vast majority of cases, convictions involve low-level traffic incidents. In an extremely small number of cases, there may not be any other evidence to connect the death or serious harm with the driver who fails to stop, meaning the only offence they have committed is that failure to stop. I understand the concerns raised, but these amendments potentially risk providing for a maximum custodial sentence of 14 years for failure-to-stop offences resulting in serious or fatal injuries in circumstances where there would not have had to be evidence of a causal link between the failure to stop and the death or serious injury.
What is more, these amendments cut across the basis for the current offence. I must stress that the offence of failure to stop and report is designed to deal with the behaviour relating to the failure to stop. The offence is not to provide an alternative route to punish an offender for a more serious but unproven offence.
Where there is evidence that the driver caused harm, there are a range of other offences, including causing death or serious injury by dangerous or careless driving, with which the driver can be charged. In these cases, the courts can treat the failure to stop as an aggravating factor that adds to the overall seriousness of the offending. Where there is evidence that the driver knew about the incident and took steps to avoid detection, they may be charged with perverting the course of justice, a common law offence that already carries a maximum sentence of life imprisonment.
Linking death or serious injury with a failure to stop as the cause would risk creating an unnecessary and unfairly severe offence. To take an example, where there was evidence of causing death by careless driving and failure to stop, the offender would face a maximum penalty almost three times higher for failure to stop than they would for causing death by careless driving—14 years compared to five years— even though the causing death offence requires proof of a fault in the standard of driving.
The law already imposes severe penalties for vehicle offences that lead to death or serious injury, but when doing so, a clear causal link must be proved between the driver’s behaviour and the outcome. The proposed amendment would essentially be equating, or in some cases exceeding, the seriousness of failure to stop with actual culpability for causing death or injury. That, as I have said but want to repeat, causes serious anomalies with other offences that could result in potential injustices, and it is why the Government cannot accept the amendment.
In relation to Amendment 166, which also seeks to amend the current offence, we are concerned by the potential impacts on what is a complex area of law. For example, it is unclear what impact replacing the word “accident” with “collision” would have; it might exclude incidents that are currently and rightly within scope of the existing version of this section. We also reiterate our objections set out above to the creation of the offence of failing to report where the collision caused foreseeable serious or fatal injury.
We are of course aware of the traumatic effects of such incidents, however rare. From what I have already said, it should be clear that this is a complex area, and any change to the law has to fit within the current driving offence framework. However, let me assure noble Lords that my ministerial colleagues at the Department for Transport understand the concerns that have been raised. I can assure the Committee that the Department for Transport is exploring options that could be pursued in this area, including but not limited to the available penalties and how the offence operates as part of long-term and wider work on road safety. I hope that, with those assurances, the noble Lord, Lord Paddick, will withdraw his amendment.
Lord Paddick (LD)
My Lords, I thank noble Lords for contributing to this debate, including the noble Baroness, Lady Jones of Moulsecoomb, who contributed twice. I thank her for her support. I agree in principle with what the noble Baroness and the noble Lord, Lord Ponsonby of Shulbrede, said about sentence inflation; we are not in favour of that. However, the Minister talked about anomalies and this clearly is one—where someone causes death or serious injury and fails to stop after an accident but where no other offences are disclosed.
This is from memory, but in the case of the MP whom the noble Lord referred to, I think the incident in his part of the world in the south-west was a case of somebody who hit something, someone wandering in the road for example, and therefore an offence of careless, reckless or dangerous driving was not appropriate. However, the driver knew that they had hit something or somebody and still failed to stop or call the emergency services.
This is not about punishing the manner of driving that has caused death or serious injury, but about the dishonesty of knowing that you have hit somebody and knowing, from the speed that you were doing, that the person is likely to have received serious injury and, because you have failed to stop, what could have been survivable injuries become fatal injuries, because medical aid is not provided immediately or within a short space of time. As the noble Lord, Lord Berkeley, said, almost everybody who has a car has a mobile phone, and with the extensive coverage of mobile phone signals there is no reason why immediate assistance cannot be summoned in most cases. As the noble Baroness, Lady Jones of Moulsecoomb, said, failing to stop after an accident of this kind can mean the difference between life and death.
In my opening remarks I said that I was not sure that 14 years was the right punishment, that it needs to fit within the framework of punishment. In answer to the question asked by the noble Lord, Lord Ponsonby of Shulbrede, there could be circumstances, such as the one that I have referred to, where offences other than failing to stop were not present. In those circumstances—for example, if somebody in foggy conditions wearing dark clothing in the middle of the night stumbles on to a roadway and is hit by a car, and the person driving knows that they have hit that individual but fails to stop—the only offence could be the failure to stop, yet it could have fatal consequences for the pedestrian involved.
I am grateful to the Minister for saying that colleagues in the Department for Transport will be looking at this issue, but it goes to the heart of the previous group on how there needs to be an overall look at road traffic offences in the light of changes that have taken place. The Minister also talked about difficulties that might be created because the amendment refers to collision versus accident, whereas other parts of road traffic law refer to accidents, but I did say that throughout road traffic legislation “accident” needs to be changed to “collision”, because some of the incidents are not accidents. However, it is encouraging that the Minister’s colleagues in the Department for Transport have agreed to look at this. On that basis, for the time being I beg leave to withdraw the amendment.
Lord Berkeley
“Damage to guided transport structures
(1) A driver whose vehicle causes delays to operations of, or damage to, a guided transport structure or its systems is liable, on conviction of careless driving or a more serious offence, to at least 6 penalty points to be endorsed on the driver’s driving licence regardless of circumstances.(2) A haulier which is responsible for commissioning the journey of the driver is liable to—(a) a fine of up to £50,000,(b) the costs of reconstruction and other costs incurred by the owner of the structure, including compensation to its customers, train operator companies and other third parties, for delays and cancellation or damage to guided transport services.(3) In this section, “guided transport structure” means a structure which supports a guided transport system, including a railway structure.”
Lord Berkeley (Lab)
My Lords, in moving this amendment I shall speak to Amendments 169B and169C tabled by the noble Earl, Lord Atlee.
These amendments came as the result of a truck hitting a railway bridge near Plymouth about a month ago. It affected train services to the south-west quite severely, and I had a discussion with the head of safety at Network Rail to find the cause and what could be done to avoid it happening again. I got some very interesting information, which I will share briefly with the Committee.
As noble Lords probably know, an articulated lorry went under a railway bridge. Interestingly, the road was sloping upwards, so the top of the lorry hit only the far side of the bridge, because the clearance was less than when he went in. When I looked at it further with Network Rail, I was informed that there was an average of seven bridge bashes a day on the network; some are serious and others are not.
Earl Attlee
Earl Attlee (Con)
My Lords, I am grateful to the noble Lord, Lord Berkeley, for moving his amendment. On its own, it would be unacceptable because it would unfairly penalise the driver of the lorry. The Committee will be aware that we are already exceptionally short of HGV drivers; I think the noble Lord touched on that. It would also be unfair to the operator because the incident may have been caused by the misconduct of the driver deviating from the appropriate route. I must tell the Committee that it is not always easy to determine the overall height of a vehicle. Mistakes can be made. The driver can be incorrectly informed of the overall height of the piece that he is carrying.
My amendments to Amendment 169A would require technology to be in place before the new penalties are available. Surely we can have electronic systems put in place to make these incidents entirely avoidable. Such a system would warn the driver, before he or she gets to the point of no return, that the vehicle will not safely pass under a bridge. This would enable the driver to take their vehicle on an alternative, safe route. With the data provisions of my amendment, it would also be possible for manufacturers to provide automatic GPS-facilitated warning systems; however, that system would rely on correctly knowing the overall height of the vehicle, whereas my proposals for static infrastructure would not. I will not weary the Committee at this late hour with further technical details.
I am grateful to the noble Lord, Lord Berkeley, for supporting my amendment to his amendment. He talked about the inconvenience that these incidents cause. He is of course correct. Most incidents involve large van-type vehicles and normally the bridge wins, although careful and time-consuming post-incident technical checks may still be necessary. That is what causes the inconvenience.
I operate a tank transporter on behalf on the REME Museum. The tank weighs 50 tonnes and the loaded transporter is 14 foot high. If the tank hits the railway bridge, the tank wins. If the train arrives shortly thereafter, a serious incident will inevitably arise. The reason why abnormal loads rarely hit railway bridges is that these movements are carefully planned in advance, in conjunction with the various authorities. Generally speaking, unauthorised route variations do not take place. However, heavy engineering equipment is also moved under normal construction and use regulations when it is not particularly heavy or wide. One day, a bridge will get hit hard by one of these loads. It is only a matter of time. An awful tragedy could then follow.
We can avoid this by agreeing to the amended amendment from the noble Lord, Lord Berkeley, or something like it. It may not be perfect but the Minister can attend to that. All we are asking is that he takes the steps to make sure that these incidents cannot take place. We have the technology in place. I appreciate that there is a difficulty in that Network Rail does not have any authority on the roads near the railway bridge, but the Minister will have to take the necessary powers to deal with that problem.
Baroness Randerson (LD)
My Lords, I thank the noble Lord, Lord Berkeley, for his introduction and the noble Earl, Lord Attlee. My noble friend Lord Bradshaw added his name to the amendment from the noble Lord, Lord Berkeley, but apologises because he is unable to be here this evening.
It strikes me that it is clearly not in the interests of hauliers or HGV drivers to hit a bridge. It costs a great deal of money all round. It is probably proportionately more damaging for a small haulage company that experiences damage to its vehicle, many hours of lost time and so on than it is for the train operating company. However, I have been on a Great Western train that was held up for some hours as a result of a bridge strike. If you multiply the two or three hours that we sat there by the number of people on the train, the cost of the whole incident becomes considerable.
Why is it is happening so often? Is it because there is not enough training of drivers? If that is the case, I am very concerned because the test for new drivers is becoming simpler and more streamlined, so things are not going to get better there. Is that there is a lack of adequate signage? Is it that the signage is in the wrong place? It has to be well in advance of the bridge because drivers cannot just stop on a sixpence in a large lorry. Is the signage not maintained or inspected? It would be interesting to hear from the Minister the solutions to this problem and how the situation can be improved. Clearly, seven incidents a day are not desirable and really should not be happening in those numbers. There is a particular problem with equipment such as cranes that are loaded on to a flatbed lorry, because the driver may not know the height of this particular lot of equipment.
Noble Lords have suggested lots of solutions. I am interested in the Government’s response.
Lord Coaker (Lab)
My Lords, it is good to be back from the Armed Forces Bill to join you all again for this group of amendments. I start with a comment that the noble Baroness, Lady Randerson, made about the haphazard nature of the amendments before us. This is the last set of amendments on Part 5 of the Bill on road traffic offences yet, despite being haphazard, some really important amendments have been proposed. That demonstrates to the Government that there needed or needs to be a new road traffic Act, which would bring together all the various comments that have been made plus numerous others that people would make. We heard on a previous group about a review of existing traffic offences: some are out of date, and some that did not exist a few years ago should have offences against them. I make that opening remark to the Minister, as he might wish to say that to his colleagues.
My noble friend Lord Berkeley did us a favour by bringing forward these amendments. It is easy to scoff at railway bridges, but we have heard that there are seven incidents a day and that 50% of drivers do not know the height of their vehicles. An issue raised by these amendments clearly needs to be considered. The least we want from the Minister is that he takes away these comments and speaks to his colleagues at the Department for Transport or wherever about them.
The noble Earl, Lord Attlee, is also right in saying that, in trying to solve one problem, you do not want to unfairly penalise another group—in this instance, lorry or other drivers. You have to be careful about the way that legislation is drafted and unintended consequences, so his amendments are important as well.
This is yet another serious amendment that has been put forward to deal with a very real problem, to set against all the other amendments that have been put forward which deal with serious issues on our roads. The legislation needs to be updated. This is a Christmas tree of a Bill. Part 5 on road traffic needs a separate Bill, as has been demonstrated by the debate this evening. I hope, at the very least, that the Minister will take that back to his colleagues.
Lord Sharpe of Epsom (Con)
I am grateful to the noble Lord, Lord Berkeley, and my noble friend Lord Attlee for explaining these amendments. I reassure them and other noble Lords that the Government take this issue seriously and think it important. We recognise the serious risk to the travelling public that results from drivers striking and damaging bridges.
It is my understanding that this amendment seeks not to create a new offence but instead to create a new and specific penalty, for striking guided transport system structures, most notably railway bridges, to be applied to broader offences such as careless driving. I do not think that is needed. The penalties available for the offences for which a driver can already be charged in these circumstances are adequate to reflect the seriousness of the offence. The offences include careless, inconsiderate and dangerous driving or, where appropriate, drink-driving or drug-driving. For example, an offence of careless driving attracts an endorsement of three to nine penalty points on the driver’s licence, an unlimited fine, and a discretionary disqualification from driving for such period as the court thinks fit. Damage to property is a factor in the sentencing guidance indicating greater harm, which can lead to a higher sentence. If a driver were found to be under the influence of drink or drugs, the penalties available would include custodial sentences, unlimited fines and driving disqualifications.
As my noble friend will be aware, warning and regulatory signs already exist to indicate low bridges and to ensure that drivers are given information about alternative routes in time to adjust their journeys. I take my noble friend’s points about routes and so on, which he made most forcefully. Those signs are prescribed in the Traffic Signs Regulations and General Directions 2016 and can be used by local authorities without reference to the Department for Transport. Local authorities are responsible for placing traffic signs on their roads, and the Department for Transport provides advice to them on the use of these signs in the Traffic Signs Manual. Disobeying a regulatory sign indicating a low bridge is already an offence that attracts an endorsable fixed penalty notice and may lead to the disqualification of the driver. Network Rail can reclaim some of the cost of repairing any damage from the insurer of the vehicle that hits the bridge. The Government are satisfied that the existing offences, penalties and route to a claim for damage are sufficient.
I am afraid that I cannot answer the questions from the noble Baroness, Lady Randerson, about why this happens so frequently. I imagine there are a whole variety of factors. As to the concerns from the noble Lord, Lord Coaker, I will of course take those back; we need at least to understand this issue a little better, so I will commit to doing that. That being the case I urge the noble Lord, Lord Berkeley, to withdraw his amendment.
Earl Attlee (Con)
My Lords, I am afraid the Minister’s response is a little disappointing. I was hoping he would say a bit more about what use we could make of technology and whether Network Rail would experience any difficulties in putting some of its infrastructure, say, half a mile away from its bridges. Does Network Rail have the power to put infrastructure on the road system, perhaps half a mile away from a bridge, in order to provide a warning for a driver that he is over height —something similar to what is done at the Blackwall tunnel?
The noble Baroness, Lady Randerson, talked about training. It occurred to me that we could make it a part of HGV driver training that the driver of a lorry was required to compare his vehicle’s height to that of any infrastructure that he went under. On approaching a railway bridge he could say, “My height is 14 feet and the height of the bridge is 15 feet, so we’re fine.” If every time he went under a bridge he considered orally whether he could get under it, that might be a good starting point and might actually make a difference.
Lord Berkeley (Lab)
My Lords, I am grateful to all noble Lords who have contributed and to the Minister for his response. I am afraid my view is that, however much he may say there is existing legislation, it is not working. That is clear. It is quite difficult for a driver to find the height of his vehicle. I spent several decades working in the rail freight sector, and trying to get a container on a rail wagon under a road bridge going over a railway was difficult because all these vehicles, be they rail or road, have suspensions so, depending on the load, the wagon or vehicle goes up and down. Still, given the rules that affect the railway sector, what we have in the road sector is frankly pretty weak.
I fully support the idea of the noble Earl, Lord Attlee, that there should be much greater emphasis on putting the information on to electronic GPSes, which I think most lorries have. One has to assume that the driver can read; that is probably not always the case but it is something to start from. He asked whether Network Rail had the power to build something away from the network. My answer is: in most cases, no. It would have to talk to landowners, seek planning permission and so on, although putting up a post with an electronic beam going across would be all right. On the continent, people do something rather better, and in France it is particularly evident: on a low bridge there is a steel structure, a portal frame, with bells and spikes on. It is clearly marked with its height, but if you see something up ahead with spikes and you are driving a lorry with rather a valuable load, you will probably stop and think before going through it. A few of those on the worst-offending bridges would be quite good.
Lastly, I suppose, I hope that the Minister will encourage Network Rail to take proceedings to reclaim as much of the cost as seems relevant, because some of them behave like a good old-fashioned nationalised industry and say “Well, you know, this is one of those things: let’s try to get a bit back.” They should be quite aggressive about it, while making sure that their own information is on these electronic guides and maps and everything like that.
I will look carefully at what the Minister says, and we may come back with something on which to seek a meeting before Report. I am conscious that the wording in my amendment is rather amateur, and after listening to what he has said it would be good to talk to him and Network Rail again, as well as to other colleagues, to see whether we can come up with a solution that encourages and educates but also takes action against people who do not do as they should. On that basis, however, I beg leave to withdraw the amendment.
Lord Falconer of Thoroton
“(6A) Before this section (other than this subsection) may be commenced the Secretary of State must by regulations amend subsection (6) to list all excluded offences on the face of the Act.(6B) The Secretary of State may by regulations amend the list of excluded offences.”Member’s explanatory statement
This, along with another probing amendment to Clause 99 in the name of Lord Falconer of Thoroton, would list the excluded offences on the face of the Bill.
Lord Falconer of Thoroton (Lab)
We move to Part 6 of the Bill, which is important. It creates two new types of caution: diversionary cautions and community cautions. These are described by the Government as
“the least onerous types of disposal a person can obtain for offending.”
Both types of caution must have one or more conditions attached to them. These can include requirements to do unpaid work, attend a specified place for a specified purpose, and pay a financial penalty.
This is an important part of the Bill. We are reaching this stage of the debate at 11.12 pm, which is one hour and 12 minutes after our normal stopping time. We have, I am very happy to say, the noble Baroness, Lady Finlay of Llandaff, in the Chair, but she is not permitted to speak on issues; she may only call speakers and announce whatever the Motion may be. There is not one Cross-Bencher here, apart from the noble Baroness. There is only one Back-Bencher here for this debate on the introduction of two important new measures into the criminal justice system. It is a mockery of proper consideration.
The proper way for the Government to deal with this is not by extending the debating hours to a point where very few noble Lords take part. They should instead make extra days available. That is the consequence of having a Bill like this, which lays open to debate the whole criminal justice system. We should not do this. I understand that it is proposed that on Wednesday the Committee sit for another three hours beyond its normal stopping time. If the Government wish to hold the reputation of the House up for scrutiny, they should not do this; they should make proper arrangements.
Turning to the amendment itself, the first group we deal with in Part 6 relates to the delegated powers. I remind the Committee, which has been told this on a number of occasions, that the Delegated Powers and Regulatory Reform Committee took a very unfavourable view of this.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
Just for the record, and because the officials have worked extremely hard, I have a WhatsApp group with them. In fact, I have been doing all this work without officials there. They are on the ball; they are online; they are providing assistance.
Lord Falconer of Thoroton (Lab)
I am very glad to hear that. It is the first time in my experience—and I am not complaining, because the officials have worked incredibly hard on this—that the Box is entirely without officials.
To go back to the debate about delegated powers, this is what the Delegated Powers Committee said in general about this:
“We are particularly concerned that the Bill would … allow Ministers—and even a non-statutory body—to influence the exercise of new police powers (including in relation to unauthorised traveller encampments and stop and search) through ‘guidance’ that is not subject to Parliamentary scrutiny; … leave to regulations key aspects of new police powers—to restrict protest and to extract confidential information from electronic devices—that should instead be on the face of the Bill; and …allow the imposition of statutory duties via the novel concept of ‘strategy’ documents that need not even be published … We are disappointed that the inclusion of these types of delegations of power—on flimsy grounds—suggests that the Government have failed when preparing this Bill to give serious consideration to recommendations that we have made in recent reports on other Bills.”
In relation to this group of amendments, the committee makes complaint about three sets of delegations. The first is in relation to what could be suitable for community cautions. As I indicated, community cautions are for less serious offences. The Bill provides that they cannot be given for the most serious, indictable-only offences, but it gives the Secretary of State power to determine by affirmative procedure regulations the other offences for which they cannot be given.
The Government put forward a memorandum to justify this approach which said as follows:
“The list of offences which may not be suitable for”—
a community caution—
“is likely to change regularly”
and
“will be subject to continual updating and changing which makes it more suitable for secondary legislation”.
The Delegated Powers Committee report states:
“The Memorandum acknowledges that excluding offences from a community caution disposal ‘will have a significant impact on offenders, victims and the public’. It states that the affirmative procedure ‘is considered appropriate as it enables Parliament to debate the details of the restrictions [on community cautions]’.”
The Delegated Powers Committee report says that the Government are relying on a comparison with Section 130 of the Sexual Offences Act 2003 and then establishes, clearly rightly, that comparison with that Act is misguided and wrong. It says that the Government should follow the 2003 Act, but accurately and not inaccurately. What the Sexual Offences Act 2003 does is put in the Bill the excluded offences but gives power for them to be amended from time to time. Our amendments would follow the Delegated Powers Committee’s recommendations. I hope that the Government will feel able to accept that. If the noble Lord could indicate that, it would shorten that bit of it—sadly not.
The next group of problems is the conditions that are attached to a caution. A diversionary caution or a community caution must have one or more conditions attached to it. These can include requirements to carry out unpaid work, to attend a specified place for a specified purpose, and to pay a financial penalty. The complaint that the Delegated Powers Committee makes about this is that you need only the affirmative procedure where you are increasing the penalties but not when you are decreasing them.
The Delegated Powers Committee report says:
“We consider that the Government’s justification for its approach”—
applying only when penalties are increasing and not when they are decreasing—
“is flawed because it focusses solely on the impact of increases or decreases on the rights of offenders and on operational resources and fails to take into account the significant effect that decreases are capable of having on the way in which the policy works—and that making the new cautions less onerous forms of disposal may be something about which stakeholders (including victims of crime) and members of both Houses may have legitimate concerns.”
Again, we agree with that. The committee continues at paragraph 75:
“Accordingly, we consider that both increases and decreases in the maximum number of hours of unpaid work or attendance, or the maximum financial penalty, that may be attached to a diversionary caution or a community caution merit the same level of scrutiny”.
That is simply to quote what the Delegated Powers Committee says.
The final group relates to Clause 129 and Schedule 13, which gives the courts power
“to review community and suspended sentence orders, and … to commit an offender to custody for breach of”
such orders. The memorandum that the Government presented to the committee says that
“the aim… is to improve offender compliance with community orders and suspended sentence orders and to reduce reoffending. This is achieved through a multi-agency approach with links to wider support services, one element of which is providing for close oversight by a court of particular sentences being served in the community”.
The intention is to pilot for an initial 18-month period, and that may be applied to different cohorts throughout the country.
The committee report points out:
“The Secretary of State is given power to specify, by negative procedure … categories of community orders and suspended sentence orders that qualify for the review process”—
and it sets out certain things they can take into account in relation to it. The report continues:
“Where regulations specify a category for the first time, there must be an initial pilot period of 18 months … Both regulations that specify a category for the purposes of a pilot … are subject to the negative procedure … The Government’s justification for this is that ‘the principle of the provisions is made clear on the face of the legislation, and the power is limited by the legislation such that it may only be used to apply the provisions to different courts and cohorts of offenders … These matters are administrative in nature’.”
That is what the Government said in their memorandum.
The Delegated Powers Committee disagreed with that, saying that
“the categories of persons and the offences to which the review process will apply go to the heart of the underlying policy. The power gives the Secretary of State maximum discretion … but with minimal scrutiny … We therefore consider that regulations that provide for a category of community orders or suspended sentence orders to be subject to the review process on an indefinite basis should be subject to the affirmative procedure.”
That is what our third set of amendments does in relation to that.
I apologise for taking so long to go through this, but these are important issues.
Lord Paddick (LD)
My Lords, I agree with the noble and learned Lord about the importance of this part of the Bill. Although the noble and learned Lord has just apologised for the length of his opening remarks on this group, I must warn the Committee that that was nothing compared with my opening remarks on the next group, if the Government wish to go there this evening.
The noble and learned Lord, Lord Falconer of Thoroton, is right to demand that the list of excluded offences for which the police cannot give a community caution is in the Bill. This is yet another example of why this Bill is a shell, lacking in sufficient detail for noble Lords to give their consent to it. The Delegated Powers Committee agrees, as the noble and learned Lord has said.
He is also right that any changes to the maximum number of hours of unpaid work or attendance, or the maximum financial penalty that may be attached to a diversionary or community caution, should at least be subject to the affirmative resolution. But as the noble and learned Lord has said on previous groups, the House still has no ability to amend such an order. I will have more to say on that issue in a later group. Again, the Delegated Powers Committee agrees, as the noble and learned Lord has said.
Amendment 214B is about community orders and suspended sentence orders, and has, as far as I understand it, nothing to do with police cautions—I look for reassurance. I have no idea why it is in this group of amendments, other than that it is also covered by the Delegated Powers Committee’s report. I have no doubt that the noble and learned Lord is absolutely right about that as well, and the Delegated Power Committee agrees.
We support these amendments, mostly because they are right, and, in the case of Amendment 214B, because the noble and learned Lord is usually right.
Lord Wolfson of Tredegar (Con)
My Lords, I recognise that this group of amendments in the name of the noble and learned Lord, Lord Falconer of Thoroton, has come about because of recommendations from the Delegated Powers and Regulatory Reform Committee in its sixth report of the Session. It is a pleasure to discuss this matter, even at this hour. As to timing issues, I am sure the noble and learned Lord knows better than me with whom to take that matter up; I am not sure I am the correct post box for that.
I can assure the Committee that, even as the noble and learned Lord was speaking, I received a WhatsApp—I am not waiving privilege on all my WhatsApp messages—from the Bill team: “To reassure, we are here.” The team cannot answer back, but I can. I regret the way that the team’s their work ethic was impugned, unintentionally, I am sure.
Lord Falconer of Thoroton (Lab)
I made it absolutely clear that I was not for one moment impugning the Bill team’s work ethic. I was saying, quite legitimately, that they are not here because it is so late at night. My learned friend the Minister makes a poor point in suggesting that I was impugning them. I have nothing but the greatest admiration for that Bill team, and he should not try to distract attention from the problems of debating this at this time of night with a remark like that.
Lord Wolfson of Tredegar
It has nothing to do with the hour. On every Bill I have done, I have had the Bill team on WhatsApp, whether it was the Domestic Abuse Bill at 3 pm or this Bill at 11.29 pm. The fact they are on WhatsApp and I deal with them remotely has nothing to do with the hour.
Lord Paddick (LD)
If I can adopt a previous role that I had as a police officer and come between the two parties to try to assist, I noticed that earlier this afternoon when the Minister was leading on a group of amendments, there was nobody in the Box. I assumed that that must have been because the officials were working remotely. I have to say that on this occasion I agree with the Minister. Even at—I do not know what time it was, perhaps 4 pm this afternoon—there was nobody in the Box when it was an MoJ issue.
Lord Wolfson of Tredegar (Con)
We can move on. We do not need to raise the temperature at 11.30 pm. We have other things to argue about.
Let us get to the substance of this. The committee proposed a number of changes relating to the cautions and problem-solving courts measures in the Bill, as elaborated by the noble and learned Lord and the noble Lord, Lord Paddick. I shall make the central point that I want to make, because it goes to all the points that have been put down. I can assure the Committee, and in particular the noble and learned Lord, that the Government are looking at all the committee’s recommendations, which underpin these amendments, as part of our wider response to the committee, and we will revert to it in due course. I therefore hope that as time goes on, if I can put it that way, these issues will be highlighted, and I hope resolved to the noble and learned Lord’s satisfaction, but, if not, we can continue to discuss them.
I shall highlight just one matter, because I want to leave time for the noble Lord, Lord Paddick, to give us his full oration on the next group, if we have time for it. On Amendment 169D, on excluded offences in respect of community cautions, the committee, as the noble and learned Lord explained, recommended that these offences are listed in the Bill rather than set out in regulations. As he explained, regulations would then be made where further amendments became necessary.
With respect to the committee, we maintain the position that the offences that are to be excluded for the purposes of community cautions are to be made by regulations. We point out that this approach of using regulations to identify excluded offences mirrors the approach taken in the Criminal Justice and Courts Act 2015, which sets out that the simple caution, if I can call it that, may not be used in respect to offences specified by order made by the Secretary of State by secondary legislation. Just as there, so also here we believe that secondary legislation is the appropriate place for setting out the list of excluded offences, as the level of detail required may not be appropriate or suitable for the Bill. We suggest that that approach also allows sufficient time for essential engagement with stakeholders to identify those offences and to enable future changes to be incorporated without primary legislation.
I point out that the secondary legislation that we are talking about here is subject to the affirmative procedure, so the transparency that comes with that procedure will be maintained. I suggest that it would be a little bit clumsy and rare to use primary legislation for what has to be a fairly flexible approach to listing offences that should not be cautioned. We will of course discuss this carefully with stakeholders. The aim will be to bring an SI to Parliament that will be acceptable. I apprehend that I have not responded to the underlying point made by the noble and learned Lord, because I said that we will respond to the committee, but I hope he understands the thrust of my response and that for present purposes he is able to withdraw the amendment.
Lord Falconer of Thoroton (Lab)
First, in the light of the evidence given by the noble Lord, Lord Paddick, I unreservedly withdraw the suggestion that we are in any way disadvantaged by the officials not being in the Box. I thank the noble Lord, Lord Paddick, for bringing that to our attention.
What a disappointing response that was on the substance. First, I am grateful to the noble Lord, Lord Wolfson, for saying that there might be something more coming, although he did not indicate what that might be. We have had the report since September. Why has it taken so long to get to this? Secondly, in relation to the point which the noble Lord, Lord Wolfson, did address—about the offences that would be excluded from community cautions—the Delegated Powers Committee is saying, “Put your initial cut in the Bill”.
The noble Lord, Lord Wolfson, gave no reason why that was not to be done. He referred to the 2015 Act to which the Government had not referred when they put their memorandum to the Committee. I have not had a chance to look at the 2015 Act. It has only been mentioned now. Changing defence, as the noble Lord is doing, is always an indication of shambles on the part of the Government. What is the reason for not giving the Commons and the Lords the opportunity to debate the initial cut? It does not make the Bill too cluttered. It would not add much more than half a page. It is a ridiculous defence.
I hope that the Minister will have the time to think about it for when he comes back with the Ministry of Justice’s conclusions on this absolutely damning Delegated Powers Committee report. I beg leave to withdraw my amendment.
Lord Paddick
Member’s explanatory statement
This amendment, together with Lord Paddick’s amendment to page 72, line 37, ensures that a person may only be authorised to give a discretionary or community caution if they have been authorised by a prosecuting authority for those purposes; and requires a prosecuting authority to be satisfied that that person has received adequate training and is suitable to carry out those functions.
Lord Paddick (LD)
My Lords, I will also speak to Amendments 171 and 190 in my name. I will then move to Amendment 186A which I support. The noble and learned Lord, Lord Thomas of Cwmgiedd, who cannot be in his place, has asked me to speak to it on his behalf.
As I have said, I apologise in advance for the length of my remarks. The only consolations I can offer the Committee are that the Government wanted to group these amendments with other groups. Secondly, I do not take responsibility for the length of the remarks of the noble and learned Lord, Lord Thomas, which I have undertaken to read on his behalf.
These amendments are designed to do two things. First, they question the whole new system of police out of court disposals proposed in Part 6 of the Bill. These include, but are not limited to, cautions. Secondly, they attempt to try to make any system of cautions where conditions are attached more effective.
No doubt, the Minister will say that the new system of diversionary and community cautions is based on the existing system of conditional cautions. To some extent, the Minister may be right. Conditional cautions look very similar to diversionary and community cautions, except that, in the case of community cautions, failure to comply with the conditions of the caution cannot result in the prosecution of the offender for the original offence. The only way in which a recalcitrant offender can be punished if they fail to comply with the conditions of a community caution is for a financial penalty to be imposed instead. This can then be enforced through the courts. The Minister will tell me if I have any of this wrong. I look to the Minister for reassurance. Apparently, I am doing all right so far.
First, I cannot find any data on how many conditional cautions have been administered; the proportion of conditional cautions, compared with simple cautions where no conditions are attached; or conditional cautions as a proportion of other types of disposal. Considering the complexity of deciding on, arranging, administering and monitoring compliance with the conditions attached to a conditional caution, I can only imagine that most custody sergeants would avoid them like the plague, particularly when sending the case to court. Simpler, and arguably as effective, out of court disposals are available. Perhaps this is why the proposals in this Bill as drafted attempt to cut off any other form of out of court disposals. If agreed, these proposals would mean that police custody sergeants could avoid administering a diversionary or community caution only by deciding to take no further action or by sending the accused to court, despite an admission of guilt. I can assure the Committee that we would see a significant increase in these alternatives being adopted.
The House of Commons briefing paper 9165 on these proposals is illuminating. I am afraid that I am going to quote it at length, but I assure the Committee that it will be worth it. It states:
“The Government estimates the policy will cost a total of £109.19 million over ten years. It thinks the criminal justice system will incur extra operational costs of around £15.58 million per year. It also thinks the system will cost the police around £13.70 million to implement (over two years) … The actual costs are likely to be higher because some costly features of the proposed system, like proposed restrictions on the use of OOCDs”—
out of court disposals—
“for certain offences, were not present during the pilot.”
It goes on:
“The Government hopes the proposed system will help reduce reoffending. Available data does not suggest short-term reoffending rates are likely to go down. The evaluation of the 2014 pilot … found no statistically significant difference between the short-term re-offending rates of OOCD offenders”
in the pilot areas
“to those in comparable areas not using the framework.”
It continues:
“The Government also hopes the new system will improve victim satisfaction because more victims will be involved in the OOCD process.”
I have already cast doubt on that, because I am convinced that the police will “no further action” a lot more cases as a result. However, the paper states:
“It is true that more victims will be involved in the OOCD process under the new system, but this is unlikely to have a big impact on victim satisfaction rates. This is because the victim satisfaction rate for OOCD cases is already good. In 2019/20 84% of victims whose offender was issued a caution said they were satisfied with the police, a similar rate to victims whose offenders were charged (83%).”
The paper summarises by saying that
“the available evidence suggests the system … may result in a further decline in the use of OOCDs … is likely to cost more … is unlikely to have a major impact on the reoffending rates of offenders; and … may improve victim satisfaction but is unlikely to have a major impact.”
Can the Minister explain to the Committee why the Government are proposing to spend more to achieve nothing?
Turning to Amendments 170 and 171, a 2018 paper by Dr Peter Neyroud—a former chief constable of Thames Valley Police and now a distinguished academic—published by the University of Cambridge and commissioned by the National Police Chiefs’ Council, entitled Out of Court Disposals Managed by the Police: A Review of the Evidence, concluded:
“In order to be effective OOCD’s with conditions must be implemented well and three areas require particular attention: the eligibility screening of offenders; the needs assessment to match conditions to the offender; the setting and tracking of conditions”.
More specifically, he said:
“The result … was a significant degree of inconsistency and a substantial number of inappropriate and un-evidenced conditions. Whilst the provision of further training and more guidance improved the situation somewhat, the cost of … an investment within a more general implementation of OOCD’s with conditions would be prohibitive and, in any case, did not completely resolved the problems.”
On the issue of whether out of court disposals were more or less effective when they had conditions attached, he said, bearing in mind that this was a review of all the available evidence:
“Making a direct comparison between OOCD’s with conditions”—
both community cautions and diversionary cautions are OOCDs with conditions—
“and OOCD’s without conditions is difficult: none of the research makes this direct comparison.”
Let me summarise. The provisions in this Bill propose getting rid of all out of court disposals except for cautions, all of which will have to have conditions attached. There is no evidence that cautions with conditions attached are any more effective than cautions without them. Where conditions have been attached to cautions in the past, there was
“a significant degree of inconsistency and a substantial number of inappropriate and un-evidenced conditions.”
Amendments 170 and 171 suggest that only those adequately trained officers who are considered by the prosecuting authority to be suitable to decide on diversionary and community cautions can administer them. Amendment 190 is consequential.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I want to say something from the Back Benches about my experience of sitting on scrutiny committees, which the noble Lord has just spoken about. I have sat on scrutiny committees for reviewing out of court disposals for both the British Transport Police and the Metropolitan Police. In my experience, they are good committees because they bring together a range of interested parties on whether out of court disposals are appropriate—magistrates, probation, CPS, police, YOTs and sometimes, in addition, there may be housing, education and health people from local government to review the appropriateness of out of court disposals.
In my experience, this system is extremely erratic and not systemised in any particular way. My experience is that the results of reviewing out of court disposals are not fed up through the Home Office, so when I have asked questions of both the MoJ and the Home Office, there is no way of reviewing whether out of court disposals have been appropriately used or of collating the numbers, because the use of scrutiny committees varies so much across the country—that is my understanding. I was interested to listen to the noble Lord, Lord Paddick, talk about the amendment tabled by the noble and learned Lord, Lord Thomas, and whether he is trying to introduce a code of practice to try to regularise these out of court disposal scrutiny committees. They are a good idea, but they need to be standardised across the country.
Lord Falconer of Thoroton (Lab)
I am very much obliged to my noble friend Lord Ponsonby of Shulbrede for that intervention, which goes to an incredibly important point raised by the noble Lord, Lord Paddick, and the noble and learned Lord, Lord Thomas of Cwmgiedd, which is that there needs to be proper scrutiny of the police being given a power to, in effect, punish people and impose conditions. There are two aspects to that, which the noble and learned Lord identified in his speech, so beautifully read by the noble Lord, Lord Paddick, even though it is so late: first, that the code of practice is complied with and, secondly, that there is consistency throughout the country in relation to the application of out of court disposals. I would be very interested to hear what the Minister has to say on how that point will be dealt with. We support the amendment proposed by the noble and learned Lord, Lord Thomas of Cwmgiedd.
I also agree with Amendments 170, 171 and 190, which seek to ensure that a person may be authorised to give a discretionary or community caution only if they have been authorised by a prosecuting authority for those purposes and a prosecuting authority must be satisfied that that person has received adequate training and is suitable to carry out those functions. Amendment 190 is a consequential amendment on that. I support these amendments and am very interested to hear what the Ministry of Justice has to say about them. I cannot think that it would not agree with this; some level of quality must be required for somebody who is going to give that caution.
Finally, the noble Lord, Lord Paddick, made points to the effect that this will be more expensive. He did not mention, because he is too kind—or he may have done, but I missed it—the additional £13 million that the Commons paper identifies for the cost of introduction, in addition to the £105 million and £15 million. We are going to spend all this money to achieve no greater victim satisfaction and without any evidence that it reduces reoffending. Why?
Lord Wolfson of Tredegar (Con)
My Lords, the amendments we are talking to cover a little area and I will take them in turn if I may. I start with Amendments 170, 171 and 190. They remove the authority of a constable or investigating officer to be able to give a diversionary or community caution and in turn propose a set of preconditions that require that a prosecution authority be satisfied of the suitability, capability and training of a person before they are designated to issue a diversionary or community caution.
The position at the moment is that cautioning is mostly but not, it is fair to say, exclusively carried out by police constables. Cautioning by police dates back nearly 100 years and the police have become experienced in the application and use of cautions. At the moment, there are statutory restrictions around the use of simple cautions by the police and an existing statutory framework for their use of conditional cautions.
The framework provides a role for the DPP to authorise the use of cautions in particular circumstances. Police and prosecutors share responsibility for dealing with out of court disposals. The noble Lord, Lord Paddick, already knows this, but where police decide that an indictable-only offence should be dealt with by means of an out of court disposal, the case must be referred to a prosecutor to determine whether there is sufficient evidence for a realistic prospect of conviction and that it is in the public interest to deal with the case in this way.
These clauses do not change the approach set out in the director’s guidance and we believe this provides a necessary safeguard to the use of cautions for more serious offences. We believe that the police should be empowered as professional decision-makers, while being given clear statutory guidance as to the use of cautions. The question of the adequacy of training to fulfil those functions, which underpins these amendments, is really one for the policing authorities.
In that regard, coming to the point made by the noble and learned Lord, Lord Falconer of Thoroton, we believe that the code of practice is the appropriate place to set out any safeguards, checks and balances that should be in place before any caution under the new two-tier framework is given.
Lord Falconer of Thoroton (Lab)
What is the method of scrutiny of that code of practice by Parliament?
Lord Wolfson of Tredegar (Con)
I will come to that point. I will try to answer that question, but if I do not, I know the noble and learned Lord will remind me. However, I think I will come to it. I was just making the point that there will be safeguards, checks and balances under the new two-tier framework, an example of which may be a review by an officer of a higher rank before a decision to issue a caution is made.
Lord Ponsonby of Shulbrede (Lab)
If the noble Lord will give way, the point I was making is that there is an inconsistency in the scrutiny of out of court disposals, not just the out of court disposals themselves.
Lord Wolfson of Tredegar (Con)
Absolutely. Let me deal with the out of court disposals themselves. I hope I have answered that point. There will, we hope, be a greater consistency of approach, but there will be differences. As for the scrutiny, as I said earlier, the code of practice will, we hope, provide a level of consistency of scrutiny that we also want to make sure is part of this structure. As I said earlier, that will be subject to an affirmative SI.
I am conscious of the time. I think we have drifted into Tuesday, so perhaps I should just conclude by thanking the Committee for contributions and invite the noble Lord to withdraw the amendment, although I am sure the discussions will continue. I also beg to move that the clauses stand part of the Bill.
Lord Paddick (LD)
My Lords, it is completely unacceptable that the noble Lord has said on numerous occasions that, because of the hour, he is not going to go into detail in answering the issues that I have raised. We either scrutinise this Bill properly or we do not. I do not care what time of night it is; we will scrutinise this Bill effectively. That is the first point to make.
Lord Wolfson of Tredegar (Con)
To be clear, the only reason I made that point is because I have a very long answer—I am happy to read it—explaining the different ways particular police forces have responded to the point. Apart from that, I gave exactly the answer I would have done had it been four o’clock in the afternoon. I assure the noble Lord that I have not deleted one sentence from my notes on the answer.
Lord Paddick (LD)
In that case, I point out how completely inadequate the Minister’s answers have been. He completely did not address the research, which shows that there is no evidence that cautions with conditions attached are any more effective than simple cautions—there is no evidence. The noble Lord himself admitted that there cannot be any evidence because the Home Office does not keep any figures. It does not differentiate between conditional cautions and simple cautions; it just aggregates all cautions together. It also keeps no record of what conditions are applied in cases of conditional caution, so the Government have no evidence upon which to base this system, in which all cautions have to have conditions attached. They cannot demonstrate the efficacy of that system, and the research in the pilot forces also shows no impact on reoffending rates, little or no impact on victim satisfaction and significant increases in cost. The Minister has provided no reassurance on those issues at all.
As far as the amendments are concerned, conditional cautions are supposed to be about rehabilitation and reparation. How can an untrained police officer be an expert on what sort of rehabilitation a particular offender should undertake to have maximum impact on their reoffending? As both the noble and learned Lord, Lord Thomas, and the noble Lord, Lord Ponsonby, said, the problem is not only the inconsistency of whether the conditions that different forces attach will have any efficacy at all—the Minister admitted that there would be inconsistency between forces—but a lack of public confidence in the system the Government are proposing. In one force area, someone will have very stringent rehabilitation and reparation conditions attached; for almost exactly the same type of individual and the same sort of offence, a completely different system or set of conditions will be applied. How can that provide the public with any confidence that justice is being done, when completely different conditions are being attached to very similar offenders and offences in different parts of the country, unless the officers who are giving out these conditions have been specifically trained, told what the standard approach is and approved by the Crown Prosecution Service, as my amendments suggest?
The noble Lord said that the safeguards and checks and balances will be included in codes of practice. I will tell the Committee why such an approach is not acceptable. With the Covert Human Intelligence Sources (Criminal Conduct) Act, it turns out that, despite the arguments that we made against the safeguards and checks and balances being relegated to codes of practice, the Government now accept that any police inspector, whether specifically trained in dealing with covert human intelligence sources or not, can authorise a CHIS to commit a crime. That person will be immune from prosecution, even though that inspector is not authorised by their force or trained to give that authority —it is in the codes of practice. But the Government have admitted, in a letter to me from the noble Baroness, Lady Williams of Trafford, that, if an untrained, unauthorised inspector authorised a CHIS to commit a crime, it would not be unlawful. That person would therefore be immune from prosecution. That is the danger of relegating safeguards, checks and balances to codes of practice and not having them in legislation.
The only thing I can take from what the Minister said is that this is really about saving court time and CPS time; I think I quote him accurately. It is not about preventing reoffending because we know that this system does not reduce it. It is about trying to take pressure off the courts, and that is no way to administer justice. We should give the criminal justice system the resources that it needs rather than taking the shoddy short cut to justice proposed in this part of the Bill. For the moment, I beg leave to withdraw the amendment.
Police, Crime, Sentencing and Courts Bill
Wednesday 10th November 2021
(2 years, 6 months ago)
Lords ChamberRead Full debate Police, Crime, Sentencing and Courts Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 40-VII(b) Amendments for Committee (supplementary to the Seventh Marshalled List) - (10 Nov 2021)
Member’s explanatory statement
This amendment provides the victims with the opportunity to register their financial losses and seek compensation.
Lord Brooke of Alverthorpe (Lab)
My Lords, in moving Amendment 172, I will also speak to Amendments 173, 177, 179, 180 and 186, to be inserted after Clause 79. These are about victims’ financial losses, which can often arise as a result of an assault on their person, their property or their belongings. The amendments seek to ensure that the authorities and the perpetrators are made available of these costs and that, in turn, where possible, there might be some restitution for these innocent people whose property and goods have been attacked.
I bring the issue to the Committee’s attention based on a most unfortunate and regrettable experience of a friend of mine, Mr James McAra, who lives just outside Scunthorpe. He was at home watching television on the evening of 13 September this year in his house at Ashby. He was alone—he is a widower, aged 78 years, who has lived there for 55 years. He has brought up his family; they have all flown the nest and he is left alone. At 10 pm, his life was changed. There was a terrific crash outside the house, then suddenly his windows were smashed in and his front door was crashed down. Five masked, armed men with sledgehammers appeared in the house. He confronted one of them, who then gave him a push and shouted to his accomplices, “Oh fuck, it’s an old man. We’ve got the wrong effing house.” With that, they turned around, ran out and left him in a terrific state of shock. In the event, it turns out that the noise outside had been the smashing of his car with sledgehammers. It was so badly damaged that it has had to be written off.
As noble Lords can imagine, this is a most distressing experience—an attack and assault—for a man of such an age. The police arrived promptly; by all accounts, they were excellent and knew straightaway what had happened. The two houses next door had been raided on numerous occasions over the last two years in relation to drug dealing, and only two months earlier a young man had been found dead in one of them. The police believed that the attack on his property was intended for one of those houses, related to the ongoing drugs problem. This couple of houses, with numerous instances of anti-social behaviour, has made this once peaceful street a nightmare to live in. As a consequence, James is now considering moving because of this sickening experience and attack.
I turn to the amendments. To compound matters, Mr McAra is well out of pocket from this experience. The car insurance in no way covers the cost of the replacement car he has had to get. Then he has had to pay the excesses on the house insurance for new doors and new windows, and he has now been told that his future insurance premiums on his car and his property—the lot—will go up next year. Where is the justice for a victim of this kind?
I suspect that the chance of getting some reparations from the attackers, if they could be found, arrested and convicted, is quite a long shot. However, we have been disturbed to learn that it is not always understood by the authorities what the total cost has been and that there is no formal request for a record of the costs that might arise, in a variety of different ways, when someone is attacked in this way. Obviously, a requirement for conversations with the victims is laid down and victim support is offered, but financial losses are not necessarily recorded. I believe, and I am sure noble Lords share this view, that they should be. They should be taken into account in determining punishments and, if it is possible to get restitution, they should be known factors taken into account for that purpose.
Having heard this story, I am sure that noble Lords, like me, feel that it is time for some changes to try to give further assistance to victims. Mr McAra’s constituency MP is Holly Mumby-Croft, a Conservative MP who knows all about these facts and has been as supportive as she could be in the circumstances. She has been advised that these amendments will be put before the Committee today and, in due course, we are hoping they will be adopted and go back to the Commons. I think she is hoping that she can look for a sympathetic hearing from the Front Bench today. For positive action, in adopting these amendments, which will cost little to implement, we must go some way towards actually making changes. The amendments before us would facilitate such changes. On behalf of victims affected in this way, particularly Mr McAra, I have great pleasure in moving this amendment.
Lord Paddick (LD)
My Lords, the noble Lord, Lord Brooke of Alverthorpe, has relayed to the Committee clearly a very distressing case of mistaken identity and anti-social behaviour generally in that street, apparently to do with drug dealing. If the perpetrators of this terrible crime were found, I am not sure that they would be given a caution, and I thought this part of the Bill was about police cautions—but I accept the general point that victims need to be protected. Although a caution would not be applicable in this case of the break-in at the home and the damage to the car, there might be one in respect of the general anti-social behaviour in the street. It is absolutely essential that the needs of victims are taken into account by the police, including for the financial losses that victims have suffered.
As I said on a previous group, out-of-court settlements have a high victim approval rating already. These amendments, in so far as they apply to police cautions, would ensure that they remain high, and to that extent we support them.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I agree with the points that the noble Lord, Lord Paddick, just made. I also think that Mr McAra should be very grateful to my noble friend Lord Brooke for raising the points about the lack of a formal record of the cost of the incidents. I agree with the noble Lord, Lord Paddick, that it seems very unlikely that anyone would get a caution for this sort of offence. Even if it got to court, there would be an obligation on the sentencing court to consider compensation, because one has to consider this whenever one sentences an individual. Nevertheless, my noble friend has raised an interesting question and I look forward to the Minister’s reply.
Lord Carlile of Berriew (CB)
I hope I can be forgiven for intervening slightly out of order. I have been thinking as I listen to this debate about the very troubling case which the noble Lord, Lord Brooke of Alverthorpe, raised, but I am not sure that what he is looking for is germane to this clause. However, there is an issue of general principle about unrecovered, uninsured losses arising from a serious crime of violence which does not cause considerable personal injury.
If there is an injury that would attract damages of £1,000 or more, some ancillary costs are payable under the criminal injuries compensation scheme. This raises in my mind that perhaps the Government should look at something like the Pool Re reinsurance scheme, which applies to claims which are uninsured as a result of terrorism events. The underinsured or uninsured person can go to this entity, which has been set up jointly by the public and private sectors, and recover the cost of damages for what has occurred outside the insurance scheme. I suggest to the Minister, who is an extremely experienced lawyer, that perhaps the Government should look at the criminal injuries compensation scheme and the Pool Re scheme and try to produce something which would deal with quite a significant number of cases which probably do not involve a massive amount of money, but in which people who are not very well resourced suffer a great deal, and disproportionately, as a result of the kind of offence that the noble Lord described.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
My Lords, this group of amendments, proposed by the noble Lord, Lord Brooke of Alverthorpe, seeks to require that reasonable steps be taken to obtain and take into account details of any financial costs incurred by the victim as a result of the offence when deciding on the conditions to attach to a caution and when deciding on the amount of the financial penalty.
I will begin with the particular instance that the noble Lord set out. Both he and the noble Lord, Lord Paddick, used the word “distressing” and I agree with that entirely. I would go further and say that it was appalling; it is a horrific set of circumstances and I am sure everyone in the Committee would share that approach. I extend deepest sympathies to Mr McAra. I am very pleased to hear that his local MP has been helpful and supportive; I was also pleased to hear that she is a Conservative, although one of the glories of our parliamentary system is that all MPs from all parties extend that sort of support to their constituents. It is very good to hear that the system is working.
I also tend to agree that this would be unlikely to be a caution case. I am hesitant to say any more, because prosecuting decisions are independent and a matter for the CPS. I defer in this regard to the experience of the noble Lord, Lord Paddick, but it sounds to me as though this would be more than a caution case.
The Bill states that both the diversionary and community cautions must have conditions attached to them. Those may include rehabilitation and reparation conditions, financial penalty conditions or conditions related to certain foreign offenders. I assure the noble Lord, Lord Brooke, that I give this amendment and the points that he made a sympathetic hearing, as he wanted, but I will explain why as a matter of principle we cannot accept it. This is not because we disagree with the point that underlies it but for the reasons which I will set out. The starting point is that Clauses 79 and 88 already provide for the authorised person to make reasonable efforts to obtain the views of any victim of the offence and take those views into account when deciding on the conditions to be attached to a caution. This includes obtaining their views on financial costs incurred and any decisions on seeking compensation.
Under the current cautions regime, the code of practice for conditional cautions makes clear provision for this in specifying that financial compensation may be paid to a victim. In addition, where the offending has resulted in damage to community property—I appreciate that in the case we have discussed the damage was to personal property—reparation may also take the form of repairing the damage caused, reparative activity within the community more generally or a payment to a local charitable or community fund, which might be more helpful if an offender does not have the financial means to pay. The current code also states that compensation for the victim should be prioritised ahead of other costs or financial penalties.
As is the case with the current code of practice for conditional cautions, the code of practice for the new diversionary and community cautions is the appropriate place to set out further detail on how the conditions attached to a caution may be decided. Again, that will include obtaining and considering any financial losses and requests for compensation. The code will be drawn up under the delegated powers in the legislation. We will consult widely, as the noble Lord would expect, and it will be laid under the affirmative procedure.
Consulting victims goes beyond just cautions. It is a key principle of the victims’ code, point 6.7 of which says:
“Where the police or the Crown Prosecution Service are considering an out of court disposal you have the Right”—
that is, the victim has the right—
“to be asked for your views and to have these views taken into account when a decision is made.”
As I have sought to explain, that will encompass the financial circumstances as well.
Finally, without wishing to be too particular on the drafting but just for the record, I point out that, although the parts of Amendments 177 and 186 relating to Clauses 81 and 90 share the same underlying intention, those clauses relate to financial penalties paid to a court, which are punitive and are not the same as the rehabilitative or reparative conditions, which I know are really the focus of the noble Lord’s amendment.
Lord Brooke of Alverthorpe (Lab)
My Lords, I am grateful to everyone who has contributed. As noble Lords probably gathered, I was looking for a peg on which to hang my hat. I am pleased that I found a peg and I found someone who was prepared to cast a hat on it as well—I am grateful to the noble Lord, Lord Carlile, for finding a possible solution.
There is a problem and it should be addressed. People should not be out of pocket. The cost is not just in respect of the one year when they have the incident. If an insurance policy goes up, it goes up and it stays up; it is an ongoing cost to the individual. I am grateful to the Minister for saying that he will have a look at this, so if there is an opportunity to find a way through I am happy to leave it for now and see if we can have a conversation to find a way for victims to be given the proper compensation for the problem that they have encountered. In the meantime, I beg leave to withdraw the amendment.
Lord Paddick
Member’s explanatory statement
This amendment removes the subsection which allows the maximum number of hours attached to the unpaid work condition and the attendance condition to be amended by regulations.
Lord Paddick (LD)
My Lords, I will also speak to the other amendments in this group. The Committee has already considered these issues, so I can be brief. I apologise for not recognising that some of the amendments in a previous group covered similar issues.
In that previous group, the noble and learned Lord, Lord Falconer of Thoroton, suggested that the maximum number of hours attached to the unpaid work condition and the attendance condition, and the maximum fine that could be attached to a caution, should be set in the case of the fine and varied in all cases by regulations and that those should be amended only by the affirmative resolution procedure. The noble and learned Lord previously said in Committee that this was not an ideal solution, as regulations could not be amended and that this House was reluctant to use the “nuclear option” of praying to annul regulations, which is the only option available if it disagrees with a statutory instrument. Even with the affirmative resolution procedure in place, in practice, if the House disagrees with an increase to the maximum number of hours of unpaid work—or any of the other conditions attached to police cautions—there is little that it can do about it, unless changes are made through primary legislation.
I grant that the value of money is eroded over time by inflation and periodically the maximum fine capable of being attached as a condition to a caution may need to increase accordingly, but surely not the amount of time to be spent in unpaid work or subject to the attendance condition. There is a question of principle. If an offence is so grave that greater punishment is required, that should be a matter for the courts and not for a police officer to decide. There is precedent in our legal system for this principle. If magistrates want to impose a harsher sentence, they must refer eligible cases to the Crown Court, where a more senior judge can make a decision with more serious consequences.
When I joined the police service in the 1970s, the police performed the role of both investigator and prosecutor. Parliament then decided that prosecution decisions should be made by an independent body, the Crown Prosecution Service, for very good reasons that I do not need to rehearse here, while punishment of the individual has primarily been a matter for the courts, supported by reports from experts on the medical, social and criminal antecedents of the accused, in many cases, and considered by highly trained and experienced judges who are obliged to follow sentencing guidelines. In the proposals contained in this part of the Bill, the police are investigators, prosecutors and sentencers. There must be limits on the extent to which they should be allowed to carry out all three functions in relation to a case and those limits should be set out in primary legislation, on the face of the Bill. That is the purpose of these amendments and I beg to move Amendment 174.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I listened with interest to the noble Lord, Lord Paddick. As he says, in this part of the Bill the police are investigators, prosecutors and sentencers. They also decide whether the matter should be sent to the CPS, with the people charged and sent into the court system. Of course, once the case gets into the court system, magistrates are judge, jury and sentencers. There are different roles at different stages of the system. The burden of the amendments in the name of the noble Lord, Lord Paddick, is in some way to codify, limit and guide the police when they are doing this pre-court intervention with the type of cautions set out in the Bill. I look forward with interest to the Minister’s response.
Lord Wolfson of Tredegar (Con)
My Lords, I thank the noble Lord, Lord Paddick, for putting forward this group of amendments. If I can put it this way, the noble Lord realistically recognised that we have covered some of this ground before—not this particular issue but the conceptual underpinning on which it is based. I hope, therefore, that the Committee and the noble Lord will not take it amiss if I reply relatively briefly, because we have covered some of the points before.
Amendments 174, 176, 182 and 185 relate to the delegated powers contained in Part 6. The amendments propose to remove the clauses that allow the maximum amount of the financial penalty and the maximum number of unpaid work and attendance hours to be specified in regulations and would replace that by putting the details in the Bill. Amendments 175, 183 and 184 set out that the maximum penalty attached to a caution would be fixed at £200 and would make it explicit that an offender’s ability to pay must be taken into account.
The Bill contains powers to set and amend the amount of the maximum financial penalty and to amend the maximum number of unpaid work or attendance hours by regulations via secondary legislation. As I explained on a previous occasion, it was drafted that way to ensure maximum flexibility when responding to the needs of operational practitioners. Any changes to these regulations will be subject to parliamentary scrutiny in the normal way, but removing the delegated powers in their entirety, which is what Amendments 174, 176, 182 and 185 would do, would mean that there is no flexibility to amend either levels of financial penalty or the number of unpaid work hours. If we have the maximum financial penalty on the face of the Bill, to change it or update it, whether because of inflation or anything else, we would have to have to come back to primary legislation. I respectfully suggest that that is not a great use of parliamentary time.
Finally, as to the matter of whether the offender’s ability to pay should be explicitly set out in statute, of course it is a relevant factor, but we believe that this—alongside a range of other relevant factors around giving a financial penalty, the amount that it is set at and how quickly it is going to be paid—is better set out in detail in a statutory code of practice rather than in the Bill. With apologies for taking that a little shortly, I invite the noble Lord to withdraw the amendment.
Lord Paddick (LD)
My Lords, I thank the Minister for saying something. The whole point of not allowing it to be in regulations is that it is an important question of principle that once a crime gets to a certain level requiring a certain punishment, it should be for the courts to administer that punishment, in the same way that if a magistrate decides that the punishment they are able to give is not sufficient, they have to refer it to a higher court. These are the people with the experience, training and background properly to assess both the individual and the circumstances, and to apply the penalty. Therefore, it should be dealt with in primary legislation.
This should not be about providing maximum flexibility for operational partners. It should be about consistency and certainty, and citizens knowing that above a certain level of unpaid work, attendance at a training course or a fine imposed by the police, they cannot go without referring the matter to the courts. That is the whole point. I completely accept that the Minister has explained why it is in regulations and not in the Bill. However, he has not addressed at all the argument that it should not be that flexible.
Why is the accused’s ability to pay important? I was talking to my noble friend Lady Randerson about this amendment earlier today; like the noble Lord, Lord Ponsonby, she is an experienced magistrate, now retired. She said, “It is so important to take into account the accused’s ability to pay, because if you impose a fine, say, of £200 on somebody who has little or no income, it will almost guarantee that they commit a crime in order to get the £200 to pay the fine.” That is why that seemingly innocuous addition, which should be in the Bill, is in fact absolutely important. In the light of the Minister failing to engage with the heart of the amendments, we will return to this issue on Report, but in the meantime, I beg leave to withdraw the amendment.
The Deputy Chairman of Committees (Baroness Garden of Frognal) (LD)
If Amendment 176 is approved, I cannot call Amendment 177 by reason of pre-emption.
Lord Paddick
Member’s explanatory statement
This amendment is to probe the effect of subsection (4).
Lord Paddick (LD)
My Lords, by way of a little light relief for the Committee, I rise to move Amendment 178 in my name.
In this part of the Bill, “Part 6—Cautions”, Clause 86 deals with:
“Application of Police and Criminal Evidence Act 1984.”
On page 78, at line 17, Clause 86(4) states:
“Section 40 of the 1984 Act (review of police detention) applies to a person in police detention by virtue of section 85 above as it applies to a person in police detention in connection with the investigation of an offence, but with the following modifications—
(a) omit subsections (8) and (8A);
(b) in subsection (9), for the reference to section 37(9) or 37D(5) substitute a reference to the second sentence of section 85(6) above.”
Baroness Hamwee (LD)
My Lords, does the Minister think that the Bill is so short that it would have spoiled it if the new provisions had been set out in full?
Lord Wolfson of Tredegar (Con)
My Lords, taking that last point first, one of the glories of our system is that the drafting is done by parliamentary counsel, and I will not criticise the way it has been done. However, I agree with the underlying point made by the noble Lord, Lord Paddick, that legislation ought to be—
Lord Wolfson of Tredegar (Con)
I was going to say “comprehensible” but that is a pretty high test— perhaps “as clear as good legislation can be”. I have to leave at least some space for my former colleagues at the Bar to have a career; if we make it too precise, we will do people out of a job. However, there is a serious point here, and I agree with the noble Lord, Lord Paddick, that legislation should be as clear as possible. I will set out what the words are seeking to do, and if it is thought that there is a better way of putting them to get to the same result, obviously, I will be happy to hear it. However, let me explain what they seek to do.
Clause 86 sets out the provisions of PACE and the modifications required to them that will apply upon arrest for failure to comply with any condition attached to a diversionary caution. The purpose of the clause is to ensure that the diversionary caution operates effectively within the existing framework of police powers; it mirrors the approach taken in the Criminal Justice Act 2003, which gives the police powers of arrest for failure to comply with the existing conditional caution.
The subsection of this clause ensures that someone arrested and detained by the police is subject to the same treatment as any detained person, and periodic reviews of their detention are carried out. Obviously, that is important. The same subsection also contains modifications to put specific matters in the Bill: the power to detain those who are unfit to be dealt with at the time of arrest; the power of arrest for detainees bailed for any breach—that is, non-compliance; and the power to search a detainee in police custody following arrest.
The modifications make specific reference to the diversionary caution. For example, the PACE power to search and examine a detainee to ascertain their identity is modified to ensure that the power will still exist where a detainee has failed to comply with any of the conditions attached to the person’s diversionary caution. Therefore, it provides—I was going to say “clarity” but perhaps that might be pushing the point a little—that these powers apply only to the diversionary caution and not also to the community caution, where there is no power of arrest or prosecution for non-compliance. That is why Clause 86(4) is needed. Without the necessary PACE provisions as modified, the powers for police to deal with breaches of a diversionary caution would be limited and that would undermine the effect of non-compliance with the conditions.
I do not know whether what I have said has reassured the noble Lord, Lord Paddick, that the clause is properly focused. I hope that I have explained what it is trying to do. I am not being flippant and I do appreciate that legislation needs to be as clear as possible and that it is important that people understand what it encompasses. However, when one is legislating against the background of other legislation, it can be quite difficult to do it other than by cross-references back. If there is a better way to achieve the same result without adding pages and pages, I should be very happy to hear it, but I hope that I have explained what the clause is focused on and why it is drafted in the way it is. I therefore invite the noble Lord to withdraw the amendment. However, I am happy to discuss this matter between us if there is another way of doing it.
Lord Paddick (LD)
I am very grateful to the Minister. Perhaps I may gently suggest that if something akin to what the noble Lord said was contained even in the Explanatory Notes explaining that part of the Bill, we would not have to spend time in Committee trying to understand what it was about. I know that my noble friend Lady Hamwee and I have looked everywhere possible to try and decipher what that meant—to no avail. It may be that to parliamentary draftspeople it is as clear as day—but for us lesser mortals it is not. I beg leave to withdraw the amendment.
Baroness Hamwee (LD)
My Lords, before my noble friend withdraws his amendment, I should say that he is quite right. There are a number of different points at which it is important for people to understand what legislation means. For us looking back at legislation, we can do so online and it is important that the changes go up online as soon as possible, including in the previous legislation. This is quite a serious point that is, of course, much broader than the Bill—but I am going to infuriate the Committee by getting it off my chest. One can spend an awful lot of time trying to understand what a piece of legislation, passed 20 years ago and amended five times, actually amounts to unless what is put online is completely up to date. It wastes an awful lot of noble Lords’ time and must waste Ministers’ time trying to get their heads around it if the Explanatory Notes do not set out those things intelligibly.
The Lord Bishop of Durham
“(c) make reasonable efforts, or ensure that reasonable efforts are or have been made, to ensure conditions include interventions to support the offender to desist from offending.”
The Lord Bishop of Durham
My Lords, I am moving the amendment in the name of my friend the right reverend Prelate the Bishop of Gloucester, with her permission, as she is, sadly, unable to be here. I declare her interest as Anglican Bishop for Prisons in England and Wales, and we are very grateful for the support of the noble and learned Lord, Lord Thomas, and the noble Lord, Lord Beith.
I should say first that, while there are many parts of the Bill with which I take some issue, I do by and large consider it a welcome feature of the Bill that it places a new emphasis and focus on diversionary and community cautions, and on simplifying the previous regime. Done well, these out-of-court disposals, with helpful conditions attached, can be an effective solution that strikes a balance between punishment, the protection of communities and supporting the offender to successfully seek restoration in their community.
However, it is an issue that the conditions attached to these cautions can be poorly conceived and become either unnecessarily restrictive or, indeed, not sufficiently rehabilitative in order to help people to avoid reoffending. This amendment is intended to improve and clarify what is already presented in the Bill by providing assurance that conditions attached to community cautions will
“make reasonable efforts, or ensure that reasonable efforts are or have been made, to ensure conditions include interventions to support the offender to desist from offending.”
That closely matches the wording in Clause 79(3), which insists on efforts to obtain the views of any victim or victims of the offence. Seeking the views of victims is a sensible objective, but it leaves this clause, “Deciding on the conditions”, rather lopsided. Attention is paid to who can set conditions and to the views of victims, but not to the most fundamental point, which is surely what impact these conditions have on the offender.
The critical point here is that community cautions are likely to be useful only if the conditions are effectively tailored to help offenders desist from offending. Key drivers of crime are poverty, mental ill-health, trauma and substance misuse. If conditions of cautions do not take steps to address those drivers, how can we reasonably expect to reduce reoffending? The alternative is simply to see the revolving door continue to spin, with the same offenders being trapped in cycles of offending, without the help they need to escape and rebuild their lives. Apart from being bad for the offender, this is obviously bad for victims and communities, who will continue to be impacted by reoffending. Only by restoring relationships and communities and providing the right support to prevent reoffending can we begin to really break this cycle.
I am very grateful to the Revolving Doors Agency for its briefings and support, and for its work with its new-generation campaigners. These are young adults with experience of the revolving door of crisis and crime, and discussions with them were around how they viewed conditions attached to cautions, what they found useful and what they did not find useful. Revolving Doors established that among the useful conditions were: attendance at drug and alcohol treatment to help break addiction cycles; meaningful, ideally accredited, unpaid work to build up skills and provide career options; family counselling sessions; and signposting to services to help with financial issues and poverty. All these conditions, critically, are designed to work with offenders to address underlying causes of their offending and provide them with meaningful alternatives that do not simply keep people trapped in the same cycles of criminal activity and the criminal justice system.
I hope that we might hear from the Minister of plans to extend and increase funding and support for such interventions, as I was rather disappointed not to see Dame Carol Black’s full recommendations for funding for drug treatment in the Chancellor’s Budget. You might also expect me to say that in the case of women’s offending we know that when a number of these things are provided through a holistic approach through a women’s centre, there are encouraging outcomes regarding reoffending.
I turn to the other aspect of conditions, which is about them sometimes being unnecessarily punitive without having any benefit. That is also highlighted by research from the Revolving Doors Agency and its work with its young new-generation campaigners in highlighting that not all conditions are useful or helpful. One campaigner told Revolving Doors of a condition where they were banned from public transport despite relying on it to get to school:
“I used to have get two buses to school, and then I was banned from public transport. How else was I meant to get to school? I was taken to court for still being on public transport.”
Other highlighted examples were conditions that were not tailored to the needs of the offender but seemed arbitrary or overly restrictive—almost as though they were being set up to fail.
One danger of the Bill as drafted is that since it is mandatory to impose conditions on these cautions, there is a risk of up-tariffing, with conditions attached that are more restrictive than necessary and actually undermine the ability of an offender to desist from crime. Indeed, the Centre for Justice Innovation noted that the Ministry of Justice’s two-tier out-of-court disposal pilot evaluation highlighted the dangers of up-tariffing within out-of-court disposals. It showed that, contrary to the principle of de-escalation, people who would have received simple cautions were given conditional cautions instead. Conditional cautions involved people having to complete more interventions than they otherwise would have done and came with the threat of enforcement in the case of non-compliance. That threat of enforcement is critical. There is little point to community cautions if the conditions are so onerous that many people end up breaching them and find themselves receiving a custodial sentence.
I stress again that the amendment looks to improve on the Bill. This clause already provides for several criteria for deciding on conditions—notably, the views of victims. It is a small and easy fix to ensure that a further criterion is to ensure that conditions make reasonable efforts to support the offender to desist from offending. I beg to move.
Lord Thomas of Cwmgiedd (CB)
It was a privilege to add my name to this amendment, which has been so ably moved by the right reverend Prelate the Bishop of Durham, speaking the words of the right reverend Prelate the Bishop of Gloucester. I associate myself with everything that has been said and particularly with the work being done by Revolving Doors and the Centre for Justice Innovation.
This particular amendment raises a problem with this part of the Bill. One can understand why putting in a condition or requirement in relation to the victims might appeal to a certain type of politician, but they forget that, if you are legislating, you need balance. Why put something in about victims without putting something in about the whole point of this, which is to try to deal with offending?
The reason that I put my name to this amendment goes to the way that the Bill has been structured. I apologise again for not being in my place last Wednesday. I am extremely grateful to the noble Lord, Lord Paddick, for moving the amendment that I put in. This point raises exactly the same problem: we have a framework Bill. We do not have the draft regulations or, more importantly, the draft code of practice.
I entirely support this reform, but I do not think that many people realise what a critical role cautions play in the operation of the criminal justice system and, as the noble Lord, Lord Paddick, has said in relation to an earlier amendment—I did not rise then because I thought that I could make the point now—the incredibly important constitutional and rule-of-law issues, which I underline. These relate to the relationship between the legislature, and how much detail it should go into on this, and the Executive—because the police are part of the Executive branch of government—and to what extent they should be allowed to punish, which has generally been the province of the courts.
I welcome these reforms because this is an important part of the sentencing regime—and it is part of it, whatever epithet one wishes to apply. But it seems to me that a much better approach to the Bill would be if this was brought together as a whole, so that we could say, “This bit ought to go into the Bill. That is dealt with in regulations. This should be dealt with in the code of practice”. We should have it all before us, so that we can make a sensible decision. I do not understand why this has not been done, but I hope that, before the Bill comes back on Report, we see draft regulations and a draft code of practice. Otherwise, we will all be plagued on Report with this type of really serious concern.
There are many more issues—the noble Lord, Lord Paddick, has raised some of them this morning—such as the point that the Minister made very eloquently this morning about being able to alter levels of fines. Of course, in an age where we are perhaps going to see a lot of inflation, that is important, but why alter the number of hours? The gravity of the sentence with which a particular person should deal ought to be fixed.
Therefore, I hope that the Minister will look at, first, putting this amendment into the Bill and, much more seriously and importantly, at bringing the draft code of practice and the draft regulations, so that we could review the whole thing and do a proper job, as Parliament, consistent with the rule of law.
Lord Beith (LD)
My Lords, I am very glad to support the right reverend Prelate and the noble and learned Lord who has just spoken. The right reverend Prelate gave us a very careful analysis of the reasons that such an amendment would improve Clause 88 of the Bill, and the noble and learned Lord, the former Lord Chief Justice, reminded us of the constitutional context and the fact that the way that the Bill is structured, and the sheer complexity of it, are not really very satisfactory, especially when so much related material is not available to us at this stage. I hope that note will be taken of what he said on that latter point.
My feeling was that, as drafted, Clause 88 does not cover the ground properly, and that the inclusion of the requirement in this amendment—that consideration should be given to what provisions can be made for the “offender to desist” from crime in the future—would give the clause a necessary balance; a phrase that the noble and learned Lord used. The clause’s emphasis is very much on finding the victim’s views, which is entirely appropriate but limited in scope.
It is of course relevant to remember that, very often, one of the strongest views that victims have is that no one else should have to suffer what they have and that something should be done to make sure that the person who has done it does not do anything like that again and cause that sort of harm in the future. So these two things are not in opposition to each other: it is a complementary requirement for the clause to include a direct reference to measures to try to make it possible for the individual to desist from crime. There is a wide range of measures, but, in the context of this clause, the right reverend Prelate mentioned drugs and drug treatment. Of course, alcohol is also a very significant factor in many of the sorts of crimes that we are talking about.
This brings back memories of an incident that occurred during my time in the House of Commons, when some teenagers pulled down and stole the union flag from outside my office. They then made the mistake of exhibiting it around the pubs of the town, which led to the police catching them pretty quickly. The sergeant rang me up and said, “I do not really want to issue a formal caution because one of them wants to go into the Army, and that may prevent him doing so. I suggest that they club together, pay for its replacement and all write to you to apologise”. That was the kind of practical policing that, nowadays, is so surrounded by rules and requirements that it is often more difficult to do. But it was the right solution. I had some delightful letters, most of them insisting that their families had always voted for me. But it made a sufficient impact on the individuals—it was just a minor thing—making them less likely to commit crimes in the future. That is the emphasis that we need to add into this clause—an emphasis on trying to ensure that that individual commits no further crimes in the future.
Lord Framlingham (Con)
My Lords, I am not as well versed in these matters as many noble Lords are, but, in the interest of clarity, could the Minister explain what a “diversionary caution” is?
Lord Paddick (LD)
My Lords, we support this amendment, but, as I have already said, we have our doubts about the whole regime. For the benefit of noble Lords who missed the midnight debate on Monday, I bring you the edited highlights, which are relevant to this group.
I quoted from the House of Commons briefing paper 9165. On the Government’s proposals on diversionary and community cautions, it says:
“the available evidence suggests the system: … may result in a further decline in … OOCDs; … is likely to cost more … is unlikely to have a major impact on the reoffending rates of offenders; and … may improve victim satisfaction but is unlikely to have a major impact.”
I have to say that the high point for me on Monday night—or was it Tuesday morning?—was the Minister’s answer to my question about how effective conditional cautions, which are the existing system of cautions with conditions attached, were, compared with simple cautions that do not have conditions attached. The noble Lord announced with glee, if I may say that in a very respectful way, that:
“As the Committee will know from previous exchanges, I am quite a fan of data.”—[Official Report, 8/11/10; col. 1577.]
The Minister then looked at his phone and a message from his WhatsApp group—it is good to see members of the WhatsApp group in the Box today—saying that, in effect, there was no data. The Government not only keep no record of how many conditional versus simple cautions are administered, just the total number of all cautions, but have no record of what kind of conditions are attached to conditional cautions. On the basis of that data void, they plan to implement a system where all police cautions will need to have conditions attached.
I also quoted from a 2018 paper by Dr Peter Neyroud, former chief constable of Thames Valley Police and now a distinguished academic, published by the University of Cambridge and commissioned by the National Police Chiefs’ Council, entitled Out of Court Disposals Managed by the Police: A Review of the Evidence. On the police attaching conditions to cautions, he said:
“The result … was a significant degree of inconsistency and a substantial number of inappropriate and un-evidenced conditions.”
The right reverend Prelate the Bishop of Durham gave us an example of, presumably, a youth who was banned from public transport, which meant he could not get to school. I continue to quote from Dr Peter Neyroud:
“Whilst the provision of further training and more guidance improved the situation somewhat, the cost of such an investment within a more general implementation of OOCD’s with conditions”—
exactly what the Government are proposing—
“would be prohibitive and, in any case, did not completely resolve the problems.”
Never mind—the noble and learned Lord, Lord Thomas of Cwmgiedd, came up with a better idea: the inspectorates of the constabulary and of the CPS could ensure consistency, so that somebody in a similar situation, committing a similar offence, would have the same conditions attached, no matter where they were in the country. I am afraid not, said the Minister:
“Those two inspectorates are not regulators; they do not have power to enforce compliance.”—[Official Report, 8/11/21; col. 1576.]
Inconsistent, inappropriate and unevidenced conditions will be attached to cautions all over the country, bringing no benefit to offenders, little benefit to victims and increased costs to the criminal justice system. That is what this part of the Bill does.
We support this amendment, which should also apply to diversionary cautions, but the omens are not good that the police will know what they are doing when it comes to applying conditions to support the offender to desist from offending. There is serious doubt that, even when they do, the conditions will have any effect on reducing reoffending.
Lord Ponsonby of Shulbrede (Lab)
My Lords, this has been a wide-ranging debate. When the right reverend Prelate introduced it, he made a general plea in favour of cautions and on why his amendment was appropriate. He spoke of the benefits of cautions and what they need to be effective, and of the revolving door of crisis and crime and of a holistic approach. He particularly gave the example of women offenders, for whom a holistic approach is appropriate to reduce reoffending. Then he went on to give examples of why quite a lot of cautions fail—by giving too many conditions. My experience, through following both cautions and sentences through court, is that the more conditions you put in place, even if they are in place for the best of reasons, the more likely you are to have a breach and to re-enter that cycle, coming back to court or to the police when conditions are breached.
My central point is that out-of-court disposals are a difficult area. The Government and previous Governments have a lot of experience in trying to come up with an appropriate regime for out-of-court disposals. As we have heard on the Bill—I agree with pretty much all the points made by the noble Lord, Lord Paddick—we have another cautions regime, which we hope will work in some way. I particularly noted the point made by the noble and learned Lord, Lord Thomas of Cwmgiedd, about the need to see draft regulations or a draft code of practice to ensure consistency across the country.
Lord Wolfson of Tredegar (Con)
My Lords, I hope it is in order to pick up one point that was put to me at the end of the last group and say a word on it. I hope the Committee will forgive me. It goes to all groups, in some ways, because it is about how legislation is put online. Legislation.gov.uk has a facility to look at the original texts and unscramble the later amendments, so to speak. A point that occurred as the noble Baroness, Lady Hamwee, was speaking was whether one could put in hyperlinks to take you through different pieces of legislation. I am happy to look into that, but I now turn to this amendment.
My noble friend Lord Framlingham asked what a diversionary caution is. To try to sum up a large part of the Bill in about three sentences, I say that there is going to be a lower-tier disposal called a community caution and an upper-tier disposal called a diversionary caution. Conditions must be attached to both, aimed at one of three objectives—rehabilitation, reparation or punishment. Restrictive conditions can be set, where they contribute to reparation or rehabilitation. In that regard, there is a similarity to the existing conditional caution regime. I hope that answers the question.
I now turn to the substance of the amendment in the name of the right reverend Prelate the Bishop of Gloucester—moved by the right reverend Prelate the Bishop of Durham—alongside the noble and learned Lord, Lord Thomas of Cwmgiedd, and the noble Lord, Lord Beith. It goes to the primary objective of the new two-tier statutory framework, which I have just explained, to provide, as a requirement of the community caution, meaningful court conditions to help an offender stop offending.
I am grateful for the broad support, as a matter of principle, of the right reverend Prelate for the aims of the Bill on out-of-court disposals. I respectfully agree with the point made by the noble and learned Lord on the importance of the caution regime in the criminal justice system. I also agree with the point made by the noble Lord, Lord Ponsonby, that cautions must be carefully considered to avoid the syndrome of repeated interventions.
While the amendment is obviously well intentioned, the Bill already makes provision for the purpose that underpins it in Clause 80 on diversionary cautions and Clause 89 on community cautions. The Bill asks the relevant person to focus on the position of the offender. Of course we all agree that one has to look at the position of the victim, but I agree with the noble Lord, Lord Beith, that one must also look at the offender. The Bill already does that.
While I agree with the broad thrust of the purpose of the amendment, I suggest that it is unnecessary. That is because, aside from the punitive option of a financial penalty, the conditions of both the diversionary and the community caution must be aimed at rehabilitation or reparation, thereby addressing the underlying causes of the offending. Importantly, the cautions enable referrals to support services where relevant as conditions of the disposal. Referrals at this pretty early stage of the criminal justice system could include referrals to relevant intervention services such as substance misuse services, mental health treatment providers or gambling addiction, or restorative justice referrals. All those help to address the underlying causes of offending behaviour and so help to reduce reoffending or the escalation of offending behaviour.
As I have said, a code of practice will accompany the legislation. It will be drawn up in collaboration with stakeholders and subject to a formal public consultation and to an affirmative statutory instrument. I respectfully agree with the noble and learned Lord, Lord Thomas, as he would no doubt expect me to, as to the fundamental importance of the rule of law in this and, indeed, other areas. I wonder whether actually the police are best viewed as being seen as part of the Executive; we could probably have an interesting debate on that. The answer might be that it depends on the purpose for which you are using the principle of the rule of law as to what exactly it would encompass.
To give the noble and learned Lord a bit more information, the way that the code of practice will be put together is that there will be an informal stakeholder engagement exercise with police forces, the National Police Chiefs Council, police and crime commissioners, the CPS and relevant third-sector organisations, which will help with drafting. We will then have a formal public consultation, which will take place next year. Importantly, the power to issue the code and the regulations is contained in the clauses of the Bill, so we will not have the power to do that until the Bill receives Royal Assent and is commenced.
I want to pick up the underlying points made by the noble Lord, Lord Paddick. I hope he will not take it amiss if I do not respond to those. There is a clear conceptual gulf between us, if I may put it that way, as to the purpose of the regime and whether it is soundly based. I set out the Government’s position on that earlier. I am not sure it is helpful if I just repeat those words each time because there is that gulf between us and I am not sure it is going to be bridged. I hope the noble Lord will therefore not take it amiss if I do not respond in detail.
Lord Paddick (LD)
It is not a conceptual gulf. It is a question of where the evidence is that cautions with conditions attached are more beneficial than cautions without conditions attached. I can answer that question for the Minister: there is no evidence, because the Government do not collect any. That is coupled with the fact that this House will be asked—this Committee is debating it now—to sign a blank cheque for all this when the detail has not been worked out. There will be public consultation and consultation with stakeholders, but we have no idea what this is going to look like in the end. That is no way for this House to proceed with this legislation.
Lord Wolfson of Tredegar (Con)
Well, we did have that exchange. I went through the way that it has been piloted in various police forces, and we had an interesting exchange. I am happy to look again at the record and see whether there is anything else that I can add, but I am not sure that will necessarily persuade the noble Lord in any event. Again, I am not sure it is helpful to go through those fundamental points each and every time we come to one of these amendments.
I hope I have responded substantively—and, I hope, substantially—to the amendments tabled by the right reverend Prelate. For the reasons that I have set out, I ask him to withdraw them.
Lord Thomas of Cwmgiedd (CB)
Before the noble Lord sits down, and to go back to the fundamental point about the code of practice and the regulations, is there not even a framework or some outline that we can look at so we could work out what is necessary in primary legislation and what is necessary in a code of practice? I must say that it is wholly contrary to the rule of law for a democratically elected body—I include the whole of Parliament in that—to pass legislation that has not been properly gone into.
Here we are dealing with the liberty of the subject. I think that most people do not appreciate the seriousness of a caution. When I was Lord Chief Justice, we had a number of cases where people found out years later the problem with having accepted a caution. In one case, for example, a person who was young and had no convictions of any kind could not go to America. There are other cases where a caution for a minor offence makes you into a “person of bad character”. These are matters that go to the liberty of the subject and they are of fundamental importance.
It is quite contrary to the rule of law to ask us to pass legislation for which there is no urgency. As the noble Lord, Lord Ponsonby said, this is a long-standing problem. Could the Minister not reconsider? I entirely sympathise with the civil servants at the MoJ because they are hard-working. Of course, they have to work hard because of all the Government’s cuts to the Ministry of Justice; they are not responsible for that and nor is the Minister, who I am sure would like as much money as possible. Could we not, in this vital area of the liberty of the subject, do some proper work on it rather than wasting a lot of time debating principles? It would be so much more efficient, on an issue that is not urgent, if we could have a draft, a framework or something to look at.
Lord Wolfson of Tredegar (Con)
My Lords, of course I understand the point made by the noble and learned Lord. We could have an interesting debate about whether that is properly encompassed in the phrase “rule of law”, but I take the underlying point that he makes. I have sought to set out where the code of practice would be relevant, where the Act ends and the code of practice begins. I am happy to have a further discussion with him on that point.
I agree that cautions are an important part of the criminal justice system. They can have consequences, as the noble and learned Lord set out, and not being able to go to America is just one of them. That is why in a later part of the Bill, which we will come to, the question of when a caution is spent is so important. We have sought to build that into the Bill, which I hope meets, at least in part, the point that he makes. I am happy to discuss this point with him further.
The Lord Bishop of Durham
I thank the Minister for his substantive and indeed substantial reply. The right reverend Prelate the Bishop of Gloucester will certainly read Hansard carefully and decide whether this is a subject that we will come back to. My observation would be that part of the purpose of the clause was to recognise that the offender needs to be involved in considering whether the conditions will help them not to reoffend, and I am not sure that is covered in the rest of the Bill. That would be the reason for coming back.
I note the involvement of the third sector in the production of a code of practice. I agree that I wish that we at least had a draft. I hope that the Centre for Justice Innovation, along with Revolving Doors, would be two of the organisations involved in that process, because the work they do is really good. At this stage, though, I beg leave to withdraw the amendment.
Police, Crime, Sentencing and Courts Bill
Wednesday 10th November 2021
(2 years, 6 months ago)
Lords ChamberRead Full debate Police, Crime, Sentencing and Courts Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 40-VII(b) Amendments for Committee (supplementary to the Seventh Marshalled List) - (10 Nov 2021)
Lord Paddick
Member’s explanatory statement
This is consequential on Lord Paddick’s objection to Clause 97 standing part of the Bill.
Lord Paddick (LD)
My Lords, in moving Amendment 187 in my name I will speak to the other amendments in this group. I ask the Committee to forgive the repetition.
I understand the Government’s desire to simplify out-of-court disposals and take the pressure off courts but, as I have said in several previous groups, research has shown that moving to the system suggested by the Bill, as piloted by some police forces, is likely to cost more, do nothing to reduce offending and have little or no impact on victim satisfaction.
I have also suggested that the complexity of having to impose conditions in every case when a police caution is given, whether a diversionary or community caution, is likely to have the unintended consequences of increasing the number of cases dealt with by no further action being taken and the number of cases sent to court—anything to avoid the complicated process of setting, arranging and monitoring compliance with the conditions that must be set whenever anyone is given a police caution. Research already shows a reduction in the number of out-of-court disposals in recent years, and these changes are likely to result in further reductions.
Clause 97 abolishes all other forms of out-of-court disposal. I will give some illustrations of what this means in practice. A young lawyer or medic who, completely out of character, has too much to drink, gets drunk and ends up making a nuisance of himself is arrested and, once sober, is given a simple caution. The salutary effect on such an individual’s future behaviour is dramatic, the impact on his career prospects negligible and the amount of time taken by the police to deal with the case minimal. If the impact of his being stopped and spoken to by a police officer has an immediate sobering effect, he might even be given a fixed penalty notice for disorder and sent on his way. Neither of these out-of-court disposals would be available under the Bill as drafted.
If someone drops litter, is seen by a police officer and refuses to put it in the bin, at the moment, that police officer can issue a fixed penalty notice for disorder. Under the Bill, the only course for the officer would be either not to take any action at all, undermining both the law and the authority of the police, or to arrest the person and take them to a police station so that they can be cautioned with conditions attached. I am at a bit of a loss as to what conditions might be attached to a caution for littering, but perhaps the Minister can enlighten the Committee.
Altogether, there are currently 27 minor offences that can be dealt with by a police officer issuing a fixed penalty notice on the spot, from cycling in a park where cycling is prohibited to possession of khat or cannabis. In all these cases, the only way to proceed, if this Bill passes unamended, would be to make an arrest, so that a community or diversionary caution with conditions attached could be administered.
This is a recipe for an increase in anti-social behaviour that goes unchallenged, because police officers faced with the bureaucracy of arrest and a community or diversionary caution with conditions attached will look the other way. What is unclear—the Committee needs to know this, and if the Minister cannot answer from the Dispatch Box, I ask him to write to me—is what happens to cannabis and khat warnings where people who have cannabis or khat found on them are seized by a police officer and a warning is given to them on the street. I would argue that that is a type of out-of-court disposal. Is this also to be outlawed by the Bill? If it is, it will have serious consequences for police resources.
What is proposed by this clause, with community and diversionary cautions being the only out-of-court disposals allowed, will result in fewer people having any action taken against them for anti-social behaviour and significant police resources being used to deal with minor offences. That is why Clause 97, which abolishes other forms of out-of-court disposals, such as fixed penalties for disorder, should not stand part of the Bill and the simple police caution should be retained. I beg to move.
Lord Ponsonby of Shulbrede (Lab)
My Lords, the amendment from the noble Lord, Lord Paddick, is to retain simple cautions. The examples he gave illustrate the point I made earlier: that this is a very complex area, with a lot of history of government trying to manage out-of-court disposals in different ways. He gave the example of 27 minor offences which can be dealt with by fixed penalty notices and asked what happens with cannabis and khat warnings. I would be interested to hear the answer.
The noble Lord asked—I think rhetorically—what else a police officer can do other than give a conditional caution. The answer is that they can do nothing. They can give the person they are dealing with a talking to; in my experience, police officers are perfectly capable of doing that. Nevertheless, as I said in an earlier group, this is a very complex area. The Government have tried a number of different out-of-court disposal regimes in recent years; I am not aware that any approach was particularly better than previous ones. Indeed, the noble Lord gave examples of the not obvious success of the pilot schemes for this regime.
Nevertheless, I think that out-of-court disposals are appropriate. They need to be handled in a proportionate way and with the right amount of training for the police officers dealing with them. Clearly, an appropriate level of intervention would, one would hope, be for the benefit of the offenders, given that it is very likely that a large proportion of the offenders will be drug and alcohol users. Having said that, I will be interested to hear why the Minister thinks a simple caution is not appropriate to retain on the statute book.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
My Lords, it is fair to say that this group of amendments goes to the heart of why reform to out of court disposals was needed and the aims of the new cautions framework. The background is that the public consultation on out of court disposals showed that more than half of respondents did not believe that they deterred offending. As such, it was felt that there should be a framework with more meaningful and proportionate consequences and a move away from “warnings” and “simple cautions” to a system with, on the one hand, repercussions for the offender but, on the other, an opportunity to reduce reoffending and address often complex needs.
The noble Lord, Lord Paddick, has indicated his intention to oppose Clause 97 standing part of the Bill. Removing that clause would allow existing cautions to remain in use. That would undermine the entire reform and change that we are trying to bring about and would continue the current inconsistent approach that we have across police forces. We do not want to stick with the status quo; we want to improve it.
As I understand it, Amendments 187 and 188 are consequential to the removal of Clause 97. Amendment 189 seeks to retain the option to use the simple caution as well as the new diversionary and community cautions. It also means that, if any existing cautions were retained, the giving of these disposals to offenders would then be taken into account in any repeat offending. Clause 96 deals with the provisions of restrictions on multiple use of cautions, so I will not expand further on that point at this stage.
Following the joint government and police review of out of court disposals between 2013 and 2014, it was established that the existing disposals framework needed reform. The National Police Chiefs’ Council developed its own two-tier out of court disposal strategy in 2017, which removed the need for the simple caution, penalty notice for disorder and cannabis and khat warnings. I will come back to the specific point the noble Lord, Lord Paddick, asked about. Since then, one-third of forces have moved to the two-tier framework, using conditional cautions along with the non-statutory community resolution. We believe that attaching conditions to the caution means that the recipient must engage in some way with the outcome as well as accepting responsibility. That is a more proactive and robust approach than the simple caution, which requires no further engagement by the offender and is often nothing more than a warning.
Removal of the simple caution does not mean that there is no provision for offenders where conditions requiring higher levels of engagement are considered unsuitable. As I said in response to an earlier group, we want to ensure a wide range of conditions is available, including those that require a low level of engagement on the part of the offender; indeed, it goes down at the bottom end to an expectation not to reoffend, so that such conditions can be selected where appropriate. The critical point is that there should be flexibility in the conditions that may be set in terms of the level of engagement that is required from the offender, so that the authorised person has discretion in this regard when choosing the conditions.
On the specific point of cannabis and khat warnings, which the noble Lord, Lord Ponsonby, also echoed, the community resolution already replaces cannabis and khat warnings. This is NPCC policy. The community resolution will be retained by the police as the only non-statutory option. Police are well practised in using the community resolution for this type of drug possession, and it does not require a formal admission of guilt either.
The final point I make is that the noble Lord, Lord Paddick, implied—I think; I may have got this wrong—that removing the simple caution meant that a low-level offence could be dealt with only by means of a diversionary or community caution. Fixed penalty notices do not fall under the reform to out of court disposals and will still be available for use where relevant. The example of littering given by the noble Lord may be dealt with by those means or indeed by community resolution, which is an alternative and non-statutory disposal that police forces will retain. I hope that answers his question on the khat point and also his point on littering.
Baroness Chakrabarti (Lab)
Does the Minister not agree that good law is about a combination of rules and discretion? I quite understand that he is here to advocate his new scheme and approach, which the Government have considered and think is the way forward, but why not have a little residual discretion for some of the examples that the noble Lord, Lord Paddick, gave? The Minister said that a simple caution is really a bare warning but, occasionally, is not a bare warning better than nothing at all in terms of a police officer, in reality—sometimes underresourced, in difficult times—doing his job in the community?
Why do we have to be so rigid that we make a simple caution—which of course is not ideal and does not have the diversions and other things suggested— impossible to give? In circumstance where there is a student who is annoyingly drunk but has not really harmed anybody—as in the example given—why not allow a bare warning rather than no warning and no action at all?
Lord Wolfson of Tredegar (Con)
Without turning this afternoon into a jurisprudential seminar, I certainly agree with the thrust of the point made by the noble Baroness that good law is often a combination of rules and discretion. At the level of generality, I would agree. However, it is not right to say that this is rigid; the conditions that can be applied are extremely flexible.
There are really two parts to the answer. First, within the new cautions regime, there is a great deal of flexibility as to the conditions that can be set out. If the noble Baroness looks at Clause 80 for diversionary cautions—which is mirrored in Clause 89 for community cautions—subsection (4) sets out the restrictive conditions and goes down to the one I mentioned in my response to the noble Lord, Lord Paddick, which is
“not to engage in specified conduct”.
That is, essentially, the lowest form of engagement when no other suitable conditions exist. That really creates a condition where the offender is expected not to commit any further offences. That is a very low level of engagement, and when that is suitable will be a matter for the code of practice.
The second part of the answer is to repeat the point I made earlier that other forms of out of court disposal are still available—I mentioned fixed penalty notices and community resolution—so, with respect, I do not agree that we are putting in place a rigid regime. The conditions are flexible and there are some disposals that are outside the cautions structure, even now.
I do not think I did so before, but I invite the noble Lord to withdraw his amendment.
Lord Paddick (LD)
Can the Minister clarify something? I think he said something along the lines that the lowest level of condition is that the offender should not engage in similar activity again. So, if somebody is arrested and cautioned and the police say to them “Don’t do it again”, is that a condition attached to a caution?
Lord Wolfson of Tredegar (Con)
As I said a moment ago, this relates to Clause 80(4) and Clause 89(4), if the noble Lord looks at the last condition in each of those subsections. The code of practice, as I said in response to the noble Baroness, Lady Chakrabarti, will make further provision for the circumstances in which that would be appropriate. Importantly, and I think differently from the simple caution, the police would still need to monitor conduct to ensure that someone had not reoffended, but that would be less onerous. This is a good example of where the new structure that we are putting in place preserves the best of the old regime but still has it on a more structured basis, focused on preventing reoffending as well as on the rehabilitation of the offender.
Baroness Chakrabarti (Lab)
Forgive me, but I sense an element of unworldliness about this. If it is appropriate in a given case for there to be just words spoken and a warning, and it would be proportionate, do we really need the constable in question to go through the process of the recording and the monitoring?
I say no more on that but, if the Committee will indulge me, I would like to mention that Mr Gareth Dowling, the doorkeeper, is retiring today after some years of service and I hope that the Committee, if not the whole House, will join me in congratulating him and wishing him all the best for the future.
Lord Wolfson of Tredegar (Con)
May I first deal with the caution points? I do not want to run those two topics together. On cautions, there is a fundamental point here. The simple caution is really what it says on the tin: a simple caution. In circumstances where the officer decides that it is appropriate to give a community caution with the lowest level—the one that we are talking about now—importantly, to get there, the officer or the authorised person still has to go through the process of speaking to the victim, thinking about what other options are available and looking at what other conditions are available. That process is valuable in all cases. That is one of the strengths of the new regime. I accept that that requires more consideration, but you end up with a system which is more robust and suitable and which results in a more proportionate response. Quite separately, I join the noble Baroness in what she said about Mr Dowling.
Lord Paddick (LD)
I thank noble Lords who have participated in this short debate and am grateful for the qualified support from the noble Lord, Lord Ponsonby of Shulbrede.
If I heard the Minister right, he referred to public consultation and the proportion of respondents who said that they did not believe that out-of-court disposals reduced offending. Is he really saying that the Government are now legislating on the basis of public opinion rather than on the basis of evidence? There is no evidence that the two-tier system that has been piloted by a third of forces is any more effective, as I have quoted at length and repeatedly—which the Minister ignores. There is no evidence that this will be a better system for reducing offending. With the greatest of respect, just because the Government assert that it will be does not mean that it is.
I am struggling here. If we take the example of somebody who is arrested for being drunk and disorderly and who the police want to caution, they now have to attach conditions. Presumably, the lowest level of condition will be, “You should desist from behaving like this in the future.” Then the Minister says, “But of course the police will have to put measures in place to monitor the accused’s future behaviour.” I am completely at a loss as to what sort of monitoring the Minister has in mind in such circumstances. The more the Committee examines these proposals—perhaps I should say the lack of them, bearing in mind that we will not see whatever is contained in the code of practice until well beyond the Bill receiving Royal Assent—the more the whole thing begins to unravel.
Clearly, I will apologise to the Minister and to the Committee if I have misunderstood the legislation in terms of withdrawing the police’s ability to give fixed penalty notices for disorder. I hope that the Minister will do the same if it turns out that I am right and he is wrong. However, at this stage, I beg leave to withdraw the amendment.
Lord Paddick
“(2) In paragraph 1(1)—(a) in the opening words, for “—” substitute “at the time the caution is given.”, and(b) omit paragraphs (a) and (b).””Member’s explanatory statement
This amendment would remove the spending period for cautions.
Lord Paddick (LD)
Forgive me for the delay, my Lords—so many amendments, so little time, as it were.
I am grateful to Transform Justice for its briefing on this issue and for its assistance in drafting this amendment. Currently, simple cautions with no conditions attached are considered “spent” within the meaning of the Rehabilitation of Offenders Act 1974 as soon as they have been given. This means that they do not have to be disclosed to potential employers. The Government propose to abolish simple cautions, so those who would previously have received a simple caution, which do not have to be disclosed, could potentially receive a diversionary caution, which, like conditional cautions currently, have to be disclosed for three months after the caution is given. Given the Government’s commitment to reform rehabilitation periods elsewhere in the Bill, we suggest that the rehabilitation period for diversionary cautions should be removed. In Part 11, Clause 164 already sets out various changes to the rehabilitation periods for different sentences. Removing the diversionary caution rehabilitation period should be added to the list of those changes.
The Government argue that a three-month spending period is required for a diversionary caution to support protection of the public. There is strong evidence that employment is one of the most, if not the most, important factors in enabling people to cease offending behaviour and to move on to crime-free lives as productive members of society. A three-month rehabilitation period is short enough to have little impact on public protection, but its existence will require people in employment or seeking employment to declare the caution and risk losing their job or be refused employment. It will also act as a barrier to those seeking education and volunteering opportunities. Research has found that employers discriminate against people with criminal records and that most do not differentiate between a caution and a conviction. Introducing a spending period for the diversionary caution will therefore hamper people’s efforts to gain employment while doing little for public protection. Diversionary cautions should follow the spending regime for the existing simple caution and end at the point at which the caution is given. I beg to move Amendment 189ZA.
Lord Carlile of Berriew (CB)
My Lords, I support the noble Lord’s amendment. If I may, I will elasticate the rules of order slightly by referring to some other issues relating to the spending of cautions and of convictions.
In 2013 and 2014, an ad hoc committee of Members of this House and of the other place reported, sponsored by the National Children’s Bureau and the Michael Sieff Foundation, on the youth courts. I was part of that group, as was the noble Lord, Lord Ponsonby, who was very valuable member, and as was a certain Back-Bencher called Robert Buckland, who later became Secretary of State for Justice and Lord Chancellor. To be fair to him, despite having gone to the other side of good behaviour by becoming a member of the Cabinet, he always remained personally committed to what we had found. Our second recommendation was this:
“Children who have committed non-serious and non-violent offences, who have stopped offending, should have their criminal record expunged when they turn 18.”
I believe that that is a very important principle for which there is supporting evidence around the world. I am disappointed that the Bill is a touch pusillanimous in not picking up that recommendation—and I am grateful to say to the Minister that a number of our recommendations have been picked up.
If the noble Lord were to speak to Charlie Taylor, who held a very important position in the Ministry of Justice at that time, as chairman of the Youth Justice Board, and who is of course now Her Majesty’s Chief Inspector of Prisons, he would find that he is also very supportive of that recommendation, with his huge experience of dealing with young people, first as a teacher and then in the criminal justice sphere.
Baroness Butler-Sloss (CB)
My Lords, I am very interested in what the noble Lord, Lord Carlile, has just said. Although, again, I am not strictly following the amendment of the noble Lord, Lord Paddick, I very strongly support it and ask the Government to think again.
I happen to have had some limited personal experience of young people who had offended between the ages of 12 and 18 and who were acting for youth groups, mentoring other young people to prevent them from offending, because they had learned. I have met half a dozen of them. All were black and doing valuable work in their 20s, but were having the most appalling difficulty in finding a decent job that would be commensurate with their undoubted abilities. I will tell you the sort of case that happens. A child of 14 won a prize at school and took it home to show his family. His elder brother threw it away and said, “Don’t be so stupid. Why don’t you behave like us? That’s an utter waste of time.” He then went on to offend, and, aged 19 or 20, he told me that he had learned that this did not pay and that he had to lead a proper life. He was doing the most wonderful job, teaching other young black people, under the age of 18, how not to offend. It is crucial that what the noble Lord, Lord Carlile, has just said is picked up by the Government and taken forward.
Baroness Chakrabarti (Lab)
My Lords, I have to agree with the three Members of the Committee who have just spoken. I will deal with the two proposals in turn, first that relating to children and their convictions being spent when they turn 18. That is absolutely compelling as an argument. I have just one thing to add: there is a huge differential in the experiences of different children in our communities. For example, there are looked-after children—the state not being the best parent—who will be prosecuted and will attract convictions, before their majority, for bad behaviour that simply does not get prosecuted when a child behaves in that way in the family home. This could be common assault or criminal damage. It is common practice for looked-after children to be in the criminal justice system in circumstances where their peers elsewhere would not. To not to get a second chance on turning 18 is a terrible indictment on our society.
I encourage the Minister to take the expert advice from the noble and learned Baroness, Lady Butler-Sloss, and the noble Lord, Lord Carlile, with all his experience of penal reform, and to do something about this. Things are compounded still by there being no right to be forgotten when it comes to the internet. The law has to push back even harder to try to rehabilitate people, particularly children, in the light of so much of our lives and our histories being on the internet.
I shall respond briefly to the noble Lord, Lord Paddick. A non-court disposal administered initially by a police officer should be immediately spent, as a matter of good practice but also as a matter of principle. If someone has given up the opportunity to have the matter dealt with in court, that should happen in many cases. However, there should be a benefit, and that should be that the disposal is immediately spent. It is an incentive to engage with it, but it is also right in principle. The Rehabilitation of Offenders Act 1974 was a wonderful thing, but we are a long way from its ethos and principles. It has been undermined by an exemption order that has grown, in my experience, every year and it has been undermined by the growth and rise of the internet. This Committee really needs to listen to the noble Lords, Lord Carlile and Lord Paddick, in their proposals, and push back very hard in the opposite direction.
Viscount Hailsham (Con)
My Lords, I will make a very brief point in support of what has just been said by the noble Baroness and the noble and learned Baroness. There are a number of professions where you have to establish that you are a fit and proper person. I act as a legal assessor to the Nursing and Midwifery Council, and I am aware of the registration process: you have to assert that you are a fit and proper person. I can see that a caution of the kind that we have been discussing might stand in the way of a registration being effective, and that would be a great tragedy.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I thank the noble Lord, Lord Paddick, for tabling his amendment. As we have seen through this debate, it has inspired many contributions on a wide range of points about whether and when a caution should be spent: after three months or immediately when the caution is given.
I remember sitting on the Michael Sieff Foundation report, and our discussions about whether all youths should effectively have their criminal records expunged unless there were particularly serious matters in there. I also remember debating that point very well, because I was sceptical about it at the time. The argument that I found most convincing was from the lady who was an academic helping us. It was based on the inadequacy of the record-keeping system for having any sort of differentiated approach for expunging a criminal record. It is really much better and more reliable to expunge the lot unless there are extreme reasons not to. That way gave young people the best chance of getting a good job and starting their career.
All noble Lords who spoke in this debate made interesting points. My noble friend Lady Chakrabarti made one particular point about the record-keeping of the internet. This is a huge issue; the internet does not forget. Of course, employers make their own checks through the internet, whether or not they have been given permission to. In my experience, young people are conscious of this and spend a certain amount of time editing their internet history to make sure they get any job they are offered. That is a flippant point. Nevertheless, this was an interesting debate and I would be interested to hear the Minister’s reason for why a caution should not be spent at the time it is given, rather than after three months or whatever period it was. I too had the briefing from Transform Justice, which made a good case, so I look forward to the Minister’s response.
Lord Wolfson of Tredegar (Con)
My Lords, first, I will pick up one point from the last group to make it very clear: if I have made any errors, I am happy to correct them. As far as I am aware, there is no doctrine of ministerial infallibility; I say that with all due respect to my colleagues. Because the Cabinet table is still terra incognita to me, I hope I am on the right side of good behaviour even speaking from this seat.
I reassure the noble Lord, Lord Paddick, that we are not introducing any changes to the current regime for rehabilitating offenders who receive a caution. The proposed diversionary caution replicates the current system for the conditional caution, with the same spending period. I also point out that the lower-tier community caution being introduced has no spending period, and therefore mirrors the current adult simple caution. In effect, we are maintaining the position that pertains with a spending period for the lower-tier and higher-tier cautions. We think that is a sensible position to take.
I agree with the noble Baroness, Lady Chakrabarti, that the Rehabilitation of Offenders Act was, to use her phrase, a wonderful thing. It is an important piece of legislation and the principle underpinning it is important. It seeks to strike a balance between protecting the public and rehabilitating offenders, and it does that by requiring that in most cases a criminal record must be disclosed for a period of time but—this is the important “but”—after that period, the offender no longer needs to disclose it for most types of employment. I hear the point made by my noble friend Lord Hailsham that cautions sometimes have to be disclosed, but it depends for what purposes and when. There is an important spending period.
The real question at the heart of this debate is whether diversionary and community cautions should have the same spending periods. It is at that point that I respectfully diverge from the approach of the noble Lord, Lord Paddick, because, if a diversionary caution were to be treated as spent at the time a caution is given, it would suggest that there is nothing in favour of public protection that requires the disclosure of that caution, and the offending it relates to, for even a limited time—up to three months—after it has been given. That position is simply not tenable, once we recall what the diversionary caution is all about. Let us remember that the diversionary caution requires the authorised person to be satisfied that there is sufficient evidence of offending to charge the offender, and the offender themselves must both admit to that offending and consent to the giving of the caution. Public protection therefore continues to be engaged after it is given as, unlike a community caution, criminal proceedings may be instituted if the offender does not comply with the conditions.
Over and above that, again unlike the community caution, the diversionary caution can be given for indictable offences, admittedly in exceptional circumstances and with permission of the Director of Public Prosecutions. That again highlights the importance of placing a time-limited spending period on cautions that relate to more serious offences. Removing, therefore, the spending period for diversionary cautions blurs the important distinction between the two sorts of caution.
Lord Paddick (LD)
My Lords, I thank the noble Lord, Lord Carlile of Berriew, for talking beyond the amendment, in that the Bill’s provisions apply to adults rather than children. He made extremely important points, supported by noble Lords around the House. We support what he was talking about.
The Minister rightly said that a community caution has no spending period, whereas a diversionary caution has a three-month period. He said that that was no change from the existing position. However, there is nothing to stop the police giving someone a diversionary caution in circumstances where, in the past, a simple caution with no spending period would have been given. We have heard many cases, often questionably appropriate, of serious offences being dealt with by the police by means of a simple caution with no spending period attached to it.
The Minister tried to bolster his argument by saying, “The accused must admit the offence and agree to the caution.” That is exactly the same with a simple caution: the police cannot give someone a simple caution unless they admit the offence and agree to the caution.
There is a real danger here that people who currently get a simple caution, which there is no need for them to disclose to, for example, an employer, will have to disclose it in future, with all the negative consequences that that might entail. At this stage, however, I beg leave to withdraw the amendment.
Baroness Massey of Darwen
“(i) by a person aged 16 or 17; or(ii) by a person aged 18 or over before the day on which section 101 of the Police, Crime, Sentencing and Courts Act 2021 came into force,”Member’s explanatory statement
This amendment ensures that no children are affected by the changes to mandatory minimum sentences in Clause 101.
Baroness Massey of Darwen (Lab)
My Lords, I shall speak to amendments of various kinds in this group, all related to youth justice. I am grateful to the secretariat of the Joint Committee on Human Rights, of which my noble friend Lord Dubs and I are members. We have discussed the Bill at great length, interviewed people with expertise on each clause and, as noble Lords are aware, prepared relevant reports. It has been a heavy load on our secretariat and I am grateful for their dedicated work. I am also grateful to the Youth Justice Board, the Children’s Rights Alliance, the Youth Justice Legal Centre and other children’s organisations for their contributions.
Amendments 191 to 194 in Clause 101 would ensure that no children were affected by the changes to mandatory minimum sentences in Clause 101, based on paragraphs 17 to 27 of the JCHR report. Clause 101 will allow a court to diverge from imposing a minimum custodial sentence for certain crimes, including crimes involving weapons committed by those aged 16 or 17, only where there were exceptional circumstances. This increase in the limitation on judicial discretion conflicts with the need for sentencing decisions to be individualised and for the welfare of the child to be a primary consideration. Custody for children, as has been stated in many cases, must remain a measure of last resort. Witnesses told the JCHR that limiting judicial discretion was inherently incompatible with the best-interests principle, the legal duty that the best interests of the child must be a primary consideration in any action by a state body, including a court. These principles reflect international standards and are a fundamental protection for the rights of the child.
This set of amendments would amend Clause 101 so that no children would be affected by its provisions. We have heard about the difficult circumstances of many children who interact with the criminal justice system, many of whom have complex needs that should be appropriately considered in sentences. The Bill limits the ability for such consideration by limiting judicial discretion at a time when there is a growing awareness of child criminal exploitation.
The amendment to leave out Clause 103 is based on paragraphs 76 to 82 in parts 7 and 8 of the JCHR report. Clause 103 would make it possible for judges to impose whole-life orders on offenders aged 18 to 20 in exceptionally serious circumstances. Sentences giving offenders no possibility of rehabilitation, and no prospect of release if that rehabilitation was achieved, would breach Article 3 of the European Convention on Human Rights. While it has concluded that whole-life orders for offenders aged 21 and over do not violate Article 3 of the ECHR, the JCHR is concerned about the implication of extending these sentences to offenders aged 18 to 20.
The courts and the Justice Committee have accepted that turning 18 is not a cliff edge. Young offenders aged between 18 and 20 are still maturing and have significant potential to change. Extending to this age group a sentence that makes the prospect of these offenders ever being released unlikely comes perilously close to the Article 3 threshold. It also runs counter to positive recent recognition of the need to treat young adult offenders as a category distinct from old offenders. This amendment would ensure that the minimum age for imposing a whole-life sentence or order does not drop below 21.
Amendments 198 to 201 to Clause 104, which would remove any tariff starting points above the current 12 years, are based on paragraphs 28 to 39 of the JCHR report. Clause 104 introduces a range of starting points for tariffs for children given DHMP sentences. When setting the tariff period, the court must first allocate a starting point and then consider any aggravating or mitigating factors—plus the effect of the defendant’s previous convictions, any guilty plea and whether the offence was committed on bail.
Currently, the starting point for the courts when setting the tariff is 12 years for children of all ages. The Bill proposes a change to this starting point, depending on the age of the child. The changes would more closely align the starting points for older children with the equivalent offences for adults, while reducing them for a small number of younger children.
Life sentences for children have been criticised by the Committee on the Rights of the Child, whose interpretation of the UNCRC, while not legally binding, is authoritative. Increasing the length of time that children must spend in custody before they can be considered for release can be seen only as making DHMP even less aligned to the rights in the UNCRC, which the UK ratified in 1992. Scotland and Wales are looking at how the convention might be incorporated into law. I am not sure where they are with this—perhaps the Minister will know more.
The courts already have discretion to consider the different developmental stages of children and reflect this in the tariffs that they hand down for DHMP. Mandating the courts in legislation to treat older and younger children differently focuses too much on age and not enough on maturity or circumstances. It brings tariffs for older children so close to those faced by adults that the distinction between a child and an adult risks being lost. However, the JCHR accepts the imposition of shorter tariff periods for the youngest offenders as a step towards the recommendations of the UN Convention on the Rights of the Child. These amendments remove any tariff starting points above the current 12 years but retain the imposition of shorter tariff periods for the youngest offenders.
Amendments 202 and 203 to Clause 105 return to permitting the possibility of a reduction of the tariff at the halfway stage and beyond for those who have committed relevant crimes as children, based on paragraphs 40 to 45 of the JCHR report. Individuals detained at Her Majesty’s pleasure may apply for their tariffs to be reviewed. The policy was changed in February 2021 so that those sentenced when over 18 would no longer qualify for any review of their tariff. Clause 105 puts this into statute.
The age of criminal responsibility is 10 in England, Wales and Northern Ireland and eight in Scotland. Therefore, it is theoretically possible, although it would be exceedingly rare, for someone to commit a murder, be given a DHMP sentence and still be under 18 two years after the halfway point of their tariff, so as to qualify for additional review. Accordingly, the JCHR was told that experts could not imagine a circumstance where someone would qualify for the additional review under this new provision. The effect of this clause is therefore to reduce the frequency of reviews of minimum terms and all but remove the possibility of a review beyond the halfway point. This should not happen.
The Government should seek to identify changes in the process of the DHMP tariff reviews so that they can lessen the distress caused to the families of victims. A child who commits an offence was still a child when they did so, even if they have reached the age of 18 while awaiting sentence or in custody. DHMP sentences should remain under continual review.
Lord German (LD)
I will speak to the issues raised in these amendments. In summing up the last group of amendments, the Minister said that we had to achieve the proper balance between rehabilitation and punishment. This is even more important in the area of youth justice which we touched on—admittedly with a bit of elasticity of the rules—in the previous group of amendments, but which are particularly relevant here and will occur later in this Bill as we deal with other measures.
The balance between what I would call repair and support for young people and punishment is one of great importance, and we must adjust that balance with great care indeed. This country, along with many others, recognises that children should be treated differently from adults in the justice system. However, there is a concerning trend in this government-expressed Bill, particularly in Clause 104, towards what I would call harsher treatment of older children, and bringing the sentencing of children closer into line with adults. This clause in particular proposes extending whole-life orders in exceptional circumstances to offenders aged 18 to 20. These are the most severe sentences that can be handed down by the courts. The other clauses also touch on the balance that I am talking about.
The Sentencing Council gives a full explanation of why children have to be treated differently, referring to lack of maturity, acting impulsively, inexperience, emotional volatility and negative influences as factors that ought to be considered. In particular, it notes that children and young people are likely to be susceptible to peer pressure. The noble and learned Baroness, Lady Butler-Sloss, in her example in the last group, referred to exactly that sort of problem, when young people respond to peer pressure and then resent and turn from it afterwards.
Clause 101 would permit the court to diverge from mandatory minimum sentences only when there are “exceptional circumstances”. This is change from the current wording, “particular circumstances”. Neither “particular” nor “exceptional” have been defined in law, or in this Bill, or in the Explanatory Notes associated with the Bill. So who is going to interpret “exceptional circumstances”? If it is to be the Secretary of State, where does that definition exist? Perhaps the Minister could give us the definition at the end.
I went to the dictionary, as one always does to look up words, and looked up “exceptional”. There are at least four definitions, ranging from “only likely to happen very infrequently” to “having much more than average intelligence, ability, or skill”. With that breadth of difference in the understanding of “exceptional”, I am sure that there is a great deal of work to be done on that definition. There is a world of difference between “likely to happen very infrequently” and “beyond the average”, which is the other interpretation that you could give to this word. Either way, it is important that the Government tell us why they have made that change and what it means in practice.
My second point is about the discrimination elements in these amendments. The Government have recognised that these clauses have a disproportionate impact on black and minority ethnic children. We have only to turn to the Joint Committee on Human Rights report. Basing its comments on the Human Rights Act 1998, it says:
“Discrimination may be justified, but only where the difference of treatment pursues a legitimate aim and where there is a reasonable relationship of proportionality between the means employed and the aim sought to be realised.”
The report says that many of the witnesses who were interviewed questioned whether the Bill had gone too far and does discriminate. So there are questions to be asked as to whether the Bill breaches the right that people have under that 1998 law.
The report further states:
“The government recognises the unequal effect of these measures in its Bill, but does not provide any mitigation”.
So can the Minister provide an explanation of the measures they propose to mitigate the impact of this discriminatory effect on BAME children? The House will need to consider whether these measures need to be written into the Bill, but I hope the Minister might undertake that action could be taken through government amendments.
The Bill proposes extending whole-life orders in exceptional circumstances to offenders aged 18 to 20, and these, as I said, are the most severe sentences. But those who offend as children should not lose the opportunity to benefit from the youth sentencing framework and rehabilitation periods, because system delays there are not of their fault.
The court delays we have at the moment existed before Covid and have been exacerbated since. In the year ending December 2019, before Covid, the average delay between offence and court completion was 160 days—nearly 23 weeks. That is eight weeks longer than in 2011, despite the reduction between 2011 and 2019 in the number of youth offence court cases. Covid has made this situation so much worse. Can the Minister confirm that those who cross the age threshold because of these delays will not be subject to a more severe sentence?
In a recent report from Her Majesty’s Inspectorate of Probation, the chief inspector said about the impact on black and minority-ethnic children:
“Half of the boys in the inspected cases had faced racial discrimination in their life; a third had been victims of criminal exploitation and a quarter had a disability … Yet many of these children are only receiving support with these needs for the first time through the criminal justice system.”
By looking at the criminal justice system we are looking at the cart, but the horse has already bolted from the stable. This is quite clearly unacceptable. Her Majesty’s Inspectorate of Probation says so, and I believe we need to revisit the amendments the Government have tabled to ensure that the proper balance is achieved, as the Minister said in response to the previous group of amendments. Proper balance does not mean turning the dial far more towards punishment than towards the repair of these young people.
The Lord Bishop of Durham
My Lords, I speak on behalf of the right reverend Prelate the Bishop of Derby on this occasion, who could not be here today. I add my support to Amendments 198, 199, 200 and 201, in the name of the noble Baroness, Lady Massey, which deal with tariff starting points or DHMP sentences as they relate to young people. The noble Baroness laid out well the case for amending Clause 104 so that it takes into account evidence on maturation. I will briefly add the right reverend Prelate the Bishop of Derby’s perspective as a Lord spiritual and as part of a team of Bishops focused on Her Majesty’s prisons, particularly young offender institutions. She also declares an interest as vice-chair of the Children’s Society.
Children ought to be treated as children, and we resist any erosion of that in law. If we are to argue to the contrary we must be content to go against the trajectory of every other arena of English law. Eighteen is soon to become the age at which people can legally marry, leave education and join the Armed Forces. I urge noble Lords to reflect on this. If we project from this that children are to be protected from making decisions about marriage, education and even enlisting in Her Majesty’s Armed Forces until they reach a maturation point of 18, then the same logic surely must continue to apply in this instance.
The net consequence of Clause 104 would be more children spending longer in custody. Put simply, with very few under-16s impacted, the result would be more older teenagers receiving more severe sentences than is currently the case.
I intend to oppose Clause 103 being added to the Bill. Clause 103 would make it possible for judges to impose whole life orders on offenders aged 18 to 20. Our amendment would ensure that the minimum age for imposing a whole life order does not drop below 21. Although these are not legally children, in common with Clause 104, Clause 103 fails to take into account the Government’s 2015 response to the report by the noble Lord, Lord Harris, into the deaths of 18 to 24 year -olds in custody, where the Government agreed that
“It is widely recognised that young adults, particularly males, are still maturing until around 25 years of age.”
I am grateful to the Prison Reform Trust for its briefing on this and for highlighting that the origin of Clause 103 derives entirely from a single recent case. I understand the strength of feeling around that particularly tragic case, as it resulted in terrible loss of life. However, I do not believe there is any justification for extending whole life orders to young adults in this manner.
Baroness Jones of Moulsecoomb (GP)
My Lords, I congratulate the noble Baroness, Lady Massey, on tabling these amendments. I will speak in particular on Clause 101. It is a real pity it is in the Bill, so I look forward to the Minister explaining exactly why it is here, particularly after having heard your Lordships.
Mandatory prison sentences could lead to a repeat of what happens in the USA, where there are three-strike laws, which are partly responsible for their obscene rates of incarceration: nearly 1% of the American population is in prison or jail, and this is very racially unbalanced. That is not to say that there are not many situations in which people should be sent to prison for these offences, but this blanket approach takes out any nuance whatever. It is easy for the Government to increase prison sentences and set mandatory minimum sentences; they can go around to the tabloids and say, “See what we’re doing. We’re being tough on crime”. It is much more difficult, but more important, to deliver real rehabilitation and diversion so that people do not reoffend and we do not take up huge amounts of taxpayers’ money keeping them in prison. I love the word that the noble Lord, Lord German, used—“repair”. We talk about rehabilitation, but “repair” is a superb word when talking about some of these very damaged children. Will the Government be adding any rehabilitation or diversion to these mandatory sentences, so that people do not offend three times, or will they just say “job done” and rely on the deterrent effect alone?
Most worrying to me on this list of offences is the inclusion of drugs offences. We should be moving towards a legalised and fully regulated drugs supply that is as safe as it can be. Creating a minimum sentence of seven years for drugs offences is a huge backwards step and will make the supply of drugs a lot more violent and dangerous, as people will have so much more to lose if they get caught.
On the previous amendment on the disclosure of cautions, I learned today from an amazing source that the illegal Prorogation of Parliament was wiped from the bound Hansard records. It apparently has ceased to exist in the bound version. It strikes me that, if we can delete all references in bound Hansard to the illegal Prorogation of Parliament—thanks to our esteemed Prime Minister Boris Johnson—surely we can be a little kinder to young people.
On “exceptional circumstances”, we all know that if you are a water company, exceptional circumstances mean you can release a sewage discharge any time you like, so, presumably, “exceptional” can be anything you want it to be, which is a little bit upsetting when it comes to the law, where words matter and should be more precise.
I look forward to the Minister’s explanation of all this, because I think it is rather nasty, hard-line and discriminatory.
Lord Ponsonby of Shulbrede (Lab)
I thank my noble friend Lady Massey for introducing these amendments. She did so comprehensively, and I shall speak very briefly in support of them.
When most young people go into custody, they will serve half their sentence in custody and the other half out on licence or on a training order. The gist of the Bill is to increase the custody element to two-thirds, while the amendments would put that back to half the period. As I have said on other amendments, I have an aversion to sentence inflation, and this is an example of it. There is no evidence that I am aware of that it would reduce reoffending. Rehabilitation is available within both the youth estate and the adult estate, but it is so much better if it can be engaged while outside prison.
On principle, I am against sentence inflation. My noble friend has set out with her normal expertise why, when looking at a wider context of international law, this example of sentence inflation is not appropriate. I look forward to the Minister’s response.
Lord Wolfson of Tredegar (Con)
My Lords, these amendments, which I am grateful to the noble Baroness, Lady Massey, for putting down, all relate to custodial sentences for children. There were one or two points that she made that I shall perhaps respond to when we get to group 9, because there is a little bit of an overlap with some of the points there. I hope that she will forgive me if I respond to some of the points then, but I shall seek to respond to the majority now.
As the Committee will be aware, there is a separate and distinct sentencing framework for children. When sentencing children, the courts have to take into account two statutory considerations: the principal aim of the youth justice system, which is to prevent offending by children and young people, and the welfare of the child. I hope that overlaps with some of the points made by the noble Lord, Lord German, emanating from the Sentencing Council.
Although, therefore, custody should always be a last resort for children, there will be some cases where it is necessary, and we believe that the court is best placed to determine the appropriate sentence. But those who commit the most serious offences, and who pose a risk to the public, should serve an amount of time in custody which reflects the seriousness of their offending.
Against that background, let me go through the relevant clauses and amendments. Clause 101 relates to—and I underline this point—minimum sentences. The noble Baroness, Lady Jones of Moulsecoomb, on a few occasions referred to “mandatory” sentences. The clause is not headed “mandatory sentences”; the words “mandatory sentence” do not appear in this Bill, except in one place, Clause 101(8), which refers back—it is a pity that the noble Lord, Lord Paddick, is not in his place, because we have a nice piece of parliamentary drafting here—to Section 399(c) of the Sentencing Code “(mandatory sentence requirements)”, but that refers to a minimum sentence where the conditions set out in the clause do not apply.
I have two points to make in this regard. First, minimum sentences are not mandatory in the sense that they must be imposed. They are a mandatory consideration that the court must make before passing a sentence unless the provision in the sentence is met. Secondly, the Bill does not introduce minimum sentences for under-18s for the first time. Offenders aged 16 or 17 are already subject to minimum sentencing provisions if convicted of threatening with a weapon or bladed article, or a repeat offence involving a weapon or bladed article.
The threshold for courts to depart from imposing a minimum sentence is open to them, the question being whether the test is met. This amendment aims to ensure that the change in the threshold will not apply to offenders aged 16 and 17 who are convicted of these two offences. In Clause 101 we seek to ensure that courts depart from the minimum sentence only in exceptional circumstances.
Viscount Hailsham (Con)
My noble friend clearly is right when he says that this is not a mandatory sentence, but does he accept that the purpose of this clause is to ensure that in the generality of cases, a custodial sentence is imposed?
Lord Wolfson of Tredegar (Con)
The purpose of a minimum sentence is that unless the threshold is met—we will debate in another group what that threshold should be—the minimum sentence is imposed. There is nothing between us on how it works; there obviously is on whether it is a good idea. I hope that is fair.
Baroness Chakrabarti (Lab)
I am sorry to interrupt the Minister but in sentencing law and in the criminal justice system, minimum sentences are currently referred to as “mandatory minimum sentences”, subject to thresholds and exceptions such as exceptional circumstances. That is a very long tradition. As lawyers we must be fair to lay Members of the Committee as well. It is unfair to say that the noble Baroness, Lady Jones, has missed the point. It is very common in the parlance of sentencing law and criminal justice law to refer to minimum sentences as “mandatory minimum sentences”, subject to whatever thresholds and exceptions there are.
The Lord Bishop of Durham
That is exactly what it says in the paperwork we have.
Lord Wolfson of Tredegar (Con)
The point I am making is very important and we will get to it in another group. I absolutely accept that people use “mandatory sentence” in a common parlance way, but when we get to a later group, we will discuss what the test should be. I will not delay the Committee now, but the figures for when the minimum sentence is not actually imposed are surprising. People using the phrase “mandatory sentence” would be surprised to hear that in a third and sometimes nearly half of cases, the minimum sentence is not given. If “mandatory” does not apply in a third of cases, I question whether it is the appropriate word. Therefore, we must bear in mind that we are dealing with a minimum sentence with a provision, whether that is “exceptional” or some other test. I certainly do not seek to criticise the noble Baroness, Lady Jones, for using the shorthand. I wanted to point out that it is a shorthand which can be misleading when one looks at the facts as to how such sentences are imposed.
Viscount Hailsham (Con)
What is the essential difference in my noble friend’s mind between exceptional and particular circumstances? Is not the truth of the matter that he wants the default position to be a custodial sentence, whereas there was greater discretion to the judge when the particular circumstances were what the law was to consider?
Lord Wolfson of Tredegar (Con)
As I say, there is a specific amendment on that point, so I will come to this in more detail then, if I may. The question is about when you depart from the minimum sentence. We are dealing here with the scope of the exception—that might be an unfortunate word, because one of the words we are using to qualify the exception is “exceptional”—and whether the exception is in circumstances which are just in the case, which I think is the gist of one of the amendments in a later group, or exceptional circumstances. I absolutely accept that one has a minimum sentence, which we can call the default, with an exception. It is always for the judge to decide, looking at the offence and the offender, whether the test is met. I will come in a moment to the words “exceptional circumstances” in particular.
What we want to do, to underline the point, is to ensure that courts depart from the minimum sentence only in exceptional circumstances. That reflects the seriousness of the offences and the risks posed to others. We believe that will create greater consistency in the statutory provisions on minimum sentences which apply to other offences. This change does not mean—
Baroness Kingsmill (Lab)
Is the Minister saying therefore that it will be a mandatory sentence unless there are exceptions?
Lord Wolfson of Tredegar (Con)
Unless the exception is met, this is the sentence that will be imposed. I do not want to split hairs with the noble Baroness, but it is not mandatory in that sense. It is a minimum sentence which has to be imposed unless the conditions are met.
Baroness Kingsmill (Lab)
It is awfully important in these kinds of cases that we are very clear and precise in our language. There is a difference between minimum and mandatory. I think what the Minister is actually saying is that this is a mandatory sentence unless there is an exception.
Lord Wolfson of Tredegar (Con)
It is not a mandatory sentence, because you can impose more. Let us be clear: it is a minimum sentence, which has to be imposed unless the exceptions are met. To take it outside this clause, if you have a minimum sentence of two years unless there is an exception, the first question is: is the exception met? If it is not, you have to give at least two years. You do not have to give two years; you could give two and a half years. I am not sure I am saying anything different. Reference has been made to America. In other jurisdictions, when they say mandatory, it can be mandatory without exceptional circumstances or any other provision. I am not sure we are saying anything different. I think we are all clear about what we mean. I would prefer to use the phrase “a minimum sentence”, which is the phrase used in the Bill, unless the exception applies.
Baroness Chakrabarti (Lab)
I am so sorry to elongate this, but it is important. The Minister, sitting in a Government with a massive majority, gets to rewrite the statute book, but he does not get to change terms that are well understood by lawyers and sentencers in this jurisdiction and others. He is proposing a mandatory minimum sentence subject to certain exceptions. The common parlance—perhaps not on the street, but in the profession and on the Bench—is that this is a mandatory minimum sentence. He can argue for it and say that it is good policy, but it is not helpful to the Committee, anyone outside it or anyone reading Hansard for us to suggest that this is something totally different from a mandatory minimum sentence subject to exceptional circumstances.
Lord Wolfson of Tredegar (Con)
I am really not sure that we are saying anything different. As I said, we will come in a later group to how many offenders do not get the minimum sentence with some sentences. There must come a point at which so many offenders do not get it that using the word “mandatory” to describe it is itself misleading. I suggest we are better off sticking to the terms used in the Bill, which are both accurate and appropriate.
I underline the point that the change we are proposing does not mean that all 16 and 17 year-olds will receive the minimum sentence. The courts will retain the discretion not to apply the minimum where there are exceptional circumstances which relate to either the offender or the offence and which would justify doing so.
Viscount Hailsham (Con)
That is out of the ordinary. It is a high threshold.
Lord Wolfson of Tredegar
I will come in a moment to the word “exceptional” as I think that was the point made by the noble Lord, Lord German. I have been a little diverted on the way, but we will get there.
What the courts will therefore do is to continue to take the child’s welfare needs into consideration. I also point out, of course, that the actual minimum sentence for 16 and 17 year-olds, when given, is shorter than that for over-18s when given: four months as opposed to six months. Applying minimum sentences to 16 and 17 year-olds—the older cohort of under-18s—recognises the increased maturity and development of this age group compared with younger children. Any custodial sentence is given as a last resort, but we believe that for older children who commit these particular offences, it should be mandatory for the court to consider carefully whether a custodial sentence is appropriate.
Lord Beith (LD)
I wonder if the Minister could be a little clearer. A moment ago he cited figures for the number of cases under existing law in which, apparently, mandatory sentences are not passed because judges took the circumstances into account. When you couple his description of those figures with the phraseology that he is using now about the merits of the Bill, the impression is very clear that the Government are not happy with the judges citing exceptional circumstances in failing to deliver the kind of sentence that the Bill would impose. Am I right to understand that he is, in fact, critical of the number of exceptions that are made at present and wants fewer of these in future?
Lord Wolfson of Tredegar (Con)
I am certainly not critical of any particular sentence passed in any particular case. What I do think the figures show is that we need a test that more clearly balances the minimum sentence on the one hand with the exception on the other. We think the test of exceptional circumstances—I know that the noble Lord, Lord German, is waiting patiently—meets that test.
I turn now to Clause 104 and 105, which both relate to children who have committed murder and will therefore receive the mandatory life sentence of detention at Her Majesty’s pleasure. I hear in this regard the words read to us on behalf of the right reverend Prelate the Bishop of Derby. When giving a life sentence, the judge sets a minimum amount of time that must be spent in custody before the offender may be considered for release by the Parole Board. This is known colloquially as the tariff. Judges use starting points to determine that tariff. They can set a minimum term higher or lower than the starting point by taking into account aggravating or mitigating factors. Currently, there is a 12-year starting point for all children who commit murder.
In this Bill, we are replacing the fixed 12-year starting point for all children—what might be called the mandatory starting point—with a range of starting points that take into account the child’s age at the time of the offence and the seriousness of the murder. The age groups are to reflect the different stages of development that a child goes through and that, although both in law are children, a 10 year-old is very different from a child of 17 years and 10 months. The different levels of murder, if I can put it that way, are based on the more nuanced system used for adults, which takes the seriousness of a murder into consideration. Therefore, the twin factors of age and the seriousness of the murder are then brought together. The higher the age and the more serious the murder, the higher the starting point, and the converse is also the case.
This amendment retains a range of starting points for children based on three age groups, but it does not distinguish between the levels of seriousness of a murder. Because murder can vary in seriousness in the criminal sense, we believe it is right that the starting points should reflect this as well. We do not agree that starting points should only be based on the age of the child; they should also reflect the seriousness of the murder. Moreover, the amendment does not address the gap in starting points between older children and adults. A child of 17 years and 10 months is very close to becoming an adult. The amendment would mean that the same category of murder would have a 12-year starting point for a 17 year-old, but a 30-year starting point for an 18 year-old. However, I underline the same point that I made about minimum sentences. The judiciary will continue to take the individual circumstances of a case into consideration and can give a minimum term higher or lower than any given starting point.
Let me address the review amendments. Children who are sentenced to detention at Her Majesty’s Pleasure are eligible to apply for a review of their minimum term. In this Bill, we are placing the minimum term review process in legislation. It allows children who are aged under 18 when sentenced to detention at Her Majesty’s Pleasure to apply for a minimum term review at the halfway point. We are restricting eligibility for further reviews to be available only to those who still aged under 18 at the time of the further review. By contrast, this amendment would allow those sentenced as an adult to apply for a review at the halfway point and continue to apply every two years. It would also allow adults who were sentenced as children, who have already had one review, to continue to apply for a review every two years. This amendment is neither necessary nor in line with case law. That is because, under the measures in the Bill, children who are sentenced to detention at Her Majesty’s Pleasure will continue to be eligible for a review at the halfway point of their minimum term.
That right has developed through case law. It recognises the unique rights of children and the fact that they develop and mature at a faster rate than adults. The review is an important part of confirming that the minimum term remains appropriate or determining if a reduction should be made. However, they should be eligible for a further review only if they are still a child at the time of that further review. This is because, as the right reverend Prelate the Bishop of Durham said on behalf of the right reverend Prelate the Bishop of Derby, children have the greatest capacity to demonstrate the significant changes to maturity and outlook that the review considers. Therefore, the opportunity for multiple reviews would be available only to younger children at the initial time of offending, as they are more likely to be under the age of 18 at the time of any further review.
Those who commit murder as a child but are sentenced as an adult have already had their age and maturity taken into consideration. Adults who commit murder are not entitled to reviews and so this Bill ensures that all offenders who are an adult at the time of sentencing are treated equally. It is important to remember that we are talking about the most serious offence, that of murder. The minimum term set by the judge takes into consideration a child’s age and maturity at the time of the offence and reflects the seriousness of the offence. That minimum period should therefore be served, except in exceptional circumstances.
That brings me to the question of the definition of exceptional circumstances, and I am grateful to the noble Lord, Lord German, for his patience. “Exceptional circumstances” is a phrase used all over the law and the criminal law. It is a matter that judges are well used to interpreting. It is a phrase in plain English. With the greatest respect to the noble Lord, it does not need, or would benefit from, a gloss from the Dispatch Box. The phrase means what it says on the tin. It is for the individual judge in the individual case, having heard the evidence, to decide whether the exception is made out.
Lord German (LD)
Can the noble Lord tell me the difference, then, between the current words, which are “particular circumstances”, and those that the Bill is proposing—“exceptional circumstances”? What is the difference between “particular” and “exceptional” to the fraternity of judges and lawyers who do not need it written down because they all understand it? For those of us who are non-lawyers, some definition would be helpful.
Lord Wolfson of Tredegar (Con)
I hear the words, “higher bar”. I do not disagree that “exceptional circumstances” is a stricter test. There is case law on that, although the name of the case has slipped my mind, but I am happy to write to the noble Lord, Lord German. I see that the noble and learned Lord, Lord Judge, who may remember, is here. I am sorry to give him exam questions. “Exceptional” is a word that has been passed and interpreted by the courts at a high level. It is proper to leave it to them to decide what “exceptional circumstances” means. However, I will write to the noble Lord with the case law, once my memory comes back to me.
Baroness Massey of Darwen (Lab)
My Lords, I thank the Minister for his response. I did not quite realise it would end up in a dispute about the semantics. I am not a lawyer, and I think the law should be clear; I think I know the difference between “particular” and “exceptional”, but I will not go there again today. I thank noble Lords for their support for the amendments and the incisive, perceptive comments they have made.
I go back to my earlier premise that we must remember that, under the UN Convention on the Rights of the Child, children are those under 18, not 16. Everything that has been said by colleagues today expresses concern about the treatment of children in our youth justice system.
This has been a concern of the UN Committee on the Rights of the Child for years. As I said, it will be reporting back again next year on how we treat our children in the youth justice system. I hope that it finds something more acceptable than what it has in the past. By amending this Bill, we could possibly move a step forward on that issue.
The issue, for me, is that this is about children’s rights, and we should really consider those. I noted the comments of several colleagues. The noble Lord, Lord German, brought up the important issue of who is in the system and how black and minority-ethnic children, especially boys, are overrepresented in the system. We should think about that carefully.
The Government speak about levelling up in society, but I think the strategy set out in much of this Bill will do just the opposite. I will of course read carefully the comments of the Minister. I am afraid that I cannot stay for his later comments on a different group, but I will also read those carefully.
We must remember that children do not arrive fully formed at the age of 16—or any age, for that matter. We have recently been presented with research on the brains of adolescents and children which comes up with some surprising examples of how the brain does not in fact mature until over the age of 18, certainly, and that children should be treated as children. This provides unequal effects on children.
As has been said in the debate today, children have been affected by Covid and by the developmental health issues it brought about, as well as by the effects of delays on sentencing. All in all, I do not think that this is a very happy story as far as children are concerned.
I will need to consult other colleagues who have spoken today and respond to those organisations and individuals who have been so important in giving advice on these amendments to the Bill. Youth justice is such an important issue, which I feel we must push further on Report. I will not respond to all the Minister’s points today, because that would take a long time; I may wish to have a discussion with him, if he will consent, about some of these important issues. I beg leave to withdraw the amendment.
Member’s explanatory statement
This amendment, along with Lord Marks’ amendment to page 86, line 23, would remove the requirement for the circumstances to be exceptional before a judge was empowered to decline to impose the minimum sentence (for offences of threatening with weapon or bladed article) and would entitle the judge to do so where in the circumstances the judge concluded that such a sentence would be contrary to the interests of justice.
Lord Marks of Henley-on-Thames (LD)
My Lords, all the amendments in this group are in my name and that of the noble Lord, Lord Pannick, whom I thank for adding his name to them. We have of course covered some of the ground covered by our amendments in the last group, but there remains, I suggest, considerable scope for developing these very important arguments.
These amendments are put down with two objectives in mind. The first and principal objective is to preserve judicial discretion in sentencing, which the Bill threatens seriously to undermine or remove. The second objective is to express our concerns that minimum sentences do nothing to improve our penal system or our sentencing practice, that they impede rather than foster reform and rehabilitation, and that they fuel sentence inflation.
Clause 101 would require a sentencing judge to impose minimum sentences for a number of offences in the absence of “exceptional circumstances” relating to the offence or the offender which would justify not imposing the minimum sentences. Clause 101(2) relates to the minimum sentences—called in the code “appropriate custodial sentences”, but minimum sentences none the less—applicable under Section 312 for, as we have heard, offences of threatening a person with an offensive weapon or a bladed or pointed weapon or article. For those offences, the code prescribes minimum sentences of a four-month detention and training order for 16 and 17 year-olds; a six-month detention in a young offender institution for 18 to 20 year-olds; and for those aged 21 or over, six months’ imprisonment. Those sentences currently apply unless there are
“particular circumstances which … relate to the offence or to the offender”
and which “would make it unjust” to pass such a sentence “in all the circumstances.”
The new provision proposed in the Bill would change that test to require the passing of the minimum sentence unless the court concluded that there were “exceptional circumstances” which related to the offence or to the offender and justified not imposing a sentence. The significant change is the elevation of the requirement for there to be “particular circumstances” to a requirement for there to be “exceptional circumstances” before a judge is entitled to depart from the required minimum sentence. At first blush, that may not seem to be a much more onerous requirement, but it marks a very important change.
I confess that I was a little surprised that the Minister ducked the challenge from my noble friend Lord German to define the term “exceptional circumstances”. He shakes his head, but I felt he did. My understanding has always been that, in law, the word “exceptional” has a well-recognised meaning. I have no doubt I will be corrected by the noble and learned Lord, Lord Judge, if he disagrees, but “exceptional” in this or similar contexts means circumstances that are completely out of the ordinary. Judges regard themselves as bound not to find exceptional circumstances unless that high bar is met.
On the previous group, the Minister drew the distinction between minimum and mandatory sentences. He is right up to a point, but the move to a requirement for “exceptional circumstances” reduces that distinction by a considerable margin. The noble Baroness, Lady Chakrabarti, described them as “mandatory minimum sentences”. The fact is that the Government are trying to reduce the scope to depart from the minima. They are trying to reduce the number of people not getting those minimum sentences. My noble friend Lord Beith hit the point when he asked whether the Government were unhappy with the high number of departures from the minima on the present phraseology, which I suggest shows the fallacy in the Minister relying on the number of departures there are at present.
The noble Viscount, Lord Hailsham, was right in describing this as a proposal for a default sentence. In practical terms, a judge might well believe that the particular circumstances of the offence and/or the offender—under the current phraseology—were such that the justice of the case required a custodial sentence of less than the minimum level or a non-custodial sentence. “Particular” in that context bears its ordinary English meaning. It refers to the circumstances that apply to the offence in question—that particular offence —or to that individual offender. However, the use of the word “exceptional” is calculated to require the sentencing judge, in the majority of cases, to pass the minimum sentence even if the judge took the view that the minimum sentence might cause injustice. That is the weakness of these provisions.
Clause 101(3) would impose a minimum sentence of seven years for a third class A drug-trafficking offence, subject to exactly the same test. Clause 101(4) would impose a minimum sentence of three years for a third offence of domestic burglary—again, subject to the same test. Clause 101(5) would impose the same minimum sentences for a repeat offence of carrying an offensive weapon or possessing a bladed or pointed article in a public place or in educational premises as those which apply for any offence of the threatening offences to which subsection (2) refers—again, on the same conditions.
Lord Judge (CB)
My Lords, I sometimes wonder when I read statutes that make provision for sentencing whether those who are responsible for the ideas behind them or those responsible within the department have any idea how difficult it is to pass a sentence. It is easy in a debate like this to talk about two years, three years, seven years, probation or whatever it might be, but it is not like that in the real world. When we have to consider minimum sentences—and I love the semantics about whether we are talking about an obligatory minimum sentence or mandatory sentence subject to exceptions—the ultimate requirement for a sentencing judge is to pass a just sentence. That is why I support the amendment in the name of the noble Lord, Lord Marks.
I am sorry that I am going to take time about this, but there are perhaps four ingredients of a sentence that we now have to consider. One is societal attitude to the crime. Judges get that from what Parliament says that the maximum sentence must be. Dangerous driving causing death, in my lifetime, has gone from two years to five years, 10 years, 14 years and now life. That is Parliament reflecting the seriousness with which society, reflected by Parliament, sees the crime. That always works in the sentencing process. On the rare occasions when a maximum sentence is reduced, as it was with theft, from seven years to five, that too is reflected in the sentencing requirements. However—and although I am used to it, it is no less pernicious—there is the minimum-term idea. Parliament has willed it to be so, and a judge has to be loyal to the Act of Parliament and the oath that he has taken. There it is: forget the semantics, but the starting point is X, and you can move from X only if circumstances permit it, which are now being elevated into “exceptional”.
But that is only the starting point. There is the actual crime itself. Is it a very bad case of its kind or not? This is of particular importance when using “exceptional”. There are many cases where more than one defendant is involved, and sometimes the sentencing judge has in front of him a gang. One member of the gang is a gullible gopher, the person chosen because he is a bit thick, who goes along with it. Do we start with him, with the same minimum sentence as all the others in the same gang? Yes, says this provision, unless it is exceptional. Then we have to remember the victim—the impact on the victim, how it has affected him or her, how long the awful or relatively minor effects will affect that person and how strong, weak, troubled or so on the victim may be. Then there is the defendant. Every single defendant is an individual. On one hand you have the gopher, while on the other you have the sophisticated criminal who does these crimes as a matter of ordinary employment.
My goodness, I could give noble Lords a lecture on this issue, I am not going to because I do not lecture the House, but I am looking at the Minister and members of his department when I use that word. All those ingredients go into making a sentencing decision, and the sentencing judge struggles to balance all of them, because there is a huge conflict on every occasion. If you introduce a minimum term, you have changed the nature of the exercise, which is not to decide in the light of all the ingredients of the defendant, the victim and the crime itself, because you have added a minimum term. The possibility that a judge should be required to pass a sentence that he or she regards as an unjust sentence on a particular individual in a particular case for a particular crime is really rather—I must moderate my language—appalling. A judge should never have to pass a sentence that he or she conscientiously regards as unjust. That is what is wrong with this provision.
Viscount Hailsham (Con)
I support the amendment proposed by the noble Lord, Lord Marks, for very much the same reasons advanced by the noble and learned Lord, Lord Judge. I very much favour the preservation of a judicial discretion; it is absolutely essential.
I worry very much indeed about sentencing inflation. When I was at the Home Office working as a Parliamentary Under-Secretary at the back end of the 1980s, I was a Prisons Minister. At that time, the prison population was around 40,000; it has now doubled—it is well into the 80,000s. Are the streets any safer? Does the community feel safer? The answer to that is manifestly that no, it does not.
The noble Lord, Lord Marks, is utterly right when he says that longer sentences mean more people in custody. What is the consequence of that? If you pack people into prison, there is overcrowding and the chances for rehabilitation and retraining are greatly diminished. I know that from my personal experience: for three years or so, I was on the monitoring board of a local prison near me in Lincolnshire—actually, it was just over the border—and the chances of prisoners getting proper courses were very small, so the chances of rehabilitation were thereby much diminished.
The purpose of this clause is to ensure that, in the generality of cases, a prison sentence is the starting point. That is what is intended by using the phrase “exceptional circumstances” as the proviso. That is to say that it will be disapplied in a small minority of cases. The noble and learned Lord, Lord Judge, made a very important point that we need to keep a grip on: exceptional circumstances may not exist, but the sentence could be unjust. So the noble and learned Lord is in fact saying to this Committee—and he is absolutely right—that the impact of the Government’s proposals is to drive the judiciary in particular cases to impose a sentence that they know to be unjust, because they cannot find exceptional circumstances. I find that wholly deplorable.
The amendment from the noble Lord, Lord Marks, enlarges judicial discretion to make it more in accordance with the principles of natural justice. I very much favour that, and I hope that the Committee will do so as well.
Lord Thomas of Cwmgiedd (CB)
My Lords, in the light of what my predecessor as Lord Chief Justice, the noble and learned Lord, Lord Judge, has said, I can be very brief.
First, I wholeheartedly agree with him. Secondly, I do not think that we should beat about the bush at all about the change to the word “exceptional”. Any lawyer knows that the intention is to raise the bar significantly. You use that word only when you want to try to minimise the discretion or ambit of when it is to happen. I hope that the Minister will accept the clear intention of the change and answer the question posed in the earlier debate by the noble Lord, Lord German, about the difference. There is a clear and obvious difference.
Thirdly, having had a little less time as a judge and coming to the job a bit later, I can see an argument, which one has to accept, for saying that, by setting a minimum term, Parliament is giving an indication of what it thinks is appropriate. Perhaps that was not the right road to go down, but we have gone down it. But where this Government are wholly wrong—I do not think that we should mince our words about that—is in saying that a judge should impose a sentence that is not just. In refusing this amendment, the Government are saying, “We don’t care if injustice results: you must look at the circumstances, and if they are not exceptional” —a high bar—“you must impose an unjust sentence”. Have we really sunk so low as to require our judges not to do justice?
Lord Ponsonby of Shulbrede (Lab)
My Lords, this has been an interesting debate. I agree with the points that the noble Lord, Lord Marks, has made, but I want to give a different perspective that partly undermines the argument put by him and all the other noble, and noble and learned, Lords who have spoken. The noble and learned Lord, Lord Judge, said that, ultimately, it is for judges to pass a sentence that is just. He pinned his argument on that single point.
We talked about youths in the previous group. For youth justice, the overarching purpose when sentencing is to reduce reoffending. That purpose supersedes the overall position of needing to be just in the sentence. That is why there is a minimum sentence in youth courts of four months. The reason is that, when you go to youth offender institutions or things like that, you are invariably told by the prison offers and teachers dealing with the young people that they need to be there for a duration of time to get their education. That is the justification for having a minimum sentence of four months in youth cases.
Lord Wolfson of Tredegar (Con)
My Lords, these amendments seek to ensure that the courts depart from imposing a minimum sentence, to use the words of the amendment, only where it would be
“contrary to the interests of justice”
to do so, “having regard”—and then it refers to the particular requirements in the Bill on the offender and on offending. “Interests of justice” is not defined. I do not complain about that, because the phrase is used elsewhere and the courts know what it means. I do not want to go over old ground.
It is already the case that a court has the discretion not to impose the minimum sentence where there are particular circumstances relating to the offender, the nature of the offence or, in the case of repeat offending, the nature of the previous offence that would make it unjust to do so. I underline the point that whether that exception, however phrased, is met is for the judge to decide, based on the particular facts of the case. It is for Parliament to set the minimum sentence, if it wants to, and to set the “exceptional” provision—whether that is exceptional circumstances or however else it is defined. It is then for the judge to apply what Parliament has said.
As I said on the previous group, concerns have certainly been raised that offenders too often receive sentences below the minimum term. That both fails to provide an appropriate level of punishment that reflects the severity of the offence and undermines any sensible use of the word “mandatory” in this context. Let me give a couple of examples. Among adult offenders in 2020, at least—and I will explain my “at least” in a moment—50% received a sentence below the minimum term for third-strike domestic burglary. I said “at least” because the figures do not indicate whether these cases include early guilty pleas, for which they could get a reduction of up to 20%. Even allowing for that, at least 50% received a sentence below the minimum term. Of adults convicted of repeat possession of a weapon or bladed article, at least 21%—over a fifth—received a sentence below the minimum term.
I heard what the noble and learned Lord, Lord Thomas, said and I am not going to beat about the bush, either. I am trying to be clear. There may well be a difference of opinion around the Committee, but at least let us identify it clearly. With this provision, we seek to ensure that courts depart from the minimum sentence only in exceptional circumstances. Those are clear words, and they mean what they say.
We believe that the test of exceptional circumstances is both suitable and important. Not only does it help to address problems that have been escalating in our communities for some years, especially with regard to knife crime, but it will create greater consistency in the statutory provisions on minimum sentences. The change is therefore intended to reduce the circumstances in which the court will depart from the minimum term, ensuring that this important safeguard is used only where the court considers that there are exceptional circumstances, pertaining to the offender or the offence, that would make the minimum sentence unjust.
The changes align the criteria used for these offences with the criteria for passing a sentence below the minimum term in relation to offences involving firearms, where the proviso of exceptional circumstances is already in the law. However, I underline that the judicial discretion for the court to fully consider the facts of the case before it and decide on the appropriate sentence in line with the statutory framework is therefore retained.
I listened carefully, as I know the noble and learned Lord would expect me to, to the noble and learned Lord, Lord Judge. I think we may stray into almost philosophical areas, albeit very important ones, as to what a sentencer ought to do and perhaps even what we mean by “unjust” and where justice lies.
Parliament sets out the statutory framework. If the Bill is passed, Parliament will say that the minimum sentence is X years and that the proviso is exceptional circumstances. It is then for the judge to apply what Parliament has set out. That is the way our system operates. We can have an interesting debate about whether, if a judge does that, the judge can be doing something that is “unjust”. I fully understand where the noble and learned Lord is coming from, looking at “unjust” in a broader sense, but there is a basic justice in Parliament, which is ultimately where power resides, setting out what the minimum sentence and the exception should be and then leaving it for the judge to apply that exception on the facts of the case.
I heard very clearly the point made by my noble friend Lord Hailsham about whether longer sentences actually help. Again, that takes us into a whole different area. I mean no disrespect by not replying to him at length but we believe the sentences here are appropriate and suitable.
When the noble and learned Lord, Lord Thomas, concluded by saying, “Are we not to require our judges to do justice?”, I do not know whether he was intentionally paraphrasing the famous argument of Abraham to the Almighty. When the Almighty is going to destroy Sodom and Gomorrah even though there are some righteous people there, Abraham says to the Almighty, “Will the judge of all the earth not do justice?” I hear very strongly that the ultimate requirement is to do justice, but I emphasise that in our system we start with the parliamentary legislation. That is why we collectively, here and in the other place, bear such a heavy burden. It is for us to set out the statutory framework and then for our judges and courts to apply that framework. That is ultimately the way, I suggest, that justice is done in our system.
I do not want to lecture the Committee any further on jurisprudential matters. I invite the noble Lord to withdraw the amendment.
Lord Marks of Henley-on-Thames (LD)
My Lords, I am grateful for the speeches that we have heard in this interesting debate, particularly by those who have the most sentencing experience, the noble and learned Lords, Lord Judge and Lord Thomas. I am also grateful to the noble Viscount, Lord Hailsham, and to the noble Lord, Lord Ponsonby, for his indication of the Labour Party’s support.
While I will withdraw the amendment at this stage, I will return to it on Report. My concern is that the Minister, and I am grateful for the care that he gave to his response, failed to appreciate quite how loyal judges are to the law. Where the law requires a judge to find that exceptional circumstances exist before making a departure from the minimum sentence, he will do so loyally.
The point that both noble and learned Lords made is that it is simply wrong for the law to require judges, where they might have found that the circumstances of an offence or an offender dictate that the just sentence is less than the minimum, to be in the position that they have to say, “I cannot here find that the circumstances are exceptional—that is, completely out of the ordinary—and although I believe that the sentence I am constrained to pass is unjust in the sense that it is the wrong sentence, I nevertheless have to do it.” That is the result of the loyalty judges feel to the law—the noble and learned Lord, Lord Judge, mentioned the judicial oath—and is a weakness of this proposed provision, which puts political dogma above the need to do justice. Although I will withdraw my amendment now, I hope that, given the speeches we have heard, in the next few weeks or months, before Report—depending on when that is—we can talk to the Minister, take this matter further, and see if we can get some movement. Saying that, I beg leave to withdraw the amendment.
Lord Falconer of Thoroton
“Minimum sentence for an offence under section 1 of the Sexual Offences Act 2003
(1) This section applies where—(a) an individual is convicted of an offence under section 1 of the Sexual Offences Act 2003, and(b) the offence was committed after the commencement of this section and at a time when the individual was aged 18 or over.(2) The court shall impose an appropriate custodial sentence (or order for detention) for a term of at least the required minimum term (with or without a fine) unless the court is of the opinion that there are exceptional circumstances relating to the offence or to the offender which justify it not doing so.(3) In this section “appropriate custodial sentence (or order for detention)” means—(a) in the case of an offender who is aged 18 or over when convicted, a sentence of imprisonment, and(b) in the case of an offender who is aged under 18 at that time, a sentence of detention under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000. (4) In this section “the required minimum term” means seven years.”Member’s explanatory statement
This amendment would ensure those found guilty of abduction, sexual assault, and murder would receive a Whole Life Order as a starting sentence.
Lord Falconer of Thoroton (Lab)
My Lords, this group contains three amendments in my name, and a Clause 103 stand part debate in the names of my noble friend Lady Massey and the noble and right reverend Prelate the Bishop of Derby, neither of whom appears to be here at the moment. The amendments fall into two categories, but I make no complaint about them being grouped together. Amendments 195, 196 and 197 are based on the deep concern on this side of the Committee that the Government have not done enough in the Bill to mark their animosity to violence against women and girls.
Amendment 195 proposes a minimum sentence for an offence of rape under Section 1 of the Sexual Offences Act 2003. That minimum term—of seven years—applies unless the court is of the opinion that there are exceptional circumstances relating to the offence or the offender which justify it not doing so. I propose that minimum term for rape without one iota of apology.
The framework for sentencing by the courts has to be set by Parliament. The way Parliament does this—as the two former Lord Chief Justices made clear—is by setting a maximum sentence, and the courts then reflect on what they conceive to be the justice of the case, as determined by the maximum. In exceptional cases—I use that word advisedly—it is appropriate for there to be minimum sentences as well. If there is a minimum sentence, the judge’s discretion is removed, but that is because Parliament is saying that particular offence merits a minimum sentence except in exceptional cases.
I strongly agree with the proposition that one should keep those sentences to the minimum. I also strongly agree with the noble and learned Lord, Lord Thomas, that, where Parliament says “exceptional circumstances”, for all the impressive sophistry of the noble Lord, Lord Wolfson, it is definitely saying, “We want the norm to be whatever the minimum is, and as few cases as possible should not be in the norm”. There is nothing wrong with Parliament doing that. Rape, in our view, is one of those cases.
Viscount Hailsham (Con)
My Lords, I have a feeling I am going to be in a minority in this Committee. As much as I like and admire the noble and learned Lord who has just spoken, I disagree with at least two of his amendments. I disagree with Amendment 195 on the minimum sentence for rape, partly because of the general point that I have made about judicial discretion already, which I am not going to repeat, and partly because—I draw now on my own experience as a criminal barrister; perhaps not a very distinguished one, but I was a genuine lawyer for quite a long time —rape is a broad spectrum of offence, from ones which one can comprehend to the truly awful. There is a spectrum here, and it is wrong to fetter the judicial discretion to the point envisaged by this amendment.
The other amendment I do not agree with would make the murder cases of the class described by the noble and learned Lord in Amendment 197 a whole life offence. I personally shrink from whole life sentences if they are mandatory. There are many cases where they are proper, but I would leave it to the judge. I very much dislike the concept of sending lots of people to mandatory whole life sentences with no prospect of rehabilitation.
Lord Falconer of Thoroton (Lab)
The noble Viscount may be assuaged by the fact that what I am talking about is the starting point. Therefore, it is not a mandatory whole life term, it is a mandatory life sentence, and it is for the judge to indicate what the position is. The effect of my amendment is to say that the starting point is a whole life term.
Viscount Hailsham (Con)
We have been here before in previous debates. The effect is to make it mandatory unless there are some very powerful arguments against. If the noble and learned Lord will forgive me, having read his Amendment 197, I recognise that in many cases falling within that classification a whole life sentence would be appropriate: abduction, yes, murder, of course, but sexual assault? One needs to keep in mind that is a fairly broad offence from the relatively trivial to the very serious. I am not at all happy about including that as a triggering element which makes the whole life sentence the starting point. But I know I am in the minority on this point and the Committee will doubtless take a different view.
Lord Marks of Henley-on-Thames (LD)
My Lords, we have heard which amendments are in this slightly disparate group. On Amendment 195, I am in agreement with the noble Viscount, Lord Hailsham, and in disagreement with the noble and learned Lord, Lord Falconer, I am afraid, because it would require the courts to pass a minimum sentence of seven years for rape in the absence of exceptional circumstances. I fully accept that this amendment is motivated by a determination to respond strongly to the completely horrible offence of rape, and by a desire to be seen to be determined to tackle and reduce it by bringing offenders to justice and dealing with them with the full force of the criminal justice system through long sentences of imprisonment. Nevertheless, I cannot support the amendment.
On these Benches, we will take lessons from no one on how serious a crime rape is. Members on these Benches have spoken repeatedly of the need to increase the rates of reporting rape, the approach to investigating rape, ways of increasing rates of prosecutions and the rate of successful prosecutions for rape, and ensuring that courts, juries and the public—young and old—are fully aware of the meaning of consent. But we do not believe that a minimum seven-year sentence for rape will increase the number of victims prepared to report offences—particularly in cases where the assailant is known or related to them—or reduce the difficulty for the police in investigating rape, securing the co-operation of parties close to the case, securing witness statements or getting witnesses to give evidence in court. Nor do we believe that such a sentence would make it easier to secure convictions from juries, particularly in cases they might regard as borderline, against the background of appallingly low conviction rates.
We have heard many times about the background of failure to bring rapists to justice. In the year to March 2020, nearly 59,000 cases of rape were recorded by police in England and Wales. Of those, there were only 21,000-odd prosecutions and an appallingly low 1,400-odd convictions. We have also heard many times that in 57% of cases investigated by the police in that year, the victims withdrew their support for the prosecution. There is no evidence at all relied upon by the noble and learned Lord, Lord Falconer—or, I suggest, in existence—that minimum sentences of seven years, or of any figure, would improve that position.
Every lawyer, investigator or judge who has ever had anything to do with criminal courts knows the extent to which one case of rape differs from another. The noble Viscount, Lord Hailsham, is right about that. Although every case represents an egregious abuse, a standard minimum sentence cannot be justified. That brings me back to the points I made in the previous group about the importance of judicial discretion and the inappropriateness of a test requiring a judge to find exceptional circumstances before being permitted to pass less than the minimum sentence.
There is a minor point as well about the drafting of the amendment: it is unclear as to the age of the offender. Proposed new subsection (1)(a) applies the clause to offenders “aged 18 or over” at the date of the offence, while proposed new subsection (3)(a) applies to an offender under 18 at the date of conviction. There is an internal inconsistency which the noble and learned Lord may wish to consider.
Rape is a scourge. We must address it, reduce it and bring offenders to justice, as well as change the culture in our society that tolerates it and, as the noble and learned Lord said, does not control the appalling epidemic of violence against women and girls. But minimum sentences will do none of that.
Amendment 196 seeks to increase the sentence for naming a complainant. The noble and learned Lord is absolutely right that this offence can do great harm by removing anonymity; it can cause considerable distress and often psychological damage as well. Increasing it to a two-year maximum on indictment or 12 months on summary conviction is a sensible change to the law, which we support.
Amendment 197 would add
“the abduction, sexual assault, and murder of a person”
to the offences in Schedule 21 to the Sentencing Code for which a whole-life sentence is a starting point. I take it to mean that the whole-life sentence would be a starting point if all three elements were present: the abduction, the sexual assault and the murder.
Lord Marks of Henley-on-Thames (LD)
The only reason I make that point is that there was a misunderstanding—not inherent in the noble Viscount’s speech, but that might have arisen from his speech—where he talked of sexual assault as being a very varied offence; of course it is, but here it is combined with abduction and murder.
I think the starting point argument made by the noble and learned Lord is valid because the starting point applies on the statute if the court considers that the seriousness of the offence, or a combination of the offence and one or more offences associated with it, is exceptionally high. It is only a starting point: it does not mean that judicial discretion is removed or even significantly fettered if particular circumstances applied to make that an inappropriate or unjust sentence. I see no reason why that should not be added to the list, which we already have, of heinous offences for which a whole-life order is a starting point. But I fully agree with the noble and learned Lord that we need to keep whole-life orders to a very restricted class of cases because they are sentences without hope.
Finally, the noble Baroness, Lady Massey, and the right reverend Prelate the Bishop of Derby—whose position was eloquently expressed by the right reverend Prelate the Bishop of Durham in the earlier group—oppose Clause 103 because new Section 321(3B) of the code would permit whole-life orders for those aged 18 to 20. We agree, for all the reasons they gave, and the reason that the noble and learned Lord, Lord Falconer, gave, that that is inappropriate. Whole-life orders should not be imposed in such cases.
Lord Wolfson of Tredegar (Con)
My Lords, this is obviously an important set of amendments. I thank all those who spoke on the arguments put forward. We agree across the Committee that sexual violence is a devastating crime that can have lifelong impacts on victims and survivors. The noble Lord, Lord Marks of Henley-on Thames, used the word, “scourge”. I do not disagree with that. He was also right to say that a change in culture is part of the solution here but also that these crimes have to be punished with sentences that match the severity of the offence.
As the noble and learned Lord, Lord Falconer, said, the group of amendments encompasses a number of such crimes. Let me take each one in turn. I will start with the Amendment 195, which would require the court to impose a minimum custodial sentence of at least seven years for a rape offence committed under Section 1 of the Sexual Offences Act 2003 unless, as stated in subsection (2), there are exceptional circumstances that justify not doing so. I respectfully agree with the noble and learned Lord that there is an important point here. He was making, it is fair to say, substantially the same point that I was making to the noble and learned Lord, Lord Judge, about the roles of Parliament and the courts. Just as the noble and learned Lord, Lord Falconer, has nothing but respect for the courts and judges, so do I. I should also say that my wife is a judge but she does not come anywhere near to sentencing anybody, so perhaps I do not have to make that declaration.
We agree on the principle that there are some cases in which it is right for Parliament to set out a minimum sentence with an exception, and other cases where it is appropriate to have greater judicial discretion. The real question is how we respond to each case, bearing in mind the scope of the sentences available to the sentencing judge.
Against that background, we have to remember that the maximum penalty for rape is life imprisonment. Quite rightly, rape offenders already receive significant sentences. I remind the Committee that in 2020, the average—I underline “average”—custodial sentence given to adult offenders for a Section 1 rape offence, where the victim was 13 or over, was almost 10 years. That represents an increase of almost 15% over the past decade. Also in 2020, over two-thirds of those offenders received a custodial sentence of over seven years.
Also, in certain circumstances, where offenders are convicted of a repeat serious sexual offence, including rape, the law already provides for a minimum sentence of life imprisonment. I should underline that the original offence, when we are talking about the repeat offence category, may not necessarily have been rape but one of a number of serious sexual and violent offences. In addition, in this Bill, and through legislation in the past year, the Government are ensuring that rape offenders sentenced to over four years must spend two-thirds of their sentence in prison, as opposed to being released at the halfway point.
However, as the noble and learned Lord, Lord Falconer, recognised in his Second Reading speech, it is important that we maintain judicial discretion for the court to consider the facts of the case before it and decide on the appropriate sentence. Perhaps I can provide some support on this point —or perhaps the noble Viscount may give me some support. It is important that, given the complex nature of this offence and the wide range of circumstances the court may need to take into account, we maintain that role for judicial discretion. We may both lack the appellation “learned” but I hope that that does not detract from the strength of the point we are making.
Although the sentence lengths for rape have increased, we have a serious problem. We have long recognised that the decline in the number of effective trials for rape and serious sexual offences is a cause for serious concern. I have said that from the Dispatch Box before. Let me take the opportunity to mention briefly some of the wider action we are therefore taking to support rape victims and improve the way rape cases are handled by all criminal justice partners.
We published the End-to-End rape review on 18 June. This sets out our ambitious plans to improve numbers of rape cases being referred by the police, charged by the Crown Prosecution Service and reaching the court. On 21 July, we published the cross-government Tackling Violence Against Women and Girls Strategy, to help better target perpetrators and support victims of crimes which disproportionately affect women and girls. As to sentencing, the maximum penalty for rape is life imprisonment, and it is already the case that the courts impose significant sentences. For the reasons that I have set out, we believe it is proper that the courts retain discretion to ensure that they can impose the appropriate sentence based on the facts of the individual case.
Turning now to Amendment 197 on the abduction, sexual assault and murder of a person, I read it as the noble and learned Lord intended, that it is all three. The amendment would expand the circumstances where a whole-life order would be the starting point to include cases of murder involving the abduction and sexual assault of a single person. While this Government obviously greatly sympathise and understand the concerns that underpin this amendment, I respectfully disagree with what is proposed. All those convicted of murder already receive a mandatory life sentence. For murders involving sexual or sadistic conduct, the starting point for the minimum term in prison is 30 years. Judges are able to increase or decrease a minimum term from this starting point according to the circumstances and relevant aggravating or sometimes mitigating factors. In addition, and as was demonstrated by the sentencing of Wayne Couzens for the horrific abduction, assault and murder of Sarah Everard, there is also an existing discretion to impose a whole- life order if the seriousness of the individual case is exceptionally high.
We are committed to ensuring that serious sexual and violent offenders serve sentences that reflect the severity of their crime. However, I believe that our current sentencing framework, a crucial component of which is judicial discretion, responds correctly at present to these horrendous cases. The courts can, and indeed do, impose extremely robust sentences where appropriate that fully reflect the gravity of this offending and the appalling—often lifelong—harm that it causes.
As I am on the topic of whole-life orders, I will go slightly out of turn chronologically to address the notice given by the noble Baroness, Lady Massey, and the right reverend Prelate the Bishop of Derby that they oppose Clause 103 standing part of the Bill. Clause 103 makes it possible for people aged 18 to 20 to receive a whole-life order where the crime committed is extremely serious. Clause 103 has to be read together with Clause 102, which expands the range of circumstances where a whole-life order must be the starting point to include the premeditated murder of a child. The current position is that whole-life orders can be imposed only on offenders aged 21 and over. This acknowledges the utmost seriousness of this punishment and its overwhelming effect on an offender’s future. We recognise, however, that there may be some rare cases where it may be appropriate to impose a whole-life order on offenders aged 18 to 20. We propose, therefore, to give judges the discretion to impose a whole-life order on an offender aged 18 or over, but under 21, in those cases.
We have set out an important clarification or criterion for when that sentence would be available. Clause 103(2)(b)(3C) makes it clear that the sentence will be warranted for offenders in the 18 to 20 year-old cohort only where the crime was extremely serious even by the standards of the crimes which would normally attract a whole-life order. We anticipate that this discretion would be exercised rarely. The expectation is still very much that offenders aged under 21 would not receive a whole-life order, but the change will allow judges to impose these sentences for these younger offenders, who are of course still adults, where that is necessary.
Let me turn finally to Amendment 196 which the noble and learned Lord, Lord Falconer, set out. As was stated in the other place, we are sympathetic to the objective of this amendment. The unlawful naming of people whose identity is protected by law ought to be appropriately punished. It is a crime which can have serious consequences and cause serious upset, concern and more.
However, with respect, our view is that the amendment does not go far enough. It is limited to breaches of Section 5 of the Sexual Offences (Amendment) Act 1992. That Act applies where an allegation of a sexual offence is made, and it imposes an automatic prohibition on publishing any material likely to lead to the identification of the complainant. It also covers alleged victims of human trafficking. This amendment would cover those types of victims, but there are many others whose identity is also legally protected, where the existing penalty for breach would be unaffected.
Sometimes the protection is automatic, for example for victims of female genital mutilation and forced marriage, where the breach offence is the same as that in the 1992 Act, or victims, witnesses and defendants under the age of 18 in youth court proceedings, something which I know the noble Lord, Lord Ponsonby, will be familiar with. In addition, reporting restrictions can be imposed at the discretion of a court, for example in relation to underage participants in a Crown Court trial or vulnerable adult witnesses. Since one reason for imposing these discretionary restrictions may be to protect the subject from injury, one should not assume that the discretionary imposition of restrictions is any less serious than the automatic ones.
Contempt of court may overlap with specific breach offences in circumstances where there is a potential impact on the justice process; that would have a two-year maximum. Therefore, we believe there is a strong case for examining this area of law as a whole, rather than amending legislation piecemeal. My right honourable and learned friend the Attorney-General has invited the Law Commission to undertake a review of the law of contempt of court, with particular reference to the interface between that and the criminal law, including the specific breach offences under discussion today. If the Law Commission takes on that task, it would provide a sound basis to look at this area properly and provide some real improvements in the protection the law offers to participants in the criminal justice process.
For the reasons I have set out, I invite the noble and learned Lord to withdraw his amendment and invite the Committee to allow Clause 103 to stand part of the Bill.
Lord Falconer of Thoroton (Lab)
I am obliged to everybody who took part in the debate. There was widespread support around the Committee for the increase in the penalties for the naming of an anonymous complainant. I thought the speech from the noble Lord, Lord Wolfson, was cruel, because it appeared to support it and then talked about the Law Commission. That is years away, so I think we will come back to this on Report. If the Minister would be willing to help me, we could expand the range if he thinks that is appropriate.
In relation to the question of a minimum sentence for rape, as far as the Government are concerned, there is already a minimum sentence of seven years for third Class A drug trafficking offences, a minimum of three years for third domestic burglary and a minimum sentence for offences of threatening with weapons or bladed articles. I am broadly in agreement with the proposition that minimum sentences should be exceptional, but if they are to apply to any case, rape must be the appropriate case.
Lord Falconer of Thoroton
“Duty to inform victims and families of the Unduly Lenient Sentencing Scheme
(1) The Criminal Justice Act 1988 is amended as follows.(2) After section 36, insert—“36A Duty to inform victims and families of the Unduly Lenient Sentencing Scheme The Secretary of State must nominate a Government Department (“relevant body”) to inform victims and their families of their rights under the Unduly Lenient Sentencing Scheme, and such information provided must include the type of sentence and the time limit for application, and advise that applications must be made to the Attorney General.””
Lord Falconer of Thoroton (Lab)
This is about a completely new topic that we have not addressed before, which is the unduly lenient sentence scheme. The scheme allows the Attorney-General to refer to the Court of Appeal a sentence which he or she regards as being unduly lenient. Only the Attorney-General can do it, there is a 28-day period for referral from the date at which the judge has passed the sentence which is impugned by the unduly lenient sentence application, and it applies only to particular identified serious crimes. From time to time, there is a review of which crimes to which it refers, and the crimes have been changed from time to time—always increased, not reduced. It does not apply to the crimes to which it applies if they are tried in the youth court.
One of the great campaigners for change in relation to this is Tracey Hanson, whose son Josh was brutally stabbed to death in October 2015. The person who committed the murder absconded in a private plane, and many years went by before he was finally arrested and charged, convicted of murder and given a life sentence with a minimum sentence of 26 years. Josh’s mother took the view, completely understandably, that this was an unduly lenient sentence. She knew nothing about the unduly lenient sentence scheme until she was told about it on the 28th day. She got in touch with the Attorney-General’s chambers, who said that it was out of office hours and too late to make an application. It would have had to be the Attorney-General who made it, not Tracy Hanson, so the opportunity was completely lost.
Amendment 196A proposes that the Secretary of State for Justice would nominate a government department —almost certainly the CPS—to inform victims and their families of the type of sentence that has been passed, the time limit for an application to be made by the Attorney-General, and that an application by a victim or their family for an increase in the sentence should be made to the Attorney-General, so you do not end up in a circumstance where the victim finds out only at the very last moment that this right exists.
Amendment 196B would allow in very exceptional circumstances the time limit of 28 days which applies to the ULS scheme to be extended. It should be extended only in exceptional circumstances. Those circumstances should include but not be limited to where the relevant body which is obliged to notify the victim or the victim’s family of the existence of the scheme fails to do so. If there was this limited discretion to extend the 28-day period, that would avoid the feeling of injustice that Josh’s mother and the rest of her family experienced.
My Amendment 196C says that, within 12 months from the date upon which the Bill becomes law, the Secretary of State shall undertake a review of the offences to be included within the scope of the ULS scheme to allow consideration of whether other offences should be added. Amendment 196D seeks to render cases tried in the youth court, where they are for one of the index offences, also subject to the ULS scheme. I beg to move.
Baroness Brinton (LD) [V]
My Lords, I am pleased to support the noble and learned Lord, Lord Falconer, on Amendments 196A to 196D, and I thank him for so ably and eloquently presenting the importance of these changes. I am sorry that the noble Baroness, Lady Newlove, has been unexpectedly called away, but, as your Lordships’ House knows, she was the Victims’ Commissioner, and, through her work with victims, she has asked me to say that she is extremely supportive of this group.
I think that most people are aware of the fundamental right in our justice system to appeal a sentence handed down by a judge. Following a sentence hearing, a convicted offender will meet with their lawyer to discuss what comes next and what their rights are with regard to an appeal. This is a fundamental and correct part of our process, and we should hold it in high regard. But what many are not aware of—and this leads me to the necessity of these amendments—is the unduly lenient sentence scheme, which provides the right for anyone to appeal a sentence. This right is of particular importance to the victims of crime and bereaved family members, and the scheme is recognised as a key entitlement in the victims’ code of practice. Operated by the Attorney General’s Office, it provides this fundamental right, which is an important process for victims and bereaved families and can bring comfort and increased confidence in the justice system.
However, as we heard from the noble and learned Lord, Lord Falconer, these rights are not equal in policy or practice, and many victims find themselves learning of their rights by chance, too late or not at all, all of which can have a devastating impact on a victim’s recovery. The scheme, like an offender’s right of appeal, has a time limit of 28 days. This limit provides some assurance for those involved, which we think is important. However, this is where the parity between victim and offender ends, and the amendments tabled by the noble and learned Lord, Lord Falconer, would rectify the problem. While offenders are told of their right to appeal almost immediately following the sentencing, we know that many victims are never informed of their rights at all.
I will briefly tell you about someone who has been denied her rights under this scheme. Claire, a loving mother to a young daughter, was stabbed repeatedly and had her throat slashed by her ex-partner. Thankfully, Claire survived this most horrific of attacks, which was carried out in the presence of her daughter. The offender in the case was arrested and charged, and plead guilty to attempted murder earlier this year. He was handed a life sentence but with a minimum term of just eight years. No justice agency told her of the unduly lenient sentence scheme, and it was only while speaking to Tracey Hanson, whom the noble and learned Lord, Lord Falconer, referred to, that she became aware of it. She spoke to the police about it, and they incorrectly told her that she could not appeal due to the offender having received a life sentence.
The problem is the lack of clarity about this scheme, and the lack of responsibility for telling a victim meant that Claire was unable to request that the sentence be appealed within the 28 days. And so the man who slashed her throat her in front of her young daughter may be released in as little as eight years. We must stop failing victims who bravely come forward to bring offenders to justice and whom we repay with this appalling treatment and injustice.
The revised victims’ code of practice, which came into force in April and codifies the rights and entitlements of victims of crime, assigns this responsibility for informing victims to witness care units. While this is useful and important, it fails to realise that many victims and bereaved family members will have no contact at all with witness care units, leaving many still unaware of their rights. So we must ensure that victims and bereaved families are informed in good time after sentencing, because it is absolutely vital that they are able to use their right to appeal if they so want.
These amendments also seek that the Secretary of State conduct a review of eligibility under the scheme, opening up the possibility of including further serious offences, with the aim of delivering this vital right to more people. Gareth Johnson, MP for Dartford, speaking in the other place, talked passionately of the experience of his constituents: the family of Gemma Robinson, who was brutally beaten by her partner, who was the subject of a restraining order following a previous assault against her. Following this, her partner was arrested and charged with Section 18—grievous bodily harm—an offence recognised under this scheme. Tragically, Ms Robinson took her own life prior to his appearance in court and the charge was reduced to Section 20, malicious wounding. This offence, as it stands, is ineligible for the unduly lenient sentence scheme, so Ms Robinson’s family could do nothing as a sentence of just 3.5 years was handed down.
I thank the London victims’ commissioner, Claire Waxman, and her office for their tireless work in pushing for reform to the unduly lenient sentence scheme. I thank the noble and learned Lord, Lord Falconer, for tabling these amendments and making the possibility of reform a reality. I urge the Minister to support this amendment, not just for those whom the system has failed but for those whom it can stand to benefit in future—those victims and families who feel that in their case justice was not done.
Lord Wolfson of Tredegar (Con)
My Lords, the amendments all refer to the unduly lenient sentence scheme, which is set out in Sections 35 and 36 of the Criminal Justice Act 1988. It allows anyone to ask for certain sentences imposed by the Crown Court to be considered by the law officers where the sentence is felt to be unduly lenient. The law officers—it is ultimately their decision, for reasons I will come back to—may then decide to refer the case to the Court of Appeal. Once it gets there, it is a matter for the Court of Appeal to decide whether the sentence should be increased.
I should underline that it is not a right available to anyone to ask the court to reconsider the sentence. The way the system works is that the request is made to the law officers; their role is to ask the court to increase the sentence. That was set out deliberately and rightly in the scheme. We prosecute in this country in the name of the Crown; we do not have, with very few exceptions, private criminal prosecutions. The instances of the scheme going wrong or people not knowing about it, as we have just heard in the cases of Tracey Hanson and the appalling murder of her son Josh, and the terrible attack on Claire in front of her young daughter, are terrible to hear about. One can only imagine the consequences for those families.
I therefore understand the motivation behind Amendment 196A. It is critical that victims, prosecuting authorities and members of the public are aware of the ULS scheme. I heard the noble Baroness, Lady Brinton, talk about a lack of clarity. She quite rightly referred to the revised Code of Practice for Victims of Crime, or the victims’ code—I am grateful to her for doing so—which came into force on 1 April this year. It provides victims with the right to be informed about the existence of the scheme and includes, as we heard, a requirement for the witness care unit to inform victims about the scheme promptly when sentencing takes place. In addition, the Crown Prosecution Service references the scheme in its leaflet entitled Information for Victims. There is provision in place to ensure that victims and their families are informed of the scheme.
It is not the case that it is left to victims or bereaved families to contact the law officers. The Crown Prosecution Service can and does make requests directly to the Attorney-General for cases to be referred to the Court of Appeal in instances where the prosecuting authority considers the sentence to be unduly lenient. Those requests are considered by my right honourable and learned friend the Attorney-General in the way that she considers all such requests. While I understand the motivation behind Amendment 196A, I suggest that it is not required.
Lord Falconer of Thoroton (Lab)
I express my gratitude to the noble Baroness, Lady Brinton, and, through her, to the noble Baroness, Lady Newlove, for their support on these amendments. I also thank the Minister for his careful reply.
Again, very briefly, it is disappointing that, in relation to whether there should be a duty on the Secretary of State to get a government department to be under a duty to tell victims of the possibility of going to the law officers, the Minister’s answer was that the witness care units have a code of practice that tells them they should do that, and it is in a pamphlet produced by the CPS. With respect, I take the noble Lord to be accepting that somebody should tell them. If we really want that to happen, we should impose a duty on the Secretary of State to do that. So I am not sure that we are necessarily at odds on the outcome, but I think that, if one is serious about it, this is the way to do it.
In relation to the time-limit point, the defendant can have his time extended, which brings a degree of uncertainty to victims. In my respectful submission, there should be a similar parity of protection for the victims who wish to question the sentence. Again, there can be limits on that exception, and I am more than happy to entertain any limits that the Minister thinks should be put in—but there must be some means of extending it because of justice.
In relation to the other two, I do not think that I can achieve much by referring to them, except to confirm that my intention in relation to Amendment 196D was to deal only with offences that would otherwise be subject to it in the adult court.
I beg leave to withdraw the amendment.
Lord Wolfson of Tredegar
Member’s explanatory statement
This provides that the longer period before release for sentences within new section 244ZA(4) of the Criminal Justice Act 2003 will apply only in relation to offences that were punishable with life imprisonment at the time of sentencing (not offences that are later made so punishable).
Lord Wolfson of Tredegar (Con)
My Lords, this is a drafting amendment to Clause 107. Its purpose, as I hope has been explained, is to prevent a prisoner who is serving a sentence for an offence which, at the time it was imposed, did not carry a maximum penalty of life imprisonment, having their release date changed retrospectively from the half-way to the two-thirds point.
Such an offender should not be made subject to the two-thirds release provisions of Clause 107 should the maximum penalty for their offence be increased to life at a later date, after they were sentenced. Let me give an example that I hope the Committee will find helpful. An offender is sentenced for an offence that currently carries a maximum of 10 years’ imprisonment. They receive an eight-year determinate sentence. That sentence is not caught by the two-thirds release requirements because the offence does not carry a maximum penalty of life imprisonment, so the offender is given a half-way release point. Now let us assume that, three years later, the Government increase the maximum penalty for that offence to life imprisonment. Without this amendment, the offender would have their release point retrospectively amended from the half-way to the two-thirds point of the sentence.
That was not the intention of Clause 107, and it is important that we correct this now. With this amendment, Clause 107 is future-proofed appropriately and as intended. It applies to those sentenced for offences that are increased to a life maximum in the future, but applies only to those sentenced after that increase in the maximum sentence becomes law. The amendment will ensure a fair and consistent approach to such offences. For those reasons, I beg to move this amendment.
Lord Marks of Henley-on-Thames (LD)
My Lords, we support these amendments. It is obviously right to remove the retrospection and we congratulate whoever spotted the anomaly and brought the amendments to the Committee.
Lord Wolfson of Tredegar
Member’s explanatory statement
This provides that the longer period before release for sentences within new section 244ZA(5) and (6) of the Criminal Justice Act 2003 will apply only in relation to sexual offences that were punishable with life imprisonment at the time of sentencing (not offences that are later made so punishable).
Lord Carlile of Berriew
“Power to refer high-risk offenders to High Court for consideration of referral to Parole Board in place of automatic release
(1) The Criminal Justice Act 2003 is amended in accordance with subsections (2) to (10).(2) In section 243A (release of prisoners serving sentences of less than 12 months), after subsection (2) insert—“(2A) Subsection (2) does not apply if—(a) the prisoner’s case has been referred to the High Court or the Board under section 244ZB, or(b) a notice given to the prisoner under subsection (4) of that section is in force.” (3) In section 244 (general duty to release prisoners), after subsection (1) insert—“(1ZA) Subsection (1) does not apply if—(a) the prisoner’s case has been referred to the High Court or the Board under section 244ZB, or(b) a notice given to the prisoner under subsection (4) of that section is in force.”(4) After section 244 insert—“244ZB Referral of high-risk offenders to High Court in place of automatic release(1) This section applies to a prisoner who—(a) would (but for anything done under this section and ignoring any possibility of release under section 246 or 248) be, or become, entitled to be released on licence under section 243A(2), 244(1) or 244ZA(1), and(b) is (or will be) aged 18 or over on the first day on which the prisoner would be so entitled.(2) For the purposes of this section, the Secretary of State is of the requisite opinion if the Secretary of State believes on reasonable grounds that the prisoner would, if released, pose a significant risk to members of the public of serious harm occasioned by the commission of any of the following offences—(a) murder;(b) specified offences, within the meaning of section 306 of the Sentencing Code.(3) If the Secretary of State is of the requisite opinion, the Secretary of State may refer the prisoner’s case to the High Court.(4) Before referring the prisoner’s case to the High Court, the Secretary of State must notify the prisoner in writing of the Secretary of State’s intention to do so (and the reference may be made only if the notice is in force).(5) A notice given under subsection (4) must take effect before the prisoner becomes entitled as mentioned in subsection (1)(a).(6) A notice given under subsection (4) must explain—(a) the effect of the notice (including its effect under section 243A(2A), 244(1ZA) or 244ZA(3)),(b) why the Secretary of State is of the requisite opinion, and(c) the prisoner’s right to make representations (see subsection (12)).(7) A notice given under subsection (4)—(a) takes effect at whichever is the earlier of—(i) the time when it is received by the prisoner, and(ii) the time when it would ordinarily be received by the prisoner, and(b) remains in force until—(i) the Secretary of State refers the prisoner’s case to the High Court under this section, or(ii) the notice is revoked.(8) The Secretary of State—(a) may revoke a notice given under subsection (4), and(b) must do so if the Secretary of State is no longer of the requisite opinion.(9) If a notice given under subsection (4) is in force and the prisoner would but for the notice have become entitled as mentioned in subsection (1)(a)—(a) the prisoner may apply to the High Court on the ground that the prisoner’s release has been delayed by the notice for longer than is reasonably necessary in order for the Secretary of State to complete the referral of the prisoner’s case to the High Court, and (b) the High Court, if satisfied that that ground is made out, must by order revoke the notice.(10) At any time before the High Court disposes of a reference under this section, the Secretary of State—(a) may rescind the reference, and(b) must do so if the Secretary of State is no longer of the requisite opinion.(11) If the reference is rescinded, the prisoner is no longer to be treated as one whose case has been referred to the High Court under this section (but this does not have the effect of reviving the notice under subsection (4)).(12) The prisoner may make representations to the Secretary of State about the referral, or proposed referral, of the prisoner’s case at any time after being notified under subsection (4) and before the High Court disposes of any ensuing reference under this section.But the Secretary of State is not required to delay the referral of the prisoner’s case in order to give an opportunity for such representations to be made.(13) Upon hearing a reference, the High Court must determine whether the prisoner would, if released, pose a significant risk to members of the public of serious harm occasioned by the commission of an offence under subsection (2) and either—(a) allow the Secretary of State’s reference, or(b) dismiss the Secretary of State’s reference.(14) If the High Court allows the Secretary of State’s reference, the Secretary of State must refer the prisoner’s case to the Parole Board.(15) If the High Court dismisses the Secretary of State’s reference, section 243A(2), 244(1) or 244ZA(1), as applicable, of the Criminal Justice Act 2003 applies to the prisoner.244ZC Proceedings following reference under section 244ZB(1) This section applies to a prisoner whose case has been referred to the Parole Board under section 244ZB.(2) If, in disposing of that reference or any subsequent reference of the prisoner’s case to the Board under this subsection, the Board does not direct the prisoner’s release, it is the duty of the Secretary of State to refer the prisoner’s case to the Board again no later than the first anniversary of the disposal.(3) It is the duty of the Secretary of State to release the prisoner on licence as soon as—(a) the prisoner has served the requisite custodial period, and(b) the Board has directed the release of the prisoner under this section.(4) The Board must not give a direction under subsection (3) in disposing of the reference under section 244ZB unless the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.(5) The Board must not subsequently give a direction under subsection (3) unless—(a) the Secretary of State has referred the prisoner’s case to the Board under subsection (2), and(b) the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.(6) For the purposes of this section, the “requisite custodial period” means the period ending with the day on which the prisoner would have become entitled as mentioned in section 244ZB(1)(a).”(5) In section 246(4) (exceptions from power to release early subject to curfew), after paragraph (f) insert— “(fa) the prisoner’s case has been referred to the Board under section 244ZB,(fb) a notice given to the prisoner under subsection (4) of that section is in force,”.(6) In section 255A(2) (duty to consider suitability for automatic release following recall of certain prisoners) (as amended by the Counter-Terrorism and Sentencing Act 2021), for “or a serious terrorism prisoner” substitute “, a serious terrorism prisoner or a prisoner whose case was referred to the Board under section 244ZB”.(7) In section 255C(1) (prisoners whose release after recall is not automatic), for the words from “who” to the end substitute “—(a) whose suitability for automatic release does not have to be considered under section 255A(2), or(b) who is not considered suitable for automatic release.”(8) In section 260(5) (powers and duties of Secretary of State that continue to apply to prisoner removed from prison pending deportation), after “244,” insert “244ZB,”.(9) In section 261(5)(b) (application of release provisions to returning deported prisoner), after “244,” insert “244ZC,”.(10) In section 268(1A) (meaning of “requisite custodial period” in Chapter 6 of Part 12), after paragraph (c) insert—“(ca) in relation to a prisoner whose case has been referred to the Parole Board under section 244ZB, the requisite custodial period for the purposes of section 244ZC;”.(11) In Schedule 1 to the Crime (Sentences) Act 1997—(a) in paragraph 8(2)(a) (provisions relating to release continuing to apply to prisoner transferred from England and Wales to Scotland), for “, 244,” substitute “to”;(b) in paragraph 9(2)(a) (provisions relating to release continuing to apply to prisoner transferred from England and Wales to Northern Ireland), for “, 244,” substitute “to”.(12) In section 128 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (power to alter test for release on licence at direction of Parole Board)—(a) in subsection (2), after paragraph (b) insert—“(bza) a prisoner whose case has been referred to the Parole Board under section 244ZB of the Criminal Justice Act 2003 (power to refer to Parole Board in place of automatic release),”;(b) in subsection (3), before paragraph (ab) insert—“(aaa) amend section 244ZC of the Criminal Justice Act 2003 (proceedings following reference under section 244ZB of that Act),”.”
Lord Carlile of Berriew (CB)
My Lords, this amendment stands in my name and the names of other noble Lords. In one way, this amendment is modest, although I regret that it is not modest in length. Indeed, I think it is the longest amendment on the current Marshalled List, winning that dubious honour, by only a short head, over Amendment 259C tabled by the noble Lord, Lord Marks of Henley-on-Thames.
Our amendment leaves intact the legislative intention of Clause 109 to provide a safeguard against the early release of a prisoner serving a determinate sentence who presents a significant risk to members of the public. The amendment’s less modest intention is, quite simply, to preserve the separation of powers—not to give a Secretary of State the power to in effect change and lengthen sentences. It transfers the initiation of the safeguard that is sought from the Executive to the judiciary. It will enable a full hearing of the facts before a prisoner has their case referred to the Parole Board. A Secretary of State who is using this power appropriately has absolutely nothing to fear from this safeguard. It preserves the necessary separation between an elected politician and an individual prisoner who has been sentenced.
I am grateful to the noble and learned Lord, Lord Garnier, the noble Baroness, Lady Prashar, and the noble Lord, Lord German, for co-signing the amendment. The noble and learned Lord, Lord Garnier, was kind enough to get in touch with me this morning to say that he had a professional engagement elsewhere. I checked that he had not picked up a returned brief in the Virgin Islands from a Member of another place, and I am sure that that is not what happened. I am also particularly pleased that the amendment is tabled with the support of the Sentencing Academy, the Prison Reform Trust and Justice—all highly respected and thoughtful organisations.
At the heart of Clause 109 lies an assessment of dangerousness. The clause is aimed at a small number of prisoners who have been underclassified at the point of sentencing. The scenario cited in the White Paper concerns people who are assessed as presenting a terrorist threat, but who are in prison serving a sentence for a non-terrorism-related offence, and offenders who are deemed to present a significant danger to the public for other reasons but whose offending behaviour and assessment of dangerousness at the point of sentencing did not meet the threshold for a finding of dangerousness. One can think of many examples, but familiar to me because of my interest in terrorism offences is people who have been sentenced for quite mundane crimes but who are radicalised in prison and present a high degree of dangerousness at a time when they otherwise might be released.
Lord German (LD)
My Lords, I have added my name to this amendment not because of its length but because of its importance. The noble Lord, Lord Carlile, has explained exactly the constitutional significance of this matter. Clause 109 as it stands will create a new power for the Secretary of State for Justice to be able to vary, after the imposition of sentence, the effect of a standard determinate sentence for individual prisoners. This provision would empower the Secretary of State to halt the automatic early release of a prisoner if they believed that, if released, the prisoner would pose a significant risk of serious harm to members of the public by committing either murder or a specified offence. Instead of automatic release, these prisoners would be referred to the Parole Board and kept in prison to serve their full sentence if the Parole Board does not deem them safe to release.
The main purpose of this amendment is not to change the action of having a referral but to change where that decision is laid. It is to ensure that decisions about sentencing are taken by the judiciary and not by the politician. Many of us here are politicians, and most of us would regard ourselves as politicians. In that role, when we have taken certain actions it has often been described as political interference. Political interference is of course what this amendment is trying to put to one side. It is to ensure that there is a fair and appropriate hearing and to ensure the strength of the independence of our judiciary and that it retains its ability to make judgments of the kind envisaged in this amendment.
As it stands, the operative actions on the rules on a determinate sentence are to be taken by the Secretary of State. The purpose of this amendment is therefore to uphold the judicial process while still giving effect to the outcome sought in the Bill as presently drafted. It will ensure that there is no inadvertent or intentional political bias that could result in a prisoner serving longer in prison than was envisaged by the sentencing judge.
The division between the Executive, Parliament and the judiciary is a fundamental pillar of our society and should be upheld. At public expense, we send many Members of this House and the other place around the world to try to strengthen the judiciaries in many developing countries. One of the tenets of that work is that there is a strong and independent judiciary. I think it is important that we make sure that we uphold that principle here in Parliament so that we do not move from it.
We are not given an understanding of the tests which will be applied for the Secretary of State to make a direction for a Parole Board hearing. I do not want to start a discussion again about the definition of words, but what are the reasonable grounds? There is no suggestion that the Secretary of State would have to publish the grounds which guide their decision to refer to the Parole Board. We simply do not know what those grounds might be beyond some indications we get in ministerial Statements.
There is a strong incentive for Ministers to say: “There is a public matter here. I can sense that the public are concerned about an issue.” They will then refer it to the Parole Board and the Parole Board would see no political advantage in not referring it and would accept the case as it was given. There would be a momentum for the Secretary of State when matters arose to just simply say that they would be automatically referred.
The effect of this provision in practice will depend heavily on any gatekeeping process before cases are brought to the Secretary of State’s attention. I hope that, when the Minister replies, he will tell us who will be the gatekeeper and what the gate will be like.
The second concern, which the noble Lord, Lord Carlile, has mentioned, is that if prisoners were to be directed by the Parole Board to serve their full term, this would eliminate the ability for such prisoners to transition to community life through the use of licences. The licence provision has been a powerful tool in the rehabilitation process, allowing certain freedoms under supervision. Licences play an important part in transitioning to work and integration into society.
Following due process and limiting arbitrary power are hallmarks of a free society. That is what is at the heart of this amendment, and I ask noble Lords to support it.
Viscount Hailsham (Con)
My Lords, I support the purpose of this proposed new clause. It is highly desirable that there should be a judicial intervention in the process. The arguments of principle have been articulated by the noble Lords, Lord Carlile and Lord German, and so I will not repeat them, but I will make one or two points about the provision in the Bill and the proposed new clause.
First, the noble Lord, Lord Carlile, expressed concern about the circumstances in which the Home Secretary might form the requisite opinion, and set out his reasons; and he was right to. If I may, I will share with the Committee my experience when I was at the Home Office at the back end of the 1980s. I am well aware that the procedure is wholly different, but I have a fear that it will be replicated in this instance.
Lord Falconer of Thoroton (Lab)
My Lords, this is a very interesting proposal. I think we all agree, across the House, that where somebody is entitled to automatic release at half or two-thirds of their sentence, if there is proper material from which the conclusion can be reached that the defendant poses a significant danger to the public, then the automatic release date should not apply, and presumably the defendant should then be kept in prison until the end of the nominal sentence. As the Bill is currently drafted—putting it shortly—if there are reasonable grounds for the Secretary of State to believe that the defendant might pose such a risk, the Secretary of State can refer it to the Parole Board to decide.
What the noble Lord, Lord Carlile of Berriew, wants is that, if the Secretary of State forms that view, he or she should refer the decision to the High Court. The High Court would then make a determination on the substance of the issue: whether the prisoner constitutes a danger. The noble Viscount, Lord Hailsham, called it a drafting point, but as I understand the drafting here, if the High Court forms the view that the prisoner does constitute such a danger, the High Court does not determine whether or not the prisoner is released but refers the matter to the Parole Board. In his opening speech on the amendment, the noble Lord, Lord Carlile, said he believes that the operative decision should be made by the Parole Board, not the High Court.
Necessarily, that ends up with a situation where what the High Court is deciding, one way or another, is whether there are proper grounds for the Secretary of State’s belief that the prisoner may pose a risk. It would be necessary to amend the amendment to say that, because otherwise the operative decision is plainly being taken by the High Court, not the Parole Board—and the noble Lord, Lord Carlile, wants the decision to be taken by the Parole Board, which I understand. Once you get to that point—namely. whether there are proper grounds for the Secretary of State’s belief—then it is judicial review, so I am not sure what is added by this proposal.
I do not wish to give away any secrets, but I am sure there are Secretaries of State who, under press or political pressure, would refer such a decision to a body with the power to determine whether or not somebody should be released at the automatic release date. Whether the reference is to the Parole Board or to the High Court, honestly, Secretaries of State will still be guided by political considerations. As far as the Secretary of State is concerned in the notional example given, if they want to make a political point they will refer it to whoever the statute says they should, irrespective of their precise state of knowledge, for political reasons. The noble Viscount, Lord Hailsham, and the noble Lord, Lord Carlile of Berriew, are saying that they will be pushed into it by politics. Well, under his amendment, they will be pushed into referring it to the High Court, and under the Minister’s position they will be pushed into referring it to the Parole Board, which is where the noble Lord, Lord Carlile of Berriew, wants it to end up anyway.
I am not sure that this amendment achieves much, as it pushes you back into judicial review, which is where we are already. I am sympathetic to the position adopted, but—I put this advisedly—if the noble Lord, Lord Carlile of Berriew, was willing to put his money where his mouth is, surely the end point should be that the High Court decides. That would provide a much more effective safeguard. This does not quite get there.
Lord Wolfson of Tredegar (Con)
My Lords, we have had a very interesting debate. The last few speeches have highlighted the problems with the approach that I was going to set out. In short, where we end up on this amendment is, in effect, the High Court taking the decision and not the Parole Board. I shall come back to the “would” point made by my noble friend Lord Hailsham, which I was going to make as well and is absolutely right.
The amendment would require the Secretary of State first to refer high-risk offenders to the High Court. They could then be referred to the Parole Board only with the court’s approval. That is the structure that we are dealing with. The structure in our clause is that the Secretary of State refers directly to the Parole Board. If referral to the High Court is put in as an intermediate process, it would mean two things. First, the High Court may reject the referral from the Secretary of State if it did not agree that the offender would pose a risk of serious harm. My concern is secondly that, if the High Court did consider that the offender would pose a risk of serious harm, it would roll the pitch in a very serious way for the Parole Board.
I therefore have concerns about both the necessity and the benefit of involving the High Court in this process, but nothing I am going to say is intended to undermine two points on which I agree with the noble Lord, Lord German; first, on the importance of due process and, secondly, that we should limit arbitrary power. I suggest that the court does set out due process and limits arbitrary power.
The important point to bear in mind is that the new power is not a re-sentencing exercise. It is not the Secretary of State extending the detention of the prisoner. I fully accept the point made by the noble Lord as to the important boundary between Secretary of State and judge, between Executive and judiciary. I also want to have a strong and independent judiciary; I believe we do. That principle is not contravened by this clause, because it is the independent Parole Board that will make the final decision as to whether an offender is safe to be released early. The Secretary of State has the power to make a referral, but he or she must have a sound basis for doing so and must give the prisoner notice, which must include the grounds for making the referral and give the prisoner the opportunity to make representations to the Secretary of State.
As for the criteria in play, we will closely monitor and record how the power is used. We will publish a policy which clearly outlines the threshold that must be met and the principles which will underpin the Secretary of State’s decision-making procedure in determining whether to refer a case to the Parole Board.
Lord German (LD)
That was a good statement of intent. When do the Government expect to be able to produce that? Would it be before we have concluded this Bill, so we will know where we are going with it?
Lord Wolfson of Tredegar (Con)
I do not want to give an incorrect answer to the noble Lord. I know that there are different codes of practice and different sets of procedures in various parts of the Bill. Can I get back to him in writing on that point, so that the Committee knows where it is before Report?
Viscount Hailsham (Con)
On a related point—the obligation on the Secretary of State to give reasons—how detailed should those reasons be? Will there be some published code which ensures that the Secretary of State complies?
Lord Wolfson of Tredegar (Con)
I have said that we will publish the principles which underpin the Secretary of State’s decision. The other point that I make in this regard, which goes to the adequacy of reasons point—it was touched on by the noble and learned Lord, Lord Falconer, with his experience—is that judicial review of the Secretary of State’s decision would be available. My noble friend will be aware from the case law as to the relevance of reasons in a case where the decision can be challenged by way of judicial review.
In light of what I have said, I hope that the Committee will appreciate that this mechanism, which we expect to be used only in rare instances, will prevent the automatic release of offenders whose risk becomes apparent only after they have been sentenced.
Let me make one point. I apprehended at certain points in the discussion that there was perhaps a misapprehension, which I should clear up: that one could detain the prisoner beyond the end of the sentence as handed down by the court. We are not talking about that. To be clear, we are talking about the period between the automatic release point and the end of the sentence.
Lord Carlile of Berriew (CB)
My Lords, I am very grateful to those who have intervened in this debate. I pay particular tribute to the noble Lord, Lord German, who has had the courage to climb on to the head of the pin occupied by a number of broad-shouldered and big-elbowed lawyers. He made some very good points in doing so, particularly his straightforward point about the gatekeeping role that we say in this amendment should be carried out by the High Court.
I thank the noble Viscount, Lord Hailsham. I was around in the other place in the heady days when he was a Minister at the Home Office. I suspect that his experience of the Home Office as he described it was as instructive as such experience would be today. What is required in these cases is a clear exercise of judgment before they reach the Parole Board, fully expressed and in a justiciable way. A lot has been said about the adequacy of reasons in relation to this issue. I think we are all agreed—certainly, the noble and learned Lord, Lord Falconer, and the Minister agreed—that we are concerned about the adequacy of reasons.
I am puzzled by what the Minister said about the utility of judicial review in these cases. He knows—all those of us who have been in judicial review cases, and some of us have been judges in them, know—that the test of judicial review is not an ordinary merits test; it is not a test of what is right. The test in judicial review, if you are to win, is: would no reasonable Minister have made this decision? It is quite different from the test on the merits which would be applied by the High Court. I will say a word in a moment in answer to points that have been made about the High Court. I say to those who have suggested that judicial review is an adequate remedy—of course, it is a possible remedy—that it does not fit the bill because it does not mean that there will be a merits test with the adequacy of reasons that has been discussed.
The noble and learned Lord, Lord Falconer, is an absolutely excellent and much-admired advocate, at least by me, but like other great advocates is sometimes wrong, and I venture to suggest that he may have been wrong on this occasion. What this amendment argues for is two quite different stages which are carried out without the intervention of the Executive, save to refer a case. The High Court makes the first assessment. I take what was said by the noble Viscount on drafting as something that needs to be considered, so I will just use the present tense: is there a risk that there is a danger of a particular sort? If so, the case is referred to the Parole Board. That is a decision based on the evidence, on merits, after a proper hearing. It goes to the Parole Board and a quite different assessment is made, which is the one the Parole Board expertly carries out all the time and is about release provisions—whether a person should be released or detained in custody.
It has been an interesting debate and I will reflect on what has been said. I will of course reflect on the comments made by the Minister. I am grateful to him for analysis, which naturally merits further thought, but for the time being I beg leave to withdraw the amendment.
Police, Crime, Sentencing and Courts Bill
Monday 15th November 2021
(2 years, 5 months ago)
Lords ChamberRead Full debate Police, Crime, Sentencing and Courts Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 40-IX Ninth marshalled list for Committee - (15 Nov 2021)
Lord Blunkett
“Review of the arrangements for the resettlement and supervision of prisoners serving sentences of IPP: effectiveness
(1) Within six months of the passing of this Act, the Secretary of State must lay a report before both Houses of Parliament on the effectiveness of the arrangements for the resettlement and supervision of prisoners serving sentences of imprisonment for public protection (“IPP”) released on licence.(2) The report must include, but not be limited to—(a) an assessment of the factors underlying the rates of breach and recall of prisoners serving sentences of IPP released on licence, and what could be done to address them, including—(i) the effectiveness of the arrangements for the preparation of prisoners serving sentences of IPP to be released on licence, including the adequacy of information and guidance for prisoners on licence provisions, breach of licence and the risk of recall;(ii) the adequacy of existing probation service guidance on breach and recall;(iii) whether more use could be made of alternatives to immediate recall to custody including electronic tagging;(iv) the extent to which a failure to properly support and supervise prisoners serving sentences of IPP on release is contributing to the high proportion of this group breaching the terms of their licence and being recalled to prison.”Member’s explanatory statement
This, along with another amendment after Clause 115 in the name of Lord Hunt of Kings Heath, is a probing amendment intended to require a review of the arrangements for the resettlement and supervision of prisoners serving sentences of IPP.
Lord Blunkett (Lab)
My Lords, in moving Amendment 208A with its proposed new clause, I give my wholehearted support to the other amendments which have been laid, to which I have appended my name, and a strong encouragement that we build on the alliance that has been put together. I thank noble Lords and, where they have them, their staff—and mine—for the terrific co-operation that has emerged over recent weeks. I give apologies from the noble and learned Lord, Lord Clarke of Nottingham, who wished to be here but has a medical appointment. Members of this House will recall that the noble and learned Lord was Secretary of State for Justice when the IPP proposal was set aside and the 2012 abolition of that sentence agreed by the two Houses of Parliament.
At the time, I took the late and much lamented Paul Goggins to see the noble and learned Lord, Lord Clarke, to discuss what might be possible as a rapid wind-up of the consequences of the original Act, part of which is my responsibility and which I want to speak about in a moment. The noble and learned Lord has reflected with me on a number of occasions, as he did on that occasion with Paul Goggins, who had been a Prisons Minister and the Minister of State in Northern Ireland responsible for the prison service there, on the massive political challenges in getting agreement. I hope that this afternoon we can take a step in finding a way forward almost 10 years later, when so many prisoners still find themselves subject to the original imprisonment for public protection.
I thank the Prison Reform Trust, the Howard League and many others for their advice. I will take a moment to thank Frances Crook for her many years of dedicated commitment and service in the cause of reform. Frances, who retired at the end of October, will long be remembered as a beacon for her commitment and dedication. But in an area which is so unfashionable and difficult to gain the public’s attention in, you also really need the utmost stalwart tenacity to carry it through. I particularly want to offer my appreciation and thanks to campaigners, individuals and families for their understanding, determination and tenacity, particularly the campaigning group UNGRIPP: Shirley Debono and Donna Mooney have been with me for almost as long as I can remember in trying to put right something which, as I mentioned a moment ago, I had a hand in getting wrong. The remarkable coalition that exists inside your Lordships’ House and outside, should surely give the Government the cover and courage to take steps now that will put wrongs right and ensure that we have a journey—a road to travel—for the future.
I want to refer briefly, because I am aware of the enormous pressure on time for the Bill, to how we got here in the first place. Back in 2003, with the Criminal Justice Act’s provisions on sentencing, we thought—this was held across both Houses at the time—that the steps we were taking would be beneficial rather than ending up with the disaster, let me call it that, which has occurred over those subsequent 18 years. The intention was, first, to put right a wrong which existed with those who were on indeterminate sentences—they were not called that, but that is what they were—who had no route out because the therapies and courses, or the journey as I like to call it, were not present.
For many years I have been trying to help a prisoner called David McCauliffe, who was sentenced for the second time in his life, that time for seven years, and is still in prison. He was sentenced at the end of the 1980s for a crime that undoubtedly created unsafe conditions for the public at the time but fell short of rape or murder. He is still in prison today after 33 years. The longer he has been in, the more difficult it has been for him to show he is safe to be released. Many IPP prisoners find themselves in that position today.
The intention was that there would be a route for those caught in that trap, like David McCauliffe, to find a way forward. At the same time, there have been a number of incidents where people who were known to be unsafe—they had declared their intention to commit further heinous crimes such as kidnap, rape and murder—were allowed out without any clarity as to how their behaviour was going to be monitored, and they were not on licence. That is why, going back to the Halliday report of 2001, the good intention was that there would be mechanisms put in place to supervise and support—I emphasise “and support”—prisoners on release, to provide safety for the public and rehabilitation for those who were safe to be in the community. Both those elements went badly wrong with the IPP sentence.
First, we had not fully agreed with the Treasury for the resources to be put in place from 2005, after I had left the Home Office, which at the time had responsibility for what is now the Ministry of Justice and sentencing. Therefore, the resources were not available, and are still not, to do the job properly for those who needed rehabilitation and preparation for release. Secondly, we had not understood that, because those therapies and courses were not available, it was quite likely that cautious members of the judiciary would take a “safety first” view in applying an indeterminate sentence rather than a determinate sentence, which in some cases would have been a matter of two or three years, in the initial phases, rather than the 10 years plus originally discussed and envisaged. This was not applied as a mandated sentence because of the understandable requirement of the judiciary to have flexibility and be able to determine a sentence without it being laid down by Parliament.
So, here we are all these years on, with two strands having gone very badly, and the lessons that needed to be learned still in front of us today. I do not think any of us could have envisaged the impact—I certainly did not—of the recall provisions which were later strengthened and therefore made more draconian. This has led to a large number of prisoners finding themselves back in prison, sometimes for committing a crime that could be very minor and sometimes for a breach of their licence conditions. Out of the 3,000 people who are still in prison on IPP, 1,300 of them are there because of recalls. That is 100% up from 2016, five years ago. If we are not careful, that trajectory will lead to more prisoners being in prison on IPP on recall than are actually in prison for the original IPP sentence applied, which is a farcical situation and a tragedy for them.
More than 60 clinical and forensic psychologists, psychiatrists and criminologists have written to me, and I hope they will write to the Minister, setting out the trajectory from those early days, where the lack of therapies and courses led to caution and to the inability of prisoners to demonstrate that they were safe to be released; in other words, the failure to put the other mechanisms in place led to prisoners not being able to demonstrate their safety for the community. By not being able to do so, they spent so much more time in prison that the impact of that lengthy sentence and the hopelessness of not having an end date made their emotional, mental and psychological situation worse. The original sentence was supported by those who believed that the right kind of psychological conditions and help were essential to make them safe and, having undermined those conditions, we now have a situation where they are seen as unsafe; in other words, we have gone full circle, undermining the original intentions and, by doing so, having people in prison far beyond what was originally envisaged.
Lord Falconer of Thoroton (Lab)
I commend the speech of my noble friend Lord Blunkett. I agree with every single word of it. I am as culpable as he is in relation to this. I was a junior Minister in the Home Office at the time, and the Lord Chancellor did not foresee the consequences of what the noble and learned Lord, Lord Brown, who I am glad to see in his place, described as
“the greatest single stain on our criminal justice system.”
Our purpose on these Benches is to participate in a coalition of people with a view to persuading the Government to make sensible changes to the regime to get rid of this injustice that the noble and learned Lord, Lord Brown, and my noble friend Lord Blunkett, have referred to. The amendments before the Committee today provide a number of sensible options, but we put them forward, or support them as part of that coalition, with a view to reaching agreement with the Government to do something about them.
I may try the patience of the Committee too much, but I will speak to the amendment to which my name is put, and then I will speak again indicating the Labour Party’s position on the whole range of amendments. The amendments I speak to at the moment, therefore, are Amendments 208A and 208C, which deal with the position in relation to those IPP prisoners who have been released, and what the Government should be doing about them. I add my thanks to those of my noble friend Lord Blunkett to the Prison Reform Trust, which has provided an incredibly valuable briefing to the whole House. I also thank the Howard League for Penal Reform, which has done the same; Frances Crook, who has, over a very long period, provided real guidance to policymakers on these issues; and UNGRIPP, a group of friends and prisoners who have suffered as a result of this regime.
I turn now to the probing Amendments 208A and 208C, which are in my name and that of my noble friend Lord Blunkett. He gave the figures. The basic proposition is that to reduce reoffending, energy and resources need to be devoted to ensuring that IPP prisoners who secure their release are able to live successful lives thereafter, avoiding recall to prison. That is what is best for society and for them. Without this, the current incidence of recall will soon, as my noble friend said, lead to a situation in which the number of people serving the IPP sentence may start to grow rather than decrease. From 30 September 2015 to 30 June 2021, the number of never-released IPP prisoners fell by 61%, from 4,431 to 1,722.
However, at the latest date for which I have figures, which is June 2021, there were 1,332 people back in prison having previously been released—more than double the number of five years ago. Recalled IPP prisoners who were re-released during 2020 have spent an average of 20 further months in prison before re-release. The hopelessness and despair that engenders is incredibly effectively described in the Prison Reform Trust’s report No Life, No Freedom, No Future. Its findings are based on data provided from Her Majesty’s Prison and Probation Service on recalls and re-releases and on interviews with 31 recalled IPP prisoners. A briefing from the Prison Reform Trust said:
“The report found that IPP prisoners’ life chances and mental health were both fundamentally damaged by the uniquely unjust sentence they are serving. Arrangements for their support in the community after release did not match the depth of the challenge they faced in rebuilding their lives outside prison. Risk management plans drawn up before release all too often turned out to be unrealistic or inadequately supported after release, leading to recall sometimes within a few weeks of leaving prison, and for some people on multiple occasions. The process of recall also generated strong perceptions of unfairness.
At its worst, the report found that the system … recalled people to indefinite custody”
for what appeared comparatively trivial matters,
“defined needs (e.g. mental health) as risk factors … ignored the impact of the unfairness of the sentence on wellbeing and behaviour … could not provide the necessary support; and … provided no purpose to time back in custody or a plan for re-release.”
Not all IPP recalled prisoners endured that, but it was common enough to say that the system needed looking at overall. As I indicated, many IPP interviewees suggested that the recall decisions were taken too lightly. At most, 23 of the 31 participants had not been convicted of a subsequent offence when they were recalled.
What to do about it? To prevent the current situation continuing—and I am dealing only with people being recalled—there are basically eight things to do. First, the process for licence review should be automated, and the qualifying period reduced from 10 years to five. That is in line with Amendment 208D. Secondly, the test for recall should be changed. It should be that there is imminent risk of the person committing an offence causing serious harm, and that that risk cannot be managed in the community. For other things, such as not staying at the address named in the conditions, other measures should be thought about—for example, adjusted reporting requirements, use of electronic tags and curfews. Thirdly, where a person has been charged with a further offence, the normal criminal justice processes should apply, with a court considering whether remand in custody is appropriate for the new alleged offence. Fourthly, if a person is convicted of a further offence, the court should decide what happens to that person, not an official. Fifthly, if a person is convicted of a further offence and the court decides to recall them under the provisions of their IPP sentence, the Parole Board should be required to consider release alongside any considerations of discretionary release that attach to the new sentence—for example, an extended determinate sentence. Sixthly, IPP prisoners who have been recalled, not having received a new custodial sentence and not being re-released on the papers by the Parole Board, should have the right to an oral hearing if they so wish. Seventhly, if the Parole Board panel upholds the decision to recall, it must set a fixed date for a further review. Eighthly, all recalled prisoners should be entitled to annual reviews of their continued detention at an oral Parole Board hearing with free legal representation.
We, on this side of the Committee, are very much aware that proper measures need to be in place to provide public protection, but that has to be balanced against a system where once people on IPP are released, they are not recalled except when something significant has happened and there is proper and serious support. I commend these amendments to the Committee.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, first, I commend, as others have, all those who have, in recent times, been building the road on which we are set today—none more so than the noble Lord, Lord Blunkett. For many years, I have urged, with no success thus far but with great hopes today, the reform of what remains of the IPP sentencing regime. It is in no way hyperbole to describe it, as I already have, as the greatest single stain on the justice system. Indeed, it is a deeper, growing stain because of the situation with the recalls.
Baroness Burt of Solihull (LD)
My Lords, I support all the amendments in this group, but, for the sake of brevity, I will specifically address Amendments 208B, 208G and 208H, which stand in my name. Like the noble Lord, Lord Blunkett, I add my thanks to all the organisations and charities that have helped us so assiduously and briefed us.
In January this year, a young woman on an indeterminate sentence wrote to me. I will call her Ella; I will not use her real name to preserve anonymity. I said that Ella was a young woman: she was 25 when she first went to prison in 2007. Her tariff expired in 2010, but 11 years past that date, she was still in prison. She was at the time she wrote waiting for a parole assessment in April, by which time she would be 39.
I wrote back to her and said that I was not willing to take up individual cases, but, having read her story, I would address the issue if suitable legislation came along. That is why I am here today. I am here for Ella and the more than 3,000 people still languishing in prison under the provisions of this law, despite the IPP sentence having been abolished nearly 10 years ago.
I wrote to her a few weeks ago to tell her that I was going to raise the matter of IPP sentences under the Bill, but I received no response, which was odd. Having contacted the authorities at HMP Bronzefield, I was told that Ella had been released, but recalled because she had
“failed to attend an Approved Premises at a specific date and time as directed.”
She was therefore back in prison awaiting another Parole Board hearing—a yo-yo process which happens to the majority of IPP prisoners.
To be released they have to jump through hoops, in the form of various training courses—when those courses become available—but if they do not show a sufficiently positive response, they are not deemed fit to be released anyway. It quite reminds me of something by Kafka, or perhaps Catch-22. When the Parole Board in its wisdom decides an IPP prisoner is fit for release, if they infringe their conditions, such as by failing to attend an approved premises at a specific time and date, they can be hauled back to prison to start the whole thing all over again.
Indeed, the situation for IPP prisoners is often much bleaker than for lifers. We heard from the noble and learned Lord, Lord Brown, about some of the statistics. The biggest group of IPP prisoners still incarcerated today received tariffs of only two to four years. Some 96% of IPP prisoners are still in prison, after their tariff has expired. Their rate of self-harm, as we have already heard, is double that of lifers. It is a form of modern-day torture, fuelled by a constant sense of anxiety, hopelessness and strong feelings of injustice and alienation from the state. You would feel like that too, wouldn’t you?
Even when they have been released on licence, there is a constant sword of Damocles hanging over their and their families’ heads—that some contravention might trigger a recall. Because of this constant threat they are fearful of asking for help with problems, and families often bear the brunt of shielding and protecting the ex-prisoner for fear of recall.
That, in a nutshell, is why we need a better system. This one certainly does not work. Through my Amendment 208B, I am trying to suggest ways in which we can start removing the Catch-22 element from inside prison. I am proposing a review to examine the quality, effectiveness and availability of offender behaviour programmes, progression programmes and other opportunities to demonstrate reducing risk to the public; the availability of welfare and mental health support to help redress the damage that the system and the constant powerlessness and uncertainty of being an IPP prisoner creates; and, if and when prisoners have been recalled, the support available to help them pick up the pieces while they face another interminable wait for a Parole Board hearing.
That brings me to the Parole Board. There are many who believe that parole boards are becoming more and more risk-averse, because they conflate the behaviour of some prisoners with the increasing deterioration they experience arising from the treatment they received in prison, not their likelihood of reoffending. Therefore, Amendment 208B describes several measures aimed at improving the parole system and providing better support in the community to facilitate a safer release.
Lord Hunt of Kings Heath (Lab)
My Lords, I shall speak briefly to my Amendment 208C. My noble and learned friend Lord Falconer eloquently introduced it. He took all my best lines—in fact, all my lines—so I will be very brief. This is a very modest amendment. It simply requires a review of the resources and support available for the resettlement and supervision of prisoners serving IPP sentences who are released on licence.
I very much hope the Government will listen to this afternoon’s debate. There is such a powerful force behind these amendments all around the House; it should provide enough cover to the Government to do the right thing. One comes back, time after time, to the comments of the noble and learned Lord, Lord Brown, when he described this situation as the greatest single stain on our criminal justice system. Surely the Government must respond sympathetically to what noble Lords are saying this afternoon.
All I want to do is emphasise what the noble Baroness, Lady Burt of Solihull, said about the Catch-22 situation that applies particularly to those who have been put out on release. First, if those people are honest about the fears and problems they have faced in prison, they can often risk being considered unsafe to be released in the first place. Secondly, if they ask for help with a mental health problem in the community, they could be assessed as being high risk and be recalled to prison. It is an extraordinary situation. If they enter into a new intimate relationship, they do so in the knowledge that an upset partner could make false accusations which would result in recall. How are people meant to live in that situation? As the authors of the Prison Reform Trust report say—it is an extraordinary and moving piece of work—it is hard to imagine how any of us could hold on to our sanity and self-belief in this situation. I plead with the Government to take note and be sympathetic to the plight of these people.
Lord Moylan (Con)
My Lords, I shall speak to Amendment 208D in my name. I am grateful to the noble Lords who have lent it their support.
At Second Reading, I said that I considered it a shame to this country that there were still prisoners serving indeterminate sentences for the public protection. I do not propose to elaborate on this today, although I associate myself with the remarks made by noble Lords in the debate so far.
Some amendments in this group are probing amendments, but Amendment 208D seeks to change the law in a way which is helpful to the Government. It does not concern those in prison under an IPP, only those living in the community on licence; that is, those who have already been found by the Parole Board to be safe for release without presenting a threat to public safety. As noble Lords have described, currently these persons are potentially subject to a lifelong licence. They can be recalled to prison for a breach of the licence conditions at any point while the licence is in force. The only way in which the licence can be terminated is for the individual to apply to the Parole Board for a licence review after the expiry of the qualifying period. This is currently set at 10 years. The Government have stated that, in future, they wish these reviews to be automatic, and not to require an application from the prisoner.
On 21 July, in response to a Question for Written Answer from the noble Lord, Lord Blunkett, my noble friend Lord Wolfson of Tredegar said:
“From September this year, officials will refer automatically to the Parole Board the case of every offender serving the IPP sentence who has become eligible to apply for termination of his/her IPP licence.”
There is a problem. Close examination of the current legislation makes it clear that the review can be undertaken only on the prisoner’s application. Therefore, the Government cannot make an automatic referral to the Parole Board without the prisoner’s active co-operation. This somewhat holes the policy of automaticity. Amendment 208D addresses this deficiency by amending the Crime (Sentences) Act 1997 to require the Secretary of State to make an automatic referral to the Parole Board at the end of the qualifying period. If the application is dismissed, it can be made annually thereafter. The referral does not depend on the acquiescence or collaboration of the prisoner. It allows the Government to do what they have said they want to do. I hope the amendment will command their support. It does not prejudge in any way the decision of the Parole Board on that referral. The decision as to whether or not to terminate the licence remains entirely in its hands.
Noble Lords may wonder why a prisoner entitled to a review at the end of the qualifying period should be slow to make one on his or her own initiative; in other words, why is there a need for automaticity? It certainly seems strange not to apply for a termination of the licence. As noble Lords have explained, a person on licence under an IPP and who commits an offence for which an ordinary criminal might receive a short determinate sentence can be recalled to prison for an indeterminate term.
None the less, there are reasons why IPP prisoners do not apply for a termination of their licence. First, many do not know what the qualifying period is, nor what it means. Nobody is obliged to contact them to tell them. There is evidence of confusion, even among probation officers, as to the rules. In any event, many prisoners out on licence will not be in regular contact with a probation officer, since, although the licence lasts for a minimum of 10 years under the current system, supervision can be terminated after five. Many IPP prisoners out on licence after that many years simply do not want to take the risk of re-engaging voluntarily with a criminal justice system which they believe has treated them so unfairly. Automaticity is good and necessary. The Government agree and I hope this amendment will pass.
There is one more part to the amendment which is easily missed. I referred earlier to a qualifying period after which a review of the licence can be applied for. If this amendment passes, it will take place automatically. The qualifying period is set by law at 10 years. The very last words of the amendment would have the effect of reducing it to five years. As far as I know, this is not government policy. It is, of course, open to my noble friend to accept the part of the amendment dealing with automaticity, while rejecting the reduction in the qualifying period.
I hope that noble Lords will support me in pressing this on the Government. For those IPP prisoners who receive a short minimum term, the 10-year licence period is wholly disproportionate to the term that would have been attached to the equivalent determinate sentence, had one been imposed instead of an IPP. It can hardly be argued that it is necessary for public protection. As I said earlier, under this amendment, the decision whether or not to terminate a licence would remain with the Parole Board. Reducing the qualifying period to five years would simply reduce the length of time after which an individual out on licence would be entitled to a review. These people would be out on licence with the approval of the Parole Board and would have shown themselves to be safe in the community for five years. The number of IPP prisoners out on licence who are recalled after five years is, in any case, very small. Furthermore, the latest available data show that no IPP prisoner committed a serious further offence five years or more post release. Their supervision can be—and often is—terminated after five years.
I believe that everything argues in favour of a reduction in the qualifying period to five years. I hope that the Government will accept this part of the amendment as well. A person in this position—with a track record of living safely in the community for five years—needs the opportunity that we wish for all prisoners: to serve their sentence and return to the community to make a useful contribution to their own and to others’ lives.
Lord Bradley (Lab)
My Lords, I shall contribute very briefly to this group of amendments. I fully support the views already expressed. I will not repeat them. I strongly commend the opening speech by my noble friend Lord Blunkett. He set out clearly the direction of travel which this House wishes to take.
I will speak briefly on Amendment 208B, particularly proposed new subsection (2)(b), which the noble Baroness, Lady Burt, has already eloquently described. It states the need for
“an assessment of the welfare and mental health support available to prisoners”—
still serving an IPP sentence—
“including measures to reduce the risk of self-harm and self-inflicted death”.
I declare my interests in the register as trustee and vice-chair of the Prison Reform Trust. Again, I thank it for the excellent work it has done over a number of years in this area, culminating in the report by Edgar, Harris and Webster, entitled No Life, No Freedom, No Future. I think this sums up the mood of the House this evening.
Lord Garnier (Con)
My Lords, because of the quality and content of the speeches already made this afternoon, I hope I can be quite brief. I begin by declaring an interest as a trustee of the Prison Reform Trust and by commending the report that the noble Lord, Lord Bradley, just mentioned: No Life, No Freedom, No Future, the title of which brilliantly encapsulates the Kafkaesque state of affairs that we see when we consider IPPs. I also briefly thank Frances Crook, the retiring director of the Howard League, for all the work she did and for trying over the years to improve and inform the debate about what goes on in our prisons.
Our prisons are a secret world. When I was a Member of Parliament I once explained to a local journalist that I thought that all prisons should of course have walls to keep the prisoners in and to protect the public from the prisoners. However, all these prison walls should have windows in them so that the public could see in and learn what is being done on their behalf inside these prisons, but also so that the prisoners could see through those windows out into the world and into society, to see that if things went well for them and if their life, educational and employment prospects were improved by what they were doing and learning in prison, there was a world out there waiting to welcome them back. The journalist said, “Have you considered the public expenditure implications of building all these windows in those walls?” It is occasionally possible to lose the will to live when discussing something as complex as the state of our prisons.
Where it is not necessary to lose the will to live is when one listens to the noble Lord, Lord Blunkett, explaining and accepting—very publicly and bravely—that he got it wrong in the early part of his time as Home Secretary. I congratulate him. Most former Home Secretaries—most politicians—spend their post-government life rewriting history. This former Home Secretary has accepted that he got it wrong—I thank him for it—and he is now trying to assist us in getting it right again. I also congratulate the noble and learned Lord, Lord Falconer, on following on that particular train of thought. It behoves all of us in this Chamber, whether we are interested in this subject directly or indirectly, to mend this problem, and it is a problem that needs mending. The noble and learned Lord, Lord Brown, describes IPPs as the greatest stain on our justice system, and he is entirely right. However, it is a stain that we can remove.
I tabled Amendment 208E and have co-signed Amendments208F and 208G, but I could have co-signed any of these amendments. I simply want to see IPPs abolished. I want to see all those who are on IPPs at the moment either released under supervision or transferred to some other form of more humane sentence which gives those people hope, a life, an aspiration of freedom and a future which they can aspire to. At the minute, they are literally hopeless.
Some 14 or 15 years ago, when I was shadow Minister for Prisons in the other place when the Conservative Party was in opposition, I made a point in that job of visiting as many of the prisons in our system in England and Wales as I possibly could. There were then about 140 or 145 institutions—adult male prisons, adult female prisons, YOIs and secure training units—and I think I managed to get to about 70 or 75 of them. On a number of occasions I visited prisons where there were IPP prisoners, and the governors universally said, “This cohort of prisoners is the most difficult to manage because they have no hope.” They did not know when they were going to be released or whether they were going to be there for ever or whether they might be released in a year or two’s time. They had no idea which it was going to be.
One of the reasons I tabled Amendment 208E is that proposed new subsection (2) of that amendment describes the things within prison which are hopeless and entirely damaging to a fair justice system. Amendment 208E is one of several “six month report” amendments—I say in parenthesis that Amendment 208F is the one to go for if we are to do anything of a positive nature this evening. Amendment 208E, along with others of these “six month report” amendments, describes what is wrong with the system as it currently is. It asks
“whether there are sufficient places available for prisoners serving sentences of IPP on offending behaviour programmes”.
No, there are not. It asks
“whether prisoners serving sentences of IPP are able to complete offending behaviour programmes in appropriate time to aid progression milestones such as parole or recategorization”.
No, they cannot do that. You may be queuing up for a course while you are in, let us say, Maidstone Prison, and then you are churned—moved to another prison—so you will go to the back of the queue, or moved to a prison which does not have the relevant people to lead you on that particular course. Your mental and physical health records take months to follow you to your prison, and when they arrive and when the new governor or the new teaching staff of that prison to which you have been sent catch up with your request—guess what? You are moved to a prison in Bristol, Leeds, Liverpool or somewhere else. It is a hopeless state of affairs, and we should have done something about it years ago.
It follows that there are not sufficient places available for prisoners serving sentences of IPP in prisons providing progression regimes, for the practical reasons I have just pointed out. Is there availability of other opportunities for prisoners serving IPP sentences to enable them to progress and demonstrate reduced risk, particularly for those who have completed opportunities afforded to them by offending behaviour programmes and progression regimes? Of course not; it is a shambles—a cruel shambles.
Even on what I call ordinary life sentences, prisoners can do a particular course to demonstrate that, before long, they may become suitable for release on licence. However, if they do them within the first two or three years of their imprisonment, then remain in prison for another 14 or 15 years, all that they may have learned on that course all that time ago has long been forgotten, and all the people who have supervised them in prison have no corporate memory of what prisoner A, B or C learned all those years ago. So when they are reassessed after having completed the tariff, they fail the assessment. Can they get on a course again? Of course not. They are told, “You’ve been on one already. You’ll have to wait your turn, after all the other people”. The simple, practical organisation in our prisons is not fit to cope with this troubled and troubling group of prisoners on IPPs.
I will end on this point. The thing that a convicted defendant on sentence wants to hear is not a moralising judge telling them that they have behaved very badly and must never do it again, but the number—that is, how long they are going inside for. When they are sentenced to an IPP and hear the tariff of two or five or 10 years, that is the number that sticks in their mind among all the noise and clatter that is going on in their heads and in the courtroom. It is only when they get into the prison van—the sweat box—or get to the prison for their first reception that it dawns on them that the sentence does not mean two years; it means for ever unless they can do something to help themselves. Of course, because of the lack of availability of the factors that I have just addressed, it is almost impossible for that prisoner to help himself to improve, to see some chance of release and to come out as a better citizen again.
This obscenity must now end. I am sure that my noble friend the Minister and his government colleagues have it within them to do that, and I am sure that they will.
The Lord Bishop of Gloucester
My Lords, I add my voice to those who have already spoken in favour of these amendments. I declare my interest as Anglican Bishop to Her Majesty’s Prisons.
All the detail I was going to mention has already been carefully and expertly explained; again, I pay tribute to the organisations that have been named, including the Howard League, the Prison Reform Trust and UNGRIPP, for their excellent briefing reports and research. It resonates strongly with all the conversations I have with people in prison and family members who write to me or send me emails. The thing I am struck most by is the sense of hopelessness; many noble Lords have mentioned that. I am a proud patron of Prison Fellowship, whose motto is:
“We believe no one is beyond hope.”
We really need to listen to that in this debate.
The indefinite IPP licence goes against all the evidence about what enables people to move away from offending. As we have heard, people need to feel hopeful about their future. They need to have a plan to work at. As we have heard, the IPP licence stops people being able to look forward to a different future. It disrupts relationships and breeds anxiety, despair, hopelessness and alienation. Much more could be said, but I think it has all been said; I am heartened by the strength of feeling so apparent in your Lordships’ House.
I agree that this Bill provides a timely opportunity to address this enormous injustice of IPP sentences. I stand with those seeking to make these changes.
Baroness Chakrabarti (Lab)
My Lords, it is a privilege to follow the right reverend Prelate and precede, I think, the noble Lord over there. I just want to say, it all may have been said, but not by me. None the less, I will be brief because—it is not often I feel like saying this—it has been an absolute privilege to listen to today’s debate. Every point of morality, sensible practice and detail on this compelling menu of amendments has been made.
I want to make the briefest of pleas to the Minister, who has been a distinguished commercial barrister for many years; I, by contrast, have been a humble student of the miserable world of justice and home affairs. I also want to make a political point, of all things, in a debate that has been so rarely elevated above politics. I believe that today presents the beginning of an historic opportunity in our politics in this country. For most of my adult life—indeed, pretty much all of it—we have been embroiled in an arms race, particularly around incarceration, that has put us on a path which is more like the American one than a sensible path from anywhere else, let alone the path we might be on. How often do you hear someone of the stature of my noble friend Lord Blunkett say, “This was a mistake. Hands up; it is a fair cop. I am offering a bipartisan hand to help set this right”? I have not heard anything like that in justice and home affairs in my time as a student of these issues.
What is more, this is about rectifying a mistake that the Minister’s party already accepts was a mistake; that is why these sentences are no longer available to new offenders. The Minister, his party and his Government ought to be half way—indeed, three-quarters of the way—there already, in rectifying what my friend, the noble and learned Lord, Lord Brown of Eaton-under-Heywood, called “the great stain”. We are so close. The Minister has an historic opportunity to begin to put this right. How often does an opportunity like that come about? The point about this stain is that it is wrong in itself, and it is terrible for all those hopeless people whom the noble and learned Lord, Lord Garnier, the noble Baroness, Lady Burt, and other noble Lords mentioned. It is also a symbol of both injustice and the arms race I mentioned. That is why this opportunity is so precious and important.
It is ever harder to justify an unelected second Chamber—your Lordships’ House—nearly a quarter of the way into the 21st century but, if the Minister listens to the debate and does not slam the door closed to reason, today might just be enough for the moment.
Lord Ramsbotham (CB)
My Lords, I strongly support all the amendments in this group, not least because the cause of prisoners serving indeterminate sentences has been languishing ever since such sentences were formally abolished by LASPO in 2012.
I commend the tireless work of my noble and learned friend Lord Brown of Eaton-under-Heywood on their behalf. For nearly 27 years, since my first inspection as Chief Inspector of Prisons, I have been campaigning for changes to be made to the operational management structure of the Prison Service to bring it in line with the practice in every business, hospital or school: to appoint named people responsible and accountable for particular functions within the organisation concerned.
In the case of prisons, I have campaigned for separate directors to be appointed for every type of prison, and for certain types of prisoners—lifers, sex offenders, women, young offenders, the elderly, foreign nationals, and those serving indeterminate sentences. Imagine how easy it would be for Ministers interested in IPP, for example, to send for the relevant director and question him or her about what was happening or not happening to all prisoners in that category. I had hoped that somewhere in the 298 pages of this monstrous Bill, space might have been found for something so practical. However, as that is clearly not going to happen, I stringently commend the change to the Minister.
Lord Judge (CB)
My Lords, I find myself in a puzzle. The Government of the noble Lord, Lord Blunkett, and the noble and learned Lord, Lord Falconer, who introduced this form of sentence, have indicated that they would not have introduced it if they had known how it would work. A different Government, the coalition Government, of which the present Government formed the majority, saw the iniquities of it and Parliament got rid of it. Therefore, we now have a strange system. We have people in custody under the old system and people with the same record, the same problems, the same issues arising, who are not subject to the same sentences as each other. That seems rather strange, but in terms of an Act of Parliament, it is an utterly illogical situation for the Government now not to at least address the consequences of the sentence having been abolished in the 2012 Act.
Quite rightly, that was not made retrospective. I see that retrospectivity must be avoided, but we have been going on with the sentence that has been abolished for eight or nine years now. We all know that something must be done. I am not making a personal comment about the Minister, but everybody knows that it must be done, including Ministers in the Home Office and the Ministry of Justice. We must do something about it, in fairness and logically.
I added my name in support of the amendment tabled by the noble and learned Lord, Lord Brown, but all these amendments are asking one simple question: “You must do something, so will you now tell us what it is?” It is no good us being in a situation where “Something must be done” when “What is going to be done?” is the real question.
Lord Macdonald of River Glaven (CB)
My Lords, I hope that the Minister can acknowledge that this is one of those comparatively rare occasions when noble Lords from all parties and none and from across the House have come together in the face of overwhelming evidence that a great public policy, in this case a great criminal justice policy, has gone disastrously wrong. It is beyond argument that IPPs have resulted in periods of incarceration out of any reasonable proportion to the gravity of the original crimes for which they were imposed. That is wrong. It is beyond any reasonable argument that these sentences are beyond any proportion to the risk that continues to be represented by any of the offenders to the public. That is wrong. There is the strongest evidence before the Government that IPPs are observably responsible for persistent and continuing injustice. The noble Lord, Lord Hunt, spoke very movingly about the reality of those injustices for those who are suffering under them.
I declare an interest as president of the Howard League and in doing so repeat what a number of noble Lords have said about the contribution made by Frances Crook. She has been a monumental figure in criminal justice, which is better today for her work than it would have been without it. The Government now have an opportunity to make a startling improvement to our criminal justice arrangements by the simple expedience of doing away with IPPs in their entirety; I agree with the noble and learned Lord, Lord Garnier, in this respect. The evidence could not be clearer. I support all these amendments and urge the Government now, in the face of this overwhelming case, to act.
Lord Pannick (CB)
My Lords, I hope that when the Minister responds to this debate, he can put away the departmental brief and respond to two simple questions. The first is whether he accepts that the present system is unacceptable. The second, which the noble and learned Lord, Lord Judge, posed, is: what will the Government do about it? This is not a new problem. The Government have had years to think about the options and to consider what to do. The noble Lord is already a very distinguished Minister of Justice. Can he say what the Government will now do to address a manifest injustice?
Lord Hogan-Howe (CB)
My Lords, I have met a few of the people who these sentences are designed to control, and quite often they are terrifying. Some of the things that they have done are awful. However, the present situation is indefensible. It is unfair because, as the noble and learned Lord, Lord Judge, has said, they do not know how long they will be detained, and because many of them have been detained since before the law was changed. It is really trying to deal with the basic problem of dangerousness, which is very hard to define. Doctors cannot define the mental illness that they suffer from, as has been mentioned already. This should be addressed far more clearly.
There are only two ways forward. First, many of these amendments are talking about research in the future, but we need more research into the medical definition of the type of illness which we define as “dangerousness”, of people seeming likely to commit an offence in the future. This is not mentioned anywhere in the amendments. I recommend that there is good investment to be made there.
Secondly, what is presently indeterminate must be made determinate. I do not suppose that anyone has yet argued that all the people who are detained under these restrictions should immediately be emptied from the prisons on to the streets, but it is entirely possible to see a transfer of that risk either into the health element of prison control—Broadmoor or similar institutions—or a far better way of dealing with them within the community. To continue carrying the risk entirely within the prison estate in the numbers that are described is entirely wrong and I cannot see that it is defensible for this Government to continue doing so.
Lord Woolf (CB)
I was not intending to contribute to this debate, but I think decency requires me to do so, because looking in the past, I was the person who perhaps failed the noble Lord, Lord Blunkett, in persuading him at his time as Home Secretary of the extent of the error which he was making. I think he may remember that I did attempt at the time to dissuade him from this course, but I obviously failed and we see now the consequences of the biggest mistake made in the criminal justice system during my period as a judge. I hope that the House will bear in mind that, if a mistake of that nature is made, there is a huge burden on each one of us to try, as far as we can, to put it right.
This is the first time I have contributed on this subject and I apologise to the House for not doing so earlier. For reasons of health, I was not for a time taking part in the activities of the House, but I thought the House would like to know how I feel about this as a former Lord Chief Justice and the person who carried out an important report into prisons, which I hoped would provide a better system than we have now.
Lord Marks of Henley-on-Thames (LD)
My Lords, I am humbled by speaking at the end of an extraordinarily strong debate. It was eloquently and, as many have pointed out, courageously opened by the noble Lord, Lord Blunkett. He has been supported by many movers of amendments and others, among them the noble and learned Lord, Lord Brown of Eaton-under-Heywood, whose campaigning against IPPs has been a model for us all. I hope the Government will take note of the unanimity in this House on the issues surrounding IPPs.
From these Benches, my noble friend Lady Burt, with her extensive experience of working in the Prison Service and of the injustice of IPPs to individual prisoners, has spoken movingly to her amendments and supported all the amendments in the group, so I will add only very briefly to what she and others have said.
These amendments give this House a chance to send this Bill back to the House of Commons to give it an opportunity to right a wrong that has for far too many years been a scar on our penal system, on our national self-esteem and on our international reputation for fairness and justice. The continuation of the unwarranted detention of IPP prisoners—1,700 never released and 1,300 recalled for breach, often for utterly trivial reasons—has kept them incarcerated for years on end, way beyond their tariff terms, without any moral, intellectual, philosophical or human justification of any kind.
We support the ending of this injustice unreservedly. At Report, we will vote for whatever of the amendments then before the House appear best placed to end this disgrace as quickly as possible.
Lord Falconer of Thoroton (Lab)
My Lords, I have already spoken once. I speak very briefly to say two things. First, what an impressive debate this has been. I draw attention in particular to the speeches of my noble friends Lord Blunkett, Lord Hunt of Kings Heath and Lord Bradley, the noble Lords, Lord Moylan, Lord Ramsbotham and Lord Hogan-Howe, and the noble Baroness, Lady Burt. I draw attention to them because they are not lawyers; they are people who have had contact in other ways with this system and come to the conclusion that it should end.
Secondly, we on this side of the House support all the amendments. Some are alternative ways of dealing with a particular problem, but we support all the proposals. We are not, in the amendments before the House, going as far as some of the speeches went. We are not suggesting the immediate abolition of the sentence. We are saying: support for those in prison to try to get released; support for those who are released to get proper help; and an easier process of having consideration of the licence being got rid of.
As the noble and learned Lord, Lord Brown of Eaton-under-Heywood, said, the one with the teeth is Amendment 208F. It says you get rid of these licences and release the person if they have served more than the sentence for the offence. If you have been sentenced to five years in prison, and that is the maximum sentence, once the maximum is reached, unless the detaining authority can prove that you are still a risk, you get released. If you are still below the maximum sentence for the offence for which you were convicted, but you have been in for 10 years, the same principle applies. It is an incredibly sensible way of ensuring the sentence goes for those who have got it, but you keep inside those who represent a severe danger, as long as the detaining authority can establish that they remain a danger.
I very much hope that the Minister will be able to give some words of comfort to the effect that these very moderate proposals will be taken up by the Government. If there are amendments to these proposals, of course, everybody in the House will consider them, but it is time for a change. These modest proposals require consideration for this Bill, because the biggest disappointment would be to be told that it is coming at some later stage.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
My Lords, Amendments 208A to 208H relate to offenders serving sentences of imprisonment for public protection commonly known as IPPs. The noble Lord, Lord Pannick, who was very kind about my work as a Minister, invited me to put away the departmental brief. I am not going to do that, not least because it might mean that my work as a Minister here ends somewhat prematurely. But that is not inconsistent, I hope, with making it clear to the Committee that I have listened carefully to the debate and to the points raised around the Chamber. I will reread the debate in the Official Report as well.
Of course, I feel the mood of the Committee—that would be impossible to miss. The speeches have been powerful and sometimes heartfelt. Without wishing to ignore others, may I say the contributions from the noble Lord, Lord Blunkett, and the noble and learned Lord, Lord Woolf, about their personal part in the genesis of IPPs have been unusual and moving. This politician, may I say to the noble Baroness, Lady Chakrabarti—although I see myself still as a lawyer, not a politician—certainly is trying to get this right. I do not think this is an issue which admits of easy analysis. To use the words of the noble and learned Lord, Lord Judge, it is something of a puzzle, which requires looking at carefully and solving.
I am grateful to those noble Lords who have met with me and discussed the issue. I am sure we will have further discussions between now and Report. I should say that I read Matthew Parris’s column at the end of July as well.
I will go through the amendments and set out the Government’s position, then I will come back at the end to some more general points. Four of the amendments, Amendments 208A to 208C and 208E, the latter from my noble and learned friend Lord Garnier, would require the Government to conduct a review on matters such as sentence progression, resettlement and supervision of prisoners serving an IPP sentence, and to lay a report before both Houses of Parliament.
The Government recognise that work needs to be done in relation to this group of prisoners. I will set out the work that has been done so far. We have put together what I think has been a successful action plan dedicated to the rehabilitation and risk reduction of IPP offenders. We continue to work to increase opportunities for IPP offenders to progress through their sentences via this plan. A qualified psychologist leads a review of the case of every IPP prisoner who is not making the expected progress. Between July 2016 and September this year, which is about five years, just under 1,700—1,679—reviews were completed; 440 prisoners were subsequently released and a further 474 secured a progressive move to more open conditions.
My noble and learned friend Lord Garnier commented on the availability of courses for IPP prisoners to help them make that progress. It is right that during the pandemic there were fewer places on some group interventions. We asked offender managers to look at other sorts of interventions to draw evidence from them for the parole reports. However, we have now been able to ramp up the provision again. Not all IPP prisoners will require the same interventions, of course, but we try to make sure that each prisoner has a suitable pathway, as it is called, to a future safe and sustainable release. That is the focus of the programme. There is a range of interventions, including places on progression regimes, other accredited programmes and places in open prisons. Where a programme is not available for an offender, the prison offender manager would seek to have the prisoner transferred to a prison where the programme is available, subject to a risk assessment and available places. In the meantime, other work would be identified so that the prisoner could undertake that work.
We believe that the action plan is working. High numbers of IPP prisoners are being released each year and the proportion of positive Parole Board decisions remains high. I do not think anybody mentioned this, but let me put it on the record that the Justice Select Committee in the other place has recently launched an inquiry into IPP sentences. Its stated aim is to examine
“the continued existence of IPP sentences and to identify possible legislative and policy solutions.”
The Select Committee will scrutinise what the Government are doing. I have no doubt that it will provide recommendations, which the Government look forward to hearing. I therefore underline that we are doing work in this area. We do not believe that a separate government-led review is necessary at this time.
I turn to Amendment 208D from my noble friend Lord Moylan. Currently, an IPP offender may apply to the Parole Board to have their licence terminated once 10 years from their first release from custody has elapsed. To do that, the offender must give their permission to the Secretary of State to apply to the Parole Board for licence termination on their behalf. The first part of this amendment would therefore remove the legal requirement for the offender to give their permission. Instead, offenders would be automatically rereferred for consideration each year, were they unsuccessful. The second part would change the time period from 10 to five years.
Lord Falconer of Thoroton (Lab)
None of the amendments would mean that there would not necessarily be a consideration by the Parole Board, including Amendment 208G, which is the two-year automatic end unless the Government made an application to the Parole Board, so I am not quite sure what the basis of rejection of that one is.
Lord Wolfson of Tredegar (Con)
I am not basing it only on what I have called automatic termination. The scheme set out in Amendment 208G would represent a very different approach to management on licence and, for the reasons I have set out, that is not a form of management which we think provides adequate protection to the public. I may come back to that.
Amendment 208H creates a power for the Secretary of State to release an IPP offender who has been recalled to prison, so long as the Secretary of State is satisfied that it is not necessary for public protection for the offender to remain in prison. The position at the moment is that the Parole Board has a responsibility to assess whether offenders are safe to be released into the community, even after an IPP offender is recalled to prison. They can take a decision to rerelease from only 28 days after the offender is recalled. We believe that the Parole Board’s expertise in determining whether offenders serving indeterminate sentences are safe to be released is, as I said, an essential tool of public protection.
If I may, I come back to where I started, with the words of the noble Lord, Lord Pannick. Again, I am grateful for his kind words. I agree that there are certainly problems with the current system; we are looking at it. We believe that our IPP action plan has achieved significant results and we keep it under constant review. The noble and learned Lord, Lord Judge, in what I have learned to be his habit of putting his finger on the point at issue, asked, “Well, what is going to be done?” I hope that I have made it clear that I have listened to the debate very carefully, and that I have no doubt of the mood and the strength of feeling of the Committee. I am also sufficiently acquainted with the ways of this House to anticipate what might or might not be moved on Report as and when we come to it. I can say this afternoon that I will continue to work on this issue—a number of noble Lords know that I have been working on it already—and to listen to the debate, but for the moment, I ask noble Lords who tabled this amendment to withdraw it.
Lord Blunkett (Lab)
My Lords, there can be no disagreement that this has been a thoughtful and deeply impressive debate—the kind of occasion that does massive good to the reputation of this House. I hope, therefore, that the Minister’s words at the beginning and end of his response will give us some hope for the future. On a lighter note, I have to say that the noble and learned Lord, Lord Woolf, gave me so much advice when I was Home Secretary that I have difficulty remembering which bits of it I took and which I did not.
On this occasion, I have said already that we clearly have got it wrong, and we now have the opportunity to put it right. The House of Commons Justice Committee has not yet started its process; even with the length of debate on the Bill and the number of days that will be added, it will not have reported in time for us to be able to use this vehicle, and I see no other vehicle coming down the road. We have a chance and, given the Minister’s opening and closing remarks, we may have the opportunity to get this right. It would be admirable and most sensible if the Government were able to bring forward their own proposals before Report, through amendments, guidance and any further regulation by subsidiary legislation they are prepared to use, but if we do not get some movement in time for Report, I believe there is unanimity across all parts of this House that we will have to take action. When we do, I hope that we will have the kind of unanimity we have had this evening. I beg leave to withdraw the amendment in my name.
Baroness Burt of Solihull
“Maternity services in prisons
(1) The Secretary of State must provide appropriate midwifery care within the female prison estate.(2) “Appropriate midwifery care” means—(a) midwifery care that is appropriate to a custodial setting;(b) maternity services that are suitably resourced to provide—(i) an appropriately qualified midwifery lead in each prison to oversee all aspects of perinatal care;(ii) a maternity pathway for prisoners that includes a process for women who decline to engage with services;(iii) access for prisoners to psychological and psychiatric services;(iv) training for staff in trauma-informed care;(v) training for staff in neonatal and child resuscitation procedures; and(vi) appropriate emergency equipment for children and neonates.(3) The Secretary of State may provide guidance on how to respond to births in prison.”Member’s explanatory statement
This amendment builds on recommendations from the Prisons and Probation Ombudsman investigation into the death of Baby A at HMP Bronzefield to ensure there are appropriate maternity services in the female prison estate.
Baroness Burt of Solihull (LD)
My Lords, Amendment 209 seeks to reinforce the existing provision of maternity services for pregnant women and their babies in prison. Noble Lords who follow these matters will know that many women’s prisons have mother and baby units, but they are not equipped to facilitate childbirth, and the birth should always take place in hospital. However, around one in 10 does not: either the baby is delivered on the way to hospital or still inside the prison.
I have experience to bring to bear on childbirth in prison which I imagine no other Member of your Lordships’ House possesses. I have been, at least nominally, in charge of a prison when an inmate started labour. I was in my early 20s at the time, a new and highly inexperienced assistant governor at Holloway Prison on evening duty, so nominally in charge of the jail. The news that an inmate had started labour was received with glee by the officers, who delighted in telling me the good news and watching the expression of panic on my face. Fortunately for me, and the woman giving birth, these officers were highly experienced in handling these circumstances. An ambulance was summoned, and the mother-to-be was promptly sent off with an escorting officer to hospital. The outcome was a happy one.
More than 40 years later, pregnant women are still sent to prison, locked up with no agency to determine their fate, and the outcome is sometimes very different for the mother and the child. Now is not the time to delay your Lordships with an argument for not sending pregnant women to prison, much as I would like to, but it is important that provisions are watertight and that women and their innocent babies are kept as safe and well as possible because we know that things can go very wrong.
I turn to the scandal of Baby A who was born at HMP Bronzefield on 27 September 2019 and who died alone with her mother, not to be discovered until the following morning. The pathologist was unable to determine whether this baby died before or after birth. HMP Bronzefield has a mother and baby unit, but for some reason Ms A was deemed unsuitable for the unit, so she and her unborn baby were left to the mercy of the general prison staff, medical and general, who regarded her as difficult. I am sure that she undoubtedly was difficult. Going back to my time at Holloway, I remember being put in charge of what was then termed the Borstal unit. That was full of difficult young women who presented immense behavioural challenges to the staff and with whom they were very unpopular. It was not until I went into the backgrounds, upbringing and abuse that those young women had suffered that I began to understand what had contributed to that behaviour.
Forty years later, Ms A was one such vulnerable young woman. She was only 18 years old, but her young life was already beset with abuse and trouble. I know what a pain a young prisoner can be. I was in charge of a whole wing of them, and I get why Ms A was not Ms Popularity with the staff, but it was known that she was extremely vulnerable, mistrustful and terrified of having her baby taken away from her. The ultimate irony in the case of Ms A is that she had not been convicted of a criminal offence. She was on remand, and three days after she had suffered the trauma of giving birth alone in her cell and losing her baby, this vulnerable, traumatised young woman was released on bail.
I do not want to pile further agony on the staff at HMP Bronzefield specifically, but it is crystal clear that the service given to troubled pregnant women in prison is not fit for purpose, hence this amendment, which sets out the very least a pregnant woman should receive, whatever her circumstances. The amendment is based on the recommendations of the Prisons and Probation Ombudsman in its report and subsequent inquiry: an appropriately qualified midwifery lead in every woman’s prison; a maternity pathway to include prisoners who decline to engage with the maternity services available; making sure that prisoners have access to psychological and psychiatric services; training for staff to understand and deal with young women—and men, for that matter—who have experienced trauma which is contributing to their behaviour; appropriate training to deal with emergencies for neonates and children; and the physical tools to resuscitate them.
I acknowledge and welcome the work that is being done in the extensive review of care for pregnant women, which was published in September in the pregnancy, mother and baby units and maternal separation in women’s prisons policy framework. There are some helpful recommendations, including early contact and signposting to services, more extensive central reporting on women in MBUs including reasons for non-admission decisions and additional welfare checks. However, I still look forward to hearing what the Minister has to say about these recommendations in my amendment and how people such as Ms A and her lost baby will be better helped in future. I beg to move.
Baroness Jones of Moulsecoomb (GP)
I congratulate the noble Baroness, Lady Burt, on her extremely moving opening speech. I agree wholeheartedly that pregnant women should not be in prison. We have abysmal conditions in many jails and they are not the place for a pregnant woman. A pregnant woman might be difficult. I have been pregnant twice and I can guarantee that I had some difficult days—some people might argue that I am still having them. When women suffer in this way—and trans men who are having babies—there are lifelong repercussions, I hope for the Government as well as for the women and their babies.
The Howard League for Penal Reform has highlighted the fact that pregnant women in prison are routinely denied access to suitable maternity care and that babies have died as a result. Many women and transmen in prison have very complex needs physically and sometimes mentally. As the noble Baroness, Lady Burt, explained, they often have a history of abuse, neglect, addiction and poverty. The Government are not helping. They are not recognising those problems and do not understand their role; while prison is a punishment, rehabilitation has to take place afterwards.
Women in prison should receive at a minimum the same standard of maternity services as women outside. Of course, they often have additional challenges and are in need of specialist midwifery care, which should be supplied. When we punish these women in prison, we also punish their babies, and that cannot be right. Getting this right will change the lives of prisoners and families, and have an impact for generations. Like the previous amendment, this is something the Government have to pick up.
Lord Hunt of Kings Heath (Lab)
My Lords, I have added my name to this amendment and I warmly commend the speeches of the noble Baronesses, Lady Burt and Lady Jones. Reading the report of the shocking death of Baby A is salutary indeed. It took me back to the debate we had earlier in Committee, looking at the special needs of women in prison and the effect of custody on those women and their children.
I refer back to the speech made by the noble Lord, Lord Marks, when he referred to the briefing from the charity Women in Prison. This related how more than 53,000 children each year were affected by their primary carers being sent to prison and that 95% of children whose mothers are in prison were forced to leave home. One sentence encapsulated it for him:
“‘We’ve been sentenced’, says a mother, ‘but they’ve been sentenced with us.’”.—[Official Report, 1/11/21; col. 1036.]
The point was also at the heart of the contribution made by the right reverend Prelate the Bishop of Gloucester. She said that parental imprisonment was, for the children concerned, a well-recognised predictor of mental ill-health, poor educational achievement and employment prospects, and future criminality. It sets a context for discussing the particular circumstances of Baby A and pregnant women prisoners.
Of course, there are many lessons to be learned in respect of both HMP Bronzefield and the prison system as a whole. The report of the Prisons and Probation Ombudsman made a number of very important recommendations. In particular, there was a recommendation of principle that, as the noble Baroness referred to, all pregnancies in prison should be treated as high-risk by virtue of the fact that a woman is locked behind a door for a significant amount of time and there is likely to be a high percentage of avoidant mothers who have experienced trauma and are fearful of engaging with maternity care.
The noble Baroness, Lady Burt, listed some of the key recommendations. I just want to focus on what I would call “system recommendations”. A specific recommendation was made to the director of health and justice for NHS England to consider the findings and recommendations of the report and ensure that the learning is applied across the women’s estate. It went on to say that this should include recognition that a clinic-based community model of midwifery care was not appropriate for custodial settings, and that all pregnancies in prison were high-risk. What response has been received from NHS England and what co-operation is being given by NHS England to the Prison Service to take forward that recommendation?
I, like the noble Baronesses, welcome the new policy framework for prisons on pregnancy, mother and baby units and maternal separation as a significant step forward, but I am sure we need to do more. I was struck by the comments of Dr Edward Morris, president of the Royal College of Obstetricians and Gynaecologists, who said:
“The next step is to ensure that these policy commitments are translated into practice on the ground across all women’s prisons, and that all staff in women’s prisons receive the right training to provide women with the information and support they need. Alongside strong links to the local midwifery team, we feel strongly that all maternity services located near to a women’s prison should have a designated obstetrician with responsibility for ensuring high quality care for women in prison.”
I very much agree with that. I, too, would welcome some reassurance from the Minister that his department is taking these recommendations seriously. I particularly urge on him the need for the closest co-operation between his department and NHS England. At the end of the day, the lessons learned from this tragic case must be applied to the prison system as a whole.
Lord Falconer of Thoroton (Lab)
My Lords, I support this amendment, and very much hope that the Government will either accept it or explain what they are doing in response to the report of the Prisons and Probation Ombudsman on the case of Miss A and her baby. The noble Baroness, Lady Burt, has explained the facts; it is worth looking at them in a little more detail.
Miss A, as she is called in the report, was remanded in custody on 14 August; she was pregnant. It does not say in the report whether the court knew that she was pregnant, but that is not what this amendment deals with. On 19 August, she was seen by a safeguarding midwife, who said that her estimated delivery date was between 24 September and 14 October. On 26 September, she was put on extended observation, which means she would be seen by a nurse in the morning, at lunchtime, in the evening and twice overnight. On that very day, 26 September, she went into labour. At 8.07 pm, 8.32 pm and 8.45 pm, she called for help and, in particular, called for a nurse. All three calls for help were ignored. At 9.27 pm and 4.19 am that night, she was inspected—I assume through a cell hatch—for a regular roll call, and nothing untoward was spotted. At 8.21 am the next morning, other prisoners reported that there was blood in her cell, and at 9.03 am an officer identified that she had given birth overnight and that the baby had died.
It is an absolutely terrible story, as the ombudsman describes. As the noble Baroness, Lady Burt, said, the ombudsman made specific recommendations, which are reflected in proposed new subsections (1) and (2) of her Amendment 209. It says that the Secretary of State must provide “appropriate midwifery care” within the female prison estate, and then defines “appropriate midwifery care” as meaning
“midwifery care that is appropriate to a custodial setting … maternity services that are suitably resourced to provide … an appropriately qualified midwifery lead in each prison to oversee all aspects of perinatal care … a maternity pathway for prisoners that includes a process for women who decline to engage with services”—
as Miss A may have done—
“access for prisoners to psychological and psychiatric services … training for staff in trauma-informed care … training for staff in neonatal and child resuscitation procedures; and … appropriate emergency equipment for children and neonates.”
A lot of those go beyond what would have made a difference in this particular case, but if those recommendations of the ombudsman had been given effect to, the tragedy almost certainly would not have occurred. This gives the Government the opportunity to respond in this House to those recommendations, all of which seem sensible and will not impose a substantial financial burden on the prison estate, because there are not that many women’s prisons. If the Government are not willing to accept these proposals, what are they going to do about the problem? Can they give a reason why a duty such as this on the Secretary of State should not be expressed in the legislation?
Lord Wolfson of Tredegar (Con)
My Lords, I am very grateful to the noble Baroness, Lady Burt, for tabling this amendment. As the explanatory statement makes clear, the amendment builds on the recommendations of the recent independent investigatory report by the Prisons and Probation Ombudsman into the death of Baby A—as we are calling the baby—at HMP Bronzefield.
I shall start by repeating what my honourable friend Victoria Atkins MP said when giving oral evidence to the Justice Select Committee’s inquiry into women in prison on 3 November. I quote her because I want to associate myself with this, word for word. We are
“very grateful to the ombudsman for her report. The facts as they unfolded in that report were truly shocking. And the fear that that young woman must have felt and the loss she is dealing with even today, we do not, we cannot contemplate anything of that nature ever again within the prison estate.”
My deepest condolences remain with those affected.
The death of Baby A was a tragic and harrowing event and has rightly been the subject of several investigations and inquiries, including that by the PPO, to try to ensure that all the necessary lessons have been learned to avoid a repetition in future. The Committee may be interested to know that there is a Question on this incident on, I think, Wednesday, which will be another opportunity for the House to look at this terrible event, and I believe I am going to be responding to it.
While I point out that we are not talking about sentencing here, and the noble and learned Lord, Lord Falconer of Thoroton, was right to say so, it is right to say that when it comes to sentencing, pregnancy is certainly a mitigating factor that is specifically taken into account in the sentencing guidelines. I should also say that it is exceptionally rare now for a woman to give birth in prison. The most recent figures, from July 2020 to March 2021, show that 28 births—90% of the total number of births—took place in hospital and none took place in prison. I understand that in the case of the missing 10%, the baby came out a bit quicker than anticipated and the birth might have taken place in the ambulance, but none took place in prison.
In response to the terrible disaster of what happened to Baby A, the previous Lord Chancellor, the right honourable Robert Buckland MP, commissioned the independent external investigation by the PPO. We have since accepted and acted upon all its recommendations for the Ministry of Justice and the Prison Service. We immediately put in place practical steps across the women’s estate, including providing all women with free phone access to local NHS pregnancy advice services and additional welfare observations for pregnant women in their third trimester. At that time we were already undertaking a fundamental review of national policy on pregnancy, mother and baby units and maternal separation in women’s prisons.
As the noble Baroness, Lady Burt, recognised and said she welcomed, that work led to a new policy framework, published on 20 September, which develops those immediate actions into national requirements for all women’s prisons, delivering on a wide range of reforms. The new framework has an extended policy remit covering requirements on perinatal care and maternal separation, in addition to mother and baby units. I hope that what I have said so far—although I will say something more—reassures the noble Baroness and the noble Lord, Lord Hunt of Kings Heath, that we are serious about our response to this matter. We are determined to take all necessary action to avoid a similar tragic event in the future.
I shall turn to the detail of the amendment and explain why, in the light of the current legislative framework, we are not persuaded that what is proposed is necessary. Currently, NHS England is responsible for commissioning almost all forms of healthcare for prisoners within both the public and private estate in England under Section 3B of the National Health Service Act 2006 as amended by the Health and Social Care Act 2012. That statutory obligation has to be read together with Rule 20(1) of the Prison Rules 1999, which states:
“The governor must work in partnership with local health care providers to secure the provision to prisoners of access to the same quality and range of services as the general public receives from the National Health Service.”
The requirement to commission healthcare services and to secure and ensure prisoners’ access to them therefore already applies to the provision of maternity services in the women’s prison estate, so we do not consider that there is any need to add a further separate obligation in statute as proposed by the amendment. What is important is that we ensure that it actually happens. I certainly do not mean to be flippant, but repeating something in statute is not the way to ensure that it happens. We are focused on ensuring that it happens. We already have the statutory obligation.
In fairness to the PPO, I should note that it did not recommend any change to the statutory framework. Rather, it said at paragraph 14:
“Overall, the healthcare offered to Ms A in Bronzefield was not equivalent to that she could have expected in the community.”
It is that provision that we are focused on—ensuring that expectant mothers in prison get the same care as they would have received in the community. The Government’s position is that we would rather focus on that than duplicate statutory provision.
Lord Falconer of Thoroton (Lab)
The amendment would not be duplicating anything because it contains specific provisions that are not referred to in the other statutory obligation, so it would be clear what was required.
Lord Wolfson of Tredegar (Con)
What is required is that women in prison have access to the same maternity services as they could expect in the community. My suggestion is that once that is set out, that is a sufficient legislative obligation and the Government need to ensure that it actually happens.
I hope that nothing I have said detracts from what I said right at the start, which is that we are appalled by what happened to Baby A. It must never happen again, and we are going to do all we can to ensure that it does not. However, for the reasons I have set out, I invite the noble Baroness to withdraw the amendment.
Lord Hunt of Kings Heath (Lab)
My Lords, before the Minister sits down, I would like to ask him about the relationship between his department and NHS England. What express work is now being undertaken to ensure that the NHS discharges the statutory responsibility that he has just referred to?
Lord Wolfson of Tredegar (Con)
I know that when it comes to the prison estate, there is a very close relationship between my department, the Prison Service and NHS England. Rather than read something off a screen, may I write to the noble Lord and set out a paragraph or two to assist him on that? I am happy to discuss that further with him—or it might be appropriate for the Minister in the department with particular responsibility for prisons to do so. Anyway, I will write to the noble Lord.
Baroness Burt of Solihull (LD)
My Lords, I am extremely grateful for the learned contributions that have followed my words today, particularly from the noble Lord, Lord Hunt, and the noble Baroness, Lady Jones. I have taken heart, to a degree, from what the Minister has said. I accept what he says about the difference between statute and practice. We cannot just enact laws and expect everyone to suddenly do as they are told—it does not work like that—so I think the intention is extremely important.
I shall take this away and consult the bodies that have advised me—particularly Women in Prison, to which I am very grateful. For the time being, I respectfully request to beg leave to withdraw the amendment.
Earl Attlee
“Determination of sentence and predicted day of release
After section 60 of the Sentencing Code insert—“60A Determination of sentence and predicted day of releaseWhere a court is deciding the length of a custodial sentence to impose on an offender for an offence, having taking into consideration all other factors, the court must not set a length of sentence that is likely to result in the offender being released on a public holiday, Friday, Saturday or a Sunday except in exceptional circumstances.””
Earl Attlee (Con)
My Lords, I shall also speak to Amendment 211 in the name of my noble friend Lord Hodgson of Astley Abbotts. Both these amendments seek to deal with the same mischief: the release of prisoners on a Friday, Saturday, Sunday or bank holiday. I do not think either is perfectly drafted—for instance, mine would not prevent release on the day before a bank holiday.
I am lucky enough to have been able to spend quite a bit of time at Brixton prison, looking at how a well-run prison works. When I was looking at the release process, I saw that the last prisoner released had been released to no fixed abode—NFA—which I was told was not unusual. This generally means that the probation officer tells the prisoner where he will sleep that night. I was not surprised to see this because I was already aware of the NFA problem, and these amendments do not seek to deal with it.
Lord Hodgson of Astley Abbotts (Con)
My Lords, as my noble friend Lord Attlee has just said, I have tabled Amendment 211 in this group, and I have been very grateful for the cross-party support that I have had from the noble Lord, Lord Bird, and the noble Baronesses, Lady Lister and Lady Bakewell. I am further indebted, as I suspect other noble Lords who take an interest in this important subject are, to the work undertaken on it by Nacro. My noble friend has persuasively talked about this issue in moving Amendment 210. I will not repeat his analysis, but I make it clear that I support it, and it seems to me to be very sensible. But I want to add a bit of gloss of my own and step back from the detail, at least initially. Wherever you stand on the political spectrum, we can surely all agree that the rate of reoffending by prisoners on release is a reproach to us all. Further, in a well-ordered society, we should be making every effort to reduce it. This is one of the things behind the amendments that he and I have tabled.
Why is this? First, there are some hard economic numbers: the costs of our Prison Service and the ancillary services to back it up are stupendous. But there are other, more hidden but very severe social costs that are difficult to measure but nevertheless have a huge impact on our society over the long term: on the prisoner’s family, partner and children, who grow up in very disadvantaged circumstances, with greatly reduced life chances. As the noble Lord, Lord Blunkett, pointed out, there are other hidden costs. The people who have suffered from crime are traumatised by it. Elderly people whose houses have been broken into find it hard to leave their homes and go out. There is a very severe pressure on the fabric of our society, and it leads to neighbourhoods in which suspicions and concerns run rife.
While of course I understand and regret the economic and social costs, the basic issue for me is the point made by the right reverend Prelate the Bishop of Gloucester: it is about common humanity and behaving decently to our fellow citizens, to offer them the best chance of getting back on their feet. At no time is common humanity more needed than at that most vulnerable time when the prisoner is first released.
With that, I turn to my amendment. It does not take a Nobel prize winner to work out that Friday is not the ideal day for release from prison. A long weekend stretches ahead—longer still if followed by a bank holiday—during which the support systems of the state and the voluntary sector are either entirely or largely shut down, as my noble friend pointed out.
In preparing for this debate, I spoke to one of the groups that has briefed us and said, “Can you get someone to talk about this?” I thought that we would get to this amendment last Wednesday, so this is from a prisoner, Michael—that is not his real name—who was released a week ago last Friday: “I was released from prison last Friday, homeless, and everyone knew for months that I would have nowhere to go when I was released. But there I was, late afternoon on the Friday that I was released, still without anywhere to go. The housing people at the council had gone home for the weekend, and I had already been told that there was no chance for a council property. So I was waiting and waiting for news of some emergency accommodation, even just for a couple of days over the weekend. No wonder people reoffend”. Michael’s resettlement worker said, “The holding cell on a Friday is rammed, as such a high proportion of people in prison are released on a Friday. The pressure on the prisons and the resettlement service is incredible. It can lead to people being released late in the day, and, on the Friday, it becomes a race against the clock before services close for the weekend. The barriers to effective resettlement are just too high”.
My amendment, like my noble friend Lord Attlee’s, seeks to spread the days on which prisoners are released and remove the default option of the release day being predominantly a Friday. As he said, his amendment proposes that the courts should decide the specific release date. My Amendment 211 suggests that the governor of the relevant prison should be given the discretion of selecting the five-day window for the release date for a particular prisoner.
I say to my noble friend that the courts are too distant, and Amendment 210 runs the risk of a slightly clunky and administratively burdensome procedure. By contrast, the governor is the person on the spot, with day-to-day responsibility. He or she is therefore able best to take the decision that reflects the particular circumstances of each case and each individual prisoner. I recognise that, in parallel with this new flexibility, there will obviously be a need to make sure that the governors do not slide back to the old default option—the Friday—and some records need to be kept.
That having been said, what unites my noble friend and me is far greater than what divides us. As he said, he and I are concerned about introducing a policy change at very little cost, and possibly no cost, as a way—perhaps only a modest one—of reducing the likelihood of prisoners reoffending. I very much look forward to hearing my noble friend the Minister’s reply.
Baroness Lister of Burtersett (Lab)
I support Amendment 211, to which I have added my name. The case has been made very powerfully by the noble Lord, Lord Hodgson of Astley Abbotts. I am also supportive of the aims of Amendment 210, although that goes further by leaving less room for discretion—that may be a good thing, given the Scottish experience, which I will mention later—and I suspect would find even less favour with the Government.
I am struck by the strength of the case for change, from both the short-term perspective of the prisoner being released and the longer-term perspective of the likely impact on reoffending that we have heard about. Just last week, the Justice Secretary emphasised the importance of employment in reducing reoffending, and these amendments would help to support the initiatives to which he referred.
I ask the Minister to put himself in the shoes of a prisoner about to be released. Even the most organised of us would quail at the number of essential things they have to sort out: accommodation, health services, benefits and employment support. As an aside—although I know that the Minister will not be able to answer this question, I would be grateful if he could write to me—why does the law not permit prisoners to initiate their claim for universal credit before the actual release? Having a first UC payment available on the day of release would at least remove one obstacle, helping to create a much more effective resettlement process and, potentially, cut the rate of reoffending.
Returning to the matter at hand, I can only begin to imagine the mixture of relief and anxiety that prisoners must feel on release. To face this on a Friday, when many key services will be closing for the weekend, must be experienced as a set of totally unnecessary hurdles to be negotiated. Is it surprising that, according to Nacro, whose briefing I am grateful for, the inability to surmount those hurdles can lead to reoffending and/or turning to the more accessible comforts of drugs or drink. In the words of one prison-leaver, “If you’re released on a Friday and there are issues then they are not likely to be resolved until the following Monday, leaving the weekend to panic/stew/worry which could easily lead to reoffending.” I would panic/stew/worry if I were in that situation, I really would.
It seemed to me that this was a no-brainer, and thus it was with some surprise and disappointment that I read the negative response from the Minister in Committee in the Commons to the same amendment as Amendment 211. It felt as though he was clutching at straws in his rejection of the case made, and contradictory straws at that. On the one hand, he suggested that the change proposed would create pressure on the other days of the week, ignoring the fact that this amendment is purely discretionary and that, apparently, a third of releases currently take place on Fridays. Surely, if it were acted upon, the amendment would help to even out releases over the course of the week.
On the other hand, much was made of the fact that, in Scotland, prison governors have rarely used this discretionary power, which they have. Can the Minister tell us whether we have any information as to why that is the case? It would be helpful to know so that appropriate steps can be taken. Whatever the reason, however, it is surely not a good cause for refusing to follow suit in England and Wales. Even if it helps only a few prisoners on release, surely helping even a small number is better than helping none at all. It would be good if the impact of the change could be monitored so that, if it is shown to have a beneficial effect, it might encourage governors to use the power more.
In the Commons, the Minister acknowledged that there are challenges in making sure that offenders leaving prison are given access to the services they need so that they can get their lives back on track, but he then said that the Government
“would prefer to focus our efforts on making sure that those services are available on Friday.”—[Official Report, Commons, 22/6/21; col. 706.]
He then spoke rather vaguely about investment in reducing crime and tackling the drivers of reoffending as well as pilot programmes in five probation areas. But what exactly are the Government doing to ensure that services are available on a Friday, and functioning in a way that ensures that an ex-prisoner’s needs are sorted out before the weekend? Why do Ministers think they know better than probation officers and others on the front line who have supported Nacro on this?
I do not understand why the Government are so averse to this very modest change. I had hoped that this was an amendment they might accept in some form and that, while the wording may not be quite right, the essence of the amendments put together would be acceptable. I still hope that the Minister might be more open-minded to it than was his counterpart in the Commons.
Baroness Jones of Moulsecoomb (GP)
My Lords, both these amendments are really sensible. I very much hope that the proposers can work together before Report so that we have something quite powerful that we can all back and take forward. I realise that it is not easy for Ministers in your Lordships’ House. They hear all the expertise and sensible arguments, yet they have to go back to their Ministry and try to convey these arguments at the same time as being totally crushed and told, “Go back and just defend the status quo.” Still, I believe that the noble Lord, Lord Wolfson, could be quite tough with the Ministry about this and I very much hope that he will be.
When you hear about what happens to prisoners—a third being released on a Friday when, of course, housing benefits, healthcare, banking and all essential services are basically closed—you cannot believe that anybody would do it. It just does not make sense for those people who are being released. They have paid their debt to society; now we have to support them to make sure that they do not go back inside where they cost society a huge amount of money and contribute very little.
The other issue, of course, is that many people in prisons are miles from home and cannot easily travel home on a Friday; they may not have the money, the trains may not be running over the weekend, and so on. It seems that the Government and prisons are punishing ex-prisoners more and more. Can the Minister tell us why Friday is so popular a day to be mean to released prisoners? Why not give them the best start to reintegration?
Lord Ramsbotham (CB)
My Lords, I rise to support Amendments 210 and 211, and congratulate the noble Earl, Lord Attlee, and the noble Lord, Lord Hodgson, on their introductions.
I am at one with the noble Baroness, Lady Lister, on this issue. When he was Prisons Minister, Rory Stewart once attended a conference on the issue, organised by Nacro, which as the noble Lord, Lord Hodgson, said, has led on this for a long time. Some brave prison governors risk censure by using release on temporary licence to avoid release on Fridays. I have never understood why the Department for Work and Pensions does not make staff from jobcentres go into prisons to work out a prisoner’s entitlement to benefits, including universal credit, so that they do not leave prison with a discharge grant, but with the first payment of whatever benefit they are entitled to. In that way, they can pick up the next benefit the next week rather than having to wait six weeks following release before they can apply.
In many ways, the Government are setting people up to fail by, first, releasing prisoners on Fridays and, secondly, insisting on a six-week delay; I defy anyone to exist all that time even on an increased discharge grant.
Baroness Chakrabarti (Lab)
My Lords, I am sure that the fabulous quintet of noble Lords led by the noble Earl, Lord Attlee, the noble Lord, Lord Hodgson of Astley Abbotts, and so on, will be delighted by that endorsement from the noble Lord, Lord Ramsbotham, as there has never been a clearer or braver voice for penal reform in my adult lifetime.
I briefly add my own three cheers for these two amendments and for everything that goes with them. They have highlighted the piteous state of provision for prisoners from the moment of their release, quite often into destitution, and a total deficit of support. I hope that that will be taken on board, as well as the precise amendment, by the Minister in his reply. Notwithstanding comments made during the last group that law is not everything and practice is important, sometimes law is very important in itself, particularly release dates because they have to be enshrined in law. So, while there is no doubt that other provision, referred to by my noble friend Lady Lister of Burtersett and others, needs to be made, this matter requires urgent legislative attention. I think I agree with the noble Earl that, on reflection, something more like Amendment 211 is probably better.
To deal with the concern of my noble friend Lady Lister about Scotland would not take much, would it? Off the top of my head—forgive me, parliamentary counsel will do better—the “may” in Amendment 211 becomes “must” and the words
“at the discretion of the governor of the prison”
are moved to the gap between “on a day” and
“within the previous five working days”.
In other words, the discretionary part is which day within the previous five days. However, there is no discretion; there is a mandatory requirement that the prisoner must not be discharged on a Friday or a weekend. Something of that kind would be delivered very easily—and it really must be delivered. I hope that there will be none of the antics that we heard described in the other place to justify the totally illogical, impractical and unjustifiable status quo.
Lord Paddick (LD)
My Lords, I rise to speak on behalf of my noble friend Lady Bakewell of Hardington Mandeville, who is unfortunately unwell and unable to be in her place. She wanted to speak to Amendment 211 in the name of the noble Lords, Lord Hodgson of Astley Abbotts and Lord Bird, and the noble Baroness, Lady Lister of Burtersett, to which she added her name. She would have spoken about her personal experience, so I shall just read the words that she had hoped to say had she been here.
The routine releasing of prisoners on a Friday, especially before a bank holiday, can cause both services and the prisoners themselves significant problems. Finding accommodation on a Friday afternoon can be extremely difficult. Those who have managed to get clean of substance abuse while in prison find themselves desperate and start using, begin criminal activity again or, in some cases, both. For 10 years, my noble friend was a councillor on South Somerset District Council where there were marvellous officers who worked tirelessly to try to ensure that no one was left with nowhere to stay. The noble Earl, Lord Attlee, made a powerful case for the amendment and the noble Lord, Lord Hodgson of Astley Abbotts, similarly made the case for not releasing prisoners on Fridays or bank holidays. This is a matter that my noble friend feels very strongly about, so I will share two cases sent to her by the officers of South Somerset.
First, prisoner A was released on a Friday from Guys Marsh prison near Shaftesbury. He was given a rail warrant and got on a train to Yeovil. He contacted his family, realised he did not have accommodation to return to and went to see his offender manager at the probation office, who contacted the housing team. By this time, it was 3 pm and they had very little options available for him at that time of day. It was too late for them to find suitable accommodation and although they managed to get him into a hostel in Yeovil, that was not the best place for him, He had left prison clean of drugs and had to stay in a hostel with very easy access to illegal substances. Unfortunately, he used again, the accommodation broke down, he reoffended and was recalled to prison.
Case two was prisoner B, who was released from prison in Bristol on a Friday and got a train back to Yeovil. He then got a bus to Chard, some 17 miles away, to collect his possessions from his old tenancy. He then returned to Yeovil, by which time the offices had closed. He spent the weekend rough sleeping before he could contact the district council again. South Somerset District Council is fortunate to have secured funding to employ a prison release worker who tries to contact prisoners before they are released so they can plan ahead and help them. However, when people are on short sentences, the prisons rarely have time to work with the prisoners, so they get released without the council being informed. My noble friend Lord German has tabled amendments on those serving short sentences.
Other prisoners think they are okay and have homes to return to. These often do not materialise and by the time they realise they are homeless, it is 5 pm on a Friday. Sadly, one of the people in these case studies died over the weekend of 16 and 17 October aged only 45. He was quite a prolific offender and spent a lot of his time in prison. He had been in care from the age of two and did not have the best start in life. The council tried to help him on a number of occasions and sometimes succeeded, but not always. These are just some examples of what happens when prisoners are released on Fridays. This could be avoided by flexibility being used both in the courts and in the prisons. I hope the Minister will agree that this is a very sensible, non-controversial amendment which could prevent reoffending for the want of a roof over the heads of prisoners who have finished their sentences. I fully support Amendment 211 and look forward to the Minister’s response.
Lord German (LD)
My Lords, I will add a few words to give some examples of how this actually affects real people. The third sector, the charities in our society, have been very good at helping and supporting people. Given that we now know that a third of prisoners are released on a Friday, one would think that the charity on hand to meet them at the gate and help them through a very difficult period on a Friday would be helped by the prison authorities explaining when the prisoner was going to be released. After all, if you are sitting in a car, possibly round the corner from the prison, waiting for the gate to open and the prisoner to come out, you need to know that you are not going to be waiting there from 8 am or 10 am until 5 pm or 6 pm. Yet, in fact, that is the story I have heard from one charity that helps people in this matter.
The second example was very concerning. A food bank based in Hereford told me that these prisoners—the third who are released without anywhere to live—were given tents and sleeping bags, directed to a farmer’s field and given the address of the food bank. That is the sort of emergency you then place these people in. These are people who have done their sentence but who face no fixed abode, nowhere to live and certainly no money.
The third thing that worries me is how people get their benefit if you now require a bank account. As I understand it—perhaps the Minister will correct me—setting up a bank account while you are in prison is not a possibility; in other words, even if you were to get your benefit paid at the time you left, you would have to have a bank account to pay it into and to provide the necessary ID as well, all of which of course becomes less popular and less possible on a Friday.
These amendments do not seem to be rocket science. They are actually very practical and since that group of one-third of prisoners who are let out on a Friday are the group most likely to reoffend if they cannot find anywhere, there is a societal impact. We all can benefit by giving these people the right helping hand in their very first window of opportunity in real community life.
The Lord Bishop of Ely
My Lords, I was not intending to speak to these amendments but, having been involved in prisoner resettlement in the past, I feel it is important to say that Friday release has a particular impact on younger women prisoners if their only option is a bail hostel. Women, as we know, are much more likely to find their family life disrupted than men during the often short sentences that they suffer. The noble Lord mentioned somebody being in a car round the corner. That very patient person who was managing that young woman as a sex worker before she went into prison will spend the whole day waiting to snatch her away and take her back to the life she was in before. When the alternative options are so dreadful for such young women, it is not surprising that there are the statistics on them falling back into the kind of oppression they knew before. Our whole approach to resettlement would be advanced hugely by these amendments being accepted by the Government.
Lord Falconer of Thoroton (Lab)
An incredibly powerful case has been made. We support it and I am grateful to the noble Earl, Lord Attlee, the noble Lord, Lord Hodgson, my noble friend Lady Lister and, in her absence, the noble Baroness, Lady Bakewell, for tabling these amendments. I completely adopt what my noble friend Lady Lister said about the total inadequacy of the reasons given in the Commons for not supporting this. The first was that it would mean there would be bunching of releases on other days, but if a third are on Friday already that seems a completely hopeless point. Secondly and separately, it was said that it is not used very much in Scotland; if it is not used very much, then the Government would not have much to worry about. Why not do it?
Lord Wolfson of Tredegar (Con)
My Lords, I am grateful for the various speeches which have been given on these amendments, which, as we have heard, seek in different ways to avoid the release of prisoners on a Friday. Obviously, I understand the distinction between the two, although it is fair to say that they are both aimed at substantially the same point.
The current position is this. Section 23 of the Criminal Justice Act 1961 provides that prisoners whose release dates fall on a weekend or bank holiday should be released on the working day which immediately precedes that weekend or bank holiday. In most cases, that is a Friday, which is why, to make the obvious point, we have “bunching” on Fridays. If one would expect release dates generally to fall over the week, given the law of large numbers, you have Saturday and Sunday pushed back to Friday, plus the occasional bank holiday. We are very aware of and alive to the challenges that this can create in accessing support and services in the community. We are taking steps to mitigate those difficulties; I will turn to those in a moment.
First, however, the amendments seek to reduce releases on a Friday or non-working weekday by either preventing the court setting a sentence length that is likely to lead to release on those days, or by providing greater flexibility for prison governors to avoid Friday releases by giving the discretion to release earlier in the week. I heard what the noble Baroness, Lady Lister, said about the responses given in the other place: that the Minister there was clutching at straws. I think the noble and learned Lord, Lord Falconer of Thoroton, has set me the challenge to be better than “completely hopeless”. That is a bar I hope to surmount.
I assure the Committee that I am open-minded and have listened very carefully to the debate. While I am sympathetic to the need to tackle this issue, I do not agree that it is necessary to legislate in the way proposed by the amendments, and I will explain why. To do so would either undermine existing sentencing principles by preventing the court passing a sentence which is likely to result in release on a Friday, or it would allow prisoners to be released even earlier from their sentence. Legislation provides that prisoners are released on the working day closest to their statutory release date and we do not believe it is necessary to go further than that.
I will deal with sentencing first. It is not realistic or achievable to require a sentencing court to try to work out on which day of the week an offender would fall to be released and adjust the sentence accordingly to avoid that being a Friday, weekend or bank holiday. I would have thought that that is self-evident. It is obvious because a prisoner’s release date is something of a complex calculation. It is carried out by prison staff and depends on a number of different factors that a sentencing court would not necessarily be able to take into account. These could include: any other concurrent or consecutive sentences the offender might already be serving; the correct amount of remand time to apply on all relevant sentences being served; and any added days imposed for bad behaviour while serving the sentence.
Baroness Jones of Moulsecoomb (GP)
I thank the Minister for giving way; that is very kind. Is he aware of how daft that sounds? We have just explained that the punishing of ex-prisoners is not acceptable. The bunching should not occur; find a way around it.
Lord Wolfson of Tredegar (Con)
I am trying to deal with the amendments in what I hope is a logical way. At the moment, I am dealing with the amendment which provides that the sentencing court should have regard to the day of release. I am trying to explain—cogently, I hope, and with great respect—why that is not a sensible or workable proposition.
I have dealt with longer sentences; let me now deal with shorter sentences. It might be said that with a shorter sentence the court could identify the release date. I accept that it would be easier for the court to identify the day of the week on which the release would fall if the sentence is very short—let us say two, three or four weeks—and if no other sentences are involved, but the problem there is that if you bring that release date even earlier, percentage wise, that is a significant additional reduction from the sentence. I therefore suggest that these amendments are not the answer—
Baroness Lister of Burtersett (Lab)
The Minister may be about to come to the point I was going to make. The provisions in Amendment 211 are discretionary. If it is possible in Scotland, why is it not possible here?
Lord Falconer of Thoroton (Lab)
The Minister said that he was dealing with the amendments logically. He dealt with only Amendment 210 and did not deal with Amendment 211.
Lord Wolfson of Tredegar (Con)
I am coming to the point about discretion in Scotland. I will respond to that in a moment, if I may. First, I wanted to identify how we think we can best deal with the problems which bunching can give rise to. I absolutely agree that reducing further crime by those who have been released is critical. We have to cut reoffending and we know that a lack of suitable accommodation or sustainable employment, as well as substance misuse, can lead offenders to return to crime. Therefore, we need to ensure that people leaving prison on all days of the week, Fridays included, have access to services.
I will briefly identify four important things in this regard. In January this year, we announced a £50 million investment to reduce crime and tackle key drivers of reoffending. In July, we launched temporary accommodation for prison leavers at risk of homelessness in five probation regions, because we know that having access to transitional accommodation is very important. We have invested a further £20 million in the Prison Leavers Project, which tests new ways to reduce reoffending by addressing the challenges people face when they leave prison.
Lord Hodgson of Astley Abbotts (Con)
I am of course impressed by the list of initiatives being taken by the Government and the roll call of money being spent, but it has not answered the question. We are not asking to spend money; all we are asking for is an administrative change. It may be an administrative change whereby the flexibility has to reflect the length of the sentence. We surely cannot be in a position where we cannot give prison governors a day or two of flexibility to enable them to set up a system of the sort that has been described all around the House. It must be possible.
Lord Wolfson of Tredegar (Con)
I am not suggesting it is not possible; I am asking whether it is the best way to deal with the problem. I hear “of course it is”, but I suggest that it is not. Take the example of Scotland, where they have a discretionary power. That is a model of discretion regarding early release, under the Prisoners (Control of Release) (Scotland) Act 2015. Scottish Ministers have the discretion to bring forward the release dates of people in custody by no more than two days for the purposes of benefiting a prisoner’s reintegration into the community.
A freedom of information application was made on 30 March this year to the Scottish Prison Service which showed that only 20 prisoners have been granted discretionary early release under that Act in the five years since its implementation. We are not aware of any problems with implementation. I will ask officials in my department to consult with our colleagues in the Scottish Government to explore that issue further. If I am provided with any useful relevant information as a result, I will write to the noble Baroness to provide further information on that discretionary policy. We think that the best way to deal with this matter is to put money and services in place to ensure that prisoners, whatever day they are released on, have access to the services they need.
I heard the point made by the noble Baroness, Lady Lister, about universal credit. She very fairly gave me the opportunity to reply in writing, because that matter is substantially outside my department. I also heard what the noble Lord, Lord Ramsbotham, and the noble Baroness, Lady Chakrabarti, said about that issue; I will therefore respond in writing. At the same time, I will try to pick up the point made by the noble Lord, Lord German, on bank account opening, in so far as it is relevant to the universal credit point.
We are certainly not setting people up to fail; we sincerely want them to succeed and not reoffend.
Baroness Lister of Burtersett (Lab)
The Minister has made a slightly better fist of it than the Government did in the Commons, but in a sense he is clutching at the same straws—his presentation is just a bit more articulate than they were in the Commons. Does he not accept that it is better, even if it is just a few people, to help a few rather than none? Is he going to be able to say how he is going to keep services open over the weekend, because that is the issue? We have heard terrible examples of people being put in fields and turning to drugs and so on because the services are simply not there. This wonderful list of all these things the Government are putting money into is great, but I have not heard anything that would explain how the Government will ensure that services are there on a Friday evening, Saturday, Sunday and bank holidays.
I am afraid the Minister has not convinced me and, given the shaking of the head behind him, I do not think he has convinced the mover of the amendment, so I really ask him to look again at this. Although, unlike the first group of amendments, we may not have taken two hours on this group, there is absolute unanimity throughout the House that we can do something practical and it will not cost money. I am sorry, I am making a speech, which I should not be.
Lord Wolfson of Tredegar (Con)
I do not want to repeat what I have said. My focus is on ensuring that people have access to services on whatever day they are released, whether it is a Tuesday, a Friday or any other day. It is certainly not the case that, if we just moved people’s release day from a Friday to a Tuesday or a Monday, all our problems would go away. We must have those services in place, and that is what I want to focus on. I have said that I will look in more detail at the Scottish discretionary system, if I can call it that, and I will write to the noble Baroness. I do not want to repeat what I have already said, but I hope that I have addressed the substance of her point. I suspect that the noble Lords who spoke to the amendment have indirectly told me the answer before I sit down, but I none the less invite my noble friend to withdraw his amendment.
Earl Attlee (Con)
My Lords, I confess that I am little disappointed by my noble friend’s reply. I hope that he feels able to have a meeting with me to discuss this in a bit more detail.
I am neutral on the solution. I tabled my Amendment 210 before my noble friend’s amendment was tabled, which is why mine came up first. The Minister identified a fatal flaw in my amendment, which is that a prisoner could acquire extra days to be served, so it is impossible for judges to determine the day of release for that reason alone.
My noble friend referred to Scotland. The fact that Scotland does not use its power correctly is not a reason why we should not take that power. I am aware of the universal credit problems. That is a complex issue for experts such as the noble Baroness, Lady Lister, not me. The Minister suggested why prisoners often have to be released on a Friday. Surely it is because, when the courts consider a case, they tend to sentence later in the week.
I was keeping my fingers crossed for this amendment but I have been a bit disappointed. However, my noble friend cannot deny that the problem exists. I suspect—indeed, I am sure—that he and I will return to this issue with a perfectly drafted amendment at a later stage, and with even more vigour. In the meantime, I beg leave to withdraw the amendment.
“Short custodial sentences
(1) The Sentencing Code is amended as follows.(2) In section 230 (threshold for imposing discretionary custodial sentence), after subsection (2) insert—“(2A) If the court finds that the offence is so serious that neither a fine alone or a community sentence can be justified for the offence, it must state its reasons for being satisfied that the offence is so serious (having regard to the considerations in subsection (2B)), and, in particular, why a community order with appropriate requirements could not be justified. (2B) In this determination, the court must take account of the following principles—(a) passing the custody threshold does not mean that a custodial sentence should be deemed inevitable; (b) custody should not be imposed where a community order could provide sufficient restriction on an offender’s liberty (by way of punishment) while addressing the rehabilitation of the offender to prevent future crime; (c) sentences should not necessarily escalate from one community order range to the next at each sentencing occasion;(d) the decision as to the appropriate range of community order should be based upon the seriousness of the new offence(s);(e) section 65 (a relevant previous conviction to be treated as an aggravating factor) should not be interpreted so as to meet the custody threshold in respect of the sentence for one or more offences that would not themselves justify custody; and(f) where the offender being sentenced is a primary carer for a child, imprisonment should not be imposed where there would be an impact on dependants which would make a custodial sentence disproportionate to achieving the aims of sentencing.”(3) After section 230, insert—“230A Impact of custodial sentence on child or unborn child(1) This section applies where a court is considering imposing a custodial sentence on—(a) a primary carer for a child, or(b) a pregnant woman.(2) The sentencing court must—(a) consider the impact of a custodial sentence on the child or unborn child, and(b) presume (subject to victim impact and any other sentencing considerations) that a non-custodial sentence is in the best interests of the child or unborn child.(3) In this section—(a) “child” means a person under the age of 18, and(b) “primary carer” means a person who has primary or substantial care responsibilities for a child.””
Lord Ponsonby of Shulbrede (Lab)
My Lords, the purpose of Amendment 212 is to encourage sentencers to used community-based sentences rather than short prison sentences. It proposes strengthening the custody threshold as a principled starting point for reducing the current use of custody for lower-level sentences.
I favour this amendment over the potentially bolder Amendment 213 in the name of my noble friends, which seeks a presumption against a ban on short prison sentences. The danger of Amendment 213 is that if it restricts access to short prison sentences, in the current climate it could result in up-tariffing, which would not be a desirable result for the length of prison sentences.
As the law is currently drafted, imprisonment is reserved for serious offences. It is already established in statutory terms that an imprisonable sentence should be given only if there is no alternative. However, despite that, in practice people routinely continue to be imprisoned for low-level lawbreaking, fuelling an expensive merry-go-round of multiple short prison sentences.
The amendment proposed builds on principles already accepted in the sentencing guidelines. It enshrines these into legislation to better clarify the current statutory custodial threshold. Specifically, it intends to better ensure that custodial sentences are appropriately reserved for serious offences by better clarifying the assessments that are required to be made. The impact of imprisonment on dependent children should be considered in the sentencing of primary carers. This would limit the relevance of previous convictions in determining custodial sentences.
Persistence is a key driver of the current use of short-term custody and needs to be tackled head on. This amendment emphasises that short periods in custody should not be seen as an inevitable response to a person with a history of relatively minor offending.
The intention of this amendment is to shape the approach of judges and magistrates when considering a custodial sentence in a substantial proportion of cases which currently result in short prison sentences. However, it is important to emphasise that nothing in the proposed provisions would prevent a court from imposing custodial sentences of any length, including short custodial sentences.
In conclusion, I sit as a magistrate in central London. I put short custodial sentences in place, the vast majority of which are for people who have previously tried community orders and have either reoffended or have breached them on multiple occasions. It is very rare for a magistrate to give a short custodial sentence to somebody who has not previously been on a community order. Nevertheless, I think there is a genuine issue here—primarily the strength of the community orders which are available to courts. When the Minister responds to this debate, perhaps he will say something about the strengths and current revamping of the probation service. When sentencing judges or magistrates make short custodial sentences, the confidence that they have in community orders is an important consideration. I beg to move.
Lord Dubs (Lab)
My Lords, I shall speak to Amendment 213. My noble friend Lord Ponsonby was somewhat critical of it. I agree with what he is seeking to achieve in Amendment 212. Amendment 213 goes a little further and is a little more precise. If I may say so, I think it is a better amendment.
To clarify, this is not a blanket ban on short sentences; it is a presumption against short sentences. Previous Governments have supported this idea. The evidence is that short sentences do not lessen offending. They are mainly concerned with non-violent offences. They do not provide meaningful rehabilitation. They can have a disruptive effect on family life and relationships.
The statistics are quite awesome. According to data from the Ministry of Justice, between January 2020 and March 2021, 20,000 people went to prison to serve a sentence of six months or less—44% of the prison population. This was even more so for women during the same period. Prior to the pandemic, the figures were even starker.
As I have said, the majority of people serving sentences of six months or less are in prison for non-violent offences, such a theft and drug offences. These offences are often linked to underlying issues such as poverty, addiction, homelessness and poor mental health. We know that these people really should not be in prison at all. Prison does not help them. We also know that short sentences have proven to be less effective than community sentences in reducing offending. Community sentences include interventions such as drug, alcohol and mental health treatment. They do more to address the root causes of offending.
Short sentences disrupt family life and ties; they damage housing, employment and treatment programmes. They do not provide any meaningful rehabilitation. These sentences contribute to volatility shown in prison.
Short prison sentences have a harmful effect on women in particular, hampering relationships with their families and children. Over half of women in prison report being victims of domestic violence, which often contributes to the offence that led to the prison sentence. I have had some help from a great organisation called Revolving Doors, and I have a quotation from one of its members:
“Although I was in prison for a short time I felt traumatised by the whole experience. In fact, sending me to prison was just a waste of time and money. I was released with no explanation and no support. I found myself back in the violent relationship which exacerbated my addiction which led to further arrests and trauma.”
Another argument for a presumption against short sentences is the cost. Of course, that should not be the main thing; the main thing should be protecting society, penalising people who should be penalised and helping to reduce reoffending. However, cost does come into it. The annual cost per prison place in 2020 was £44,640, compared with £4,305 for a community order. It is quite a dramatic difference.
The public, according to surveys, understand why there should be a presumption against short prison sentences. Probably, there are people who say, “Send them in and keep them in longer—six months is too short”, but the public are quite sensible and understand what is going on. I can only refer to previous Ministers, David Gauke and Rory Stewart, who both said it was necessary to introduce the presumption against short sentences. I think we can manage to do that.
The amendment of my noble friend Lord Ponsonby, as I said, goes in the right direction, but it is not quite strong enough. This is such a simple measure—so simple that it is hardly worth spending time debating it. I am sure the Minister will accept it.
Lord Pannick (CB)
The noble Lord, Lord Dubs, asked: these amendments are so simple, why waste time debating them? Well, of course, the law already proceeds on the basis that these amendments propose. Section 230 of the Sentencing Code already says that the court must not pass a custodial sentence unless it is of the opinion that the offence was so serious that a fine or community sentence is not sufficient for the offence. Any court that passed a custodial sentence without stating the reasons for doing so would find that the sentence was overturned in the Court of Appeal. Any sentence in court that fails to consider and address the impact of a custodial sentence on a child or unborn child would not be upheld on appeal. So I entirely support these amendments, but I think we should be realistic about the current state of law.
Lord Beith (LD)
My Lords, I do not intend to fall into a bit of disagreement with the noble Lord, Lord Pannick, with whom I worked happily in the Constitution Committee, but the present state of the law has not really solved the problem, has it? Very large numbers of very short sentences are given, and the consequence is that prison places are used, costs ensue, and the least effective way of dealing with individuals seems to be the one that is chosen. If there is some way in which we can strengthen the presumption the sentencing guidelines already carry, that would be good. The amendment of the noble Lord, Lord Ponsonby, is a complicated alternative way of doing it, but it does appear that something needs to be done.
The argument often used for short sentences is that courts have a problem in dealing with persistent repeat offenders and persistent repeat breaches of conditions of community sentences. There is a popular myth that if offenders do not respond to other measures, a taste of prison will soon put them right. There is absolutely no evidence to support this principle. Indeed, all the evidence points the other way.
I used to chair the Justice Committee in the House of Commons, and that has had a continuing interest in this problem. Its report in 2018 recommended that the Government introduce a presumption against short prison sentences. The Government welcomed this and said they were exploring options. In a follow-up report, the Justice Committee noted the Government’s stated intentions to move away from short custodial sentences.
The Lord Bishop of Bristol
My Lords, I speak on behalf of my right reverend colleague the Bishop of Gloucester, who is unable to be in her place. She declares an interest as Bishop to Her Majesty’s Prisons in England and Wales. These are her words.
“I am delighted to add my name in support of Amendment 213, tabled by the noble Lord, Lord Dubs. I also have great sympathy for Amendment 212, tabled by the noble Lord, Lord Ponsonby. Both aim to remedy some of the justice system’s current overemphasis on prison sentences without sufficient regard for whether prison is an effective remedy for the offender or a guarantee to the safety and benefit of the community. By and large, short sentences have proven ineffective on both counts.
Sentences of six months or less are easily long enough to be disruptive but not nearly long enough to be effective in any rehabilitative programme. Short sentences are bad news for families, as we have discussed previously in Committee, in terms of the impact of imprisonment on primary carers and their families. Short sentences damage employment prospects, mental health and more. They are therefore disproportionately punitive, not least when the majority are for non-violent offences. They are also ineffective. Close to half of all those leaving custody go on to reoffend within a year of their release. That increases to almost two-thirds of those sentenced to less than 12 months in custody. The social and economic cost of this level of reoffending has been estimated at £18 billion per annum by the Ministry of Justice’s own analysis, while the costs to the communities and victims who suffer the effects of crime are impossible to estimate.
We know that community sentences are far more effective at reducing reoffending than short prison sentences and cost far less than a prison place. How have we reached a place in the UK in which imprisonment is so overused and seen as a solution to all criminal justice problems when the evidence and data simply do not support this? The UK has some of the highest imprisonment rates in western Europe. England and Wales have a prison population rate of 133 per 100,000 inhabitants—that is 27 per 100,000 above the median for EU member states. We are even worse against the bigger European states. For example, Germany has an imprisonment rate of just 69 per 100,000. That is roughly half our rate. Perhaps not coincidentally, Germany has operated a presumption against short sentences since 1969. Overall, our prison population has increased by over 80% in 30 years, which seems to suggest a trend across a series of Governments of trying the same thing in the hope of achieving different results.
It has been estimated by the Prison Reform Trust that two-thirds of prisoners are in prison for a non-violent offence. These offences are often theft or drug-related and linked to poverty, addiction and trauma, as we have heard, yet we seem to think it better to lock someone up rather than focus time and money on addressing the root causes. For women the rate is higher still: an astonishing 80%. Almost half are on short sentences of six months or less—the majority of all custodial sentences given to women.
As I mentioned earlier in Committee, I was fortunate enough to host an event here in Parliament, and I was delighted to welcome the Minister, the noble Lord, Lord Wolfson. I hope he will not mind if I remind him of some of the testimony we heard together. Niki Gould of the Nelson Trust, in which I declare an interest as president, told us that, ‘We fundamentally know that prison exacerbates women’s issues and leads to intergenerational cycles of trauma, abuse and reoffending.’ We heard that diverting 500 women through programmes such as the Nelson Trust not only is more effective at turning their lives around but comes at the equivalent cost of sending just five women to prison, and we heard, with some incredulity, from experts that 500 new prison places for more women serving more short sentences could be a better solution than long-term investment in women’s centres.
This is one of those happy occasions when the moral case happens to align with making excellent economic sense. An effective justice system that is relational, responsible and restorative would cost less in the long term. Finding a way to move beyond short sentences would better support families and children made vulnerable by family breakdown. If implemented as part of a broader package of support for problem-solving courts, women’s centres, and good and effective community sentences, it would lead to better results in terms of reoffending and rehabilitation, and, therefore, safer communities. It would come at a fraction of the price of maintaining the current revolving door of short sentences.
As we heard, in 2019 it seemed like we might have been approaching a breakthrough when the then Lord Chancellor went on the record in favour of a presumption against short sentences. If Ministers do not accept these amendments, I hope we will hear what they see as the future of short sentences and how they can be reduced.”
Earl Attlee (Con)
My Lords, I am grateful to the noble Lord, Lord Ponsonby of Shulbrede, for moving his amendment, and to the noble Lords, Lord Dubs and Lord Beith, for speaking to theirs. Those noble Lords have far more experience in these matters than me, but I have something to say that might assist the Committee.
In September 2017, the noble and learned Lord, Lord Brown of Eaton-under-Heywood, initiated a debate on prison numbers. That stimulated me to take a very close look at our penal system. It is fair to say that the increase in the prison population is caused by sentence inflation and might have little to do with short sentences.
I believe that the effectiveness of a prison sentence is inversely proportional to the appropriate length of the sentence. Thus, very long sentences to protect the public are effective in terms of incapacitation. On the other hand, very short sentences are extremely poor at rehabilitation and reducing reoffending.
The reason short sentences are so ineffective is surely that the current prison system and its regime do so little to address offenders’ weaknesses. The chief inspector’s reports have been telling us this for years. By definition, these are minor offenders and very often prolific ones. They leave prison after a short sentence with the same weaknesses in terms of education, training and conduct they arrived with. Therefore, there should be no surprise that we have a reoffending rate of about 65% within 12 months of release. The Committee should recognise that these figures are flattered by those who were never going to reoffend for one reason or another.
I am sure that the Committee will understand that most prolific minor offenders stop offending by the age of 26 or possibly 30. Moreover, this is despite a terrible start in life, the fact that rarely has anybody ever loved them, and the lack of a positive male role model. Therefore, these offenders cannot be hopeless, something can be done with them; some improvement in education, training and conduct must be achievable. The difficulty is that these improvements will not be secured through the current prison system.
Amendment 241, which we will debate later, seeks to create a system to address the problem of the ineffectiveness of short sentences. I do not have a view on which is the superior amendment of the two that we are debating—both are commendable—but I take on board the points made by the noble Lord, Lord Pannick. I slightly worry about the inflation risk with Amendment 213, and I suspect that the noble Lord, Lord Beith, acknowledges that. However, I feel very strongly that if the state does decide to take a minor offender into custody, it must be certain that it is going to improve matters and do no harm.
Lord Bradley (Lab)
I rise to speak briefly to this group of amendments, which I strongly support. I declare my interest again in the register as a trustee and vice-chair of the Prison Reform Trust. We have already debated Amendments 215 to 218, principally regarding primary carers, which I believe are closely related to today’s amendments on short sentences, so I will not delay the Committee by repeating the arguments.
However, by way of further background, it should be noted that the prison population, as we have heard, has risen by 74% in the last 30 years and is currently projected to rise by a further 20,000 by 2026, with millions being spent on providing additional prison places. Yet there appears to be no link between the prison population and levels of crime, according to the National Audit Office.
More than 40,000 people were sent to prison to serve a sentence in 2020, the majority of whom had committed a non-violent offence, and almost half were sentenced to serve six months or less. Crucially, as many organisations have pointed out, including Revolving Doors and Women in Prison, short prison sentences are proven to be less effective than community sentences at reducing reoffending.
Of course, short-term prison sentences have a particularly harmful effect on women and primary carers, as we have debated. It is important to note that in a Parliamentary Written Answer on 30 June 2021, more than 500 women were in prison on a sentence of less than two years. We have already heard from my noble friend Lord Dubs the economic case against short sentences. In addition, the National Audit Office estimated that the cost of looking after short-sentence prisoners, not including education and healthcare, was £286 million a year.
It is also interesting to note, as we have heard tonight, public attitudes to prison sentences, particularly short sentences. I know that the Government take an interest in this. In a survey conducted in 2018 by Crest Advisory, fewer than one in 10 people said that having more people in prison was the most effective way to deal with crime. Early intervention, better parenting, discipline in schools and better rehabilitation were all cited as more effective responses.
Similarly, Revolving Doors undertook a survey which found that 80% of the public think that the theft of daily essentials such as food, sanitary products and nappies does not warrant a prison sentence, and that 74% of the public think that people with drug and alcohol addictions should receive treatment programmes not prison sentences.
Baroness Bennett of Manor Castle (GP)
My Lords, I offer Green support for Amendments 212 and 213, with a preference for Amendment 213, which this debate has made clear is the stronger of the two. I return to the Committee after two weeks away from your Lordships’ House at the COP 26 climate talks. There we heard again and again about the need for evidence-based policy-making on the climate. It is very clear from the powerful introductions from the noble Lords, Lord Ponsonby and Lord Dubs, and all of the subsequent debate, that the evidence here is clearly that short prison sentences do not work.
I very much agree with the comment by the noble Lord, Lord Beith, in response to the noble Lord, Lord Pannick, that those words are there in the Sentencing Code, but clearly we need to strengthen this prescription. The figures from 2019 show that more than 44,000 prison sentences of less than six months were handed out. That was nearly half of all people sent to prison. Some 68% reoffended within a year of release, and for theft offenders, the rate was 82%. Two-thirds of the women in prison are serving a sentence of less than six months. Like other noble Lords, I go to the excellent group, Revolving Doors, and the experience of one person, Robert, subjected to a whole succession of short sentences. He said:
“Any support with drugs and alcohol I had in community stopped when I went to prison. I didn’t access any support in prison and certainly there was no planning when I was released.”
Very briefly, I turn to the reference to children in Amendment 212. The report from the Joint Committee on Human Rights, Human Rights and the Government’s Response to COVID-19: Children Whose Mothers are in Prison, indicated that the Government do not have clear figures on the number of women in prison who are separated from dependent children. It recommended that the Government undertake a census and ask all women coming into prison whether they have dependent children and what ages they are, and that those figures be collated and reported regularly. Can the Minister tell me, either now or in the future, whether that recommendation from the Joint Committee on Human Rights has been acted upon?
Lord Hope of Craighead (CB)
My Lords, I support both these amendments, but I want to add a brief comment on the mechanism which they both have in common: the giving of reasons. I know from my own experience how valuable it is to marshal your thoughts when you are having to give reasons, and sometimes when you write them down you wonder whether your thoughts in the first place were correct, and you may think again as a result. So the mechanism that is being suggested is a good one and, with great respect to my noble friend Lord Pannick, I think Amendment 213 in the name of the noble Lord, Lord Ponsonby, does add something to the code.
Of course, the code encourages care in passing custodial sentences and it sets it out very well, but it is this additional element which is of value. One particular word in the amendment adds force to it, and that is “must”. Everybody will have to do this. The noble Lord will know better than I do how often magistrates in particular pass custodial sentences without giving reasons. The point is that this discipline, which both amendments seek to inject into the system, adds value.
That having been said, I hope that these reasons will not just become a rota, because there is some experience in the Supreme Court where we had to give reasons for refusing leave to appeal; we had many of these cases to deal with, and we adopted a mechanism which I think the Minister will know quite well—it was the same reason given every time. That does not really meet what I think the noble Lord, Lord Ponsonby, is getting at, and I hope the Minister will be able to reassure us that when the word “must” is put there, together with the other matters in his report, it will actually add value and people will really think before they give their reasons, and not simply adopt a formula.
Lord German (LD)
My Lords, I would like to add a little to the evidence which has already been provided to the Minister, but he must of course know the evidence which has already been made available to him. Just in case it has not, I repeat what the recent sentencing White Paper says: short sentences
“often fail to rehabilitate the offender or stop reoffending.”
It goes on:
“A Ministry of Justice 2019 study”—
an analytical exercise, full of figures—
“found that sentencing offenders to short term custody with supervision on release was associated with higher proven reoffending than if they had instead received community orders and/or suspended sentence orders.”
In other words, the Government’s own evidence points to supporting these amendments—not necessarily in the same words, but certainly the thrust of them. We should remember that, pre-pandemic, nearly half of those people who were sentenced to custody in England and Wales were subject to short sentences of less than, or equal to, six months.
There are many reasons why we must support the change—more effectively reducing reoffending, dealing with issues such as drug use and producing better outcomes for women. Short prison sentences do not provide sufficient time for addressing those issues, such as dealing with substance addiction, or benefiting from any education and training facilities on offer. There may not even be sufficient time for the prison authorities to devise a programme to address the prisoner’s needs on release day. The best we can say about short sentences is summed up by one of the former Conservative Prisons Ministers, of which there have been many in recent years, who said that short prison sentences are
“long enough to damage you but not long enough to heal you.”
Almost two-thirds of prisoners sentenced to these terms of less than 12 months will reoffend within a year. The amazing statistic is that nearly half of adults are convicted of another offence within one year of release, but anyone leaving custody who has served two days or more is now required to serve a minimum of 12 months under supervision in the community. As a result of not fulfilling their supervision orders in some minor way, 8,055 people serving a sentence of 12 months or less, and sometimes of only a few days, were recalled to prison in the year ending December 2020.
What has happened to the Conservative plan to secure a reduction in the use of short sentences? I think I know the answer, but it would be helpful if the Minister could confirm to the House what has happened to this idea. The Bill can address this issue. To finish with the words of a former Conservative Secretary of State:
“For the offenders completing these short sentences whose lives are destabilised, and for society which incurs a heavy financial and social cost, prison simply isn’t working.”
Offenders are less likely to reoffend if they are given a community order. These are much more effective in tackling the root causes behind criminality.
Given the evidence of both Conservative Secretaries of State and the evidence produced in the Government’s own studies, can the Minister explain whether there has been a U-turn or a Z-turn, or whether the course is laid out as described in the evidence that they have received?
Lord Marks of Henley-on-Thames (LD)
My Lords, this debate has raised two important issues: the justification for short custodial sentences and how we curtail their imposition in practice.
The debate saw an interesting exchange between the noble Lord, Lord Pannick, and my noble friend Lord Beith, and I take the point made by the noble Lord, Lord Pannick, that the law requires courts to avoid unnecessary custodial sentences where alternative sentences are appropriate. However, my noble friend Lord Beith is right that far too many short sentences are still imposed. The noble Baroness, Lady Bennett of Manor Castle, gave us some of the figures. The noble and learned Lord, Lord Hope of Craighead, made the point that the amendment does add something to the existing law. One thing it adds is that it is focused entirely on short sentences, whereas the Sentencing Code provisions are not.
This House has heard endlessly of the damage that short custodial sentences do. There simply is no evidence to justify their regular imposition. If the Minister has any such evidence, perhaps he can tell us what it is. We regularly stress the extent to which the rate of reoffending following short sentences greatly exceeds reoffending rates for community sentences, a point made by the right reverend Prelate the Bishop of Bristol, using the words of the right reverend Prelate the Bishop of Gloucester; it was a point also made by my noble friend Lord German a moment ago.
Lord Wolfson of Tredegar (Con)
My Lords, it is important to remember what is in the amendments and what is not. We are not really debating whether short sentences are or are not a good thing; government policy on that has been stated frequently and I will restate it shortly. I am not proposing to make any sort of turn, whether a U-turn or a Z-turn. Instead, I will keep on the straight and narrow, if I can use that phrase in this context.
It is important to remember what the amendments seek to do. They would prevent the court passing a short custodial sentence unless it is satisfied that no other sentence is appropriate. They would also require the court, if imposing a short custodial sentence, to explain why alternative sentences were not considered appropriate. Let me be clear: I understand absolutely the sentiment behind the amendments and appreciate, as the noble Lord, Lord Dubs, made very clear, that this is not saying that there are no circumstances in which a short custodial sentence could be appropriate—I fully take that on board.
I agree that short custodial sentences can, in many cases, be less effective at tackling reoffending than community sentences. The noble Lord, Lord Ponsonby, was very clear about the importance that magistrates attach to community sentencing and how it is important that they have confidence in the community sentence regime. The words of the right reverend Prelate the Bishop of Gloucester that were read to us also questioned whether short custodial sentences were, to use her phrase, an effective remedy. I think I have dealt with that point. I listened with real care to the testimony I heard at the event she organised and which I was very happy to attend.
The Government cannot support these proposals because they reflect existing law which is sufficiently robust. With respect to the noble Lord, Lord Beith, when it comes to statute, I do not believe that saying something again makes it stronger. If something is already in statute and is not being done, it is critical to investigate why it is not being done, and not simply say the same thing again. I therefore gratefully adopt some of what has already been said to the Committee by the noble Lord, Lord Pannick.
Section 230 of the Sentencing Act 2020—let us just see how it works—places important restrictions on the courts imposing discretionary custodial sentences. It starts with a negative:
“The court must not pass a custodial sentence”—
the starting point is that the court cannot pass a custodial sentence; that is the default—and then continues:
“unless it is of the opinion that … the offence, or … the combination of the offence and one or more offences associated with it, was so serious that neither a fine alone nor a community sentence can be justified for the offence.”
Section 77 of the Act goes further and makes clear that even where the threshold for passing a custodial sentence has been met, the court may still pass a community sentence after taking into account any mitigation. Even then, where a court has formed the view that only a custodial sentence can be justified, even in light of any mitigation, it may still suspend that sentence so that it does not become an immediate custodial sentence, taking into account factors such as realistic prospect of rehabilitation, strong personal mitigation, which would obviously include the effect on dependants, as we discussed in earlier groups, and significant harmful impact on others of immediate custody. We suggest that, taken together, this provides a very robust framework which would ensure that short custodial sentences are passed only where there is really no other alternative for the court.
Lord Marks of Henley-on-Thames (LD)
I am very grateful to the Minister for giving way. Does he take my point that none of those provisions focuses on short custodial sentences in particular, as opposed to custodial sentences in the generality?
Lord Wolfson of Tredegar (Con)
I accept that they do not refer specifically to short custodial sentences, but when the court is considering a short custodial sentence, the particular factors the court would have to go through before imposing it—and particularly before imposing an immediate short custodial sentence—would be all the starker. It is important that we have a consistent regime. For the reasons I have set out, I do not think it necessary or helpful to have a separate regime for shorter custodial sentences. The position on that, I suggest, is already absolutely clear, as is the requirement for a court to explain its reasons for passing sentence. It is important to recognise that the court has to explain its reasons for passing any sentence, not just a custodial sentence; otherwise, the Court of Appeal will have something to say about it. That is set out in Section 52 of the Sentencing Act.
I hear the point made by the noble and learned Lord, Lord Hope of Craighead, that when it comes to courts explaining the reasons for their sentences, it is very important that they are bespoke and not off the peg—if I can put it that way. That is very important, not least for the offender to know why that sentence has been passed. I will not say any more about the reasons given by the Supreme Court for refusing permission to appeal, but the noble and learned Lord was certainly right that I was all too familiar with receiving those reasons in my cases.
The amendment tabled by the noble Lord, Lord Ponsonby, goes further because it sets out a list of “principles” the court must take into account. I suggest to the noble Lord, who is very familiar with this area, that those principles are by and large set out very clearly already in the guidelines from the Sentencing Council. I suggest that the principles enshrined in legislation would not take us any further.
As the noble Lord knows, there are five statutory purposes when it comes to sentencing, set out in Section 57 of the Act:
“the punishment of offenders … reduction of crime (including its reduction by deterrence) … reform and rehabilitation … the protection of the public, and … reparation by offenders”.
A sentence can serve one or more of those purposes. The Act also states that, even when the threshold for custody has been passed, that does not mean that a custodial sentence is inevitable—particularly for offenders on the cusp of custody.
Imprisonment should not be imposed where there would be a disproportionate impact on dependants. We touched on that today. We looked at that in a lot more detail in an earlier group, so I hope the Committee will forgive me for not dealing with that in any more detail. I have set out the position in some detail already. It is fair to say that, when this amendment was tabled in the other place, Alex Cunningham MP fairly recognised that the principles are already accepted in the sentencing guidelines, which all courts are required to follow; they are not optional. I suggest that the amendment is unnecessary.
Proposed new subsection (3) of the amendment from the noble Lord, Lord Ponsonby, concerns the impact of custody on the children of primary carers or the unborn child of a pregnant woman. I think that is almost identical to an amendment we discussed earlier, tabled by the noble Baroness, Lady Massey, the noble Lord, Lord Dubs, and the noble and learned Lord, Lord Falconer of Thoroton. Again, I have responded to that in some detail already, so I am not proposing to say any more about that.
I will pick up two other points. First, the noble Lord, Lord Bradley, talked about Scotland. The position in Scotland is different. It has a very different sentencing regime from that of England and Wales. The Sentencing Code here, which I have set out, contains the requirements and protections which I have sought to explain. For those reasons, we do not believe that the amendment is necessary; nor, with respect, do we believe we get much assistance in this regard from looking at the Scottish law because there is a very different system for sentencing.
The noble Baroness, Lady Bennett, asked me about the JCHR recommendation. In the time I have had, I have an answer here for her. It is fair to say that it is slightly off-topic. Perhaps she would be happy if I were to write to her on this point, rather than take further time. I will set out the answer in writing; I hope that is acceptable.
For those reasons, we suggest that this is already covered in legislation and in the sentencing guidelines. I invite the noble Lord to withdraw his amendment.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I thank the Minister for summing up his response to the two amendments in this group. I feel I have been around this track a number of times over the years and we hear the same arguments again and again. The central point is surely that made by the noble Lord, Lord Beith: the current state of affairs is not satisfactory. We have the merry-go-round of short sentences so that sentencers, including myself, feel that we have to make short sentences because we have repeat breaches of community orders and some sentencers do not have confidence in them. So the merry-go-round carries on, with all the disruptive and damaging consequences which we have heard about from many noble Lords in this debate.
I am not saying that my amendment is significantly better than that of my noble friend Lord Dubs. I am saying, however, that there needs to be a holistic response of shorter sentences and better community sentences which people have confidence in, and which the offenders stick to and benefit from.
I will just come to the question from the noble and learned Lord, Lord Hope, about giving reasons. Magistrates’ courts are not a court of record. However, we give reasons and write them down—particularly if we think that we are going to be appealed. So, yes, we do give reasons. I beg leave to withdraw my amendment.
Police, Crime, Sentencing and Courts Bill
Monday 15th November 2021
(2 years, 5 months ago)
Lords ChamberRead Full debate Police, Crime, Sentencing and Courts Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 40-IX Ninth marshalled list for Committee - (15 Nov 2021)
Lord Blencathra
“Sex-specific incarceration for violent and sexual offenders
After section 20 of the Gender Recognition Act 2004 insert—“20A Sex-specific incarceration(1) Where a person with a gender recognition certificate is serving a conviction for a violent or sexual offence, that person shall be treated with respect to housing on the prison estate by reference to the sex registered at their birth.(2) Where a person with a gender recognition certificate is remanded in custody for a suspected violent or sexual offence, that person shall be treated with respect to housing on the prison estate by reference to the sex registered at their birth.”” Member’s explanatory statement
This amends the Gender Recognition Act 2004 to ensure that prisoners with a gender recognition certificate who are suspected or convicted of violent or sexual offences are treated as their sex registered at birth with respect to housing on the prison estate.
Lord Blencathra (Con)
My Lords, I am moving this amendment in my name and those of my noble friends to defend the rights of female prisoners. This is not something I ever imagined I would have to do. In my 38 years in Parliament, I have always supported the rights of women, but I was never a champion because a large number of parliamentarians were far better qualified than me and I thought that women’s rights were generally headed in the right direction—not as quickly as they should be, but in the right direction nevertheless.
Now, I find that the rights of women are under the greatest threat I have seen in my lifetime. It is not just about their rights to safe places such as bathrooms, changing rooms, NHS single-sex wards and in prison; their whole existence as biological women is under existential threat as some people—nearly all men—seek to erase the word “women” from the lexicon or commandeer it for the use of men who identify as women. Let me be crystal clear: I completely support the right of men, as guaranteed in the Equality Act, to change their gender and identify as women. They must not be discriminated against. However, let us be equally clear that men who identify as the female gender are not biological women because, as has been said before, only women have a cervix and a womb, and only women bear children. It is not transphobic to point out that elementary biological fact, which has been at the root of human existence for countless millennia.
I believe that the threat against women is increasing daily. Young lesbian women are being condemned as transphobic if they refuse to have sex with men who claim to be women. What a perversion of common sense and reality that is. However, it is worse than that. The police say that there has been a doubling of crime by female paedophiles. That is a big fat exaggeration. Sexual abuse by women has increased, but it is still infinitesimally small in comparison to that by men. Lynne Owens of the National Crime Agency says that the problem of male paedophilia may be seven times higher than first thought. There has been a huge increase in male paedophiles, some of whom then describe themselves as women; of course, a thoroughly woke police force swallows that nonsense and records it as if the rape and sodomy of children was done by real women. Some of our police forces are trashing the reputation of women by accusing them of crimes committed by men. I believe that the message should go out to the police service that when a male is arrested or commits a crime, he should be recorded as male and never as female, no matter how he designates himself.
I turn to prisons, the substance of my amendment. I am afraid that the situation there is just as bad. Although I suspect that I am in a minority in this House—as I am on many things—I am not one of those who believes that women should not be sent to prison. When the crime justifies it, women should go to prison and be punished. However, that punishment should not include the threat of rape and violence from big, brutish rapists who have decided to identify as women and get sent to a women’s unit. The female prison estate is currently run as a mixed-sex institution because the MoJ’s policies permit prisoners of the male sex, where they identify as transgender and fulfil certain criteria, to be allocated to the female estate and held in women’s prisons alongside vulnerable female offenders. Eligible males include those convicted of the most serious, violent and sexual offences and those with intact male genitalia.
Among others in prison at the moment, there is a vile man—I would describe him as vile—who raped two children, got his gender recognition certificate while in prison and is now swaggering around a female prison wing. I cannot name him or his prison. I believe that women’s prisons should be separate, single-sex facilities for the safety, dignity and privacy of women in prison. Since the Corston report in 2007, it has been acknowledged throughout the criminal justice system that women in prison exhibit patterns of vulnerability that distinguish them from both women in the wider community and male offenders. Female offenders report disproportionately high rates of previous experience of violent and sexual abuse; they also experience high rates of mental health problems. Indeed, in the previous debate, I heard the noble Lord, Lord Dubs, say that three-quarters of women in prison had suffered male violence before being sent to prison. A recent study of prisons in Scotland found a high prevalence—almost 80%—of significant head injury; these injuries were most often caused by repeated incidents of domestic abuse occurring over several years.
For many female prisoners, time in prison is often the first opportunity to tackle the complex issues around their offending, improve their health and access the services they need. Where women in prison have been the victims of sexual and violent assault, prison is often the first time they can be confident that they will be away from their male abusers. Where women in prison have been the victims of sexual and violent abuse at the hands of men, the presence of any offender of the male sex may have an inherently traumatising effect, regardless of the nature of offence committed. It is for good reason that approaches to tackling female offending have consistently emphasised the need for trauma-responsive services.
The Ministry of Justice policy that permits prisoners of the male sex to be housed in the female estate is called The Care and Management of Individuals who are Transgender. The policy states that all male prisoners who identify as transgender and who are in possession of a gender recognition certificate must be allocated to the female estate. The conviction, offending history, risk profile or anatomy are of no consideration.
Theoretically, a decision may be made to transfer to the male estate after risk assessment. We know of no situation where this has happened. Even the most high-risk male prisoners have remained in the female estate, including those convicted of violent and sexual offences against women and those with intact male genitalia. In respect of male prisoners who identify as transgender and who have no gender recognition certificate, initial allocation is to the male estate. The prisoner may then make an application to be transferred to a women’s prison.
In March 2021, a judicial review was brought against the Secretary of State for Justice, challenging the lawfulness of the MoJ’s policies that permit prisoners of the male sex to be housed in the female estate. Judgment was handed down in July and found that these policies are not unlawful. It would be quite extraordinary if the MoJ was found to be operating an illegal policy. However, the judgment was clear that the court had been called on to rule as to the lawfulness of the policy and not its desirability.
Lord Justice Holroyde acknowledged the negative impact of these policies on women in prison. He said
“I readily accept that a substantial proportion of women prisoners have been the victims of sexual assaults and/or domestic violence. I also readily accept the proposition … that some, and perhaps many, women prisoners may suffer fear and acute anxiety if required to share prison accommodation and facilities with a transgender women who has male genitalia, and that their fear and anxiety may be increased if that transgender woman has been convicted of sexual or violent offences against women.”
He also said:
“I fully understand the concerns advanced on behalf of the Claimant. Many people may think it incongruous and inappropriate that a prisoner of masculine physique and with male genitalia should be accommodated in a female prison in any circumstances.”
I agree with Lord Justice Holroyde that it is both incongruous and thoroughly inappropriate. If it is lawful to house prisoners of the male sex who have been convicted of the most serious violent and sexual offences alongside women who have been the victims of violent and sexual assault, that law must change. It is wrong.
Under the Gender Recognition Act 2004, people who fulfil certain criteria are able to obtain legal recognition of their acquired gender. Legal recognition will follow from the issue of a gender recognition certificate by a gender recognition panel. A new birth certificate is also issued, with the sex marker changed to reflect the acquired gender and the name changed to the newly adopted name. There is no requirement for surgery or medical treatment to obtain a GRC.
GRCs have been obtained in prison by males convicted of violent and sexual offences who have then transferred to the female prison estate. I do not consider that the original intention of the Gender Recognition Act was to enable violent or sexual offenders of the male sex to be housed with women in prison, much less those who retain fully functioning male genitalia. I also make this point: these male prisoners want to identify as women. That is perfectly okay. Apparently, they do not want their male bodies, but every single one of them have retained their male genitalia as they swagger around female prison units. I suggest that those men, particularly those in prison, are simply faking being a woman to get access to real biological women in a female estate.
Baroness Brinton (LD) [V]
My Lords, the problem that Amendment 214 is trying to resolve is already addressed in the very strict codes of practice and guidance to the prison sector. Given that there is a full system of assessment of transgender prisoners, the prison environment in which they are currently placed and that in which they would like to be placed, it is worth running through the detail.
The noble Lord, Lord Blencathra, quoted from last year’s judicial review, but paragraph 75, where the explanation for the ruling starts, states:
“It is clear that the number of transgender women in women’s prisons is small, and the number who hold GRCs (and are therefore entitled to be treated as women in accordance with the Gender Recognition Act 2004) is very small.”
I say that in the light of the tone of the speech by the noble Lord, Lord Blencathra, which made it appear that there was a large invasion of trans women in women’s prisons.
The number of transgender prisoners is very small. However, the guidance on the management of prisoners is lengthy and clear, because transgender prisoners have human rights, as all prisoners do, and because they themselves are at serious risk in prison. The most recent statistics are from last year, and in its coverage of the data, the BBC noted:
“The total number of transgender victims far exceeds the number who were suspected of carrying out sex attacks, with only one such case in 2019.”
Between 2016 and 2019, of 97 sexual attacks in the women’s prison estate, seven trans women had been involved in sex assaults, either as the alleged perpetrator or assistant, with 90 of the sexual assaults being carried out by cis women. A further set of figures from the Ministry of Justice states that 11 trans women had been sexually assaulted in the men’s prison estate in 2019 alone. All this tells us that trans women are far more likely to be victims of assault in prisons than perpetrators and that many more women are assaulted by cis women in prison than by trans women.
However, even if the number of trans prisoners assaulting others is very low, it is right that there are safeguards in place, so what does the guidance say? It says that after a prisoner declares and can provide evidence that they are living in the gender that the offender identifies with, there will be an initial local transgender case board which will, as appropriate, make arrangements for transfers to other parts of the prison estate.
The Parole Board published Guidance on Prisoners who are Transgender in March of this year, which sets out the law very clearly for the prison and probation services regarding prisoners who are transgender. The operational guidance states that
“all transgender individuals, irrespective of whether they are located in the estate which matches the gender with which they identify, must be allowed to express the gender with which they identify. However, decisions to locate individuals who are transgender in prisons that do not match their legal gender can be made only on the recommendation of a Complex Case Board. This board will take into account risk factors to the individual and risk to others”.
To make it clear, for any trans prisoners who might also be deemed a risk to other prisoners, a complex case board has to be called for transgender offenders, which will look at the complexity and specifically assess the risk of harm, prior to making decisions about prison location. The views of the offender must be presented to the board, but a number of healthcare and psychology leads would be there to ensure that any move to a women’s prison would be safe.
Options that a complex case board can consider include moving a prisoner to a women’s prison but keeping them in segregation or, if even that is felt to be too risky, moving them into a segregated part of a men’s prison that is staffed as if it were a women’s unit. There are also now a small number of transgender prison units. It seems that this document sets out well all the steps that need to be taken to protect the trans prisoner—who, as I have already said, is at much higher risk of assault than non-trans prisoners—while also protecting the other prisoners from someone who might be deemed a risk.
There was the case of Karen White, who sexually assaulted two women while on remand at New Hall prison in Wakefield in 2017. It is worth remembering that the Prison Service had to apologise in that case because it had not followed the procedures outlined above, failing all prisoners at New Hall. White should never have been put in a women’s prison and, had there been a complex case board, it would have assessed her as being a risk and not put her in a women’s prison.
The current Ministry of Justice and HMPPS 39-page policy on “The Care and Management of Individuals who are Transgender” says at paragraph 1.6:
“The proper assessment of risk is paramount in the management of all individuals in our care. The management of individuals who are transgender, particularly in custodial and residential settings, must seek to protect both the welfare and rights of the individual and the welfare and rights of others around them, including staff. Decisions must be informed by all available evidence and intelligence in order to achieve an outcome that balances risks and promotes the safety of all in our care and management.”
The process is there to protect all prisoners and to respect the rights and safety of all prisoners. This amendment is redundant. The actual facts of what is happening with trans women in prisons does not match the opening speech by the noble Lord, Lord Blencathra.
Lord Morrow (DUP)
My Lords, I support the amendment moved by the noble Lord, Lord Blencathra, this evening. I do so not just because I have attached my name to it, but because I emphatically agree with what it seeks to achieve. Anyone who knows me is aware that I am an advocate for a strong law-and-order approach to crime; for those who break the law, the punishment must fit the crime—which often includes imprisonment. This amendment, however, is trying to protect the dignity of female prisoners.
The female prison estate is currently run as a mixed-sex institution. This is because the Ministry of Justice’s policies permit prisoners of the male sex who identify as transgender and fulfil certain criteria, resulting in them being held alongside vulnerable female prisoners. Some of these prisoners have been convicted of the most serious violent and sexual offences and are biologically male.
It surely follows that women’s prisons should be separate-sex facilities to preserve, as far as reasonably possible, the safety, dignity and privacy of women in prison. Since the Corston report in 2007 it has been acknowledged throughout the criminal justice system that women in prison exhibit patterns of vulnerability that distinguish them both from women in the wider community and from male offenders. It is also worth noting that female offenders report disproportionately high rates of previous experience of violent and sexual abuse, and experience high rates of mental health problems.
Where women in prison have been victims of violent and sexual assault, prison is often the very first time they can be confident that they will be away from their abusers, who are usually men. I strongly contend that, where women in prison have been victims of sexual and violent abuse at the hands of males, the presence of any offender of the male sex may have an inherently traumatising effect, regardless of the nature of the offence committed.
It is the Ministry of Justice policy—namely, The Care and Management of Individuals who are Transgender —that permits prisoners of the male sex to be housed in the female estate. The policy states that all male prisoners who identify as transgender and who are in possession of a gender recognition certificate must be allocated to the female estate. This is irrespective of any conviction, offending history, risk profile or anatomy, including those who are high-risk prisoners and those convicted of violent and sexual offences against women.
I too was going to refer to the judicial review that was brought in March 2021, but the mover of the amendment has adequately covered that, so I will refrain. However, I shall again emphasise one line: while the policies were found not to be unlawful, it should be said again that the judgment acknowledged the negative impact of the policies on women in prison.
Furthermore, there is no requirement under the Gender Recognition Act 2004, if people fulfil certain criteria, for them to have surgery or medical treatment to obtain a GRC. It is a fact, as has already been referred to, that GRCs have been obtained in prison by males convicted of violent and sexual offences who have been transferred to the female prison estate. The latest data available on the number of male-sex prisoners who identify as transgender dates back to 2019, but back then it was 11 in number. I understand that new data will be available to be released, or at least is expected to be released, this month. Forcing women to share accommodation with prisoners of the male sex, particularly where those prisoners have been convicted of violent or sexual offences, arguably engages Article 3 on the right not to be subjected to inhuman or degrading treatment or punishment.
I urge your Lordships’ House to support this reasoned and sensible amendment, which is clearly intended to respect female prisoners, including their rights and dignity. Not to do so could be interpreted as not caring how female prisoners end up. Indeed, the conditions that they are subjected to could be construed as part of their prison sentence—which of course they are not, and never should be.
Baroness Meyer (Con)
My Lords, Amendment 214 seeks to eliminate the risks and dangers to women in prison by the muddled use in legislation of the terms “sex” and “gender”. They are not interchangeable. They have come to mean very different things. Matters have reached such a pitch that I am tempted to paraphrase the 18th-century man of letters Dr Samuel Johnson and say that “Allowing a person with a full set of male genitals the legal right to serve a sentence in a women’s prison is not done well, but you are surprised to find it done at all”. It is, not to put a too fine a point on it, barking mad.
Lord Pannick (CB)
My Lords, the noble Baroness’s speech ranged very broadly indeed. We are in fact debating a complex penal issue where we have a policy that addresses the matter very sensibly, as the noble Baroness, Lady Brinton, explained.
I will add just one point to this debate. It is not difficult to see the danger to people who were registered as male at birth but who are now registered under the Act as female if they were required to be placed in a male prison, as this amendment would require, irrespective of the particular circumstances of their case, as long as they are a sexual or violent offender. It should not need to be emphasised, but I will emphasise it because it is the fact, that many of these people have had hormone treatment, and some of them have had reconstructive surgery that has given them primary and sometimes secondary sexual characteristics of a physical nature. What do the proposers of the amendment think will happen to such people if the Home Office is obliged to place them in a male prison?
Of course we would all agree that, if there is an offender in custody for a suspected violent or sexual offence who is in possession of a gender recognition certificate and poses a risk to others in custody, then specific steps should be taken to isolate and deal with them. But that does not justify or require ignoring a gender recognition certificate in the way the amendment proposes.
Baroness Fox of Buckley (Non-Afl)
My Lords, it has to be said that when I talk to members of the general public and tell them that it is MoJ policy to allow prisoners of a male sex to be housed according to their self-declared gender identity in a women’s prison, irrespective of whether they have taken any legal or medical steps to acquire their gender, that they do not need to have gone through any physical transformation and still retain male genitalia, which we have heard lots about already in this debate, and that they do not even need to have obtained a gender recognition certificate—they need just to declare that they are women and demand that they are moved to the women’s estate, and it is seriously considered—they are aghast. It falls under the category of, “Has the world gone mad?”
That common-sense response might not feel appropriate when discussing legislation, but in this instance it may help us to look at this issue in practical, real-life terms, not just in abstractions. That is why I welcome the amendment very strongly. Although it does not resolve all my concerns, I welcome its modest, narrow aim of removing the most egregious aspect of this situation: allowing male prisoners who identify as trans but have convictions of violence or sexual offences against women to live with women prisoners. There really is no point in the Government issuing strategies and grand words about violence against girls and women if the same Government have no qualms about letting rapists share the same confined living quarters as vulnerable women in prison who, let us be frank, cannot leave or escape because they are locked up by the state. This amendment’s focus is on convicted sex offenders and it is urgent that the Government take notice.
It is important to note that when gender-critical commentators and academics raise qualms about the general policy of housing transgender prisoners in the women’s estate, they are often dubbed transphobic and accused of holding a prejudiced view of all trans women as sexual predators, but this is a malign caricature. At this point I give a shout-out of solidarity to Professor Jo Phoenix, an esteemed and conscientious criminologist who has been harassed and traduced for raising such legitimate concerns.
Wherever one stands on the general issue, this amendment is specific and cannot be accused of implying that all natal men, however they identify, are a sexual threat to women, because that would not be true. We are talking only about convicted sex offenders and those guilty of violence. I still hope this probing amendment might encourage the Government to look more closely at a range of issues in this area. I particularly want the Government to consider whether the Ministry of Justice’s involvement over a period of time with the controversial lobbying group Stonewall, which has already been referred to by the noble Baroness, Lady Meyer, as with so many public bodies, may—just may—have led to the skewing of policies in a particular direction.
For example, I know how keen this Government are on data and statistics, but as Kate Coleman, the founder of Keep Prisons Single Sex, has noted—this just seems incredible to me—the MoJ admits that it does not know how many prisoners identify as trans because, with a gender recognition certificate, they are counted by their new legal gender. I am not sure how the noble Baroness, Lady Brinton, can be so sure of the statistics she quotes, because the tools designed to assess any threat posed by male prisoners who identify as trans women cannot be picked up accurately. If someone with a GRC attacks a female prisoner, it will be recorded as an assault by a woman on another woman.
I also want to query who is listened to in this discussion on what is obviously a clash of rights. In the course of the recent High Court ruling we have heard about, Lord Justice Holroyde outlined the need to balance
“the subjective concerns of women prisoners”
with
“the rights of transgender women in the prison system.”
This made it sound as though the women, the biological women, were all being overly subjective, and the transgender women had rights. Describing one side as subjective and the other with rights misses a crucial point, because that transgender woman has an identity that is not an objective fact but a subjective desire and then a declaration. Why are women prisoners’ subjective but rational concerns afforded less weight here?
When the High Court acknowledged that women prisoners may well be worried and “scared” about sharing prison accommodation with male-bodied prisoners, the court said that that fear was not enough to outweigh the desire of some male prisoners to be housed with women. I wonder: when did the prison estate, or indeed the law, allow its policies to be dictated by prisoners’ desires? I have worked with prisoners over a number of years, particularly with Debating Matters Beyond Bars. Many of the prisoners I have worked with have declared that they desire decent prison education. They desire retraining and better conditions. The prison authorities certainly did not accommodate their desires, so why are these desires accommodated when it comes to the trans issue?
Finally, I am keen that the Government look carefully, and use this probing amendment to do so, at how staff in prisons understand the issue of sex and gender in the context of training. The MoJ policy entitled The Care and Management of Individuals who are Transgender advises staff to complete an “eLearning module” on transgender identity. One of the training courses is named intersecting identities. I have looked at these, and it all rather terrifies me. It is one-sided, jargon-ridden and ideological. I hope this amendment might point the Government to raise and review the whole issue. For now, at least, a very modest amendment should be taken seriously if they really mean they care about protecting women from violent men.
Lord Cormack (Con)
My Lords, I just want to intervene briefly. I support this amendment. To me, it is morally wrong for a physical man to be in a woman’s prison. It is as simple as that. If he has identified himself as a woman, and deserves to be in prison, there should be special facilities that do not bring people of that sort into close proximity with women or—if they are in danger—with men.
Lord Hunt of Kings Heath (Lab)
My Lords, the late intervention by the noble Lord, Lord Cormack, was helpful in suggesting to the Minister that what I think we would all acknowledge is a complex, sensitive and controversial issue would benefit from a sensible roundtable discussion in which the Prison Service was open to some scrutiny. Part of the issue around gender, sex and identity in government as a whole is that policy has been developed mainly by officials who have come under the influence of certain groups, which Ministers have basically accepted and it has not been subjected to proper scrutiny.
My major appeal to the Minister tonight is to allow for that and to open up a dialogue in which those of us who are gender-critical are not accused of being transphobic or under the pay of alt-right American organisations, something which, I am afraid, has all too often clouded the debate. I have an Oral Question tomorrow about Professor Kathleen Stock—a classic case of someone who has expressed quite legitimate views being subjected to horrendous abuse and basically left simply to put up with it herself; it was very late on that the university came her defence. There are so many examples of this, mainly affecting women. There is a lot of misogyny in this debate, and women are left defenceless by pathetic public bodies which are frightened to upset certain groups such as Stonewall. We know this—in how many government departments has policy been developed by officials, with Ministers having virtually no say?
My appeal to the Minister tonight is to take this seriously and to say there is a legitimate debate—not one in which we call each other names, but where we actually start to discuss these issues. It has never been allowed; there has been no real public debate or scrutiny in Parliament. These issues are so sensitive, and with every Bill that goes through, this debate will take place. We know that the Government are split on this, but they have got to get themselves together and start to have a proper dialogue. That is the appeal I make to the Minister.
Baroness Chakrabarti (Lab)
My Lords, I am afraid it is not just the Government who are split on this. With two notable exceptions, rarely have so many noble Barons spoken with such passion and at such length for the dignity of women—and there is nothing wrong with late-flowering feminism. I say that quite sincerely to the noble Lord, Lord Blencathra, who I had the privilege of advising as a young lawyer in the Home Office some years ago now. There is nothing wrong with late-flowering feminism and, indeed, nothing wrong with speaking up for the dignity of all people. I say that as a self-identifying feminist and human rights campaigner.
The debate has ranged widely, which may be fine even at this late hour, but it has ranged beyond the specific issue. Noble Lords have brought up various issues to do with the lexicon and whether people feel that their dignity is lost, or that somehow their femaleness, or their womanhood, is challenged by newcomers, migrants to their sex, et cetera. To get back to the actual issue, life is complicated, prisons are vulnerable spaces and everybody in prison is inherently potentially threatening but also potentially vulnerable. I want to get back to the actual substance of this amendment and what it is trying to address. I say to the noble Lord, Lord Blencathra, that, if he and I were trapped in a lift with a third person—this is just a hypothetical, not an invitation, I promise—and the third person was a cis woman, born a woman, still a woman, always a woman, but none the less a white supremacist with previous convictions as long as your arm for violence against non-white women, I would feel much more threatened by the presence of that offender than by the presence of the noble Lord, Lord Blencathra. He is looking quizzical, but my point is that the Secretary of State has responsibilities to people in custody, in particular, and to people in vulnerable spaces that cannot be dealt with using the blunt instrument of an amendment like this.
I am not making nit-picking points. I am trying to address points that I think the noble Baroness, Lady Brinton, tried to make early on. Forgive me—it is no criticism, but some noble Lords responded subsequently with speeches which were understandably carefully prepared in advance, without the opportunity to hear her rather sensitive and thoughtful setting out of the way in which the Government to date are trying to address their administrative and serious human rights responsibilities to deal with all vulnerable people in prison.
I suggest to the noble Lord that in the hypothetical lift I would be at far greater risk from the white supremacist with previous convictions. This is not a total hypothetical, because this has happened in male prisons where non-white offenders have been murdered by fellow cis males—that being the term for people born and always a man—because of a lack of diligence about the offending and attitudinal profile of a person.
If we really care about people being safe in custody, which we must, this will not be resolved by a blunt instrument. This is not a drafting point or a nit-picking point. In my view, we have too many people—and I suggest too many women—in prison anyway, and we need to pay more attention to who is with whom and how we are taking care of them.
Something like this amendment, which says that your birth sex is always your sex for the purposes of imprisonment and incarceration, would mean that someone born a woman who then went through hormone therapy, possibly more interventionist therapies and even surgery would always be in a women’s prison. That would not necessarily always be the right outcome.
What I am trying to suggest is that, yes, I care about being a woman and, yes, I care about being a feminist, but I am a human first and foremost. I do not hate men. I do not fear all men. I am not a self-loathing cis woman. I believe that in this Committee, perhaps more than anywhere, we should be capable of taking some of the heat out of these sensitive issues, as I think we tried to do in an earlier—I called it historic—debate. Debates about the lexicon and wider dignity, important and heated though they are, will not make women safer and they will not make prisoners safer.
Baroness Meyer (Con)
We are talking about men who feel they are women but who have male genitalia being in a women’s prison. We are not talking about men who had operations. We are talking about men who, after being in a prison for several months, might have needs and could attack women. Some of those men are paedophiles and are violent.
Baroness Chakrabarti (Lab)
I hear the noble Baroness, and I do not call her a late-flowering human rights spokesperson or feminist. I know that when she spoke on another Bill about parental alienation, she very clearly identified and recognised that people of both sexes were capable of this behaviour. Perhaps if she had had the opportunity to listen to the remarks of the noble Baroness, Lady Brinton, before she prepared hers—I make no criticism of that, because we all do it—she would recognise that the Government are already moving quite a long way to deal with these difficult administrative duties of care.
I believe that people of good will and good faith, as I consider this Committee to be, can deal with this without using some of the language that—forgive me— some noble Lords have used repeatedly. Repeatedly calling people one sex even though it is very important to them to be another does not help. This place—this Committee and your Lordships’ House—should not be a place of culture war. This should be a place where we make difficult things a little bit easier because of rational thought and the respect that we pay each other and therefore everyone else.
Baroness Fox of Buckley (Non-Afl)
I want to respond to that because I think another point that follows from what the noble Lord, Lord Hunt, said is that the other argument that comes up all the time is that if you raise these issues you want a culture war, which I think the noble Baroness, Lady Chakrabarti, was implying.
On terminology, if we are all going to get offended, I do not particularly find descriptions of people as “cis” very helpful either, so when it comes to language issues, the point is that there are tensions that exist outside this place. We know that and it is disingenuous to pretend that there are not.
The noble Baroness rightly pointed out that this is a question of administrative duties of care. This amendment has been very carefully worded in a very narrow way about a very specific issue. What is the objection to that? This is precisely a responsible administrative duty of care, regardless of any hyperbole that people do not like other people using even when they use it.
Baroness Chakrabarti (Lab)
I thank the noble Baroness for that intervention. If I offended her in any way by my remarks—
Baroness Chakrabarti (Lab)
—I apologise. Clearly one of the reasons this is so sensitive is that, beyond this Committee and this Chamber, there is not yet even a settled courtesy about some of these matters. If I have offended any Member of the Committee, I apologise.
I was born a woman, and I still identify as a woman, but I have always tried to disagree well with people, including those on the Benches opposite, who I disagree with across the piece. I have never seen all men as a threat, and I have certainly never seen people of other races, sexualities or sex as a threat, and I am not calling anybody names in this debate.
Lord Hunt of Kings Heath (Lab)
My Lords, this is an important debate. I think I am perfectly entitled to intervene; I do not see why I cannot. I agree with a lot of what my noble friend said about the tone of the debate. My problem is the accusation of transphobia.
Lord Hunt of Kings Heath (Lab)
No, my noble friend did not make it, but it is made by many people. Those who are perhaps arguing from my noble friend’s point of view never defend people such as Kathleen Stock when they suffer such abuse. I welcome this debate, which is why I intervened, because, frankly, it is very helpful to try to set a place here. I agree with my noble friend that the Lords is, above all else, a place where we can start to have some reasoned discussion, but there are huge tensions and sensitivities on both sides. I must come back to the Minister: the fact is—
Lord Hunt of Kings Heath (Lab)
That is very true. My noble friend is right. I will take that and ask her to respond to me.
Baroness Chakrabarti (Lab)
I am grateful for that. Forgive me, again, if I have called anybody names. That has not been my intention. This is difficult terrain. The path of human rights does not run smooth and there are all sorts of difficult issues to be dealt with. There are some people beyond this Committee and your Lordships’ House who seek to set people against each other. The focus of this legislation, and your Lordships’ focus in this Committee, should be to ensure the safety of vulnerable people in prison, whatever sex they were born and whatever sex they now identify as. I was trying to suggest that that is not just about biology. It is also to do with criminality, profile, attitude and so on. I believe we have too many people in prison and that we therefore have too many women in prison.
I would defend academic freedom and debate, by the way. Forgive me if I have not been seen to do so. I believe that my record on free speech matters is decent enough. I urge noble Lords to send a signal to the wider world that, in this place at least, we can disagree well and focus on protecting all vulnerable people in prison.
Baroness Falkner of Margravine (CB)
My Lords, I declare an interest as chair of the Equality and Human Rights Commission. As most noble Lords will know, we are the body charged with protecting the protected characteristic of sex as well as that of gender reassignment and the fundamentally important human right of freedom of expression. All those things have been discussed today relatively calmly, on the whole. On debating well, I start from first principles and say that we should never try to close down debate—and yes, we should debate well.
I thank the noble Lords, Lord Blencathra, Lord Morrow and Lord Farmer, and the noble Baroness, Lady Meyer, for proposing this amendment, which basically seeks to ensure that female prisoners are protected from harm. This is a complex area, where the rights of trans women prisoners to have their legal sex recognised has to be balanced with those of female prisoners, who may be fearful of attack, if they know that a dangerous sex offender with male anatomy is housed with them, for example. The important point is that, when you are incarcerated and do not have the liberty to leave a place of danger, the state’s duty to look after you is profound. You do not have the choices that other people have.
The noble Lords and noble Baroness have proposed that prisoners with a gender recognition certificate who are suspected or convicted of a “violent or sexual offence” are treated
“by reference to the sex registered at their birth.”
I understand the intent behind this amendment, which is essentially to secure the safety of natal women. However, it raises some issues that require further thought—for example, the risk of violence towards trans women prisoners housed in a male prison as well as to trans men in a female prison. I urge noble Lords not to frame this serious and complex issue either in a numbers game—are there very few or not so few?—or in what may or may not be our personal outlook, if we find ourselves in that position. The law is frequently a straitjacket, and it is not sufficiently malleable to accommodate the complexity of identities around us.
At the heart of this issue is the need to protect female prisoners and ensure that they have access to single-sex spaces, including bathrooms, sleeping accommodation and other areas that they need. Violent and sexual offenders are a threat to their fellow inmates, regardless of their sex or gender identity. Cases of assault sadly already happen in single-sex prisons. However, in the case of trans prisoners who may be violent or who may have committed crimes involving sexual assault, it is right that we now need to give additional thought to how they are housed. As it stands, the law stands calls for these decisions to be made on a case-by-case basis. While this will be right in many situations, it may also raise the question of how female prisoners can have confidence in their ability to safely access spaces such as toilets within the prison, precisely because they cannot know the outcome of a case-by-case assessment, as opposed to the generality of a law that exists for them. Further thought needs to be given to the facilities provided to trans people and whether provision can be expanded for trans people that ensures that all sides of that debate can be safe and secure within the prison estate.
A further problem with the amendment is that, oddly, it is too narrow and does not capture the issue of trans men or trans women who do not have a gender recognition certificate but, nevertheless, self-identify in the gender and can therefore apply and be granted a place in the relevant prison estate. I do not think the noble Lords who put down the amendment intended for it to be quite so narrow—certainly their speeches do not reflect the narrowness of the written words. These are not straightforward issues, and it is right that we properly consider the balance of rights of different prisoners. I do not believe that the amendment gets that balance right, but it does ask serious and important questions that need to be addressed in law.
If the Minister is minded to pursue these arguments through Report, I ask that he give extremely serious consideration to the importance of getting the balance of rights correct and ensuring that all prisoners have the duty of the state to safeguard them upheld as we go forward.
Baroness Butler-Sloss (CB)
My Lords, I had not intended to speak, but I would like to support what the noble Baroness, Lady Falkner, has just said. There are two groups of people who need support. I agree with her that the well-intentioned amendment of the noble Lord, Lord Blencathra, does not actually meet the problem. These two groups are the women who are women at birth and remain women, and those who were men at birth and become women. Both groups, even in prison, need respect for who they are and what has happened to them. I do not think that the prison system is well adapted at the moment to deal with trans women, and the Minister needs to think with some care whether rather more should be done to help that group of women.
However, the help for that group of women should not be at the expense—I venture into dangerous ground —of those who remain women. This is an extremely tricky area, and we know from areas outside the prison system just how tricky is it. I do not envy the Minister or the Ministry of Justice the situation in which they find themselves because this did not exist—as far as we knew—even 10 or 20 years ago but, my goodness me, it exists now. There are two groups, both of whom need not only respect, but understanding and care, even within a prison.
Lord Paddick (LD)
My Lords, I have been engaged in the debate on trans issues for many years and I have the scars to prove it. I have even been criticised for simply engaging in the debate, by some trans people for even listening to radical feminists, and by feminists because I am not a woman. I have met with, listened to, and talked with many people on all sides of these issues, including radical feminists, gender-critical people, trans people and intersex people. I continue to listen, and I continue to try to understand the views expressed by all sides.
I can feel my blood pressure rising when I hear the comments of many noble Lords around the Chamber. Then I think for a while, and I think to myself that it was not that long ago that I perhaps held similar views until I actually started talking to the people whose lives we are talking about—people who honestly and genuinely believe that they are in the wrong body, if you like, and those who genuinely believe that they are women even though they have male bodies, for example. That is when you begin to understand that these things, which appear completely counterintuitive, make sense for those people. I do not condemn people for what they have said because it was not that long ago that I might have thought along similar lines.
Baroness Fox of Buckley (Non-Afl)
Can I just clarify one thing? Many trans people do not agree with some of the orthodoxies that have become associated with trans activism. The inference was that some people possibly have a particular view because they have not met any trans people. That is not true. Whole swathes of trans people do not go along with a particular political opinion, for example in relation to prisons, as in this instance. I am concerned that it is not seen that those people who argue a gender-critical view are doing it because they are ignorant and have not got out enough.
Lord Paddick (LD)
I hear and understand what the noble Baroness says. However, on this amendment, I am clear. We oppose Amendment 214 from the Front Bench. We do not support the noble Lord’s amendment, but we understand completely the concerns that he and other noble Lords have. However, we feel that the risks that the noble Lord seeks to minimise are already minimal, and that other risks that need to be managed are not covered by this amendment.
The amendment seeks to amend the Gender Recognition Act to reduce the risk that transgender prisoners present to others. This is neither necessary nor desirable for the following reasons. First, there are very few transgender prisoners. In a data collection exercise between March and May 2018, only 44 of 124 public and private prisons said that they had any transgender prisoners at all. The fact that there are so few transgender people in prison is also an indication of the level of offending by transgender people, the seriousness of that offending and the extent of the threat that they pose.
Secondly, the risk of mental health problems, self-harm and suicide is far greater among the transgender community than it is among those who are not transgender. Clearly, in a prison setting, the risk of mental health problems, self-harm and suicide is likely to be higher for all inmates; for transgender prisoners, it is likely to be very high indeed. In November 2015, an inmate who said that she would kill herself if she was sent to a male jail was found dead. Vicky Thompson, aged 21, died a week ago at the all-male HMP Leeds. Friends said that Thompson, who was born male but had identified as a woman since she was a teenager, had asked to be sent to a female jail in Wakefield. This is the sort of impact that having an unbalanced amendment, such as the one proposed by the noble Lord, Lord Blencathra, can have on transgender people.
Thirdly, if the Prison Service thinks that the risk presented by a transgender prisoner is such that they should be housed in a prison contrary to their legal gender, it can allocate them to a part of the estate that does not match their legally recognised gender. The decision must be taken after consultation with experts and at a high level, but it is possible.
A number of noble Lords have referred to the High Court judgment in July 2021, where lawyers for a female inmate in the female prison estate brought a judicial review against the MoJ. The MoJ argued that the policy pursues a legitimate aim, including
“facilitating the rights of transgender people to live in and as their acquired gender (and) protecting transgender people’s mental and physical health.”
It is interesting that I am actually quoting from the same case as other noble Lords have quoted from. Lord Justice Holroyde said:
“It is not possible to argue that the defendant should have excluded from women’s prisons all transgender women”—
as this amendment proposes. He continued:
“To do so would be to ignore, impermissibly, the rights of transgender women to live in their chosen gender.”
The case was not actually about excluding all transgender women; it was about challenging how policies applied to those who had been convicted of serious or violent offences against women—as the noble Lord’s amendment does.
The Lord Justice went on to say that trans women’s offending history was a factor that the existing policies were required to consider. He said:
“the need to assess and manage all risks is repeatedly emphasised”
throughout existing MoJ policies. He continued:
“In an exceptional case, a high risk transgender woman, even with a GRC, can be transferred to the male estate because of the higher level of security which is there available.”
Therefore, there is a mechanism to do exactly what the amendment is seeking to do, but on a risk-assessed basis.
The court also heard that expert panels are also involved in the process when allocating transgender prisoners and are “expressly required” to consider the trans woman’s offending history, her anatomy and her sexual behaviours and relationships. The Lord Justice said:
“They can in my view be expected to be astute to detect any case of a male prisoner who, for sinister reasons, is merely pretending to wish to live in the female gender.”
He concluded:
“the policies require a careful, case-by-case assessment of the risks and of the ways in which the risks should be managed. Properly applied, that assessment has the result that non-transgender prisoners only have contact with transgender prisoners when it is safe for them to do so.”
This is the same case that noble Lords have been quoting from.
Yes, the Lord Justice said:
“I readily accept that a substantial proportion of women prisoners have been the victims of sexual assaults and/or domestic violence.”
He added that some women prisoners,
“may suffer fear and acute anxiety if required to share prison accommodation and facilities with a transgender woman who has male genitalia, and that their fear and anxiety may be increased if that transgender woman has been convicted of sexual or violent offences against women.”
This amendment says nothing about whether the person has had sex-reassignment surgery, and there are trans women with gender recognition certificates who have not undergone gender reassignment surgery. The amendment, therefore, is not fit for purpose.
There are two sorts of risk that need to be managed here. There are the risks to the transgender prisoner, either from themselves, in terms of mental health, self-harm and suicide, or the risk from other prisoners, such as the risk of a transphobic attack or an attack based on their acquired gender if they present as a woman in a prison housing men, for example. There may be risks that the transgender person poses, perhaps because of a previous history of violence or sexual offences, but those falling into this category are few and far between and can be dealt with under the law as it stands. Any attempt to stereotype all transgender women as a threat to women flies in the face of the facts and needs to be robustly challenged.
The implication that transgender women are a threat to children reminds me of the sort of abuse that was directed towards me as a gay man a few decades ago.
Lord Blencathra (Con)
The noble Lord is looking at me and implying that I suggested that transgender men were a threat to children. I said no such thing at all. I quoted the case of a male rapist who had raped two children. I was not suggesting that this was endemic in the transgender community, or that they are a threat to children at all. That is not what I said, not what I implied, not what I intended.
Lord Paddick (LD)
I am grateful for the clarification that the noble Lord has given, and I will allow noble Lords to read the official record and draw their own conclusions from what he said.
The noble Lord’s amendment manages only one of these risks—arguably the much lower risk. Each case should be, and is currently, managed on a case-by-case basis, and that should continue. We oppose the amendment.
Lord Falconer of Thoroton (Lab)
We, too, oppose the amendment. I think we all accept that transgender women are entitled to live in their chosen gender. The law protects transgender women and transgender men from discrimination because they are transgender men or transgender women. The position that is outlined in this amendment leads all transgender women to be consigned to the male prison estate—a point made very forcibly by the noble Lord, Lord Pannick. The moment one says that, one sees the total unthought-out nature of the amendment.
The way forward was, I believe, charted by the noble Lord, Lord Pannick, and the noble Baronesses, Lady Falkner and Lady Brinton. The noble Baroness, Lady Falkner, indicated in a powerful speech that one is dealing, in effect, with rights that may conflict: on the one hand, the right of a transgender woman to be properly protected, including in her choice to be a transgender woman, and on the other, the possibility that certain prisoners, including transgender women, can be a threat to other prisoners in the women’s estate. The way that that is dealt with at the moment was well outlined by the noble Baroness, Lady Brinton, in her excellent and detailed speech. The prison authorities deal with it on a case-by-case basis using a series of detailed processes. Should we continue with that, or should we condemn every gender recognition-certificated transgender woman who is charged—maybe not convicted —of a violent or sexual offence to being in the male estate?
For my own part, it is pretty obvious that one should continue with the current arrangements. I am sure that they could be improved—I am not in a position to detail any improvements that could be given to them—but that case-by-case basis must be a better approach than that adopted by the amendment in the name of the noble Lord, Lord Blencathra. I would go further and say that I do not suggest to the noble Lord and those who have also supported the amendment that they come back with something else. This is much better dealt with on a case-by-case basis, so we on this side of the House oppose the amendment. We do not think it is appropriate; we do not think it even tries to balance rights, and we would not support it coming back on Report.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
My Lords, having heard the noble Lord, Lord Paddick, perhaps I can begin with two confessions. First, I frequently listen to and discuss issues with people with whom I firmly disagree including, on occasion, Members of your Lordships’ House. Secondly, I do not propose to change that approach.
This amendment from the noble Lord, Lord Blencathra, relates to the management of prisoners who have changed their legal gender by obtaining a GRC—a gender recognition certificate. The effect of the amendment would be that a prisoner with a GRC who is convicted of or on remand for a violent or sexual offence would be, and would have to be, held in a prison matching their sex at birth.
I assure the noble Lord, Lord Hunt of Kings Heath, that I and the MoJ take this issue very seriously but, and with no disrespect to any noble Lord whose speech has ranged more widely, we are in Committee on this Bill. I shall confine my remarks to the subject matter of the amendment rather than the broader questions, whether on Stonewall or related topics, interesting and thought-provoking though they were. The Committee will be aware that the MoJ left the Stonewall diversity scheme in June this year, but I reiterate the department’s commitment to diversity in all its diverse forms. Our policy is not driven by ideology; it is driven by compliance with the law of the land and to consider protection for all—I repeat all—the prisoners in our care.
Reference has been made to the 39-page policy. Let me just read what the section under “Outcomes” says:
“The high-level outcomes of the new Policy Framework are intended to strike an appropriate balance, ensuring”
first that:
“All transgender individuals are managed safely with their rights properly respected and in accordance with the law”
and, secondly:
“Decisions are informed by all available evidence and intelligence in order to achieve an outcome that balances risks and promotes the safety of all individuals in custodial settings and approved premises. This includes an assessment of risks presented to and by transgender individuals.”
The Committee will have noted the two references to balance in that section, as pointed out by the noble Baroness, Lady Falkner of Margravine. As the noble and learned Baroness, Lady Butler-Sloss, pointed out, two groups—perhaps at least two, I would say—need respect and understanding in prison. I suggest to the Committee that that policy is correct in law and, I believe, in principle too. With all due deference to my noble friend Lord Cormack, I suggest that it is morally correct as well.
This is about legality, safety and dignity, so in answer to the point put to the Committee by the noble Baroness, Lady Fox of Buckley, no: the world has not gone mad and it is a gross mischaracterisation of government policy to suggest that I or the Government have “no qualms” about letting rapists share living quarters with women. I assume that point was put because the noble Baroness does not understand what the policy is, so let me explain the actual policy to her and to the Committee.
The policy is that transgender prisoners are allocated to a prison matching their legal gender but can be held in a prison opposite to their legal gender where they would otherwise present an unmanageable level of risk to other prisoners. The current policy therefore allows for prisoners with GRCs to be held in a prison matching their sex at birth, where that is appropriate. I can therefore confirm, because I have had this checked, that contrary to the position set out by the noble Lord, Lord Blencathra, there are trans women with GRCs who are now housed in the male estate following the risk assessment process.
The critical point, as pointed out first, I think, by the noble Lord, Lord Pannick, and then adopted by others, is that that policy differs from that suggested by the amendment because the current policy is not a blanket approach. The amendment is a one-size-fits-all approach, or a blunt instrument, as I think the noble Baroness, Lady Chakrabarti, put it. We manage prisoners with GRCs on a case-by-case basis. That is absolutely right, because we want to make sure that there are no assaults in any prison by any prisoner on any other prisoner or, of course, on a member of staff.
The amendment would end the balanced approach. It would mean that a prisoner with a GRC would never be held in the part of the prison estate that matched their acquired gender, even though in some cases this would pose a manageable level of risk and would, on balance, be the safest and most appropriate course of action. It would lead to a prisoner with a GRC having to be kept in a prison that matched their sex at birth, even when that posed an unmanageable level of risk, which would be an utterly bizarre conclusion. It would mean, for example, that a prisoner who had transitioned from female to male and had obtained a GRC would be kept in a women’s prison, even if that posed an unmanageable level of risk to the women they were in prison with. We are very conscious, as my noble friend Lady Meyer pointed out, that women in prison are especially vulnerable. This amendment, I am sure unintentionally, might expose them to greater danger.
It is simply not possible to argue that holding transgender prisoners with GRCs in a prison matching their sex at birth is always necessary and proportionate in every instance. By far the better policy is the policy we adopt, which is to look at matters on a case-by-case basis. I also point out that the amendment applies only to prisoners with GRCs, which most transgender prisoners do not have.
Before I sit down, I will pick up two further points—first, the point from my noble friend Lady Meyer on Amendment 292G. I see that my noble friend Lady Williams of Trafford has come into the Chamber. I think that she or another member of the Home Office team will have the delight of dealing with that amendment on a future occasion and I do not want to steal her thunder on that this evening.
My noble friend Lord Cormack and the noble Lord, Lord Hunt of Kings Heath, said “talk to us”. I started by saying that I am always happy to talk to everyone, and I mean that. However, on this issue, when the most important information to provide is how the policy is operated, I suggest with respect to noble Lords that perhaps the best way forward might be to replicate something we did on the Domestic Abuse Bill and have what I think I called a teach-in from officials, who will be able to provide noble Lords with information and explain how it works. I have been able to check and they would be very happy to do that. We will arrange that in the normal way.
With that explanation of government policy and the offer of the teach-in, I invite the noble Lord to withdraw the amendment.
Lord Blencathra (Con)
My Lords, it is customary for every Peer who has moved an amendment to say that it has been a worthwhile debate. I genuinely think it has been a worthwhile debate because, as the noble Lord, Lord Hunt of Kings Heath, said, this subject has not been properly debated in this House or in Parliament before. It is a policy invented by officials that past Ministers have signed off on. It is certainly worthy of debate.
I say to the noble Baroness, Lady Chakrabarti, that the reason so many men spoke is that so many noble Baronesses who normally sit behind her are afraid to speak on this issue. They have spoken to me privately, as have some on the Lib Dem Benches and the Cross Benches, and said, “Please raise this issue; we dare not speak out.” That is not right. It should be possible for noble Baronesses on all sides to raise this issue of women’s rights.
In some ways there has been a certain degree of consensus on three issues. There is agreement that, first, the rights of transgender prisoners must be protected; secondly, that the rights of women prisoners must be protected; and thirdly, that my amendment is a blunt instrument that fails in certain aspects and, as the noble and learned Lord, Lord Falconer, said, that I ought not to bring it back on Report. I think that, with proper discussion, I will need to bring back a radically revised amendment on Report. I thank the noble Lord, Lord Hunt of Kings Heath, the noble and learned Lord, Lord Falconer, my noble friend Lord Cormack and the noble Baroness, Lady Falkner of Margravine, for suggesting that we need to get the balance of rights correct.
The noble Baroness, Lady Brinton, said that the numbers are small, but I dismiss the view that because the numbers are small this does not matter so much. The number of transgender women in prison may be small, but the fear they create in the women’s estate is quite considerable. This is about not just the number of attacks that have happened but the fear women have of being attacked. Their rights need to be defended too. I would welcome dialogue with the Minister, my noble friends and noble Lords opposite on getting that balance right.
Since the numbers are small, why can we not have special units for men who identify as women so that they are not, as the noble Lord, Lord Pannick, rightly pointed out, forced into the male estate where they would be victims of violence in some cases, or into the women’s estate where women fear, rightly or wrongly, that they will be attacked? Since we already have some specialist units, can we not have units for men who identify as women so that they can have their own accommodation with their own like kind, people who also want to identify as women?
I urge the noble Lord, Lord Paddick, to read what I said very carefully. I did not accuse transgender women of being a threat to women or children. I quoted the case of one man who was a rapist and raped children and who, after he went to prison, decided that he wanted a GRC and to identify as a woman. That is a totally different case from what the noble Lord inadvertently suggested I said.
On this occasion, I intend to withdraw this amendment, but I would like to pick this up with the Minister, the noble Lord, Lord Hunt, my noble friend Lord Cormack and possibly the noble Baroness, Lady Falkner of Margravine, if she is permitted to do so, and discuss an amendment which would try to get the balance of rights right, so that we protect women and transgender women and so that each can feel safe in their own prison space. With those words, I beg leave to withdraw the amendment.
Baroness Brinton
“Home detention curfews
(1) The Home Detention Curfew policy framework is amended as follows.(2) In paragraph 4.3.1 at the appropriate place insert—“Offenders who have previously breached a protective order”.(3) In paragraph 4.3.5 at the appropriate place insert—“Anyone with a history of offences relating to stalking, harassment, coercive control or domestic abuse”.”Member’s explanatory statement
This amendment would exclude offenders who have previously breached a protective order and those with a history of offences relating to stalking, harassment, coercive control or domestic abuse, from the Home Detention Curfew policy framework.
Baroness Brinton (LD) [V]
My Lords, I have laid Amendment 214A and I thank the noble Lord, Lord Ponsonby of Shulbrede, and the noble Baroness, Lady Newlove, for also signing it.
The home detention curfew is a valuable and worthwhile scheme, allowing offenders to be released from prison to a suitable address and allowing for a smoother transition back into society. There are, however, a number of violent and sexual offences which rightly cannot be considered under this scheme, due to the risk the offender poses to the victim. This amendment seeks to expand the list of ineligible offences to include those which relate to ongoing harm or risk to a particular individual and which are not already excluded from the scheme. These offences include stalking, harassment, coercive control and domestic abuse.
The Minister knows from the many amendments that were tabled during the passage of the Domestic Abuse Bill and other Bills before it that in cases where perpetrators are fixated and obsessed, by the time they are convicted, many will have either a restraining order or another protective order in place. This amendment says that the home detention curfew should also not be considered in cases where such a restraining order or other protective order has already been breached.
The Government have described a key objective of this Bill as follows:
“We are changing release arrangements for serious violent and sex offenders, as well as for those whose risk to the public increases during their time in custody, so that they serve longer in prison.
These changes have the protection of the public at their core and ensure a firm but fair justice system.”
The victims of stalking, harassment, coercive control and domestic abuse, where the perpetrator has had a protective order made against them, often report that their perpetrator continues to try to control them, whether directly or indirectly, including from prison, sometimes without prison officials being aware.
One example is not untypical of the kind of perpetrator we believe should not be eligible for HDCs. The woman, who wishes to be anonymous, has been a victim of domestic abuse by her ex-husband and has been granted multiple restraining orders for her own protection since divorcing him. He was convicted in 2017 for breaching an order and in 2019 for two breaches of another order, and then faced trial for eight breaches of a third order as well as numerous counts of stalking against her, her partner and her family. This shows a clear history of breaching protective orders—over 10 times—and the victim is currently on her fourth restraining order.
Baroness Newlove (Con)
My Lords, I am pleased to add my name to Amendment 214A, along with the noble Baroness, Lady Brinton, and the noble Lord, Lord Ponsonby, because we care about protecting vulnerable victims of crime from harm and repeat victimisation.
Home detention curfew, or HDC, is a valuable scheme allowing certain offenders to be released early from their custodial sentence if they have a suitable address to go to. We all recognise the value that this brings in providing a managed way of releasing offenders back into the community. However, there are, rightly, a number of exclusions to eligibility for the scheme based upon the offender’s history of compliance as well as the offences for which they have been convicted. For example, sex offenders required to register, those sentenced for breach of curfew and those serving sentences for cruelty to children or racially aggravated offences are ineligible for HDC. These are just some of the criteria that currently can preclude someone. I believe, as do some colleagues around the Chamber with whom I speak, that the safety of the victim and the risk presented to them by the offender are of the utmost importance when considering suitability for release under HDC.
Amendment 214A seeks to add two new criteria to the framework governing home detention curfews: first, that offenders who have previously breached protective orders such as restraining orders are deemed ineligible; secondly, that those with a history of offences related to stalking, harassment, coercive control and domestic abuse are also deemed ineligible. Victims of these crimes are at high risk of repeat victimisation and are in desperate need of respite from their abuse to help them recover. Under HDC, that respite can be as little as 28 days, allowing no time to address the behaviours that characterise these offences.
Fifty-five per cent of stalking perpetrators go on to reoffend because of the fixated and obsessive nature that defines stalking, as the noble Baroness, Lady Brinton, has just said. Therefore, granting HDC in stalking cases is highly inappropriate and of grave concern, as these offenders regularly breach orders and bail conditions. Home detention curfew for these offenders poses a significant risk, catching victims as they let down their guard. To see an offender released so quickly can be highly distressing, retraumatising and risky; and it impacts trust and confidence in our justice system.
HDC can allow offenders to leave prison so quickly that the victim is entirely unaware. I am aware of multiple cases where a victim has been harassed by an offender following release on HDC, including the victim of a brutal assault, whose father told me what happened: “My daughter was convinced she saw the perpetrator within yards of her new flat. She had to walk around him on the pavement. I assured her that this couldn’t be possible, even with only serving half his sentence. Nevertheless, I checked with the prosecuting officer. He knew nothing of any early release, nor had the police been consulted. In fact, we discovered to our horror that my daughter’s assailant had been released barely three months into his sentence.”
This woman saw the man who assaulted her just yards from her new address—an address she moved to for safety, which was secret for a reason. Her father told me of the enormous distress and anxiety this caused as she relived her assault and felt constantly in fear. In this instance, she had signed up for the victim contact scheme, but a HDC decision had been made before she had been allocated a victim liaison officer contact. As such, the decision was made without any opportunity to input licence conditions and set an exclusion zone for her offender, or for her to contribute in any way by raising highly relevant issues. The relevant issues included the fact that the offender had been given a 10-year restraining order—an unusual intervention signalling the judge’s belief that he posed an ongoing risk. Relevant issues such as that he had previously contacted the victim on bail, showing that he had a history of not complying with orders, should have raised red flags and, under this amendment, would have precluded him from HDC.
The use of home detention curfews in these contexts presents an ongoing problem. If the nature of the offence relates to ongoing harm or risk to a particular individual, as detailed in this amendment, HDC should not be considered a suitable intervention. Those are the words of a father who is so worried for his daughter.
I know it is drawing late, but I would like to thank the London Victims’ Commissioner, Claire Waxman, and her office for bringing these concerning cases to my attention. We need to protect our vulnerable victims of crime.
Lord Ponsonby of Shulbrede (Lab)
My Lords, my name is on this amendment as well. I have the same briefing as the noble Baronesses, Lady Brinton and Lady Newlove, so I do not have anything additional to say, other than that obsessional behaviour is a problem that one sees throughout the court system. While of course I support home detention curfews, it needs to be recognised that obsessional, fixated behaviour is a source of very serious risk—mainly to women, but not exclusively to women. I have seen, relatively recently, obsessional people in breach of a restraining order, a non-molestation order, bail conditions and licence conditions all at the same time. So I support the amendment in my name.
Lord Wolfson of Tredegar (Con)
My Lords, I am grateful to the noble Baroness, Lady Brinton, twice over. First, I thank her for tabling this amendment, which has enabled us to have this short but interesting debate. Secondly, I have to say mea culpa, because I failed to thank her for her contribution in the last group. I should have done so and I apologise for that. I hope that she will be able to hear what I am saying now, via the screen.
The home detention curfew—HDC—scheme has operated since 1999. It provides a managed transition from custody to the community for lower-risk offenders who serve sentences of less than four years. They may be released a maximum of four and a half months earlier than the date on which they must be released in any event, but on average they are released on HDC within three months of their automatic release date.
Offenders who are released under the HDC scheme are released under strict licence conditions. An electronically monitored curfew of at least nine hours a day is mandatory. Location monitoring may be added in cases where practitioners advise that it is required. Importantly, research suggests that offenders released early on HDC are no more likely to commit further offences than if they were released at their automatic release date. Compliance with the curfew conditions is closely monitored and breaches are dealt with robustly, which can lead to a swift recall to prison where necessary.
As my noble friend Lady Newlove pointed out, certain offenders are excluded in law from HDC. They include registered sex offenders, terrorists and those imprisoned for specified violent offences. But, as I have said, most offenders serving sentences of less than four years are eligible for the scheme. I underline the word “eligible”. The fact that a particular offender is, in principle, eligible, does not mean that that offender is suitable for release under the scheme. As the noble Lord, Lord Ponsonby of Shulbrede, has just said, offenders can, for example, exhibit obsessional behaviour. No offender can be approved for release on HDC without a robust risk-management plan in place. Where necessary, the governor can set additional licence conditions that can include exclusion zones or location monitoring. If the result of the assessment is that the offender cannot be safely managed at the proposed curfew address, HDC will simply not be granted.
We recognise that the release of offenders with a history of stalking, harassment, coercive control or domestic abuse can cause additional distress. We do not believe that adding those offences to the list of offences excluded by law and putting a blanket ban in place would be proportionate, or an effective means of safeguarding victims while maximising the benefits of the scheme. But we are currently reviewing the HDC policy framework to ensure that all the appropriate safeguards are in place to protect victims and the public and that unsuitable offenders are not released on HDC. With these reassurances and for these reasons, I urge the noble Baroness to withdraw this amendment.
Baroness Brinton (LD) [V]
I thank noble Lords for their contributions to this brief debate. The noble Baroness, Lady Newlove, spoke powerfully of the practical impact on victims of these fixated offenders after HDC has happened. I echo her thanks to Claire Waxman and her staff at the London Victims’ Commissioner’s office for their briefing and their assistance.
The noble Lord, Lord Ponsonby, helpfully reiterated the fixated behaviour of these offenders and how it is in their nature to breach orders. All the examples that the three of us have given show that they are likely to do so—and to do so repeatedly.
Baroness Newlove
“Aggravation of offences on grounds of hostility related to sex or gender
(1) Section 66 of the Sentencing Code is amended as follows.(2) After subsection (1)(e) insert—“(f) hostility related to sex or gender”.(3) After subsection (4)(a)(v) insert—“(vi) the sex or gender (or presumed sex or gender) of the victim, or”.(4) After subsection (4)(b)(v) insert—“(vi) hostility towards persons who are of a particular sex or gender.””
Baroness Newlove (Con)
My Lords, the murders of Sarah Everard, Bibaa Henry and Nicole Smallman earlier this year shocked the entire country, and rightly so. Yet we know that these cases are not an exception. In the seven months after Sarah Everard’s death, another 81 women were killed, and countless more were subjected to sexual violence, abuse and harassment.
We repeatedly hear from the police that women do not come forward to report crimes—yet the evidence shows that they are right to be concerned that the violence and abuse they face often do not result in criminal sanction. A UN Women UK survey in January 2021 showed that 80% of women of all ages said that they had experienced sexual harassment in public spaces. Some 96% of respondents did not report this, with 45% saying that it would not change anything. In March this year, HOPE not hate published figures showing that 85,000 women are raped each year, but only 1.4% of rape cases in England and Wales that had been recorded by the police ended with the suspect being charged. This is the lowest figure ever recorded. We know from the Office for National Statistics that more than 2 million crimes against women have gone unreported since 2018.
Today I am proposing Amendment 219 so we can learn from police best practice in tackling this epidemic of violence and restore confidence that the police get the seriousness and scale of the problem. In 2016, Nottinghamshire Police, under the leadership of Sue Fish, became the first police force in the country where women and girls could report a case of abuse and harassment and have it treated as what it is: a hate crime. Over 11 police forces follow this approach, including north Yorkshire, Avon and Somerset and Northamptonshire.
I want to take on some of the myths. First, Amendment 219 does not create any new offences. It is about recognising the causes of existing offences and how serious this is for society. Secondly, this is not about catcalling; street harassment is already illegal. We rightly do not accept casual racism in our streets. Why should we accept those who try to intimidate or exercise power over women by screaming abuse at them? Talking about this as being about wolf whistling minimises the experiences women have. In Nottingham, women came forward to report stalking, groping, indecent assault and kidnapping, knowing police would take these matters seriously and see how women have been targeted. Independent research showed that this improved victims’ confidence to come forward and changed the culture in the police towards understanding the causes of violence against women. Reporting crimes increased by a quarter, giving police the crucial information they needed to identify repeat offenders. We know that many offenders graduate from apparently minor offences, such as harassment, to more serious ones. This policy helps the detection and prevention of these crimes by repeat offenders.
Thirdly, this is not just about data; it is about how we treat violence against women and girls. We rightly recognise that crimes motivated by racism or homophobia are especially serious and that those who commit them should face harsher sentences. When we do not extend equal treatment to those who target women simply for who they are, it is little wonder that many women do not feel the police take seriously the violence and abuse they face. The Government agreed earlier this year to ensure that all police forces do this, and we await implementation. Yet, as the hate crime co-ordinator in north Yorkshire told us, without the courts following this up through their sentencing, the impact of this policy is limited.
Amendment 219 would ensure that our courts reflect this hostility in determining the sentence someone receives. It uses the same logic as other forms of hate crime, such as religion, race or sexual orientation. It would insert “sex or gender” into Section 66 of the Sentencing Act. I know some colleagues will ask about this wording. First, it ensures that crimes motivated by hatred towards either men or women for being men or women would be recognised as such, but make no mistake, the evidence shows that women are overwhelmingly the victims. In Nottinghamshire and Avon and Somerset, 90% of victims reporting were women. In Devon, it was 80%.
Secondly, this means our focus is on the perpetrator and not the victim. Currently the CPS says a hate crime is:
“Any criminal offence which is perceived by the victim or any other person, to be motivated by hostility or prejudice”.
Perception matters in hate crime. Whether someone is born a woman or becomes one, if they are targeted for being a woman, then being able to record that motivation will help tackle the cause and find those responsible for the harm. To try to exclude some women from this or set out different criteria for this particular type of hate crime is to give perpetrators a free pass. It risks valuable information about offending patterns being missed and potentially gives perpetrators a chance to further demean a victim by claiming they cannot experience misogyny because they are trans.
We already recognise that someone can be a victim of more than one type of hate crime, expect if the part of their identity being targeted is their being a woman. This is about respecting the victim and how they feel that they have been targeted, rather than demanding that they fit a specific tick-box. Muslim women may be victims of hate crime because they are Muslim and because they are women. Some 42% of black and ethnic minority women aged between 14 and 21 report experiencing unwanted sexual attraction and attention at least once a month. Many women and girls with intellectual disabilities also experience abuse for the dual reasons of their disability and their sex or gender.
The Government previously defined gender as part of the Gender Recognition Act reform consultation. Again, the CPS notes:
“There is no legal definition of hostility so we use the everyday understanding of the word”.
With any hate crime, the police and the CPS gather evidence and present it to the courts for them to decide whether it meets that everyday understanding. This amendment would require them to present evidence about the perpetrator because what matters here is holding the perpetrator to account, not debating the status of the victim. I do not want to be too presumptuous but, when my noble friend the Minister responds, she may say that she will wait until the Law Commission review of hate crime is completed. That is why this is more of a probing amendment. The review has been ongoing since 2018 and, in its draft recommendations, supported this proposal. Should it publish its final report, we could be informed by its work on Report. However, if it does not, this amendment would mean that we would not lose the opportunity the Bill offers to help tackle violence against women.
Indeed, a Law Commission review is no guarantee of action being taken. Since 2010, more than half its reviews have never made it on to the statute book, with many never even receiving a response from the Government. This includes the 2014 review of hate crime legislation, which is still awaiting a ministerial response. Even if the commission’s current review is published shortly, as promised, we may have to wait a year for the Government’s response, which could require further consultation. We would then have to wait for another legislative opportunity to be given parliamentary time for a new Bill to go through its various stages.
Women have been waiting my whole lifetime for action to be taken on these matters. There have already been 3 million more crimes committed against women since the Law Commission was asked to review the law in this area. Every year, we delay closing this gap in our hate crime laws. I understand why more women question whether the Government are serious about keeping them safe. The evidence shows that this policy is not a silver bullet for the problems with policing and the courts, but it is progress and best practice. The time for waiting is over; now is the time for doing. The women and girls of this country deserve nothing less. I beg to move.
Lord Polak (Con)
My Lords, I am pleased to join my noble friend Lady Newlove and the noble Lords, Lord Ponsonby and Lord Russell, in proposing this simple but effective amendment, which would ensure individual protection against hostile aggravations and offences based on sex or gender.
The noble and learned Lord, Lord Judge, a former Lord Chief Justice, explained that adding sex or gender to the list is consistent with the statutory provisions in the Equality Act. If we are to have a statutory list, sex and gender should be expressly included. He voiced his surprise that the legislation omitted this category of potential victims. It is clear that this amendment would plug a gap in the law and ensure that all people subject to harassment or violent assault are better protected. As Robin Moira White, a barrister at Old Square Chambers, suggested, if this amendment is not accepted, all those subject to these abuses will continue to remain at risk. Quite plainly, this amendment is a catch-all clause; it is designed to protect everyone.
Lord Russell of Liverpool (CB)
My Lords, I support this amendment to which I have added my name, tabled by the noble Baroness, Lady Newlove, whose statement was typically eloquent. I will not say that I rise “briefly”, since earlier today almost every noble Lord who said that went on to speak at length.
This amendment is essentially a continuation of a discussion that the Minister will remember extremely well from springtime, when we were talking about the Domestic Abuse Bill and misogyny in particular. That was probably the first time in this House that we had ever really had discussions about misogyny. Eight months is a very long time when it comes to domestic abuse. Now every noble Lord is aware of misogyny and of how pervasive it is. To some extent, those eight months have helped the case for an amendment such as this.
On 17 March, as the noble Baroness, Lady Newlove, mentioned, the Minister announced that the Home Office will require all police forces in England and Wales to record crimes, primarily against women, that they regard as misogynistic in intent. We were told that this would happen by autumn. I have checked on a search engine when autumn officially ends and, much to my surprise, it ends on 21 December, which seems rather late. Therefore, the Government have a little more time to deliver, but if the Minister cannot tell us this evening, can she please come back and tell us when the guidance that will be given to police forces to collect this data—systematically and consistently, which is the most important thing—will be available?
This morning I asked a very senior police officer, a lady who is on the National Police Chiefs’ Council, if she knew when it was coming. She did not but basically said, “Please get a move on, we are all dying for this to arrive.” Her own police force, one of the largest in the country, has systematically rolled out domestic abuse training for the vast majority of its officers, which has been extremely well received. They are absolutely primed to receive this guidance when it arrives, so please can we get a move on and please can we have a commitment, either at the Dispatch Box later or in writing, on exactly when we can expect this? If this very senior police did not know, I certainly hope that the Minister does.
This amendment has the virtue, above all, of brevity and great simplicity. It will probably not surprise noble Lords that the person behind the brevity and clarity, of which he is very much in favour, is the noble and learned Lord, Lord Judge. He is unable to be with us this evening. I think he hoped that brevity would mean just that when noble Lords said that they would be brief. Unfortunately, he was disappointed and so cannot be here, but we can assume that the thrust and nature of this amendment has a great deal to do with his guidance and his input. To use his phrase when we were talking about this, “Let’s just go for the jugular”. That is what this is about.
As other noble Lords have mentioned, the Equality Act 2010 defined nine different protected characteristics. This amendment specifically would equalise sex and gender with the other key innate characteristics: sex, sexual orientation, gender reassignment, race, disability and religion or belief. As noble Lords have said, it is designed to protect anybody and everybody; it is totally inclusive. It is not defining people by what gender they have, they chose to have, they think they have or were born with; it is designed to protect everybody.
Lord Hunt of Kings Heath (Lab)
The noble Lord mentioned gender reassignment, but the amendment does not say “gender reassignment”, it says “gender”.
Lord Russell of Liverpool (CB)
If the noble Lord looks at the amendment, it says
“or presumed sex or gender”.
That is as presumed by the perpetrator.
Lord Hunt of Kings Heath (Lab)
My Lords, my point is that in arguing for the amendment the noble Lord mentioned the protected characteristic of gender reassignment, not gender.
Lord Russell of Liverpool (CB)
I think I was quoting from the Equality Act, but if I was not—the noble Lord here says I was right, so if one looks at the Equality Act and the protected characteristics, that is one of them. If I am wrong, I apologise in advance.
Baroness Noakes (Con)
The noble Baroness, Lady Falkner of Margravine, is no longer in her place. Gender is not a protected characteristic under the equality legislation. Gender reassignment is.
Lord Paddick (LD)
That is exactly what the noble Lord said. He said that gender reassignment is a protected characteristic under the Equality Act and gender is not, which is what this amendment addresses.
Lord Russell of Liverpool (CB)
I thank the noble Lord. If anyone else wants further clarification, I am sure other noble Lords who have read the Equality Act will come in and back me up.
A particular point that I think my noble and learned friend Lord Judge would have made, were he able to be with us, is that he is clear that this amendment and change to the Sentencing Act would be welcomed by the judiciary, who are often asked to make quite difficult judgments. This would make their ability to do so a great deal easier.
There is another important point. The noble Baroness, Lady Newlove, mentioned how some police forces around the country voluntarily started recording alleged misogynistic acts, primarily against women. We had a briefing last week, which I attended online, in which two of the police forces involved—Nottinghamshire Police and South Yorkshire Police—gave evidence, several years on, about how effective that was. The thing that came out clearly, which they find very frustrating, is that having amassed this information and passed it on to the Crown Prosecution Service, the way in which the CPS deals with the information and data that has been recorded and given to it as additional evidence when considering or making prosecutions is wholly inconsistent between different offices and areas. One of the virtues of inserting this amendment into the Sentencing Act is that it would make it crystal clear to the Crown Prosecution Service that information must be part of any case that is potentially brought before the judiciary, because this data is required to be considered when thinking about sentencing.
I commend this amendment to the Committee. It is simple, unambiguous and protects everybody.
Lord Falconer of Thoroton (Lab)
The following characteristics are protected under the Equality Act: age—something else that we do not need to worry about; gender reassignment; and sex. There are others, but those are the three. Sex being a protected characteristic means that you are entitled not to be discriminated against on the ground of your sex, whether you are a man or a woman. That means that if you are a transgender woman, you will be entitled to be protected on the grounds of sex because you are a woman, and on the grounds of gender reassignment. So, the noble Lord says that gender is not a protected characteristic under the Equality Act, but a person is entitled, as one would expect, not to be discriminated against because of their sex.
Baroness Noakes (Con)
I thank the noble and learned Lord, Lord Falconer of Thoroton, for his lesson in equalities law. My Amendment 219A was degrouped from Amendment 219 late last week. While it is drafted more broadly than Amendment 219, I tabled it to address the very same issues covered by Amendment 219. I therefore believe that, for the convenience of the Committee, I should speak to my Amendment 219A now. I hope that the other noble Lords who have added their names—the noble Baronesses, Lady Ludford and Lady Grey-Thompson, and the noble Lord, Lord Hunt of Kings Heath—will do so as well. On that basis, I will not move Amendment 219A in the next group. I hope that, given all the amendments left still to be debated, the Committee will welcome this.
My Amendment 219A, like Amendment 219, does have cross-party support, so the issues raised by both amendments are not party-political in any sense. Indeed, I find myself in the unusual position of being on the same side of the argument as the noble Baroness, Lady Ludford; neither she nor I ever thought that we would be in that position. I have two main problems with Amendment 219, the first of which is directly addressed by my Amendment 219A. Amendment 219 pre-empts the work of the Law Commission, which, as we have heard, has been working on hate crime for some time now. Its consultation document runs to over 500 pages, with over 50 dedicated to sex or gender.
The Law Commission has received many thousands of consultation responses and is now working on its final position. I believe that its work should conclude before we legislate in this area, and my Amendment 219A gives the Government a regulation-making power to amend Section 66 of the Sentencing Act 2020 to implement the Law Commission’s recommendations. That gives the Government, if they agree with and accept the recommendations, the fastest possible implementation route. The Law Commission’s final recommendations may well be controversial and therefore would not qualify for the special procedures for Law Commission Bills that we use in your Lordships’ House, if primary legislation were the route taken. Amendment 219A therefore uses the draft affirmative procedure to enable some additional parliamentary scrutiny.
I believe that it would be wrong for Parliament to anticipate the final views of the Law Commission. There are different views on both the principle and the substance of the extensions to the hate crime laws, and noble Lords would be wise to wait for the Law Commission’s final recommendations, rather than proceed on the basis of its provisional views.
On the extension of hate crimes to sex, the Law Commission was clear that it believed that two of its criteria for amending the hate crime legislation—demonstrable need and additional harm—were met, but it was far less clear that its third criterion of suitability was met. To mitigate that, its consultation includes some very significant potential carve-outs, covering, for example, domestic abuse and sexual offences so that, if hate crime were extended to sex, the very crimes that I know some noble Lords are particularly concerned about might not be included in the Law Commissioner’s final recommendations. This is not an area where there is a settled view about what should be done.
My second problem with Amendment 219 is a substantive one about whether, if hate crime laws are extended to sex, they should be—
Lord Falconer of Thoroton (Lab)
Does the noble Baroness know when the Law Commission might produce its final report and what the timetable thereafter would be—for example, how long there would then be before the Minister has to respond and how long thereafter before there would be some provision in relation to it?
Baroness Noakes (Con)
I think that was a trick question from the noble and learned Lord, Lord Falconer of Thoroton.
Lord Falconer of Thoroton (Lab)
It is not a trick question; I would have thought that that piece of information might be quite important to evaluating her amendment.
Baroness Noakes (Con)
I will tell the noble and learned Lord what I know, which is that the Law Commission said that it hopes for a final report by the end of this year. It is then normal to give a period of time for the Government to consider their response and then there is a period after that for deciding on a legislative route.
My amendment offers a fast way through. If the Law Commission makes certain recommendations and the Government decide to accept them, my amendment gives the Government the power by regulations to amend Section 66 of the Act to achieve those recommendations. That is the best I can offer. I am sure the noble and learned Lord, Lord Falconer of Thoroton, can give me a long lecture on all those Law Commission studies that have never ended up in law and the length of time taken. But this is another good reason why we should not, I think, proceed in haste on this.
I was about to move on to the second reservation I have with Amendment 219, which is whether, if hate crimes were extended to sex, they should also include gender. Amendment 219 includes the formulation “sex or gender” and that was, indeed, the Law Commission’s provisional view. However, its conclusion was rather more tentative than some of the other conclusions in the consultation document, and I think this is an area where its final views will be particularly important. In its very large consultation document on hate crime, it did not spend very much time on whether gender should be included as an addition to sex, and I suspect there will be a fuller examination on the basis of the responses to its consultation.
Sex is a concept that is easily defined: it is binary, based on biological reality and recorded on everyone’s birth certificate. Sex, as we have been debating, is a protected characteristic in equality legislation. Gender, on the other hand, is a social construct. It has no ready legal definition and is most definitely not a protected characteristic. While gender is sometimes used in legislation, it has in the past genuinely been as a synonym for sex. However, I believe that it is increasingly problematic for the word “gender” to be used in that way because it is being used by those who claim that gender is different from—and sometimes more important than—sex, and it is not binary. Some describe gender as a spectrum, some say that there is a finite number of genders, but there is no consensus on how many genders there are, with claims in excess of 100 genders.
I can illustrate how difficult the use of “gender” is becoming from something I discovered called nominalgender. Nominalgender means,
“a gender where the person’s gender is so much just them that no one else can even experience it. Most nominalgender people will define their gender as a mashup between other genders of a certain kind (like beegender, angelgender, etc) but it’s not a multiple gender, it is one”.
Who knew, my Lords? This new lexicon of gender is part of a gender identity theory. It is a controversial issue and has not hitherto found its way into legislation for very good reason. I believe that legislating for hostility towards gender would make for very uncertain law. The use of the word “gender” has moved well beyond an attempt to achieve drafting neutrality and has started to acquire a very different meaning.
There was discussion earlier about where transgender fits in. I do not believe adding “or gender” is necessary to meet any needs of those in the transgender community. Hostility related to transgender is already included in hate crime legislation. If the term “sex” was added to Section 66, hostility towards, say, a transgender woman would be automatically covered, either because she is transgender or because she is presumed to be of female sex. Therefore, there is no need for the ambiguity of “gender” to be introduced into the definition of the hate crime because there were no people excluded from that.
I have deliberately not addressed the substance of Amendment 219, which is whether misogyny should be added to the list. I am personally not convinced that the case has been made, but I did not table Amendment 219A to oppose the extension of hate crime to sex. Indeed, my amendment would allow a fast-tracked route to legislating for it if that were the outcome of the recommendation from the Law Commission. I believe that Parliament would be negligent if it rushed through a solution without waiting for the Law Commission to report on this difficult subject. I know that many noble Lords feel strongly about misogyny, as I do as a woman, but I entreat noble Lords not to legislate in haste.
Lord Paddick (LD)
Could I ask the noble Baroness a question on her remarks? She said that sex was binary, male and female, as recorded on birth certificates. How does she account for people who have a gender recognition certificate, who are able to change the sex on their birth certificate in those circumstances?
Baroness Noakes (Con)
My Lords, that is dealt with by the Gender Recognition Act. In that case, the birth certificate is altered and for many purposes, though not for all, that person is treated as a woman.
Baroness Warwick of Undercliffe (Lab)
My Lords, I rise to support Amendment 219 and to reinforce all the powerful arguments made by the noble Baroness, Lady Newlove. I am not a lawyer, but it seems bizarre that sex and gender have explicitly not been recognised in existing hate crime legislation. Crimes motivated by hostility to disability, transgender identity, race, religion and sexual orientation are all recognised, but not those motivated by sex and gender. Yet, in a report published in January this year by UN Women UK, 71% of the 1,000 women polled had experienced sexual harassment in a public place, rising to a staggering 97% of women under the age of 25.
This is made worse by the sad fact that there is widespread scepticism among women and girls about reporting violence and abuse to the police because they have no confidence that their claims will be acted on or even taken seriously. Violence against women and girls does not occur in a vacuum, of course. Hostility towards women and girls creates a culture in which violence and abuse is tolerated and repeated. That culture has to be changed, so a reform to legislation, which this amendment proposes and which I hope the Government will support, must be accompanied by a transformation of attitudes within the police.
I believe that there are encouraging signs that this is happening, albeit slowly. I was fortunate to attend the briefing that has been mentioned on this amendment given by the former chief superintendent of police for Nottinghamshire, Sue Fish—a pioneer of this approach —and Stuart Henderson, North Yorkshire Police’s hate crime co-ordinator, who is currently delivering this policy. It was absolutely fascinating to learn how much of a difference can be made when the leadership of the force is committed to driving a policy forward. A number of other forces are doing the same, and I commend this approach to the Metropolitan police force as it struggles to respond to the tsunami of criticism on gender-based hate crimes.
Because not all police forces have signed up, there is no consistency of reporting or approach to these crimes. That is why the amendment is necessary: to ensure that every woman and girl right across the country can feel confident that the role of misogyny in what they experience on a daily basis will at last be taken seriously and dealt with appropriately. It is also necessary because it would require police forces to record instances of motivation by hostility to the victim’s sex or gender, enabling them to monitor much more effectively the incidence of these crimes and so address and prevent them. Evaluation of this approach in Nottinghamshire showed improved victim confidence to come forward and report crimes, and benefits to the local police in their efforts to combat these crimes. It is a great tribute to Sue Fish that she persisted in pursuing the need for this change, and to Nottinghamshire Police for embracing it as pioneers.
Finally, I am aware that the Government have asked the Law Commission to look at this, and it is due to report imminently. I hope the Government will not use that as an excuse to kick this into the long grass; even if the Law Commission reports soon, too many of its reports are ignored by the Government and not implemented. In replying today, I hope the Minister will acknowledge the urgency of this issue and commit to concrete measures, as set out in the amendment, to address it speedily.
Baroness Grey-Thompson (CB)
My Lords, I assure my noble friend Lord Russell of Liverpool that I intend to be brief. I speak to Amendment 219A, to which my name is attached. Sadly, as the noble Baroness, Lady Newlove, has pointed out, violence against women and girls is still a major issue in this country. I do not think a week goes by without us reading or hearing about some terrible act.
A few years ago, I, like many others, would have conflated the words “sex” and “gender”. We discuss the gender pay gap, where actually we probably mean a sex pay gap. It has become clear to me that, as language evolves, sex and gender mean very different things. The noble Baroness, Lady Noakes, has outlined this amendment very clearly, but I also believe that adding “gender” is unnecessary, as it could add further confusion to an area of law in which existing terminology is inconsistent and at times contested. Just in the short debate we have had tonight, we have seen that there is plenty more to discuss on the definition. I think we all agree that the protection of all people is important, and we should promote dignity, but that should be done without confusion.
I believe that we should wait for the Law Commission report, which I hope will be published soon, because it is a significant piece of work which will help inform the debate further.
Lord Hunt of Kings Heath (Lab)
My Lords, time is against us, so I will be really brief. From all our debates so far, I am convinced that the issue of inconsistent policing is the one where I would put most of my money in terms of improving the situation. Her Majesty’s Inspectorate, which looked at the way police forces dealt with violence to women and girls, was very persuasive about the hugely patchy approach of police forces.
As far as the Law Commission is concerned, anyone reading its work will see that it is complex and that it did not come to an easy conclusion when it gave a provisional view that it would be helpful to add to the categories in the way suggested. Most notably, it identified the risk that hate crime laws could prove unhelpful in certain contexts such as domestic abuse and sexual offences. It then went on to quote evidence from the Fawcett Society, which argues that all sexual and domestic abuse offences committed by men against women should be understood as inherently misogynistic. There is therefore a risk that sex-based hate crime might disrupt this understanding because it would require juries to seek express evidence of misogyny in these contexts, potentially causing some offences to be non-misogynistic where there is insufficient evidence of this.
I am not qualified to comment on the detail, but it is clear that this is a complex issue, as are the issues of sex and gender. Given that the Law Commission will report by the end of the year, the key thing we want to hear from the Minister is that the Government will take the report seriously and it will not join other Law Commission reports in the long grass.
Baroness Ludford (LD)
My Lords, we are all impatient for the Law Commission report, but I believe it is best to await it before deciding how best to frame any law on hatred towards women. Sex and gender have become conflated in ordinary speech, even in legislation, but they are not the same. While “sex” has a clear meaning in law, as defined in the Equality Act, the term “gender” does not, and is taken to mean social roles or stereotypes associated with someone’s sex, and that is too tenuous, at least at this stage, to be a legal definition.
If the intention of adding “or gender” is to ensure that legislation also covers hate crimes perpetrated towards trans women, it is unclear why the law would not catch a crime directed towards a trans woman on the basis of presumed sex. In addition, crimes directed against someone based on their transgender identity are already covered by hate crimes legislation.
Baroness Fox of Buckley (Non-Afl)
My Lords, I am of a mind to be opposed to the introduction of a misogyny hate crime, but your Lordships will be delighted to know that I will not be sharing my broader thoughts with the Committee at this late hour. However, there are problems that we need to be clear about before we can even have this conversation. What is our definition of misogyny here? We just assume that we are talking about it as a hatred of women, but it is not straightforward to legislate against hatred of women in 2021, when there is such a toxic debate about what our definition of a woman is. What is a woman, and who is and is not a woman? We heard a very lively discussion earlier; we in this place do not necessarily agree.
We know that somebody can simply declare themselves a woman, regardless of biological reality. We know that the debate about whether only women have cervixes has scuppered leading politicians, who seem unsure about biology in that regard. I do not say this to be glib, in case the noble Baroness, Lady Chakrabarti, thinks I am trying to stir up trouble again. I do so because it seems a genuine issue that the conflation of sex and gender—I know that the amendment does not do that; it separates them out—means that “misogyny”, as hatred of women, is not straightforward at the moment.
I also want to know which or what misogyny this amendment is trying to address. If you erase, for example, sex-based rights, which is what some feminists think is going on at the moment, is that a misogynistic outlook? Some feminists certainly argue that it is. There is certainly a huge amount of visceral and vile hatred thrown at gender-critical women, meted out by some of the gender and trans extremists—not by trans people in general, I hasten to add, but the kinds of people who drove Professor Kathleen Stock out of her job at Sussex University. They sounded misogynistic to me, but are they the target of this amendment? I am drawing attention to the fact that wanting a misogynistic hate crime does not clarify to me what the amendment is trying to do.
I understand that what I have said is contentious and that not everybody here will agree with some of the points I have made even so far. In this context, is it appropriate to get the law, let alone the police on the ground, to try to untangle what is a very toxic discussion in society and implement this? I do not know how putting that on to the police will help women.
Lord Russell of Liverpool (CB)
Would the noble Baroness perhaps accept that if she was to speak to some of the senior police officers, men and women, who have to deal with the victims of hostility and aggravated crimes, largely motivated by misogyny, and ask them what they think misogyny is, she would get a very clear response? They interact on a day-to-day basis with people who are direct victims of it.
While it is very interesting to have a “Moral Maze”-like discussion at a theoretical level, to be clear, what those of us proposing this amendment, including the noble and learned Lord, Lord Judge, want, is to do something now for the victims experiencing hostility based on misogyny. We should not be talking in airy circles about this; we need to do something.
Baroness Fox of Buckley (Non-Afl)
I will try to avoid airy circles. Not long ago, I was invited to speak to a gathering of police officers of various ranks on the issue of hate crimes and I can safely say that it was a 50/50 split. As an aside, quite a number of the female officers there were supportive of me and my position, so this is not an airy-fairy, “Moral Maze” position, although it does try to have some principle.
I was about to go on to talk about policing. I understand that one of the reasons there is a sense of urgency about making misogyny a hate crime is in response to horrendous and high-profile murders and rapes of women. We are all mentioning Sarah Everard, but there are many more. I wonder whether, in fact, framing violence against women through hate will solve the problem that it says it will tackle. As far as I can see, we have laws against indecent exposure, stalking, voyeurism, sexual assault, domestic abuse and rape. They are criminal offences, largely serious, and I do not understand why an additional law would act as a further deterrent or reassure women—I do not get that. If, as some argue—I agree with them—women are having problems gaining justice for those very acts in the courts at present, why would hate crime as an aggravated offence make any difference if the crimes in question are not being policed, investigated or prosecuted satisfactorily in the first place?
When I read the literature on misogyny and hate crimes—this was mentioned by the noble Baroness, Lady Newlove—the theory goes that minor incidents of gross sexist behaviour are misogynistic and indisputably part of a continuum that will lead to more serious crimes. I worry, however, that there is a danger there of relativising the horrors of rape and murder and tangling up the police in events that are not as serious, meaning that they take their eye off the ball in what I think they need to be doing: policing the streets, protecting people, prosecuting and so on. I am worried that this will cause a distraction for the police from doing the very job they need to be doing.
To use one example—I have been involved in talking to people in the area—the organised networks of male grooming and the systematic abuse and rape of vulnerable young women in Rochdale and Rotherham were largely ignored by the authorities, downplayed and continually not discussed. That is what we should be discussing here. Labelling the abuse as misogynistic does not seem to me to help; I just want the authorities to do the job of investigating when women are abused. That is far more important.
Baroness Bennett of Manor Castle (GP)
My Lords, I rise very briefly—the noble Lord, Lord Russell, will be pleased to know—to offer the Green group’s support for Amendment 219 in the name of the noble Baroness, Lady Newlove. I shall simply make two points, one of which draws on the recent intervention by the noble Lord, Lord Russell.
First, the noble Baroness, Lady Newlove, referred to the origins of this amendment. Nottinghamshire Police Force has been a pioneer in this area. In my contribution on this subject on the Domestic Abuse Bill, I looked back beyond that. If you look at the history of how Nottingham police came to be doing it, it began with a group called Nottingham Citizens and a survey it conducted among the people of Nottingham. That led to a conference held at the Nottingham Women’s Centre, which informed the police and police action. This is something that very much grew from the grass roots up. In response to many of the contributions from people advocating Amendment 219A instead: this has been proven to work. It is there demonstrably on the ground. The fact is there.
For my second point, I refer to the author Caroline Criado Perez and quote her:
“There is enough data to know that men who kill women do not suddenly kill women, they work up to killing women … If only we were to listen to women and pay attention to the misogyny and aggression and violence that they deal with on a daily basis.”
That is what Amendment 219 seeks to do. The noble Baroness, Lady Noakes, suggests that we have to wait and wait and wait. I would suggest we have been waiting lifetimes—centuries—for this action. We have a proven model that has been shown to work. Let us put it into effect.
Baroness Chakrabarti (Lab)
My Lords, I congratulate the noble Baroness, Lady Newlove, her noble friend Lord Polak, my noble friend Lord Ponsonby of Shulbrede and the noble Lord, Lord Russell of Liverpool. I want to focus on the amendment, not on a wide-ranging debate about everything that is wrong in relation to sex and gender or discourse in society.
I want to congratulate the noble Baroness because it is a simple and focused amendment. The word “misogyny” does not even appear in it. It is not thought crime. It is not even a speech offence. It follows a well-trodden path of adding protected characteristics or certain characteristics to a list. Hostility towards people with these characteristics will be an aggravating factor in a crime that already exists and has already been proven or admitted beyond reasonable doubt in a court. I say to noble Lords who are worried that I will come back to their fears and try to assuage them.
It seems totally unconscionable to me that, for example, race and religion have been aggravating factors in the code for so long but not hostility towards women. Hence, in the waiting millennia—certainly decades—since the code, these factors have been added. Some people will say that we never needed to add aggravating factors at all, and we could always trust the courts to get it right. Whether that is true or not—and I am not sure it is—we have a well-trodden system, and it is unconscionable, particularly at this moment when women and girls are feeling the way they are, that we should say we must wait because it is all very complex. If it is not complex in relation to race, religion and sexuality, it is not complicated in relation to sex. These are people who have already committed a criminal offence.
Why add aggravation at all? If somebody gets drunk on a Friday night and gets into fights with people they come across, that is bad enough. But if they go out after a few drinks on a Friday night to single out a particular group or a particular type of person based on their race or religion, or go out beating up women, that is an additional public policy problem, and that is why aggravation in relation to the group is a matter for this Committee and for policymakers.
Lord Paddick (LD)
My Lords, I thank the noble Baroness, Lady Newlove, for so ably and comprehensively introducing her amendment. We return to an issue that we debated during the Domestic Abuse Bill, making misogyny a hate crime. From the Front Bench, we support Amendment 219 and oppose the alternative Amendment 219A.
When we debated the Domestic Abuse Bill, I talked about the appalling kidnap and murder of Sarah Everard by a serving police officer, and, as the noble Baroness, Lady Newlove, has said, many more women have died as a result of male violence since then. As the chair of the Police Federation of England and Wales said a few weeks ago, there is a problem with sexism and misogyny in the police service and in society as a whole. Urgent action is needed. Some changes will take a long time, such as changes to social attitudes and police culture, but some changes can happen now. We have an opportunity with this amendment to make one of those changes now.
I did not support the amendment to the Domestic Abuse Bill because I did not believe that that amendment made misogyny a hate crime. This amendment does. In the Domestic Abuse Bill debate, I suggested, as Amendment 219A does, that we should wait for the Law Commission report on hate crime laws. As the helpful briefing from the office of Stella Creasy MP says:
“Since 2010, more than half of Law Commission reviews have not been implemented at all, including the last review of hate crime legislation in 2014.”
I agree with the briefing’s assertion that this is an area where delay has tangible consequences. The evidence that there is a problem is overwhelming. In the wake of the tragic and horrific murders of Sarah Everard and Sabina Nessa, there is an opportunity to strike while the iron is hot, while public opinion is behind us, and where the issue is high in public consciousness. We need to seize that opportunity with Amendment 219.
I did not support the amendment to the Domestic Abuse Bill because I believed that it was the wrong Bill, where one third of domestic abuse victims are male. I believed that it was the wrong Bill because domestic abuse is one of the worst possible crimes, because if there is only one place where someone can feel safe, it should be in their own home—that domestic abuse could not and should be treated as any more serious than it already is.
I also said:
“If noble Lords or Members of the other place do not think we should wait for the Law Commission’s report, there is an imminent legislative opportunity to make sure that hatred of women is treated in every way as a hate crime. We could work cross-party to amend the Police, Crime, Sentencing and Courts Bill, which is being debated in the Commons, to make misogyny a hate crime in every sense of the term. Even if the noble Baroness is not convinced by the Government’s concession, we do not need to rush this amendment through now when the ideal legislative opportunity is at our fingertips.”
The ideal legislative opportunity is at our fingertips—it is here and now, and we should do it.
I have to say that I found the arguments in the briefing that noble Lords have been provided with less convincing on the issue of sex and gender. I refer again to what I said on the Domestic Abuse Bill:
“If the Government only require police forces to record crimes where the victim perceives them to have been motivated by hostility based on the victim’s sex … it does not go far enough. Current hate crime offences are recorded when anyone perceives the offence to have been motivated by hatred, not just the victim. The amendment includes sex and gender, and this is important. If an offender believes the victim is a woman, and anybody perceives that the offence was motivated by hatred of women, it should be recorded as a crime motivated by hatred of women. It makes no difference … whether the victim is a transgender woman.”
There may of course be circumstances where an attack on a transgender woman might be more appropriately recorded as a transphobic hate crime, but:
“Where the victim or a witness believes that they were attacked because they were a woman because they perceive the offender believed the victim was a woman, it should be recorded as such. The use of the term “sex” on its own may exclude some offences”.—[Official Report, 17/3/21; col. 363-64.]
It has been argued that, legally, such offences would not be excluded, but we need to consider the practical implications of excluding gender, as Amendment 219A seeks to do.
There are some who believe that trans women are not women but men. Some of those people are very strident in asserting that view. I want to avoid that debate if possible, but the fact is that people are saying this, and that view may influence victims, witnesses and police officers. Some people may not accurately report crimes motivated by misogyny if they believe that this does not apply to trans women. If we are to protect women and record all crimes motivated by misogyny, gender must be included. A proposal such as Amendment 219A, which makes life more dangerous for some women, makes life more dangerous for all women. From the Front Bench, we support Amendment 219 and oppose Amendment 219A.
Lord Ponsonby of Shulbrede (Lab)
My Lords, the Labour Party has been at the forefront of calls to make misogyny a hate crime. Former Nottingham police and crime commissioner Paddy Tipping ensured that it was recorded as a hate crime there, and we have heard from my noble friend Lady Warwick about his work with Chief Constable Sue Fish in that regard. During the passage of the Domestic Abuse Act, we secured the piloting of the recording of misogyny as a hate crime among crimes of violence against the person, including stalking, harassment and sexual offences. Police forces recording misogyny as a hate crime is an important step forward, but we want to go further by including sex and gender in the list of protected characteristics in hate crime laws for the first time.
I shall speak only very briefly because of the hour, but I want to conclude by saying that I thought that my noble friend Lady Chakrabarti encapsulated the decision before us. We in the Labour Party support Amendment 219 and oppose Amendment 219A. As my noble friend said, first of all, this relates to where an offence has already taken place. Secondly, it is already the case that race and religion are aggravating factors, and they have been for many years. We believe that misogyny should be added as an aggravating factor when sentencing.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, I thank my noble friends Lady Newlove and Lady Noakes for tabling their amendments. Both have highlighted the importance of tackling violence against women and girls, as have other noble Lords. We rightly share this priority.
These amendments provide us with an opportunity to discuss the important issue of hate crime, and also to pay tribute to the work of the Law Commission. It performs an important service, considering complex matters of law and making recommendations for change and simplification. This very valuable function helps to bring coherence to complicated and technical areas of law.
The Government share the opinion that all hate crimes are a great injustice and should be dealt with by the full force of the law. I know that noble Lords are aware of the breadth of activity to combat the scourge of hate crime, but in the interests of the hour—I do not think I have ever started my first group of amendments at 10 past 12 at night, so this is a first—I shall consider the amendments before the Committee.
As I have stated in the House before, in 2018, as part of the updating of the Government’s hate crime action plan, we asked the Law Commission to undertake a review of current hate crime legislation. This specifically included concluding a review as to whether other protected characteristics, such as sex, gender and age, should be included. The review’s terms of reference were to review
“the existing range of protected characteristics, identifying gaps in the scope of the protection currently offered and making recommendations to promote a consistent approach.”
As noble Lords have said, the Law Commission’s final report is now imminent. It may be published as early as this month, and that of course is a matter for the Law Commission, which is fully independent of the Government. Noble Lords accepted this during the passage of the then Domestic Abuse Bill, and I think we should see it through in the way we agreed.
However, I do not think that we should commit to giving effect to all the Law Commission’s recommendations before anyone—including noble Lords—has even seen and studied them. It would be inappropriate for any Government to sign what is effectively a blank cheque.
In particular, I know many people hope that the Law Commission will recommend—if I can use the popular parlance—that misogyny should be made a hate crime. To those people, and indeed to any noble Lord, I would say, “Wait and see.” We do not know what it will recommend, and nor should we at this stage. As an independent body which considers and weighs up the evidence, the Law Commission will come to its own conclusions. We will only know what the commission’s advice is when the final report is published.
As the noble Lord, Lord Hunt of Kings Heath, pointed out, where the Law Commission suggested it was minded to consider adding sex and gender to hate crime legislation, it did so only in a consultation. But the purpose of a consultation is precisely to consult. The Law Commission will also want to consider what consultation responses have said and to shape its conclusions accordingly. Whatever the commission’s inclination might have been in 2020, we cannot assume the commission’s final position until it has been published.
It would be premature to accept Amendment 219 and negate the whole purpose of asking this distinguished, independent organisation to give full and proper consideration to the whole construct, purpose and design of hate crime legislation. What is the point of the Law Commission in the first place? I know that people have been critical of it, but I think it is a very useful tool to deal with certain complex issues.
It would also probably be premature at this stage to accept Amendment 219A. As I have said and my noble friend stated, we cannot pre-empt what the Law Commission will recommend. What I think we can say is that the law is complex and contentious, and that has been reflected in our debate tonight. It seems to me that there is every possibility that the Law Commission will make recommendations that will require primary legislation to implement and I do not think it would be appropriate to make what could be quite significant changes to our statute book through secondary legislation. I dare say that, were such a proposal ever to emanate from the Government, I would expect noble Lords to be critical.
Baroness Williams of Trafford (Con)
Yes, noble Lords can take that down and quote it against me.
The noble Lord, Lord Russell of Liverpool, asked me about timelines and when the police were going to start recording the data. As one noble Lord said, we are currently in consultation with the NPCC and forces on how to take that forward. We will ask police forces on an experimental basis to record and identify any crimes of violence against the person, including stalking, harassment and sexual offences where the victim perceives it to be motivated by hostility based on their sex.
In conclusion, significant changes to the law require a full parliamentary process, with the proposals considered by both Houses in the normal way, with all the requisite parliamentary stages. I do appreciate the desire for urgency—I am sure that noble Lords looking at the clock do as well—but I do not think that should be the grounds for changing legislation without full and proper parliamentary scrutiny. Accordingly, I cannot advise your Lordships to pre-empt the Law Commission’s report or to act ahead of knowing what it will recommend. I therefore invite my noble friend Lady Newlove to withdraw her amendment.
Baroness Newlove (Con)
My Lords, considering the time, I will try to keep this short—I will not do a Second Reading speech to end.
This has been a really good debate, again; in fact, I think the whole session today has been interesting. I thank the Minister for her response. Obviously, the Law Commission does excellent work and, as she says, we will have to wait and see. What saddens me is that while we consult and have parliamentary Sessions and Governments and everything, the people on the ground need that support system and understanding, and they need the police service and the culture and everybody else to understand the hostility that they face. As a former Victims’ Commissioner, I have met many victims. Sadly, some went to report that they had been raped by their husband and were told, “You’re not the only one tonight, love”. That has really resonated about why it is so important.
Given that it is late, that this is a probing amendment and that, hopefully, we may have something from the Law Commission that we can come back to on Report, for now I beg leave to withdraw the amendment.
Police, Crime, Sentencing and Courts Bill
Wednesday 17th November 2021
(2 years, 5 months ago)
Lords ChamberRead Full debate Police, Crime, Sentencing and Courts Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 40-IX Ninth marshalled list for Committee - (15 Nov 2021)
Lord Falconer of Thoroton
“(8) After section 102, insert—“102A Centralised monitoring of court decisions to impose youth custodial remand (1) Within six months from the day on which the Police, Crime, Sentencing and Courts Act 2021 is passed, the Secretary of State must nominate a body to collect, analyse and publish data on the decision-making process of courts when sentencing a child to custodial remand.(2) “Decision making process” refers to the consideration and application of the required Conditions for the custodial remand of children by the court, as set out in the Legal Aid, Sentencing and Punishment of Offenders Act 2012.(3) A report on the findings must be laid before Parliament and published on an annual basis.(4) The first report must be published and laid before Parliament no later than 18 months from the day on which the Police, Crime, Sentencing and Courts Act 2021 is passed.””Member’s explanatory statement
This amendment seeks to introduce centralised monitoring of the youth remand decision-making process.
Lord Falconer of Thoroton (Lab)
Before we come to this important group of amendments, I have one housekeeping matter. As noble Lords are aware, the amendments have been marshalled according to the instruction of 13 October 2021, and that puts Clauses 55 to 61 towards the end of our Committee stage. If noble Lords who have the ninth Marshalled List of amendments go to Amendment 319A, they will see a number of pages of government amendments which, in effect, introduce a range of new offences and new powers for the state. In effect, they introduce the offences of locking on and of being equipped for locking on, and they change the law on wilful obstruction of the highway and on obstruction of major transport works.
This is not for the noble Lord, Lord Wolfson, but it would be convenient if the Government, at some stage during Committee, indicated how they intend to deal with the pages and pages of amendments. A whole new structure of offences is being introduced in Committee in the Lords without the stages in the Commons having been gone through and without a Second Reading on those issues. This is not for now, because I have given no warning of it, but it will take as long as it takes to get an answer as to whether special provisions will be made, whether the Government intend to stop the Committee and have a Second Reading, or whatever. Whatever the plans are in relation to this, we on this side of the House—indeed, I think the whole House—would like to know, so we can think about how we deal with it, because it is an important issue.
The group we are about to deal with concerns youth justice. We are into a new part of the Bill and part of this group will raise issues about the age of criminal responsibility. The only reason I am starting is because my Amendment 219B requires the centralised monitoring of court decisions to impose youth custodial remands. As noble Lords will know, a whole new regime of remanding people aged 10 to 17 in custody was introduced by the LASPO Act in 2012. It gives rise to very practical difficulties throughout the country in relation to finding appropriate places to remand people of that age in what is, in effect, detention of some sort. There is no centralised monitoring.
In responding to this amendment, will the Minister indicate what the current arrangements are for monitoring this nationally, and what is the Government’s proposal, if any, for making sure that national statistics are regularly available? Without such statistics, it is difficult to have an informed debate about what additional provision is required, save to say that the experience on the ground is that there needs to be more proper provision over a range of options. I beg to move.
Baroness Butler-Sloss (CB)
My Lords, I shall speak to Amendment 220. I feel very strongly about the issue of the age of responsibility of children. I first raised it in this House in 2006, when a Labour Government dismissed it out of hand. I was for 35 years a family judge dealing with children; I happen also to have brought up three children, and I care about children. In 2006, what is now known about young children and the maturation of their brains was not particularly well known, but a great deal of evidence has now come forward. It was looked at by the Select Committee on Justice in the other place in November of last year.
Psychiatrists gave evidence, in particular about the fact that young children aged 10—and, for goodness’ sake, a child of 10 is young—do not really mature until considerably later. We have only to look at what is happening across Europe as an example. Scotland has raised the age to 12. The age of responsibility across Europe is either 12 or, in more places, 14. We remain at 10. I think it is probably because successive Governments, on both sides of this House, are afraid of what the public will say.
Lord German (LD)
My Lords, I present the apologies of my noble friend Lord Dholakia, who is unwell and in some considerable pain. He is therefore not able to attend your Lordships’ House. On his behalf, I have his speech, from which I should like to read some extracts. I am sure that Members of the House of Lords will recognise, of course, that my noble friend had a Private Member’s Bill precisely on this issue, and that it passed all stages in this House. It fell because of Prorogation and therefore had no time in the House of Commons. This House has certainly made its view well known and presented it to the House of Commons. This amendment gives us an opportunity to make sure that what was decided by this House is carried forward.
My noble friend Lord Dholakia has said that, at present, in England and Wales, children are deemed to be criminally responsible from the age of 10, and this provision was last amended more than 50 years ago, in 1963, when the age of criminal responsibility was raised from eight to 10 by the Children and Young Persons Act of that year. This means that children who are too young to attend secondary school can be prosecuted and receive a criminal record. A 10 year-old who commits a “grave crime”—which includes serious, violent and sexual crimes but can also include burglary—will be tried in the adult Crown Court. A child of 10 or 11 who is accused with an adult will also be tried in the Crown Court.
The age of criminal responsibility in the United Kingdom is the lowest in Europe. In Ireland, in 2006, the age was raised to 12, with exceptions for homicide, rape or aggravated sexual assault. In Scotland, where the age of criminal responsibility was particularly low, at eight, legislation in 2010 amended it to age 12. Outside the British Isles, the age of criminal responsibility is invariably higher. In Holland, it is 12; in France, it is 13; in Germany, Spain, Italy, Austria, Hungary, Bulgaria, Slovakia, Slovenia, Croatia and Romania, it is 14. In most other European countries, it ranges between 14 and 18. Across Europe the average age is 14.
The United Nations Committee on the Rights of the Child has repeatedly stated that our minimum age of criminal responsibility is not compatible with our obligations under international standards of juvenile justice and the UN Convention on the Rights of the Child. In a statement in 1997, the committee said:
“States parties are encouraged to increase their lower minimum age of criminal responsibility to the age of 12 years as the absolute minimum age and to continue to increase it to a higher age level.”
In subsequent reports in 2005 and 2007, the committee reiterated that a minimum age below 12 is not internationally acceptable.
Taking 10 or 11 year-olds out of the criminal justice system would not mean doing nothing with children who offend; it would mean doing what other countries do with 10 and 11 year-old offenders. It would mean doing what we do with delinquent nine year-olds. In other words, it would mean dealing with the causes of these children’s offending through intervention by children’s services teams. In the minority of cases where court proceedings are necessary, it would mean bringing children before family proceedings courts, which can impose compulsory measures of supervision and care. In the most serious cases, this can mean detention for significant periods in secure accommodation, but this would be arranged as part of care proceedings rather than as a custodial punishment imposed in criminal proceedings.
In 2012, the Centre for Social Justice, which was set up by the former Secretary of State for Work and Pensions, produced a report on the youth justice system entitled Rules of Engagement: Changing the Heart of Youth Justice. It said:
“There is now a significant body of research evidence indicating that early adolescence (under 13-14 years of age) is a period of marked neurodevelopmental immaturity, during which children’s capacity is not equivalent to that of an older adolescent or adult. Such findings cast doubt on the culpability and competency of early adolescents to participate in the criminal process”.
The evidence internationally is overwhelming, and from the United Kingdom and from this House. There is extensive evidence from neuroscientists, psychologists and psychiatrists demonstrating the developmental immaturity of young children. The Royal College of Psychiatrists has expressed the view, based on evidence, that our age of criminal responsibility is too low.
While a 10 year-old might know that stealing something is wrong, their ability to apply that knowledge to their actions will be very different from that of an 18 year- old. This does not mean that children aged 10 or 11 have no responsibility for their actions, but on any reasonable interpretation of the evidence, they must be regarded as less responsible than an older adolescent or an adult.
The age of criminal responsibility is an anomalous exception. In relation to the age of consent for sexual activity, for example, we regard any purported consent as irrelevant in order to protect children from abuse or immature sexual experimentation. It is completely illogical that we regard immaturity in this context as worthy of protection by law but take a diametrically opposite approach when it comes to criminal responsibility. The illogicality of our current law is increasingly recognised. The Law Commission concluded last year that the age of criminal responsibility is not founded on any logical or principled basis.
The fact that the numbers involved are relatively small is a strong argument for this amendment. It means that it will not be a huge burden on resources to make alternative provisions through welfare interventions; nor would dealing with these children through non-criminal processes put the public at risk.
Children who are officially labelled as offenders often react by trying to live up to the label and acting in increasingly delinquent ways to achieve status in front of their friends. While the numbers are low, the resources needed to execute a shift towards treating these vulnerable children through a welfare lens, rather than a criminal justice one, would be small, and the positive benefits for them and for wider society considerable.
Even though some changes have been made to court processes involving children, it remains true that exposing young children to a criminal trial is no way to achieve justice. This is a short amendment but its recommendation, if implemented, will change the shape of our criminal justice system for our children.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, I strongly support this amendment, as I have supported the PMBs on this from the noble Lord, Lord Dholakia, over recent years. The reasons for raising the age by the—goodness knows— modest enough margin of two years, from 10 to 12, are cumulative and compelling. If there is any objection to this amendment, it is that it does not go far enough, but I do not make that objection.
I have three reasons for supporting this. First, a 10 year-old’s mental capacities are not comparable to those of an older adolescent or adult. The noble and learned Baroness, Lady Butler-Sloss, has made these points about maturation, and I will not repeat them.
Secondly, criminalising these youngsters while they are still developing their identities and character and growing socially and emotionally is deeply damaging to their self-esteem and future prospects. Brand a child of 10 or 11 a criminal and that is how he will come to see and identify himself, and so he will behave in future. The subsequent criminal records of those who have been thus branded bear this out. Their records attest to it.
Thirdly, whatever their wrongdoing and however grave—to call it criminal is of course to beg the question—they will be dealt with in the same basic way whether they are convicted under the criminal justice system or dealt with through corrective welfare processes. If they need to be detained securely, they will be. The necessary measures can be imposed whichever route is taken, whether they are prosecuted as criminals or treated as however gravely miscreant children requiring correction. The public will not suffer if in future they are recognised as children who have done something dreadfully wrong rather than wicked criminals. On the contrary, the public will benefit. These children are more likely to lead law-abiding lives in future if we change our system at last.
It is high time to banish the long shadow of the tragic Bulger case—it has already been mentioned today—that, alas, is still cast and obscures the realities and common sense on this issue.
Lord Thomas of Cwmgiedd (CB)
My Lords, I also rise to support Amendment 220. When I was chairman of the Commission on Justice in Wales, we looked at this issue and had extensive evidence, including from the Children’s Commissioner for Wales. Without hesitation, we recommended that, were it free to do so, Wales should raise the age of criminal responsibility to 12, consistent with United Nations obligations it has untaken.
I agree completely with what has been said about the profound changes in the understanding of mental capacity that have taken place over the last 10 years in particular. I urge the Government not to delay any further a change to make our country no longer a laggard on this issue but one that is at least catching up. There are problems, such as knife crime, but the age of criminal responsibility is not the way to deal with them.
Baroness Chakrabarti (Lab)
My Lords, it is very good to see the Committee refreshed and to have the opportunity to meet earlier in the day, so I thank the powers-that-be for making this possible.
Baroness Jones of Moulsecoomb (GP)
My Lords, I rise to speak in place of my noble friend Lady Bennett, who has tabled Amendment 221. As the noble Baroness, Lady Chakrabarti, said, it is perhaps a softer option that your Lordships might find acceptable.
I strongly support the amendment in the name of the noble Lord, Lord Dholakia, and the noble and learned Baroness, Lady Butler-Sloss. The only qualm I have about Amendment 220 is that it sets the age at 12 and not 14. Quite honestly, we treat our children in the criminal justice system absolutely abysmally, with demonstrably disastrous results and a recidivism rate of 40% within a year. This demonstrates that the courts are not working to address the issue of these children. As we have already heard, the Children’s Commissioner has described the youth justice system as “chaotic and dysfunctional”, and the children caught up in it are disproportionately from ethnic minority communities.
We are world leading in the awful way in which we treat children. At 10, we have the lowest age in Europe—far below the suggestion from the UN Committee on the Rights of the Child of a minimum appropriate age of 14. That is the average across European countries, but even China and Russia—where the UK rightly often has cause to point out human rights abuses—have higher ages of criminal responsibility than we do. And we do not have far to look—we can go to Scotland to see exactly what happens there. There the age is 12, and I would prefer it to be 14.
This is not a moral question but a scientific one. Children’s brains do not develop as quickly as people might think. Children below the age of 14 are still developing the capacity for abstract reasoning. Their frontal cortex is still developing; therefore, they are unlikely to understand the impact of their actions. I think there is some political will in Westminster to take this evidence on board and, to use a phrase so loved by the Government, “level up” our youth justice legislation. In 2020, the Justice Committee recommended that the Ministry of Justice review the minimum age of criminal responsibility. Unfortunately, the Government seem to have chosen once again to renew their ideological commitment to being tough on law and on youth crime, even when it is committed by children. This is not an acceptable status quo either on human rights or on scientific grounds. Children are being failed by antiquated government standards. This is an outrage, and reform is needed.
If the Government cannot accept Amendment 220—which they absolutely should—Amendment 221, in the name of my noble friend Lady Bennett, might be a soft option. Both she and I hate putting softer options to the Government, but, in this case, it might work. It would ensure a legally binding commitment on the UK Government to at least consider whether our abnormally low age of criminal responsibility is tenable, given international norms and expert opinion. My noble friend Lady Bennett would, of course, be happy to discuss a revised text for Report. Personally, I would tough it out and potentially vote for Amendment 220 and for our Amendment 221.
Lord Carlile of Berriew (CB)
My Lords, I apologise to the noble Baroness who has just spoken. It is a pleasure, on this occasion at least, to follow her. I do not necessarily agree with some of the language she used. I do not feel a sense of outrage about this issue. I feel shame and sadness and I agree strongly with the speech of my noble and learned friend Lady Butler-Sloss, and other noble Lords who have spoken on this issue.
The noble Baroness, Lady Jones, used the term “outlier”. That is what I had scribbled down on the piece of paper in front of me. We are the outliers on this. As the noble Baroness said, in Russia the age of criminal responsibility is much higher. Indeed, the general age of criminal responsibility there is 16, with 14 for exceptionally serious offences. I have visited a number of countries in central and eastern Europe and looked at the way in which young children who have committed serious offences are dealt with, and I do not notice a higher level of disorder in a single one of these countries. I do not know any country with a higher age of criminal responsibility in which children roam the streets committing crime to a greater extent than—very occasionally, fortunately—happens here, and I can see absolutely no empirical reason for turning down this amendment.
I have also observed how children behave when they are sent to Crown Courts. I am happy to note that far fewer children are being dealt with in Crown Courts than used to be the case and that the Crown Prosecution Service is being much more sensitive than it used to be at one time as regards the joinder of children with adults in Crown Court trials. The CPS has recognised that, wherever it is possible, children should be dealt with in the youth court. That has led to a reduction in the number of Crown Court trials.
Lord Sandhurst (Con)
My Lords, perhaps I may begin by saying that I support Amendment 220. I endorse it completely and have nothing further to say on it. Noble Lords have spoken with great eloquence and force. As the noble Baroness, Lady Chakrabarti, has explained, my Amendment 221ZA, is a probing amendment designed to correct the terms of a subsection in Amendment 221 in case that amendment goes forward and the Government are interested. Let me explain.
I should say at once that Amendment 221 is, in principle, good. If accepted, it would require the Government to carry out a review of the age of criminal responsibility. I have no argument with that whatever. The issue that I raise is with the list of factors to be considered by any such review and, in particular, the use of the word “gender”. The right word there should be “sex”. The requirement in Amendment 221 is that the review should take into account certain factors. It can take other factors into account, but the following are mandatory:
“age, gender and ethnic background”.
My focus is on gender. Those noble Lords who sat through the important debate on Monday night will have heard lengthy discussion of those terms and their use in legislation. I will come back to that.
When I drafted my amendment rather hurriedly on the Thursday, I focused on the terms in the Equality Act. Why I did so will become obvious in a moment. I used too many words; I just lifted other factors in order to include them. I am now satisfied that the only proper course is to remove the term “gender” and substitute that with “sex and gender reassignment”. The cohort, if the review were to take place, will be those under 18 and, for the large part, those materially younger. One could call them children. Importantly, “sex” is established in statute and describes physiology. It is not a social construct. It is easily identified, and is listed and defined, as I shall explain, in the Equality Act. It should be noted that “gender” is not so defined. I say that for noble Lords who were not here on Monday or have not studied the Act in detail.
Section 11 of that Act states:
“In relation to the protected characteristic of sex … a reference to a person who has a particular protected characteristic is a reference to a man or to a woman; … a reference to persons who share a protected characteristic is a reference to persons of the same sex.”
There is further elaboration in Section 212, which defines “man” and “woman”—in other words, the terminology that has just been explained. It states that,
“ ‘man’ means a male of any age … ‘woman’ means a female of any age.”
There we have it all clearly defined. Sex is a physiological condition and, importantly for the purposes of a review, it is an objective fact, not someone’s opinion. It is not what someone identifies as. We are talking here about people under 18, usually those much younger. Also, we all know that sex is registered at birth. It is on the birth certificate.
In the case of a small number of people who are under 18 and may fall within the ambit of the review, there may be those to whom the term “gender assignment” will apply. They will be few, but if that does apply within the meaning of the legislation, that, too, will be a fact, not an opinion. That is because gender reassignment is also a protected characteristic under the Equality Act. Section 7(1) of that Act defines gender reassignment as follows:
“A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex.”
So gender reassignment likewise refers to a physiological process and does not include mere self-identification or opinion. Lastly, in case anyone were to ask, “What about gender recognition certificates?”, they simply do not apply. One cannot have one of those if one is under 18. I say that so that everyone knows where we are.
Put simply, if there is to be such a review, the mandatory—if that is the right word—considerations should be age, sex, gender reassignment and ethnic background, but not gender. I commend this approach and await with interest the Minister’s response.
Baroness Chakrabarti (Lab)
I should say briefly in the absence of the noble Baroness, Lady Bennett of Manor Castle—perhaps it is not my place to do so because it was her amendment that I signed—that I should thank the noble Lord, Lord Sandhurst. We have been using various terms in Committee, but on this occasion he must be right. If one were considering children under 18 in the context of a review of the age of criminal responsibility, it would be a glaring omission to include “gender” instead of “sex” in the legislation.
Sometimes it may be appropriate to use both terms, and I supported that position on Monday in the particular context of a different amendment about hostility towards people. What I tried to suggest, and which Twitter does not reflect, is that hostility can be towards people in broader categories than those protected under the Equality Act. I would not want someone to be subjected to violent hostility, even on grounds that are not currently in the Equality Act, because they were non-binary or whatever. That is not really the point in this context. If I may say so, the noble Lord, Lord Sandhurst, put it very well.
What is more, I hope that the noble Baroness, Lady Bennett, will forgive me for making that concession, given that this is a probing amendment and her list of factors to be considered in any review was inclusive and not closed. I hope it is helpful to respond to the noble Lord, Lord Sandhurst, in this way.
Lord Hogan-Howe (CB)
My Lords, I broadly support a rise in the age of criminal responsibility. I think the review is a good idea, and of course it should be science-based. The danger of going for 12 years, which is an improvement, is that it could be higher if only we thought about it well. I would be open-minded on whether it needs to be a matter of law or a government commitment to carry out a review.
There is just one area which I hope such a review might consider. The Bulger case is often referred to, for obvious reasons. Hard cases can make very bad law; we are aware of that. But I do think that that type of case imposes a duty on government to consider people’s concerns. There are two concerns that people might have if they lived in the area. One is where the child would live on return to society. That could be covered through care proceedings—you can control where someone lives and who they live with. The second is their occupation. If, at the age of 18, the murderers were released—as they were in the Bulger case—and wanted to go into childcare, or any of the care professions, would people be content with that? There would at least be a question about whether that would be wise. If they only have a care proceeding against them, they would be perfectly entitled not to declare what they were involved in at the age of 10. My point is not that they should be criminalised and therefore always carry that with them, but about how you manage their occupation, subsequent to their reaching an adult stage. It can be managed without criminalisation, but such a review might want to consider how that could be done most efficiently.
Lord Marks of Henley-on-Thames (LD)
My Lords, I am constantly amazed by the persistence of this generally civilised country in being willing to treat children of 10 and 11 as criminally responsible.
The noble and learned Baroness, Lady Butler-Sloss, my noble friend Lord German, the noble and learned Lord, Lord Brown of Eaton-under-Heywood, and all other noble and noble and learned Lords who have spoken have made the argument persuasively and on the basis of the scientific, social and international evidence. I say no more about the strength of the evidence.
The noble and learned Baroness, Lady Butler-Sloss, also pointed out the degree to which government inaction on this issue has been based on public prejudice and the Government’s pandering to it. Bluntly, that is moral cowardice, not leadership. Many of us find it unbelievable that, uniquely in western Europe, our children of 10 and 11 can be treated as criminals, when it is entirely clear that they lack the psychological maturity that is appropriate for any legitimate view of criminal responsibility. Why did change come successfully to Scotland and yet the Government seem unprepared to make it here?
I pay tribute to my noble friend Lord Dholakia, who has campaigned tirelessly on this issue for many years. I know he will have been most disappointed to have been unable to attend to speak today. But the House has fully recognised in this debate his commitment and his major contribution on this issue, and we will wish to send him our good wishes for a full and swift recovery.
Amendment 221A in my name and that of my noble friend Lord German has a different purpose. It is to pursue the worthwhile goal of diverting young offenders away from the criminal justice system and towards alternative methods of encouraging them to avoid offending. Youth offender teams have been established since 1998 and have as their function helping young offenders under 18 under supervision of the Youth Justice Board. Central to their function has been to establish services within their local communities to help prevent offending and reoffending. They have a wide remit that permits them to organise a range of activities in an effort to keep young people away from crime. Sometimes this involves involving young people in a form of restorative justice by bringing them into contact with their victims and helping them to organise reparation where it is thought that might help the offender and be accepted by the victims. Among their functions is to help supervise community sentences for young people. Our amendment is designed to help youth offender teams fulfil their function by diverting young people within their area away from the criminal justice system.
Baroness Sater (Con)
My Lords, I rise to speak briefly to Amendment 221B in my name, which is a probing amendment on the need for a review of youth sentencing. I would also like to refer to my interests as set out in the register.
I appreciate that this is a very extensive Bill, and as a former member of the Youth Justice Board and a youth magistrate I note that there has been little reference to the youth courts. It would be a real opportunity lost not to commit to undertake a review of youth sentencing, especially with the ever-evolving criminal justice landscape.
As I mentioned on Second Reading, I have several concerns relating to youth sentencing, and one in particular that I would like to refer to today, which is the unfairness in the treatment of the jurisdiction of young offenders under 18 years of age with regard to the dates of the offence and their first court appearance. Simply put, young people who commit an offence as a child but are then not brought to court before their 18th birthday through no fault of their own are treated as adults in the adult courts. However, defendants who do not get to court before their 18th birthday will go to the youth court where they will benefit from all the specialisation and expertise of the youth court, the youth court practitioners and the youth court’s specific focus on the defendant’s needs and welfare.
It should not be a postcode lottery of where you live due to multiple issues, including court scheduling, that can affect which court you end up in and therefore how you are dealt with. Reforming this now is important, so that defendants are instead dealt with according to their age at the time of the alleged offence, which would mean that youth justice principles would be followed and all defendants would be given the same opportunity and fairness in having access to the youth court services and the support that is so needed to reduce reoffending. We know that the adult court cannot offer the same specialist support as the youth court.
In February, the MP for Aylesbury, Rob Butler, introduced a 10-minute rule Bill on this issue in the other place, where he outlined how his proposals garnered a wide range of support, not only cross-party support but support from key stakeholders and organisations including the YJB, the National Association for Youth Justice and the Magistrates’ Association. There seems to be no common sense or fairness that these young people are treated so differently.
The Covid-19 pandemic has thrown up challenges and, in turn, some positive innovation in youth justice. At the same time, there remain outstanding anomalies in youth sentencing that pre-date the pandemic; I have spoken about some of those issues before in this place, and again today. All taken together, surely now is the right time to commit to a wide-ranging review and for the Government to bring forward a report. In doing so, not only can we address and meet future challenges, and keep under review the innovation we have seen, such as the use of video linking, to ensure that it results in the intended outcomes; importantly, we can also help to address the historical anomalies in the system that existed well before Covid-19.
I look forward to hearing from my noble friend the Minister and hope that he will consider this review, which I hope will help to deliver and improve outcomes in youth justice.
Lord Marks of Henley-on-Thames (LD)
My Lords, I apologise to the noble Baroness for speaking before her; I did not realise that she wanted to speak. I also apologise for erroneously referring to her as the noble Lord, Lord Sater.
Lord German (LD)
My Lords, I too have added my name to Amendment 221A, which would make youth diversion schemes statutory. I will say a few words about that, as well as about Amendment 219B in the name of the noble and learned Lord, Lord Falconer.
Formal criminal justice system processing—for example, through prosecutions or out-of-court disposals—makes children more, not less, likely to offend. The further a child is processed inside the formal criminal justice system, the greater the likelihood of reoffending, especially for lower-risk children. There is strong evidence both nationally and internationally that youth diversion can reduce crime, cut costs and create better outcomes for children. However, it is currently a non-statutory function for youth offending teams.
We know that practice varies considerably between areas and that some areas have no diversion scheme at all. The 2019 mapping exercise carried out by the Centre for Justice Innovation found that, of the 115 youth offending teams responding, 19 said that they did not have a point of arrest diversion scheme. There is a wealth of great work going on across the country, but there is a dearth of best-practice exchange. I believe that it is quite correct that there should be the principle of local decision-making because that can bring together the wide range of partnerships needed to make any programme work. Keeping it local means that the team can do its work best.
However, the picture is of a set of procedures that are variably practised—some with both breadth and depth, and some without one or other of those attributes. Locally, practitioners are dedicated and have built up some very impressive practices, but in many areas the eligibility criteria are unduly strict, the referral processes slow and the interventions too lengthy. Youth offending teams are not to blame for the variation we see. Because it is non-statutory, we lack robust data and data analysis. Many youth offending teams struggle to keep their services within budget, and staff and funding may not always keep pace with the increased workload, especially when it is non-statutory.
We need a better understanding of what is happening on the ground, where the gaps in provision are, how good schemes can be supported and how good practice can be passed on. The way to achieve this is to make the service statutory and to support the work with funding as necessary. Amendment 219B, in the name of the noble and learned Lord, Lord Falconer of Thoroton, has much the same knowledge request. Basically, you cannot know what you do not know, and if you do not know what the figures and statistics are, you will be unable to take action accordingly. Understanding this better matters both locally and nationally. I believe that making this statutory would ensure that the good practice which abounds in our country is given the opportunity to grow even more, so that we can divert as many young people as possible from the criminal justice procedure. But to do that, we need certainty, and this amendment provides it.
Lord Falconer of Thoroton (Lab)
My Lords, I join noble Lords in wishing the noble Lord, Lord Dholakia, well and a fast recovery. He has played an important part over many years in the debate on child responsibility and the criminal responsibility age. We miss him today in this debate.
I also express my unconditional support for Amendment 221A in the names of the noble Lords, Lord Marks and Lord German, which would put pre-charge diversion schemes on a statutory basis. As the noble Lord, Lord German, said, these good schemes are present in many places; it would be a good thing if they were put on a statutory basis.
I agree with many of the points made by the noble Baroness, Lady Sater, on Amendment 221B. I will be interested to hear what the noble Lord, Lord Wolfson, says about it. I do not know whether a review of the whole sentencing position in relation to the youth court is the right answer—let us see what the Minister has to say—but the noble Baroness’s points were powerful and important, and the Government need to deal with them.
The main issue in the debate on this group is the age of criminal responsibility. The case for increasing it has been made overwhelmingly and I agree with it, particularly the point about evidence on the maturation of children and whether they should be viewed in the same category. I strongly support the view that that would increase reoffending because it would make a child see himself or herself as a criminal, which is bad for society. I was also influenced by the point that we are an outlier and that what we do with children, whether in the care system or in the criminal justice system, should not be different.
I have one big concern, however. I do not accept the characterisations of the noble Lord, Lord Marks, and the noble and learned Baroness, Lady Butler-Sloss. Both referred to the incredibly tragic Bulger case, saying that you should not give way to pressure because it does not show leadership when dealing with a case like that; the noble and learned Baroness referred to the tabloids. What happened in the Bulger case was awful and had an utterly legitimate effect on the Merseyside community. To try to dismiss that as something “got up by the tabloids” is, in my respectful view, to misunderstand utterly the significance of the event. Also, if you speak to people who were involved in the Bulger trial, you realise that it was an incredibly important trial. It lasted a month and brought to the fore a whole range of things that were troubling the community, and it also identified what had happened.
For justice to work in our country, it must to some extent reflect reasonable views about what should happen. I do not say that as a result of the Bulger trial, the age of criminal responsibility should be 10. But in considering how to deal with the age of criminal responsibility, which may well go up to 12—the evidence on that is overwhelming—you have to have a justice system that functions properly to deal with that sort of case. Otherwise, the community reacts not because they are inflamed by the tabloids, but honestly and in a normal way to what has happened.
Jamie Bulger’s parents, quite legitimately, made public what had happened and the community knew what had happened. The justice system must be able to deal with that, perhaps through some sort of intermediate proceedings; however, we do need to address this. To those noble Lords, such as the noble and learned Lord, Lord Brown, who say that it casts a long shadow, I say this: it does and it is still there, and it must be dealt with.
Subject to that, I am in favour of increasing the age of criminal responsibility from 10 to something higher. I am not as dismissive as other noble Lords of having some sort of review to deal with this. It would need to look at the issues raised by the noble Lord, Lord Hogan-Howe, which are important. Also, if you are taking 10 to 12 year-olds out of the criminal justice system, it would need to consider how to deal with the issues raised by the Bulger trial, perhaps not through criminalising but through some other process.
Baroness Butler-Sloss (CB)
My Lords, the noble and learned Lord misunderstood, if I may say so, what I was saying. Of course one had to treat the Bulger case with great care. I had a part in giving what were by then two young men lifetime anonymity, so I had to learn a great deal about what went on. Of course they had to be dealt with severely but what should happen in the future, in another case, should be, under the Children Act, secure accommodation, where they could have been kept as long as if they had been criminalised. I was merely using that appalling Bulger case as an example of how 84,000 people thought that they should stay in prison for ever, until they died. My point was not to treat the Bulger case as less serious; it was unbelievably serious. As the noble and learned Lord, Lord Brown of Eaton-under-Heywood, said, it has cast a long shadow, which continues today. The Bulger case was wrong in that the children should not have been tried in an adult criminal court. It was purely and simply to show the punitive element in this country, which had a marked effect on the noble and learned Lord’s Government. When I raised this issue in 2006, I was dismissed summarily, it being seen as quite unsuitable to raise the age from 10 to 12. That Government were without the evidence that there is today, but, for goodness’ sake, they also took the view that Lucy Frazer took to Sir Robert Neill’s committee.
Lord Falconer of Thoroton (Lab)
My Lords, that was my fault. I was not for one moment suggesting that the noble and learned Baroness, Lady Butler-Sloss, was saying that the Bulger case did not require enormously sensitive handling, nor that she was in any way underestimating the seriousness of it. I was seeking to say that the fact that there were tabloid campaigns about it and that people were very concerned about it was absolutely legitimate. What they were asking for was not necessarily legitimate, but there was very real concern. Obviously, there must be anonymity, but if the matter is dealt with entirely in the care system, without any public element of how the law is dealing with it, then the community never gets satisfaction in relation to what is happening. By satisfaction, I mean that there must be some recognition within the justice system of the appalling nature of what has happened.
Lord Carlile of Berriew (CB)
Surely the noble and learned Lord is not saying that the public aspect of this, which he describes rightly, must be dealt with by a criminal trial. Numerous other mechanisms can be used. An inquiry, for example, can ventilate all the public factors that need to be discussed without the artifices of a criminal trial for 10 year-olds.
Lord Falconer of Thoroton (Lab)
I agree that it does not need to be dealt with in a criminal trial, but there needs to be some process. Before one increases the age of criminal responsibility from 10 to 12, which we should do, this must be looked at. This is why I rather favour the second amendment, tabled by the noble Baroness, Lady Chakrabarti, which is a review of this, because broadly the case is made in relation to it. It probably should not be something ad hoc, as is the nature of an inquiry, but it should have some recognition that cases such as the Bulger case, which have a significant effect on not only the local but the national community, must be dealt with in a special way.
Lord Marks of Henley-on-Thames (LD)
My Lords, I associate myself with everything that the noble and learned Baroness, Lady Butler-Sloss, and the noble Lord, Lord Carlile, have said. I am not sure that the noble and learned Lord, Lord Falconer, has accepted my point, which to a certain extent is the same as that made by the noble and learned Baroness, Lady Butler-Sloss, that we do not wish to reduce or minimise the importance of the Bulger case. My point is that, where publicity is as extensive as it was following that case and where the publicity seems to be directed as in the example that the noble and learned Baroness gave, producing a result where children under the age of 12 would be sent to prison for life and be treated by ordinary criminal process, which is entirely unsuitable for children of that age, the Government must show moral leadership and change the position based on the evidence, rather than taking a political view that it might be easier to duck the question when the evidence is so clear. That is the point that I invite the noble and learned Lord to take. I understand that he supports the increase in the age of criminal responsibility, but I do not hear him saying that the Government must show the leadership to do that in spite of publicity to the contrary.
Lord Falconer of Thoroton (Lab)
I accept that the age of criminal responsibility should go up. I strongly endorse what everybody is saying about the Government and, in particular, I endorse what the noble Lord, Lord Marks, is saying about the Government showing leadership in this respect. I also endorse what he says about the Government needing to show leadership in standing out against campaigns that seek to criminalise people under 10 or, in the campaign that he was referring to, between 10 and 12. My point, which I keep coming back to, is that this Committee should not underestimate, or treat as simply got-up, campaigns concerning the justice system, which in some ways expands beyond the criminal justice system, in cases such as the Bulger case.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
My Lords, these amendments concern youth justice matters. I will address each of them in turn.
Amendment 219B, tabled by the noble and learned Lord, Lord Falconer of Thoroton, would require the centralised monitoring of youth remand decisions made by the court and the laying of a report of findings before Parliament on an annual basis. I understand that the amendment’s purpose is to improve the scrutiny and monitoring of youth remand trends. However, that is precisely what our measures seek to achieve, as I will explain, while leaving the detail of operational processes to the various operational bodies. We think that this is the better way to do it.
The new measures will require the court to be explicit that they have considered not only the two sets of conditions but the interests and welfare of the child. Furthermore, while at the moment the court only has to explain the reason for remand in open court and specify it in the warrant and in the register, our new subsection (5)(za) requires that the court also gives the reasons in writing to the child, their legal representative and the youth offending team, which will enhance the ability of those justice partners to monitor the reasons for custodial remand.
Turning to the specific question put to me by the noble and learned Lord, Lord Falconer, on what arrangements are in place for monitoring courts’ decisions and whether statistics are readily available, as I have said, courts already state in open court their reasons for remanding the child to youth detention accommodation. That information is included on the warrant of commitment and the court register. Pronouncement cards from the Sentencing Council provide guidance to the judiciary on how to do that.
As for statistics, my department already publishes annual statistics on court outcomes on youth remand. The population on remand in the youth custody estate is published monthly. We have new IT systems being developed and, in light of those new systems, we will reconsider the best way to collect, analyse and, so far as is appropriate, publish the information that courts will now be required to provide in writing. However, it is best to leave that granular level of operational process to the entities doing the work on the ground, rather than to prescribe it in statute. Our intentions are certainly aligned. I am sure that the noble and learned Lord will appreciate the need for pragmatism in how best to achieve that.
Amendments 220, 221 and 221ZA seek to raise the age of criminal responsibility from 10 to 12 and to require the Secretary of State to complete a review of the age of criminal responsibility including, as my noble friend Lord Sandhurst explained, an assessment of the protected characteristics of children in detention, under the Equality Act. I listened very carefully to my noble friend and, I think it is fair to say, I set out the position on that in some detail on Monday. With respect, I am not going over that again. I hope I made the Government’s position clear on Monday.
I am grateful to the noble and learned Baroness, Lady Butler-Sloss for raising Amendment 220. I am aware, as she said, that she has brought this to the attention of the House on a number of previous occasions. As far as open ears are concerned, I assure the noble and learned Baroness that my ears are always open. I listened carefully to her speech and the speeches of the noble and learned Lords, Lord Brown of Eaton-under-Heywood and Lord Thomas of Cwmgiedd. I join other noble Lords in wishing the noble Lord, Lord Dholakia, who is absent, a speedy and full recovery.
I will set out the Government’s position on this issue. We believe that setting the age of criminal responsibility at 10 provides flexibility in dealing with children, allowing early intervention with the aim of preventing subsequent offending. Our primary objective when it comes to children, as I have made clear on previous groups, is to prevent children offending in the first place. Where there is offending, we need to provide the police and courts with effective tools to tackle it. Critically, having the age of criminal responsibility at 10 does not preclude other types of intervention—for example, diversion from the criminal justice system—where it would be a more suitable and proportionate response. To that extent, I agree with the noble Lord, Lord German, that diversion from the criminal justice system should be at the heart of how we approach children in the vast majority of cases.
When considering the most appropriate and proportionate response to offending by a young person, the maturity and needs of a child, as well as their age—to make the obvious point, a 12 year-old is not a 17 year-old—are always considered. We also consider protected characteristics in our work, as per the public sector equalities duty. This is borne out in practice. Most children aged 10 to 14 are diverted from the formal criminal justice system or receive an out of court disposal. The number of children aged between 10 and 12 years in the youth justice system has fallen dramatically since 2009, and we are keen for that downward trend to continue. Since 2010, which is more than a decade ago, no 10 or 11 year-olds have received a custodial sentence.
It is, however, important—to this extent, I adopt the remarks of the noble and learned Lord, Lord Falconer of Thoroton—to ensure that, when appropriate, serious offences can be prosecuted and the public protected. The horrific Bulger case has been mentioned by a number of noble Lords and I remember it clearly. I grew up in Liverpool and it shocked my native city to the core. Whether we are talking about the Bulger case or any case involving children, even the most serious, there is a distinct and separate sentencing framework for children aged 10 to 17, which recognises that they have their own specific needs that require a different and more tailored approach. That looks at age, so someone aged 13 is treated differently from someone aged 17 and a half. As noted by the noble Lord, Lord Carlile of Berriew, that pervades the approach of the criminal justice system to children. It is not a matter just of clothing, words or wigs; there is a fundamentally different approach tailored to dealing with children.
Baroness Butler-Sloss (CB)
Will the Minister deal with two points that he has not yet addressed? First, even Scotland has gone to the age of 12, and right across Europe it is at least 12 or 14. He has not dealt with why we are now, alone in Europe and in the United Kingdom, at 10. Secondly, it is contrary to the United Nations Convention on the Rights of the Child, and the Government seem to be ignoring that.
Lord Wolfson of Tredegar (Con)
I appreciate that there is a range of ages across Europe. We are at 10; some are at 12; some are at 14; some are at other ages. I have sought to set out why we believe that 10 is the correct age, given the way that our criminal justice system deals with children. I appreciate that what I have said will not have persuaded the noble and learned Baroness, but it is not simply a question of looking at the age but at how the criminal justice system as a whole responds to very young offenders.
As far as the United Nations Convention on the Rights of the Child is concerned, Her Majesty’s Government believe that we are in compliance with our international obligations. Indeed, as the noble and learned Baroness will know, that convention was the subject of a recent Supreme Court decision on the different ways in which England—or to be more precise, the UK—and Scotland, which wants to incorporate it into domestic legislation, have applied that convention.
Baroness Sater (Con)
I thank my noble friend the Minister for his response. On the jurisdiction of under-18 year-olds, it does not address the fact that they will not get all the wraparound services and support from the youth court and youth practitioners. Furthermore, if they go to the adult court, they will still not get a referral.
Lord Wolfson of Tredegar (Con)
I am grateful to my noble friend for the question, and for taking the time to discuss it with me in the past. Because the offender is 18 at the time of the case and of the sentence, the system has to respond to the fact that they are now adult. It may well be, in some cases, inappropriate to lump that adult in with children. Some sentences and responses that the youth court can give to children would be inappropriate for someone who is now an adult of 18. I suggest that the fact that the court starts with the sentence that would have been appropriate at the time of the offence, and then takes into account all other relevant factors, means that we deal with these cases suitably, bearing in mind the time gap before sentencing during which the offender has reached legal maturity.
Lord Falconer of Thoroton (Lab)
My amendment was the monitoring amendment and was not the heat and burden of this debate. I beg leave to withdraw the amendment.
The Deputy Chairman of Committees (Baroness Pitkeathley) (Lab)
I cannot call Amendment 221ZA, as it is an amendment to Amendment 221.
Lord Wolfson of Tredegar
Member’s explanatory statement
This amendment changes “pupils” to “students” to refer to those attending a secure 16 to 19 Academy. No difference of meaning is intended; the change is to avoid confusion arising from the fact that “pupil” is defined in the Education Acts to refer to those attending a school (and a secure 16 to 19 Academy is not a school).
Lord Wolfson of Tredegar (Con)
My Lords, Amendments 222 and 223, which I move today on behalf of the Government, are technical amendments to Clause 139, which clarifies that 16 to 19 academies can provide secure accommodation and allows for the establishment and running of secure 16 to 19 academies to be treated as a charitable purpose. The amendments, as can be seen from the Marshalled List, are a technical tweak, and will have no practical impact on the children or young people placed in these secure academies, or on how the academies are run. They are simply there to ensure consistency with other education legislation. “Pupil” is defined in the education Acts to refer to those attending a school; 16 to 19 academies are not, in the legal sense, schools, and “student” is the standard term used in the context of such academies.
I am conscious that this group also contains amendments from the noble Lord, Lord German, on the organisations which can establish a secure school, and from the noble Lord, Lord Ponsonby of Shulbrede, on local authorities’ secure accommodation provisions. I propose, if the Committee finds it helpful, to pause my remarks now, having introduced my amendments, and allow other noble Lords to speak to those amendments, and then I will respond. I see some nodding heads. If that meets with the Committee’s approval, I will sit down, having formally moved my amendments.
Lord Falconer of Thoroton (Lab)
I am going to talk about Amendment 223B onwards; Amendment 223A comes first, but I am happy to start with those.
Amendments 223B to 223F have been suggested by the Mayor of London’s office to place a new duty on relevant local authorities in England to convene a new secure accommodation local partnership board that would assess the need for secure accommodation and develop a strategy for tackling any shortfall in secure accommodation. There is, as everybody knows, a significant lack of secure beds in London for young people who come into contact with the criminal justice system. This results in them being dispersed across the country, far away from their families and the professionals committed to their care and well-being.
While this is a particular concern in London, it is also the case in other parts of the country. There are only 15 secure children’s homes in England and Wales, and none in the London area. The recent decision of the Ministry of Justice to remove all children from a key institution detaining young offenders in the United Kingdom—namely, the Rainsbrook Secure Training Centre—meant that more London children were sent away from where they lived. They are being provided with neither the care nor the welfare that they need as vulnerable young people. The recent critical inspection report on the Oakhill Secure Training Centre, alongside the decision to close Rainsbrook, also raises worrying concerns about the future of this type of facility.
It is crucial that such provision is available for those who might be placed there on welfare grounds and for those within the criminal justice system. Amendments 223B, 223C, 223D, 223E and 223F, in the name of my noble friend Lord Ponsonby, give effect to this proposal.
Lord German (LD)
My Lords, I apologise for being slightly out of turn; I will speak to Amendment 223A in my name and that of my noble friend Lord Marks, on secure accommodation and local authority provision. In December 2016, the Government committed to phase out juvenile young offender institutions and secure training centres and to replace them with a network of secure schools. These have since been renamed secure 16 to 19 academies. Legally, they will be approved by the Secretary of State for Education as secure accommodation and are defined in the Bill as “secure children’s homes”.
Lord Carlile of Berriew (CB)
My Lords, it is a pleasure to follow the noble Lord, Lord German. I know that he has an immense amount of experience in matters around education, from both his personal experience of teaching in earlier decades and his work in the Welsh Assembly Government. I probably support his amendment, but I am much less interested in the amendments here than in achieving a shared purpose, which is that children who are in custody have the chance of a quality education which will enable them to go on to higher education, where appropriate, good apprenticeships and other forms of training which will give them a decent chance in life—most of them not having had a chance in life. I am afraid it is a truism, at least in my experience of visiting many institutions holding children, that for many of them, that institution is the most comfortable and secure place, emotionally, that they have ever lived. That is a sad commentary on their situation.
I carried out some voluntary work for the Howard League some years ago, and it involved visiting Oakhill, Rainsbrook and, indeed, Feltham—a place which has been through good and bad patches over the years but, from what I hear from people who work there, is at the moment pretty challenging and not providing children with a particularly good education.
The ambition that we surely all share is that there should be a consistent level of good education throughout those institutions. I will give an illustration of why. When I was doing the voluntary work for the Howard League, of which the current president is another Member of your Lordships’ House, the noble Lord, Lord Macdonald of River Glaven—I am very happy to see him in that role—I went to one of the institutions that I have named. I was taken around and a boy of about 16 asked me to go into his room, as he called it. I went into his room and all over the wall there were maths certificates, including a grade A GCSE maths certificate. I said something really silly like, “You must be very good at maths.” He said, “I love it, sir. I want to be a maths teacher when I leave this place.” I do not know what happened to him, but he certainly had the ability to be a maths teacher. The reason he got that maths GCSE was because there was one really inspired teacher in that institution who spotted his talent at maths and had taken it to that level. I said to this boy, “Did you like maths when you were at school before you came here?” He replied, and I will never forget these words: “I never went to school, sir.” The capacity of education in these institutions and the opportunity it provides are enormous, but it has to be consistent.
Charlie Taylor, who has been referred to in this debate, did some very valuable work. I was very fortunate in that I was a consultee for him from time to time. He absolutely shares the views I expressed in the last few minutes. I ask the Government to accept that the ambitions I have expressed are shared by the Government too and that, whatever we call these institutions, whoever runs them—I do not really care, to be frank, as long as they reach the requisite standard—will try to reach standards that have been reached in the past. Noble Lords will remember Peper Harow, which was a very fine institution run in the voluntary sector by a number of trustees who would have been familiar in some way or another to Members of your Lordships’ House. It came to a slightly abrupt end because there was an accident there, but people who left Peper Harow, having had their education, commonly went straight to university and achieved university degrees, or did other training that gave them a good life after custody.
I say to the Minister: please can we have an assurance that we are not getting bogged down in process and the name we give to these educational institutions, and that we are actually trying to achieve a gold standard of quality with young people who are bored of being in an institution and for whom education is a really welcome change if it is good enough?
Baroness Chakrabarti (Lab)
My Lords, I am sorry, I was looking around the Chamber to see who was poised and trying to be too polite. It is an absolute pleasure to follow the noble Lord, Lord Carlile of Berriew, who many members of the Committee will associate with his legal expertise, but it is to be remembered that he has a considerable track record, to say the least, in matters of penal reform.
It is also a pleasure to have my name associated with this amendment in the names of the noble Lords, Lord German and Lord Marks of Henley-on-Thames. It seems totally anomalous that local authorities should be excluded from giving this provision, for all the compelling reasons given by the noble Lord, Lord German, about the expertise that they have accumulated in relation to education, children, care and so on. It can be only an ideological justification—I must not be too smug about ideology because I have a little of my own. Although there are always political debates about the role of the state in relation to all sorts of goods and services, most people, across politics and across the Committee, have some sort of notion of the irreducible core of the state. Personally, I think that, as with policing and the Army, incarceration ought in general to be a primary responsibility of the state itself, for obvious reasons to do with the vulnerability of those incarcerated and the responsibility, including democratic responsibility, of politicians, whether at local or national level, in relation to powers of coercion and the incredible vulnerability of people who, of course, cannot even vote.
Lord Marks of Henley-on-Thames (LD)
My Lords, our first aim with Amendment 223A, to which I have added my name, is to ensure that secure academies may be run by local authorities. The present position is that, under the Academies Act, the local authority may not maintain a school that becomes an academy. The result is, as my noble friend Lord German said, to prevent local authorities running secure academies, apparently in the interests of consistency between secure academies and other academies.
Our amendment would enable a local authority to play its part. However, it is entirely non-prescriptive and does not require secure academies to be run by local authorities. It simply permits them to be so. We believe that local authorities have a very important part to play in the running of secure academies, with the very best prospect of success in educating, training and rehabilitating young offenders.
The noble Lord, Lord Carlile of Berriew, mentioned Charlie Taylor. He has always taken and expressed the view that education for young offenders is at the heart of youth justice, and at the heart of reform and rehabilitation. We have considered in Committee the role of local authorities in youth justice at a number of levels and in a number of spheres. Education is, of course, at the forefront, but we should also not underestimate the importance of the local authority role in housing and social services. Both departments have a great deal to do with the criminality of young people. There can, we suggest, be no justification at all for ruling out local authority involvement in these secure academies.
I agree with the noble Lord, Lord Carlile of Berriew, that generally we should be keen to avoid dogma and that what we are doing should be about outcomes. Nevertheless, the second purpose of our amendment is to ensure that secure academies are run on an entirely altruistic basis by not-for-profit organisations. The purpose of this part of the amendment is to ensure that secure academies must be run not for profit but for the good of those who attend them as students.
We have all seen the difficulties that befell the probation service under the Grayling changes, which have since been abandoned. Then the larger part of the probation service was shunted off to community rehabilitation companies, and that led to a decline in voluntary sector involvement, which is particularly important in this area. A failure of collaboration with local authorities and an excessive and single-minded pursuit of profit was to the detriment of the clients that the CRCs were established to help and look after.
I do not believe for a moment that that is in the Government’s mind, but it is a danger that may be inherent in the present proposals, and we suggest that the care of damaged young people who have been sent to secure academies by the courts should never be in the hands of organisations run for profit.
Baroness Blower (Lab)
My Lords, it takes a very particular kind of person to be a teacher, but it takes a much more particular kind of person to work in an institution with young people who are clearly already damaged when they arrive. The idea that the Government appear to be taking—a rather dogmatic view about how 16 to 19 provision should be run, in terms of there being only academies and only reflecting the way academies are seen in law in the schools sector—seems to be completely wrong.
It is obvious that the profit motive simply cannot function in this type of provision. Teachers, whether in secure accommodation or other places, are not as well paid as they should be, but the fact is that they are not motivated in general by the level of their salary. Therefore, there is absolutely no reason why we should think that anyone affording that provision should be motivated by profit.
My own experience of young people of this type is that I did, very many years ago, work in a non-custodial, non-residential setting for young people who were at risk of care or custody. I have to say that they were all at risk of custody. But the fact that I worked in a local authority provision, where we were able to work very closely with the youth offending team, our local social services and our probation service, and all of our play therapists and other types of therapists, meant that, in general, it was a very successful provision.
I have, like the noble Lord, Lord Carlile of Berriew, had the opportunity through my union experience to visit teachers working in a whole range of institutions—some of which, I am sorry to say, no longer function. This type of provision, as my noble friend Lady Chakrabarti said, should be at the irreducible core of what the state does and affords for some of our most vulnerable young people. For that reason, I am very happy to support the amendments.
Lord German (LD)
My Lords, I am very grateful to those who have spoken in this short debate. Clearly this amendment is at the centre of this group of amendments. In summing up what everyone has said, I would say that the direction everyone has travelled in is not that these schools or academies should be provided by local authorities, but that they should be given the right to tender to provide those schools or academies.
The judgment that the noble Lord, Lord Carlile, made, was that it does not matter who runs them, providing they get the very best education for these very vulnerable children. The standard of education is what is important, not who runs them. At present, local authorities are excluded simply because there is a view that anything called an “academy” in England cannot be run by a local authority, which seems to create an absolute block to the opportunity for everyone in these institutions to have the best opportunities for life and education.
As the noble Baroness, Lady Chakrabarti, said, these are the most vulnerable of children and young people; their lives and futures are at stake. The noble Baroness, Lady Blower, talked of the qualities of the teachers. These teachers have to be the very best, because they are facing the most difficult of circumstances and it becomes a real challenge. It requires a very special person indeed to devote their life to this sort of education. Where you find the best teachers is in the quality of the tender exercise for these establishments.
Excluding local authorities because they breach the Government’s standard that any academy must not be run by a local authority seems to miss the point. My noble friend Lord Marks talked about the experiment with the rehabilitation companies. A lot of effort went into those. The one thing that was totally absent at the end was the engagement of the charitable and voluntary sector. In other words, because they were driven by having to meet a contract, they were not driven by providing the best service for rehabilitation. Quite rightly, that system has now been overturned.
It drives one to think that, if you have as your goals what is best for the child and what are the best services you can provide, excluding those with the most expertise in this area seems simply crazy. I hope that the Minister will be able to address these matters and take on board the whole point of these amendments, which is not to prescribe local government but to offer it the opportunity where it can compete, providing it can offer the best. What matters is the best for our children, not who should run the service.
Lord Wolfson of Tredegar (Con)
My Lords, I first turn to Amendment 223A from the noble Lord, Lord German, which would allow local authorities to “establish and maintain” secure academies and prevent any for-profit corporation doing this.
Dealing with those points in turn, first, we are not aware of any specific legislative barrier to the provision of secure 16 to 19 academies by local authorities. However, it is government policy that academy trusts are not local authority influenced bodies. As a result, no academy in England is operated by a local authority and our position here is to mirror academies’ policies and procedures in secure schools to the greatest extent possible. That said—
Lord Marks of Henley-on-Thames (LD)
I am grateful to the Minister for giving way. Has he had regard to Section 6 of the Academies Act, which provides that a local authority must cease to maintain a secure school if it becomes an academy? That seems to have the effect of ruling out local authority involvement, even if it operates in a slightly circuitous way.
Lord Wolfson of Tredegar (Con)
It might well be that it operates in a slightly circuitous way. I have not looked at that section myself. Let me look at it after I sit down. If I need to upgrade, so to speak, what I have said, I will write to the noble Lord, because I do not want to understate the position if I have inadvertently done so. I will look at the section later—I hope, today.
The noble Lord, Lord Carlile of Berriew, said that it is not so much about the name of the institution as about what goes on within it. On that, I strongly agree, as I do on the importance of education in this context, especially in the example given by the noble Lord, of somebody who it appears had not had the benefit of any education before. That is therefore especially appropriate.
At the same time as what I said earlier about local authorities, it is right to say that local authorities have a statutory duty to safeguard and promote the welfare of children in their local area. We would therefore expect secure school providers to work closely with local authorities in relation to the well-being of children in their care. It is important to note also that secure children’s homes, which can be run by local authorities, remain an important part of the current and future youth custodial estate.
Let me deal particularly with the profit motive, which seemed to lie at the heart of a number of contributions to this debate. As academies, secure 16 to 19 academies will be state funded with the core charitable purpose of providing education for the public benefit. All academies, including 16 to 19 academies, are part of an academy trust, which is a not-for-profit charitable entity and, as such, cannot make a profit—or, to be more precise, any profits which are made have to be ploughed back into the purpose of the trust. Secure schools will always be run by non-profit organisations. I therefore hope, in light of what I have said, that it will be appreciated that the second part of this amendment, proposed new subsection (9), preventing profit corporations establishing or maintaining these academies, is unnecessary.
On Amendments 223B to 223F, presented to the Committee by the noble and learned Lord, Lord Falconer of Thoroton, I have assumed that these amendments are intended to apply to children looked after by local authorities, but it is worth noting that secure accommodation is used more widely, including for children who are detained by the police and for children who are sentenced or remanded as part of criminal court proceedings.
Local authorities have a duty under the Children Act 1989 to ensure sufficient appropriate accommodation for all the children they look after. I recognise that some local authorities have found it difficult accessing in practice the most appropriate accommodation, particularly for children with the most complex needs. The lack of available and suitable placements for those most vulnerable children is extremely concerning and is something which I and the Government take seriously. We are taking significant steps to support local authorities to fulfil their statutory duties. A programme of work is starting this year to support local authorities to maintain existing capacity and expand provision in secure children’s homes. That means that children can live closer to their previous home and in provision which best meets their needs.
Let me deal specifically with Rainsbrook, to which the noble and learned Lord referred. The situation there is completely unacceptable. We acted decisively to empty the site. All children have now been removed from Rainsbrook. We transferred them to alternative appropriate accommodation within the youth secure estate. We are working through the contractual options with MTC on the future of that contract. When we have completed that work, we will make a further announcement.
In response to the recent concerns about performance at Oakhill, the former Lord Chancellor commissioned Ofsted to undertake a monitoring visit. That took place on 13 September. The report was published within a month, on 11 October, and noted concerns that inspectors had had. Having subsequently attended the centre for a full annual inspection at the beginning of October, Ofsted, together with the Chief Inspector of Prisons and the Care Quality Commission, invoked the urgent notification process at Oakhill on 14 October; that is, within the last month. On the 11th of this month, a response was published to Ofsted and the accompanying action plan, and we are now considering plans to ensure sufficient accommodation for those children at the site.
The spending review announced another £259 million to continue the programme to maintain capacity, expand provision and support local authorities in this regard. There is also the independently-led care review to support improvements to children’s social care and ensure that good practice is applied to every child. That review is expected to be published in the spring. I do not want to pre-empt it now, but we are alive to the particular needs of the children in this cohort.
I have received a note—I will keep my word to look at this matter again later—which indicates that the noble Lord, Lord Marks, may have erred. It is such an astonishing proposition that I will check it for myself later. I am told that he may have nodded in the sense that Section 6 relates to schools being converted to academies. It has no impact on local authorities entering into funding agreements with the Secretary of State. Whether the noble Lord has misunderstood, or whether the note I have been provided with is somewhat cryptic, I will keep my promise to look at it myself later in the day.
Lord Falconer of Thoroton (Lab)
The Minister mentioned £259 million in relation to the secure training programme. I may have not quite heard what he said. Is that new money or is it just maintaining the existing amount of money per annum?
Lord Wolfson of Tredegar (Con)
My understanding is that the £259 million was announced in the spending review to continue the programme to maintain and expand capacity in both secure and open residential children’s homes. I am not able to say any more than that; it might be a question for my Treasury colleagues to clarify. However, I am also able to clarify it to the noble and learned Lord. Perhaps I can drop him a line on that specific point.
Lord Marks of Henley-on-Thames (LD)
Before the Minister sits down and before I admit to nodding, the point he made is why I referred to the operation of Section 6 as being possibly circuitous. It seems that in certain circumstances it may well apply, and it may well apply more generally.
Lord Wolfson of Tredegar (Con)
The reason why I did not say it in terms that I was certain that the noble Lord had got it wrong was precisely that point. It seems that we might be approaching this point from different ends, but I will look at it myself and, if necessary, I will drop noble Lords a note. It may not be necessary given what has now been said.
Lord Wolfson of Tredegar
Member’s explanatory statement
This amendment is consequential on the amendment in the name of Lord Wolfson of Tredegar at page 128, line 15.
Lord Paddick
Member’s explanatory statement
This amendment would raise the threshold for the standard of proof required to impose an SVRO, from a civil standard (the balance of probabilities) to the criminal standard (beyond reasonable doubt).
The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)
I call the noble Baroness, Lady Meacher.
Lord Paddick (LD)
My Lords, with the leave of the Committee, I am going to make a slightly unusual request. The noble Baroness, Lady Meacher, cannot unfortunately be in her place. She was unable to be in the House at very short notice. However, the noble Baroness, Lady Armstrong of Hill Top, needs to chair a Select Committee at 3 pm, so I wonder if I could formally move Amendment 224 and then allow the noble Baroness, Lady Armstrong, to make her speech. On that basis, I beg to move Amendment 224.
Baroness Armstrong of Hill Top (Lab)
My Lords, I am enormously grateful to the noble Lord, Lord Paddick. I am chairing a Select Committee. I will come back for the rest of the debate, but I have to come back from Millbank, and I am not as fast as I used to be.
I want to be brief, but I return to an issue that I have consistently raised with the Minister over several Bills: the position of girls and women who are being sexually exploited, abused and subjected to violence. I want to help the Government to get out of the hole they are digging themselves into, where they are losing what they learned during the passage of the Domestic Abuse Bill about coercive control and about what happens to women who have been traumatised by this sort of behaviour. I want them to think about that in relation to my amendment on these very difficult serious violence reduction orders. I am not going to intervene in the rest, because I will support them if there is a vote at Third Reading, but this is a very specific amendment.
I realise the pressure on the Minister. I hope she has had a chance to look at the very short video that I sent her of a young woman from Newcastle—so the Minister should recognise the accent—telling of her inability to tell anyone of the activity of the perpetrator who was grooming and abusing her until she had been sentenced for something ridiculously small that was technically nothing to do with her abuse. Once she got to see a probation officer, she really felt that she had to say something about why she had been involved in criminal activity, and she was then referred to the charity Changing Lives; I ought to say that I still mentor the person who deals with women in that charity. The young woman from Newcastle was then able to talk about the abuse that she had suffered, the effects of what the perpetrator had done to her, and why this had led her to behave in the way she did.
It does not take much imagination to recognise that women who have been trafficked, groomed and subjected to physical, psychological and sexual abuse are not going to say what they know about the criminal activity of their abusers without themselves being supported and protected by those who understand trauma and what has happened to them. This amendment seeks to remove the “ought to have known” provision that will mean that women and girls who are judged that they “ought to have known” that someone in their company was in possession of a bladed article or offensive weapon could face two years’ imprisonment for a breach of the order’s terms. This simply criminalises women who are already being subjected to appalling criminal abuse. I do not believe that that is what the Government want to do. We know how we can change women’s life chances in these circumstances. We can do it. I work with people who do it, but this is not the way. This will not help them into a more stable and secure life. This will drive them into more criminal behaviour and into entrenching their problems.
I gather that this is seen as an extension of the joint-enterprise laws. The problem the Government have is that these laws have brought women into the criminal justice system when they had no involvement in the alleged offence. Research has found that in 90% of joint-enterprise cases against women, they had engaged in no violence at all, and in half of the cases they were not even present at the scene. We also know from research that more women and girls from BAME backgrounds are likely to be picked up under this sort of provision, and the Government really need to think about that, too.
This provision was not included in the consultation on these orders. I really do think that the Government did not have the opportunity to think the provision through in relation to the women and girls I am talking about. They have the opportunity to quietly drop it now before Report, and I hope and trust that they will.
Lord Marks of Henley-on-Thames (LD)
My Lords, my noble friend Lord Paddick will speak from the Front Bench for my party on this group, but he has quite a lot to say and, in view of the time, he has asked me to speak now, so with your Lordships’ permission or agreement, I shall address a number of points where serious violence reduction orders—SVROs for short—offend against cardinal principles of justice that our criminal law generally holds to be of the greatest importance.
I say at the outset that we should be in no doubt that an SVRO is to be a criminal sanction. That is, first, because of the requirements and prohibitions it imposes on an offender who is made subject or is to be made subject to such an order. It is, secondly, by reason of the draconian powers exercisable by the police in respect of an offender who is to be made subject to such an order, which are the equivalent of a criminal sanction on that subject. It is, thirdly, because the exposure of an offender subject to an SVRO to further criminal sanctions for the breach of any conditions attached to it amounts to a criminal sanction in its imposition.
Against that background, my first objection of principle is that it is wrong that a criminal sanction should be imposed independently of any criminal offence. Amendment 225, in the names of my noble friend Lord Paddick and the noble Baroness, Lady Meacher, is addressed to the novel and unwarranted approach to carrying a bladed article in the proposed new subsections 342A(3)(b) and (4)(b). As their explanatory statement makes clear, carrying a knife is not of itself a criminal offence, yet these provisions would render an offender liable to be made subject to an SVRO if either the offender or a joint offender with that offender had a knife with them, for whatever reason, whether the carrying of that knife was an offence or not. These orders as proposed would impose criminal sanctions for conduct which did not amount to an offence known to the law. That is contrary to principle in a profound and unacceptable way.
My second objection is that our criminal law generally insists on proof of guilt to the criminal standard, beyond reasonable doubt, before any criminal sanction can be imposed. Certainly, the civil standard of proof has its place in the criminal law, but that is generally when the law imposes a burden of proof upon the defendant to establish the facts of a defence which, if proved, would justify conduct that would otherwise be criminal. However, what is proposed here is that a criminal sanction can be imposed on the basis of proof, to the civil standard only, of the primary facts giving rise to that sanction. Again, that is contrary to principle and is calculated to water down, even to undermine, one of the most fundamental principles of our criminal law—one that I venture to suggest is probably the best known of any of those principles among the general public.
My third point concerns the unwarranted extension of the law relating to joint enterprise embodied in the proposed new subsection 342A(4). That is why I have added my name to Amendments 226A and 226B just spoken to by the noble Baroness, Lady Armstrong of Hill Top. I do not understand how it can be contended that an offender should be subject to criminal sanction if that offender did not know that a bladed article or offensive weapon would be used by a joint offender in the commission of an offence on the basis that he merely “ought to have known” that fact. That is proposed new subsection 342A(4)(a).
Proposed new subsection 342A(4)(b) is even worse: an offender is to be subject to the criminal sanction of an SVRO because a joint offender had a bladed article or offensive weapon with him at the time of the offence, even if the offender did not know that, simply on the basis that he “ought to have known”. And all this to be proved to the civil standard only, notwithstanding that possession of a knife is, of itself, not a criminal offence.
That is not all. I shall be supporting the noble Lord, Lord Ponsonby, in opposing Clause 140 standing part of the Bill because, in addition to all that I have said so far, SVROs are to be imposed without any right to trial by jury; they are to be imposed by a judge alone, following conviction. As for the evidence to be adduced to support their imposition, in the words of proposed new subsection 342A(8), it is not to matter
“whether the evidence would have been admissible in the proceedings in which the offender was convicted.”
That anomaly is the subject of Amendment 231, in the name of my noble friend Lord Paddick. I simply ask, in connection with these SVROs, where are we heading. It is in the wrong direction for our criminal justice system.
Police, Crime, Sentencing and Courts Bill
Wednesday 17th November 2021
(2 years, 5 months ago)
Lords ChamberRead Full debate Police, Crime, Sentencing and Courts Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 40-IX Ninth marshalled list for Committee - (15 Nov 2021)
Lord Moylan (Con)
My Lords, I will speak to the amendments to which I put my name in this group, which are in the names also of the noble Baroness, Lady Meacher, and the noble Lord, Lord Paddick, but before I do so I will make a few remarks about two amendments that I have not put my name to but now see clearly that I should have done, namely Amendments 226A and 226B in the name of the noble Baroness, Lady Armstrong of Hill Top. These amendments address a part of the Bill that makes one potentially subject to a serious violence reduction order for what one “ought to have known”. The noble Baroness dealt with it from the point of view of its equalities implication when she spoke to her amendments. I will deal with it from the point of view of its absurdity.
What ought one to know? Your Lordships’ House is full of astonishingly complicated rules about which carpet you can and cannot stand on, what date you have to put amendments down by and things like that. As a relatively recent Peer, I have spent most of the last year wandering around the place wondering what I ought to know. Is that a basis for culpability of some sort? How is it to be established? I am not a lawyer at all and I have no experience of the criminal justice system, but it is surely hard enough to establish in court as a matter of evidential fact what a particular person knew or did not know, let alone what they ought to have known. This is all to be worked out by a judge, without the benefit of the wisdom of a jury, with no particular guidance and no idea what “ought to have known” means. The whole thing is completely absurd. The idea that one should have one’s liberties restricted simply because of what one “ought to have known” should be taken out of the Bill. These amendments would effect that and I lend my support to them.
On the amendments to which I have put my name, noble Lords have already made the case extremely well. We need to start with a clear understanding that a serious violence reduction order is a criminal sanction. It is nothing less. We cannot make it the same as civil penalties. This all started back in the 1990s when parking offences were decriminalised. In my service as a local councillor, I benefited hugely from that. It was a tremendous idea and worked extremely well, but we cannot then carry on applying the same principle. An SVRO is not a parking ticket; it is a potentially serious restriction on your liberties that travels with you and, if you are a young person, stigmatises you, if are trying to make your way in university or wherever you might move to around the country, by making you go and register and so on. This is not a parking ticket; it is very much more serious.
Lord Paddick (LD)
My Lords, as the noble Lord, Lord Moylan, has said, before the break we moved to the highly controversial area of serious violence reduction orders, and I moved Amendment 224 on behalf of the noble Baroness, Lady Meacher. I then gave way to the noble Baroness, Lady Armstrong of Hill Top, who has to chair a Select Committee at this time. Then I sat down. That is why I am now standing.
We have tried to make this group more manageable by restricting it to the considerations for granting SVROs by the courts, and related matters, and moving what happens once an order has been granted to another group. It is still, however, an enormous and complex set of amendments. So, to misquote Captain Lawrence Oates, I may be some time.
This section of the Bill gives the police power to stop and search people without any reasonable suspicion that they may be in possession of anything unlawful. Its origins are in the Conservative party manifesto, which says:
“Police will be empowered to target known knife carriers with a new court order, making it easier for officers to stop and search those known in the past to have carried weapons.”
That statement seems to regard all knives as weapons. On the face of it, chefs and Sikhs, to take but two examples of innocent knife carriers, could be targeted with the new court order. Surely what the public, reading this part of the manifesto, would have been hoping for, is that the police would target criminals who have carried knives intending to use them illegally as weapons, or who have used knives in the commission of an offence, not just anyone “known to be a knife carrier”.
Furthermore, would the public have expected that, if you were with someone when you were caught committing an offence, and the other person—your accomplice—had a knife concealed on them, you too would be regarded as a “known knife carrier”, even though you were not carrying a knife? There may be a convention that we should not stand in the way of provisions set out in a governing party’s manifesto, but when they are as poorly drafted as the few lines the Government are relying on to include serious violence reduction orders in the Bill, perhaps we should make an exception.
These measures are controversial for many reasons, but two fundamental principles are breached here. The first is the use of previous convictions, as my noble friend Lord Marks of Henley-on-Thames said before the break. When an accused person is before a court that is to decide their guilt or innocence, in almost every case the accused’s previous criminal record is not considered relevant to whether, on the occasion the court is considering, they committed the offence. Convicted criminals have to be given the chance to turn their lives around and to move on.
The provisions in this part of the Bill allow the police to stop and search people because, at some time in the past, on the balance of probabilities, even based on hearsay, they, or someone they were with, may have had a knife on them. Unlike convictions that become spent after a period of time—the Government are making some welcome changes in this regard in another part of the Bill and unwelcome changes when it comes to cautions—these serious violence reduction orders can be renewed indefinitely. The individual could have a stop and search target on their back for the rest of their life.
The second fundamental principle, that could only be breached in very limited circumstances in a limited geographic area for a limited period of time and authorised by a senior police officer—although we think Section 60 should be abolished—is that the police can stop and search someone only if they reasonably believe that the person has something on them at the time of the stop and search that they should not have, whether it is drugs—usually it is, as 63% of stop and searches are for drugs—or something else that it is unlawful for them to have in their possession.
The trouble is that the overwhelming majority of stop and searches result in no further action being taken, but you are nine times more likely to be stopped and searched if you are black than if you are white, even when it is supposedly based on reasonable suspicion. As noble Lords heard in answer to an Oral Question earlier, it gets even worse. Only one in 100 Section 60 “no suspicion required” stop and searches results in a weapon being found, while disproportionality increases to 18 times more likely to be stopped and searched if you are black compared with if you are white. It might also be useful for the Committee to note that, on stop and search based on suspicion where you are nine times more likely to be stopped and searched if you are black, you are no more likely to have anything illegal on you than a white person.
The evidence is irrefutable; stop and search, where no reasonable suspicion that the person you are searching has anything illegal on them is required, is ineffective and damaging to police-community relations. Yet here we are, with the Government are proposing more suspicionless stop and search. It is not just about damaging police-community relations. For those repeatedly stopped and searched by the police, there is a personal impact. It tends to increase offending, is associated with anxiety, the loss of sleep and the ability to study, which further inhibits an individual’s ability to turn their life around and be a productive member of society.
Turning to Amendments 224, 227 and 237, as my noble friend Lord Marks of Henley-on-Thames has said, and as the noble Lord, Lord Moylan, has just said, for any order that has serious consequences—in terms of a breach of the order resulting in a criminal conviction and potentially a prison sentence—the court should be satisfied beyond reasonable doubt that the conditions necessary for the order to be imposed are satisfied, not, as the Bill proposes, on the balance of probabilities. We have consistently argued this for other such orders, and I do not intend to rehearse those arguments today.
It is obvious to any reasonable person that, before such a serious order can be imposed, the court must be absolutely convinced that the conditions for making the order are satisfied, whether, in the case of Amendment 224, the offender had a knife, or, as in Amendment 227, it is necessary to make the order to protect the public or particular members of the public or to prevent an offence being committed involving a knife, or, in the case of Amendment 237, that the court considers beyond reasonable doubt that it is necessary to renew or lengthen the duration of an SVRO. Amendment 228, in my name, ensures that an SVRO can be imposed only if the court is satisfied that it is a proportionate way to ensure that people are protected or offences involving knives are prevented.
As we can see, these are draconian orders; they are likely to be ineffective based on evidence of other suspicionless stop and searches and to disproportionately impact on ethnic minorities. This amendment is designed to ensure that courts take these unintended negative consequences into account before imposing them.
Carrying a knife is not a criminal offence. The criminal offence is committed only when the knife is carried without reasonable excuse or lawful authority. Amendment 225 would disallow a serious violence reduction order from being applied if a person simply had a knife with them when the offence was committed.
I will illustrate with a fictitious example. Two louts are walking down a road. One of them smashes the window of a car that has been parked and left unattended. They are both arrested and charged with criminal damage. The active participant is found to have had a knife with him because he is an electrician who was on his way home from work, and he uses the knife in the course of his work. He could still have an SVRO made against him, under the Bill as drafted, even though he was lawfully in possession of the knife. Amendment 225 is designed to restrict SVROs to cases where the knife was used as a weapon in the course of the offence.
As the noble Baroness, Lady Armstrong of Hill Top, and my noble friend Lord Marks of Henley-on-Thames have said, the legal concept of “joint enterprise” is already controversial—for example, where members of a gang who are present when one of the gang stabs another can all be guilty of murder. This is taken to another level by these provisions. The court should not be able to give the accomplice an SVRO—to go back to the manifesto, someone who is not a known knife carrier. That is the intention of Amendment 226, tabled by the noble Lord, Lord Ponsonby of Shulbrede, to which I have added my name.
Not only can an SVRO be given to the electrician’s mate even if the electrician did not use the knife to smash the car window, it can be given if his mate
“knew or ought to have known”
that he had a knife. Well, he knew he was an electrician, so I suppose he should have known he might have had a knife. No. We support Amendments 226A and 226B tabled by the noble Baroness, Baroness Armstrong of Hill Top, seeking to remove the condition that the offender
“ought to have known”
that his accomplice had a knife. The noble Baroness clearly explained the unintended consequences for women and girls who are often coerced into offending.
SVROs can be made not only on the balance of probabilities but on the flimsiest of evidence. For example, even if the evidence that the person had a knife with them when the offence was committed would not have been admissible in the trial for the offence, it could be used in deciding whether to impose an SVRO.
Let us go back to the example of the electrician and his mate who have smashed a car window. Imagine that, for whatever reason—perhaps it was his day off—the electrician did not actually have a knife with him when he smashed the car window, but then his mate says to the police, “He’s an electrician, and he usually has a knife”. This is hearsay evidence and it is not relevant evidence, in that it does not prove or disprove the offence of the smashing of the car window. Therefore, it would be inadmissible during the trial. But, as drafted, it is evidence that could be considered by the court in deciding whether to impose an SVRO. It may not even be true. Amendments 229, 230 and 231 attempt to strengthen the evidentiary requirements prior to an SVRO being made by excluding evidence that would have been inadmissible in the trial for the offence leading to the consideration of imposing an SVRO.
Amendment 240 proposes a far more rigorous examination of the piloting of SVROs—for example, whether they reduce knife carrying and serious violence; the impact on disproportionality; what types of offences led to the making of the order; and requiring the Secretary of State to obtain, record and publish relevant data before SVROs are rolled out.
The nonsense of this monstrous Bill, where the Government have tried to force so much controversial legislation into one Bill, and then tried to force as many provisions of the Bill as possible into each group of amendments, has resulted in my longest ever speech on the Floor of this House in my eight years here. Do not blame me—I am looking at the Minister.
If I am to end my speech here, all I can ask is for noble Lords to read my remarks on this group of amendments in their entirety in the official record and to take them collectively as the reasons why this clause, and serious violence reduction orders in their totality, should not stand part of the Bill.
Lord Coaker (Lab)
My Lords, I was listening with great interest to the noble Lord, Lord Paddick. It was a very good contribution and he raised a huge number of real concerns shared by many noble Lords across the Chamber. The question for the Government is whether they will actually listen to some of the points being made and change the legislation. In the light of some of the comments made by the noble Lord and by many others across the Chamber, I hope that they will. Irrespective of one’s view of this, there is a need for the orders to change; even if one disagrees with them as a whole, they need to be improved, and that is the point of Committee.
To be fair to the Government, I understand what they are trying to do. Noble Lords will know that I am not a lawyer, but I go to the facts to find things out, and I usually find it helpful to quote the Government’s own facts because then they do not accuse me of making them up. So I will quote from the Serious Violence Reduction Orders: Draft Statutory Guidance, of October 2021. Here we see the scale of the problem. According to the Government, these orders are needed because
“Recorded knife crime has risen over a period of several years.”
These are the Government’s own figures:
“For example, offences involving knives or sharp instruments increased by 84 percent between the year to June 2014 and the year to June 2020.”
Whatever the reasons or the rights and wrongs, that is a huge increase.
The public, and all of us, would expect the Government to do something about that, but the questions being posed here are these. First, are serious violence reduction orders the way to do it? Secondly, even if they are, are the Government going about it in a sensible way? I would say that the answer to both is probably no.
There are a huge number of concerns about these serious violence reduction orders, not least of which is, if you have a serious problem with knife crime, what has been shown to be successful over the decades—the noble Lord, Lord Paddick, will know this from his policing days, and others have had experience of this, including the Minister in her local authority—is targeting police activity alongside the community, with all the various agencies diverting people, and young people in particular, away from it. That has been proven time and again. If the Minister goes back to the Home Office, she will find research after research to say that that is the way to deal with it: increase policing, work with local authorities and other local partners, and work with the community to take action.
I tell you what I think has happened: the Government have said, “My goodness, we have a real problem here, what are we going to do?”, and reached for an order which gives the impression of doing something. Of course, everyone wants the Government to do something—all of us want knife crime reduced—but is this the most effective and best way of doing it? Is this proportionate? Will it work? I have very serious concerns about the process but also about whether these orders will actually do what the Government, and all of us, want them to do, which is to reduce knife crime and stop people of whatever age offending. The Minister needs to explain why these will work. Why will they do what the Government intend? Will we read in a year or two that that 84% figure has been reduced?
Nobody in this House believes that stop and search is not a necessary action for the police to take at certain times, but it is the most controversial aspect of policing. I am sure that many people will have experienced or witnessed—it may not have been themselves personally—stop and search. It is a real infringement of people’s liberty, but communities accept it for the common good. That does not mean that they want it to happen carte blanche. The use of Section 60 is sometimes allowed, and communities will agree with it, but Section 60s do not last for two years. They last for a very short period, where the community has agreed that such is the crisis facing their particular area that, when it comes to whatever age of people, they will allow the police to have what they regard as a draconian power in order to further the public good.
The Government have driven a coach and horses through that with this serious violence reduction order. It is not just me who thinks this: the former Home Secretary and Prime Minister, Theresa May, talked in her contribution to this debate about the unintended consequences of this legislation and what she would have wanted. That is why my noble friend Lord Ponsonby has indicated that he will oppose Clause 140 standing part of the Bill. A general debate needs to take place and the Government need to justify to this House and to the public why this clause will work and why it is necessary.
We have heard lots of contributions on the various amendments, as the noble Lord, Lord Paddick, said, but nobody could have failed to have been moved by what my noble friend Lady Armstrong said. She was supported by the noble Lord, Lord Marks, in another good contribution, and by the noble Baroness, Lady Meacher. As they pointed out, everybody knows that what my noble friend Lady Armstrong said is true: if this Bill goes through unamended, there will be young people—and people of any age—who will, by implication, be in trouble because they “ought to have known”. What sort of standard is that, as the noble Lord, Lord Moylan, asked? They ought to have known? I was a schoolteacher: you could not even give someone detention sometimes on the basis of “ought to have known”. This is serious: it is about taking away someone’s liberty. It is about stopping them in the street; it is about doing all of that. I do not know about your Lordships, but I have been in the company of lots of people in different sorts of situations and I did not always know what they were going to do, especially not criminal activity. I am sure that we all have said: “They did what?” That could even happen with friends, yet the Government are basing serious violence reduction orders on the basis of “ought to have known”. My noble friend Lady Armstrong was quite right.
Women are coerced into criminal activity. We all accept that—it is beyond debate—yet the Government are going to criminalise them. It beggars belief. I do not believe that either of the Ministers facing me believe in this. I think that they accept that women are coerced into activity that they do not want to get involved in, but they are going to pass legislation that will allow them to be criminalised. It just does not add up; it does not make sense. The Government have the power to change this—that is what is so frustrating. This is not yet the law. That is why we are debating it and why people are raising these issues. They are saying that it will not work, that it is unfair, that it is unjustified or that it is not in accordance with the principles of the legal system of our country, of which we are all so proud. There are doubts about its effectiveness. I hope that noble Lords will bear with me on this stand part debate, as Clause 140 goes to the nub of it. There are all sorts of amendments that we could put, but on this particular order—it will be for noble Lords to decide—that clause goes to the nub of what we are talking about.
My noble friend Lady Lawrence, who is not in her place, is a remarkable woman. Continually, year after year, despite the horror of her own circumstances, she points out in a calm, respectful, dignified way that the Government have to understand the consequences of some of the things that they are imposing on black and ethnic minority communities. She is not saying it just because she is a Labour Peer and wants to have a go at a Conservative Government; she is saying, “From my experience, from my knowledge, from my understanding, this will be the consequence of what the Government are going to do.”
We know that black and ethnic minority people are disproportionately affected by these changes. Go to these communities and talk to them, as I did when I was a Home Office Minister, and as I am sure Ministers will do, and if you get their agreement, they will support you. They do not want their young people stabbed; they do not want crime all over; they want their young people and their adults to be safe—of course they do—but they want it done with them, not to them. I have statistic after statistic around the disproportionality that exists, as well as what the College of Policing says about it. The House of Commons Library states:
“Available statistical analysis does not show a consistent link between the increased use of stop and search and levels of violence.”
If that is wrong, where is the evidence to show that it is wrong? I would say that, while stop and search may work in a blanket way, we need to look specifically at where it is targeted. I think that stop and search does make a difference, but it is where it is targeted: it should not be a blanket “Here you go; do it when you want”, which is what perverts the figures. As I say, we have real concerns, epitomised, and I make no apology for repeating this, by what the noble Baroness, Lady Armstrong, said.
I have a couple of things to say about the amendments in the name of my noble friend Lord Ponsonby. Amendment 226 would remove the provisions that allow an SVRO to be applied to a person who has not actually handled a knife, as we were saying, or any kind of weapon, but who was in the company of someone else who had used a knife and, as the Bill says, either
“knew or ought to have known”
that their companion was armed. I just think that that will have to change. These orders allow a person to be stopped and searched without grounds; they can be stopped and searched without reasonable suspicion for up to two years. I think that there is an amendment, although I cannot remember if it is in this group, that questions whether that can be continually renewed and whether two years is the limit. From my reading of the Bill, it seems that it can go on and on, so it is quite a draconian proposal.
On Amendment 239—the noble Lord, Lord Paddick, has signed both the previous amendment and this one—the Delegated Powers and Regulatory Reform Committee says that too many of these powers are going to be applied by the negative procedure. It says to the Government, even if it is right to take away some of the liberty of the citizen in our country, on the street, by giving the police additional powers, surely that should be debated in Parliament. It should not just be for Ministers to make it up and lay it and that is it. Are we really saying that freedom of the individual in this country is dependent on a Minister in an office determining what the regulation should be on something as serious as this? Do we not agree with the committee, particularly regarding stop and search as well as other matters in the Bill, including these violent crime reduction orders, that at least the affirmative procedure should be used? We cannot amend the instruments, but we can at least debate them and I think that people would reasonably expect that.
Finally, if the Government are going to go ahead with this, as I expect they will, Amendment 240, in the name of the noble Baroness, Baroness Meacher, is essential: the pilots that the Government are running must be of a real standard, a real quality, and must be strengthened. If the evidence from those pilots is not what the Government want it to be—if it shows that they do not work—can we be assured that they will listen to what the pilots are telling them?
I could go on, and I am sorry that I have gone on a little while, but I think that stop and search, particularly without reasonable suspicion, is one of the most important powers that the police have to tackle serious and violent crime, but it is also one of the most controversial and, as such, should be handled with real care. I suggest that these amendments say to the Government that even if they are right to introduce these orders, they have not really, through the Bill, shown us that care and demonstrated it to the public. The Government need to think again.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, I thank the noble Lords, Lord Paddick and Lord Coaker, for speaking to these amendments, as well as the noble Baroness, Lady Armstrong, who is back in her seat—the timing was pretty good, because we had an hour’s break; in fact, it was an hour and a half by the time we had finished Questions.
Before I turn to the specifics of the amendments, it might be helpful to the Committee if I first outline why we are introducing these new orders and why we think they will make a positive contribution to tackling knife crime, which has risen over the last seven years, as the noble Lord, Lord Coaker, pointed out. I agree with him on the multi-agency approach. He brought up our local government days. Absolutely the most effective initiatives, which have grown over the last few years, are those which take that public health approach, with all agencies working together. On testing, the pilots will be a very good way of assessing whether what we have proposed is effective when put into practice. There are four pilot areas, which I shall go through shortly. I say to the noble Lord that it will be independently evaluated.
The Committee would not disagree that every time someone carries a knife, they risk ruining their life and the lives of others. Knife crime is blighting our communities and the Government are determined to tackle the scourge. I again totally agree with the noble Lord, Lord Coaker—again, this probably goes back to our local government days—that engagement with communities is vital, because they not only support their young people not being knifed to death but they will support the police in what they are trying to do. We have just talked in the Urgent Question repeat about trust from communities in what the police are doing.
We have committed to putting an extra 20,000 police officers on our streets. We have also committed £176.5 million over the last two years through a serious violence fund to address the drivers of serious violence at the local level and significantly bolster the police response. This includes £70 million to support violence reduction units in 18 areas across the country most affected by serious violence. We have also committed a further £130.5 million to tackle serious violence and homicide in the current financial year.
Stop and search has taken 11,000 knives off the streets and resulted in 74,000 arrests in 2019-20. However, we all know that we have more to do. As the noble Lord, Lord Coaker, said—I apologise that I keep quoting him—we all want to know what works and what will drive out the scourge of knife crime. Too many criminals who carry knives or other offensive weapons go on to offend again—that is indisputable. We need to send a clear message that if people persist in carrying knives, they can expect to be caught and face a prison sentence.
As I have said, stop and search is a vital tool to crack down on violent crime. As I indicated in an earlier debate, we have already made it easier for forces to use existing powers. Our message is simple: if offenders are vulnerable and want to move away from crime, we will support them, but if they continue to carry knives and weapons over and over again, serious violence reduction orders, or SVROs, help to end that reoffending cycle. They will give the police powers to take a more proactive approach and make it easier to target those already convicted of offences involving knives or offensive weapons, giving them the automatic right to search those offenders and help tackle prolific, high-risk offenders.
SVROs are intended to be used as part of a wider approach to support offenders. We expect that they will provide a credible reason to resist pressure to carry weapons, thus acting as a deterrent and helping to protect vulnerable first-time offenders from being drawn into further crime and exploitation by criminal gangs.
We understand the concerns around disproportionality and the impact of stop and search on our BME communities but, as I said in an earlier response, let us not forget that young black people are 24 times more likely to be victims of homicide than young white people. Young black people are dying, their families are suffering and their communities are being disproportionately impacted. We must do better. We must give the police tools that will enable them to take a more targeted approach, focusing their efforts and resources on those they know carry knives.
As I have said, these orders will be piloted before being rolled out across England and Wales. Clause 141 sets out the detail of this. The pilot will help us build an understanding of the impact and effectiveness of the new orders and, as required by Clause 141, we will lay a report before Parliament on the operation and outcome of the pilot. I hope that this gives the noble Lord, Lord Coaker, some comfort.
I now turn to the specifics of the amendments. Amendments 224, 227 and 237 would raise the threshold for the standard of proof required to impose, vary or renew an SVRO from the civil standard, which is the balance of probabilities, to the criminal standard, which is beyond reasonable doubt. Before I go any further, I thank my noble friend Lord Moylan; I forgot to acknowledge that he made a very good speech earlier.
New Section 342A(3) of the Sentencing Code provides that an SVRO can be made if the court is satisfied, on the balance of probabilities, that a bladed article or offensive weapon was used by the offender in the commission of the offence, or that the offender had a bladed article or offensive weapon with them when the offence was committed. An order can also be given if the court is satisfied, on the balance of probabilities, that a bladed article or offensive weapon was used by another person in the commission of the offence—the commission of the offence is the crucial point here—or that another person had a bladed article or offensive weapon with them when the offence was committed and the offender knew, or ought to have known, that that would be the case.
This means that, when considering any applications for an SVRO, the court should apply the civil standard of proof when determining whether the individual in respect of whom the application is made has committed an offence involving a bladed article or offensive weapon. This civil standard is not new; it was accepted in your Lordships’ House in the context of domestic abuse protection orders earlier this year, or at the end of last year.
I am aware that there are concerns about this approach. However, the Bill provides that the court may hear evidence from both the offender and the prosecution when considering whether to make an SVRO. It is anticipated that, in most cases, it will be clear beyond reasonable doubt whether the offender used or had with them a knife or offensive weapon in the offence, and the offender may have been convicted of a knife or offensive weapons offence.
However, there may be cases where the fact that an offender used or had with them a knife or offensive weapon cannot be proved beyond reasonable doubt. In these cases, we believe that the civil standard, namely the balance of probabilities, is appropriate to enable the court to consider whether an SVRO is necessary in respect of an individual, given the aims of the order to protect communities and deter offenders from future offending. The criminal standard of proof will apply in any criminal prosecution for breaching an SVRO. As I said, this approach is in line with other civil orders, such as domestic abuse prevention orders, which we debated at the beginning of the year.
Amendment 225 would restrict the circumstances in which an SVRO may be made. Currently, proposed new Section 342A(3) provides that an SVRO can be made if a bladed article or offensive weapon was used by the offender in the commission of the offence or that the offender had a bladed article or offensive weapon with them when the offence was committed. This allows for circumstances where a bladed article or offensive weapon was not used in the offence, but the offender had a bladed article or knife with them when the offence was committed.
I remind the Committee that for an SVRO to be made a person must be convicted of an offence involving a knife or offensive weapon. So the Sikh or chef, in the proposition of the noble Lord, Lord Paddick, would not generally be convicted of an offensive weapon attack—and that applies to the electrician and his mate. I am sorry; I am trying to read my own writing here.
Baroness Chakrabarti (Lab)
I have a quick question, because I want to be clear about this point in relation to something the noble Lord, Lord Paddick, said earlier. If a Sikh, who is carrying just their religious knife, is in a fight and is convicted of common assault, is the SVRO now available in that context?
Baroness Williams of Trafford (Con)
It is always dangerous to talk about specific cases but, if the knife has not been used in the commission of the offence—
Baroness Williams of Trafford (Con)
If the Sikh was going about his business with his knife in his pocket, he would have reasonable excuse. If he then got into a fight and the knife was not used in the commission of the common assault, the knife would be irrelevant to the case. But I must absolutely caveat my comments: the court would decide the facts of the case.
Lord Paddick (LD)
Could I further clarify what the Minister has just said? If the Sikh becomes involved in a fight and does not go for the knife that they are carrying during that offence, the Sikh can still be made subject to an SVRO, because they committed an offence and had a knife with them at the time the offence was committed, even though the weapon was not used.
Baroness Williams of Trafford (Con)
My Lords, I have just fallen into a trap that I do not like to fall into, which is to take on specific cases. The court would have to determine the facts of the case to decide whether the knife was relevant and, therefore, whether an SVRO could be made.
Lord Paddick (LD)
This is Committee and it is important to get this clear. My clear understanding of the legislation is that it does not matter whether the knife was used in the commission of the offence; it is simply the fact that the person had a knife with them when they committed the offence which means that not only can that person be made subject to an SVRO but any person convicted with them who did not have a knife can also be made the subject of an SVRO by the court. So, without using specific examples, can the Minister please clarify that I am correct?
Baroness Williams of Trafford (Con)
What I can clarify is that I will not take theoretical cases again. But the court would need to consider whether in the circumstances it is proportionate to make an order. That does not go into the specifics of any given case.
Lord Coaker (Lab)
The Minister might want to take some advice on this, but I think the relevant piece of legislation in Clause 140 is proposed new Section 342A(3)(b), which says that
“the offender had a bladed article or offensive weapon with them when the offence was committed.”
They do not have to use it; it is just the fact that they are carrying it and have it on them.
Baroness Williams of Trafford (Con)
I think I backtracked quite a bit to say that the courts would then make the judgment call on whether the SVRO would be made, based on the facts of the case. I am not saying that, theoretically, it could not happen, but the courts may decide otherwise. It would depend on the facts of the case.
Lord Moylan (Con)
Perhaps I may just add that it seems so widely drawn that the first condition, in proposed new subsection (1), is that there has to be an offence. It does not say that there has to be an offence involving violence. So, first there has to be an offence. Then you engage proposed new subsection (3)(b): during the commission of the offence, whatever it might have been, did the person involved carry a knife? If the offence was, say, a driving offence, I am sure that an SVRO would not be applied for or granted, but there is a large area of discretion here. When you take it a little further into proposed new subsection (4), it is simply an offence—the carriage of a knife and the question of “ought to have known”. So the whole thing wanders off into this speculative landscape where evidence does not seem to matter and it is all mental constructions. I am sorry for going on.
Baroness Williams of Trafford (Con)
It is no problem at all; this is Committee, where we clarify these issues. But I think it is fair to say that the trigger for the SVRO, essentially, is the conviction.
Lord Carlile of Berriew (CB)
An interesting criminal law debate is developing and I cannot resist joining in. I very respectfully suggest to the Minister that this is a situation in which the use of examples, if they are worked up, is very important and would be extremely useful. My view is that she is right about some of this but possibly not all of it, and that the noble Lord, Lord Paddick, is possibly right about quite a lot of it but wrong about some of it—for example, the relevance of previous convictions, which may be used far more these days than he imagines. Previous convictions are available as evidence of propensity and are frequently used in criminal trials. I respectfully suggest to the Minister that a series of indicative examples should be worked up and put in the Library in advance of Report, because it would make these questions much easier to answer.
Baroness Williams of Trafford (Con)
I thank my noble friend—and he is my noble friend because he has come to my rescue time and again. I am not a lawyer and even less of an expert in criminal law.
Lord Paddick (LD)
Perhaps I could just say that those examples should include, if they are right, non-violent offences where a weapon is not used in the commission of the offence in any way, where the person only has the weapon on them, and they have an accomplice who did not have a knife on them but should have known that the person had one concealed on their person when they committed a non-violent offence without using the weapon.
Baroness Williams of Trafford (Con)
I will most certainly do that. So this is offences where the knife is not actually deployed and the person with the individual with a knife in their pocket would not have known that the knife was in their pocket. Without getting myself into further trouble, I would say that the courts would take those facts into consideration—but I will elect to write to noble Lords with as many permutations and combinations as I can possibly think of before Report.
Lord Marks of Henley-on-Thames (LD)
I have no wish to get the noble Baroness into more difficulties, but the problem arises because she said that the court would have to consider the relevance of the carriage of the knife to the offence, and that is quite simply wrong. I would be very grateful if the noble Baroness, before any examples are produced, would concede that, and then discuss whether these amendments are not very important in light of the answer. There is the weakness—the lack of the nexus between the carriage of the knife and any offence that is proved.
Baroness Williams of Trafford (Con)
I think I need to reflect further on what noble Lords have said. I will try to answer the noble Lord’s question in a letter before we start talking about examples. We are, after all, in Committee, and I am learning, like other noble Lords, as we go along.
Amendments 226, 226A and 226B would remove the provisions that enable a court to issue the SVRO if two or more people commit an offence but not all of them used or were in possession of the weapon—that is slightly going back on what we were discussing. When a knife offence or offensive weapon-related offence is committed, it is not always the case that all the offenders had the weapon in their hands—as the noble Lord, Lord Paddick, pointed out—during the commission of the offence. But if the court is satisfied that a person knew or ought to have known that another person committing the offence had a knife or an offensive weapon during the commission of the offence, and this person committed an offence arising out of the same facts, we think it would be appropriate for an SVRO to be available. Again, I will put the various permutations and combinations to noble Lords in a theoretical way. This would allow SVROs to be made in relation to all the individuals who were involved and were convicted of such an offence, should the court consider an SVRO to be necessary in respect of those individuals.
This provision intends to cover situations such as a robbery or a fight where a weapon was used by one individual, but where other individuals convicted of offences related to the same facts knew, or ought to have known, that a weapon was being used or carried by another person involved in the offence, even if they themselves were not carrying the weapon. This is very similar to the point made by the noble Lord, Lord Paddick, except that that individual was brandishing the weapon.
Lord Paddick (LD)
I am sorry, but that is not what the proposed law says. It does not talk about when there is a fight and somebody uses a weapon, and a person who was with them should have known they had a weapon. What the Bill as drafted says is that anybody who commits any offence—such as, for example, smashing a car window—who has a knife in their pocket can be given an SVRO. It may be that that is what was intended, but it is not what the legislation says.
Baroness Williams of Trafford (Con)
What I am saying, and what I said earlier, is that it will be up to the courts to decide whether it is appropriate, bearing in mind the facts of the case, and whether the court thinks an SVRO in respect of an individual is necessary to protect the public or any particular members of the public in England and Wales.
Baroness Chakrabarti (Lab)
First, I want to thank the Minister and do not want her to think any of this is meant to be aggressive or to interfere with what she is doing. Secondly, these hypotheticals are incredibly important to test the provisions; they are not some attempt to be clever and dance on the head of a pin. It is super important to get the criminal law right, and that can only be done, in my view, by testing it against the sorts of scenarios being offered.
The Minister quite rightly says, “We are creating a disposal, and in the end the courts will have to administer it”. None the less, the Government are creating the disposal and setting thresholds for its availability. With respect to her, the Government must have a policy and intention, and there is therefore a valid question about whether it is the Government’s intention in drafting and pursuing this legislation that, for example, any male Sikh, or any Sikh, who carries a ceremonial knife, however small, will always theoretically be subject to this additional exposure to a disposal to which, by definition, people of other faiths will not be subject. I am not saying that to be inflammatory, but we have to get this right. The Minister herself has talked about equality impact assessments, and so on. It may be that this proposal slipped through the net and is worth looking at again before the next stage.
This is not just an issue for the Sikh community but for other people such as chefs or electricians who are carrying knives and are involved in a crime that theoretically is potentially not even violent crime but perhaps minor shoplifting, possession of prohibited drugs or whatever. They are now, suddenly, potentially subject to this disposal. It is not simple enough to assume that when a specific disposal such as this one, with draconian consequences, is made available for sentences it would never be used. The courts might rightly think that the Government’s policy must have been that if you carry a blade or point, regardless of whether you were carrying it illegally in the first place, you take your chances, and that if you get involved in shoplifting or is found in possession of drugs, that is too bad—you now get this additional penalty and it serves you right. That is the signal that we are sending on violent crime. I hope that that is not the intention but if it is, the Committee will need to know.
Baroness Williams of Trafford (Con)
We have covered a spectrum of different types of offending and behaviour. We must not forget that at the point at which—no pun intended—someone is issued with an SVRO, they will have been convicted by the court of a knife or offensive weapons offence. The court will also, I am sure, take into consideration previous patterns of behaviour. If the Sikh who got involved in a fight and had his knife with him had no previous convictions for weapons offending, that would be quite different from a repeat offender. It would be for the court to consider whether to impose the SVRO. I hope that I have made that clear and that it will become clearer to noble Lords by the examples I will provide.
Of course, we will consider, in the light of the Committee, whether we have got all the permutations and combinations right. That is what noble Lords do best—scrutinising legislation, and I have the benefit of some serious legal players around the Chamber.
I now move on to the concerns of the noble Baroness, Lady Armstrong, about the disproportionate impact that SVROs might have on some vulnerable groups—primarily women who might be coerced into carrying weapons. I completely empathise with the circumstances in which such women might find themselves. We discussed domestic violence only a few months ago and know the effect that coercive control can have on women. At the heart of what we are doing is committing to preventing offenders of all ages, genders and backgrounds becoming involved in serious violence by developing resilience, supporting positive alternatives and delivering timely interventions.
Baroness Armstrong of Hill Top (Lab)
My Lords, I thank the Minister. My amendment takes out the part that states that a person “ought to have known” that someone else was carrying, rather than that person carrying. That is the bit that is particularly pernicious in terms of the woman that I was talking about.
Baroness Williams of Trafford (Con)
I completely understand that point it in the context of the previous debate. One of the things that we will be testing as part of the pilot is the impact of SVROs on the individuals subject to them, and how to ensure that vulnerable offenders—because sometimes people are caught up in these things completely unwittingly—are directed to local intervention schemes to help steer them away from crime. But SVROs used as part of a wider crime prevention approach will send a clear message that, if people are vulnerable and want to move away from crime, and in particular if they are being coerced into carrying things, or coerced generally, we will of course support them.
Amendment 228 seeks to increase the requirements for SVROs to be made. It would require that an order can be imposed only if the SVRO is proportionate to one or more of the relevant aims of the order. It is already a requirement for the court to consider the making of the order necessary to protect the public, or any particular member of the public, including the offender, from the risk of harm, and to prevent the offender committing an offence. It would be for the court to decide the seriousness of any offence, based on the individual facts of the case, and to decide whether it is necessary and proportionate for an order to be made in respect of an individual. Any order made will be at the court’s discretion.
An individual convicted of an offence involving a bladed article or offensive weapon could cause harm to any member of the public, including particular individuals. The provisions in the Bill allow a wide range of considerations to be made, so that an SVRO will have the greatest impact and protect members of the public, including the offender themselves, from the risk of harm.
Amendments 229, 230 and 231 seek to amend the evidentiary requirements for an SVRO to be made. They would provide that the court may consider only evidence led by the prosecution and by the offender and would remove provisions that allow courts to consider evidence that would have been inadmissible in the proceedings in which the offender was convicted. We think it appropriate that the court can consider a wider range of evidence about the offender that may not have been admissible in the proceedings. This goes in some sense to the heart of what we have just been discussing. For example, in answer to the question from the noble Baroness, Lady Chakrabarti, the offender may have a history of knife carrying that would be relevant to whether an SVRO would be necessary to protect the public.
Amendment 239 would make the guidance to be issued under Clause 140 subject to the affirmative procedure, as recommended by the DPRRC in its report on the Bill. As I have indicated in response to other amendments, we are considering carefully the arguments put forward by the DPRRC and will also reflect on today’s debate before responding to the committee’s report ahead of the next stage of the Bill.
Finally, the noble Baroness, Lady Meacher—through the noble Lord, Lord Paddick—has tabled Amendment 240 to Clause 141, which makes provision for the piloting of SVROs. I talked about this earlier. I can assure noble Lords that we will take the matters set out in Amendment 240 into consideration as we progress the design work for the pilot and agree the terms of the evaluation. That said, the general point is that it is not necessary to include such a list in the Bill. The approach adopted in Clause 141 is consistent, for example, with the piloting provisions in the Offensive Weapons Act 2019 in respect of knife crime prevention orders.
Working with the four pilot forces our aims are: to monitor and gather data on a number of different measures—including, as I said earlier to the noble Lord, Lord Coaker, the impact of SVROs on serious violence; to build evidence on reoffending and the outcomes for offenders who are subject to SVROs; to understand and learn how we ensure that vulnerable people are directed to local intervention schemes; and to understand community responses to the orders.
I think we can conclude by agreeing on the need to do all we can to tackle the scourge of knife crime, which is wrecking far too many lives. I hope that I have been able to persuade noble Lords of the case for the new orders as part of our wider work to prevent and reduce serious violence, and that I have reassured the Committee—although not on certain things, on which I will have to write—that many of the issues raised will be considered as part of the piloting of SVROs in advance of any national rollout. I reiterate my commitment to consider further the DPRRC’s recommendation in relation to parliamentary scrutiny of the guidance. I hope that the noble Lord, Lord Paddick, on behalf of the noble Baroness, Lady Meacher, will be happy to withdraw the amendment.
Lord Paddick (LD)
My Lords, I thank all noble Lords for their contributions to this group, particularly the noble Lords, Lord Moylan and Lord Coaker.
The Minister asked what works. The centre-right think tank Policy Exchange recently produced a report saying that, in reducing serious violence, the emphasis should be on community policing and not on stop and search. That summarises what the noble Lord, Lord Coaker, was saying. The Minister, in earlier proceedings in the House this afternoon, talked about how trust in the police had been seriously damaged recently. Despite that, the Government are giving the police more and more powers that are likely to further damage trust in the police.
The Minister talked about communities—particularly black communities—wanting this sort of thing in order to stop their young people dying on the streets. After I left the police, I went to a pupil referral unit, and students from the unit took me to a local council estate where a young mother holding a baby had been stabbed to death. As we looked at the scene, they said to me, “Yes, we want the police to take knives off the street, but we want them to target stop and search at the people who have got the knives.” To do that, and to target stop and search at those people who are carrying knives, the police need community intelligence, and these sorts of provisions are likely to push the community away, rather than encourage people to come forward with information. Do not get me wrong: targeted, intelligence-led stop and search based on community information can be effective in taking weapons off the street, but quite clearly, as I said on Section 60, with suspicionless stop and search, only one in 100 stop and searches results in a weapon being recovered.
The noble Baroness said that these provisions are very similar to domestic violence prevention orders on the balance of probabilities versus reasonable doubt. Throughout the course of that Bill, we persistently said that that was not acceptable, so the noble Baroness should not be surprised that we are saying it about these orders. However, we need to do all we can to reduce serious violence on our streets. The difficulty is where you have provisions such as this that prove to be counterproductive.
We will come back to this at Report—I can guarantee that. But at this stage, on behalf of the noble Baroness, Lady Meacher, I beg leave to withdraw the amendment.
Lord Paddick
Lord Paddick (LD)
My Lords, I move Amendment 231A in my name and speak to the other amendments in this group. These amendments relate to what happens after a serious violence reduction order has been granted.
Amendments 231A and 231B remove the requirements for the offender to give, and update the police on, information about where they are living, including the home address on the day the order is given—which will be given to the court in any event and is therefore not necessary—any other place they regularly reside, and any place they move to or intend to spend more than a month living at. Noble Lords should ask themselves what the purpose of this power is. Is it so that the police can trace the offender, track their every move and then wait outside the place where they live, to stop and search them as soon as they leave? Create a power to stop and search someone who may or may not have carried a knife in the past if you must, whether you suspect them of having a knife on them at the time or not, but to enable, or even encourage, harassment of these individuals by supplying the police with continually updated information about their whereabouts smacks of stalking by the state.
As I will point out in a moment, SVROs can be renewed indefinitely. One of the most important ways a young criminal can turn their life around is to move away from the area where they were involved in a gang, for example, to start a new life. These provisions mean that their reputation follows them, making it even more difficult for them to be rehabilitated. They may have moved on, but the police will continue to stop and search them at will, without any reasonable cause to suspect that the individual is doing anything wrong. The offender would be justified in thinking, “What is the point? May as well be hung for a sheep as a lamb.” On the previous group, the Minister said that if an offender wants to move away from offending the Government will support them. Updating the police continually about where this young person has moved to, and enabling them to target that individual through stop and search, even though they are trying to turn their lives around, does not sound to me like supporting them in trying to move on from offending.
For similar reasons, the proposed power to give a chief constable for the area where the offender lives, and the area where the police believe the offender is or intends to come to, to apply to a court to extend or renew the SVRO should also be removed, as proposed by Amendments 235 and 236. The chief constable for the area where the offence was committed should be able to apply to have the SVRO varied, renewed or discharged—that is fair enough—but this should not be the case for any chief constable, anywhere in the country, who knows or even just thinks that the offender might be coming to their area. Offenders who genuinely want to turn their lives around should be able to move on with their lives. If they move home and fall into their old ways, the police in the area where they have come to notice can ask the chief constable in the area where the original offence was committed to make an application on their behalf. These provisions are unnecessary and potentially counterproductive in reducing serious violence.
Amendment 238 limits the number of times an SVRO can be imposed. Although each SVRO is restricted to a maximum duration of two years, SVROs can be renewed indefinitely. This means that our electrician’s mate could potentially be stopped and searched by the police, without any reasonable suspicion that he has anything unlawful on him, for the rest of his life. There are very few offences where there is not a spent period, after which the conviction no longer has to be declared. Yet the provisions in this Bill mean that, on the balance of probabilities, someone for whom there is no evidence of their ever having carried a knife could be targeted by the police for suspicionless stop and search for the rest of their life.
Lord Coaker (Lab)
These are good amendments that the noble Lord, Lord Paddick, has tabled because, as he said, they deal with what happens after an SVRO is given. The various amendments raise various questions that the Minister will need to answer. I want to highlight a specific point which, in terms of proportionality, I would like the Minister to consider. A Section 60—stop and search without suspicion—is normally given for 24 hours and, if extended beyond that, is very limited. As the noble Lord pointed out, and did so in the previous debate, this can be six months or up to two years. It can then be added to again; there is no time limit to end it. We need some clarity on that. In Committee, that is the sort of detail we want to go into.
More generally, so much of this—again, as in much legislation—will be by regulation. New Section 342B on the meaning of a serious violence reduction order includes subsection (1)(b), which says that the requirements and prohibitions will be done by order—admittedly, to be fair to the Government, by affirmative order in this case. But it is quite an ask of Parliament to pass an Act which gives the Secretary of State the ability to have these serious violence reduction orders with all sorts of requirements and prohibitions in them without us really knowing what they would be. I looked on the website and tried to find a draft, skeleton or suggested possibility of what they might look like, but I could not see one—unless I missed it. Often, with respect to legislation, you get draft regulations or a draft idea. It would have been extremely helpful for the Committee if some idea of the sorts of things that might be considered had been given to us.
New Section 342C(1) states:
“A serious violence reduction order may impose on the offender any requirement or prohibition specified in regulations made by the Secretary of State”.
Again, to be fair, that will be subject to the affirmative procedure, but these are the sorts of details which mean that we are passing this legislation almost blind in terms of some of these things. These will be really severe restrictions on the liberty of the individual. Even if they are regarded as a good thing in terms of reducing knife crime—which is what we all want to achieve—we are giving the Government the power to legislate and make all sorts of regulations and prohibitions to be included as part of a serious violence reduction order without knowing what they may be.
New Section 342B(7) says that these regulations will be made only after the pilots have taken place. I do not expect this to be done by Report, but could we ask the Government to consider giving us an idea of what these regulations and prohibitions might be as those pilot projects proceed, so that we get some idea of them as the pilots go on? We would then have some way of understanding what they might be when we come back to them.
The noble Lord, Lord Paddick, is quite right to have raised many of these issues, which seek to press the Government more so we can try to understand what they mean by some of the proposals they have listed. I ask whether more information could be given as to what prohibitions and regulations we might expect to be included in any serious violence reduction order.
Lord Marks of Henley-on-Thames (LD)
My Lords, I propose to deal with just one amendment, Amendment 233, which is concerned with the defence of reasonable excuse. I concentrate on that because my noble friend Lord Paddick has covered the ground in this group. But it seems to me—and I agree with what my noble friend and the noble Lord, Lord Coaker, have said—that this group offends against principles of our criminal law and rides roughshod over them, because the overall purpose of the Bill seems to have taken precedence over any degree of thought being given to the detail of what is actually being done.
Amendment 233 in the names of my noble friend Lord Paddick, the noble Lord, Lord Moylan, and the noble Baroness, Lady Meacher, would permit a reasonable excuse defence to an offence committed where an offender subject to an SVRO tells a constable that they are not subject to such an order. The Liberty briefing, for which we are all very grateful, points out that an offender may have committed the proposed offence of telling the police constable falsely that they are not subject to an order even where they honestly and even reasonably believe that the order—the SVRO—is no longer in force, or where they do not understand the question because English is not their first language, or for any other reason.
Looking at the proposed offences under new Section 342G(1), the reasonable excuse defence is presently available only in respect of offences under (a) or (b) of that subsection. The first is if the offender
“fails without reasonable excuse to do anything the offender is required to do by the order.”
The second is where the offender
“does anything the offender is prohibited from doing by the order.”
But there is no reasonable excuse defence available for any of the other three offences. Under (c), I think “notifies the police” means providing to the police,
“in purported compliance with the order, any information which the offender knows to be false”,
while (d) covers denying the order which is the subject of Amendment 233m which I have addressed, and (e) is where the offender
“intentionally obstructs a constable in the exercise of any power conferred by”
the legislation. None of the last three has a reasonable excuse defence available.
In thinking about this proposed section, one is reminded that reasonable excuses may arise in odd and unpredictable ways. Legislation ought to avoid criminalising any behaviour for which the citizen has a reasonable excuse, because criminalising behaviour in these circumstances brings the law into disrepute. If there is no reasonable excuse, the offence is committed and conviction will follow—but if there is a reasonable excuse, there ought to be no conviction.
We have only to remind ourselves that there may be a reasonable excuse for disobeying police officers’ requirements. Tragically, Sarah Everard was persuaded to enter Wayne Couzens’s car, with awful results, because he purported to have the right to require her to do so. We should be open to the view that automatic obedience to the requirements of a police officer is not always sensible, and that offenders, even though subject to SVROs, might well have reasonable excuses for non-compliance with police officers’ requirements.
I suggest that the Minister and her colleagues ought to think about whether reasonable excuse should not be a defence to all these offences. Initially, they might consider that there would not be many cases where a citizen would have a reasonable excuse for non-compliance. But they might also wish to reflect that that does not mean that, in those cases where citizens do have a reasonable excuse, they should be found guilty of a criminal offence. This is an important lacuna in the proposals made here—that reasonable excuse will be no answer to conviction.
Baroness Williams of Trafford (Con)
My Lords, as the noble Lord, Lord Paddick, has explained, this group of amendments deals with further aspects of the new serious violence reduction order. Amendments 231A and 231B would remove the requirement for an offender subject to an SVRO to notify the police of their home address; any changes to their home address; the address of any other premises at which the offender regularly resides or stays; or the address of any place they decide to live in for a period of one month or more.
We included notification requirements in the legislation in order to help officers to identify those subject to an order in their area. It is a common feature of other offender management regimes, including in relation to sex and terrorism offenders, so we are not breaking any new ground here. We stated in the draft statutory guidance that the police should use the notification stage to engage with the offender and clarify the effects of an SVRO: that is, to explain to the offender in ordinary language the requirements and effects of an SVRO and what offences may be committed if they breach the order. This, along with an up-to-date description, could be used to assist with future identification when conducting a stop and search. It is therefore important that we keep the notification requirement as currently drafted to ensure that officers are able properly to identify those subject to an order.
Amendment 233 would create a defence so that an offender can tell an officer that they are not subject to an SVRO if they have a reasonable excuse to do so. I do not see any circumstances where it would be reasonable for an offender not to tell an officer that they are subject to an SVRO if they are asked. It may be that the noble Lord wants to cover circumstances where an offender subject to an SVRO has a reasonable excuse for carrying a knife. In such circumstances, it would be for the police, and ultimately the courts, to decide whether the reasonable excuse defence was made out in the event that the offender was arrested and then charged with an offence in relation to the possession of a bladed article or offensive weapon.
Lord Paddick (LD)
My Lords, I am again grateful to the noble Lord, Lord Coaker, for his support on the duration of SVROs, about which I did not hear an explanation from the Minister. I presume that the Committee can assume that we are right that SVROs can be renewed indefinitely and that there is no legal restriction on that. That is clearly unacceptable, and we will return to it on Report.
The noble Lord, Lord Coaker, also made an important point about the blank cheque nature of the prohibitions that can be imposed when somebody is subject to an SVRO. They will be decided only by regulation, which on all accounts the House will not see until after the Bill has received Royal Assent.
I also thank my noble friend Lord Marks of Henley-on-Thames for covering my omission in not talking about the reasonable excuse defence amendment.
The Minister said that we are not breaking any new ground. With respect, allowing the police to stop and search somebody purely on the basis of previous conduct without any reason to suspect that they have something on them at the time of the stop and search is breaking new ground. Therefore, different rules should apply.
I understand the provisions in the Bill about various chief constables in various parts of the country being given the power to vary or extend these orders, but, again, the Minister did not answer the question why the chief constable in that area cannot simply ask the chief constable where the original order was made to vary, revoke or extend.
The Minister seems to place a lot of reliance on the pilot schemes. I am reminded of my lengthy service in the Metropolitan Police, where I was told that there was no such thing as an unsuccessful pilot. It was rather telling that the Minister said that account would be taken of what happens during the pilots before the SVROs are rolled out to the whole of England and Wales, but not “if” the pilots prove to be effective, they will be rolled out to the rest of England and Wales.
However, we will return to this on Report. I beg leave to withdraw the amendment.
“(9) In this section, “home address”, in relation to the offender, means—(a) the address of the offender’s sole or main residence, or(b) if the offender has no such residence, the address or location of a place where the offender can regularly be found and, if there is more than one such place, such one of those places as the offender may select.”Member’s explanatory statement
This amendment provides a definition of “home address” for the purposes of the notification requirements which must be included in a serious violence reduction order.
The Deputy Chairman of Committees (Lord Rogan) (UUP)
My Lords, the noble Baroness, Lady Brinton, will be taking part remotely in debate on the following amendment.
Amendment 240A
“Women’s Justice Board
(1) There is to be a body corporate known as the Women’s Justice Board for England and Wales.(2) The Board is not to be regarded as the servant or agent of the Crown or as enjoying any status, immunity or privilege of the Crown; and the Board’s property is not to be regarded as property of, or held on behalf of, the Crown.(3) The Board must consist of 10, 11 or 12 members appointed by the Secretary of State.(4) The members of the Board must include persons who appear to the Secretary of State to have extensive recent experience with women in the criminal justice system.(5) The Board has the following functions, namely—(a) to meet the particular needs of women in the criminal justice system;(b) to monitor the provision of services for women in the criminal justice system;(c) to advise the Secretary of State on—(i) how the aim in subsection (5)(a) might most effectively be pursued;(ii) the provision of services for women in the criminal justice system;(iii) the content of any national standards the Secretary of State may see fit to set with respect to the provision of such services, or the accommodation in which women are kept in custody; and(iv) the steps that might be taken to prevent offending by women;(d) to monitor the extent to which the aim in subsection (5)(a) is being achieved and any standards met; (e) for the purposes of paragraphs (a) to (d) above, to obtain information from relevant authorities;(f) to publish information so obtained;(g) to identify, make known and promote good practice in—(i) meeting the particular needs of women in the criminal justice system;(ii) the provision of services for women in the criminal justice system;(iii) the prevention of offending by women;(iv) working with women who are, or are at risk of becoming, offenders;(h) to commission research in connection with such practice;(i) with the approval of the Secretary of State, to make grants to local authorities and other persons for the purposes of meeting the aim in subsection (5)(a) and the provision of services to women in the criminal justice system, subject to such conditions as the Board considers appropriate, including conditions as to repayment;(j) to provide assistance to local authorities and other persons in connection with information technology systems and equipment used or to be used for the purposes of the aim in subsection (5)(a) and the provision of services to women in the criminal justice system;(k) to enter into agreements for the provision of accommodation for women in the criminal justice system, but no agreement may be made under this paragraph in relation to accommodation for women in the criminal justice system unless it appears to the Board that it is expedient to enter into such an agreement for the purposes of subsection (5)(a);(l) to facilitate agreements between the Secretary of State and any persons providing accommodation for women in the criminal justice system;(m) at the request of the Secretary of State, to assist in carrying out the Secretary of State’s functions in relation to the release of offenders detained in accommodation for women in the criminal justice system; and(n) annually—(i) to assess future demand for accommodation for women in the criminal justice system;(ii) to prepare a plan setting out how they intend to exercise, in the following three years, the functions described in paragraphs (k) to (m) above, and any function for the time being exercisable by the Board concurrently with the Secretary of State by virtue of subsection (6)(b) below which relates to securing the provision of such accommodation, and(iii) to submit the plan to the Secretary of State for approval.(6) The Secretary of State may by regulations made by statutory instrument—(a) amend subsection (5) above so as to add to, subtract from or alter any of the functions of the Board for the time being specified in that subsection; or(b) provide that any function of the Secretary of State which is exercisable in relation to women in the criminal justice system is exercisable concurrently with the Board.(7) The power of the Secretary of State under subsection (6)(b) includes power—(a) to provide that, in relation to any function that is exercisable by the Secretary of State in respect of particular cases, the function is exercisable by the Board only— (i) where it proposes to exercise the function in a particular manner, or(ii) in respect of a class of case specified in the order, and(b) to make any supplementary, incidental or consequential provision (including provision for any enactment to apply subject to modifications).(8) No regulations under subsection (6) may be made unless a draft has been laid before and approved by a resolution of each House of Parliament.(9) In carrying out their functions, the Board must comply with any directions given by the Secretary of State and act in accordance with any guidance given by the Secretary of State.(10) A relevant authority—(a) must furnish the Board with any information required for the purposes of subsection (5)(b), (c) or (d) above; and(b) whenever so required by the Board, must submit to the Board a report on such matters connected with the discharge of their duties as may be specified in the requirement.A requirement under paragraph (b) above may specify the form in which a report is to be given.(11) The Board may arrange, or require the relevant authority to arrange, for a report under subsection (10)(b) above to be published in such a manner as appears to the Board to be appropriate.(12) In this section “relevant authority” means a local authority, a chief officer of police, a local policing body, a local probation board, a provider of probation services, a clinical commissioning group and a local health board.(13) Schedule (Women’s Justice Board: further provisions) has effect.”Member’s explanatory statement
This new Clause makes provision for the establishment of a “Women’s Justice Board”, along the lines of the Youth Justice Board. The drafting closely follows the form of the provisions establishing the YJB in the Crime and Disorder Act 1998.
Lord Marks of Henley-on-Thames (LD)
My Lords, Amendments 240A and 259C in my name and that of my noble friend Lord German, who has had to leave, call for the establishment of a women’s justice board. It has been pointed out in Committee that these are very long amendments. I understood from the noble Viscount, Lord Hailsham, that the second of them may be the longest in what is still, on day 9, an extremely full Marshalled List, but the drafting is modelled on the drafting of the legislation establishing the Youth Justice Board for England and Wales in the Crime and Disorder Act 1998. I do not propose to spend any time considering its detail.
However, it is widely acknowledged that the Youth Justice Board for England and Wales has been a great success. It has benefited from the effect of concentrating effort, research, learning and resources on youth justice. It has focused on recognising and addressing the difficulties of young offenders in the criminal justice system and on helping children to achieve their potential while aiming to minimise the harms that follow from young people’s contact with the system.
Perhaps most significantly, it has had the outcome of the number of children entering the youth justice system reducing year on year. Between March 2006 and 2020, the population of under-18s in custody in England and Wales fell from 2,832 to an average of 780 in the year 2019-20. Of course, the remaining cohort represent the most intractable cases and present the most difficulties. Nevertheless, that success in reducing youth offending has been remarkable. It is the aim of these amendments to establish a women’s justice board that can produce similar successes.
Much has been attributable to the success of the Youth Justice Board in attracting extremely effective and committed leadership. On these Benches, we are very proud of the work that has been undertaken by my noble friend Lord McNally, but the leadership of successive chairs, such as Frances Done and Charlie Taylor, as well as the current chair, Keith Fraser, has been a major factor in the board’s success. Establishing a women’s justice board on similar lines would also be likely to attract effective leaders, who would bring immeasurable benefit to women in the criminal justice system.
Baroness Brinton (LD) [V]
My Lords, I will speak briefly in support of Amendment 240A and to agree with everything my noble friend Lord Marks said. In particular, I echo his support for the work of the Youth Justice Board over the years.
Amendments earlier today have discussed the problems with the regime of youth offenders, and the Youth Justice Board has proved that this particular expertise is vital in a holistic approach to youth offending. A key element of that is the specialist training for all staff in contact with young people in the criminal justice system. The Youth Justice Board has very successfully reduced the number of young people in custody.
Many of the amendments to the Bill are about women, whether around violence against women and girls or the specific difficulties that women and girls face in the criminal justice system. Time and again, we have heard that different parts of the criminal justice system—police, courts, the Prison Service and probation —do not understand the particular problems that these women face. It is very important to note that the majority of female offenders have committed non-violent offences, and that a large proportion have suffered domestic and sexual violence or coercive control, usually at the hands of their partners.
The creation of a women’s justice board would mirror the principles behind the Youth Justice Board. It would oversee the key issues relating to prevention, custody and rehabilitation, and ensure that everyone in the justice system—not just the criminal justice system but also the family courts system—would receive specialist training.
One important area to consider is alternatives to custody. These should be consistently used, where appropriate, because evidence suggests that they work much better. There are benefits for the welfare of children; this should be considered when sentencing mothers and carers, to prevent the lives of their children being more disrupted. There is also evidence that this will reduce the chances of their children having problems at school and entering the criminal justice system themselves. The wider benefits of maintaining family and community links mean that female offenders’ rehabilitation will be more successful.
I know that the number of women offenders with custodial sentences has reduced, but this Government have placed the protection of women, especially those at risk from violence, at the heart of the Bill. The creation of a women’s justice board would be a key pillar in ensuring that women are given the support that they need to prevent them committing offences and to take into account their family responsibilities in considering custody and rehabilitation.
Lord Ramsbotham (CB)
My Lords, I support Amendments 240A and 259C, so comprehensively introduced by the noble Lord, Lord Marks of Henley-on-Thames. Ever since the formation of the Youth Justice Board, I have been keen on the idea of a women’s justice board, with the accompanying offender management teams, particularly if it was matched by a Prison Service appointment of a director of women’s prisons—a change to the operational management structure of the Prison Service that the MoJ should consider, as I advocated to the Minister when debating an earlier amendment.
The Minister for Prisons and Probation could chair an executive board, consisting of the directors-general of the prison and probation services and the chairmen of the Youth Justice Board and the women’s justice board, obviating any need for Her Majesty’s Prison and Probation Service, which merely inserts a layer of bureaucracy into the executive board—in other words, between the Secretary of State for Justice and individual prison governors.
Baroness Jones of Moulsecoomb (GP)
My Lords, I absolutely love this amendment—that is probably the kiss of death for it, so I am sorry about that. The noble Lord, Lord Marks of Henley-on-Thames, has a superb idea in seeking to establishing a women’s justice board. Importantly, it would not just look at prisons, courts and policing but would advise on the steps that should be taken to prevent offending by women in the first place. That is crucial. Obviously, the women’s prison population is very different from the men’s: far fewer are convicted of violence, sex offences and drugs offences, with the majority being sentenced for low-level offences such as theft, and trivial things such as non-payment of the TV licence or council tax debt. As has been said, women in prison are also very likely to be victims as well as offenders, with more than half of women reporting suffering domestic violence and more than half reporting childhood trauma.
I know the Government have a whole thing about being tough on crime, but actually, you have to be fair as well. At the moment, the Government are being totally unfair to all kinds of groups and populations within our society: this would be a good way to start rebalancing.
Baroness Butler-Sloss (CB)
My Lords, although we have equality—quite rightly—there is no doubt that women need to be dealt with differently from men in their situations of going to prison and in prisons. There is no reason not to be tough on crime, but there is every reason to follow these two admirable amendments from the noble Lord, Lord Marks of Henley-on-Thames. It is time that women’s very special situations were recognised, partly as the mothers of children—we have had some appalling stories of women in prison who are pregnant—but partly, as the noble Baroness, Lady Jones, just said, to stop them offending and to find the best way to deal with them. It may well be that prison is necessary for some of them, but it may well not be necessary for some of those who actually do go to prison if this new board were in place and could provide some of the services that are so admirable in the youth justice system. So I strongly support these two amendments.
Lord Pannick (CB)
My Lords, I add my support to these amendments. Will the Minister, when he comes to reply, agree that the application of the justice system to women poses especial challenges for everyone involved in the justice system, from the Secretary of State downwards? Does he agree that, at the moment, regrettably, there is a crisis of confidence as to how the criminal justice system in particular, but also the civil justice system, addresses the needs of women? Does he therefore accept, as has been suggested by previous speakers, that the creation of a women’s justice board would focus much-needed attention on these important topics?
Earl Attlee (Con)
My Lords, my role as a loyal government Back-Bencher is to help my noble friend the Minister, and I think I can do that best by strongly supporting these amendments.
Lord Falconer of Thoroton (Lab)
We on this side of the Committee strongly support these excellent amendments. The Youth Justice Board was set up in 1998. Its first chair—a Member of this House, the noble Lord, Lord Warner—gave it a really good start. The whole point is that it gives real drive, not as part of government but within the state, to make changes, because everybody recognises that children and young people have different needs, both to divert them from the criminal justice system and when they are there. Similarly, in respect of women, this is a real opportunity; give it drive.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
My Lords, as the amendments’ explanatory statements make clear, and as the noble Lord, Lord Marks of Henley-on-Thames, identified, the intention is to provide for the establishment of a women’s justice board for England and Wales which mirrors the rather lengthy provisions setting up the Youth Justice Board. I am grateful to the noble Lord for his kind words. I can assure him that I gave his amendment very careful thought, and my approach to it has not been adversely affected by the support given to it by the noble Baroness, Lady Jones of Moulsecoomb. I also heard what my noble friend Lord Attlee said about his role being to help me: with noble friends being so helpful—well, I will leave that one there.
Lord Marks of Henley-on-Thames (LD)
My Lords, I am very grateful for the support of noble Lords from around the House for the proposal to establish a women’s justice board. I pick on two points made by the noble and learned Baroness, Lady Butler-Sloss, and the noble Lord, Lord Pannick, arguing that women have very special needs. Those are sufficient justification for considering the establishment of a women’s justice board.
I then move to what the noble and learned Lord, Lord Falconer, said about the establishment of the Youth Justice Board. He talked about how it gave “drive” to the consideration of the needs of young offenders and the assistance and help given to them; I should have mentioned the work of the noble Lord, Lord Warner, as the board’s first chair because it was extremely important. It provides some answer to the point made by the Minister, who picked up on the issue of time. The Youth Justice Board was established in 1998. Under the chairmanship of the noble Lord, Lord Warner, it started work in that year. It is 23 years since then, and every one of those years has been a success. That is extremely important. In the view of those who spoke in favour of this amendment, we could get equivalent drive and movement in catering for the special needs of women through the establishment of a women’s justice board. It is entirely artificial to draw a distinction between youth justice, where there is certainly a separate structure, and women’s justice, where there is no separate structure and women offenders are treated as part of the adult population.
The noble and learned Baroness, Lady Butler-Sloss, and my noble friend Lady Brinton drew attention to the family needs of women and the devastation produced for women and their children by contact with the criminal justice system. When it is acknowledged that women in the system have very particular needs, as the Minister did fairly, it is enough for me to say that the distinction he drew is artificial. I also accept my noble friend Lady Brinton’s point that the women’s justice board would deal with family court issues as well as criminal court issues. Although I have talked about the criminal justice system, the wider justice system and its help for women are also seriously in need of the extra drive of which the noble and learned Lord, Lord Falconer, spoke.
Saying that, I detected some flexibility in the Minister’s speech. I hope that, in discussions with him between now and Report, we may find some room for movement. On that basis, even if he does not admit that flexibility now, I beg leave to withdraw the amendment.
Earl Attlee
“Training for offenders
(1) The Sentencing Code is amended as follows.(2) After section 276, insert—“276A Detention for Training at Her Majesty’s pleasure for offenders aged at least 18 but under 27(1) A sentence of Detention for Training at Her Majesty’s pleasure is available to a court dealing with an offender for an offence where—(a) the offender is aged at least 18 but under 27 when convicted,(b) the offence is punishable by that court with imprisonment in the case of a person aged 21 or over,(c) the court is not required to pass a sentence of—(i) detention during Her Majesty’s pleasure (see section 259), or(ii) custody for life (see sections 272 and 275), and (d) the court is satisfied the offender would benefit from the training that would be provided.(2) The power of the court to impose such a sentence is not subject to section 230 (threshold for imposing discretionary custodial sentence).(3) Section 244 of the Criminal Justice Act 2003 (duty to release) is not applicable to a sentence of Detention for Training at Her Majesty’s pleasure.276B Term of sentence of Detention for Training at Her Majesty’s pleasure(1) The maximum full term of Detention for Training at Her Majesty’s pleasure that a court may impose for an offence is the same as the maximum term of imprisonment that it may impose for the offence in the case of a person aged 21 or over.(2) The minimum term of a sentence of Detention for Training at Her Majesty’s pleasure is 12 months.(3) The term of a sentence of Detention for Training at Her Majesty’s pleasure must be the term (not exceeding the permitted maximum) that in the opinion of the court is commensurate with—(a) the seriousness of the offence,(b) providing enough time for the three stages of Detention for Training at Her Majesty’s pleasure to be effective, and(c) providing a sufficiently strong incentive for the offender to be motivated to meet the improvements in conduct, training, education and performance determined under section 276C in order to move onto Gradual and Safe Release under section 276I.(4) In forming its opinion for the purposes of subsection (3), the court must take into account all the information that is available to it about the circumstances of the offence, or of it and the associated offence or offences, including any aggravating or mitigating factors.(5) The pre-sentence report requirements in section 30 apply to the court in relation to forming that opinion.(6) See section 232 for additional requirements in the case of an offender suffering from a mental disorder.(7) The court may impose a sentence of Detention for Training at Her Majesty’s pleasure only if it is satisfied that the offender would benefit from it.276C Improvements in conduct, training, education and performance(1) When imposing a sentence of Detention for Training at Her Majesty’s pleasure, subject to subsection (2), the court must determine what objectively measured improvement in conduct, training, education and performance is to be achieved by the offender before being considered for the final stage of training (gradual and safe release).(2) When making the determination mentioned in subsection (1) the court must set improvement requirements that—(a) are demanding but achievable,(b) can be objectively measured using the system mentioned in subsection (3),(c) take into account the capacity of the offender to improve, given sufficient incentive,(d) take into account the seriousness of the offence in question,(e) take into account the needs of the offender,(f) take into account the availability of training offered by the Secretary of State, and(g) significantly improve the chances of the offender exclusively engaging in legitimate employment. (3) The Secretary of State must devise and implement an objective system for measuring the offender’s improvement in education, training and conduct.276D Location and security of training and electronic communications(1) The Secretary of State must locate the necessary training centres in rural locations sufficiently remote to—(a) sever the trainees from malign gang influences,(b) eliminate trainees’ access to illegal substances,(c) eliminate trainees’ access to mobile phone signals and illegal electronic equipment,(d) provide the necessary security by means of remoteness rather than physical security, and(e) minimise expenditure on physical security.(2) Subject to subsections (3) and (4) the Secretary of State may—(a) direct telecommunication companies to take steps to have the effect of electronically isolating trainees, and(b) make a drone exclusion order and emit electronic signals designed to cause any drone to crash or to come under the control of the Secretary of State.(3) Before making any direction under subsection (2), the Secretary of State must individually consult every adult resident directly affected by the requirements of any such direction.(4) The Secretary of State may offer inducements and compensation to residents adversely affected by directions made under subsection (2).(5) The Secretary of State may conduct the training mentioned in sections 276G and 276H in such locations as he or she sees fit.276E Training teams (1) The Secretary of State may arrange for trainees to undertake their training as part of a team.(2) The Secretary of State may arrange for training teams to be composed with trainees from multiple regions.(3) The Secretary of State may arrange that the teams are competing against each other, especially in exercises.(4) The Secretary of State may arrange that a team can be disadvantaged in terms of privileges and conditions for the team if—(a) the team does not predominate in a training exercise, or(b) a member of the team commits misconduct. 276F Components of Detention for Training at Her Majesty’s pleasure(1) There are to be three stages of Detention for Training at Her Majesty's pleasure—(a) Basic Compliance Training;(b) Employability Training;(c) Gradual and Safe Release.(2) Trainees must be required to pass out on each stage of training before attempting a later stage of the training.276G Basic Compliance Training(1) The Secretary of State must structure Basic Compliance Training to instil—(a) hope,(b) pride, and(c) discipline.(2) The components of Basic Compliance Training must include, but are not limited to— (a) hope for the future,(b) appearance, dress and bearing,(c) teamwork,(d) nutrition and cooking,(e) basic literacy and numeracy,(f) map reading,(g) first aid training,(h) personal conduct and anger management, both theory and practice, and(i) field craft and camping.(3) The purpose of Basic Compliance Training is to allow the Secretary of State to take greater risks with the trainee and to give the trainee increased personal responsibility for his or her actions.276H Employability Training(1) Employability Training must be composed of trade training, education and personal development.(2) The Secretary of State must structure Employability Training to minimise the probability of re-offending and maximise the offender’s chances of securing permanent good quality legitimate employment.(3) The components of Employability Training must include, but are not limited to—(a) hope for the future,(b) dress and bearing,(c) teamwork,(d) nutrition and cooking,(e) basic literacy and numeracy,(f) map reading,(g) first aid training for a First Aid at Work Certificate,(h) personal conduct and anger management, both theory and practice,(i) adventure training,(j) training in basic fire fighting,(k) training in safe operation of hand-held power tools,(l) training in basic risk assessment,(m) training to acquire a basic construction skills certificate,(n) training to operate a forklift truck,(o) training to erect a prefabricated aluminium access tower, and(p) training exercises both long and short, to test and practise skills.276I Gradual and Safe Release (1) The Secretary of State must structure Gradual and Safe Release to minimise the probability of re-offending and maximise the offender’s chances of securing accommodation and permanent good quality employment.(2) The components of Gradual and Safe Release must include, but are not limited to—(a) arrangements for safe accommodation, not necessarily in the area where the offender was previously resident,(b) arrangements for employment to suit the capability of the offender,(c) requirements not to visit designated areas or places,(d) curfew requirements,(e) abstinence from substance abuse requirements, and(f) tagging requirements. 276J Release on temporary licence for offenders Detained for Training at Her Majesty’s pleasure(1) The Secretary of State may grant Release On Temporary Licence (ROTL) to any offender serving a sentence of Detention for Training at Her Majesty’s pleasure subject to the conditions in subsection (3).(2) When granting ROTL the Secretary of State may require the offender to—(a) wear an approved tag,(b) adhere to geographical limits,(c) adhere to sobriety requirements,(d) not engage in substance abuse,(e) not use an unauthorised mobile phone or other types of electronic equipment, and(f) not meet or communicate with certain persons or classes of persons.(3) The conditions mentioned in subsection (1) are—(a) an offender who has not passed out on Basic Compliance training can be granted ROTL only in exceptional circumstances,(b) ROTL can be granted for weekend leave,(c) ROTL can be granted to enable an offender to travel from one training location to another, and(d) when the offender is on the final stage of Gradual and Safe Release, ROTL can be granted to attend work or live away from prison facilities for extended periods.276K Effect of non-compliance or not engaging with training(1) Where the conditions mentioned in subsection (2) are met, the Secretary of State may apply to the court to have the remaining part of the offender’s sentence converted to a sentence of imprisonment for the remaining portion of the sentence.(2) The conditions mentioned in subsection (1) are that the offender sentenced to be Detained for Training at Her Majesty’s pleasure consistently—(a) fails to make reasonable efforts to comply with the training requirements,(b) makes little or no attempt to address areas for improvement identified by the court under section 276C, or (c) fails to honour the terms of ROTL under section 276J.276L Appointment of mentor for offenders Detained for Training at Her Majesty’s pleasure(1) The Secretary of State must appoint a mentor to each offender Detained for Training at Her Majesty’s pleasure.(2) The role of the mentor is to provide—(a) a positive male role model for the trainee,(b) a lay person with the necessary skills to look after the interests of the trainee,(c) a person to whom the trainee can complain about any mistreatment, perceived or real,(d) a person who can skilfully deal with bureaucracy on behalf the trainee when on Gradual and Safe Release, and(e) a person who can attend any passing out or other events.(3) The Secretary of State and prison governors must engage constructively with any mentor appointed under this section when the mentor is undertaking these duties.””
Earl Attlee (Con)
My Lords, I have already sent a detailed paper to most noble Lords. I would like to make it clear that I will not seek the opinion of the Committee or the House at any point. When we debated short sentences and Amendments 212 and 213, I think that most of the Committee was sure that the current prison system was largely ineffective at preventing reoffending. After looking closely at our penal system during 2018 and 2019, I would say that the current system is not able, or even designed, to secure an improvement in education, training and conduct. Without improvements in these areas, reoffending is inevitable. Noble Lords frequently berate Ministers for the poor state and ineffectiveness of our prisons. Rather fewer noble Lords have been prepared to suggest significant reforms and how we could do very much better.
Internationally, we need to be an exemplar rather than a laggard in prison reform. Although there are many areas of potential improvement in our prison system, none is as pressing or potentially beneficial as the management of prolific minor offenders, or PMOs. I am sure that the Committee will accept that it is almost impossible for a functionally illiterate or innumerate young person to secure legitimate employment. At YOI Feltham, I have seen high-quality, well-motivated teachers with good facilities struggle to get illiterate offenders even to sit down in a classroom, let alone learn. I am not convinced that a conventional classroom environment is the right one for these youngsters. Furthermore, they need exceptionally strong incentives to improve their standard of education as well as their conduct. Unfortunately, there can be cultural issues pulling in the opposite direction.
Several factors militate against securing an improvement in their education, training and conduct. Most significantly, within conventional prisons, there is a drug and gang culture with a huge illicit economy, coupled with an illegitimate hierarchy. All this is facilitated by illegal mobile phones. In recent years, I have come to hugely admire prison officers and governors for their work. They do their very best, but it is the regime we ask them to operate that is a problem.
With my Amendment 241, I propose a new sentence for PMOs, and that is detention for training at Her Majesty’s pleasure, or DFT. Release would be dependent upon achieving the required, objectively measured improvements in education, training and conduct, and the level of improvement required would be set by the courts. If the offender fails to make reasonable efforts to comply, the court would be able to require the whole of the rest of the sentence to be served in the conventional secure estate. That is a very strong incentive.
I would like to be clear that this is not a rehash of “short, sharp shock”, a scheme that was designed to be beastly to offenders in order to deter them from reoffending; nor is it a boot camp. With the former, little was done to improve offenders’ skills, so it was not surprising that they continued to reoffend.
The training would be undertaken in remote rural locations in order to sever connection with local gangs, drugs and illegal mobile phones. The remoteness would provide the security rather than the secure estate, with its forbidding stone walls. The training would be undertaken as part of small, multiregionally composed teams, and being a leading light in the Peckham Warriors would not cut much ice. Since the training would be demanding and fulfilling, at the end of the day the trainees would be more interested in sleep than drugs or getting up to mischief.
I will not weary the Committee with too much detail, as it is set out in my amendment, mainly on page 14 and 19 of the Ninth Marshalled List, as well as in my paper. However: the first component is what I call “Basic Compliance Training”, which is designed to instil hope, pride and discipline. Hope is extremely important, because we currently have a suicide rate in the prison system of at least one per week. The purpose of BCT is to allow greater risks to be taken at later stages of the training. One of these could include the use of ROTL, if appropriate, to comply with the recommendations of the noble Lord, Lord Farmer, with respect to contact with families.
The employability training phase is self-explanatory. The point is that trainees need to be given some useful qualifications to make them employable. Take construction work: you cannot just put on a pair of safety boots and walk on to a construction site as a labourer. You need to have a basic construction skills certificate to be safe and competent. DFT would provide the necessary training and testing. This is just an example. Why are we not already providing PMOs with that training—universally and not just in one or two lucky cases?
At the risk of enraging the Daily Mail, I can assure the Committee that there would be elements of fun in the training. This could be especially so in exercises which might be held in an international aid scenario. In my experience, fun is essential to motivate trainees within a disciplined organisation.
The final stage is “Gradual and Safe Release”, which is essentially a glide path to full release rather than what we talked about at Amendment 210, which is a binary “in or out” situation and often doomed to failure. The Committee has already discussed UC and accommodation problems associated with release. There is also provision for a mentor to prevent a variety of adverse outcomes and help the trainee deal with bureaucracy on release.
Baroness Jones of Moulsecoomb (GP)
My Lords, I like many elements of the proposal from the noble Earl, Lord Attlee. We all know that the youth justice system, in theory if not in practice, is focused on diverting young people from criminal justice towards a better life. At 18 years of age, however, this sort of falls off a cliff as young adults get dropped into the mainstream criminal justice system and are left to fend for themselves. This leaves a huge population of young adults stuck in the adult prison system and missing out on essential learning and the foundations for developing work, family and social lives. These young people are also often illiterate.
Those important years of young adulthood—when one is no longer a child but lacks experience and wisdom—are lost in prison, and can never be retrieved. I like the aspect of this amendment, therefore, that would create a structured system of personal development and rehabilitation for those too old for young offender institutions but too young to be written off by society as lifelong criminals. There are issues about the tuition they would be given, because many of them might have problems such as autism or dyspraxia: they would need specialist help. That they would, however, be leaving better informed and educated than they went in is a positive for them as individuals and for society.
Lord Hope of Craighead (CB)
My Lords, I have some sympathy for the noble Earl’s amendment because of two experiences of mine. First, I had to undergo 10 weeks of basic compliance training when I did my National Service. It had many of the elements listed here. Hope for the future was there. Certainly, a lot of attention was paid to dress and bearing, teamwork, first aid training, conduct and anger management, fieldcraft and so on. I underwent that for 10 weeks as a recruit. Later in my national service, having become a commissioned officer, I was responsible for training recruits, and I noticed a remarkable difference in their behaviour and appearance between the beginning and the end of the 10 weeks. That impressed on me the value of the training that the Army was then able to provide.
At a later stage in my life, when I was prosecuting criminals, usually in Glasgow High Court, a lot of those who were being prosecuted I could see in my mind’s eye as people who might have been among my platoons of people undergoing training. My great regret was that we had not been able to get hold of them before the gang fights took place that led them to being prosecuted and ultimately going to prison. There is a lot of force in what the noble Earl has suggested. In those days—I am talking about my national service days—there was an enormous force available within the Army to conduct all these procedures. This is not easily managed. You are required to train the trainers and you must have the facilities. However, the philosophy and thinking behind the noble Earl’s amendment has a great deal to recommend it. He is talking about people who have already been convicted, but it would be lovely if one could intercept them before they got into the criminal system in the beginning. We cannot do that but, at least if they have been convicted, we can do something to prevent reoffending, which is what I think his amendment is driving at.
Earl Attlee (Con)
My Lords, perhaps I may respond to what noble Lords have said. The noble Baroness, Lady Jones of Moulsecoomb, mentioned young offender institutions. When I was getting educated by Frances Crook, I asked her, “How often do inmates at a YOI get taken out on camp?” She said to me, “John, you should ask how often they are taken out of their cells.”
In response to the noble and learned Lord, Lord Hope of Craighead, I am not proposing conscription or a national service-type solution. However, the points that he makes are absolutely what is informing my thinking. He made a valid point about the need for instructors and I am not proposing the use of the military to provide that function. Prison officers ought to be taking up that role and I envisage, among other things, youngsters who trained as Outward Bound instructors who cannot necessarily get particularly well-paid employment then training as prison officers and being double-hatted. There are a lot of things that we could do if we wanted to do them.
Lord Marks of Henley-on-Thames (LD)
My Lords, I will not address the detail of the noble Earl’s amendment, but I agree with the noble Baroness, Lady Jones, and the noble and learned Lord, Lord Hope of Craighead, that there is a great deal of merit in the call for more and better training within the penal system. We have long taken the view that training within prisons in particular is inadequate, poorly arranged and often unavailable. We therefore commend the noble Earl for the thrust of his amendment and certainly commend him for the care and dedication that he has given to setting it out in detail and in the briefing that he circulated.
We are not convinced of the need for a new sentence of detention for training at Her Majesty’s pleasure but we agree with the heart of the amendment, which is the focus on skills to train for future employment, for which there is a great need. The classroom-style of training does not always work. What is needed is training for skills on the job and for soft skills because, as the noble Baroness, Lady Jones, pointed out, not everyone is suitable for the basic training that perhaps the noble Earl has in mind. There should be a combination of practical, soft and technological skills. We are all for better training. However, we seek the Government’s work to be directed towards the provision of that sort of training—better training and more of it—within the criminal justice system and overcoming the barriers to prisoners being work-ready by the time they finish their terms of imprisonment because, at the moment, there is a serious deficiency in that area.
Lord Falconer of Thoroton (Lab)
My Lords, I join noble Lords in commending the noble Earl for the effort and work that he has put into this and the fact that he has thought it through. I also commend what the noble and learned Lord, Lord Hope of Craighead, said. It was obviously not a detention for training centre that he was passed to, but his experience was successful in diverting him from the criminal justice system. That is an indication that it worked, even if he ended up in the criminal justice system as the Lord President of the Court of Session and a member of the Supreme Court.
I very much agree with what the noble and learned Lord, Lord Hope, the noble Lord, Lord Marks, and the noble Baroness, Lady Jones, said. There are parts of this that we would all agree with. However, we on this side would not support this as a separate sentence. If one looks at the detail, it requires the setting up of a number of rural detention centres. The right thing is for the Government to look at the elements aimed at trying to rehabilitate those in the criminal justice system and use them in the existing system, rather than setting up a whole new network. We admire the noble Earl’s work but think that this is not the appropriate way forward.
Lord Wolfson of Tredegar (Con)
My Lords, the amendment from my noble friend Lord Attlee would seek to introduce a new sentence of detention for training at Her Majesty’s pleasure. It is aimed at offenders who are at least 18 and under 27. The key principle is that release would be gradual and dependent on the offender reaching the required performance levels in conduct, education and training. It would be served in training sites in remote rural areas.
I thank my noble friend sincerely for presenting his genuinely interesting idea—I was going to say “novel”, but we have all watched “Yes Minister”. He has done what he said others have not by thinking positively and constructively about what we can do in the future, rather than just criticising what we do now. I think that we all share his desire to reduce the reoffending rate for young adults. Training and education can enable people to turn their lives around and stop reoffending. I reassure my noble friend and the Committee that the Government are already taking action that addresses those issues.
My noble friend is right to be concerned that offenders leave prison illiterate and innumerate and is right to say that that significantly increases the prospects that they will reoffend. We all share those concerns. I can reassure the Committee that many offenders already achieve accredited qualifications in the fundamental basic subjects of English and maths while in prison. We recently published data that shows that, between April 2019 and March 2020, over 30,000 prisoners started English and maths courses and over half of this number completed the courses and received accreditations. Over and above that, many more will also have undertaken vocational training. However, we are not sitting on our laurels. We recognise that there is more to do. We welcome external scrutiny by the Education Select Committee, which has launched an inquiry into prison education, and Ofsted, which recently announced that it will be conducting a review of reading in prisons.
On employment, we want to make sure that the prison education and skills offer for prisoners is aligned with what employers want and need. We know that there is a correlation between getting a job when you come out of prison and not reoffending. We want to prepare prisoners for employment and the Deputy Prime Minister has made that a clear priority. We want to have partnerships with more businesses and build on the work that we already do with companies such as Halfords, Timpson and Willmott Dixon. We are also making sure that the Civil Service plays its part. In the beating crime plan, we have committed to recruiting 1,000 prison leavers into the Civil Service by 2023.
Over and above that, we want to make sure that we have effective community supervision. Not only will that keep the public safer by providing early intervention, it will deflect offenders away from future offending as well. We set out in our sentencing White Paper an agenda of reform for not only punishing but, importantly, rehabilitating low-level offenders. We have set out a number of measures in this Bill as well: problem-solving courts, suspended sentence orders and extending the use of electronic monitoring. I believe that those measures will support offenders to change their lifestyles for good. In that, of course, I share the aims set out by the noble Lord, Lord Marks of Henley-on-Thames, and the noble and learned Lord, Lord Falconer of Thoroton.
Earl Attlee (Con)
My Lords, I am very grateful for the response of all noble Lords in this short debate. I would tease my noble friend the Minister and invite him at some stage to read a recent report to the Chief Inspector of Prisons that stimulated some of my thinking.
The noble Lord, Lord Marks, mentioned soft skills, which are extremely important. I know that anger management training is done within the prison system, but one thing I envisage is on exercises: the trainees have to practise anger management scenarios where they are faced with someone being stroppy and have to respond in the right way, and you can really only do that in an exercise outside the ghastly prison environment.
That takes me on to the point made by the noble and learned Lord, Lord Falconer, about isolation. The inside of a prison is absolutely ghastly. If you have youngsters who are already mentally fragile, having had a ghastly upbringing, which everyone in this Committee knows about, and then stick them in a conventional prison, it is the worst possible environment. That is why I am proposing that, to try to rebuild these youngsters, we need to do it in the beautiful countryside, not inside a ghastly prison. But I am extremely grateful for the response of the Committee and I beg leave to withdraw my amendment.
Baroness Butler-Sloss
“Rehabilitation of offenders who are addicted to drugs or alcohol
(1) Offenders who commit offences other than murder, manslaughter, terrorism or sexual offences, and who are addicted to drugs or alcohol, must be given a sentence with a requirement to attend a residential rehabilitation unit.(2) An offender who refuses to attend or fails to remain at the unit must serve the remainder of their sentence in prison.”
Baroness Butler-Sloss (CB)
My Lords, picking up on what the Minister said about rehabilitation, this is a probing amendment; I have no intention of taking it further. However, there are a very considerable number of people who arrived in prison with drink and drug addiction. All too many of them pick up addiction—perhaps not drink but drug addiction—in prison. The trouble is that, when they leave prison, they almost certainly will not have had very much, if any, help. There are a few systems—but very few—and they are almost certain to reoffend because, once you are addicted to drugs or to drink, you are going to reoffend because you need the money.
There is a cycle of offences by vulnerable people who have taken up drink and drugs who may be committing drug offences but are equally likely to be committing offences of burglary, theft and other similar crimes. So I am suggesting that the Government put in place at least one residential unit as a pilot project. I know Governments like pilot projects; the great problem is to get them beyond the pilot. In this case, I would like them to get to first base, to a pilot project where a drug or drink addict—generally a repeat offender—should be sent to that residential unit as a probation order, with a requirement to stay there. If they do not want to go or do not stay the course, of course they have a sentence of imprisonment and go back to prison.
It really might help a considerable number of people. With any luck, it might reduce some of the prison population. So, although the up-front cost of such a residential unit would no doubt be expensive, I suspect it would become cost-effective in the long term. I am not certain that this is really appropriate for primary legislation, but I have put it here to nudge the Government into trying to do something. I beg to move.
Baroness Brinton (LD) [V]
My Lords, I support the probing Amendment 242 from the noble and learned Baroness, Lady Butler-Sloss. As the Minister referred to “juvenile” earlier, I remind the Committee of his views on heavy drinking: that it can be either a civilising force or the bane of civilisation. In society today, particularly in those who offend, it might be the latter.
The Liberal Democrats have long believed that the best treatment for drug and alcohol addiction is to treat it as a health emergency for the individual and society. As the noble and learned Baroness, Lady Butler-Sloss, outlined, there are already interventions in prison for those with addictions, whether drug or alcohol. But many are talking therapies, many of which, as a result of the pandemic, remain on the phone or on Zoom, and it is certainly true that we are hearing that offenders are finding that less effective.
The noble and learned Baroness, Lady Butler-Sloss, is right: a custodial sentence is the right time to think about dedicating time and energy to a residential rehabilitation course, where there are no distractions or problems of cancellation or changes of prison where you cannot continue with the same course. The NHS Integrated Substance Misuse Treatment Service in Prisons in England report, published in 2018, says:
“The purpose of health care in prison, including care for drug and alcohol problems, is to provide an excellent, safe and effective service to all prisoners equivalent to that of the community—whether the aim is stabilisation, crisis intervention or recovery from dependence.”
The guiding principles are “Recovery”, “Reducing harm”, “Reducing deaths in custody” and “Reducing reoffending”.
Recovery is key, but the reality is that the numbers are not good. The last report from the Ministry of Justice Alcohol and Drug Treatment in Secure Settings: 2018 to 2019, shows that the current arrangements have mixed results. It reports that of 53,000
“adults in alcohol and drug treatment in prisons and secure settings”
in that year, around 65% started treatment and just under 60%
“left treatment in secure settings.”
The report says that only just over a quarter of those who were discharged after completing their sentence were free of dependence. The figures for young people receiving treatment, principally for alcohol and cannabis problems, are not dissimilar. Of those young people who left secure settings in 2018, under 30% completed their treatment successfully.
Continuity of care between treatment services is absolutely vital, and the proportion of adults successfully starting community treatment within three weeks of release was only a third. The intensity and focus of residential courses for people addicted to drugs and alcohol already has a higher success rate, and if attended near the start of their sentence could well mean that they have a real opportunity to learn to live with recovery.
Public Health England’s evidence review of drug treatment, published in 2015, says:
“The costs to society are significant. Latest estimates by the Home Office”,
in 2013,
“suggest that the cost of illicit drug use in the UK is £10.7bn”.
Of those costs, NHS costs are 1%, enforcement costs 10% and drug-related crime costs 54%. Public Health England’s review notes that, in all, around 50,000 people received drug treatment in prison in 2015-16. Nearly one-third had also received drug treatment in the community. The numbers are stuck. They are not improving.
The review makes two key points: waiting times to access a course and active steps taken to prevent a drop-out are significant in achieving a good outcome. This amendment proposes a mechanism that would not only prove beneficial to the offenders attending it, with a higher rate of success than the range of other interventions currently used, but would serve society and significantly reduce the costs of drug-fuelled crime.
Earl Attlee (Con)
My Lords, I had a very sheltered upbringing: I do not know where I could get any recreational drugs. If I went to a pub, I would probably find myself trying to buy recreational drugs from an undercover police officer. The one way I could certainly get some drugs is to get myself sent to prison on remand, because I could get drugs in a prison. I would like to hear from my noble friend the Minister what he is doing to stop drugs getting into prisons. It would be very helpful to understand how drugs get into prisons. Who is bringing them in? That is why my previous amendment referred to “remote” and “rural”, because it would be virtually impossible to import drugs into that establishment.
Lord Ponsonby of Shulbrede (Lab)
My Lords, we support this amendment from the noble and learned Baroness, Lady Butler-Sloss. As she said, there is a cycle of offences for vulnerable people with drink and drug problems. In many ways it forms the vast majority of cases that we see in magistrates’ courts. I have come from Westminster Magistrates’ Court today and I can assure her that I dealt with as many drug and alcohol cases as I usually do. To use the word of the noble Baroness, Lady Brinton, the numbers are stuck where they are. Things are not getting better.
The noble Baroness, Lady Brinton, gave a very full and insightful summary of the statistics. I have been a long-standing member of the drugs and alcohol all-party group. This is an intractable problem that we see throughout the criminal justice system.
The initiative from the noble and learned Baroness, Lady Butler-Sloss, is to have a residential rehabilitation unit at the start, essentially, of any potential custodial sentence, and if people dropped out, they would then get a custodial sentence. It might work and it may well be worth a try. I will make one comment—I hate doing this, because one of the consequences of being a magistrate is that one becomes a sceptic, but nevertheless I will say that I think drug therapies work better when people do them voluntarily. I often say to people when I release them on bail on a drugs offence, whatever the offence, “If you can engage voluntarily in drug rehabilitation”—very often those are the same services that they are statutorily required to go to—“then any sentencing court when you come back to be sentenced will look on it more favourably.” Sometimes that message gets home.
Despite that note of scepticism, I still support the noble and learned Baroness’s amendment. It is another approach. There needs to be a multitude of approaches to address this scourge, and this particular approach is worth a try.
Lord Wolfson of Tredegar (Con)
My Lords, this probing amendment from the noble and learned Baroness, Lady Butler-Sloss, would require the courts to impose a sentence with the requirement to attend a residential rehabilitation unit where the offender has a drug or alcohol addiction, unless they had been convicted of murder, manslaughter, a terrorism offence, or a sexual offence. So, we are dealing here with the position at sentence. I will come to my noble friend Lord Attlee’s point about drugs in prison, although that is a slightly different, albeit related, point from that raised by the amendment.
Baroness Butler-Sloss (CB)
My Lords, I thank those who have spoken in this short debate. I say to the Minister and the noble Lord, Lord Ponsonby, that I deliberately pitched this too high because I recognise that consent is an absolutely crucial part of any treatment. The nub is that I would like the Government to set up their own residential unit and make it an extremely important part of the sentence, so that the judge or the magistrate can say, “If you are prepared to agree to go to the government residential unit, where you will have to stay until you are told that you can leave, you will not go to prison, but if you do not agree then the sentence will be” whatever it may be. That is what I am looking for from the Government. At the moment, the Government are using everybody else’s residential units. They are expensive, infrequent and insufficient. If we are to crack what is going on, even to a small extent, with rehabilitation for those who are constantly in and out of prison suffering from drink and drug addiction, the Government must put some money up front, produce a residential unit and then say, “That should be a pilot project to see what the success rate is.” Having said that, I beg leave to withdraw my amendment.
Earl Attlee (Con)
My Lords, I oppose the Question that Clause 165 stand part of the Bill; I seek not to add but to remove something from the Bill. Section 9B of the Juries Act 1974 gives the judge the power to consider whether a disabled person can undertake their duties as a juror when there is doubt on the part of court officials. New Section 9C requires the judge to consider whether a British Sign Language interpreter would enable the juror to be effective. The rest of the clause is concerned with sensible, consequential provisions.
The Committee should note that the judge is involved only if there is doubt on the part of officials. A potential juror with an effective hearing aid would not go through the Section 9B process since there would be no doubt that they could be effective. I undertook jury duty many years ago, long before arriving at your Lordships’ House. It was indeed interesting to me, but I regarded it as a duty or an obligation. It is not a right or a privilege in addition to being a duty, as, for example, voting in a general election is. Therefore, I see no requirement to make these special provisions so far as a completely deaf juror is concerned.
I accept that many deaf people can also lip-read, which would no doubt supplement the assistance of a BSL interpreter. My concern is surely that many cases turn on the credibility of the witness and, sometimes, which witness is not telling the truth. Suppose in a case involving an expert witness, counsel is asking searching questions and makes a provocative suggestion. The expert witness might calmly respond, “No, that is not correct”, knowing full well that opposing counsel will return to the matter later. However, what the deaf juror inadvertently could pick up is, “No, that’s wrong”, which might appear to be the counsel having the witness on the ropes, when that is far from the facts.
A further difficulty might arise in the jury room when deliberating the verdict. I have been in the jury room. Discussion could be fast and furious, and I cannot see how the interpreter could possibly keep up. It would be possible to slow the proceedings down, which might be beneficial, but since we do not research how juries operate we cannot tell what the effect would be. The other jurors may simply ignore the deaf juror.
Finally, the clause also, quite properly, makes consequential provisions that put the interpreter under the same obligations of confidentiality as the other jurors. However, he or she is not a decision-maker and will still be in a different position, and we cannot know what, if any, chilling effect on discussions may arise from the interpreter’s presence. I expect noble Lords supporting me will come up with far better arguments than mine, but I oppose the Question that Clause 165 stand part of the Bill.
Lord Pannick (CB)
I have added my name to the noble Earl’s opposition to Clause 165. I understand that jury service is a civic duty and there are strong equality arguments that a deaf person should not be disqualified because they cannot proceed without an interpreter. I also understand that the judge has discretion over whether the nature of the issues in the case makes it appropriate for a sign language interpreter to retire with the jury, and that the clause makes it very clear that the interpreter will have a duty not to interfere in or influence the deliberations of the jury. I understand all that, but I have concerns about the consequences of allowing a 13th or 14th person to sit in the jury room. I say 13th and 14th, because there will be a need for at least two interpreters, as any one interpreter is going to struggle to perform this task for more than 30 minutes at a time.
The first set of concerns relates to the effects on the dynamics of the jury. A jury depends on effective communications between the 12 persons serving on it. To ensure that the interpreter performs their role effectively, he or she may need to intervene in the deliberations to prevent people from talking over each other; and the interpreter may need to ask people to repeat themselves or to clarify what they are saying. This will have an effect on the dynamics of the jury room. There is also the potential problem that what is said by the interpreter to the deaf person cannot be understood and monitored by the rest of the jury.
That was the first set of concerns. The second type of concern is that Clause 165 makes provision only for a subset of otherwise excluded members of a jury. We are not making any provision for potential jurors who have insufficient command of English to participate effectively, or persons who cannot read relevant documents because of a low level of literacy or poor eyesight. The clause also makes no provision for deaf or hearing-impaired people who do not use British Sign Language but instead use text communication systems. It is a bit odd to make provision only for deaf persons, and then only for a subset of deaf persons.
My third concern is that, as I understand from helpful discussions with the Minister, provisions similar to Clause 165 have been the subject of testing in other jurisdictions, but no modelling has been done with shadow juries in this country. The noble Earl mentioned that we cannot do research with real juries, but research is often done with shadow or model juries. I ask the Minister whether it would not be sensible, before such a significant change to jury trial is introduced in this country, to conduct some research with shadow or pretend juries to see how this is going to work.
Lord Judge (CB)
My Lords, I participate in this debate and support this amendment with personal reluctance. I think I am allowed to say this: my wife spent the whole of her professional working life treating children born with genetic or birth injuries. Her whole ambition was that that little boy or girl should be able to lead a full and complete life as a member of the community. Some of them did lead absolutely full lives, but some were too—to use the word that was used in the days when she was working—disabled to do so. I know from her experience how crucial it is that opportunities are available to people who have either been born with or acquired disabilities of this kind so, on a personal level, I am reluctant.
However, on a professional level, I must remember that I served as a barrister, doing many jury trials, then as a judge, also doing many jury trials. I have dealt with interpreters of language and interpreters for the deaf. I will not say much more than Mr Pannick—the noble Lord, Lord Pannick—did, but I do want to say one or two things.
First, this paper misses that one of the most crucial facts in what a jury must decide is an analysis of who is telling the truth. It is obvious in almost every case. May I draw noble Lords’ attention to a case I had to deal with? A man was charged with rape. There was a long record; it was just after tape recorders were introduced and before the police had learned to realise that you do not bully people into confessions. There on the tape recorder was a clear admission: “I admit I raped her.” The counsel for the defendant gets up and says, “I want the jury to hear the tape recording.” “Why?”, asked the judge—me. “Have you not checked that it is correct?” “Yes, I have, my Lord”, said the defence. “That is why I want the jury to hear the tape. I shall be submitting to the jury that, if they hear the tape, they will realise that the admission that is plain on the paper simply was not a true confession.” Of course, I agreed. The case unfolded and the tape recording was heard. I have no idea what the 12 members of the jury thought about it but, to me, it was perfectly obvious that, after he had been told about 23 times that he had in fact committed the rape, the man said, “All right, I admit it”, in a tone of complete resignation. His mind was not going with an admission; he was just fed up with the fact that the police had not listened to him.
Can we pause and think of that case in the context of the proposal here? What is to happen to a deaf juror who cannot hear the resignation in the admission? The interpreter cannot do it. They cannot say how it is said—for example, “I think that he was reluctant” or “I think that it is a true confession”. The interpreter cannot help the juror, or they become part of the jury. What happens then? What happens in that case is simply a more vivid example of what happens in just about every single criminal case: someone, as the noble Earl suggested, is lying. It may be the defendant. It may be the witness. Perhaps a kind way to put it is that somebody is badly mistaken, if it is a witness. However, the analysis of who is right and who is wrong is a long, drawn-out process in which the jury must see and hear the witness and observe any hesitations or changes of expression. There are all sorts of little clues about how to make the decision on credibility. With great respect, somebody interpreting using sign language is not going to be able to get across the tone in which the evidence is given. It is simply not possible.
I move to another point—the noble Lord, Lord Pannick, has made it already. Go with me into the jury room. I have seen jurors who are very cross and upset. You can tell that when they come back, because they are not agreed on their verdict and there they are: heated, anxious and worried. That is because every member of a jury, or virtually every member, I ever came across was determined to exert himself or herself to fulfil their public responsibility to reach a true verdict, so if they disagree about whether somebody is guilty, of course they are going to get steamed up. How will the dynamics work? Is it really being suggested that, within the jury room, the 12 of them should be together and that every time any one of the 11 who is not deaf makes a contribution, whether a comment, a long sentence or a paragraph, nobody can respond until such time as the interpretation has finished? I do not think that is real. I also think that, with the presence of interpreters—there will undoubtedly be at least two because half an hour of that work is extremely arduous—there will be at least 14 people. Go to any meeting that you are involved in and if somebody is there who is not actually involved, not responsible for what is going on, it changes the dynamic for all.
Let me leave the 13th or 14th person in the room and come to my fundamental objection. It will be the first time, as far as I am aware, when a jury room’s sanctity will be broken. We have always worked on the basis that what goes on in the jury room is private—not just confidential—to the 12 members of the jury. This is a very serious step for us to be taking. I can assure you that the next stage will be, as the noble Lord, Lord Pannick, suggested, “Well, somebody is not able to speak English but has a citizen’s obligation. He or she should serve on a jury with a language interpreter.” I can assure you too—and this is perhaps more urgent—that there will be a whole series of academic professors dying to get into the jury room to see how juries reach their verdicts. So far, we have resisted it—in England, at any rate. What will happen to the confidentiality and privacy of the jury system if we let this door open?
That seems a fundamental issue of principle; it is not a matter of practical possibilities—as things improve, as science and technology get better. We are setting a very serious precedent. Although, of course, we cannot imagine it ever happening, I cannot help feeling in my remote dreams that, one day, a Secretary of State for the Home Department may say, “Why are these people being acquitted? It is a very good thing for us to have somebody in the jury room just to make sure that they are following the judge’s directions to them.”
I have three further points to make. The first is the language point—I have made that. Secondly, what is the role of the deaf juror in the context of his or her obligations to do jury service? If somebody turns up at court who can use or understand sign language, will it be compulsory that he serves on a jury? Everybody else has to turn up; there has to be a very good reason—there is an obligation to act as a juryman. Do we say, “Well, in the case of the deaf person, there’s a special dispensation?” In which case they are not being treated like everybody else. We need to examine that, because I would have thought that there is many a deaf person who would be willing to serve on a jury, but there will be quite a lot who would not.
Finally, while we are examining the proposal made by the noble Lord, Lord Pannick, about possible shadow research, why are we not looking at the technology that is available? It is at least possible that my objection in principle could be addressed through technology. We all know that any time we turn on our television and some extraordinary language from the Baltic countries is being used, little lines come up to tell us what is being said. All members of the Bar with successful practices—and I never did have one—work in courts where all the evidence emerges on a screen as it is given. Why is that not being looked at? Why in relation to the principal issue are we not finding ways that a deaf juror can be accommodated within the jury room without any interpreters being present at all?
Lord Thomas of Gresford (LD)
My Lords, I ask the Committee to forgive me for using legal language. Some years ago, I had a case in Newport. It was a murder trial in which the victim was profoundly deaf, the defendant was profoundly deaf and four or five of the witnesses were profoundly deaf. This trial proceeded with three sign language interpreters always in the courtroom: one for the defendant, one for the witness and one behind the judge, positioned so that everybody, including the many profoundly deaf people in the public gallery, could see what was happening.
When I first looked at this provision, I thought, like everyone else would, that surely a person who is profoundly deaf should be entitled to carry out their public duty. But the practicalities of it make that an impossible idea. For a deaf juror, there has to be a succession of people interpreting what is going on in the court in sign language. First of all, that is an immense burden on him—he is different from everyone else; and, secondly, while what is said in the court can be heard by everyone else, we do not know whether the person doing the signing gets it right. Nobody can really tell if that is the case, unless, as in my case, you have someone familiar with sign language in the box with the defendant.
How can we be sure that that juror understands the nuances of a summing-up, in which the judge sets out the law that the jury is to apply? Can it be the case that some other person who knows sign language checks that the proper interpretation is being made of what may be very technical language? As I learned, the sign language interpreter is not translating word for word but is conveying ideas. During that case I also discovered that sign language interpreters and witnesses who give their evidence by signing are quicker than people using ordinary speech. It is not a slower procedure, rather it actually speeds things up; the rest of the court have to hold the sign language interpreters back.
However, in the jury room, there is no way in which a profoundly deaf person can follow the arguments being made—passionate and otherwise: nobody can be sure that every nuance of what the other jurors are saying is being transmitted, and nobody can be sure that an interruption or question from a profoundly deaf person is being accurately translated and represents his thoughts.
I take the argument of principle that the noble and learned Lord, Lord Judge, put forward, but from a practical point of view, and from my experience of that trial, it is impossible for a fair trial to take place.
Lord Hope of Craighead (CB)
My Lords, I do not think I can add very much to the points that have already been made on the difficulties which this proposal is likely to give rise to, except to say that one has to remember that hearings in criminal trials take a very long time. I do not know whether we, who have never had to be instructed in sign language, are able to tell whether a deaf juror can maintain concentration by that method throughout the entire day that the trial goes on, and indeed whether the interpreter can conduct that process throughout the entire day without relief. Maybe you would have to have another interpreter to come and take over after a reasonable interval, as you often had to do with shorthand writers in the days when they were used.
Lord Marks of Henley-on-Thames (LD)
My Lords, this is a very difficult issue and one on which I would normally expect to find myself on the side of assisting persons with a disability, for precisely the reasons given just now by the noble and learned Lord, Lord Hope of Craighead, but also by the noble and learned Lord, Lord Judge, at the beginning of his speech. That would be assisting persons with a disability such as deafness to take a full part in jury trials, even as members of a jury, so I completely share the reluctance of the noble and learned Lord, Lord Judge, in finding myself opposing the Government’s proposals and wishing to restrict the assistance proposed for people with the disability of deafness.
One has every respect for the fact that similar proposals were considered in Scotland in 2018, as explained by the noble and learned Lord, Lord Hope, but I have come to the conclusion that it is simply incompatible with a fair trial by jury for one or more of the jurors to be assisted by one or more sign language interpreter—it is an important point that it may take more than one to give coverage throughout a trial. It seems to me that the presence of an interpreter in the jury room would raise a number of questions that are simply impossible to answer in a way that is compatible with this new proposal. The questions may reflect some of the concerns that noble Lords and noble and learned Lords have expressed in this debate.
The first is: would the interpreter be bringing a personal view of the evidence and the discussions to bear on the juror concerned, for whom he or she was interpreting? The associated question is: how would we know that the interpreter was bringing that personal view to bear on the juror concerned? The next question is, in one sense, the converse of that: would the contribution of the juror concerned to the deliberations of the jury as a whole genuinely reflect the contribution which that juror would have made had the interpreter not been present? That, of course, affects not just the juror concerned but all the other members of the jury as well.
Then there is a third and very obvious point, made as a result of the speed with which jury deliberations necessarily take place and which reflects the points made by my noble friend Lord Thomas of Gresford: how accurate is the interpretation that is achieved in any particular case? Again, the second point that arises from that is: how is that accuracy to be monitored? How do we know how accurate the interpretation is? Of course, it is not just the interpretation of the contributions to the deliberations that that particular juror has to make, but also the interpretation to that juror of what all the other jurors who might agree or disagree with that juror’s point of view may be saying.
Also, how far would the contributions of other jurors be affected by any actual or perceived views of the interpreter? We come back to the questions raised by both the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Judge, of the dynamics of the jury room. We all know from experience that people gathered together carry different degrees of forcefulness, persuasiveness and believability. It is almost impossible, it seems to me, to rule out forcefulness or persuasiveness on the part of the interpreter, as distinct from the part of the juror concerned.
So I agree with the noble Earl, Lord Attlee, on the principle and with other noble Lords who have spoken on the dynamics of the jury room. I also agree with the noble and learned Lord, Lord Judge, on the point he made about the centrality of privacy in the jury room. We have always believed and held to be cardinal that jury deliberations are private and nobody else should be involved. The noble and learned Lord took the Kafkaesque point that maybe the Government would ultimately want a representative in the jury room. Even if we do not go that far, the principle is there to protect the privacy of jurors. The presence of third parties—or 13th and 14th parties—weakens that. I also take the point that many potential jurors who are deaf may not wish to serve on a jury and may see the effect of their disability as something that cannot be overcome by recourse to an interpreter.
These difficult questions are recognised in Clause 165 by the proposed new Sections 9C(4) and 20I of the Juries Act 1974, which create a new offence of an interpreter intentionally interfering with or influencing the deliberation of the jury. For my part, I cannot see that those proposed provisions could ever provide a satisfactory answer to the problems. The difficulties come not from the risk of intentional interference or influence but from the actual effect of unintentional and unintended interference or influence by a forceful interpreter, or a jury that did not follow what the interpretation was affecting.
Our system depends on the interaction between the views of 12 independent jurors, who have all listened to and considered the same evidence in the same way during the course of the trial. Each and every one of those jurors will have weighed up the truthfulness and accuracy of the evidence given by witnesses giving oral testimony and will have been influenced, partly at least, by the way in which that testimony was delivered. They will have formed their own views of that before they ever get to the jury room.
In this context, Section 10 of the Juries Act requires the discharge of potential jurors with insufficient understanding of English to enable them to act effectively as jurors. They need that understanding in order to interact with and understand the meaning, force, style and believability of the evidence, as they must. As the noble Lord, Lord Pannick, pointed out, no foreign language interpreters are permitted, for obvious and good reasons, and I am entirely unpersuaded that the interests of justice would be best served by permitting interpreters of any language, including sign language, to accompany jurors into the jury room.
Lord Ponsonby of Shulbrede (Lab)
My Lords, there have been some very strong speeches from some very eminent lawyers, talking about the underlying principles of the jury room. Set against that, as the noble Lord, Lord Pannick, said, there are very strong equality arguments in favour of the proposal by the Government.
I served on a jury many years ago, but I want to talk about my experience as a magistrate. Magistrates are both judge and jury. About two years ago, the Greater London Family Panel of magistrates recruited a deaf magistrate. As far as I know, she has been sitting successfully for the last two years. I am in a position to know because I am currently chairman of the Greater London Family Panel and would be told if there were any complaints or observations related to the way she was performing. I have not heard any and, as far as I know, it is absolutely fine. She sits with a regular interpreter, who is familiar to her, and with the other magistrates when they are determining these very sensitive issues.
Earl Attlee (Con)
I would like to quickly pick up on one thing the noble and learned Lord, Lord Hope, touched on, which was the position of a blind juror. I would have no problem at all with a blind juror. I expect that there are blind jurors and that the current legislation in Section 9B already provides for that without any difficulty.
Lord Wolfson of Tredegar (Con)
My Lords, this was an especially thoughtful and constructive debate. I agree with the words that the noble Lord, Lord Ponsonby of Shulbrede, used to describe the debate. His reference to the magistrate was interesting, but the problem with all analogies is that they are different. I am going to focus specifically on the jury issue because I recognise that a number of Members of the Committee have made particular points about jurors.
I will start with the point made by the noble and learned Lord, Lord Hope of Craighead, who referred us to the Equality Act; that is an important starting point for the debate, although it may not be the finishing point. We must ensure that the services of the courts are accessible to everyone, including those with disabilities. We must pay due regard to the need to eliminate discrimination and advance equality of opportunity wherever possible. That, in a nutshell, is why Clause 165 is part of the Bill. Having said that, and because I know that this will be a debate that is looked at by those outside this House as well as by those inside it, let me place on record what need not be said but I am going to say it anyway: that everybody in this Committee shares that aim. We heard a very personal example from the noble and learned Lord, Lord Judge, of Lady Judge’s work in this area. Again I say this for the avoidance of doubt where there should not be any: I am proceeding on the basis that all who have questioned or opposed our proposals do so with the very best of motives and certainly not for any other reason.
Trial by jury is a fundamental aspect of our criminal justice system, and serving as a juror is one of the most important civic duties that anyone can be asked to perform. I agree with my noble friend Lord Attlee that it is a duty and not a right, but the Government and I want to ensure that as many people as possibly can perform that duty. Reasonable adjustments can be made by our courts to enable most people with disabilities to complete jury service. This, importantly, includes deaf jurors who can lip-read. I invite the Committee to reflect very carefully on the position of the deaf juror who can lip-read and to consider it in respect of each of the objections that have been put. I will come to some of them to which this would not apply, but a number of the objections would potentially apply to a juror who is deaf but who can lip-read. Nobody else in the court is likely to know how good the lip-reading is, whether the lip-reader gets every nuance, or how lip-reading affects the dynamics either in the jury box or in the jury retirement room.
That is the first point we get from the deaf juror who lip-reads, but there is another point as well: it underlines the proposition that there is no bar in principle to a deaf person serving on a jury. This is about one issue only, which is the 13th—I will come back to the 14th—person in the jury retirement room. That is why we need the legislation, because at the moment it is 12 and no more; I put the jury bailiff to one side. The issue at the moment is that, unlike a lip-reader who, if the judge considers that they can effectively discharge their duties as a juror—which I will come back to—can serve on a jury, a juror who needs a British Sign Language interpreter is unable to get that assistance because entry to the deliberation room is limited to the jurors, and no one else may enter. The essential point that this clause focuses on is permitting the BSL interpreter to go in, thereby enabling that juror to fulfil their duty.
I recognise that there have been what I might call practical, and almost philosophical, principled objections and concerns raised about the proposal. I note that the Bar Council of England and Wales has expressed its support, subject, it is fair to say, to the right safeguards, which I believe we have in place. I reassure the Committee that we considered the safeguards very carefully in developing the legislation. We looked at research and current practice in the USA, New Zealand, the Republic of Ireland—which is planning to legislate for this form of interpretation—and Australia, where provision is already made for BSL interpreters or the equivalent in its jury systems.
I will first deal with the philosophical or principled objections. I understand the reservations that this might undermine the jury deliberation process, and I understand the argument, although I do not accept it, that interpreters could unduly influence or impact the dynamic of the discussions. There has been a lot of research, particularly in New South Wales, to explore whether deaf people can sufficiently access court proceedings and make informed decisions as jurors. The research suggests that deaf jurors are not hindered from speaking during deliberations and that other jurors seemingly have no issue with the presence of the interpreter or interacting with the deaf juror.
We have put safeguards in the Bill to help to address these issues. Offences relating to research and sharing research during the trial will apply as much to the interpreter as they do to the jurors. As has been pointed out, there is a new offence whereby an interpreter intentionally interferes in or influences the deliberations of the jury or proceedings before the court. I have said “interpreter”, but I accept, as the noble Lord, Lord Pannick, pointed out—I acknowledge my gratitude to him and others for sparing time to discuss this with me—that there will be two BSL interpreters present in the jury deliberation room, not only because they need to switch over as it is a very intensive process for the interpreter but because it has the benefit that they will be able to monitor each other and maintain a consistently high quality of interpretation. To take the point of the noble Lord, Lord Thomas of Gresford, I say that the nuances will be as much picked up by the sign language interpreters as we can anticipate—or not—that they will be picked up necessarily by a lip-reader.
I agree with the noble and learned Lord, Lord Judge, that the jury room is not just confidential but also private; those things are different, and it is both. There is no intention to allow the academics or the researchers in. There is certainly no intention to move from what I think in the judicial review context is called “the judge over your shoulder” to the Minister standing over the juror’s shoulder. We are certainly not going there.
The interpreters will be bound by a confidentiality agreement and be bound by law, and there is an offence to keep everybody honest. They will also be required to swear an oath or affirmation to that effect, alongside their existing interpreter’s oath or affirmation.
I turn to the practical concerns around the nature of evidence and whether a deaf juror will be able to interpret facial expressions, together with audio evidence, effectively. Again, I heard the example from the noble and learned Lord as to how something was said in a tone of complete resignation. The word used in the Act, and in this clause, is “effectively”. The judge would have to decide whether the juror could effectively discharge their role as a juror. This provision does not require judges to admit such jurors on to the jury; it simply removes the blanket ban that would otherwise be present. It means that jurors who need a BSL interpreter can be considered alongside other jurors for whom other reasonable adjustments might be required.
The ultimate decision will be for the trial judge, who will take into account the nature of the case and the nature of the evidence that is going to be heard. No doubt he or she would want to hear submissions from the parties, although they would not be bound by them. As I have said, none of this is new. Again, I ask the Committee to consider how the trial judge should deal with a juror who says, “Well, I lip-read.” The trial judge, again, would have to consider what the evidence in the case was going to be and whether they were going to be able to fulfil their role effectively. There is no difference in principle, and the test and approach of the judge would have to be the same.
I accept that there will be cases where a deaf person would not be able to serve on a jury. I expect that there will be cases where a lip-reading juror might not be able to serve on a jury—for example, if the evidence is audio only and there is nobody to look at; there is just a telephone call playing.
Lord Pannick (CB)
I ask this question out of ignorance. Can the Minister confirm what the noble Lord, Lord Thomas of Gresford, said, which is that a BSL interpreter does not interpret in the way that a foreign-language interpreter would, but rather attempts to summarise the gist or essence of what has been said?
Lord Wolfson of Tredegar (Con)
I was going to come to that point, but let me deal with it now. BSL is treated as a language. It has its own grammatical structure and syntax; it is recognised as a minority language in the UK. There is not a sign for every word, but words can be spelled out where a sign is not possible. The noble Lord and I have both had cases where we have had simultaneous foreign language interpretation. It is also the case that not every word in every language is easily translatable into another language. Certainly, we have looked at that point, and we do not think that that should be a bar to a deaf juror effectively participating in a jury. For these purposes, BSL is sufficient to enable the juror to participate effectively, but depending again on the nature of the case, that may be a factor in a particular case which the judge would want to take into account.
It is important to start from the proposition that everyone should be able to serve as a juror unless there are good reasons to believe that they would be unable to do so effectively. I underline that word “effectively” in the instant case. I come back to the fact that deaf jurors who can lip-read serve successfully, and we do not believe that there is a reason why there should be a blanket ban on jurors who need BSL interpreters to serve.
Picking up some other points, the noble and learned Lord, Lord Judge, asked about the obligation point and whether there would be a special dispensation. No, there would not be a special dispensation. Like any other juror, the deaf juror who needed a BSL interpreter would have to ask for permission to be excused. Of course, given that the judge would also be considering whether they could effectively participate, perhaps the anterior question would be their effective participation, and then the question would arise as to whether they could be excused. That would also apply, of course, to any other juror who was a lip-reader. One would imagine that a judge would be sympathetic to a lip-reading juror who might say to the judge, “I know that I can serve, but I am very concerned that I might miss something. My lip-reading is good, if not 100%, but I would rather not serve.” Ultimately, however, that would be up to the judge. There would not be a special dispensation.
Earl Attlee (Con)
My Lords, first I pay tribute to my noble friend for his response to our concerns. When I read the Bill, as all noble Lords do, I read it carefully and this clause immediately attracted my attention, because I thought it would be of interest to your Lordships. I think the best course of action is to incorporate this clause into the Bill and then recognise that this matter is far beyond my pay grade and we should perhaps leave it to other noble and learned Lords to pursue it at a later stage if they think it is necessary. I think we should put the question.
Lord Wolfson of Tredegar
Member’s explanatory statement
This amendment is consequential on the amendment in the name of Lord Wolfson of Tredegar at page 187, line 17.
Lord Wolfson of Tredegar (Con)
My Lords, these amendments in my name make two straightforward revisions which will allow these provisions to operate more effectively and support the principle of open justice across our courts and tribunals. Let me divide them into two groups.
Amendments 243, 244, 245, 248 to 261 inclusive and 325 expand the scope of Clauses 167 and 168 so they apply to all of our courts, tribunals and all bodies that exercise the judicial power of the state, with the exception of the Supreme Court, for which there has already been separate provision, and devolved courts and tribunals, for obvious reasons. This is an important amendment. It ensures that all jurisdictions may use these powers to provide transmissions of proceedings to remote observers in order to uphold the principle of open justice, subject, of course, to further regulation, guidance and judicial discretion.
Digital technologies have become mainstream, even in our smaller and what might be called more obscure jurisdictions. It is now evident that these powers should not be limited to HMCTS courts and tribunals but would be best made effective in all courts and tribunals. Importantly, that also ensures that the offence of making unauthorised recordings or transmissions of proceedings is applied universally across our entire justice system and not just in specific jurisdictions. This will shorten the length of the Bill by around six pages by removing the need for a distinct schedule for tribunals. I was going to add, “making this legislation simpler”, but that might test the patience of the Committee.
Ensuring that our courts and tribunals are as open and transparent as they can be is an ongoing task. The president of the Family Division, Sir Andrew McFarlane, recently published his review of transparency in the family courts. With respect to the president, it is right to say that that was a phenomenal piece of work, which has been well received. The remote observer clauses in this Bill are in harmony with his recommendations, as the Bill allows transparency by permitting journalists to observe family hearings remotely if they cannot attend in person.
The second part of this group of amendments, Amendments 246, 247, 262, 324, and 329, provide technical amendments so that the secondary legislation to enable these powers may be introduced on time. Let me explain what I mean by that. The remote observation provisions in the Bill are intended to replace the temporary and less extensive powers in the Coronavirus Act. They have been vital in allowing our courts to administer justice effectively and transparently during the Covid-19 pandemic.
We want to make sure that there is no gap in the legislative cover. It has therefore become necessary to ensure that these new powers can be enabled in secondary legislation before the date that the existing legislation expires. With this Bill now not expected to receive Royal Assent until only shortly before that date, these amendments take the necessary step of allowing the enabling secondary legislation for these powers to be introduced by the made affirmative procedure. These amendments therefore provide that legislation is continually in place to uphold open justice in remote hearings.
As this morning, I am aware that the group contains amendments from other noble Lords, so I will pause there to allow them to introduce their amendments. I beg to move.
Lord Pannick (CB)
I shall speak to Amendment 259B in my name and those of the noble Lord, Lord Marks, and the noble and learned lord, Lord Judge.
Clause 169(2) would allow a jury to be in a different physical location from the judge, so long as all 12 members of the jury are in the same place as between themselves. I am very concerned about this proposed power. In order to ensure the effective management of a criminal trial, a judge needs to be in the same room as a jury. The judge needs to be able to communicate effectively with the members of the jury. The judge needs carefully to watch the jury to see that they are focused and ensure that their needs are addressed. The judge needs carefully to watch the relationships between the 12 members of the jury. The jury needs to be able to communicate speedily and easily with the judge if it has any particular issue that it wants to raise. Members of the jury need to be able to study the witnesses giving evidence—what they say, what they do not say, and their body language and facial expressions while doing so. All this is so much more difficult through a computer screen, as we have all discovered, whether through court proceedings or parliamentary proceedings, during the pandemic.
I have had very helpful discussions with the Minister about this matter, and I am very grateful to him and thank him for those discussions and the time that he has devoted to them. I understand from him that the Government have no plan to encourage the use of remote juries. Instead, as I understand it, the Government believe that this would be a useful power essentially for three reasons: we may be afflicted by another pandemic; there may well be advances in technology; and, in any event, this power may be useful today if a judge and lawyers, for example, go on a site visit and one or more members of the jury is physically disabled, in which case the site visit can be watched by the whole jury online. That is the example that the Minister gave me.
I have to say that I find these justifications unpersuasive. I am always suspicious of broad powers being taken in legislation “just in case”. I certainly do not doubt the Minister’s good faith, but his assurances as to what is intended to be done under this proposed power do not bind—cannot bind—his successors in office to what he has done; they may have very different proposals or intentions as to the use of these powers. With great respect, the site visit example is, I think, very far-fetched. I am not aware of any such problem in any case in recent years, if ever.
In any event, if Ministers think that provision should be made for such a limited, specific use of remote hearings, with juries in a different place to the judge and the defendant, let it be made clear in the drafting of the clause that a remote hearing cannot take place with the jury in splendid isolation from the judge, the witnesses and the defendant in relation to the hearing of oral evidence, the submissions of counsel or the summing-up by the judge.
Although they have not yet been spoken to, I express my support for Amendments 259A and 259B, both of which concern aspects of the proposed power to be conferred on the court to require a person, including a defendant, to take part in proceedings by audio or video link. I can well understand that this may be a useful power for a preliminary hearing, but not for a substantive trial, unless the defendant consents to that. I am very unhappy about this in relation to young persons.
There are real issues as to whether a defendant would have effective access to a hearing, were his or her presence to be remote, and real concerns as to whether they could effectively communicate with their legal representatives. The Ministry of Justice may be hoping to save some money if it does not need to transport defendants from prison to court, but I am doubtful that it will save much money because it will need to invest in very high-quality computer systems. In any event, I fear the price will be a reduction in the quality of justice, and that price is too high.
Lord Hope of Craighead (CB)
My Lords, I do not wish to be taken as suggesting that what works well in Scotland should necessarily be applied in England and Wales, but I think I am right in saying that there has been some attempt in Scotland to allow juries to be remote. The problem one has is that a judge cannot be in two places at once. I think it was thought more appropriate that the judge should be close to the place where the evidence was being taken, with the juries remote in some other room because of the need for social distancing and so on. My point is simply this: I suggest once again, with great respect, that the Minister should find out what has been happening in Scotland and what the experience has been. They may have decided, for the reasons given by the noble Lord, Lord Pannick, that it should not be continued. I simply do not know, but it is worth exploring to find out exactly what the position is.
Lord Judge (CB)
My Lords, despite Covid—I know it is not over yet, but despite the 18 months we have had—I have not heard it suggested that one solution to the problems that the courts face is that juries should act remotely. We have trial by judge and jury. I agree with what the noble Lord, Lord Pannick, said, but I want to be just a bit more down to the realities of it. What happens in court when the jury is unhappy with itself or with some of its members? The judge has a most delicate task to perform. On my old circuit—I am sorry to say that the Midlands circuit has this—one juror smelled; he stank, and the jury were extremely unhappy about it. Can all that be done remotely, when the judge is responsible for looking after the interests and needs of the jury as a whole? Do we send messages down the line? How is it accommodated? It requires huge tact, skill and, I think, the personal touch.
My other concern about this provision was touched on by the noble Lord, Lord Pannick—it is the usual one, I am afraid; you have all heard me talk about it. Why should we give these huge powers when we do not need to give them?
Lord Ponsonby of Shulbrede (Lab)
My Lords, there are a number of amendments in this group to which I would like to speak. The noble Lord, Lord Pannick, made the overarching point that he is suspicious of broad powers being taken in legislation. It seems to me that those amendments which are not the Government’s address the broad powers which the Government are seeking to take in this group.
Amendments 245A and 245B, in the name of my noble and learned friend Lord Falconer and supported by the noble Lord, Lord Pannick, would remove children from the application of Clause 167, providing that remote observation and recording of court proceedings may not occur in cases where a party to the proceedings is a child under the age of 18.
Under Amendment 259A, also in the name of my noble and learned friend, a court may not give directions for live links in criminal proceedings where a party to them is a child under the age of 18. The amendment in my name, Amendment 259BA, would require that all defendants who might appear on a video or audio link from a location outside the court should be subject to a health needs screening. Screening information must be made available to the judge responsible for listing before the listing is finalised.
We have all had a variety of experiences of dealing with remote links. I have done it many times over the last 18 months and in a number of jurisdictions. I was pleased that the Minister referred to Sir Andrew McFarlane’s report about trying to increase the transparency of family courts. I have read that report and it is interesting. There is the idea there of permitting journalists to observe family courts remotely. However, there is another side to this coin. Yes, we pat ourselves on the back for getting through a difficult situation—I have done it myself—and we have all managed to make the various parts of our lives work, including this House, but I do not think that anyone would say that the manner of getting through things within the court system or within this House or this Committee is as good as doing it in person.
The amendments I have spoken to look at arguably the most vulnerable people who potentially proceed through the criminal system and at whether there should be a form of review around whether that is indeed suitable. The amendments I have referred to talk about people under the age of 18, but there is a wider point, because there has been criticism of the way in which we in the family court system have proceeded remotely. I have literally taken away a child from a mother remotely, by telephone. It was the best thing to do in the circumstances, but nobody would argue that that was the best way to proceed when the court system and other forms of support should be in place and available.
There are overarching and broad powers being sought through this group of amendments. The amendments in my name and those in the names of the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Falconer, are basically looking for exceptions to this, where the situation is so sensitive that these overarching powers should not be taken and there should be further research and assessment of their appropriateness. The amendments in my name deal with young people under the age of 18. I have had a number of hearings with such young people. Sometimes they go okay; sometimes they simply switch off and do not have a clue what is proceeding within the court system.
I hope that, when the noble Lord comes to sum up, he will be able to say something about ongoing reviews of particular appraisals of young people being able to participate in these types of hearings, and that there will not be a blanket approach, as is proposed in his group of amendments.
Lord Marks of Henley-on-Thames (LD)
My Lords, I am sorry to speak after the noble Lord, Lord Ponsonby. I wanted to hear what he had to say about his amendments and those in the name of the noble and learned Lord, Lord Falconer.
I speak first to the amendment to which I have put my name, Amendment 259B—on which I entirely agree with what the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Judge, said—about excluding jurors from the operation of the provision permitting participation in criminal proceedings by remote live links.
The proposal in the Bill is that the problem of jurors taking part in criminal proceedings by live link should be dealt with by a requirement that all members of a jury taking part through a live link should be present at the same place. So the suggestion is that, by being present at the same place, the jurors would be able to decide a case whether or not they were physically present at the trial. I do not believe that suggestion is accurate or that it responds adequately to the difficulties posed by the proposal that jurors should be able to attend remotely.
In the last group we considered how important it is for jurors to be able to see and hear witnesses giving their oral testimony live, with a view to assessing the truthfulness of those witnesses and the accuracy of the evidence they give. That involves a very personal judgment about credibility and reliability. Reliance upon that judgment—the independent judgment of 12 citizens, as distinct from the individual judgment of a professional judge—is what marks out the jury system. I believe it is what has given the public confidence in the system that we all have. I do not believe that that judgment is capable of being reliably made by live link.
Post Covid, we can all see the attractions of remote hearings. As a barrister, I have appeared in many such hearings over this period, as I dare say others have—certainly the noble Lord, Lord Pannick, has. For hearings before judges alone, or before arbitral tribunals, they generally work well. Indeed, for many civil hearings, I suspect we will not go back to the system of all-oral hearings for a significant percentage of our work. That will be a matter for individual judges, arbitrators and lawyers, depending upon the particular circumstances of the cases before them.
However—this was the case that the noble and learned Lord, Lord Judge, made—even during the pandemic and despite the pressures of increasing trial backlogs, we have not gone down the road of holding jury trials without jurors being physically present to hear the evidence and being in the same place as the judge. In my view, that is for good reason, so I invite the Government to think again and to accept Amendment 259B.
On the other amendments, having heard the noble Lord, Lord Ponsonby, explain his amendment about the need for health-needs screening, I agree with the noble Lord and invite the Government to accept that, too. As for the amendment in the name of the noble and learned Lord, Lord Falconer of Thornton, I fully accept the argument that it would be unusual for the use of live links to be directed by a judge in a sensitive case involving children, but I can see an argument that some such cases might justify a direction. I see no reason not to leave it to the judge in any particular case to determine whether the use of live links would further or impede the interests of justice. In this regard, we need to remember that refusing a live-links direction may in many cases cause delay in the determination of those cases, and that such delay may lead to particular injustice in cases involving children, for whom an early determination of the issues surrounding their care is often of great importance. So, although I see the point of this amendment, I suggest that it is better to leave it to judicial discretion in cases involving children.
Lord Deben (Con)
My Lords, the Committee will know that, as a non-lawyer, I very often attend these debates because I do not trust lawyers to make decisions about themselves. I therefore intervene here because, on this occasion, lawyers have brought to the surface a most important issue.
I am interested in whether people believe that justice has been done, and it seems to me that extending, in these circumstances, the use of technology to overcome the presence of people in court has a fundamental issue for the generality of the public believing that justice has been done. I am a great believer in Zoom and Teams. They have made my life a great deal better and I have spent more time in the beautiful countryside of Suffolk than I had been able to do before, but I am very conscious of the fact that there are many things that you can do perfectly well—indeed, better—through these techniques and there are some things that you cannot. One of the things you cannot do is replicate the public’s confidence in the concept of a jury. The point, which was made by the previous speaker so adequately, is that it is different, and our system is different because we have this element.
I cannot believe that there are circumstances when it would be sensible for the jury to be in one place and the judge in another. Therefore, I wish to say to my noble friend, whose explanations throughout today and previous days have been remarkable—he has been able to defend some very peculiar things more effectively than most people have managed to do, certainly in the other House—simply this: we have here a position in which it is hugely important that the public should feel that justice is done. I do not believe they will if we do it this way.
As somebody who was a Minister for 16 years, I warn him that I see the civil servant here, who said to some Minister somewhere, “Better do this in case”. Some of the cases proposed are frankly incomprehensible, unlikely and totally beyond any sense—but it is the duty of civil servants to say, “Better not leave this out, Minister, lest it should happen and then we’d be in trouble”. I suggest to my noble friend that he would be in less trouble by not doing some of these things than he would be in the extreme possibility that he might need this power.
Lord Hope of Craighead (CB)
My Lords, there is a great deal to be said for the need for justice to be done, as the noble Lord has been saying, but there is another side to the coin, which is a trial within a reasonable time. That factor has been exercising the minds of those who have been trying to progress trials through the desperately difficult situation created by the Covid epidemic. I hope those times have passed but, in the defence of those who have been setting out remote proceedings, they have been doing so under great pressure. People have been languishing in custody for far longer than they should have been, awaiting trial, and that factor has to be taken into account in deciding what is the right thing to do. The noble Lord is absolutely right, of course, that the worst option is the one they were driven to—but they were driven to it for very good reasons.
Lord Wolfson of Tredegar (Con)
My Lords, I am grateful again to the Committee for a very interesting and wide-ranging debate. I thank my noble friend Lord Deben for the most back-handed compliment I have ever received and assure him that, when it comes to justice, I absolutely subscribe to the proposition that justice must be not only done but seen to be done. That reminds me to underline what Clauses 167 and 168 are about: they are about justice being seen to be done. These clauses do not mandate remote hearings; that is for a judge to decide. What they do is permit remote observation of those hearings, which underpins open justice.
When we look at issues such as this, we need to bear in mind that the days when the local newspaper would send people to sit at the back of the Crown Court or magistrates’ court are long gone. In the real world, you will have greater transparency if you have a live feed to journalists from the courtroom than if you say, “You’ve got to come along and take a note”. They simply do not any more, and I am concerned with making sure that we actually have open justice and that it is not just something we talk about.
Amendments 245A and 245B seek to prohibit those transmissions being made to remote observers in all cases where a child is among the parties. Amendment 259A similarly seeks to remove children from the application of Clause 169, which is about video and audio links in criminal proceedings. It would prevent the court, as a blanket ban, from making a direction to enable any participant in a hearing to attend by live link where a child is party to proceedings.
I absolutely agree with the intention of safeguarding children in our courts. We have debated that point in a number of areas of this and other Bills, but I suggest that these amendments are both ineffective and unnecessary. They are unnecessary because we already have in place sufficient tried and tested legislation and guidance to safeguard the privacy of children in these proceedings. Section 47(2) of the Children and Young Persons Act 1933 prevents anyone being present at a youth court hearing except members of the court, parties and participants, accredited media representatives or specifically authorised persons.
In other courts, procedure rules provide that it is legitimate to hold a hearing in private
“to protect the interests of any child or protected party”.
Courts have a statutory duty to have regard to the welfare of children. Judges, magistrates and tribunal members retain judicial discretion over whether a case is to be heard in private, with full consideration of their duty to protect minors or other vulnerable parties, where necessary. The ineffective or counterproductive point is that there may be cases where it is beneficial for a child, whether as a witness or a defendant, to participate by live link. If one is focusing on cases where children can be affected, one also has to bear in mind that there are lots of cases which affect children where a child is neither a party, nor a witness, nor physically involved at all.
Clause 169, as drafted, gives courts the flexibility to make decisions to direct remote participation where it is considered in the best interests of child participants to do so. I draw the Committee’s attention to the word “may” in the first line of subsection (1) in new Section 51. It is vitally important that we continue to protect children. That is why we have built these safeguards into our provisions.
Amendment 259B, which I think the noble Lord, Lord Pannick, spoke to first, seeks to exclude juries from the provisions in Clause 169 that enable a jury assembled together to participate in a trial through a live video link, where appropriate and deemed to be in the interests of justice. The Committee is entitled to a clear statement from the Dispatch Box and I will make one: there is absolutely no intention for this to become a regular feature of trials, with the jury sitting in one room and the judge and the witnesses in another room. As the noble and learned Lord, Lord Hope of Craighead, reminded us, Scotland did put that provision in during the pandemic—I think cinemas were used, so that everything was on a big screen and the audio was very good. That was done in response to the pandemic, and this measure is a future-proofing measure.
I hear what my noble friend Lord Deben says about that and about civil servants tapping Ministers on the shoulder, but, since the pandemic, we have witnessed big changes in how we run our jury system. We have seen —and here I pay my respects again to judges and all others involved in the justice system, who have worked extremely hard to do this—suitable procedures put in place. But we have also seen how legislation tied our hands during an emergency and impeded our ability to progress quickly and make full use of the technological options open to us. We do not want that to happen again. Clause 169 is designed to provide courts with the flexibility to keep pace with new technology as it develops.
As the noble Lord, Lord Pannick, said, that is the second reason for this clause. Technology is developing in ways that we could not have imagined a few years ago, and we have no idea where it will take us in the future. We want to be sure that we have a statutory basis to take advantage of technology as it develops, so that we can provide a justice system that is fit for the century that we live in and for the way that people live their lives. Those are the two main justifications for Clause 169.
I gave the noble Lord the example of a site visit. Again, I make clear that this is not the main justification for it, but it is important if one has a jury with a disabled person on it. The idea is shocking that, in 2021 a disabled person could be told that they cannot sit on a jury because, at some point during the three-week trial, it will look at the locus in quo, which is a room at the top of a winding staircase, and they cannot climb the stairs. The whole thing could be done very effectively via video, and so that is not a reason to stop them serving on a jury.
Lord Pannick (CB)
I am grateful to the Minister. Can he say whether there has ever been such a case?
While I am on my feet, I have another question. The Minister mentioned that technology may develop. I think the concern from those of us who have doubts about this proposal is not advancing technology but human communication. However good the technology becomes, there is still a vital distinction between watching proceedings on a screen and being in the same room as other people. I suggest to the Minister—this is certainly my experience and, I think, the experience of most lawyers and judges—that, although the courts have worked wonders during the pandemic, they have recognised the inferiority of any system that is within our contemplation by means of technology compared with being the same room. The ability to communicate and have an interchange with other people is manifestly weakened by having to do it over a screen.
Lord Wolfson of Tredegar (Con)
Absolutely. I do not disagree that face to face is better; no doubt that is what we all feel in this Committee—that it operates much better when we are in the same room than it did when it was all on screens. I absolutely accept that. Let me give an example. Before I became a Minister, I did a three-week trial entirely on screen, with witnesses around the world. After about a day, you forget, and you get used to the new system.
I am not saying that we want this clause here because screens are better; we want this clause in the Bill because screens may be necessary if we have another pandemic and because we do not know where technology is going to go. I do not want to get too techy about it, but there is a very real difference between watching a screen in the sense of a computer monitor and some of the things that I have seen in banks, where there is a big screen down the middle of a table and six or seven of you sit in a row and look at it, while the people you are talking to have the same thing in their office. After about half an hour, you really feel that they are on the opposite side of the table to you. Again, I am not suggesting that that is suitable for courts, but it is an example of how technology can, and will, develop. We want to future-proof it, as I have said.
Amendment 259BA would require anyone taking part in any sort of criminal hearing via live link to submit to a prior assessment of their physical and mental health before the court could consider whether it is appropriate for them to take part in criminal proceedings over a live link. I share the concern of the noble Lord that we must ensure that audio and video links are used appropriately. Again, we have built safeguards into Clause 169, setting out procedures and guidance that courts must follow. The court must decide whether it is in the interests of justice; that includes taking the views of the person who would attend by live link on whether they can participate effectively in the proceedings. The clause also requires that the parties have an opportunity to make representations to the judge.
I also point out that, although the intention behind the amendment is understandable, perhaps even laudable, in practice, it could prevent or deter some people from using a facility that could help them to participate in hearings with as little distress, inconvenience and delay as possible. I therefore urge noble Lords not to press their amendments.
Lord Wolfson of Tredegar
Member’s explanatory statement
This amendment is consequential on the amendment in the name of Lord Wolfson of Tredegar at page 187, line 17.
The Deputy Chairman of Committees (Baroness Fookes) (Con)
In calling Amendment 245, I must point out that, if it is accepted, I cannot call Amendment 245A by reason of pre-emption.
Amendment 245
Lord Wolfson of Tredegar
Member’s explanatory statement
This amendment expands new section 85A of the Courts Act 2003 so as to cover all “courts” within the meaning of the Contempt of Court Act 1981 (which include tribunals and other judicial bodies).
Lord Wolfson of Tredegar
Member’s explanatory statement
This amendment is consequential on the amendment in the name of Lord Wolfson of Tredegar at page 188, line 25.
“(8A) Before making regulations under subsection (8), the Lord Chancellor must determine whether the function of giving or withholding concurrence to the regulations would most appropriately be exercised by—(a) the Lord Chief Justice of England and Wales,(b) the Senior President of Tribunals, or(c) both of them.(8B) Regulations under subsection (8) may be made only with the concurrence of the Lord Chief Justice of England and Wales, the Senior President of Tribunals, or both of them, as determined under subsection (8A).”Member’s explanatory statement
This amendment responds to the inclusion of tribunals within new section 85A of the Courts Act 2003 (see the amendment in the name of Lord Wolfson of Tredegar at page 187, line 17) by providing for the Senior President of Tribunals to consent to regulations under that section in appropriate cases.
“(10) This section does not apply to proceedings in the Supreme Court.(11) This section does not apply to proceedings if provision regulating the procedure to be followed in those proceedings could be made by—(a) an Act of the Scottish Parliament,(b) an Act of Senedd Cymru (including one passed with the consent of a Minister of the Crown within the meaning of section 158(1) of the Government of Wales Act 2006), or(c) an Act of the Northern Ireland Assembly passed without the consent of the Secretary of State.” Member’s explanatory statement
This amendment provides that Supreme Court proceedings and court or tribunal proceedings within devolved competence do not fall within the expanded scope of new section 85A of the Courts Act 2003 (as brought about by the amendment in the name of Lord Wolfson of Tredegar at page 187, line 17).
Member’s explanatory statement
This amendment (together with the amendment in the name of Lord Wolfson of Tredegar at page 281, line 12) removes provision that is unnecessary as a result of the amendment in the name of Lord Wolfson of Tredegar at page 187, line 17.
Member’s explanatory statement
This amendment is consequential on the amendment in the name of Lord Wolfson of Tredegar at page 187, line 17.
Member’s explanatory statement
This amendment is consequential on the amendment in the name of Lord Wolfson of Tredegar at page 281, line 12.
Member’s explanatory statement
This amendment is consequential on the amendments in the name of Lord Wolfson of Tredegar at page 187, line 17 and page 281, line 12.
Member’s explanatory statement
This amendment is consequential on the amendment in the name of Lord Wolfson of Tredegar at page 187, line 17.
Member’s explanatory statement
This amendment is consequential on the amendment in the name of Lord Wolfson of Tredegar at page 281, line 12.
Member’s explanatory statement
This amendment is consequential on the amendment in the name of Lord Wolfson of Tredegar at page 187, line 17.
Lord Wolfson of Tredegar
“(10A) This section does not apply to proceedings in the Supreme Court.(10B) This section does not apply to court proceedings if provision regulating the procedure to be followed in those proceedings could be made by—(a) an Act of the Scottish Parliament,(b) an Act of Senedd Cymru (including one passed with the consent of a Minister of the Crown within the meaning of section 158(1) of the Government of Wales Act 2006), or(c) an Act of the Northern Ireland Assembly passed without the consent of the Secretary of State.” Member’s explanatory statement
This amendment provides that Supreme Court proceedings and court or tribunal proceedings within devolved competence do not fall within the expanded scope of new section 85B of the Courts Act 2003 (as brought about by the amendments in the name of Lord Wolfson of Tredegar at page 190, lines 27 and 28).
““court” has the same meaning as in the Contempt of Court Act 1981 (see section 19 of that Act);”Member’s explanatory statement
This amendment, and the amendment in the name of Lord Wolfson of Tredegar at page 190, line 28, expand new section 85B of the Courts Act 2003 so as to cover all “courts” within the meaning of the Contempt of Court Act 1981 (which include tribunals and other judicial bodies).
Member’s explanatory statement
See the explanatory statement for the amendment in the name of Lord Wolfson of Tredegar at line 27 of the same page.
Member’s explanatory statement
This amendment (together with the amendment in the name of Lord Wolfson of Tredegar at page 286, line 4) removes provision that is unnecessary as a result of the amendments in the name of Lord Wolfson of Tredegar at page 190, lines 27 and 28.
Lord Wolfson of Tredegar
Member’s explanatory statement
This amendment (together with the amendment in the name of Lord Wolfson of Tredegar at page 188, line 28) removes provision that is unnecessary as a result of the amendment in the name of Lord Wolfson of Tredegar at page 187, line 17.
Member’s explanatory statement
This amendment (together with the amendment in the name of Lord Wolfson of Tredegar at page 190, line 45) removes provision that is unnecessary as a result of the amendments in the name of Lord Wolfson of Tredegar at page 190, lines 27 and 28.
Lord Wolfson of Tredegar
“Expedited procedure for initial regulations about remote observation of proceedings
(1) This section applies in relation to the first regulations made under section 85A(8) of the Courts Act 2003 (as inserted by section 167(1)).(2) The regulations may be made without a draft of the instrument containing them having been laid before and approved by a resolution of each House of Parliament (notwithstanding section 108(3) of the Courts Act 2003).(3) If regulations are made in reliance on subsection (2), the statutory instrument containing them must be laid before Parliament after being made.(4) Regulations contained in a statutory instrument laid before Parliament under subsection (3) cease to have effect at the end of the period of 28 days beginning with the day on which the instrument is made unless, during that period, the instrument is approved by a resolution of each House of Parliament.(5) In calculating the period of 28 days, no account is to be taken of any whole days that fall within a period during which—(a) Parliament is dissolved or prorogued, or(b) either House of Parliament is adjourned for more than four days.(6) If regulations cease to have effect as a result of subsection (4), that does not—(a) affect the validity of anything previously done under or by virtue of the regulations, or(b) prevent the making of new regulations.”Member’s explanatory statement
This enables the first regulations made for the purposes of new section 85A of the Courts Act 2003 as inserted by Clause 167 (which, in particular, will specify types of court or tribunal proceedings in which remote observation directions will be available) to be made subject to the ‘made affirmative’ procedure rather than the normal affirmative procedure.
Lord Coaker
“Offence of assaulting a retail worker
(1) It is an offence for a person to assault, threaten or abuse another person—(a) who is a retail worker, and(b) who is engaged, at the time, in retail work.(2) No offence is committed under subsection (1) unless the person who assaults, threatens or abuses knows or ought to know that the other person—(a) is a retail worker, and(b) is engaged, at the time, in retail work.(3) A person who commits an offence under subsection (1) is liable, on summary conviction, to imprisonment for a term not exceeding 12 months, a fine, or both.(4) Evidence from a single source is sufficient to establish, for the purposes of this section—(a) whether a person is a retail worker, and(b) whether the person is engaged, at the time, in retail work.(5) The offence under subsection (1) of threatening or abusing a retail worker is committed by a person only if the person—(a) behaves in a threatening or abusive manner towards the worker, and(b) intends by the behaviour to cause the worker or any other person fear or alarm or is reckless as to whether the behaviour would cause such fear or alarm.(6) Subsection (5) applies to— (a) behaviour of any kind including, in particular, things said or otherwise communicated as well as things done,(b) behaviour consisting of—(i) a single act, or(ii) a course of conduct.(7) Subsections (8) to (10) apply where, in proceedings for an offence under subsection (1), it is—(a) specified in the complaint that the offence is aggravated by reason of the retail worker’s enforcing a statutory age restriction, and,(b) proved that the offence is so aggravated.(8) The offence is so aggravated if the behaviour constituting the offence occurred because of the enforcement of a statutory age restriction.(9) Evidence from a single source is sufficient to prove that the offence is so aggravated.(10) Where this section applies, the court must—(a) state on conviction that the offence is so aggravated,(b) record the conviction in a way that shows that the offence is so aggravated,(c) take the aggravation into account in determining the appropriate sentence, and(d) state—(i) where the sentence imposed in respect of the offence is different from that which the court would have imposed if the offence were not so aggravated, the extent of and the reasons for that difference, or(ii) otherwise, the reasons for there being no such difference.(11) In this section—“enforcement”, in relation to a statutory age restriction, includes—(a) seeking information as to a person’s age,(b) considering information as to a person’s age,(c) refusing to sell or supply goods or services,for the purposes of complying with the restriction (and “enforcing” is to be construed accordingly),“statutory age restriction” means a provision in an enactment making it an offence to sell or supply goods or services to a person under an age specified in that or another enactment.(12) In this section, “retail worker”—(a) means a person—(i) whose usual place of work is retail premises, or(ii) whose usual place of work is not retail premises but who does retail work,(b) includes, in relation to a business that owns or occupies any premises in which the person works, a person who—(i) is an employee of the business,(ii) is an owner of the business, or(iii) works in the premises under arrangements made between the business and another person for the provision of staff,(c) also includes a person who delivers goods from retail premises.(13) For the purposes of subsection (12), it is irrelevant whether or not the person receives payment for the work.(14) In proceedings for an offence under subsection (1), it is not necessary for the prosecutor to prove that the person charged with the offence knew or ought to have known any matter falling within subsection (12)(b) in relation to the person against whom the offence is alleged to have been committed. (15) In this section, “retail premises” means premises that are used wholly or mainly for the sale or supply of goods, on a retail basis, to members of the public.(16) In this section, “retail work” means—(a) in the case of a person whose usual place of work is retail premises, any work in those retail premises,(b) in the case of a person whose usual place of work is not retail premises, work in connection with—(i) the sale or supply of goods, on a retail basis, to members of the public, or(ii) the sale or supply of services (including facilities for gambling) in respect of which a statutory age restriction applies,(c) subject to subsection (17), in the case of a person who delivers goods from retail premises, work in connection with the sale or supply of goods, on a retail basis, to members of the public.(17) A person who delivers goods from retail premises is doing retail work only during the period beginning when the person arrives at a place where delivery of goods is to be effected and ending when the person leaves that place (whether or not goods have been delivered).(18) In this section, references to working in premises includes working on any land forming part of the premises.”
Lord Coaker (Lab)
My Lords, it is good to stand to move this important amendment here this evening. I declare my proud interest as a member of USDAW and of the Co-Operative Party. Amendment 263, in my name and that of the noble Baroness, Lady Bennett, provides for a specific offence of assaulting, threatening or abusing a retail worker, punishable by up to a 12-month sentence, a fine or both. I also rise in support of Amendment 264, from the noble Baroness, Lady Neville-Rolfe, and my noble friend Lord Hunt of Kings Heath, which I am pleased to add my name to. It provides for increased sentencing where an offence of common assault, battery, threatening or abusive behaviour, or intentional harassment is committed against a retail worker. It provides for, on summary conviction, 12 months or a fine, or both, and, on indictment, a sentence of up to two years.
I am very proud to present these amendments; this is a crucial issue for all of us across this Chamber and, indeed, in the other place, and one which has huge cross-party support, as we all want to do more for our retail workers. I am sure that the Minister is only too aware of this. An amendment in the House of Commons recently received significant attention and support from the Government Benches as well as the Opposition Benches. The issue has been campaigned on for years by workers, unions, parliamentarians, people who are interested in it and by the retail industry itself. It is time for the Government to act, and this Bill provides them with the vehicle to do that.
I hope noble Lords will bear with me while I talk a little about the scale of the problem. The Co-operative Group estimates that today, across its stores, 12 shop workers will be attacked and more than 110 will be abused and threatened. The British Retail Consortium estimates that, across the sector, every day 450 shop workers are abused or attacked. None of us condones that or thinks that it is acceptable; none of us is anything other than appalled by that fact.
The truth is that it seems to be increasing at a considerable rate. The Co-op Group, again, estimates that, in stores across the UK, there was a 650% rise in violence and a 1,700% rise in abuse towards their colleagues between 2016 and 2020. So, clearly, there is a major issue which individual retail and shop workers are facing every single day. Yet was it not just a few months ago that we were all talking about how essential these retail and shop workers, and others working in this sector, were to all of us? The pandemic gave us the chance to recognise the importance of people who perhaps in the past we had taken for granted, but whose real service to us we now recognised.
I do not know about anybody else, but during lockdown, going to the shops sometimes to get an essential supply became a day out. I am sure we are all aware of that. It was a fact that in every shop, store, service station or garage you went to, you actually met somebody else, and, frankly, particularly at the beginning of the pandemic, we had no real idea about the consequences of the level of human interaction that retail workers were having to do every single day as part of their job to keep us supplied with food and the services we needed. We talk, quite rightly, about what police officers and other emergency workers did, but the bravery of those workers as well is something that I know we all salute.
Now is the time for us to say that we recognise what they did during the pandemic and the service they provided, and perhaps for the first time properly recognise the importance of what they gave to the community as a whole. Is it not now time for us, as legislators, to respect that and act to create an offence or do something that actually delivers for them and prevents some of the unbelievable abuse that they receive? Let us remember as well that sometimes, of course, shop workers are targeted simply for enforcing the laws that we pass, whether it be laws on age-restricted products, or indeed, during the pandemic, laws with respect to wearing masks, and so on.
We also have to challenge the police and others on those instances when crimes were reported but the response was not what we would expect it to be. It is true that the police need to recognise that it is regarded as a serious matter when somebody is abused or threatened in a shop. Indeed, according to a freedom of information request made in 2020 by the Co-op Group, and bearing in mind that only serious incidents are reported, the police failed to attend in 65% of the incidents reported in Co-op stores. We need to do something about that.
We have had a Private Member’s Bill from the Labour MP, Alex Norris. In the past three years, there have been two separate Private Members’ Bills, both of which received strong cross-party support. My noble friend Lord Kennedy would wish me also to point to his work in this area—I would be in trouble if I did not. The Scottish Government have introduced a new offence following a Private Member’s Bill brought forward by the Labour MSP, Daniel Johnson, again supported by USDAW. So it can be done, and we are looking to the Government to act.
While the Bill was in the Commons, the leaders of 100 brands, including Tesco, Sainsbury’s, IKEA and Aldi signed an open letter calling for greater legal protection for retail workers, again showing their support. Abuse is not part of the job, and it should never become normalised, common or accepted. Nobody should go to work expecting to face abuse, threats or violence, but if these do happen, people need to be confident that the system is on their side. The current situation clearly needs to change, and the only way to do that is through strong and decisive action in Parliament.
Despite overwhelming evidence of the problem and a clear call for action from workers, employees and representative groups from across the sector, we are still waiting for the Government to respond, in stark contrast to the Scottish Parliament. I look forward to the response from the Minister, who I know cares about this issue, and hearing how she will respond to the pleas being made. There is a perfect opportunity to address this in this Bill. It is time for the Government to act; the time for waiting has stopped. I look forward to the Minister’s reply.
Baroness Neville-Rolfe (Con)
My Lords, I offer strong support for adding a new power to this Bill to try to stop the disgraceful assaults on retail workers. I am glad that speaking today links me to my old friends at the trade union USDAW and the British Retail Consortium. I own some retail shares, notably in my previous employer, Tesco, and I should also refer to my register of interests.
It has been a very difficult 18 months for store workers. They have been the heroes of Covid, responding magnificently by keeping food on the shelves and delivered to our homes throughout. They have had to keep going relentlessly and cope with the bewildering array of changing Covid rules and regulations, often at a time when they are short-staffed because of the impact of the pandemic.
Nearly 3 million shop workers face a rising threat of violence as a result of customer anger at mask wearing, shortages and irritating or changing store guidance on Covid. This has added to assaults from those challenged for trying to buy alcohol, knives and so on illegally, and also attacks from shoplifters. I remember well dealing with what is probably now a relatively minor case when I was working in Tesco at Brixton. The woman concerned had several jars of coffee up her trousers and struggled and bit as we tackled her.
As the noble Lord, Lord Coaker, mentioned in his compelling speech running through the long history of this problem, the British Retail Consortium says there were 455 incidents a day at stores in 2020, despite a huge investment in security measures such as body cameras, guards and panic alarms. A lot of this is related to wider criminal activity such as knife crime and drug-taking. It is a real worry for small shops: attacks can affect their viability and contribute to the disturbing rate of high street shop closures. It is also a huge issue for the larger retailers, which is why so many of their CEOs, including those of various Co-op groups, have come together to call for action in a recent letter to the Prime Minister. I will give an example: when I approached Tesco for an update, it said it faced over 1 million criminal incidents in 2020-21 and estimated that, on current trends, this would increase by another 20% this year unless something was done.
Lord Lea of Crondall (Non-Afl)
My Lords, I support the general thrust of what has been said. We have heard from a remarkable coalition that includes trade unionists and a former chief executive—I think that is the correct appellation—of Tesco. In one sense, it does not matter exactly how the amendment is worded; the important thing at the moment, speaking as a former trade union official, as noble Lords may know, is that something should be committed in principle by the Government. It should be left to Ministers, ultimately, to choose the exact wording, but we should make sure that this hugely important principle, backed up by a lot of day-to-day evidence—most notably from the noble Baroness, Lady Neville-Rolfe—is brought forward in some way. It should be acknowledged by the Minister, who has a good idea of the mood of the House on this.
Baroness Bennett of Manor Castle (GP)
My Lords, I shall speak to Amendment 263, to which I was pleased to attach my name. I thank the noble Lord, Lord Coaker, for tabling it and providing a very clear introduction. I welcome the support of the noble Baroness, Lady Neville-Rolfe, for the amendment as well. I should declare, since we are doing lots of declarations, that I am a supporter of the Institute of Customer Service “Service with Respect” campaign, to add to our collection of organisations involved in this process.
We have already covered this in some detail, so I want to add just a couple of points. The noble Lord, Lord Coaker, referred to the fact that legislation is being introduced in Scotland already, and it is important to stress that part of that is an aggravating offence—if people have been trying to enforce the law, for example on the purchase of alcohol, et cetera. That makes the very important point that we are asking retail workers, who are often very low-paid and may not have much in the way of protection, to enforce the law for us, and that needs to be acknowledged in the law.
A lot of this discussion has focused on how difficult things have been during the Covid pandemic, and that is obviously true, but there is a really important figure from the British Retail Consortium in 2019, so it is pre-pandemic. There were 455 incidents a day, up 7% on the previous year, so this is not just some Covid situation that might disappear should the pandemic disappear; this is a long-term trend. A recent survey, also by the British Retail Consortium, of 2,000 workers over 12 months showed that 92% had experienced verbal abuse, 70% had been threatened and 14% had been assaulted. This really has to be described as an epidemic—it is a word we hear a lot, but this is definitely very much the case.
I also stress—here I may depart from the noble Baroness, Lady Neville-Rolfe—that changing the law, which has been called for on all sides of the Committee, does not excuse employers from doing more, particularly large employers who have the resources to provide security. By the nature of my job, I very often travel late at night, having been speaking at a public meeting and catching the train home. I go into chain stores on those occasions and I often see very young workers, sometimes on their own, looking and clearly feeling very exposed and very much in danger. I think that often they do not have adequate security.
There is also a question to be asked, particularly of employers, about ensuring that these workers are paid properly, treated with respect and have decent conditions. That will affect the way the whole of society look at these workers, and, I hope, the way they get treated.
Amendment 263 is important. As has been widely said, there is a huge amount of support for it, but it does not excuse employers from doing much more. I also say that while I understand the impulse behind Amendment 264, I do not think that is the way forward. We know that we have a record prison population—it is something we have debated in other parts of the Bill—and that prison is not working, so just to have the knee-jerk reaction of, “Let’s make the sentences longer”, is not the answer. There has to be a recognition of the fact that these crucial workers need protection through some form of Amendment 263.
Lord Beith (LD)
My Lords, I very much agree with noble Lords who have said so much about the retail workers on whom we have depended so greatly and will continue to depend in the future and who face so many instances of assault and attack. The campaigns that this has generated show just how seriously we take this, but I have to ask, particularly in the light of Victoria Atkins’s commitment in the Commons, whether the Government have identified a serious gap in the law, filling which would alter the situation materially for the better, or whether the worst of the problem arises from inadequate police response to incidents. The noble Lord, Lord Coaker, quoted figures for that. Perhaps there is an inadequate police presence in areas where this kind of attack is prevalent, or perhaps the inadequacy comes, in some cases, from the Crown Prosecution Service about cases that should be brought to court.
This kind of attack is affecting retail workers in a number of different situations. Some of it is drug related, with people desperately trying to get money to pay for their drugs and attacking shopworkers when they are found stealing goods from a shop. Some of it is alcohol related and alcohol enforcement related, as the noble Lord, Lord Coaker, and the noble Baroness, Lady Bennett, have pointed out, whereby shop workers have simply been trying to enforce the law. Where I live at the border with Scotland the issue is more complicated because the law is different on either side of the border.
Some of it is even hate crime of which ethnic-minority shop owners have been the victims. That is so awful when one thinks of the incredible contribution that, for example, Ugandan and Kenyan Asians have made in providing retail services at all hours of the day and night in all sorts of communities, including in some of the most difficult areas. Those shop owners deserve our support and protection, but we need to know how best to provide that.
One my concerns about the amendments and the approach taken so far, which is perhaps a tribute to the effective campaigning of retail workers and their organisations and representatives, is that a number of other groups of people who deal with and serve the public are also exposed. My mind turns to the staff of estate agents, for example—the Suzy Lamplugh case is a vivid reminder. It is not clear whether such staff are covered by the retail workers’ provision. They may be, but I am far from certain. I also think of transport staff, housing officers, local authority planning officers and even parking wardens. It is sometimes seen as some kind of joke to laugh at parking wardens and at how angry people get at them. Any kind of harassment or attack on people who are serving the public is no joke at all and requires the attention of government.
As the noble Baroness, Lady Bennett, pointed out, however, that attention is not necessarily best served by simply putting in longer maximum prison sentences, thereby creating sentence inflation and generating far more expenditure on prison, which could perhaps be better spent on policing and community support of various kinds, including activities directed at young people in local communities who are drawn into violence. We need to look at what else we can do in terms of police response, CPS commitment and community support to support the staff who serve us.
If the Government have identified a significant gap in the law, a change to which would help those responsible for enforcement and protection, we would be interested to hear it. However, one way or another, we need to help those who are helping us.
Baroness Stowell of Beeston (Con)
My Lords, in some respects similarly to the noble Lord, Lord Beith, I come to this debate with an open mind in terms of the specifics of the amendments put forward by my noble friend Lady Neville-Rolfe and the noble Lord, Lord Coaker. I very much align myself with him and others who have spoken in that I am appalled at the assaults, attacks and abuse of people on the receiving end who work in stores of all kinds.
However, I will be interested to hear what my noble friend the Minister says as regards whether the law currently provides for these kinds of attacks. One of the things that I found extremely concerning in the briefing provided by USDAW and others was the lack of police response when shop workers were on the receiving end of an attack. When they contacted the police, there was little or no reaction. That is really troubling.
The only thing I want to add to what has been said relates to something that the noble Lord, Lord Coaker, touched on. I know that the noble Baroness, Lady Bennett, also referred to the fact that we are asking shop workers in many respects to uphold the law for us. However, there is another aspect to the role of shop workers and shopkeepers that we do not mention often enough and is important. They are community leaders and people in whom we should encourage a sense of authority for themselves. I want people who are doing these jobs to feel that they are holding a position of power. They are responsible for a public place and when they are at work they are in charge. They deserve our respect for that. I see them much more than just as service providers; they are standard setters. In local communities, in particular in local convenience stores, they can make an enormous contribution to the health of a community and the way in which local people feel about themselves.
If the Government are inclined to go down this route of legislating in the way that has been proposed—and even if they are not—I encourage the Minister that there should be some effort in conjunction with legislation to promote the importance of retail workers, not just in the way they provide a service to us but in the way they are leaders of their communities and important to our maintaining the social norms and standards that are crucial to the health of our society as a whole.
Lord Paddick (LD)
I was not going to speak in this debate but, very briefly, as the police have been mentioned, I should mention a meeting I had fairly recently with a police superintendent in London, who worryingly told me that the police were being made aware that there were a large number of solvable crimes, where people could be prosecuted, and the police no longer had the resources to pursue those offences. From what has been said in the debate, and from the briefing from USDAW, it is extremely worrying if offences are being committed against retail staff, where there is often closed circuit television of the perpetrator, yet the police still do not have the resources to prosecute those offences. As we all know, if somebody feels they can get away with a crime, or word gets around that you can go to a particular store and get away with it because the police will not do anything, it encourages more people to engage in the offence.
Baroness Jolly (LD)
I thank the noble Lord, Lord Coaker, for his clear outline of the problem at the beginning of the debate. That was really helpful. I support the amendments creating the offences for assaulting a retail worker.
I look at this problem from a completely different perspective. Apart from the four years I was at university, I have spent all my life in really rural settings, so I identify with the weekly trip to the supermarket. We have a village shop which doubles up as the post office, but I cannot walk there because the roads are too narrow so I have to drive. It is a different sort of world. I identify with this from when I was at university in Leeds too; the corner shops at the end of terraces were exactly the same sort of set-up as a rural shop. But they had their problems. CCTV has now appeared in these shops, which was never there before. There was a level of trust, which is slightly eroded when people move into the village and behave in a different way. This sounds like the 1950s, and sometimes it is.
Whether we are talking about cities or villages, there are many small shops still, and a lot of them have post offices which keep them open. We should not forget that, because they serve a lot of people: where I live, a lot of people do not have cars, and older people really prefer going to the small village shop and still collect their pension there. But a single-handed shop with limited security and often no cameras is a danger, and these shop workers are vulnerable to assault, even in areas where you think everybody knows everybody else’s business. Will the Minister tell us, when she sums up, what sort of recommendations or advice are given to such small shops by the local police? Is there any government guidance to ensure that their safety and that of their workers are protected?
I thank the ACS for its really helpful background briefing. The two amendments are really interesting: one in the name of the noble Lord, Lord Coaker, is about the offence of assaulting a retail worker, and the other, in the name of the noble Baroness, Lady Neville-Rolfe, is much the same. Something should come back: whether it comes back from the Government or from amendments tabled by Members, we really need to put a marker down before the Bill finishes on the issue of assaulting shopworkers. It might be quite sensible if those who have added their names to Amendments 263 and 264 could sit down together to craft an amendment that would fit with all the points that were made in this short but really quite informative and well-informed debate, and then bring something back for Report.
Baroness Williams of Trafford (Con)
My Lords, I am very grateful to the noble Lord, Lord Coaker, and my noble friend Lady Neville-Rolfe for tabling their amendments, and for the opportunity that I have had to discuss their amendments with them before today. Both have spoken forcefully on behalf of retail workers, and noble Lords will have witnessed the strength of their convictions and the deep basis of knowledge from which they speak. I cannot let this opportunity go by without paying tribute to the noble Lord, Lord Kennedy of Southwark, who has—I could say harangued me for four years—shown such tenacity on this matter that he deserves a mention.
I start by echoing the comments made in the House of Commons by the then Minister for Safeguarding, in showing my support and respect for all those working in the retail sector. As my noble friend Lady Stowell of Beeston said, they have shown such tireless dedication as public servants, really, providing essential services to the public throughout the pandemic. I totally identify with the comments of the noble Lord, Lord Coaker, about going to the shops being the highlight of the day during the pandemic. It became a daily ritual for our household, certainly.
It is essential that we all feel safe at work, which is why assaults on any worker providing a service to the public is clearly unacceptable. It is really important that where such assaults or abuse occur, the perpetrators are brought to justice. In the Commons, Minister Atkins committed to actively consider this issue and that remains the Government’s position, but as part of that process of consideration I very much wanted to hear and then reflect on the debate today. I welcome the fact that those noble Lords who have contributed today spoke with such clarity and strength of feeling and gave us very good direction.
I want to say a bit more about the current position and the factors that the Government are weighing up as we determine how best to proceed in this area. The noble Lord, Lord Beith, asked about the gap in the law. Obviously, a wide range of offences already exist covering assaults on any worker, including retail workers, and they include offences such as common assaults. The example that my noble friend Lady Neville-Rolfe gave could encompass grievous bodily harm or, indeed, actual bodily harm, harassment and other public order offences, all of which criminalise threatening or abusive behaviour intended to harass, alarm or distress a person.
Furthermore, the courts have a statutory duty to follow sentencing guidelines, which state that it is an aggravating factor for an offence to be committed against a person who works in the public sector or who is providing a service to the public. This means that any offence that occurs against a victim providing a service to the public, including those working in the retail sector, will be considered by the court as meriting an increased sentence. I have also heard the comments and concerns about the provisions in the Bill that seek to increase custodial sentences—including the point made by the noble Lord, Lord Beith, about sentence inflation—and it is crucial that we take into account the impact on our courts and prisons, as he said, when considering whether to increase sentences.
At Second Reading, the noble Lord, Lord Rosser, asked what meetings Ministers had held over the summer with businesses, trade unions and groups representing retailers to discuss this issue. The Home Office has undertaken extensive consultation on the subject of violence and abuse towards retail workers, and discussions on this subject go back several years, as I have previously stated. Similar amendments were tabled to previous Bills such as the Offensive Weapons Bill, which is why the Government committed to a call for evidence on the levels of violence and abuse faced by retail workers.
That response was published in July last year and it increased our understanding of the problems faced by retail workers. A programme of work has been under way through the National Retail Crime Steering Group, which the Minister for Crime and Policing co-chairs with the British Retail Consortium. The steering group brings together the Government, retailers, unions and trade associations, the Association of Police and Crime Commissioners and the police-led National Business Crime Centre to make sure that the response to retail crime is as robust as it can be, as well as ensuring that key crime drivers, including substance misuse, are comprehensively considered. I hope that goes to the point made by the noble Baroness, Lady Jolly. It has been and continues to be an important forum for discussions on the causes of violence and abuse in the retail sector and for working together to find solutions and provide support to retailers.
The matter of violence and abuse against retail workers has been the focus of the National Retail Crime Steering Group for the past 18 months. The Home Office is leading a programme of work designed as a direct response to the call for evidence and agreed by the steering group and wider retail sector. To date, six task and finish groups have been established to develop practical resources to support retailers and their employees.
Earlier this year, the Home Affairs Select Committee conducted an inquiry into violence and abuse towards retail workers. In response, retailers, unions and trade associations put forward evidence about their experiences of violence within the sector. The Select Committee recommended that the Government consult on the scope of a new offence, recognising the particular pressure on those in occupations where they are asked to enforce the law, and taking into account the provisions of the Protection of Workers (Retail and Age-restricted Goods and Services) (Scotland) Act 2021, which came into force in August.
As I have set out, the Government have engaged extensively with the retail sector and the police. In response to the points made by the noble Lords, Lord Beith and Lord Paddick, the police have recruited 11,000 of the targeted 20,000 increase to their number. The government response to the HASC inquiry makes clear the Government’s commitment to address this issue and to take into account the legislation in Scotland.
I assure noble Lords that the Government are continuing to consider whether changes, including legislative changes, are needed and will reflect carefully on the debate today. On the basis of that very firm undertaking that the Government are considering as a matter of urgency how best to balance those many issues, I hope the noble Lord will feel happy to withdraw his amendment.
Lord Coaker (Lab)
I thank the Minister for her response. I am an optimistic person by nature and I thought that there were grounds for optimism in the way in which the Minister talked about weighing up the options and looking at the various ways forward, including—and this was as a really important remark that noble Lords may have heard—“legislative change”. That is the key thing. A number of comments were made by various noble Lords. The Minister will have heard them. In the interests of time, I shall leave it there, but we will look forward to the Government coming forward with something on Report, or us tabling our own amendments. In thanking noble Lords for their support, I beg leave to withdraw the amendment.
Lord Coaker
“Restorative justice
The Secretary of State must, every three years—(a) prepare an action plan on restorative justice for the purposes of improving access, awareness and capacity of restorative justice within the criminal justice system, and collecting evidence of the use of restorative justice,(b) lay a copy of the action plan before Parliament, and(c) report on progress in implementing any previous action plan to Parliament.”Member’s explanatory statement
The amendment aims to ensure that access to restorative justice services improves over time for the benefit of victims and to reduce crime.
Lord Coaker (Lab)
My Lords, a couple of hours ago I received apologies from the noble Baroness, Lady Meacher, who is unable to be with us for personal reasons and has been unavoidably detained. I hope noble Lords will allow me to read the comments that she would have made. As I say, the noble Baroness, Lady Meacher, apologises to the Committee, noble Lords and the Minister for not being here this evening to move this amendment. She has been, as I said, unavoidably detained and I know the Committee will forgive her absence.
Amendment 265 aims to ensure that access to restorative justice services improves over time, for the benefit of victims and to reduce crime. The amendment would require the Secretary of State to prepare an action plan on restorative justice and for that plan to be laid before Parliament, alongside a report on the progress made in implementing earlier government action plans. In doing so, it is the hope of the noble Baroness, Lady Meacher, that the Government will consider restoring ring-fenced funding for restorative justice.
Between 2013 and 2016, restorative justice received support from the Ministry of Justice via ring-fenced funding to PCCs. Since the change in 2016, in which the ring-fence was dropped, access to RJ has reduced in some areas to below 5% of previous levels. The APPG on Restorative Justice reported in its inquiry published in September this year that this
“has led to a ‘postcode lottery’ for victims of crime”,
with access varying hugely depending on which PCC or local authority area the victim happens to be in.
In 2014, the coalition Government made a commitment in their restorative justice action plan that every victim of crime should be made aware of RJ services. The plan committed to developing
“a more strategic and coherent approach to the use of restorative justice in England and Wales.”
In the Conservative Government’s 2018 update of the plan, the top priorities remained ensuring equal access to restorative justice for victims at every stage of the criminal justice system and improving awareness of RJ, how it works and how to access it. The APPG inquiry found that there was a lack of understanding of restorative justice and what a victim was entitled to, not only among the public but among professionals in the criminal justice sector.
I ask the Minister whether the Government hold statistics on how many victims have been offered restorative justice as part of their experience of the criminal justice system. What actions have been taken towards the priorities outlined in 2018 and when do the Government plan to publish an updated action plan? So often in this Bill, our debate has turned to the importance of prevention, and stopping offending and reoffending to break that cycle. The current Secretary of State for Justice listed preventing reoffending as one of his top priorities for keeping the country safe. Evidence has shown that access to quality restorative justice programmes is effective in reducing reoffending. In 2016, the Home Affairs Select Committee found that
“there is clear evidence that restorative justice can provide value for money by both reducing reoffending rates and providing tangible benefits to victims.”
I will not keep the Committee but, in coming to a close, will say that the noble Baroness, Lady Meacher, particularly wished to highlight that this amendment does not propose anything new or radical. It merely seeks to return to the funding arrangements and strategic direction in place prior to 2016. I look forward to the Minister’s reply, which I hope will be encouraging on the Government’s commitment to restorative justice. I beg to move.
Baroness Harris of Richmond (LD) [V]
My Lords, I speak in support of Amendment 265. I am very sorry that the noble Baroness, Lady Meacher, is not able to be in the Chamber.
Many years ago, when I was a magistrate and at the same time chair of my police authority, I wondered how we could bring in the concept of restorative justice. It was not an option for us then as it did not appear in our guidelines—that might have changed, I do not know. It was apparent, though, that repetitive cautions given to young offenders simply were not working. Something needed to change.
I became interested in restorative justice because of a remarkable chief constable, Sir Charles Pollard, who was then chief constable of Thames Valley Police. He had been advocating restorative justice for some time. He was extremely well supported by the chair of the police authority, Mrs Daphne Priestley. I thought it was a very interesting and potentially life-changing intervention for some young offenders, and so it has proved to be.
Restorative justice aims to foster individual responsibility by requiring offenders to acknowledge the consequences of their actions, be accountable for them and make reparation to the victims and the community. Initially for use with young offenders committing minor crimes, it quickly caught the imagination of communities, which liked the idea of a victim being able to confront their offender, who was made to realise the impact of their criminal behaviour. It is done with seasoned practitioners who have a wealth of experience in this discipline, as it needs to be a formal procedure. They have to ask the right questions in the right way for there to be a successful outcome, which would be when the offender realises the harm she or he has done and makes some sort of reparation to the victim. Meeting face to face, where both sides agree to that, can be a formative solution to an otherwise potentially serious punishment, even jail.
In London trials, 65% of victims of serious crime said that they would be happy to meet their offenders and talk about how that had affected them. The impact of this intervention has far-reaching benefits for everyone involved. Over the years, the success of the restorative justice model has worked alongside police forces, local authorities, the Prison Service, courts and schools. It has helped reduce permanent exclusions in schools, and in a sample case in Lincolnshire, in the first year of using this system the restorative service, as it is called there, worked on 53 cases. This was extended subsequently to 135 cases and became an integral part of the Behaviour Outreach Support Service there—BOSS—in which restorative justice sits with its partners.
Restorative Solutions, established by Sir Charles Pollard and Nigel Whiskin in 2004, is a not-for-profit community interest company that I think the Government need to contact for help with understanding just how important restorative justice can be to the benefit of victims of crime, and its potential to reduce criminal behaviour. It needs properly financing, of course, and to date that has not happened, so if the Government are really intent on reducing crime and helping victims, as they say they are, I suggest that this is absolutely the right solution for them to promote.
Viscount Brookeborough (CB)
My Lords, I support this amendment. I apologise for not speaking on the subject earlier. The Bill is far too complicated for me as a whole. I saw this in the paperwork today and, surprisingly, I am here so I thought that I ought to say something.
I was on the first Northern Ireland Policing Board. One of the subjects that came up to us was restorative justice as it was being practised in Northern Ireland. The origins of it are very important. In our case, it came under the two communities and terrorism. Post the peace process and ceasefire, these local communities were trying to police themselves—partly because they rejected the police completely. Yes, they dealt out punishment beatings, kneecappings and far worse, but what was interesting was that, although the communities might not have liked the punishments, they began to see a reduction in bad behaviour on the streets.
When it came in front of the policing board, we looked at other countries. The fact that it came out of terrorism in Northern Ireland is not an indication that it would be no good or would not fulfil its true potential in England, because we looked at Australia, Canada, New Zealand and America, where it had been really very successful.
There was then the idea of how to get this to be more in line with justice, because, naturally, the Department of Justice and—I am not accusing them of this—judges, and to a certain extent senior policemen, were reluctant to see anything that was outside their immediate world taking over something of it. We went down the line of bringing it into being an official practice, and that took quite a lot of nerve.
But it is extraordinary, if you actually go and visit, to see what is going on. The most important thing is that restorative justice is victim based, not perpetrator based—that it is not a soft touch for the perpetrator. I will not speak for long on this, because I have not even prepared. But it is not just a way of solving things; it does a lot more. The victims are incredibly satisfied with restorative justice. A survey produced when they were doing a seminar on the EU day of the victim in February 2019 said that 85% of victims were satisfied with the outcome, and 69% of perpetrators did not continue. The bonus for society is multifaceted: fewer people get convictions for what may, at times, be on-the-spot bad behaviour or, as we have seen, 69% of them do not misbehave again, so they have a clearer record for future employment. It keeps them out of short periods of detention. It was used originally for youths, and we do not have enough well-supervised room for youths in detention. So restorative justice helps the victims, helps the perpetrators remarkably, and is very good for society.
In the 2016-17 Session, the House of Commons Justice Committee came out with its report on restorative justice and supported it. The committee particularly supported looking at Northern Ireland. It is really nice when we can say that you should look at something positive from us in Northern Ireland—however, do look somewhere else.
While we have been in this Committee, because I was panic-struck about having anything to say, I googled “restorative justice”. We hardly need this debate. There is not a bad word about it, and there are so many pages I gave up after two or three and wrote down a couple of notes on it. But this is something that successive Governments—including Labour when they were in power—have not given true support to.
What about our prison population? What about sending people into detention, the “college of crime”, when restorative justice has the potential to be such a success? As I said, I think this debate is unnecessary. Every single person in your Lordships’ House and everybody outside can google it and have a look. If the justice side, judges and some senior policemen are still slightly careful about it because it seems to be out of their hands, they may need a bit of persuading.
But funding is an issue, and I have just heard—because I have not looked at it—that the funding was reduced. This is madness. We know that budgets are a problem, especially after everything we have been through. They are a problem for the police, for social events such as this and for justice. But this is madness. This is cutting off a not very great budget which would be saving us. The figure is that every £1 spent has saved £8. I do not think that is very well substantiated, but there is a big payback, and the young people of this country—and we are moving on to adults in Northern Ireland—earn the support for a system that is socially good and good for our population.
Lord Paddick (LD)
My Lords, again, I was not going to speak in this debate, but it is important for me to share my professional experience of this. I once worked with Professor Larry Sherman, who was a leading academic on restorative justice at the time, on a pilot scheme in the Metropolitan Police. In support of what the noble Viscount has just said, two major things came out of that pilot.
One was about victim satisfaction. Obviously, the process was voluntary—victims were not made to confront their attacker if they did not want to—but many felt so much safer, for example if they had been mugged in the street, having met their attacker face to face than victims who were attacked by some anonymous person. They understood more about their attacker from that face-to-face meeting, so it is good in terms of victim satisfaction. This may be counterintuitive to members of the Government who feel that the public might see it as a soft option, but victims really benefit from this.
The other thing was the impact on perpetrators. Larry Sherman rightly pointed out that many offenders, particularly young ones, appear in front of a court but they never say anything. They plead guilty. They have a solicitor or a barrister representing them. They sit at the back, disengaged from the whole process, which happens without them participating in it at all. It has no real impact on them—apart from the custodial sentence at the end of it, perhaps. They do not quite understand why they end up in custody because they have not participated in the process at all. On the contrary, with restorative justice, they sit opposite the victim and the victim tells the perpetrator how that offender made them feel. This has a salutary effect on the perpetrator and their future offending behaviour.
I just wanted to tell the Committee about that experience because other noble Lords have not mentioned those two aspects of restorative justice.
Baroness Bennett of Manor Castle (GP)
My Lords, we have already had an extensive debate so I will be brief. I must note that I have heard my noble friend Lady Jones of Moulsecoomb talk about this issue often; it is something that she is extremely passionate about. I have no doubt that she would have attached her name to this amendment had space been available under our systems.
We have heard some terribly powerful contributions, particularly from the noble Baroness, Lady Harris of Richmond. I really hope that the Government were listening. I am not sure that the point has been made that restorative justice should be the foundation of our justice system. It should be fundamental to what it is all about. At the moment, by contrast, it seems to be an afterthought added on at the end. This means that we have seen a loss of funding for some really practical things, such as restorative justice training for all prosecutors, including the independent Bar, so that they can better identify opportunities for restorative justice when handling cases. We also need to see restorative justice training for magistrates and judges so that they can be fully involved in facilitating it. Just as judges have a central role in enabling alternative dispute resolution in the civil courts, in the criminal courts, they should promote and encourage a restorative approach all the way from the initial arraignment right through to sentencing.
What we are talking about here is coming out after the awful event of a crime and repairing, restoring and making things better. We know well from our criminal justice system—a system at the end of which everyone comes out feeling worse about it—that what we have at the moment is not working for the people involved. It is not working for victims. It is not working to provide change for perpetrators. It is not working for the entire community.
Lord Blunkett (Lab)
My Lords, I realise that I am breaching protocol because I was not here at the beginning of the debate on Amendment 265. I apologise profusely to the House and to the Minister. On a lighter note, one day we will have a Braille annunciator and an audible signal that I can pick up. I would not be here at this time of night if I did not care about this proposition and had not pledged to the noble Baroness, Lady Meacher, that I would support it, so please forgive me; I shall be incredibly brief. I hope that the noble Baroness is recovering well.
Some years ago, I took part in what could be described as a slightly bizarre and almost unreal television programme, “Banged Up”. It was a five-part series in which real ex-prisoners, real ex-offenders, real victims and an ex-governor, who is now a criminologist at the University of Birmingham, took part in an experiment to see how people would react to understanding what they have done and being able to relate to their victims. It was remarkable: it brought home to me, and I hope to all those viewing, that restorative justice could make a difference to the victim and how they felt and to their future, and, crucially, to the perpetrator, in understanding the impact of their crime and how to then redeem themselves and put things right. It was crucial to both their futures.
I commend the initiative in demonstrating in this short debate how vital it is to remember that putting things right, and getting restorative justice to ensure that perpetrators do not repeat their crime, is far more important than punishment.
Earl Attlee (Con)
My Lords, I agree with everything that has been said. One of the most obvious applications for restorative justice would be in the aftermath of a road traffic accident. I touched on this during our debates on road traffic offences. The difficulty is that, in motor vehicle insurance, the contract prohibits the parties from discussing the accident at all, making it impossible to use restorative justice for road traffic offences related to accidents. Can my noble friend the Minister consider this and write to me on the point? I do not expect a reply right now.
Viscount Brookeborough (CB)
Restorative justice is a very wide issue, and one should not think that because it does not work for road traffic accidents it does not work. Furthermore, it is done only with the agreement of the parties involved.
Lord Marks of Henley-on-Thames (LD)
My Lords, we welcome this amendment and the opportunity to discuss restorative justice. We are very grateful to the noble Lord, Lord Coaker, for relaying the views of the noble Baroness, Lady Meacher, who has a long-held commitment to restorative justice that is well known.
We fully support the amendment and are concerned that the Government should take in how important restorative justice is felt to be in this House. This debate has given us the opportunity to make that clear. We were privileged to have the explanation of the reasons for restorative justice and the comprehensive account of its birth and development from my noble friend Lady Harris, who set out, from her experience of police work and as a magistrate, how restorative justice has developed and its value.
The amendment is important because we—some of us, anyway—have concerns that, although there is this commitment around the House, there may be a danger of progress stalling. That is why it is so important that there should be a call for the preparation of an action plan, that it should be laid before Parliament and that there should be a report on the progress on restorative justice.
Members of the House will have been interested to hear the account of the noble Viscount, Lord Brookeborough, on how restorative justice developed in Northern Ireland from a state of great hostility, where real potential enemies were confronting each other, and how restorative justice became reflective of community justice as perpetrators and victims came into contact. He made the point that this was very much not a soft option but was victim based, and that analysis from the circumstances in Northern Ireland was, I felt, reflected by the analysis of my noble friend Lord Paddick, who gave the history of restorative justice in London and dealt with the achievement of victim satisfaction and, interestingly, a greater feeling of safety on the part of victims. He also talked of the benefit for perpetrators in the contact between the victim and the perpetrator; that was a point made by the noble Lord, Lord Blunkett, who was one of the signatories to the amendment.
I will be very interested—we will be very interested—to hear the Government’s response, which we hope will give us an indication that the Government take restorative justice as seriously as the speakers this evening do and that their commitment to it will be increasing and continuing.
Lord Wolfson of Tredegar (Con)
My Lords, I thank the noble Lord, Lord Coaker, for proposing the amendment in the name of the noble Baroness, Lady Meacher, who is unable to be with us this evening. She spoke eloquently at Second Reading about the benefits of restorative justice, and I am very sorry that she is not in her place this evening. I am sure that I speak for the whole Committee in wishing her well. She did, however, have a meeting with me on this topic, and I record my thanks to her for her time and for the discussion. She expressed concern that the Bill did not include provision for restorative justice. The amendment is trying to fill that perceived gap by requiring the Home Secretary and the Justice Secretary to publish an action plan for restorative justice every three years.
I am grateful to the noble Baroness, Lady Harris of Richmond, for her support for restorative justice. I agree that, in the right circumstances, it can have far-reaching benefits. I have heard and felt the mood of the Committee on this point, but the truth is that I did not really need any persuading as to the importance of restorative justice. It can bring those harmed by a crime and those responsible for that harm into communication, and it can help everyone affected by the crime to play a part in repairing the harm; that is commendable. The Government support restorative justice where it can be suitably used.
However, with respect to the noble Baroness, Lady Bennett of Manor Castle, I would draw a distinction between civil cases and criminal cases. We have to remember that in a civil dispute—this is part of the answer to the road traffic point, but I will write to my noble friend as well—there are two parties before the court. I can settle my case on whatever terms I want if the other person agrees. When it comes to crime, there is a public interest; we prosecute in the name of the public. We do not allow victims to determine always whether the offender serves a punishment or not. I am not saying that restorative justice is not applicable, but we have to remember that there is a different set of criteria and principled underpinnings to our civil justice system and our criminal justice system.
Lord Coaker (Lab)
I thank the Minister for his reply and for the way in which he tried to answer the various questions that noble Lords raised. We have heard from many people about the importance of restorative justice. This is an important argument and debate that will not go away. It remains a priority for all of us and I am sure others will take this forward, including the noble Baroness, Lady Meacher. With that, I beg leave to withdraw the amendment.
Lord Cashman
“Disregards and pardons for convictions etc. of certain offences
(1) The Protection of Freedoms Act 2012 is amended as follows.(2) In section 92 (power of Secretary of State to disregard convictions or cautions)—(a) in subsection (1)(b), omit “or”,(b) in subsection (1)(c), at the end insert “or”,(c) after subsection (1)(c), insert—“(d) any other offence which falls within subsection (1A),”,(d) after subsection (1), insert—“(1A) An offence falls within this subsection if the offence— (a) regulated, or was used in practice to regulate, sexual activity between persons of the same sex, and (b) either—(i) has been repealed or, in the case of an offence at common law, abolished, or(ii) has not been repealed or abolished but once covered sexual activity between persons of the same sex of a type which, or in circumstances which, would not amount to the offence on the day on which this subsection comes into force.(1B) Where an offence of the type described in subsection (1A) covers or once covered activity other than sexual activity between persons of the same sex, the offence falls within subsection (1A) only to the extent that it once covered sexual activity between persons of the same sex.(1C) In this section, “sexual activity between persons of the same sex” includes—(a) any physical or affectionate activity between persons of the same sex which is of a type which is characteristic of persons involved in an intimate personal relationship,(b) conduct intended to introduce or procure such activity.”,(e) in subsection (3)(a), before the words “the other person” insert “in respect of an offence mentioned in subsection (1)(a)-(c)”,(f) in subsection (3)(b), substitute the full stop with “, or”,(g) after subsection (3)(b), insert—“(c) in respect of an offence that falls within subsection (1A) the conduct constituting the offence, if occurring in the same circumstances, would not be an offence on the day on which this subsection comes into force.”” Member’s explanatory statement
The purpose of this new Clause is to extend the current disregard and pardon schemes in England and Wales to enable individuals who were convicted of or cautioned for offences because of engaging in same-sex sexual acts, of a kind that would be lawful today, to apply to have a conviction or caution disregarded and, if successful, be pardoned.
Lord Cashman (Non-Afl)
My Lords, I speak in favour of Amendments 266 and 267 and pay tribute to the work of my noble friend Lord Lexden and Professor Paul Johnson of York in doing so. Due to the lateness of the time I want to focus exactly on what our amendments do: they are focused on the pardons and disregards scheme. In 2012 the scheme was introduced to enable those living with a caution or conviction for a now-repealed homosexual offence to have that caution or conviction disregarded. In 2017 a further scheme was introduced to provide those so cautioned or convicted, both living and dead, with a pardon. A pardon, aside from its legal status, is a strong, symbolic apology to each and every person who has been wronged.
However, the disregard and pardon schemes in England and Wales are significantly flawed because they encompass only a small fraction of the laws that, over the decades and centuries, have immiserated the lives of gay and bisexual people. For five years I have worked closely with my noble friend Lord Lexden and, as I said, with Professor Paul Johnson at the University of York.
Significant problems, as I said, remain in this disregard and pardon scheme. The amendments before your Lordships would cover, for instance, now-repealed criminal offences such as the offence of solicitation by men, which was used to entrap gay and bisexual men, sometimes for doing nothing more than chatting up another adult man. The amendments would also cover the offences in the repealed service discipline Acts, which were once used to prosecute and punish consensual same-sex relationships. Those living with cautions or convictions for these and other relevant offences would be able to apply for a disregard and, if successful, be pardoned. Those who have died will be posthumously pardoned.
It is important that I am absolutely clear on one point: no one who was cautioned or convicted in respect of conduct that would be an offence today would be able to attain a disregard or receive a pardon. Our amendments to the Bill contain the strongest safeguards to ensure that those who committed crimes that today remain crimes cannot take advantage of, or benefit from, the disregard and pardon scheme. Equally, the extension of the disregard scheme that we propose means that it should be decided on a case-by-case basis by the Secretary of State, who would grant a disregard only if satisfied that the conduct in question would not be an offence today.
I could speak longer and in greater detail on crimes that have been perpetrated against homosexual men and bisexual men over 500 years, but I will say nothing more. I beg to move the amendment.
Lord Lexden (Con)
My Lords, I endorse all that my noble friend Lord Cashman has just said. We have been close allies, as he mentioned, for five years, in a sustained campaign to bring far more gay people within the scope of a hugely important scheme, through which they can attain disregards and pardons for offences that have been rightly overturned by Parliament. The House will understand how earnestly we hope that the end of our campaign is at last in sight.
Our amendments include provisions originally incorporated in amendments to the Armed Forces Bill, now completing its passage through the House. The provisions in question have now been embodied in these amendments. This has been done on the advice of the two Ministers concerned—my noble friends Lady Goldie and Lady Williams—with whom most helpful conversations have been held.
I refer to the provisions that relate to the Armed Forces. More gay members of our Armed Forces need the belated release from past injustice that our proposal will provide. Many were routinely punished, sometimes with imprisonment, under the service discipline offences, for actions such as disgraceful conduct for engaging in consensual same-sex activity, even when, after 1967, this was perfectly legal for civilians. They must now have the redress that our amendments would provide. Medals have been restored to former gay service personnel. Their reputations must be fully restored, too, by the removal of the stains that they should never have borne in the first place.
It was through initiatives in this House that the disregard and pardon scheme was significantly extended, five years ago. It is immensely gratifying to know that wide support exists across the House today for the scheme’s further enlargement to bring redress to many more gay people who have suffered grave injustice, particularly former gallant members of our Armed Forces, who served our country in peace and in war.
Baroness Bennett of Manor Castle (GP)
My Lords, I rise to briefly and extremely humbly speak on behalf of my noble friend Lady Jones of Moulsecoomb, who signed Amendment 266. I am greatly honoured to follow two such champions of this matter of undoing great injustices of the past.
I want to record our support for this and also to ask the Minister a question—to which I do not expect an answer now. These clauses provide for people to apply. Why can we not have a situation where we go through, find and identify these case and wipe them clean? That is the question I was asked to ask, and I am asking it. I do not necessarily expect an answer now, but I am putting it on the record.
Lord Paddick (LD)
My Lords, we support these amendments, so ably proposed by the noble Lord, Lord Cashman, supported by the noble Lord, Lord Lexden. I also pay tribute to the Minister for her sympathetic approach to these issues over the years. These offences should never have been offences in the first place. It therefore makes complete sense that, if people were convicted of such an offence and they apply to have a conviction or caution disregarded, and if that application is successful, they should be pardoned. Of course, deceased persons falling into this category cannot apply to have a conviction or caution disregarded, but they should be able to receive a posthumous pardon if the offence qualifies. It has taken 500 years to get to this stage and the Government have been making progress on these issues. These are the final pieces of the jigsaw and we support them.
Lord Ponsonby of Shulbrede (Lab)
My Lords, my noble and learned friend Lord Falconer also added his name to this amendment. We clearly support the amendments. I pay tribute to my noble friend Lord Cashman and the noble Lord, Lord Lexden, who I understand campaigned for decades on this issue. I thought it was quite moving, if I may use that word, to hear the noble Lord, Lord Lexden, saying he earnestly hoped that he was coming towards the end of his campaign. I hope he is right and that the Minister may be able to give him some comfort in that respect. Everybody who has contributed to the debate thinks this is a thoroughly appropriate amendment and, even though it has been a very truncated debate, the passion and the sense of finality have come through, and I very much hope that the Minister will give a suitable response.
Baroness Williams of Trafford (Con)
My Lords, it is about three minutes to the witching hour and I am absolutely delighted to be able to respond on behalf of the Government to these amendments. I and the Government are committed to enabling those with historical convictions for decriminalised homosexual conduct to apply to have their convictions disregarded. To answer the noble Baroness, Lady Bennett of Manor Castle, in discussion with the noble Lord, Lord Cashman, Professor Paul Johnson and my noble friend Lord Lexden, we felt that this was the neatest way to do it, as opposed to any other way. We have been actively exploring whether further offences can be brought within the scope of the scheme, to enable more people, both civilians and ex-service personnel, to benefit from it.
I really want at this point to pay tribute to my noble friend Lord Lexden and to the noble Lord, Lord Cashman, who is my noble friend, and to Professor Paul Johnson at the University of York for his expertise on this issue. I am very grateful for the conversations we have had on these amendments and similar amendments to the Armed Forces Bill. I am also grateful to the noble Lords for reiterating their commitment during Committee to work with the Home Office and the MoD on the best way forward for achieving our joint desire to redress this historic injustice.
We accept that the current scheme may be too narrow, as it is essentially confined to convictions for the now-repealed offences of buggery and gross indecency between men, but, as noble Lords have indicated, other now-repealed offences were also used to unfairly target gay men and women simply because of their sexuality. In further righting these historic wrongs, we need to ensure that any disregards in respect of additional offences meet the established legal criteria to ensure that necessary safeguards are upheld—this is something we have agreed and that the noble Lord, Lord Cashman. has outlined tonight. The disregard scheme was deliberately and carefully designed in a way that ensures that the Home Office does not inadvertently disregard convictions or cautions for behaviours which are still illegal today or which involved other illegal behaviours, such as underage or non-consensual sex or sexual activity in a public toilet, which is still an offence under Section 71 of the Sexual Offences Act.
Lord Cashman (Non-Afl)
My Lords, I thank all noble Lords who have spoken and pay tribute to the Minister, my noble friend Lady Williams. Brevity is the soul of wit, but tonight we have proven that it can also deliver that which is right and just. We will await the outcome of discussions and, as one would expect, reserve the right to bring forward proposals on Report if necessary. I beg leave to withdraw the amendment.
Police, Crime, Sentencing and Courts Bill
Monday 22nd November 2021
(2 years, 5 months ago)
Lords ChamberRead Full debate Police, Crime, Sentencing and Courts Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 40-XI Eleventh marshalled list for Committee - (22 Nov 2021)
Lord Falconer of Thoroton
“Video recorded cross-examination or re-examination of complainants in respect of sexual offences and modern slavery offences
(1) Section 28 of the Youth Justice and Criminal Evidence Act 1999 comes into force in relation to proceedings to which subsection (2) applies on the day on which this Act is passed.(2) This subsection applies where a witness is eligible for assistance by virtue of section 17(4) of the Youth Justice and Criminal Evidence Act 1999 (complainants in respect of a sexual offence or modern slavery offence who are witnesses in proceedings relating to that offence, or that offence and any other offences).(3) This section has effect notwithstanding section 68(3) of the Youth Justice and Criminal Evidence Act 1999.”Member’s explanatory statement
This new clause would bring section 28 of the Youth Justice and Criminal Evidence Act 1999, which provides for the cross-examination of vulnerable witnesses to be recorded rather than undertaken in court, fully into force for victims of sexual offences and modern slavery offences.
Lord Falconer of Thoroton (Lab)
My Lords, Section 28 of the Youth Justice and Criminal Evidence Act 1999 allows for the cross-examination of vulnerable witnesses and victims of adult sexual assault to take place separately from the trial. The purpose of this provision—following Section 27, which allows evidence in chief to be given before the trial—is to allow a victim of adult sexual assault to give their evidence in chief and be cross-examined in a period quite shortly after the incident. It means that they do not have to wait a very long time for what will be a terrible ordeal. It means that they give evidence at a point when the events are only recent, rather than after a long period has gone by.
There is nobody, I think, who does not regard these provisions as beneficial. The purpose of this amendment is to ensure that they are as available as possible throughout the Crown Court estate in England and Wales. My understanding of the position is that they are available in respect of the victims of adult sexual assault only in certain specified Crown Courts in England and Wales. This amendment seeks to ensure they are available everywhere and as soon as possible, by saying they would be, in effect, available on the day this Bill becomes law.
It has been said that one of the reasons for not making the provisions available is that they require judicial resource—you need a Crown Court judge in order to hear the evidence, even though it is separate from a trial. It strikes me as very odd that adult sexual violence is not a priority of the Crown Courts. If judicial resources are the problem, my suggestion would be that making resources available to hear the victims of serious adult sexual assault should come sufficiently high up the priorities so that there is a judge available to deal with it. On that basis, I beg to move.
Lord Thomas of Gresford (LD)
My Lords, I very much understand the impatience of the noble and learned Lord, Lord Falconer, for the introduction of video recordings of cross-examination in cases involving sexual offences and modern slavery. It is important that evidence in such cases is given early and without pressure. However, I have some queries about the amendment.
The Government have introduced by stages these provisions under Section 16 of the Youth Justice and Criminal Evidence Act 1999 for witnesses
“under the age of 18 at the time of the hearing”
and witnesses suffering “from mental disorder” or
“a significant impairment of intelligence and social functioning.”
The section also provides for witnesses with a physical disability. Various courts have been permitted to hear evidence in these circumstances, culminating in March of this year, when the provisions were extended to Preston Crown Court. But it was only on 30 September—six weeks ago—that the provisions were extended under Section 17(4) for complaints in respect of a sexual offence or a modern slavery offence. Only four courts were involved—Durham, Harrow, Isleworth and Wood Green. I have not seen any evaluation of the use of these procedures under Section 16, although they were piloted as early as December 2013 in Kingston, Leeds and Liverpool. I would be grateful if the Minister could tell me whether such an evaluation exists and, if so, whether it could be made available.
As for the proposal in this amendment to extend the provisions wholesale under Section 17, it is obviously too soon to evaluate limited pilots from the end of September. There can surely not have been time yet for any direction to be made by any judge of the three courts for such special measures for sexual offences and modern slavery.
Since I have no personal experience of these measures, I would be grateful if the Minister could inform me how they take place. As I read the legislation, the witness gives evidence to the court in the presence of the judge and counsel on both sides but in the absence of the accused. The accused is, however, entitled to watch the proceedings and communicate with his legal representatives. How exactly would this be organised? Is the accused in another part of the building, watching from prison, or what? In what way is this less intimidating to the witness than, for example, giving evidence down the line at the time of trial—a proceeding with which we have been familiar for some years?
My concern is that the distancing of the witnesses from the jury is artificial enough when it takes place at the time of the trial. But in my view it is even greater when the jury know they are watching a recording of examination and cross-examination which happened months, possibly even a year, before. While I appreciate that the best evidence is that which is given shortly after the events, the answer, really, is not to delay trials to get rid of the backlog. I heard on Saturday at my chambers dinner that the problem of delay is not the Nightingale courts but the number of judges and counsel needed to cover the trials taking place there and in the ordinary Crown Courts.
Originally, this amendment was grouped with Amendments 286 to 291. Are the others to be spoken to later?
Lord Falconer of Thoroton (Lab)
In this group, according to my listing, Amendment 268 is grouped with Amendments 286, 287, 288, 289, 290 and 291.
Lord Thomas of Gresford (LD)
That introduces the question about the complainant’s sexual history; I do not think the noble and learned Lord addressed that when he opened the case. The basic position in relation to that issue is stated in Section 41(1) of the 1999 Act, which says that
“no evidence may be adduced, and … no question may be asked in cross-examination,”
where
“a person is charged with a sexual offence … except with the leave of the court”.
Amendments 286 to 291 are concerned with tightening up the circumstances in which leave may be given. The noble and learned Lord, Lord Falconer, would not allow by these amendments such evidence whenever the issue of consent arises, whether at the same time or same event as the subject matter of the charge or where there is such similarity in the sexual behaviour of the complainant to the charge that the similarity cannot reasonably be explained as a coincidence.
Baroness Jones of Moulsecoomb (GP)
My Lords, I support these improved safeguards because although I have not been in court very often, and when I have been there, it has been mostly as the complainant or a witness, I do think that we need better support for victims—or the plaintiff—who at the moment are treated very much as bit players in the whole theatre. It seems that they are almost forgettable because the two protagonists are the defence and the prosecution, and they take centre stage. It was obvious when we debated the Domestic Abuse Bill, when we discussed anonymity and other techniques for helping witnesses give evidence in court, so clearly that is needed.
The witness is often treated as a sort of emotionless void, with the legal test focusing on whether the proposed measures will improve their ability to give evidence, rather than, say, protect them from the trauma, embarrassment and hurt of facing up against the accused. This is no more apparent than in the way we treat victims of sexual violence and rape. The Section 41 rules were a major step forward but still fall far short of what is necessary, and so the amendments in this group would help recognise victims as humans and not just incidental characters in the whole story. Most importantly, they would allow the complainant to have their own independent legal representation in Section 41 applications, rather than relying on prosecution counsel, who, in their role as administrators of justice, have many competing obligations to juggle.
I hope that the Minister will agree that there are still many unsolved challenges in the treatment of complainants, and they are in desperate need of solutions.
Lord Falconer of Thoroton (Lab)
My Lords, I should have opened those other amendments, and it is an error on my part that I did not. I am very grateful to the noble Lord, Lord Thomas of Gresford, because he has done a bit of the work that I should have done.
Lord Judge (CB)
If the noble and learned Lord decides to open them, which I would welcome, I would like to respond generally. So far, this debate has rushed along, and we were rather waiting for the noble and learned Lord, Lord Falconer, to tell us why he strongly supported all these amendments, and then we will answer them.
Lord Falconer of Thoroton (Lab)
The reason I did not tell noble Lords why I strongly supported all these amendments was because I made a mistake and did not realise that they were in the same group until the noble Lord, Lord Thomas, mentioned it. I apologise to the Committee for that error.
May I just go through them? I have done Amendment 268, which concerns Section 28 of the Youth Justice and Criminal Evidence Act. The next is Amendment 286, which proposes to insert a new clause into the Youth Justice and Criminal Evidence Act 1999 and would exclude the admission in evidence, whether by the prosecution or the defence, of any sexual behaviour of the complainant with a third party, for the purpose of showing consent or lack of consent, while leaving evidence of sexual behaviour with a third party admissible if it is relevant to any other issue in the case.
In addition, it sets out a further requirement that, where such evidence is sought to be introduced in relation to an issue other than consent, that material must be more probative than prejudicial, and it sets out the considerations the judge must have regard to in considering that extra requirement. The purpose of this amendment is to give the clearest possible signal that evidence of any sexual behaviour of the complainant with a third party—that is, not the defendant—should be regarded as completely inadmissible on the issue of consent. This is important because it is intended to mark a change from the past, where all too often such evidence is admissible in circumstances where it is of very limited probative value, and the ability of that evidence to be admitted makes people—complainants—incredibly wary of coming forward and making complaints. This is the legislature giving a clear signal that it wants a change in relation to that. That is why it is there.
Lord Pannick (CB)
I am sorry to interrupt the noble and learned Lord, but would his amendment mean that if the complainant says, “I would never, ever consent to sexual behaviour” of a particular description, it would not be open to the defence to adduce evidence that that was precisely what the complainant had done with a third party?
Lord Falconer of Thoroton (Lab)
It would exclude such evidence; there is no doubt about that, and rightly so, because what the noble Lord is referring to is evidence where the defence says, “Well, you say this in relation to this case, but what about this?” and then refers to another instance of sexual connection and says, “Look what you did there.” The purpose of the provision is to do exactly what the noble Lord, Lord Pannick, says.
Lord Pannick (CB)
I would like to test this proposition, because it strikes me as rather surprising. If a complainant says to the court, “Not in relation to this particular person, but I would never ever contemplate” doing something, and there is evidence, otherwise admissible, that she has done so in the past, that seems to be highly relevant to the jury’s assessment.
Lord Falconer of Thoroton (Lab)
What I am saying in putting forward this provision is that you want to send a clear signal that a certain sort of evidence is not admissible. In order to make it easier for people to come forward, you need to have much clearer lines than we have had previously. There has been a whole variety of evidence that English law has said is not admissible, even though many people would think it was probative, because it is the safest way overall to deal with trials—it is the safest way to ensure that an appropriate balance is struck between complainant and defendant.
Lord Brown of Eaton-under-Heywood (CB)
Surely the noble Lord and the noble and learned Lord must be at cross purposes. The noble Lord, Lord Pannick, put it on the basis that the witness is saying, “I wouldn’t do this, not only with this man but I wouldn’t do it with anybody, ever”, and the evidence is that she has. Is that perjury simply to go unresponded to in any shape or form?
Lord Falconer of Thoroton (Lab)
I am afraid I did understand what the noble Lord, Lord Pannick, said. It is exactly as the noble and learned Lord, Lord Brown, has put it. The noble Lord, Lord Pannick, is right in the way that he analysed this amendment: it would exclude that evidence. I understand that that is the consequence, and I am saying it is a good thing.
Baroness Jones of Moulsecoomb (GP)
From a woman’s point of view, I would just like to say that there are things I would have done at 20 that I absolutely would not do now, at 70. We can all learn and adapt our behaviour, so the past may not be relevant.
Baroness Fox of Buckley (Non-Afl)
As a woman, I say that the past might not be relevant but the truth might be, if you have just said, “I would never have done this” or “I have never done this”. I do not understand why the purpose of this amendment is to send a message; the point of the law is not just to send a message. Of course, we want women to get a fair shot at seeing people they are accusing of rape found guilty, but I do not want the state to be in a position where it can find people guilty based on the fact that you cannot probe the truth of what has been said. That is condescending to women, by the way. Women do not need to be so protected; they need people to do their jobs. But we do not need to alter the law to hide the truth in order to give women a fair shot.
Baroness Bennett of Manor Castle
I point out to all noble Lords who have spoken that victims can be of all genders. It is unfortunate that this debate has been specifically gendered.
Lord Falconer of Thoroton (Lab)
The noble Baroness, Lady Bennett, is right. This is about sexual assault on anybody, whatever gender they are.
Does the right reverend Prelate want to intervene? Oh, I am sorry; they are leaving, for fear that it will never end.
Amendment 287 defines consent so that there is clarity about what is meant by consent in the new section of the Youth, Justice and Criminal Evidence Act 1999.
Amendment 288 is a procedural requirement. This proposed new clause would have the effect that no Section 41 evidence or questions—that is, about sexual conduct with a third party—could be admitted by a judge at trial unless there had been an application before trial in accordance with practice directions, and would ban applications being made immediately before or during the trial. It is an important procedural safeguard to ensure that the complainant will know before the trial starts what he, she or they may face.
Amendment 289 would insert a new clause to give the complainant a right of representation with legal aid, if they are financially eligible, to oppose any application to admit Section 41 material about them—that is, material about sexual conduct with a third party. This new clause would also give complainants a right of appeal to the Court of Appeal if the application is allowed in whole or in part. The new clause provides that the complainant is not compellable as a witness at the application. The purpose of these provisions is to recognise that the complainant should be treated as a party, rather than as an outsider, to the proceedings on issues of the extent to which his, her or their past is to be gone through in the trial, and it is perfectly legitimate.
Lord Judge (CB)
My Lords, I once tried a case where the most compelling evidence was given by a black woman who alleged that a white dentist had raped her. His case was that, as she sat in the dentist’s chair, she undid his fly and started sucking his penis. Her answer to the question put to her was, “I would never do that with a white man”, and it was compelling. If there had been evidence that in fact she had, that very compelling piece of evidence would have lost some of its compulsion. We have to be very careful not to send messages through legislation—messages we all share—because that is not the point of legislation.
I should add that there are plenty of times when evidence is inadmissible in law which may be probative, but there are, as far as I am aware—I cannot think of any; perhaps I will be corrected if I am wrong—few times where evidence which may assist the defendant is deemed inadmissible. That is an important step.
My other intervention is that, deep down in all this, there is a rather alarming—strange, really—new idea, which is that the Secretary of State should involve himself or herself in some of these important decisions. Let us look at the arrival of a friend, or an advocate’s friend—it does not matter what we call it; I personally wonder why that is necessary, when the prosecutor is supposed to be there as a minister of justice. I am looking at paragraph (e) of proposed new Clause 43A which would be inserted by Amendment 289. Why on earth should the Secretary of State be making regulations setting out procedure relating to hearings or appeals under this section? There is a perfectly good Criminal Procedure Rule Committee which produces Criminal Procedure Rules and is referred to in paragraph (b). With great respect, this has nothing whatever to do with the Executive. This is about the way cases are being conducted in court. Therefore, if there are going to be regulations, they should be produced either by primary legislation here or by the Criminal Procedure Rule Committee addressing the issues.
On Amendment 291, I am even more alarmed. Subsection (2) of the proposed new clause gives the Secretary of State the power to decide which judges may hear which cases. We do not allow that. It is an essential division that there is an Executive and that cases are tried by judges; the Executive have no say whatever in which judge will try which case. It would be very strange: “I think I would like Mr Justice So-and-so, or Mrs Justice So-and-so, to try this case”. It is unheard of.
More importantly in relation to the judiciary and to the whole of Amendment 291, I can confirm as a matter of certainty—I suspect this has been true since the noble and learned Lord, Lord Woolf, was Lord Chief Justice—that judges are not allowed to try cases involving rape or serious sexual offences unless they have attended Judicial College training and continue to be refreshed in the various ways in which the law, the principles, the understandings and insights have been developing. As I say, though, my real concern is that if this is going to be statute, then for heaven’s sake, it should not be in the hands of the Secretary of State.
Lord Pannick (CB)
My Lords, I intervened earlier on Amendment 286 because of my concern about an absolute rule in this area. My concern is increased by the practical experience of the noble and learned Lord, Lord Judge, in this matter. I am also concerned about Amendment 289 regarding the complainant’s right of representation in relation to an application and whether there should be evidence concerning sexual conduct, not merely for the reason the noble and learned Lord gave, with which I agree: that the prosecution are ministers of justice and are there to deal with such matters. I am also concerned that this is a recipe for delay. If it is really to be said that the victim is to be separately represented and able to make an application, presumably after notice has been given, and there is to be a right of appeal to the Court of Appeal, that is inevitably going to delay further trials that are already far too long delayed.
Lord Falconer of Thoroton (Lab)
On the points made by the noble and learned Lord, Lord Judge, about the criminal procedure rules, I agree with him. There is no need for the Secretary of State to intervene, and I accept that completely. Secondly, I also completely accept his point that the Secretary of State should not be making that determination; that is my drafting error.
I utterly repudiate the point made by the noble Lord, Lord Pannick, about delay and non-representation, a position which the noble and learned Lord, Lord Judge, also adopted to some extent. It is really important that the complainant have, and feel that they have, a voice in the process of what is going to happen to them at the trial. The point about delay could be dealt with by ensuring that these applications are all dealt with before the trial. If there is to be an appeal and the complainant says, “It is unfair that my past is being raked over in this way, I want to appeal”, then there may be occasional cases where there are delays, but their rights should be recognised. The fact that they have a voice is really important.
The noble and learned Lord, Lord Judge, said that the prosecution is there to look after them. My experience is that the prosecution will try as much as possible to look after them but that they should have a separate voice. They will frequently feel—not because the prosecution is in any sense not doing his or her duty, but because they feel their voice is not adequately represented—that they should have a separate voice because they have separate concerns from those of the prosecution, which has to look at the situation not just from the point of view of the complainant but in a wider context. So I accept two out of the three points made by the noble and learned Lord, Lord Judge, but none of those made by the noble Lord, Lord Pannick.
On the first point made by the noble and learned Lord, Lord Judge, regarding cases where it is vital to know what the position is—he gave the example of a trial he had heard—I am keen to draw a line so that people know where they stand, just as, in relation to the rules of evidence over many centuries, English law has said that some evidence is admissible and some is not, even though from time to time, it has been obvious that the inadmissible evidence might have been very compelling, but for reasons of bigger policy it was inadmissible.
Baroness Chakrabarti (Lab)
My Lords, I am sorry to find myself intervening at this point but there is no bigger policy than the right to a fair trial. Of course that goes for complainants—and I agree with much of the thrust of what my noble and learned friend says—but there must also be justice for someone accused of any matter, but particularly such a serious one as a sexual offence. The example given by the noble and learned Lord, Lord Judge, warranted more of an answer, and one could conceive of others.
I say that while acknowledging that for decades, too much sexual history has been admitted; there is no doubt in my mind about that. That was why Section 41 had to be enacted in the first place. Scholars in this area will be able to look back at the Hansard of the passage of Section 41 and its various iterations at the time. The section was actually more tightly drafted to begin with but noble Lords in this place, including on the Benches behind me, came up with compelling exceptional circumstances where it would do a grave injustice to a defendant for startling similar fact-type evidence not to be admitted.
I understand that even since the passage and enactment of Section 41, a lot of complainants—and, with all respect to the noble Baroness, Lady Bennett, quite possibly women in particular—have felt that there has still not been enough sensitivity on the part of certain judges. However, it cannot be right that if I as a complainant, of whatever sex, assert that a particular type of sexual activity is something I would never and could never consent to and have never consented to, and yet I did the day before—how can it be anything but an injustice to the defendant for that not to be admitted? If I am a man and I say I have been raped by another man because I would never have consented to sex with a man, and yet there is ample evidence of a third party saying that there has been consensual sex —that cannot be fair to the man in the dock who says, “Yes, we had consensual sex” and then the complainant, because he is embarrassed due to his family, his faith or whatever reason, now says that it was non-consensual. That cannot be right.
I agree that we must do more so that juries, judges and indeed society do not assume that past sexual history is determinative of consent, but in my view to say that it is always absolutely irrelevant would not comply with Article 6 of the convention and therefore the Human Rights Act. I do not mean to be difficult but I could not possibly have potential injustices of that magnitude on my conscience, and I do not think this Committee could either.
The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)
My Lords, in replying, I preface my remarks by commenting on points made by noble Lords. The first was made by the noble Lord, Lord Thomas of Gresford, at the outset, while the Benches opposite were still thrashing out the batting order. If I may summarise the noble Lord’s position, I think it emphasised the importance of judicial discretion. A judge seized fully of the law and of the particular facts and circumstances applying to any case will most often be best placed to decide what should be done. I know that the noble Lord will recognise that my remarks cut both ways, and that he will hold me to them in the course of today’s debate. However, I fully accept what he had to say about the importance of judicial discretion.
Lord Falconer of Thoroton (Lab)
I am grateful to everybody for taking part in the debate and very grateful for the care with which the Minister answered the issues. I am disappointed with his response on Section 28 and making sure that it is available in all courts in England and Wales. He said that he wanted to test the technology first, but there have been three pilots going for some time. I found that answer not altogether convincing so may come back to that matter on Report.
Lord Falconer of Thoroton
“Assistance for bereaved persons and core participants at inquests and public inquiries
(1) With respect to inquests, and public inquiries relating to deaths or serious injuries, and where one or more public authority, or private entity whose relevant activity falls within subsection (2), are designated as “interested persons” (IPs) or “core participants” (CPs), bereaved IPs and CPs shall be entitled to publicly-funded legal assistance and representation at the same level or in proportion to the resources provided to the public authority or private entity, as set out in Schedule (Assistance for bereaved persons and core participants at inquests and public inquiries: amendment of the Legal Aid, Sentencing and Punishment of Offenders Act 2012).(2) Relevant activity of a private entity falls within this subsection where it—(a) is delegated or contracted from a public authority, or(b) is one where the private entity or individual owes a health and safety responsibility to the public or a section of it, including but not limited to sporting, leisure and entertainment events and premises, public transport systems and the provision of utilities and retail facilities.”Member’s explanatory statement
Combined with the proposed new schedule to follow Schedule 20, this amendment would ensure that bereaved persons and core participants at inquests and public inquiries received legal aid proportionate to the legal expenditure by any public authorities involved in the inquest or inquiry (so-called “equality of arms”).
Lord Falconer of Thoroton (Lab)
My Lords, this is a completely different topic. Amendment 269 would
“ensure that bereaved persons and core participants at inquests and public inquiries received legal aid proportionate to the legal expenditure by any public authorities involved in the inquest or inquiry”.
It is, in effect, the equality of arms measure.
In the Hillsborough situation, people suffered an incredibly grievous wrong in respect of their loved ones, then found themselves ranged against lawyers and QCs. As a QC myself, I make it clear that there is nothing intrinsically wrong with QCs, but imagine finding yourself ranged against seven public authorities, all of which have an interest in trying to ensure that their public authority is exonerated, while the individual victims have no right to legal representation at all. They may get the benefit of discretionary funding from the Lord Chancellor, who can give that funding for inquests, but it is entirely at the discretion of a Government Minister. That is inappropriate. In relation to these sorts of cases, the right course is that where there is a big disaster, the people who are most affected should be able to appear at the inquest, which is going to affect what may happen in the future, while having equality of arms with the person or bodies against whom they will be ranged.
Amendments 270 to 274 intend to establish
“a public advocate to provide advice to representatives of the deceased after major incidents.”
So many families affected by a major incident have nowhere to go because there is no lawyer experienced in these sorts of matters. They have nobody to speak on their behalf and find, all too often, the public sector unwilling to give them help—for fear that individual members of the public sector may be making their own section of it liable to some sort of damages in court subsequently. The public advocate scheme is a means of providing support for the victims in those tragedies. I very much hope that the Government will listen, look at these amendments favourably and recognise the injustices that have occurred over the years as a result of there not being proper representation at inquests nor a public advocate to speak for the victims of these disasters. I beg to move.
Baroness Bennett of Manor Castle (GP)
My Lords, I rise to offer Green support for Amendment 269 in the name of the noble and learned Lord, Lord Falconer, to which I have attached my name. I offer support for all the amendments here. The noble and learned Lord spoke about a big group case affecting many people. I shall to a single case.
In 2014, a seven-year-old boy, Zane Gbangbola, went to sleep in his bed. He never woke up, and his father, sleeping nearby, has been forced to use a wheelchair ever since. The Fire Brigades Union, the PCS Union and many other people—including his father Kye’s doctors—were convinced that Zane was poisoned by hydrogen cyanide gas that came from a landfill site nearby, carried by floodwaters. Before this tragic event, the Environment Agency had actually protected its own staff in a nearby building with a special membrane in the foundations to ensure there was no risk of an event like this.
There was, of course, an inquest. At that inquest no fewer than six public bodies, whose actions might have been called into question, were represented by the best legal counsel money can buy—with public money. The Gbangbola family was denied legal aid, so the grieving parents, sitting in a court room and hearing the most awful possible details about their son’s death, were forced to operate with only limited legal support, with funds raised by a public appeal. As the noble and learned Lord said, the European Convention on Human Rights calls for an equality of arms in trials. There was no such equality at Zane’s inquest.
We also need to stress the public interest concern here. As was the case, tragically, in Zane’s death, we know that the world is facing new dangers. The country is facing new dangers. We need honesty and transparency about what those are. The weather that led to that flooding was linked to the climate emergency. Several years after this, Kye Gbangbola said
“we need to unlock the doors for the truth to come out”.
This is about the death of one child, but it is also about the safety of everybody. The lack of legal aid at that inquest was a factor in the truth not coming out. The family is continuing to campaign. Indeed, I was in Glasgow with them at a side event to the COP 26 climate talks. They are calling for a Zane’s Law to address weaknesses in our law that were deliberately introduced a decade ago, putting profits before human lives. This is why the seven amendments about a public advocate are terribly important. We cannot rely on families—indeed, sometimes there will not be a family—in a case where someone has died, to ensure that the courts are helping us to uncover what actually happened in the case of tragedies.
Had there been equality of arms at Zane’s inquest, we might be much further down the road to getting a change in the law that we all need to keep us safe. I strongly urge the Government to act on all of these amendments, but particularly Amendment 269 and the related amendment, not just for Zane or the Hillsborough families but for everybody.
Baroness Newlove (Con)
My Lords, I support this amendment. As a former Victims Commissioner, I have met too many victims who had asked for representation or legal aid and felt that their voice was not heard. They were, in their words, “bullied” by the heavies on the other side, who were rich and could pay for QCs or whatever. Again, they felt that their voice was not going to be heard.
I am talking about high-end cases here; I am talking about terrorism, bombers, women hearing their husband exploded at the other end of the phone, and still have no help from the Government. I support this amendment because now, with all the high-risk terrorism we are seeing—even with the Tunisian support that was very poor, I have to say, because there was a third party involved—we are going to lose the public coming with us and understanding what is going on. An inquest is not a courtroom as such: everybody is there, and all the families are trying to listen about their loved ones and their lives. I know from personal experience about when somebody is talking about our loved ones and yet nobody can stand up from our side to present the same quality, the same questioning.
In this day and age, I ask the Minister and the Government to have a round-table talk about how we can fix this. The inquest is such an irritant to the families, and it does not help them get past the trauma. If we cannot help them, they will not be confident to go through the system. These are high-end cases we are talking about. I know the families of Hillsborough as well, and they have gone through the mill over all these years. Did they get any justice? They have had to fight hard, tooth and nail.
I heard one woman—I will not name her—whose son heard that bomb go off on an oil rig, and the Government were still redacting and did not give the legal aid. The time has come to have an open and transparent discussion about giving the support that they quite rightly deserve.
Lord Mackay of Clashfern (Con)
My Lords, some time ago when the Hillsborough matter was before this House, the noble Lord, Lord Rooker, I think, and I put forward a suggestion that the coroner in an inquest should have power to allow a public authority, or an authority with resources, to put forward a defence using lawyers for that purpose, and that a condition of granting such permission should be that the authority is responsible for providing the necessary funding for the relatives of the deceased to be represented. The choice of who they would use, of course, would be for the relatives, but the provision of the necessary money would be a matter for the authority—at the level at which the authority wanted to do it—so that there would be obvious equality of arms.
I think it is a much better solution than legal aid. Needless to say, I have had, some time ago, some experience of dealing with legal aid. I had the authority as Lord Chancellor to grant legal aid in specific cases that I thought required it, but I think it is much better, fairer and less burdensome to the public, that this should be the rule. It seems to me this is quite easy to systematise when you have more than one of these authorities. Hillsborough is a good example of what happened when there was no proper representation for some of the relatives. This is a suggestion that goes along with the spirit of the first amendment the noble and learned Lord has put forward, and I venture to think that it is an effective point of view.
I am glad to see that the noble Lord, I referred to has returned because I think he will probably remember that he and I were pretty well agreed about what should be done. Needless to say, the Home Office said it would be reviewed when the details of Hillsborough, the prosecutions and so on, were finished. Of course, that happened some time ago, but I see no sign of any kind of innovation from the Home Office, until it agrees with this amendment in spirit.
Lord Beith (LD)
We have always been able to rely on the noble and learned Lord, Lord Mackay, for ingenuity when difficult problems have to be resolved. This one seems to have got lost in the Home Office somewhere. That is a pity because the problem that these amendments raise is long-running and serious. It is open to discussion, whether the amendments are the best way of dealing it, but I do not think we can go on ignoring it or failing to deal with it in any adequate way.
Lord Pannick (CB)
My Lords, I too support the principle behind Amendment 269. We regularly see the disturbing prospect of bereaved families being unrepresented when public bodies have very competent representation. This undermines public confidence in justice, and it sometimes impedes the ability of the coroner or the public inquiry to get to the truth of matters of enormous public importance.
However, I am not persuaded that the mechanism contained in Amendment 269, in proposed new subsection (1), is the correct one. It provides that the representation for bereaved families must be
“at the same level or in proportion to the resources provided to the public authority or private entity”.
I would be content if competent representation were provided.
I draw to the attention of the Committee that there are cases in the Court of Appeal where it has been argued, under the Human Rights Act, that a defendant in a criminal case was entitled to representation under legal aid by Queen’s Counsel because the prosecution was represented by Queen’s Counsel. The Court of Appeal said no, and that what they are entitled to—and rightly so—is competent representation. So I think this is going too far.
The noble and Learned Lord, Lord Mackay of Clashfern, suggested one way forward: that the public body should make provision. Another way of dealing with it would be for the chairman of the inquiry, or the coroner, to have a statutory discretion to order that specific persons be provided with public funding, whether by legal aid or otherwise. There are a variety of mechanisms, but I entirely agree with the noble and learned Lord, Lord Falconer of Thoroton, that the principle now needs to be enacted.
Lord Sandhurst (Con)
My Lords, I shall speak shortly. I have always had a long interest in legal aid and its proper provision. My concern is that this amendment is aimed at the right target but goes too far. Look, for example, at the wording; as I understand it, it would apply every time there is an inquest involving someone who has died in a hospital. If that has been the result of possible negligence on the part of the hospital—I am talking about an NHS hospital here—then there is a potential claim against the hospital. If that potential claim has any reasonable merit, it is likely that solicitors experienced in medical and legal work will undertake the inquest because, in due course, if the claim is brought and damages are recovered and costs awarded, the cost of representation at the inquest will be recoverable in the personal injury action. That has been the case ever since the “Marchioness” disaster and the costs thereafter.
All I say is this: there should be representation in appropriate cases involving state institutions. We can all think of examples—not just Hillsborough; it could be a hospital or something else—where the state and a public authority are involved, and it is unfair to the family to have to scrabble around to get funds if they can. I would like to see careful consideration given by the Government to how this can be properly designed to find a balance. There is a strain on public resources; there are many other areas where legal aid is not provided, particularly in the family courts, and we know that funds are short. Equally, they should consider whether, in appropriate cases, it should be at the coroner’s discretion to direct the Legal Aid Agency to look at this. I argue that the Government should think very carefully about this and about what would be a fair balance, given the strain on public resources, to ensure that people who need and deserve it get resources provided to them.
Baroness Chakrabarti (Lab)
My Lords, I support this whole group of amendments from my noble and learned friend and others. The reasons given by noble Lords are hugely compelling and, if anything, I think some noble Lords opposite are not enthusiastic enough. I hear the arguments about the public purse, but we would not be here if civil legal aid, in particular, had not been altogether obliterated and if there was not such a continuing injustice to bereaved families.
Frankly, I am not persuaded that there is something so awful about a greater equality of arms between hospital trusts and families who feel they have been sorely let down, or indeed between those families and a range of public authorities who can afford not competence but brilliance—they can afford the noble Lord, Lord Pannick, over there. I am not sure that “near competent” would be enough if you were faced with my friend the noble Lord, Lord Pannick. We need to have something like the intention behind this amendment; there should be some kind of equality of arms for these desperate people.
My heart broke when the noble Baroness, Lady Newlove, said that she has spoken to bereaved families who think of an inquest as an irritant. We should all be ashamed of that. Inquests, which are supposed to get to the bottom of things and be at least some kind of comfort to those families, should be the absolute opposite of an irritant.
I want to encourage my noble and learned friend not to let this go into the long grass, or to become an interesting probe that does not get anywhere because we are worried about the precise mechanism, because I am very concerned—we are still in the pandemic—about the coronavirus inquiry or inquiries that must come soon. There may not be another vehicle for amendments such as these, or legislation such as this, in time. It is incredibly important that, in a year or two, or whenever those inquiries happen, we have resolved this to some extent.
I fear we will not have resolved the general, dismal picture when it comes to civil legal aid, but at least we can come up with some kind of fix, however imperfect, to redress the balance of advice and representation for bereaved families. There will be a lot of very impoverished, vulnerable, bereaved families who will have nowhere near the access to private or public money. To be honest, whatever your ideological position, even the inequality between private corporations and bereaved families is bad enough, but surely, with public authorities and public money, there can be no excuse for such an imbalance in the use of that public money if we are really interested in the pursuit of justice.
Lord Bach (Lab)
My Lords, I also agree absolutely with the principles behind these amendments. It seems as though the Committee has been unanimously supportive up till now.
My question to the Minister is: why have we waited so long for something to happen in the area of inquests? I had hoped that there might be something in what has been rightly described as a Christmas tree Bill to help us along the way, but there is not. It has needed the amendments from my noble and learned friend Lord Falconer and others, including the noble Baroness, Lady Bennett, to raise this issue. I was privileged enough to chair a Fabian commission on legal aid, which reported more than four years ago. We considered this urgent—as I think the world did—then and for many years before. At one stage, Hillsborough was a classic example which aroused public interest in this issue.
Is there work being done at the moment within the Minister’s department to look urgently at this issue to see whether some solution cannot be found? Never mind the rest of civil legal aid—though my noble friend Lady Chakrabarti knows I agree with her absolutely on that—is there not something that can be done in this area as a matter of some urgency?
Lord Stewart of Dirleton (Con)
My Lords, I hope that the Committee will accept my words when I say that the Government are sympathetic to the difficulties facing all bereaved families. At an earlier stage in the consideration of this Bill, my colleague, my noble friend Lord Wolfson of Tredegar who has ministerial responsibility for this matter, referred to the powerful feelings he had, as a resident of Liverpool, as the Hillsborough tragedy unfolded. For my part, I speak as one who has acted for a relative of someone killed in an accident which was sufficient to warrant the convening of a fatal accident inquiry in relation to the helicopter crash at the Clutha Vaults public house in Glasgow. I was funded by legal aid, and I hope that means I was at least competent, while at all times striving towards the excellence of the noble Lord, Lord Pannick. The Government believe that bereaved and otherwise affected families should be at the heart of any inquest and inquiry process that follows a disaster.
Amendments 269 to 274 seek to establish an independent public advocate. This is a call to which the Government have been sympathetic, but I echo the reservations expressed, I think by the noble Lord, Lord Pannick, as to whether the superstructure envisaged by the noble and learned Lord’s amendment is the appropriate way forward.
Lord Paddick (LD)
My Lords, I have given evidence at numerous criminal trials, in the magistrates’ court and the Crown Court, but the most vicious, adversarial cross-examination was at the inquest into the death of Jean Charles de Menezes, an innocent Brazilian shot and killed by the police following the 7 July 2005 bombings. There is no way that process could have been described as inquisitorial. Indeed, part way through that proceeding, the coroner had to advise the barrister representing the police not to proceed in the way that he had up until that point. While in some cases it may be simply a neutral, inquisitorial search for the truth, that is not how a lot of inquests turn out.
Lord Stewart of Dirleton (Con)
I am grateful to the noble Lord for giving the Committee the benefit of his experience. Perhaps it is that experience which informed, or helped to inform, the remarks of the Chief Coroner, his honour Justice Thomas Teague, who has said publicly that one of his key objectives in his role is to ensure that the inquisitorial ethos of the inquest process is maintained. I hope that demonstrates a resolve within the system to address the failings or, at best, the over-eagerness, of counsel whose conduct the noble Lord described.
The amendment to increase the scope of legal aid at inquests would run counter to the approach of retaining their inquisitorial character. There is a risk that additional lawyers present at an inquest would not provide an overall improvement for the bereaved, that being something which ought to be a primary consideration, for the reasons expressed by my noble friend Lady Newlove. It is foreseeable—I think this is the point raised by my noble friend Lord Sandhurst—that the presence of additional lawyers could have the unintended consequence of turning an inquisitorial process into a complex exercise—
Baroness Chakrabarti (Lab)
I am grateful to the Minister for giving way. I do not doubt the sincerity of his concerns about trying to maintain informality in inquisitorial process. However, can it ever be conscionable for an inquest to involve a totally unrepresented core participant or bereaved family in circumstances where those whom the bereaved family suspect of being responsible for their loved one’s death are represented by professional lawyers, counsel and QCs? Can that basic inequality ever be conscionable, not least when we are dealing with lay people, with public concern and with public money that is all going to some parties and not to the bereaved?
Lord Stewart of Dirleton (Con)
I am grateful to the noble Baroness for her intervention.
I was going on to say that, for bereaved families who need legal help, advice and assistance are always available under the legal aid scheme, subject to the means and merits test. This can help preparation—
Baroness Newlove (Con)
I take on board what my noble and learned friend says. I come from a victim’s perspective in all this. While it is all rule of law and whatever, victims’ families do not feel any of what my noble and learned friend is saying, because it feels like the professionals are dealing with all the processes. Victims’ families see all these high-end QCs and whether the other person is competent—I think that also gives a two-tier process for the victims’ families. Why should competency be at one end? I take on board what the noble Lord, Lord Pannick, said. The whole point is that they do not get that advice because there is nobody there to advise them.
I have worked with the Chief Coroner. He has no powers to control coroners across the country. Inquests are so poorly funded that there is no advice for victims in all this. We are missing all the pieces of the jigsaw. I say it with no disrespect, but it does not happen on the ground. Families want respect and dignity. All they see is the other side building all the towers, but not for them. They feel irritated, upset and disrespected. Most importantly, they feel that it is all political window-dressing. Once again, the law does not represent the families, who are the ones who are hurt and traumatised.
Lord Stewart of Dirleton (Con)
My Lords, my noble friend’s personal experience and her service as Victims’ Commissioner lend force to her eloquence.
I shall go on to address the funding available for attendance at inquests, but in answer to the points just raised and to reiterate, in the vast majority of inquests the simplicity of the four questions which the coroner is obliged to seek to answer is such that legal representation and legal aid will not be necessary. In circumstances such as those my noble friend described, where there is complexity or where the competing interests are such that lawyers are briefed on behalf of agencies perhaps seeking to lay down defensive positions in the face of future litigation, it is right that there is a mechanism whereby bereaved families or bereaved individuals might be represented.
Baroness Bennett of Manor Castle (GP)
I thank the Minister for giving way. He said that it is right that families should be represented, but surely he would acknowledge that that has not been the case, as in the case I cited, as well as in many others where families have not been able to be represented.
The noble Baronesses, Lady Chakrabarti and Lady Newlove, focused on the families being represented and having a voice, but would not the inquisitorial process, which is supposed to arrive at the truth, be improved and more likely to get to the correct conclusion if there was a balance of arms—a balance of forces—as we have been talking about?
I apologise to the Committee: I probably should have declared my position as vice-chair on the All-Party Parliamentary Group on Legal Aid.
Lord Stewart of Dirleton (Con)
Ultimately, my Lords, arrival at the truth is the objective of all legal process in this area, but the inquest convened under the coroner is but a part of that overall inquiry. That the truth is the ultimate objective does not, with respect to the noble Baroness’s point, confirm that in every case there must be legal representation. I maintain that for the vast majority of inquests the questions posed—the circumstances—are not such as to oblige in the interests of justice that there be representation for all parties. The amendment to increase the scope of legal aid at inquests would run counter to that approach.
Lord Mackay of Clashfern (Con)
Before the noble and learned Lord sits down, I made a mistake earlier in not referring to the noble Lord, Lord Rosser, properly. That was my error; I am sorry for it, and I am sure he will forgive me.
Lord Stewart of Dirleton (Con)
Before the noble and learned Lord, Lord Falconer of Thoroton, replies, I should say that I did not make reference specifically to the point raised by my noble friend Lord Mackay of Clashfern, in relation to the proposal that he and the noble Lord, Lord Rosser, advanced for the funding of representation in these areas. I will undertake to have the department of my noble friend Lord Wolfson of Tredegar look into the response that was made to the proposal which my noble and learned friend and the noble Lord put forward at that time and see if an answer can be given to the Committee at some appropriate stage as to how that was considered and what conclusions were reached.
Lord Falconer of Thoroton (Lab)
I am very grateful to everybody who has spoken in the debate. Everybody apart from the Minister supported the principle. There were various specific suggestions as to how the proposal could be improved, which I certainly take on board. As ever, the noble and learned Lord, Lord Mackay of Clashfern, put forward an incredibly sensible proposal. Amendment 269 says that if a public authority is designated an “interested person” or a “core participant”, then legal aid should provide funding proportionate to that to the families. I think the noble and learned Lord, Lord Mackay, is saying, “Let the relevant interested party or core participant from the public sector pay for it”, and I would not have any objection to that.
I have to say that the Minister’s response was awful—and this is not in any way intended to be an attack on the noble and learned Lord, Lord Stewart of Dirleton, who delivered, as ever, a very careful answer. It was awful because it indicated that the Government are going backwards. It represented a degree of complacency about the problem that was entirely unwarranted. The noble Baroness, Lady Newlove, very effectively expressed what the problem was. The noble Lord, Lord Beith, indicated, quite rightly, that this problem has existed for a very long time.
The problem was exemplified by the Hillsborough case. The families, having had a very fair hearing from Lord Justice Taylor in the public inquiry, then attended an inquest, day after day, having to cross the Pennines to get there, where they saw the findings of Lord Justice Taylor, as he then was, eroded by representatives of public authorities able to take advantage of their total inequality of arms, aided and abetted by some elements in the press—not all the press, but some elements—which used the process to denigrate those who had died. It was absolutely appalling.
The issue is not just the suffering of the individuals but the disrepute into which it brings our legal system. If our legal system is unable to come to an appropriate answer because of the inequality of arms—all the public authorities are represented by all the lawyers in the world and the families, who have a cause and are right, cannot get their position across—then what good is our legal system? That is the point that everybody in the debate has been talking about, and the Minister’s answer showed absolutely no appreciation whatever that that is the problem.
We will not have another opportunity to come back with something. Amendment 269 and the schedule to be put in after Schedule 20 deals with it by ensuring that where there is a public authority in the firing line, the families should be represented. I note what the noble Lord, Lord Sandhurst, says, but all too often long-running problems with particular health bodies never get properly recognised because ultimately the health body is properly represented and the families are not. We will be back. In the meantime, I beg leave to withdraw the amendment.
“Section 6 of the Sexual Offences Act 1956: removal of time limitation
Proceedings for the offence under section 6 of the Sexual Offences Act 1956 (intercourse with a girl between thirteen and sixteen) are not to be barred only by virtue of the passage of time since the date of the alleged offence.”
Baroness Kennedy of Cradley (Non-Afl)
My Lords, I shall speak to Amendment 277 in my name and I fully support Amendment 292C in the names of the noble Baroness, Lady Newlove, and others.
In 2004, when this House also acted in its judicial capacity, it considered an appeal by a Mr J, who had been convicted of three counts of indecent assault and one count of gross indecency with a child. Mr J, 35 years, had seduced the 13 year-old daughter of a friend. The charges of indecent assault actually related to full sexual intercourse. There was no doubt that he did those acts, for which he was originally sentenced to three years’ imprisonment, but this House quashed the convictions for indecent assault. The reasons why are still relevant today. Men who seduced girls between the ages of 13 and 16 before 1 May 2004 are now immune from prosecution on account of this case. It is still possible to do something about this, but legislation is needed, hence my amendment.
The problem is that sexual offences committed before 1 May 2004 must be prosecuted under the Sexual Offences Act 1956. Under that Act, the applicable offence is unlawful sexual intercourse, as outlined in Section 6. In the 1956 Act, there is a time limit of one year from the alleged commission of the offence under Section 6. Proceedings must therefore be instituted within a year from then. This time limit is clear and unambiguous and can be found in paragraph 10 of Schedule 2 to the Act.
The problem had been going on for some time, since before May 2004, but prosecutors were for a long time able to evade the time limit. Instead of charging for underage sexual intercourse, which could not be done if the offence was discovered or prosecuted too late, they would charge for indecent assault in relation to the same underage sexual intercourse.
That is where the J case comes in. Mr J argued that this was impermissible and the House accepted that argument. Since that time in 2004, men who procured sexual intercourse from vulnerable and impressionable girls before 1 May 2004, perhaps introducing them to like-minded friends, have been practically immune from prosecution. The only applicable offences in the 1956 Act were time-barred as a result of the time limit relating to underage sexual intercourse.
To avoid confusion, I should say that the time limit problem does not apply where the offence has been committed since 1 May 2004. If a man had sexual intercourse with a girl aged between 13 and 16 after 1 May 2004, he can be prosecuted for the new offence of sexual activity with a child. That was created by the Sexual Offences Act 2003 and no equivalent time limit is applied to it.
Many cases, however, are historical in nature and precede 1 May 2004. The 1956 Act must then still be applied, with all its anomalies—including this time limit. In theory, if two women came forward today and woman 1 reported abuse that took place on 30 April 2004 while woman 2 reported abuse that took place the next day, on 1 May 2004, only woman 2’s case would proceed, because the modern law of the 2003 Act applies to only her case.
Some may read this speech and question why I am assuming female victims and not children of any gender. Here, the story gets worse still. This time limit applies only to offences committed against underage girls; if the victim were a boy, it would be different, as historical cases of sexual intercourse between men and boys under 16 can still be prosecuted. The time limit applies only to girls. How can the law deny justice and discriminate in this way and this House not seek to put it right?
In fact, we can find anomaly after anomaly in this area. In my research, I read the work of Dr Jonathan Rogers, assistant professor in criminal justice at Cambridge University, who gives a full account of them. For example, Mr J was in fact still punished for the act of gross indecency with a child which related to oral sex with the same consenting child. It is incomprehensible that oral sex with the abused girl could be prosecuted at any time while the sexual intercourse had to be prosecuted within one year.
Some may say this is a past problem, but it is a present one, because we are still uncovering abuses that happened before 1 May 2004. Historical sexual abuse is, sadly, coming to light too frequently in the news. We know that girls are regularly threatened into silence for long periods. Many girls are victimised in this way and recognise themselves as victims or have the confidence to go to the police only much more than one year later. That is well known.
Baroness Brinton (LD) [V]
My Lords, I wish to support both amendments, and echo the very strong points made by the noble Baroness, Lady Kennedy of Cradley, regarding Amendment 277, which relates to Section 6 of the Sexual Offences Act 1956 and removing the time limitation on proceedings for the offence of intercourse with a girl aged between 13 and 16.
This appears to be a loophole left over from the Sexual Offences Act 2003, as ably argued by Jonathan Rogers of Cambridge University in his chapter in a book analysing the law on historic offences. He referred to the case of J, outlined by the noble Baroness, Lady Kennedy, earlier, affecting cases where the offence occurred before 2004. In that chapter he says that a workaround regarding the time limit on reporting offences was:
“In the years leading up to the SOA 2003, this unusual time limit proved to be tolerable only because it used to be evaded (!), namely by charging instead indecent assault under section 14 of the SOA 1956, for which the underage girl could also not give effective consent, but for which no time limit was provided in the statute. So ‘rough justice’ could still be done, and it frequently was.”
His chapter goes on to explain that much of the law, including subsequent judgments, is grounded in
“a toxic mixture of misogyny, prejudice and ignorance.”
Reading evidence from the Independent Inquiry into Child Sexual Abuse and its various specific reports on child sexual abuse in certain areas of society, it is absolutely clear that victims—especially child victims—of sexual abuse often find it difficult to come forward at the time. It is worrying, therefore, that there has to be a workaround to deal with a law that reflects late Victorian society’s attitudes to girls aged 13 to 16 being abused.
Amendment 292C asks for an extension of time limits for prosecutions for common assault in domestic abuse cases. I look forward to hearing the noble Baroness, Lady Newlove, speaking to her amendment, and propose to speak briefly only on one common theme that links these two amendments.
In 2017, the Ministry of Justice responded to a petition to Parliament that sought to remove time limits on the victims of domestic abuse getting legal aid, saying:
“Respondents to the survey in particular felt that the time limit is arbitrary—respondents felt that a victim does not stop being a victim after the passage of time. Similarly, they felt that the risk of experiencing violence does not necessarily dissipate over time.”
There is substantial evidence to show that many women—it usually is women—do not report the first, second or even 10th incident of domestic violence. The reasons for this are many, but fear of the behaviour of their partner is key. They may also still be in a relationship with the abuser, and there is the worry—too often well founded, sadly—that they will not be taken seriously when they report the behaviour. The current six-month time limit means that many common assault charges time out and the women cannot access justice, and the protection and support that the justice process can offer them is denied.
Both amendments seek to change the time limits. First, there is a loophole that needs to be sorted out in a 21st century world that understands child sex abuse better than seven decades ago, let alone in the late 19th century. Secondly, they seek to extend the time limit to up to two years for domestic abuse victims to be able to report their abuse to the police. I shall be glad to support both amendments. The courts and prosecutors should not have to rely on workarounds.
Baroness Newlove (Con)
My Lords, as the former Victims’ Commissioner, I am amazed by these time limits. To find our domestic abuse victims were being constantly told they were timed out beggars belief in the 21st century, considering we can buy an item in our homes that has a 10-year guarantee, a two-year guarantee, or whatever, yet common assault has six months. What does that say about how we look at human lives?
Under current rules on common assault, any instances of common assault, regardless of context, must be reported within six months of the incident occurring. If a report is made outside this six-month period, there is no option, as has been said, for the police or the CPS to bring charges and, unless there are other charges to be brought, the alleged perpetrator faces no further action.
The CPS definition of common assault is
“any act by which a person intentionally or recklessly causes another to suffer or apprehend immediate unlawful violence.”
It does not necessarily have to include literal physical violence; it can include raising a fist, spitting or using threatening words.
The reason for the rule is that we need cases to travel through the system quickly—especially considering recent court backlogs and long delays across the system. However, the rules on common assault are built on the assumption that crimes can be reported quickly and easily. This might be the case for a fight in the street with a stranger, but it cannot and should not be applied to domestic abuse contexts.
Regarding the impact on victims, most will not even know that this law exists until they come forward and find that it is too late. They will make the hugely brave decision to come forward and make a report to the police, only to be told that time has run out and there is nothing to be done. Victims are being left completely in the dark.
Perpetrators, however, will often have the support and guidance of a legal representative, especially if they have offended in the past. It is highly likely that perpetrators are much more aware of this time limit than the victims—some perpetrators may even use this loophole in the law to their advantage.
The time limit not only allows perpetrators to carry on abusing, it emboldens them to do so. There are sure to be cases where a victim has come forward with their report; it has failed due to the time limit, and they have faced further abuse and violence as punishment or retribution for telling the police. The time limit in its current form is putting victims in harm’s way.
The offences covered by common assault—threatening words, raising a fist and spitting—are the types of crime that can easily escalate if perpetrators are not stopped. The time limit is preventing any kind of intervention. The message being sent to victims by the current law is that common assault is not important enough to prosecute, and that victims will be listened to only if they have been more seriously hurt.
Common assault is often the only charge left to lay. Police officers have spoken to me about their frustration in trying to reach the higher evidence threshold for actual bodily harm or coercive control and being told by the CPS that it should be downgraded to common assault instead. However, because of this rule, it is often too late. A dangerous perpetrator is allowed to go free and will probably go on to offend again, against the same victim or someone new.
Police forces have also spoken about the complexity of investigating domestic abuse. It can often require extensive digital investigation and the need to gather medical and forensic evidence. All this takes time and often cannot be done in a six-month window, even if the victims report straightaway.
There are examples of victims coming forward with reports a month or two after an incident occurs—so within the time limit—but cases still failing because they cannot be adequately investigated in the time left. So, it is not just about victims coming forward, it is about the complex nature of domestic abuse, which is not currently reflected in the law.
BBC figures obtained through freedom of information requests show that nearly 13,000 cases of common assault in the domestic abuse context were closed due to the time limit between 2016-17 and 2020-21. Only 30 of the 43 police forces in England and Wales responded to the freedom of information request, so the real figure is likely to be much higher. In the same period, the number of common assaults flagged as domestic abuse increased by 71%. Meanwhile, the number of these common assaults that resulted in charges being brought fell by 23%.
Baroness Chakrabarti (Lab)
My Lords, I support both noble Baronesses’ amendments and urge the Minister to accept them with alacrity or, if that is not possible, to work with the noble Baronesses and parliamentary counsel to achieve the compelling intentions behind both amendments.
The last thing my noble friend Lady Kennedy of Cradley needs to do is apologise to the Committee for not being a lawyer because, if I may say so, her speech in support of her amendment combined every ounce of detailed legal reasoning with a humanity of which any lawyer would be proud. The anomaly to which she refers goes back to the 1956 Act, which sat around on the statute book before the 1997 Labour Government conducted a sex offences review. Clearly, this anomaly has not been corrected.
This particular offence is very grave, and it should never have had a time limit. In criminal law, we understand why certain lesser offences should be time-limited. We would not want every ordinary common assault or minor act of shoplifting not to be subject to a time limit, with this sword of Damocles potentially hanging over young people for the rest of their lives. We understand the public policy reasons to have time limits, but I suggest that to have them for such grave offences is contrary to the rule of law and fundamental human rights. The anomaly to which my noble friend Lady Kennedy of Cradley spoke so well clearly puts this jurisdiction in violation of Article 3 of the European Convention on Human Rights, and probably Article 14, on account of the various types of discrimination that are also involved—between not just boys and girls at the time, but children and adults who did not consent. We rightly assume that young children do not have the capacity to consent.
My noble friend Lady Kennedy is so right that the rule against retrospectivity is a presumption against changing the substance of a criminal offence. She put the point well: it is not there to prevent us from dealing with procedural obstacles that are unconscionable, as she is attempting here. So I see no problem at all with retrospectivity, because it would be contrary to any notion of human rights or justice for a defendant charged today, tomorrow or as soon as this is enacted, to argue that he thought he was in the clear because enough years had passed since this terrible crime. Even with substantive changes to criminal law, there have been exceptions to the presumption against retroactivity, as we saw in the higher courts some years ago when the position on marital rape was changed. In one case, the defendant said, “This is not fair; I raped my wife when I thought I was allowed to.” In any event, this is a procedural matter that is standing in the way of dealing with a terrible anomaly and human rights violation that will be ongoing unless we deal with it.
As to Amendment 292C in the name of the noble Baroness, Lady Newlove, and her supporters, common assault can be a minor enough offence in certain contexts, such as the two young people who have a fight. It is fine to leave a short time limit for that, but domestic abuse is a very particular context in which the victim, whoever in the family they are, may well still be in the abusive situation within those two years. Rather than create a separate specific offence of common assault domestically, why not deal with it in the fairly neat way that the noble Baroness, Lady Newlove, has?
If the Minister or his colleagues disagree with me, no doubt they, with the aid of parliamentary counsel, can come up with the right fix. However, I say to this Committee that both of these matters need to be dealt with not in future but with this vehicle. Frankly, there are lots of things in this very large Bill that I do not agree with, but the Bill would do something good if these two matters were tackled immediately.
Lord Russell of Liverpool (CB)
My Lords, I was very happy to put my name to the amendment in the name of the noble Baroness, Lady Newlove, but first I will refer briefly to Amendment 277. The first thing I have to say is that, as any inhabitant of the West Midlands will know, the noble Baroness who moved the amendment is the noble Baroness, Lady Kennedy of Cradley. It is pronounced “Cradely”, not “Cradley”—it is a bit like “Chumley” instead of “Cholmondeley”.
My second point is this: the point made by the noble Baroness about the amount of time that sometimes elapses before individuals feel able to come forward is a moot one. Yesterday evening, I watched a new programme with my daughter. It was a documentary on a well-publicised streaming platform that begins with the letter “N”; I will not advertise it here. The programme is called “Procession” and deals with the way in which five men, all of whom were the victims of predatory Catholic clergy 30 to 40 years ago, have finally started being able to talk about what happened to them and come to terms with it. When something like that happens to one at that age—in this particular instance, these young men were even younger than the people we are talking about, aged between 13 and 16—it does not take a brilliant imagination to work out the sort of trauma that it must instil in people and how difficult it can be even to recognise it oneself, let alone bring oneself to talk to others about it. The noble Baroness’s point was well put; it will be hard to disagree with her.
On Amendment 292C, first, I put on record my thanks—indeed, our thanks—to Yvette Cooper, who has been pursuing this forensically in another place. Her latest attempt was made today when she asked the Home Secretary directly what her view on this is and whether anything will happen. I am not clear why we are debating this amendment at all because, on 5 July, Victoria Atkins, now in the Ministry of Justice but the then Home Office Minister, said this in the House of Commons when talking specifically about this same amendment:
“We take this issue very seriously, and I can assure the House that we will return with a proposal at a later stage. I certainly do not rule out an amendment, if appropriate, in the Lords. This must be looked into”.—[Official Report, Commons, 5/7/21; col. 572.]
There it is on the record.
As the noble Baroness said, the Home Office seems to have developed a sort of hotline with certain reporters in the BBC, where certain potential developments are briefed to the BBC, which puts them out fairly prominently. There is then complete radio silence; there is no acknowledgement by the Government or Home Office in any way, shape or form that a briefing took place, so we are left in a slight quandary as to whether it did or not. Unlike some noble Lords, those of us on the Cross Benches have a high enough regard for the BBC that we tend to believe it when it comes out with something like this, so I find this practice of putting these things out into the public domain then saying nothing about them somewhat unhelpful. Frankly, it is a sort of legislator abuse since many of us are trying to do our best in talking on behalf of others and it is confusing when the Government apparently say one thing to the media and then stand at the Dispatch Box and say something similar to what they have been saying, sometimes for many years. My noble friend Lady Newlove put the case clearly.
Lord Hunt of Kings Heath (Lab)
My Lords, I have added my name to the amendment in the name of the noble Baroness, Lady Newlove; I also support my noble friend in her powerful advocacy for her own amendment.
I want to emphasise a couple of points made by the noble Baroness. She referred to HMIC report, Police Response to Violence Against Women and Girls. I must say it makes for very sober reading about the inadequate response of many police forces to these issues. We know from the report and from the statistics referred to by the noble Lord, Lord Russell, that many cases do not proceed through the criminal justice system and, of the offences that do come to the attention of the police, many do not proceed any further. I would not argue that time limits are the sole reason, but they are a factor. I am indebted to Refuge, which does fantastic work in this area, for setting out some of the challenges that particularly women experiencing domestic abuse face and why they delay reporting incidents of common assault. They may feel understandably traumatised or physically unsafe immediately after the incident. They may still be in a relationship with the perpetrator. They may be dealing with the traumatic and logistical challenges of fleeing the scene.
Due to the six-month time limit on charging summary common assault offences, by the time many women are ready to speak to the police, they are told that the charging time limit has passed and there are no further opportunities for them to seek justice against their perpetrator or access protection through criminal restraining orders. There are so many reasons why, quite legitimately, women in particular are not able to come forward and meet the time limit. I appeal to the Minister not to respond with a typical ministerial response but to say that he will take this away and look at it. I echo the point made by the noble Lord, Lord Russell. I have noticed the practice of announcements being made in the media about what the Home Secretary is going to do but then often dying a death. We realise that sometimes they are flying a kite to see how it lands, but this is not the way to do business on such sensitive and important issues. I hope that the Minister will bring us comfort.
Lord Pannick (CB)
My Lords, I, too, support these amendments. I shall add two very brief points in relation to Amendment 277, which was moved by the noble Baroness, Lady Kennedy. First, the noble Baroness referred in her speech to the Appellate Committee decision in R v J. The Committee may be interested to know that in that decision Lord Bingham of Cornhill, the senior Law Lord, said at paragraph 15 that the history of the 1956 Act
“has been shown to result in much internal inconsistency and lack of coherence”.
His Lordship added that the fact that an unambiguous statutory provision—and it is unambiguous—is
“anachronistic, or discredited, or unconvincing”
does not enable a court to do anything about it. This Committee and Parliament are, of course, under no such inhibition, and for the reasons that have been given, I hope we will do something about it.
The only other point I want to make is that any defendant in any criminal case who believes that the passage of time results in unfairness to them is perfectly entitled to submit to the court that it would be an abuse of process for the trial to continue. They are perfectly entitled so to argue, but that is not a reason why we should not amend the law in the way suggested.
Lord Thomas of Gresford (LD)
My Lords, I am disappointed that the noble Lord, Lord Pannick, did not refer to the opinion of the noble and learned Baroness, Lady Hale, in the case of J. She dissented—notwithstanding Lord Bingham’s inability to change the law—in these words:
“In short, the 1956 Act was a mess when it was enacted and became an ever greater mess with later amendments. It is not possible to discern within it such a coherent Parliamentary intention as to require it to be construed so as to forbid prosecution for a “mere” act of sexual intercourse after 12 months where that act properly falls within the definition of an indecent assault. Although we do have to try to make sense of the words Parliament has used, we do not have to supply Parliament with the thinking that it never did and words that it never used.”
I think we can see which side the noble and learned Baroness, Lady Hale, was on in that case.
The restriction has had an interesting history. Non-consensual sex was, and is, of course, rape, but consensual sex was a different matter. A girl was protected until the age of 10 under Queen Elizabeth I, to the age of 12 under George IV, 13 in 1875 and finally 16 in 1885. The time limit for bringing proceedings was at first within three months in 1885, which was increased to six months in 1904 and to nine months in 1922, and a provision of the Criminal Law Amendment Act 1928 increased the time limit to 12 months. It was anomalous then, and it is anomalous now, and I fully support the amendment in the name of the noble Baroness, Lady Kennedy of Cradley.
Amendment 292C in the name of the noble Baroness, Lady Newlove, seeks to extend normal time limits imposed on summary proceedings in the magistrates’ court and suggests that an offence of common assault may be brought within a period of six months from the date of reporting, rather than the date of the incident, with an outside limit of two years where it comes within the ambit of domestic abuse. This is an issue that might well have been discussed in the recent passage of the Domestic Abuse Bill. Summary proceedings are really intended to be summary. Assault and battery are attacks or threats of attack on the person. If significant injuries are caused, they should be tried on indictment in the Crown Court as ABH—assault occasioning actual bodily harm. So where is the dividing line between common assault and ABH?
The noble Baroness, Lady Newlove, referred to the CPS guidance Offences Against the Person, Incorporating the Charging Standard, dated 6 January 2020, which states that common assault is charged
“where injuries amount to no more than … Grazes; Scratches; Abrasions; Minor bruising; Swellings; Reddening of the skin; Superficial cuts.”
By contrast, ABH includes
“damaged teeth or bones, extensive and severe bruising, cuts requiring suturing”
and injuries
“that result in loss of consciousness.”
ABH is appropriate where
“the victim is vulnerable or intimidated”,
including
“a pattern of similar offending against the victim”,
and if a person suffers mental stress, that can also be seen as ABH. Your Lordships will appreciate that if the case is brought for ABH on indictment, this procedural limitation of the magistrates’ court does not apply.
Therefore, it is arguable that injuries of the nature that require interfering with the customary time limit applied in summary proceedings may not demand a change. I think the protections which are contained in the Domestic Abuse Act 2021 should deal with the problems in the area referred to by the noble Baroness, Lady Newlove. If a domestic abuse protection order is issued, breach of it is a criminal offence, which can be triable either way. A summary conviction may lead to a sentence of 12 months’ imprisonment, while conviction on indictment may lead to a term of imprisonment not exceeding five years.
This is the important point: a protection order can be made where the court is satisfied on the balance of probabilities. The prosecution does not have to prove beyond reasonable doubt that the victim has suffered. It is on the balance of probabilities for a protection order: simply that the person concerned has been abusive towards a person aged 16 or over to whom he or she is personally connected, where it is necessary and proportionate to protect that person from domestic abuse or the risk of domestic abuse. No time limits are set. I think we have moved on from common assault at common law in this field, and it may well be that this amendment is unnecessary.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I support both these amendments. My noble friend Lady Kennedy of Cradley is seeking to get rid of time limits relating to having sex with girls aged between 13 and 16 before 1 May 2004. As she said in her comprehensive introduction to the amendment, it is not known whether this anomaly, which a number of noble Lords have described, affects thousands of girls or fewer. It is simply not known. Nevertheless, from my understanding of the way she presented the case and the other comments on the amendment, it clearly seems to be a loophole which could be closed.
The noble Baroness, Lady Newlove, explained why common assault is different in domestic abuse cases from general common assault. As I think I have said in other Committees, I fairly regularly sit in domestic abuse courts in magistrates’ courts, and I have to say that I disagree with the concluding comments of the noble Lord, Lord Thomas of Gresford, that we seem to have moved on from common assault with domestic violence protection orders. Certainly, the way I view them, and I do those courts as well, they are very different because they are dealing with the civil standard. You can have cases where people have simply been abusive to each other and you are dealing with a very different type of case, in my experience, from common assault cases which you see in a more standard domestic abuse court.
Lord Stewart of Dirleton (Con)
My Lords, I thank the noble Baroness, Lady Kennedy of Cradley, for her amendment.
For the victim of a crime to be told that the culprit cannot be prosecuted because a time limit has elapsed would doubtless be the cause of, at the very least, dissatisfaction and, at the very worst, anguish, and may very well lead to a loss of confidence in the criminal justice system. That is why, in respect of offences that are serious enough to be capable of being tried in the Crown Court, such time limits are virtually unknown in our system of criminal law in England and Wales. That differentiates England and Wales from many other jurisdictions, where time limits apply even to the most serious offences.
In England and Wales, the only exceptions are certain customs offences and offences of unlawful but consensual sexual intercourse, which I shall refer to as USI, with a girl aged 13 to 15 years committed before 1 May 2004, when the Sexual Offences Act 2003 came into force. The statute which that Act replaced, the 1956 Act—I extend apologies to the noble Lord, Lord Ponsonby of Shulbrede, for yet further legal history here—included a requirement that a prosecution for USI with a girl aged between 13 and 15 must be commenced within 12 months of the offence. That requirement was highly unusual even when it was enacted, and it was duly removed by the 2003 Act. I am sure that members of the Committee will echo the words of the noble and learned Baroness, Lady Hale, quoted by the noble Lord, Lord Thomas of Gresford, in relation to the 1956 Act.
That was an anomaly, as the noble Baroness, Lady Chakrabarti, and other noble Lords have described it in our discussion today. However, when it was removed in 2003 it was done so only prospectively, from the point when the Act came into force; in relation to offences that would fall to be charged under the 1956 Act, the time limit remained.
As your Lordships are aware and have heard again today, Parliament usually acts on the principle of non-retroactivity. Removing the time limit in circumstances where a prosecution was already time-barred, while it would not have amounted to substantive retroactivity in the sense of criminalising conduct that was not previously unlawful, would have exposed a person to criminal liability where there had been none before. Thus, Parliament’s aversion to retroactive legislation also applies to fundamental procedural preconditions for the bringing of charges against an individual. In relation to that—the point was canvassed by the noble Baroness, Lady Chakrabarti—I make reference to the case before the European Court of Human Rights called Antia and Khupenia v Georgia. Oh, for a Lord Russell of Georgia, that I might be corrected for any mispronunciation of the names of any plaintiffs in that matter.
For that reason, we do not consider it would be right to disregard the time limit in the increasingly rare cases in which it would apply. Since the changes in the 2003 Act were not made retrospective at that time, I submit that it would be difficult to justify now extending them to cases in which prosecution has been time-barred for at least the intervening 17 years—even allowing for the development in our understanding of sexual crime, as referred to by Members of this Committee who contributed to the debate.
I join the noble Baroness, Lady Chakrabarti, the noble Lord, Lord Russell of Liverpool, and others in acknowledging the skill and humanity with which the noble Baroness, Lady Kennedy of Cradley, presented her amendment to the Committee. I am grateful to the noble Baroness for expressing a willingness to meet. I would be delighted to meet her at any time, but I think it would be more convenient for her, for the purposes purely of this amendment, to meet with my noble friend Lord Wolfson of Tredegar, the Minister in charge. I have taken steps by electronic means during the discussion in the Committee to arrange that my noble friend is made aware of her desire to meet, and an appointment will be fixed.
Baroness Chakrabarti (Lab)
Obviously I will go and read the Georgian case—I will call it “the Georgian case” so as not to repeat my earlier offence in relation to my noble friend—but, before any meeting, I will just say one thing. The Georgian case is now being cited as the reason why the Government will not move in my noble friend’s direction. I repeat my concern that we are currently in breach of the convention on human rights, not in relation to an Article 7 point but in relation to an Article 3 violation in relation to any woman, of whatever age, who now says “My statutory rapist will not be dealt with”. The Georgian case is up against cases such as X in the Netherlands and all the other cases where people were barred from getting redress in the criminal courts. That needs to be considered by the Minister as a senior law officer in Her Majesty’s Government.
If our positions were reversed and I had to face these two potential challenges in the European Court of Human Rights—a man who says “I had the opportunity to run Lord Pannick’s arguments about delay but none the less I was convicted of a historic statutory rape and I say that is a violation of my Article 7 rights” versus a woman who says “My rapist was not dealt with because of this time limitation”—I know which of those challenges I would rather defend as Her Majesty’s Government.
Lord Stewart of Dirleton (Con)
My Lords, I acknowledge the long-standing interest and expertise of the noble Baroness, Lady Chakrabarti, in this field. Her words will have been noted by the Bill team listening in on this, and I assure her and the Committee that that matter will be examined.
My intention was to turn now to the terms of Amendment 292C. Again, I am grateful to my noble friend Lady Newlove and the noble Lord, Lord Russell of Liverpool, for raising this issue in the Committee and, in so doing, raising a matter that, as your Lordships have heard, the Government have acknowledged in the other place to be an important one. The amendment would have the same effect as one tabled during the passage of the Bill through the other place, both in Committee and on Report—that is, to alter the period of six months allowed for bringing
“summary proceedings for an offence of common assault or battery involving domestic abuse”,
as defined by the Domestic Abuse Act 2021, so that it ran not from the commission of the alleged offence but from its being reported to the police within two years. I sense that the Committee will be as one in agreeing that it is essential that victims have confidence in the justice system—confidence that it is a fair, impartial system that will support them when they come forward.
A number of noble Lords who have given their views on this amendment have spoken of the context of domestic violence, in which these matters take place. We know it may take many attempts before victims of domestic abuse finally leave the abusive relationship, and that this may cause delay in reporting crimes to the police. When the Bill was in the other place, we acknowledged the concerns about the possible effect of the six-month time limit for prosecuting summary-only offences—common assault in particular—in domestic abuse cases. Again, there is no disagreement between us about the importance of domestic abuse victims being able, practically, to seek justice. They should not be frustrated in so doing by the standard time limits set by Section 127 of the Magistrates’ Courts Act 1980, should the evidence indicate that this time limit is too short in this context.
We were clear in the other place that this is an issue that must be looked into. The Home Office has been working to obtain data on cases that appear to have been brought to an end through the operation of the current time limit. I am also aware of the media coverage, to which the noble Lords, Lord Russell of Liverpool and Lord Hunt, referred. I note the concern expressed that, for whatever reason, it would appear that matters are being submitted to the press in advance of proper scrutiny by Parliament. Being aware of those concerns, I will relay them to the appropriate quarters.
I can confirm to the Committee today that we agree that there is a problem here and that domestic abuse-related crimes are disproportionately likely to be timed out. The Domestic Abuse Act demonstrated clearly this Government’s determination to address domestic abuse, and throughout its passage we showed our willingness to listen and take additional steps to address this abhorrent crime. It is important that we develop a proportionate response to this issue, so I ask for the patience of the Committee while we complete consideration of the matter and finalise our proposals. As the previous Minister for Safeguarding at the Home Office—now Minister of State at the Ministry of Justice—the Member of Parliament for Louth and Horncastle, Victoria Atkins, has stated, that might include an amendment. We will complete our consideration shortly, and I assure the Committee that we will return with a proposed course of action on Report.
I hope all Members of the House with an interest in this subject, including the noble Baroness, Lady Greengross, who spoke on it on Second Reading, will be reassured by what I have been able to say. Therefore, on the clear understanding that we agree there is a problem to resolve and that we will be able to return to the issue with our conclusions on Report, I urge the noble Baroness to withdraw her amendment at this stage.
Baroness Kennedy of Cradley (Non-Afl)
My Lords, I am grateful to all noble Lords and noble and learned Lords who have spoken in today’s debate and supported my Amendment 277 and Amendment 292C in the name of the noble Baroness, Lady Newlove, and others. I am heartened by the debate. I thank the Minister for his reply; however, I am disappointed that the retrospective argument is the main one being given for not moving ahead to change this legislation. But I am hopeful and grateful for the agreement to meet the noble Lord, Lord Wolfson, to discuss this issue further before Report. I thank my noble friend Lady Chakrabarti for potentially giving me another reason—Article 3—for this legislative change. I will go and read the case cited around the article and discuss this directly with her to add the argument to my armour.
“Referendums on abolition of Police and Crime Commissioners
(1) A referendum is to be held for each police area listed in Schedule 1 to the Police Act 1996. (2) Each referendum is to be held on the same day as the next Police and Crime Commissioner election.(3) The question that is to appear on the ballot papers is—“Do you think that your local police force should be overseen by an individual Police and Crime Commissioner, or by a Police Authority made up of a committee of local councillors.”(4) The alternative answers to that question that are to appear on the ballot papers are—“My police force should be overseen by an individual Police and Crime Commissioner”, and“My police force should be overseen by a Police Authority made up of a committee of local councillors”(5) Those entitled to vote in the referendum are the persons who, on the date of the referendum, are allowed to vote as electors in the Police and Crime Commissioner election.(6) Where the referendum results in a majority for a police area being overseen by a Police Authority made up of a committee of local councillors, the Secretary of State must by regulations made by statutory instrument make provision for the purposes of implementing the result within one year of the passing of this Act.”Member’s explanatory statement
This amendment is intended to establish referendums to determine how each local police force should be governed.
Baroness Jones of Moulsecoomb (GP)
The two amendments I have tabled in this group are not on such a weighty issue as the sexual crimes we have been discussing. But they are on an issue of democracy, and I thank the Government on this occasion for making the Bill so gigantic that these two amendments come within scope. There are two distinct issues in my amendments. Amendment 278 focuses on the abolition of police and crime commissioners, and Amendment 279 is about abolishing the £5,000 deposit needed to stand as a candidate in police and crime commissioner elections.
Under the referendum idea, each police area would have its own referendum held on the same day as the next police and crime commissioner election. The question would be whether to keep police and crime commissioners or return to police authorities made up of a committee of local councillors. Importantly, for a referendum, my amendment also includes provision that the Secretary of State must then implement the result by statutory instrument, because this is intended to be a binding referendum, not an advisory one with no legal consequence.
The Green Party does not believe that police and crime commissioners have been a success. They have replaced a democratic, committee-based system with a directly elected position subject to very little scrutiny. Most normal people do not pay much attention to politics, and that is true across the board, but when you get as far down the pecking order as police and crime commissioners, even many political boffins probably could not name their local PCC. It was an unnecessary political experiment, and local people should be given the option to return to the old system of committee governance.
We have one former Met commissioner here, and he might be able to agree with me that the Metropolitan Police Authority and the assembly committee charged with holding the police to account worked extremely well. I am not suggesting something that has not been proved to work in the past.
Amendment 279 is about deposits and is limited to PCC elections due to the scope of the Bill, but election deposits should be abolished completely for all elections. Supposedly, they exist to deter joke candidates, allowing only serious candidates to stand for election, but it is obvious that this does not work. There are plenty of joke candidates who are not deterred by the deposit. One only has to think back to the Prime Minister’s election battle against Lord Buckethead, Count Binface, and a person dressed as Elmo. All three lost their deposits and seemed thoroughly to enjoy doing so. The 2019 general election saw 1,273 parliamentary candidates each lose their £500 deposit, totalling £636,500. The figure included 465 Green Party candidates, 136 Liberal Democrats, 165 Brexit Party candidates and 190 independent candidates.
Therefore, joke candidates were not deterred, and neither were very committed candidates who wished to stand for election to help improve their local area. However, the outcome was that the established parties—the Conservative Party and the Labour Party—kept most of their deposits, with anything that they did lose a drop in the ocean of their overall party budgets, while the smaller parties and independent candidates suffered a huge financial disadvantage. Election deposits are nothing more than an election tax on people who want to participate in the democratic process, and they should be abolished. I beg to move.
Baroness Harris of Richmond (LD) [V]
My Lords, I have added my name to these amendments, which are indeed timely. Back in May 2011, during the passage of the Police Reform and Social Responsibility Bill, I tabled an amendment which effectively scuppered the then Government’s wish to bring in police and crime commissioners. It was a pyrrhic victory, of course, because when the Bill went back to the other place, almost everything that the Government wanted was reinstated. They got their police and crime commissioners. However, it was very much a cross-party effort to bring forward hundreds of amendments, as the noble Lord, Lord Hunt of Kings Heath, will recall.
Looking back on those amendments, it is quite clear that we were right in our condemnation of moving from police authorities, which had 17 or 19 members, to a stand-alone police and crime commissioner. I declare my interest as a former chair of a police authority and as a vice-chair of the former Association of Police Authorities. Much of what we warned has come to pass. Commissioners are political creatures. Hardly any have been independent, which was the wish of the former Prime Minister, David Cameron. We said that this would happen, and it did. We also said that there would be some good commissioners, which there have been, and others varying from not so good to downright terrible.
This has been borne out in my own area of North Yorkshire. Allegations of bullying brought against our first PCC, among other strange decisions that she made, lost her the support of her political allies, so they got rid of her. We had another expensive by-election, which was of course won by the Conservative candidate. Within a very short time, public opinion hounded him out of office because he made incredibly damaging and insensitive remarks following the murder of Sarah Everard. We are shortly to find out who will succeed him, as we have yet another election, the third in 10 years. Up and down the country, PCCs have been found wanting, which I simply do not recall happening in the days of the old police authorities, when checks and balances were shared by having local councillors—elected representatives from different parties—magistrates and lay people to help in the governance of their local police force.
Most Members of your Lordships’ House recognise the dangers inherent in politicising the police. Amendment 278, which proposes a referendum on the abolition of PCCs, or having local councillors to hold the police to account, as was the case for many years before the PRSR Bill came into being, will allow for the governance of policing to be brought back into greater local accountability, as the noble Baroness, Lady Jones of Moulsecoomb, has said. Amendment 279 would remove the need for an election deposit of £5,000 for PCCs, thus enabling a wider selection of people to apply to become commissioners. Amendment 292D is also timely, as we have at present at least one PCC who has been convicted of a crime.
This experiment has not been the success that it was promised to be. As we have heard, most people still have no idea who their police and crime commissioner is, or what the cost is of running a dedicated office. Certainly, I managed with an office of three personnel. Different PCCs run many more than this, although I am happy that the former Association of Police Authorities has come through the changes with relative ease and just a slight change of name. The work that it did for us was phenomenal and I am sure that its successor organisation is equally excellent, but it has its work cut out with some of its members. This is the first time in 10 years that we have had the opportunity to return to a better system of police governance. I hope that we will take it.
Lord Bach (Lab)
My Lords, Amendment 292D is in my name. I hope that noble Lords will indulge me if I respond with a few remarks on Amendments 278 and 279. I will do it all in one go and be as brief as I can. I do not intend to take up very much of the Committee’s time with these issues.
Amendment 292D perhaps should not be part of this group but it is, so I will move ahead with it. It is because of the scope of this Bill that I have been able to table this amendment. I will start with two case histories. The first is about a 19 year-old, who, a long time ago, during the Italia 90 World Cup—which noble Lords in the Committee will remember—was in a public house with a friend, watching the football. An incident in which the friend was involved meant that the police were called. The first individual tried to stop his friend from making an even greater idiot of himself by assaulting the police and, for his pains, he was charged, no doubt properly, with obstructing the police. He was not charged with assault, but he was fined £20. Since then, he has never been in trouble again. He has been a councillor for many years and, ironically, he chaired the community services team—that part of the council which works closely with the police to reduce crime. He also happens to be the regional secretary of a very important organisation covering the whole of the Midlands and, to add irony upon irony, he is just celebrating his 20th year as a magistrate. Public-spirited, he applied to be a candidate for the position of police and crime commissioner in his area some years ago, only to be told that his conviction banned him from doing so.
Lord Bach (Lab)
I am sorry that it has taken so long. I have waited a long time for this opportunity in the Committee and I am sorry if I have abused it.
A good police and crime commissioner should be a combination of a diplomat and an innovator, with a sense of responsibility while doing the job. I am glad to say that the vast majority of them, if not all, see the position in that light. They deserve some support and not always denigration.
Lord Hunt of Kings Heath (Lab)
My Lords, I have added my name to these two amendments and I hope the Minister will agree to take them away. I did so, first, to support my noble friend Lord Bach, and, secondly, not so much to agree with the noble Baroness, Lady Jones, on her actual amendment but to try to develop a debate on the role of police and crime commissioners. As my noble friend has said, unfortunately we have had little opportunity to do so since the Bill in 2011 and the Act that was subsequently passed came in.
As the noble Baroness, Lady Harris, said, I led for the Opposition at that time. We were very glad to work with her and opposed the concept. It was defeated in the Lords and the Bill went back to the Commons without a reference to police commissioners, which was subsequently put back in. The fear at the time was always that it would risk undermining tolerant policing in this country by bringing political partisanship too close to police operational matters. I suggest that there is still that fear around the way in which PCCs have operated. There have of course been notable successes—I mention my noble friend Lord Bach, Dame Vera Baird and David Jamieson in the West Midlands as examples—but there have been failures too. A number of police and crime commissioners have had to resign prematurely under what one might call somewhat unfortunate circumstances.
During the passage of this Bill we have debated policing quite extensively, particularly in relation to lamentable performances on domestic violence. My noble friend Lord Bach, whom I rarely disagree with, thinks that nine years is too short a period on which to make a judgment. However, I think I am entitled to point out that on the cultural issues which are very much at the heart of police failures in relation to domestic violence, I cannot see much evidence that this new leadership has been able to tackle those effectively.
A two-part review of PCCs is going on at the moment. The first part reported in October last year and there is a second review. It is interesting that this review is not getting anywhere near the heart of the issues around PCCs. It is also interesting that, in the first review, a lot of reference was made to the dismissal process for chief constables, which reflects the fact that there has been a fallout in many areas between the PCC seeking to exert his or her power and the chief constable. There has been instability. Because of this, there is a shortage of candidates for chief constable roles—not surprisingly.
Of course, the tension between chief constables and police and crime commissioners was built into the legislation. PCCs were there to provide political leadership for policing in their area, but they were not responsible for leading their force. Police chiefs retained operational independence, making independent decisions supposedly free from political interference on operational matters. Of course, there is no definitive list of operational matters, nor an expectation that operational decisions should be free from political scrutiny altogether. Inevitably, a grey area was built in between policing matters that PCCs can influence and those that are at the operational discretion of chief constables.
Going back to our debate on the Bill, where policing culture and failures in domestic abuse have been so evident, it is interesting that Ministers and noble Lords who have debated this extensively have laid responsibility clearly at the hands of chief constables. PCCs have hardly had a mention. Why not? If PCCs cannot get a handle on crucial issues such as this, what on earth is the point of them in the first place?
Obviously, the model that the Government started with was a US model. The logic, when they first brought in the Bill, was for PCCs to be given much more power than they have been given because of their democratic accountability. However, the Government backed off, partly through fears of politicisation, but also because of the usual Whitehall paranoia about letting go. One of the stated aims of PCCs was for police forces to stop looking up to Whitehall and be more accountable locally. If anything, in the last 10 years, we have seen more and more interventions by Home Secretaries into the work of chief constables and pronouncements on strategic policing requirements. Home Secretary interventions have become the order of the day. The end result is utter confusion as to where accountability lies, ambiguities and tensions between the role of the PCC and the chief constable and a sense that policing lacks effective direction.
I look forward with interest to part two of the review that the Government are undertaking but, when one looks at the areas that they are inquiring into, it seems that none of them goes to the heart of the issue of what PCCs are really for and whether they are going to be given the powers to carry that out. That is a matter of regret.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, I briefly but strongly support Amendment 292D, but not the other two—I say that without needing much elaboration. I have two main reasons for supporting Amendment 292D. First, it is promoted by the noble Lord, Lord Bach, for whom I always have the greatest regard. He now has the expertise and experience of this job, so his judgment on it, as he knows what he is talking about, is surely worth listening to. We should take advantage of the expertise that he now has in this field and his appreciation of the crunch issues that are involved.
The second main reason is this: I am generally against these absolutist or purist positions such as those adopted uniquely—it appears—in this legislation. Once you have sinned, you are out for life. It is ridiculous. Some small measure of discretion or flexibility is generally an advantage. Of course, it is unlikely to happen that often, but we have surely heard two wholly compelling instances where it is a flagrant injustice to say to these people, now in maturity, having served the public, that because of one slight error in their youth and having strayed once they are never eligible again. This is a point of genuine principle: we ought not to pass this opportunity of putting it right.
Lord Hogan-Howe (CB)
My Lords, I support the noble Lord, Lord Bach, in his amendment. He could have added police officers to his list of occupations that would not have been barred. He chose not to, but it seems rather odd that only police and crime commissioners can be excluded entirely by a previous conviction.
I do not agree with the amendments proposed by the noble Baronesses, Lady Jones and Lady Harris, and the noble Lord, Lord Hunt. I do not know whether I have unique experience, but certainly I have experienced both police authorities and PCCs as a chief constable and then as a commissioner. Having been the person held to account, I am probably the person to whom you would least listen—I may have the most prejudice. I find both roles to be about equally effective and, frankly, equally ineffective.
Police authorities had the great benefit that they were a broadly based group of people, rather than one person. They were not directly elected, but they tended to create an awful lot of committees. The consequence of creating committees is that things take an awfully long time: that may not be understood here, but people take a lot of time to make decisions. That was my experience. Police and crime commissioners, where you could get a good relationship, tended to make quicker decisions, but, frankly, in somewhere like London, they struggled to be representative of the nearly 9 million people or to hold all the views—particularly of minorities —through one person. That was a challenge, but it could be overcome at times. Certainly in London, which was my latest experience, there has been a plethora of accountability regimes, whether it be a police and crime commissioner selected by the mayor, the Home Secretary, 32 local authorities, the police and crime scrutiny committee and a number of committees of Parliament. I am not sure that that made it better accountability; it just made more of it.
We ought to think carefully about how we govern the police. I am not sure that this is the best way to address that problem. It could be improved, but I am not sure that this is the best way. There are three reasons for this. On the point made by the noble Lord, Lord Hunt, is the fact that you are only getting one applicant for the role of chief constable good evidence that this is because of PCCs? It may be, but I think that it is more to do with the fact that the officers who are applying believe that the solutions have already been determined. They believe that the police and crime commissioners, usually with the sitting deputy, are going to select that person, whereas in the past, with police authorities, at least there was a broad spectrum of people and it was far harder to arrange a conspiracy. I think that it is good evidence, but perhaps for the wrong reason. It is a problem that needs to be addressed and it is not helping the police leadership to develop in the future.
My objections to the amendment are around logistics. If we end up having a referendum at every PCC election, the danger is that we will end up around the country with a mixed tapestry of governance. In some places it would be PCCs and in some places it would be police authorities. We might even flip them at the succeeding election, although I guess that you would not get one if you had a police authority—there would not be another opportunity to have a referendum and then reselect a PCC.
In our current police tapestry, we have 46 forces, 43 of which have local accountability. This has to happen nationally, whether it be the police authorities or PCCs; we need to make national arrangements to govern these things. We already have a complicated arrangement: with 46 governance sets—with different governance sets as well—that is a tapestry too far.
If these things are to be changed, we should look at it properly, and in the round. We should see what has worked and what has not to make improvements. What we should not do is decide it locally. This is a role for government; the governance of the police should be set centrally. There may be local affiliations, but the Government have responsibility to set the governance of the police. As I have said before, I would have far fewer police forces, which might make this a little easier. Whether one agrees with that or not, I would not have a referendum every time a PCC is elected.
Lord Carlile of Berriew (CB)
My Lords, I also rise to speak particularly about Amendment 292D. I support the noble Lord, Lord Bach, with all his experience of being an excellent police and crime commissioner.
There are many other examples. The noble Lord gave two. I shall just give one. A 59 year-old senior civil servant who worked for the Ministry of Justice in a responsible position connected with the criminal justice system, wished to retire and stand to be a police and crime commissioner. He was disqualified because, at the age of 13, he had been fined £5 for each of two minor juvenile offences. It is completely disproportionate and absurd that such people should be disqualified.
I seek to compare those disqualification rules with the rules applying to Members of another place. The last figures I saw produced by IPSA, the standards authority for Members of the other place, revealed that, in recent years, 43% of the Members of the other place had convictions of one kind or another. Maybe that tells you a lot about the other place. Nevertheless, this distinction makes its own point.
In passing on to the other issues, I agree very much with my noble friend Lord Hogan-Howe. Fundamental to this problem is the fact that we have 43 territorial police forces. This number ought to be at least quartered. If so, the structure—including police and crime commissioners—would be much more coherent. There would be far greater consistency and police forces which currently struggle to deal with very complex inquiries would be able to deal with them because they would have the critical mass of staff.
I turn next to police authorities. I hesitate to disagree with those noble Lords who tabled the first amendment in this group because I respect them all. Part of my experience as a Queen’s Counsel has been to advise police authorities when they have got into difficulties. I recall one case from the north of England in which the police authority concerned was institutionally corrupt and in the pockets of a small group of senior police officers. It had got itself into a hopeless mess and at least one criminal prosecution ensued. To describe it as an example of democratic effectiveness was an insult to both democracy and effectiveness.
I accept, of course, that some police commissioners are better than others. So are some Cabinet Ministers. So are some head teachers. So are some doctors. So are some Members of Parliament. This is inevitable. Some of the commissioners are very good, such as the noble Lord, Lord Bach, and Dame Vera Baird, who was referred to earlier. Where police and crime commissioners are effective, they are very effective indeed.
Just think about it territorially. If one of these referendums took place and there was a police and crime commissioner in Cheshire but not in Lancashire, or one in north Wales but not in Dyfed-Powys, people in the areas that did not have a police and crime commissioner would be unlikely to say, “Oh, how wonderful; this is going to be run by our local council.” In the modern world, they will say, “Our democratic rights have been diluted.”
Other noble Lords remember, as I do, when the Welsh Assembly was created. In many parts of Wales, people said, “Nobody will know who their Assembly Members are. It’s all a waste of time. It will be completely ineffective.” It is true that, for a time, people tended not to know who their Welsh Assembly Members were. Today, however, if you look at the evolution of the Welsh Government during the last 20 years or so, it has become remarkably effective. It has brought people much closer to government.
I believe that police and crime commissioners are still evolving. They have a valuable role to play, particularly, as I said earlier, if the Government have the courage to reform the territorial policing services in this country.
As to the deposits, I agree with the noble Baroness, Lady Jones of Moulsecoomb. The £5,000 deposit is not reasonable. I would not oppose a much lower deposit of the kind that has to be put down by somebody standing to be elected as a Member of Parliament. The election process is expensive. Some kind of gatekeeping requirement of this kind is helpful.
Lord Paddick (LD)
My Lords, with the greatest respect to the noble Lord, Lord Carlile of Berriew, when he started talking about amalgamating police forces again and the Welsh Assembly, I wondered whether this was turning into a filibuster. However, we move on.
The issue raised by Amendment 292D that we all agree on is that it is ridiculous that somebody convicted of a very minor offence at a very young age should be disqualified. The other side of the coin is that there is no process for the recall of a police and crime commissioner who commits an offence in office or is guilty of misconduct. Because they are democratically elected, the only way to get rid of them is by another election. Compare this to MPs, for whom there is now a process by which a by-election can be triggered. I agree with Amendment 292D, but there is another side to the same coin which also needs to be addressed.
We on these Benches have always been opposed to police and crime commissioners, notwithstanding, as everybody has said, that there are some outstanding ones, as the noble Lord, Lord Bach, was. Not just because he used to be my boss—this is the House of Peers now—I agree with almost everything the noble Lord, Lord Hogan-Howe has said.
Lord Bach (Lab)
Would the noble Lord forgive me for a moment? I know his view has always been consistent on this, but the truth of the matter is that the Bill got through only because of the support of both parties in the coalition; one of those parties was the Liberal Democrats. It is very easy to say now that you are not in favour of it as a party, but you clearly were in favour of it because you passed it into legislation. I am sorry if it is a crude point, but it happens to be true.
Lord Paddick (LD)
Yes, and, as the noble Lord will very well know, in a coalition there have to be compromises on both sides. You cannot get through the things you think are absolutely important unless you give way on others. However, the policy of this party now is to oppose police and crime commissioners. I am very grateful to the noble Lord for allowing me to clarify the position of the party on that.
It is very difficult for one person to represent both rural and urban areas in policing, or perhaps an area where there is a large African or Caribbean community and another where there is a large south Asian or Chinese community, or even an LGBT community. These could and do exist within the same police area—as in London, for example. Therefore, with one police and crime commissioner for that whole area, it is difficult for that one person to represent all those communities. It is important to be represented when it comes to accountability around policing, particularly for minority communities, where trust and confidence in the police are not as strong as they are with others.
As others have said, the majority of police and crime commissioners are party political. Therefore, there is a danger that a small “p” political difference between a police and crime commissioner and a chief constable, or even a commissioner—without pointing at any particular examples of that—could result in a good chief constable or commissioner having to resign over that small “p” political difference, or even a personality difference with the police and crime commissioner
As the noble Lord, Lord Hogan-Howe, has said, we are in a position where, because it is one person hiring and firing the chief constable, we are not getting a range of candidates applying for the chief constable post. The assumption is that the incumbent deputy will have a good relationship with that police and crime commissioner and have a natural advantage over any outside candidate, and therefore it is not worth applying. For all these reasons, we feel that having a range of people holding the police to account—particularly if they are democratically elected councillors —as opposed to one person, would be preferable. But I agree with other noble Lords that the suggested way to replace the system is probably not through a series of referenda that could result in different mechanisms in different parts of the country.
As far as the abolition of deposits in elections is concerned, that is perhaps slightly wider than this Bill should be considering. Of course, as Liberal Democrats, we would have to declare an interest as far as that is concerned. I absolutely agree with the noble Lord, Lord Carlile of Berriew, about potentially reducing the size of the deposit, rather than getting rid of it completely.
Were police authorities better? In some places, I think they were. As the noble Baroness, Lady Jones of Moulsecoomb, has said, the Metropolitan Police Authority was certainly very effective. The noble Lord, Lord Hogan-Howe, who experienced both, said there was not much to choose between the two on accountability.
For the reasons that I have explained, we agree that there should certainly be an examination of how effective police and crime commissioners are.
Lord Rosser (Lab)
My Lords, I agree with the comments of my noble friend Lord Hunt of Kings Heath, and other noble Lords, that we have had mixed experiences of police and crime commissioners—some have been very good, and some not so good. I will not go further than that, though, in relation to Amendment 278.
I wish to talk in particular about the amendment in the names of my noble friends Lord Bach and Lord Hunt of Kings Heath. They have drawn attention to the consequences we have witnessed as result of potential candidates for police and crime commissioner being debarred if they have been convicted of any offence, however many years ago, for which they could have received a custodial sentence, irrespective of whether they did actually receive such a sentence. I do not wish to pursue any individual cases but rather the general point, as others have done, of whether there should be another look at the reasons, in respect of previous convictions, for which a potential candidate for the office of police and crime commissioner can be disqualified.
When the issue has been raised previously, the Government have argued that it should not be reviewed because there was cross-party support for this requirement to be included in the Police Reform and Social Responsibility Act 2011. If that argument was followed through to its logical conclusion, there could never be any change to any legislation that originally had cross-party support, which is a bit of a nonsense.
The other argument advanced was that people must have complete confidence in the probity and integrity of whoever it is they elect as a police and crime commissioner because of their responsibilities and powers in relation to their police force, including the chief constable. Clearly, that is true, but whether an offence committed decades ago that could have resulted in a custodial sentence but did not—because it was not considered of a sufficiently serious nature to justify such a sentence—should automatically still be regarded as calling into question the probity and integrity of a potential candidate for police and crime commissioner, and thus disqualify them from holding such an office, is questionable, to say the least. It is certainly questionable when one looks at other positions that have powers and responsibilities in relation to the police and the criminal justice system but have no such similar restrictions on being able to stand for office or be appointed to an office.
Lord Sharpe of Epsom (Con)
My Lords, I thank the noble Baroness, Lady Jones of Moulsecoomb, and the noble Lord, Lord Bach, for giving us this opportunity to discuss police and crime commissioners and matters relating to their election. I also thank all noble Lords who have participated in this debate.
PCCs, as directly elected individuals responsible for the totality of policing in their area, are a far more transparent and visible model of police governance than the predecessor model of police authorities. As the Home Affairs Select Committee found in its 2016 report, the introduction of PCCs has had a beneficial effect on public accountability and the clarity of leadership in policing. It concluded that the PCC model is here to stay.
The Government are committed to strengthening and expanding the role of PCCs—indeed, it was a manifesto commitment—and, earlier this year, the Home Secretary announced the recommendations from part 1 of a review into the role of PCCs to do just that. That announcement was repeated in your Lordships’ House by my noble friend Lord Greenhalgh on the same day, 16 March. These recommendations will further strengthen the transparency and accountability of PCCs, as well as make it easier for the public to make an informed decision at the ballot box about the record of their PCC. Part 2 is currently under way, and the Government will report on those recommendations in due course. I note in response to the noble Lord, Lord Paddick, that this review will also assess the benefits and demerits of a trigger mechanism for the recall of PCCs; it is being debated.
Amendment 278 would provide for force-wide referendums to abolish PCCs. As I have said, PCCs are here to stay. The PCC model provides a clearer form of democratic accountability for police forces. The Government see no benefit in returning to a system of invisible and unaccountable police authorities. Under the old system, the public had no direct powers to elect a police authority chair or its members. Moreover, this amendment would provide for costly local referendums, siphoning funding away from front-line policing, and potentially leading—as many noble Lords, including the noble Lord, Lord Hogan-Howe, have noted—to a confused patchwork of police governance arrangements across the country. Therefore, the effect of the amendment could well be to damage public confidence in police governance at a time when it is crucial that we do everything in our power to strengthen it.
While Amendment 278 seeks to abolish PCCs, Amendment 279 seeks to make it easier for anyone to stand as a candidate for election by removing the £5,000 election deposit for candidates. I shall stick to PCCs and not expand to cover other elections, for obvious reasons.
The requirement for candidates to pay a £5,000 deposit was introduced to ensure that a high calibre of candidates put themselves forward for the role of PCC. These should be people committed to being the voice of the public and to holding their police force to account. Candidates who poll more than 5% of the total number of valid first preference votes cast in that police area will have their deposit returned, ensuring that serious candidates are not out of pocket.
I am sure that noble Lords would agree that we must protect our electoral system from abuse. The £5,000 deposit is designed to ensure that individuals who have no intention of seriously contesting the seat do not use the election process as an opportunity for free publicity.
Amendment 292D, put forward by the noble Lord, Lord Bach, concerns the disqualification criteria for PCCs, and I fear that my ice thins a little here. I understand the noble Lord’s motivation and respect his powerful and perfectly valid examples, but the Government do not agree that we should lower the bar on the standard we expect of elected PCCs. As a PCC previously himself, I am sure the noble Lord will recognise the need for the highest levels of integrity, given the nature of the role.
Under the current disqualification criteria, a person is unable to stand for or hold the office of PCC if they have previously been convicted of an imprisonable offence. There is no bar on people standing for election who may have a previous conviction for a low-level offence punishable by a fine only. Neither is a caution, whether for an imprisonable offence or otherwise, a bar to election. These rules governing who can stand as a PCC are, as the noble Lord noted, the strictest of all rules for elected roles in England and Wales and, we believe, are necessary to ensure the highest levels of integrity on the part of the person holding office and to protect the public’s trust in policing.
This high standard was set with cross-party agreement and with the support of senior police officers There is a serious risk of damage to public confidence and the integrity of the model if PCCs are able to take office with a history of serious criminal offence. I would also suggest that were a PCC to hold office with a previous conviction for an imprisonable offence, both the PCC and the chief constable might find it untenable to maintain a professional and respectful relationship, given the role the PCC plays in holding the chief constable to account. Having said all that, I have heard everything that has been said around the Chamber this evening, across party, and I will make sure that those arguments are reflected back to the Home Office.
In conclusion, this Government are firmly of the view that, far from seeking to abolish PCCs or weaken their standing, we should further strengthen their role. On that basis, I invite the noble Baroness to withdraw her amendment.
Baroness Jones of Moulsecoomb (GP)
Is the Minister advising me to withdraw my amendment or asking me to withdraw it?
I made my opening remarks quite short, because I did not think that the amendment would be very contentious. I thought that people would not like it, but I had no idea that it would generate so much interest. I thank all noble Lords who have contributed, especially the noble Baroness, Lady Harris of Richmond, for her personal recollections of disastrous commissioners. I, too, have some personal recollections of disastrous commissioners, starting with Boris Johnson, who as Mayor of London was completely useless and had to pull in people to do it for him, some of whom did not know what they were doing either.
I more or less thank the noble Lord, Lord Hunt of Kings Heath, for his partial support. I was interested in the comments made by the noble Lord, Lord Bach, because he has five years’ experience as a PCC. I have 16 years’ experience on police committees and of PCCs, so the noble and learned Lord, Lord Brown of Eaton-under-Heywood, should perhaps have accepted that I might have a valid point of view on PCCs as well.
I ask all noble Lords: can you actually name your PCC? There is a shake of the head beside me. If you live in London, it is easy: it is Sadiq Khan. If you live anywhere else, it is much harder. Could the Minister name his PCC? He says yes.
I thank noble Lords very much for this debate. I find this issue endlessly interesting. I will think about the offer made by the noble Lord, Lord Bach. He said, for example, that there are better ways of getting rid of police commissioners. I would be happy to put forward an amendment with a quicker way to do that rather than having a referendum; I am not wedded to referendums. Having said all that, I beg leave to withdraw the amendment.
Baroness Scott of Bybrook (Con)
My Lords, we will do one more group before the dinner break. I remind noble Lords that we have to get through 14 groups today. That means that we have nine more. Can we try to be a little briefer so that we can get on? We have only one more day on this Bill, so we need to get as far as possible tonight.
Amendment 280
Baroness Coussins
“Spoken word interpreters: minimum standards
Spoken word interpreters appointed to a court or tribunal must—(a) be registered on the National Register of Public Service Interpreters (“NRPSI”),(b) possess a Level 6 Diploma in Public Service Interpreting, or comply with NRPSI Rare Language Status protocols, and(c) have completed the requisite number of hours’ experience of court interpreting commensurate with the category of case complexity, as agreed by the Secretary of State in conjunction with relevant professional bodies.”Member’s explanatory statement
This amendment would establish minimum standards for qualifications and experience for interpreters in courts and tribunals, along the lines of the Police Approved Interpreters Scheme.
Baroness Coussins (CB)
My Lords, I am grateful to the right reverend Prelate the Bishop of Leeds, the noble Lord, Lord Marks of Henley-on-Thames, and my noble friend Lord Pannick for adding their names to my amendment. I am sorry that my noble friend has had to leave for another commitment, but he wanted me to confirm that he planned to speak in support of this amendment. I declare my interests as a co-chair of the All-Party Parliamentary Group on Modern Languages and the vice-president of the Chartered Institute of Linguists.
The purpose of this amendment is to establish in law
“minimum standards for qualifications and experience”
of those appointed to act as interpreters in Her Majesty’s Courts & Tribunals Service. For the avoidance of doubt, let me clarify that, for the purposes of this amendment, I am referring only to spoken word interpreters, not sign language interpreters.
I am grateful to the noble Lord, Lord Wolfson, for meeting me earlier in the year to discuss this and related issues. I very much hope that the Minister replying tonight will be able to facilitate another meeting between me, other interested parties and the noble Lord, Lord Wolfson, between now and Report to look at my proposals more precisely. Obviously, my best-case scenario is the Government accepting my amendment or coming back on Report with a better-worded version to achieve the same, or a closely similar, end.
I will not repeat the detailed case that I set out at Second Reading. I will simply summarise the way in which the appointment of court interpreters as it is currently organised, using the Ministry of Justice’s register and delivered via outsourced private companies, is inadequate—often seriously so, leading at best to mistakes and, at worst, to miscarriages of justice. It is an easy way for fake interpreters to present themselves. Too often, hearings need to be abandoned and expensively rescheduled, sometimes with defendants on remand for longer—all at public expense.
My objective is to strengthen the MoJ register for interpreters, thereby improving the quality and administration of justice. I will explain each of the three elements of my proposed minimum standards in a little more detail, starting with the second, which relates to the qualifications that a court interpreter should have. I am sure all noble Lords would agree that, if they were having heart surgery or even having their tonsils out, they would expect the surgeon to have more than a GCSE in biology. If they were passengers in an aeroplane, they would not expect the pilot just to have a geography degree and know roughly which way was south. They would not expect their car to be serviced by a mechanic whose only proven competence was in the use of a tin opener. Yet you can get on to the MoJ’s register of approved interpreters simply by having a GCSE pass or a low-level two-week foundation course, or just by being bilingual, even if you have never set foot in a court before.
Lord Falconer of Thoroton (Lab)
Before the noble Baroness sits down, may I ask a question? Her amendment refers to every court or tribunal. Knowing how the courts are operating, for example, in family law, the urgent need for an interpreter happens every single day when urgent decisions have to be made about children. How long would it take to find an interpreter in such a case if her provisions, which I see as having great strength in criminal trials, were in force?
Baroness Coussins (CB)
I can answer that only by saying I would have to consult the national register and chartered institute to find out how quickly they respond now and how that compares to the MoJ system. I agree it is an important element. Part of the problem will be the supply chain, but I think these issues can be overcome. I beg to move.
The Lord Bishop of Leeds
My Lords, I endorse every word of what the noble Baroness just said. In a previous incarnation—that is probably the wrong phrase to use; I am mixing my religions—I was a professional linguist in Russian, German and French, working in government service. One of the things you learn as a professional linguist is that language goes deep. This is not simply a matter of picking someone off the street who can order a pint in a Spanish bar; you are dealing with the stuff of people’s lives. Surely accuracy is vital, for the sake of not only clarity of understanding but justice itself.
I could give many examples of how this works. There is the difference between translation and interpreting. Interpreting goes deep, because you have to understand that some things cannot be translated. That is how language works.
I will not trespass on eternity here, but will simply say that justice, whatever the logistical problems highlighted a moment ago, demands that people have clarity of understanding and expression in courts of law. I endorse every word that was said in the last speech.
Lord Hogan-Howe (CB)
I too support this amendment. I was really surprised that there is not already a standard and that this is not consistent across the criminal justice system. When the noble Baroness, Lady Coussins, explained that the Metropolitan Police had already taken the lead on this, I was hoping that that was during my time, but it was not. However, I think this is a good idea. This is about not only high and consistent standards but experience—experience within the criminal justice system will be relevant at various times—and integrity. These people will have access to private and confidential information. For all those reasons, it is important that there is a consistent, high standard.
Each part of the system, whether the police, prosecutors, defence, courts, judge or jury, requires this to happen consistently. It seems amazing that at the moment they are not able to rely on the same interpretation or translation of the same material. That seems odd. At least in the case of the police, you can go back and check some of the original evidence. Body-worn video, CCTV or audio recordings of the interview might be available, so someone can go back and check. However, as far as I am aware, that is not the case in court. There is a written record, but that in itself is open to interpretation and is not always entirely accurate.
There are things that feed into the criminal justice system which are also important and rely on the contribution of the individual and what they say, for example psychiatric assessments. These can be vital in determining whether someone is guilty or so psychiatrically ill that they should not be held guilty for their actions and in determining what actions will follow a sentence.
This is not a minority issue, particularly in London. The last time I saw the figures, around 27% of the 250,000 arrests carried out by the Metropolitan Police every year are of foreign nationals. There is then at least a risk that they are speaking a second language, not their first, which imposes certain challenges on the whole system. It is vital that they, as well as witnesses and all the other people who play a vital role in the criminal justice system, are able to be heard.
Finally, it seems to me that this is particularly pertinent in an adversarial system which relies an awful lot on cross-examination. Are mistakes made in court? Is consistency observed between the original account and those given by various witnesses? Language is very important. We would all say so, but I would say it is even more important in an adversarial system, which sometimes seeks to cause inconsistency in the account that is given. This creates an even bigger burden for the system to make sure that the account of the language is of the highest standard available. It is important that the Government create such a system, so I support this amendment.
Lord Thomas of Gresford (LD)
My Lords, when I was a young solicitor in north Wales, I recall a knock on the door at about 6 o’clock in the evening. There was an agitated man of Polish extraction on the doorstep saying, “Please come quickly. My friend is dying in hospital and he wants to make a will.” I went to the hospital, which was just around the corner, and discovered that the patient spoke only Polish. I said to the first man, “What are we going to do?” He said, “We don’t need an interpreter. I’ll do it. He wants to leave everything to me.”
Lord Berkeley of Knighton (CB)
I wholeheartedly endorse my noble friend’s amendment, having seen on a couple of occasions interpreters who I seriously thought could barely speak English. Imagine the confusion when the interpreter translated “car” as “cow”. The judge became pretty exasperated at this point. However, there is one obstacle to this that I see. The noble and learned Lord, Lord Falconer, mentioned one obstacle, but the other might be that it is very difficult at the moment for courts to find interpreters at all. I seriously worry that there is going to be a shortage of interpreters, although I still feel that we should get the standard up, whatever happens. Perhaps we need to have courses for interpreters with proper qualifications making it a career in which people who could become interpreters could find some sort of vocation.
Lord Marks of Henley-on-Thames (LD)
My Lords, I have put my name to this amendment for all the reasons put forward by the noble Baroness, Lady Coussins, in opening. She has campaigned for this change for a long time and has a great deal of knowledge and experience on the subject. We have also heard from the right reverend Prelate the Bishop of Leeds, the noble Lord, Lord Hogan-Howe, and my noble friend Lord Thomas, who still supports this reform despite the success of his experience with the Polish testator. I will therefore add little.
There is an answer to the points made by the noble and learned Lord, Lord Falconer of Thoroton, about the availability of interpreters and the need for speed in getting them to court, and by the noble Lord, Lord Berkeley of Knighton, about there being enough registered interpreters. I accept, as I expect would the noble Baroness, that there would be a need to transition the introduction of these proposals and to take steps to ensure that there were enough registered interpreters. We also have to consider the availability of interpretation in the very unusual languages that she mentioned.
This amendment is important. The duty of an interpreter in courts and tribunals is limited and specific. It is a duty to act as a conduit and only as a conduit; accurately to convey the meaning of the court’s proceedings to the non-English speaker; then, if and when that non-English speaker gives evidence, to convey the court’s and counsel’s questions to that non-English speaker; and lastly, and most importantly, to convey the non-English-speaking witness’s evidence to the court. That all demands accuracy, and to provide that accuracy requires a great deal of skill.
However, it is a duty to act as a conduit only, the aim being to overcome the language barrier. It is decidedly not to render assistance of a more general kind to the non-English-speaking participant in legal proceedings, still less to provide some kind of informal independent advice service. Yet, in spite of those very clear principles, many of us who have practised in courts and tribunals have seen how interpreters, often motivated by the best of intentions, can fail in their task. The inadequacies have been extensively and well highlighted by the noble Baroness, Lady Coussins.
There are two main reasons for such a failure. The first is that some set out to act as interpreters when they lack the necessary linguistic skills and they simply get the translation wrong. Sometimes the inaccuracy is noticed by someone in court who understands and speaks the language concerned who can then ensure that the witness’s meaning is further explored, but on other occasions it is not, and when it is not then injustices occur.
The second problem is that some interpreters overreach themselves. Again, often they are not motivated by an improper wish to intervene in the proceedings with ideas of their own, yet they do precisely that. They discuss evidence with the witness and act as assistants and advisers as well as interpreters. The noble Lord, Lord Hogan-Howe, pointed out that on some occasions the integrity of the witness and of the proceedings is called into question. That is wrong, and it subverts the proceedings of the court or tribunal concerned. The way in which we must deal with these issues is quite simply by training and minimum standards, and that is exactly what the amendment seeks to achieve.
I add this final point: I hope that, in order to maintain registration, it would be necessary to have adequate programmes of continuing education. Interpretation is a difficult skill that requires specialist and professional training and needs constant maintaining. I hope the Government will bring a positive response to this amendment.
Lord Ponsonby of Shulbrede (Lab)
My Lords, this has been a very interesting debate and I thank the noble Baroness for moving her amendment; in general terms we support it. The question marks would be about the standards, which she dealt with very fully, whether emergencies could be covered, and the potential costs. As the noble Lord, Lord Marks, said, there needs to be a transition to harmonising and raising standards in general.
I want to pick up a couple of points made by noble Lords. The noble Lord, Lord Hogan-Howe expressed surprise that there was not already a common standard and I was surprised as well. He went on to talk about there being written records in courts, but that is not the case in magistrates’ courts; they are not a court of record. As a sitting magistrate, I regularly have interpreters in court. In the 14 years I have been a magistrate I can think of three or four occasions when the magistrate colleagues I have been sitting with have told me that the interpretation was wrong. They knew the language and were able to inform us, and we were able to deal with the situation. But, as other noble Lords have pointed out, that will not always be the case. It is not that unusual for interpretations to be wrong.
I want to make a more serious point, which the noble Lord, Lord Marks, also made, about interpreters overreaching themselves. As I mentioned in an earlier group, I regularly sit in the domestic abuse court and I have done various bits of training on that. One of the points the training makes is that you have to be careful with interpreters and translators when dealing with domestic abuse cases in minority languages. It has been recorded that the interpreters overreach themselves and what the witness or the victim is saying in court will get back to that minority group. It is something that the court needs to be very aware of and handle sensitively to prevent that happening—and it does happen. Nevertheless, in general terms, we support this amendment.
Lord Stewart of Dirleton (Con)
My Lords, Amendment 280 would restrict the Ministry of Justice to appoint in our courts and tribunals only interpreters who are registered on the national register of public service interpreting—the NRPSI—and possess a level 6 diploma in public service interpreting, or who comply with the NRPSI’s rare language status protocols.
The Ministry of Justice commissions the services of interpreters for our courts and tribunals in England and Wales through its contracted service providers, thebigword and Clarion Interpreting. These interpreters are sourced from the Ministry of Justice’s register, which is audited by an independent language service provider, the Language Shop. All interpreters are required to complete a justice system-specific training course before they are permitted to join the register.
The contract has a clearly defined list of qualifications, skills, experience and vetting requirements interpreters must meet, which have been designed to meet the needs of the justice system. It covers a vast range of assignments, from simple telephone interpreting to deal with a user query to the facilitation of interpretation in a complex criminal trial. The qualifications and level of experience required will depend on the complexity of the assignment and the highest complexity level has qualification criteria comparable to those set by the national register of professional service interpreters.
It is in dealing with that vast range that the noble Baroness’s rhetorical analogy broke down. Of course I would expect my heart surgeon to have the relevant qualifications and experience to fulfil that role. At the same time, if my car developed a minor technical fault, I would not necessarily want to pay out for a consultant engineer to fix it, as opposed to taking it to the local garage.
Complaints about the quality of interpretation or the professional conduct of interpreters are carefully monitored and independently assessed by the Language Shop. The complaint rate remains low at less than 1%.
Lord Marks of Henley-on-Thames (LD)
I take it the Minister would accept that legislation could quite easily disapply those regulations in the case of the use of registered interpreters, if that legislation were correctly worded and addressed to do so.
Lord Stewart of Dirleton (Con)
Hypothetically, yes, but I hesitate to give the noble Lord a definite commitment on that, as my information on these points is substantially in answer to the point raised by the noble Baroness. But, if the noble Lord will permit me, in exploring these important points, I will make sure that the Ministry of Justice writes to him and that there is a meeting with the noble Baroness, as she sought, to discuss with her the future of this amendment. I hope that that answer will satisfy both the noble Baroness and the noble Lord.
Just to continue on that point, it is important to bear in mind that we are reviewing and engaging in consultation with various bodies. But we need to take into account the broad-ranging needs of the Ministry of Justice and to ensure that we have a service appropriate for the wide range of circumstances and the various commissioning bodies to which I have made reference. There are concerns that mandatory NRPSI membership may give unnecessary control over the supply chain, and the police interpretation contract does not require interpreters to be NRPSI registered. We need to complete a full and objective assessment of MoJ needs across the board and not to introduce NRPSI standards when we do not know what impact they might have on the overall justice system.
The Ministry of Justice is looking constantly to improve the service for users and to work collaboratively with interpreter membership organisations and language service providers to ensure that the short, medium and long-term service needs of the criminal justice system are met. Her Majesty’s Courts & Tribunals Service is starting up a language services future pipeline working group, which will focus on the issue of securing suitably qualified interpreters in the long term.
I will develop that point. As the single biggest public sector user of language services, we believe it is important for the Government to encourage new entrants into the interpreting profession and to provide them with appropriate opportunities to build up their experience levels and to maintain standards of excellence. We have an independent quality assurance supplier, which has recently developed a subsidised trainee scheme, encouraging qualification in languages that are in high demand in our courts. We will continue to work with it, and with other organisations, to improve our service and to ensure it provides access to suitably qualified interpreters in the future. The arrangements that we have in place are designed specifically to ensure that our courts and tribunals are supported by high-quality language service interpretation that meets the needs of all our court users, both now and in the future.
I turn now to some of the submissions made by your Lordships in Committee. I fully accept the point made by the right reverend Prelate the Bishop of Leeds on the distinction between translation and interpreting. But on the submission made by the right reverend Prelate and the noble Lords, Lord Marks and Lord Hogan-Howe, I return to the point that there is a wide range of functions which interpreting has to carry out. With the greatest of respect, each of those noble Lords answering on this point predicated their submission on the fact that we were talking about translation at the very highest level—at the most important level of translating a potentially complex criminal trial.
In response to point made by the noble Lord, Lord Marks, again I accept that the single function of an interpreter in these circumstances is to act as a conduit by which English may be rendered into a foreign language and the foreign language rendered as accurately as it may be into English in order to assist the court. Again, that is at the very top end of the spectrum. Lower down, in simpler and more straightforward functions that I identified—the most elementary part of the range of needs that I discussed—it may well be that some well-meaning attempt to intervene and to assist, such as the noble Lord, Lord Marks, discussed, might be appropriate. I am thinking of the simple telephone inquiry that I referred to.
Lord Hogan-Howe (CB)
There are just two points that I would like to have clarified. First, the noble Baroness, Lady Coussins, proposes a consistent high standard. I was not sure from the Minister’s response what the equivalent is in the contract. I hear that there is one, but I do not know what it is.
The second point is that there might be a spectrum of quality of interpretation. I understand that in a broad sense, but if that was to include the magistrates’ court, there are two issues there. First of all, someone’s liberty is at risk for six months and, in any case, they could be committed to a higher court for a more substantial penalty, should the magistrate decide to do that. Finally, as we have heard only today, if we look at things such as inquests, they can have very substantial consequences both for the people who apply to them and for the people who might be judged by them.
I am not quite sure about either of those points. First of all, what is the standard? Secondly, is it true to say it is always such a wide spread of necessity, given the importance to the victim, the suspect or the witness, in each of these cases?
Lord Stewart of Dirleton (Con)
As I think I have said, the contract provides that, at the highest level, the standard is commensurate with that of the NRPSI. In answer to the noble Lord’s second point, of course none of that interrupts anything that I have said about the importance of identifying the point at which interpretation facilities suitable for the most complex case is to be found. Simply because a matter is not being tried at the Crown Court does not mean that it would not engage the need for the most detailed, able and comprehensive of interpreting facilities.
In closing, I can, as I said earlier, indicate that my noble friend Lord Wolfson of Tredegar, the Minister dealing with this matter, will meet the noble Baroness, Lady Coussins, who is proposing the amendment. In the circumstances, I ask her to withdraw the amendment at this stage.
Baroness Coussins (CB)
My Lords, I thank the Minister for his detailed reply and all noble Lords who have contributed to the debate and supported the principle, if not every detail, of the amendment. Some very good ideas have emerged; I am particularly taken with that of a transitional period.
A couple of questions were asked. The noble and learned Lord, Lord Falconer, referred to family courts. In a family court where an interpreter might be needed at very short notice, it strikes me as even more important, if we are talking about families and children who may be in very vulnerable circumstances, to have an interpreter who is properly qualified. Rustling up somebody at very short notice might not serve the interests of those vulnerable families and children, but I agree that it is a complex situation.
On the point raised by my noble friend about courts sometimes finding it difficult to find interpreters, that is partly to do with the fact that so many interpreters—thousands, I believe—left public service when the MoJ system was contracted out to private companies, because those companies have sustained appallingly low levels of pay and poor conditions. The Minister referred to the need to get new interpreters on board. Yes, of course, that is right, but there are also a lot existing, qualified, experienced interpreters out there who need to be brought back into public service. I believe that if their status was raised and their contribution and professionalism more readily acknowledged by having these minimum standards, which they all complied with, they would be attracted back into public service.
The Minister referred to the fact that the MoJ system is audited by the Language Shop and that complaints were very low. Yes, that is true, but the Language Shop also failed 50% of the interpreters on whom it conducted spot checks, so it is clear that qualifications without experience are not good enough.
I am grateful for the promise of a further meeting with the noble Lord, Lord Wolfson, to discuss the amendment, and I look forward to discussing this issue further on Report. With that in mind, I am happy to withdraw the amendment at this stage.
Police, Crime, Sentencing and Courts Bill
Monday 22nd November 2021
(2 years, 5 months ago)
Lords ChamberRead Full debate Police, Crime, Sentencing and Courts Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 40-XI Eleventh marshalled list for Committee - (22 Nov 2021)
Lord Falconer of Thoroton
“Harassment in a public place
(1) A person must not engage in any conduct in a public place— (a) which amounts to harassment of another, and(b) which he or she knows or ought to know amounts to harassment of the other.(2) For the purposes of this section, the person whose conduct is in question ought to know that it amounts to harassment of another if a reasonable person would think the conduct amounted to harassment of the other.(3) For the purposes of this section—“conduct” includes speech;“harassment” of a person includes causing the person alarm or distress.(4) Subsection (1) does not apply to conduct if the person can show—(a) that it was for the purpose of preventing or detecting crime,(b) that it was under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment, or(c) that in the particular circumstances it was reasonable.(5) A person who engages in any conduct in breach of subsection (1) is guilty of an offence.(6) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding six months, or a fine not exceeding level 5 on the standard scale, or both.”Member’s explanatory statement
This would create a specific offence of street harassment.
Lord Falconer of Thoroton (Lab)
These important amendments deal with the attempts to make this Bill a reset as far as violence against women and girls is concerned. They create a number of new offences and indicate that there should be reviews in certain areas in relation to harassment and other related things. I will go through each one in turn.
Amendment 284, in my name, would create a specific offence of street harassment. It is not limited to sexual harassment because the experience of men and women on the street is not restricted to sexual harassment. In July 2021, the Home Secretary indicated that she was thinking of introducing a crime of sexual harassment. There are a whole range of studies about the effect, particularly on women, of harassment in the street. A United Nations study, not restricted to the United Kingdom, said that 70% of women had been affected by street harassment, 4% said that it was worth complaining about it and 45% said that it was not. The sort of harassment that one has in mind in relation to this offence is wolf-whistling, people being called out to, people being the victim of people treating them with a total lack of respect in a way that might cause alarm or distress. As I say, it is not restricted to women; other groups are affected as well. Members of the LGBTQ community speak of harassment that they suffer in particular places. It would be wrong to restrict the terms of this offence to a particular type of harassment or a particular group of people, but this proposed new clause makes it an offence to subject somebody to what a reasonable person would regard as harassment, and harassment includes causing that person alarm or distress.
I very much hope that the Government will take up the opportunity that the Home Secretary herself indicated was worth taking up. That would indicate that the sorts of behaviour that in many cases occur throughout the length and breadth of the country would no longer be acceptable, and if people behave better and do not commit acts of harassment, that will have an affect right up the scale. In terms of the drafting, the proposed new clause sets it out very clearly, but we are open to any suggestions about how it may be drafted better.
Amendment 285 makes it an offence to kerb-crawl. We define it as
“an offence for a person, from a motor vehicle while it is in a street or public place … to engage in conduct which amounts to harassment in such manner or in such circumstances as to be likely to cause annoyance, alarm, distress or nuisance to any other person.”
That seeks to deal with people in their cars winding down their windows and shouting, barracking and making life difficult, often with a sexual undertone or more than an undertone. Again, that should be a crime, and something that we very much hope that the Government will treat as a serious matter. We hope that they will take up the suggestion that has been made. Again, if there are better ways of drafting it, we are more than open to hearing them, but Amendment 285 provides the basis for such a crime.
Amendments 292A and 292B are about sex for rent, which should be a crime. This is where an individual offers accommodation at a reduced cost or free in exchange for sex. This arrangement can be either at the beginning of a tenancy or enforced during a tenancy, often when tenants are experiencing difficulties in finding somewhere to live or in paying the rent. Sex for rent arrangements force people, especially women, into the most vulnerable of situations, often in enclosed private spaces to which a perpetrator has constant and unrestricted access. This has been a matter of campaign for a considerable period, particularly from groups such as Generation Rent. Politicians from all parties have picked it up and investigative journalists have too.
This Bill provides an opportunity to do something about it. A 2016 Shelter survey found that 8% of women had been offered a sex-for-rent arrangement at some point in their lives. In 2018, YouGov and Shelter estimated that 250,000 women had been asked for sexual favours by their landlords in exchange for free or discounted accommodation at some point between 2013 and 2018. More recent research by Shelter, which regards this as a serious issue, suggested that 30,000 women in the United Kingdom were propositioned with such arrangements between the start of the pandemic in March 2020 and January 2021. It is not difficult to imagine that the question of how one affords accommodation became more and more difficult for certain people during the pandemic.
Lord Hope of Craighead (CB)
My Lords, I support Amendment 284 for all the reasons that the noble and learned Lord, Lord Falconer of Thoroton, has explained. However, I respectfully suggest to him that there is a slight mismatch between that amendment and Amendment 285. Amendment 284 is so broadly defined, for the reasons that have been very well expressed, that it would include the conduct that is described in Amendment 285. Indeed, if we look at the wording of Amendment 285, harassment is an essential element of that offence.
I raise the point because there is a difference between the penalties. The value of the kerb-crawling clause is that it introduces a possibility of disqualification, and I see the force of that, but the fine is only level 3, whereas the fine in Amendment 284 is level 5. If I was a prosecutor, having to decide which charge to bring, I would probably go for the offence in Amendment 284 and forget about the disqualification. I wonder whether, if the noble and learned Lord is thinking of bringing the matter back, he might try to amalgamate these two and perhaps put a subsection into Amendment 284 to cover the situation that if the harassment offence is conducted from a motorcar, in the way broadly described in Amendment 285, it would attract the additional penalty of disqualification. It would then be brought into Amendment 284’s sanctions, which are imprisonment, which might well be appropriate in a kerb-crawling offence, and also the level 5 fine. That is a refinement of drafting, but I am very much in favour of Amendment 284 as it stands, particularly in view of the broad way in which it is expressed.
Baroness Bennett of Manor Castle (GP)
My Lords, I offer Green support for all these amendments. Some of my questions have just been answered by the noble and learned Lord, Lord Hope of Craighead, and his suggestion that some of the amendments be combined is positive, because retaining the opportunity to take away the right to a vehicle in an offence involving a vehicle is very useful.
I am aware of the time and the pressure to make progress, but it is a great pity that we are discussing such an important group of amendments, all put forward by the noble and learned Lord, Lord Falconer of Thoroton, so late at night and in this rather rushed way. I will just draw some comparisons and links between them.
One thing to highlight is how much these amendments come from community campaigning from the grass roots up. I imagine that the campaign for the offence of harassment draws, in large part, from the group called Our Streets Now, set up by sisters Gemma and Maya Tutton, aged 16 and 22, who are working with the charity Plan International UK. Their hashtag is #CrimeNotCompliment. I suspect that the noble and learned Lord might have drawn on their ready-made Bill and I note that this has had strong cross-party support in the other place. I draw on the words of the women’s rights campaigner Nimco Ali, who said it is “bizarre” that street sexual harassment is still legal. Littering and smoking are banned, but this kind of behaviour is not.
On Amendment 285, I briefly highlight that Generation Rent, another grass-roots campaign group, has been pushing for action here. A report by Shelter in January found that, between March and September 2020, around 30,000 women had been offered housing in exchange for sex. This is a function of the extreme dysfunction of our current housing system.
I have to address Amendment 292M personally because, as I suspect is the case for many people, particularly women, it is something I have personally experienced. I was 11 years old in another country, out in the centre of Sydney on my own, when I was subjected to this offence. I was taught, as lots of young girls were then and probably still are now, to laugh, turn around and walk away. But that I can still vividly remember that street scene shows that it had an impact on me. When I look back now, I felt as an 11 year-old that this was a threat to my right to be on the streets. I did not tell my mother, because I was worried that she would think I should not be allowed out on my own to exercise the freedom that I wanted and continued to exercise. It is crucial that we see a change in attitude here and a review is a good way to address that.
The noble and learned Lord, Lord Falconer, has covered Amendment 292T very well, but we must note that Femicide Census, campaigning on this and broader issues, reports no sign of a reduction in the rate of femicide. That study covered a 10-year span from 2009 to 2018. We are not making progress on this, but we need to. I hope the Government will go away and look at this important group of amendments very seriously, and come back to us with proposals covering—I like to be an optimist—all of them.
Baroness Fox of Buckley (Non-Afl)
My Lords, spiking is a serious matter and people who do it should be caught and punished, but I issue a note of caution, because I am slightly worried about Amendment 292R, put forward by the noble and learned Lord, Lord Falconer. I am worried it might be too reactive and respond to the perception that this is a major problem, rather than a cool factual analysis. Calling for an urgent review could unintentionally fuel what might be a moral panic and create a climate of fear.
To give some context, despite the headlines and social media hysteria, some careful commentators and a range of experts have raised doubts, queried some of the sensationalist coverage and warned against overreacting. There was a useful article in Vice that started the debunking, which quoted Guy Jones, a senior scientist at the drugs charity The Loop, who pointed out that
“few drugs would be able to be injected like this”,
using a needle. Administering drugs in this way is just not an easy task. Some experts have explained that it would be particularly difficult to use date-rape drugs, because of the larger needle that would be needed and that it would need to be in the body for at least 20 seconds.
The director of the Global Drug Survey, Adam Winstock, notes:
“There are very few widely accessible drugs”
that could be used in this way and given intramuscularly in small enough volumes that people would not notice. A critical care nurse I saw interviewed suggested that the likelihood of administering drugs like ketamine was virtually zero. After a high-profile report about somebody being infected by HIV, the National AIDS Trust pointed out:
“Getting HIV from a needle injury is extremely rare. A diagnosis takes weeks.”
So it is worth pausing.
Baroness Kennedy of Cradley (Non-Afl)
My Lords, I will speak in support of Amendments 292A and 292B. In doing so, I declare my interest as director of Generation Rent.
In my view, men advertising free rent for sex are not landlords, they are predators; they prey on vulnerable women and men with limited financial options. The fact that they use Covid as a marketing technique is abhorrent. They do not provide, or even attempt to provide, a safe, secure home; they deliberately take advantage of people. Although the law and CPS guidance in this area were updated a few years ago, they are still flawed and inadequate. Action against these predators needs to be enforced, investigated and prosecuted. The web platforms such as Craigslist, which is reportedly worth £7.5 billion, that facilitate this exploitation need to have action taken against them. They host these ads, yet they are ignored by law enforcement. Some of these predators may not be aware that they are breaking the law; however, I am sure that many are laughing at the law. They post their ads, which are open and explicit, and their criminal actions pass by unhindered because they know that they can post these ads without consequence.
Despite it being a criminal offence, as my noble and learned friend Lord Falconer of Thoroton said, there has only ever been one charge for sex for rent. That was in January this year, and it was because of the good work of journalists who passed their evidence to the police. Thanks to that and an investigation by ITV researchers in 2009, this then resulted in further criminal inquiries.
Of course, as director of Generation Rent, I would say that dealing with the criminal justice aspects of this issue is only one side of the problem. Hand in hand with these criminal justice changes there needs to be action to address the insecure housing situation and financial vulnerabilities of thousands of people in this country. We need a dramatic increase in social housing. It was reported last week that fewer than 6,000 social homes were built last year. We need more interventions to support renters in arrears. Rent arrears have tripled during the pandemic, and more renters than ever are now on universal credit. We need a proper and permanent end to private renters being able to be evicted for no reason with just two months’ notice. Hundreds of thousands of people are financially vulnerable and live at risk of homelessness and exploitation.
No one should ever be forced by coercion or circumstance to exchange sex for a home. The law needs to better protect renters from these predators, who seek to exploit them in return for a roof over their head. I very much support the amendments tabled by my noble friend and look forward to the Minister’s reply.
Lord Marks of Henley-on-Thames (LD)
My Lords, I entirely support the motivation behind all the amendments in the group, comprehensively spoken to by the noble and learned Lord, Lord Falconer. I am, however, hesitant about the detail of the new offences proposed, and that goes further than the drafting—I fully accept that the noble and learned Lord suggested that there could be changes to the drafting. All five of the new offences have problems of breadth. That prevents me giving unqualified support to creating these new offences without considerable further research being undertaken.
I take the point made by the noble Baroness, Lady Fox of Buckley, that there is some danger to having a review of the spiking offence, but, in general, as distinct from the specific new offences, I am entirely unqualified in my support for the two amendments calling for urgent reviews of the law on exposure and on spiking. We need to consider carefully how the law in these two areas is working, the extent to which it needs reform and exactly what reform is needed. The review mechanism proposed in the amendments is comprehensive and sensible, and the amendments have the potential, if accepted, to lead to measured and evidence-based reform which will work well. It is that type of reform that we should all want.
The amendments creating each of the five new offences in this group respond to entirely justifiable views that something must be done, but I am not sure that the conditions on which criminal liability is imposed have been sufficiently reviewed and considered. The response I would like to see in each case from the Government is a promise to consider the new offences carefully and, with expert help, to see whether they can come up with offences that would be clearly defined, thoroughly drafted and delineated, and limited to behaviour that should properly be criminal, with all the pitfalls considered.
I fully agree with the noble Baroness, Lady Bennett of Manor Castle, that we have suffered in this Bill from trying to do everything in a rush. These amendments, while well intentioned and in the right spirit, fall into that danger.
We could take the creation of the new offence of non-fatal strangulation in the Domestic Abuse Act as a useful template. The proceedings on that provision in that Act also proved that there does not need to be undue delay in ensuring that a well-drafted provision reaches the statute book. Indeed, it might be possible to include new offences in all these areas, if only the Government would give a sensible allocation of more time for their consideration.
Perhaps I may give several examples of my concerns—they include those expressed by the noble and learned Lord, Lord Hope, but go further. On street harassment, in Amendment 284, I am concerned about the breadth of the proposed offence. The noble and learned Lord saw it as a virtue that it was not confined to sexual harassment. I do not agree with that, because “harassment” as defined is so broad that it criminalises behaviour that many people would not believe ought to be criminal.
I am also concerned about the use of the words “ought to know” in the context of harassment. When a defendant does not know that conduct amounts to harassment but is charged on the basis that he ought to have known it, is that properly a criminal offence? These are not drafting points; they reflect a concern about criminalising behaviour with a particular target—generally sexual harassment, as has been said—while included in the target are far more offenders than could properly have been envisaged.
On kerb-crawling, I am concerned that the definition in subsection (1) of the proposed new clause in Amendment 285 is far wider than anything that would normally be understood as kerb-crawling, which usually has to do with soliciting prostitution. This would cover any conduct amounting to harassment, after getting out of the vehicle, that is
“likely to cause annoyance, alarm, distress or nuisance”.
It seems to me that any incident of road rage could therefore be covered. The proposed offence is completely two-sided. The suggested penalty is revocation of a licence, or a fine. Why revocation of a licence? Incidents of road rage may be two-way—there may be blame on both sides. Why not a shorter ban, if the removal of a licence is indeed appropriate?
Amendment 292A concerns the offence of sex for rent and Amendment 292B concerns facilitating it. These amendments are directed at unscrupulous landlords and owners or providers of accommodation. Appalling behaviour, such as that outlined by the noble Baroness, Lady Kennedy of Cradley, would be covered by the proposed offence, but is that behaviour all that the proposed offence would cover? The definition includes the words “requiring or accepting” sexual relations. Is the provider of the accommodation always the only guilty party? Should such behaviour always be criminal? What about the landlady of the bed and breakfast who seduces the potential paying guest and offers him or her a free room in return? Is that always to be criminal? Even if it is, is that offence always triable on indictment only? Is that proportionate? I suggest not—it needs further thought. The business of sex for rent is disgraceful, in exactly the way expressed by the noble Baroness, Lady Kennedy, but we need to be very careful about what we introduce in response to the outrage that is felt as a result.
On Amendment 292T and sexually motivated homicide, of course one understands the motivation behind creating that new offence, but my concern is that, as drafted, the offence would criminalise behaviour where the perpetrator intended no harm at all to the person who died. It covers a person who kills another
“in the course of … sexual gratification”
and intends the act—in other words, has the intention to do whatever sexual act it is that led to the death of the person who dies. Would this not cover consensual acts desired or intended by both parties which, whether by accident or misfortune, led to the death of one of them? The noble and learned Lord said that this was there to outlaw the defence of rough sex. I understand that it is there for that purpose, but people have sex that gives them heart attacks—that is an extreme and, in a sense, absurd example, but there are a lot of sexual acts that lead to harm. You cannot criminalise them all just to deal with the defence of rough sex. Some of those acts would be unintentional and innocent.
My point is not to resist any change in the criminal law; it is simply to point out how careful we need to be in passing new legislation before we introduce new rafts of offences that go far too wide. That would be a restriction on freedom, not an improvement in the freedom of the citizen from new offences. I hope that the Government will respond to these amendments in a positive way, but with great care and in the spirit of compromise between the need for care and the need to criminalise behaviour that truly ought to be criminal.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, I am grateful to the noble and learned Lord, Lord Falconer, for setting out these amendments, which call for new offences to tackle street harassment and so-called sex for rent, propose a review of the offences of exposure and administering a substance with intent, and seek to address cases which involve the so-called rough sex defence.
On Amendments 284 and 285, tabled by the noble and learned Lord, no one can doubt the gravity of the issue these amendments seek to address. Like the Committee, the House and the whole country, I was very shocked by the tragic events of September; first, Sabina Nessa and then the revelations about how the murderer of Sarah Everard had abused his position as a police officer to commit his awful crimes. While these are the most serious violent crimes which can happen to women, they form just one part of what Her Majesty’s Inspectorate of Constabulary referred to in its recent report as an epidemic of violence against women and girls.
What is so striking is how these crimes have galvanised so many women and girls across the country to talk about their experiences and their suffering. To many of us—although not, of course, to those who experience it—the sheer scale of the problem has been shocking. Many of the more than 180,000 responses which we received to the call for evidence on the Tackling Violence Against Women and Girls strategy addressed this issue, as did the report published by Plan International UK in September. Figures released by the Office for National Statistics in August about perceptions of personal safety and experiences of harassment were equally shocking. For example, two out of three women aged between 16 and 34 had experienced one form of harassment in the previous 12 months. Thankfully, those experiences are not of the same level of gravity as what happened to the women who I have just spoken about, but they are still deeply traumatic to their victims.
I assure noble Lords that tackling violence against women and girls is a huge priority for this Government. We published our new Tackling Violence Against Women and Girls strategy in July. As the Home Secretary wrote in her foreword, violence against women and girls is not inevitable, and
“This Strategy will help bring about real and lasting change.”
On the issue of sexual harassment in public places, it sets out a number of commitments. A national communications campaign will challenge this kind of behaviour and ensure victims know how and where to report it. To ensure police are confident about how to respond to public sexual harassment, the College of Policing will provide new guidance for officers; this work is already well advanced. To prevent the behaviour happening in the first place, we will work to deepen our understanding of who commits these crimes, why they do it and how this behaviour may escalate, including through our new funding on what works to tackle violence against women and girls.
The strategy confirmed that we will pilot a tool, StreetSafe, which will enable the public to anonymously report areas where they feel unsafe and identify what it was about the location that made them feel that way, so that police can use that information to improve community safety. The pilot launched in August. The strategy also confirmed that the Government are investing a further £25 million in the safer streets fund to enable local areas to put in place innovative crime prevention measures to ensure that women and girls feel safe in public spaces. The successful bids were announced in October. The strategy also confirmed that the Home Office would launch a £5 million safety of women at night fund focused on the prevention of violence against women and girls in public spaces at night. The successful bids were announced on 10 November, and our commitment to this issue cannot be in doubt.
However, there is rightly considerable interest in the legal position, including whether there should be a new law specifically targeted at this type of behaviour. I pay tribute to parliamentarians in both Houses for their campaigning on this issue and to the organisations Plan International UK and Our Streets Now—the latter, as the noble Baroness, Lady Kennedy of Cradley, said, set up by two sisters out of a determination that other women and girls should not suffer sexual harassment as they had.
As noble Lords will know from the tackling VAWG strategy, while there is not a specific offence of street harassment, there are a number of offences in place that capture that behaviour—I think it was the noble Lord, Lord Marks, who talked about behaviours—depending on the specific circumstances, including offences under the Protection from Harassment Act 1997, the Public Order Act 1986 and the Sexual Offences Act 2003. However, we are looking carefully at where there might be gaps in existing law and how a specific offence of public sexual harassment could address those. That work continues and is being informed by the results of the call for evidence and by our direct engagement with campaigners on this issue. We have not yet reached a position on it and I cannot commit to have done so ahead of Report; as the strategy notes, this is a complex area and it is important that we take time to ensure that any potential legislation is necessary, proportionate and reasonably defined.
On Amendments 292A and 292B, we can all agree that so-called sex for rent is an exploitative and abhorrent phenomenon that has no place in our society. That said, there are existing offences under the Sexual Offences Act 2003 that might be used to prosecute the practice, including the Section 52 offence of causing or inciting prostitution for gain and the Section 53 offence of controlling prostitution for gain. Both offences carry a maximum penalty of seven years’ imprisonment and can capture instances of “sex for rent”, dependent on the circumstances of the individual case. The Section 52 offence would apply when the identified victim had been caused or incited to engage in prostitution. In addition, the online safety Bill will also place duties on sites that host user-generated content, such as social media companies, to protect their users from illegal content. This would include posts that are committing the offence of inciting—
Lord Falconer of Thoroton (Lab)
I apologise for interrupting, but is it right that those existing sexual offences all require the victims in “sex for rent” cases to be characterised as engaging in prostitution?
Baroness Williams of Trafford (Con)
I was going to get on to that, because I had noted the noble and learned Lord’s point. There are two answers. The first is that anyone who makes the report to the police will benefit from the anonymity provisions in the Sexual Offences (Amendment) Act 1992. The second is that the Section 52 offence applies when an identified victim has been caused to engage in prostitution or incited to do so, whether or not the prostitution takes place. In other words, a victim does not have to identify as a prostitute for the Sections 52 and 53 offences to be used. I hope that partly answers his question, although he does not look entirely convinced.
Lord Falconer of Thoroton (Lab)
How can the Minister tell when I am wearing my mask?
Baroness Williams of Trafford (Con)
I can see the noble and learned Lord’s eyebrows.
In 2019, the Crown Prosecution Service amended its guidance Prostitution and Exploitation of Prostitution to include specific reference to the potential availability of charges under the Sections 52 and 53 offences where there is evidence to support the existence of “sex for rent” arrangements, and—as the noble and learned Lord, Lord Falconer, and the noble Baroness, Lady Kennedy of Cradley, pointed out—in January this year the CPS authorised the first charge for “sex for rent” allegations under Section 52.
Baroness Kennedy of Cradley (Non-Afl)
If the offences were in place in 2003 and the guidance updated in 2019, why does the Minister believe that it is only this year that the first charge has been made for sex for rent?
Baroness Williams of Trafford (Con)
I do not disagree that it is only now being prosecuted. The point is that it is being prosecuted, and that is what I was trying to get over. The defendant in that case has pleaded guilty to two counts of inciting prostitution for gain, but as there is due to be a trial on an unrelated matter, it is probably not wise for me to comment further on this.
The noble Baroness talked about landlords. It is imperative that we ensure that landlords are not able to use their status and exploit any legal grey areas that could abuse their tenants or any other vulnerable people in society. The noble Lord, Lord Marks, also cited a number of examples. Local authorities and police forces are aware of these issues, and they will ensure that those convicted of these offences are banned from engaging in managing or letting residential accommodation.
Amendments 292M and 292R would require the Secretary of State to review the operation of two offences under the Sexual Offences Act 2003: namely, those of “exposure” and “administering a substance with intent”. As the noble and learned Lord, Lord Falconer, has explained, both amendments are in response to recent events. I appreciate the issues that the noble and learned Lord has raised, but I do not think that it is a requirement to put into primary legislation. I am sure he will remember from his tenure as Secretary of State for Justice that the Ministry of Justice, together with the Home Office, keeps the operation of the criminal law under review, and if there are problems they will act where necessary.
I am not sure whether it was the noble Baroness, Lady Fox, or the noble Lord, Lord Marks, who pointed out that we need to make legislation following full investigation of the facts and the consequences of making new laws, but we will continue to review the law in these areas and to ensure that it is up to date and fully equipped to protect victims of exposure and, indeed, spiking.
In relation to exposure and the police response to allegations in respect of Sarah Everard’s killer, the Committee will be aware that the first part of the inquiry announced by the Home Secretary will examine the killer’s previous behaviour and will establish a comprehensive account of his conduct leading up to his conviction, as well as any opportunities missed. We will, of course, want to learn any lessons arising from this and other aspects of the inquiry.
The recent reports of spiking—adding substances to drinks and injecting victims with needles—are concerning, and I have every sympathy with victims and anyone who might feel unable to go out and enjoy a night out for fear that they might be targeted. Any spiking constitutes criminal conduct, and the necessary offences are on the statute book. As with any crime, it falls to the police to investigate and ensure that those responsible are dealt with in accordance with the law.
The police are, of course, operationally independent, and it would not be right for me to comment on specific instances and allegations at this time when there are ongoing investigations, but they are taking it very seriously and working at pace to gather intelligence and identify perpetrators. My right honourable friend the Home Secretary has already asked the National Police Chiefs’ Council to urgently review the extent and scale of the issue and is receiving regular updates from the police, as has been widely reported. This is being done using resources at local, regional and national level, including the National Crime Agency.
Finally, turning to Amendment 292T, we return to the issue of the so-called rough sex defence. Noble Lords will remember the extensive debates on this topic during the passage of the now Domestic Abuse Act 2021. In that Act, the Government responded to concerns from the public and from across the House that defendants, invariably men, argued that the death of a person, invariably a woman, was caused by “rough sex gone wrong”.
Lord Falconer of Thoroton (Lab)
I am very much obliged to everybody who has taken part in this incredibly important debate. It is terribly unfortunate that this debate is happening at this particular time—I am very glad to see the Minister nodding. This is incredibly unfortunate when we are talking about violence against women and girls, which is the big issue in relation to this Bill. This is no attack on the Whips, but they asked prior to the dinner break that we get on as quickly as possible. It is an incredibly unfortunate way for this House to look at legislation such as this.
I thank the noble and learned Lord, Lord Hope, for his support for Amendment 284, which concerns street harassment. I take note of what he said in relation to Amendment 285 and the difference between the penalties. He was suggesting that there might be a way to amalgamate the two. That suggestion seems to be very well made, and I hope that when we come back with this on Report, we might try to follow it up. I was grateful to the noble Baroness, Lady Bennett, for her support in relation to all of the amendments.
I take note of what the noble Baroness, Lady Fox, said in respect of the review on spiking. One is in a bit of a dilemma: there is already some degree of anxiety in relation to spiking. I think that what she was saying was, “Do not have an immediate review because that increases the anxiety,” but if you do nothing about it, the anxiety continues. My own judgment would be that one should have the review.
Separately, the noble Baroness, Lady Fox, asked whether one should be worried if one is criminalising through harassment conduct including speech. I do not think that that criminalises free speech, because the sorts of speech that we would intend to criminalise under the harassment crime would be cajoling, offensive behaviour—not expressing an opinion but insulting people or demanding sex or other things of people in a wholly inappropriate way. I do not think that would give rise to the risk of an attack on free speech.
Baroness Fox of Buckley (Non-Afl)
I suppose it is following on from what the noble Lord, Lord Marks, pointed out, about the broadness of that amendment. Since 2016, I have been subjected to a “fair amount of verbal”, as they say, walking around the Westminster village, from people who did not approve of my Brexit views. It was not pleasant: it was not sexual, but it was particularly obnoxious and offensive; but I do not know whether that should be against the law. I might have a moral view of it, but I would not want them all to be arrested. I am saying that, while verbal harassment is unpleasant, there is a question as to whether it should be made criminal. I just do not want everyone being locked up for things they say, even if what they say causes distress.
Lord Falconer of Thoroton (Lab)
I completely take the noble Baroness’s point. The law has been very, very aware of that. There is a difference between people saying to you on the street, “I very much disagree with your views on Brexit” and others saying, “Why are you such a stupid, awful” and then a series of expletives, and chasing you down the street, just abusing you. The law is capable of making distinction.
Baroness Fox of Buckley (Non-Afl)
It was the latter rather than the former, I have to say.
Lord Falconer of Thoroton (Lab)
Then there might be a point where that becomes harassment.
I found the speech of the noble Lord, Lord Marks of Henley-on-Thames, to be terrible. He sounded like a Government Minister in relation to this, thinking of excuses why not to do something about harassment, not just against women—against other people as well—but particularly against women. I was very struck by the fact that the Minister at least acknowledged that there is a real problem in relation to this. Her speech accepted that something had to be done about it, which that of the noble Lord, Lord Marks, did not.
There was a difference between the view of the noble and learned Lord, Lord Hope of Craighead, which was broadly to accept the proposals that I am making in Amendment 284, and that of the noble Lord, Lord Marks, who raised two particular points in relation to street harassment. One was about the breadth of the offence, which is not limited to sexual matters. I do not think it should be limited to sexual matters. If somebody who is disabled is chased down the street by a group of people taunting them for being disabled, that should be harassment. The second point the noble Lord was worrying about was “ought to know”. The sort of conduct that we are seeking to criminalise here is where people behave in a way that is wholly unacceptable. If you say, “I did not know that it was criminal to wolf-whistle and chase somebody down the street,” the fact that you did not know that should not be any defence. Those were the only two points he made in relation to it.
Lord Marks of Henley-on-Thames (LD)
I am grateful to the noble and learned Lord for giving way and I am sorry that he found my speech terrible. I think he missed the point. I am not suggesting that there should be no criminalisation of the sexual offences. It may well be that the behaviour about disability that he mentions is already criminal. The point I am making is that you have to be very careful to delineate offences so that they are criminalising only conduct that ought to be criminal.
The noble Baroness, Lady Fox of Buckley, with whom I do not always agree, made the distinction very well. In my understanding of the Minister’s speech, she and I were on exactly the same page. We both believe that violence against women and girls has to be treated extremely seriously. We both believe—and if I sound like a Government Minister, the noble and learned Lord knows that I am not and never have been one—that the Government have a responsibility to ensure that the ambit of the criminal law is kept within the ambit of the law that people can trust and have confidence in. They cannot do that if you randomly criminalise behaviour that ought to be without the criminal law.
Lord Falconer of Thoroton (Lab)
I do not know where to start in relation to that intervention. I agree with the noble Lord that we need a clear delineation. We need to come forward with something. We have come forward with something that, interestingly enough, the former Lord President of the Court of Session in Scotland found completely acceptable but the noble Lord, Lord Marks, does not, for the two reasons that he has given that seem to me to be ill founded. We need to make progress in relation to it. We are not going to have an opportunity to do it. What I take the noble Lord, Lord Marks, as saying is that he will co-operate with us in trying to delineate an offence for the purposes of this Bill because something needs to be done now.
Lord Marks of Henley-on-Thames (LD)
The noble and learned Lord invites a response. I can certainly say that we will co-operate with that and I completely agree with him that the degree to which we are forced to rush this legislation inhibits progress on the kinds of proposals he is making. The difficulty is that one has to look at these offences in detail.
The noble and learned Lord suggested—rather unfairly, I think—that the two points I made against the street harassment offence he was particularly concerned with were the only two points I had. I made it absolutely clear in my speech that these were just examples. I agree with the Minister that you have to look very carefully at the whole area of new offences. That is why the reviews are important in relation to the spiking and exposure offences. You simply cannot legislate in a hurry to create new offences, as his amendment seeks to do.
Lord Falconer of Thoroton (Lab)
I have no idea whether that was a yes or a no to my question. I assume the two points the noble Lord made were his two best points and the other two were no better than that, so I do not know where the Liberal Democrats stand in relation to that now.
In relation to the sex-for-rent offence, various points were made about whether the case of the landlady who seduces the male tenant and then does not charge rent should be an offence. I am more than happy to work out whether there should be certain defences available. As the noble Baroness, Lady Kennedy of Cradley, made clear, it is something that urgently needs criminalisation—and criminalisation that does not require the victim to be either characterised as engaged in prostitution or incited to commit prostitution. The implication of the law, even if it gives the victim anonymity, is that by succumbing to the sex-for-rent proposal the person is forced to become engaged in prostitution. That is not the way the law should be. There should just be a straightforward criminalisation of it.
Of course, I am sure that the offence can be made better in terms of its drafting but it is a drafting issue, not an issue of substance between us. If we do not do it in this Bill, when will we do it? The point that the noble Baroness, Lady Kennedy of Cradley, makes is almost unanswerable: there has been one prosecution. I could not work out whether there is maybe another one coming, from what she said. That would make it two, over years, and it is wholly unacceptable that that is the position.
Baroness Hamwee
“Automated decision-making: safeguards
(1) Where data is being processed for a criminal justice purpose, section 14 of the Data Protection Act 2018 is to be read as if the amendments in subsections (2) to (7) had been made.(2) In subsection (1) after “solely” insert “or significantly”.(3) In subsection (4) after “solely” insert “or significantly”.(4) In subsection (4)(a) after “solely” insert “or significantly”.(5) In subsection (4)(b)(ii) after “solely” insert “or significantly”.(6) In subsection (5) after paragraph (a) insert—“(aa) provide to the data subject all such information as may be reasonable regarding the operation of the automated processing and the basis of the decision,”(7) After subsection (5) insert—“(5A) The controller’s powers and obligations under this section are not limited by commercial confidentiality claimed by the provider of equipment or programmes used”.”
Baroness Hamwee
My Lords, changing the subject, the Data Protection Act 2018, reflecting the GDPR, in Section 14 provides that “decisions based solely”— solely—“on automated processing” are “subject to safeguards.” Such a decision
“produces legal effects concerning the data subject, or … similarly significantly affects the data subject.”
The decisions are subject to safeguards under the Act, notification of the data subject and the right of the data subject to request reconsideration or, importantly, a new decision not based on automated processing. Noble Lords will appreciate the potential importance of decisions affecting liberty and that the use of artificial intelligence may well involve profiling, which does not have an unblemished record.
This amendment would alter the term “solely,” because “solely” could mean one click on a programme. The term “significantly”, proposed in the amendment, is not the best, but I think it will serve the purpose for this evening. I do not claim that this is the best way to achieve my objective, but I did not want to let the moment pass. The Justice and Home Affairs Committee —I am not speaking as its chair—has had this issue raised a number of times. The Information Commissioner is one who has raised the issue. Elizabeth Denham, before she left the office, said it should not just be a matter of box-ticking. The guidance of the Information Commissioner’s Office provides that there should be the following three considerations:
“Human reviewers must be involved in checking the system’s recommendation and should not just apply the automated recommendation to an individual in a routine fashion; reviewers’ involvement must be active and not just a token gesture. They should have actual ‘meaningful’ influence on the decision, including the ‘authority and competence’ to go against the recommendation; and reviewers must ‘weigh-up’ and ‘interpret’ the recommendation, consider all available input data, and also take into account other additional factors.”
The Minister will, I am sure, refer to the current government consultation on data, Data: A New Direction, published in September. We dealt with this issue by putting the amendment down before then but, even so, the consultation questions the operation and efficacy of the Article 22 of the GDPR, which, as I said, is the basis for Section 14. I appreciate that the consultation will have to run its course but, looking at it, the Government seem very focused on the economic benefits of the use of data and supportive of innovation.
Of course, I do not take issue with either of those things, but it is important not to lose sight of how the use of data may disadvantage or damage an individual. Its use in policing and criminal justice can affect an individual who may well not understand how it is being used, or even that it has been used. I was going to say that whether those who use it understand it is another matter but, actually, it is fundamental. Training is a big issue in this, as is, in the case of the police, the seniority and experience of the officer who needs to be able to interpret and challenge what comes out of an algorithm. There is a human tendency to think that a machine must be right. It may be, but meaningful decisions require human thought more than an automatic, routine confirmation of what a machine tells us.
The government consultation makes it clear that the Government are seeking evidence on the potential need for legislative reform. I think that reform of Section 14 is needed. AI is so often black-box and impenetrable; even if it can be interrogated on how a decision has been arrived at, the practicalities and costs of that are substantial. For instance, it should be straightforward for someone accused of something to understand how the accusation came to be made. It is a matter of both the individual’s rights and trust and confidence in policing and criminal justice on the part of the public. The amendment would extend the information to be provided to the data subject to include
“information … regarding the operation of the automated processing and the basis of the decision”.
It also states that this should not be “limited by commercial confidentiality”; I think noble Lords will be familiar with how openness can run up against this.
Recently, the Home Secretary told the Justice and Home Affairs Committee twice that
“decisions about people will always be made by people.”
The legislation should reflect and require the spirit of that. A click of a button on a screen may technically mean that the decision has a human element, but it is not what most people would understand or expect. I beg to move.
Lord Paddick (LD)
My Lords, with the leave of the Committee, I will speak briefly. In my comments on the previous group on which I spoke—the one beginning with Amendment 278—I did not mean to suggest that the noble Lord, Lord Carlile of Berriew, was filibustering. I tried to inject a little humour into proceedings, bearing in mind the wide range of issues that we discussed in the debate on that group and the length of that debate. I joked that it was beginning to look like a filibuster. I have apologised to the noble Lord but I wanted to include that apology in the official record.
We support this important amendment. As my noble friend Lady Hamwee said, Section 14 of the Data Protection Act 2018 provides some safeguards against important decisions being taken by automated processing. It allows a human review on appeal with the subject having been told, but only if the decision was “solely” taken automatically, rather than “significantly”, as my noble friend’s amendment suggests. Experience in the American criminal justice system of using algorithms shows that bias in historical decisions is replicated, even enhanced, by algorithms. We therefore support this amendment.
Lord Rosser (Lab)
As has been said, Article 22 of the general data protection regulation provides that a person has
“the right not to be subject to a decision based solely on automated processing, including profiling, which produces legal effects concerning him or her or similarly significantly affects him or her.”
It also provides that there is an exemption to this if the automated decision-making is explicitly provided in law. Section 14 of the Data Protection Act 2018 provides, as has been said, some safeguards based on Article 22 for cases where the law allows automated decision-making on things that may have a significant effect on a person. It provides that where a significant decision is made by automated means, the subject may request that the decision is retaken with human oversight. The section currently provides protections for a decision taken, as has once again been said, “solely” by automated means. The amendment would extend this provision to decisions taken solely “or significantly” by automated means.
The issue of automated decision-making will become, and indeed is becoming, increasingly prevalent in our lives—a point made by all sides during the passage of the 2018 Act, when we tried to add far stronger safeguards to the then Bill to prevent decisions that engaged an individual’s human rights being decided by automated means. On that basis, I am certainly interested in the points raised to extend the right of appeal to decisions that are based “significantly” on automated processing.
Finally, it is potentially concerning that the Government are currently consulting on removing Article 22 of the GDPR and the associated protections from UK law altogether. I believe that consultation closed last week. Can the Government give an indication of when we can expect their response?
Lord Sharpe of Epsom (Con)
My Lords, I am grateful to the noble Baroness, Lady Hamwee, for explaining this amendment, which relates to automated decision-making. Let me first say that the Government are committed to maintaining high standards of data protection and agree that the clarity of safeguards relating to automated decision-making is important. The Government are also aware of some of the difficulties faced by organisations in navigating the terminology of these automated processing provisions.
As all noble Lords have noted, to address this issue the Government are currently seeking evidence via a public consultation, which is being run by the Department for Digital, Culture, Media and Sport. As the noble Lord, Lord Rosser, noted, that consultation closed only last Friday. He also mentioned Article 22. The consultation is looking at the need for legislative reform of the UK data protection framework overall, including GDPR and the Data Protection Act 2018. It covers Article 22 of the UK GDPR, including organisations experienced with navigating the solely automated processing and similarly significant terminology. As I say, that consultation closed on 19 November.
In examining the responses to the consultation, the Government will consider the safeguards in respect of automated decision-making that involve personal data in the round. We will address this matter in the government response to the consultation, which we expect to publish in the spring. We also look forward to the report of the inquiry by the Justice and Home Affairs Committee, chaired by the noble Baroness, Lady Hamwee, and will take its conclusions and recommendations into account when bringing forward our proposals for legislation. In the meantime, with apologies for being brief, I invite the noble Baroness to withdraw her amendment.
Baroness Hamwee (LD)
My Lords, I am grateful for that reply. This amendment and this concern are about far more than navigating terminology. It is actually a fundamental point, but I do not intend to keep the Committee any longer. I think I have made it clear that I am probing but, I hope, probing to an end. I beg leave to withdraw the amendment.
“Crime scenes: religious rituals or prayer
In securing a crime scene where a person within that crime scene is severely injured, such that there is a strong likelihood that they might die, there is a presumption that the constable in charge will allow entry to the crime scene to a minister of religion in order to perform religious rituals or prayer associated with dying.”Member’s explanatory statement
This amendment is intended to probe expectations of police procedure.
Baroness Stowell of Beeston (Con)
My Lords, before I get to the amendment, I think I can speak for all of us in saying that our thoughts are with the Amess family this evening.
Noble Lords who were in the Chamber for the tributes to Sir David Amess after the horrific crime that led to his shocking death will recall that at the end of her contribution the noble Baroness, Lady Masham, asked a question. I will quote her directly:
“Could priests be allowed to attend a crime scene so that they can give the victim their last rites, especially when they are dying?”—[Official Report, 18/10/21; col. 26.]
She posed this question, because it was reported that Sir David’s local priest had been denied access by the police to attend him in person to administer the last rites. It should be stressed that the priest accepted the instructions of the police and said prayers beyond the perimeter of the crime scene. I am not going to rehearse the events of that tragic day. None of us were there. It is not for me or any of us to second-guess the police officers on duty. I believe that the police should have the discretion to make whatever operational decisions they judge to be right, depending on the situation they are dealing with at any given time.
However, like the noble Baroness, Lady Masham, and many others, I found the news that a local priest was not able to attend to a dying man surprising and, to my surprise, somewhat upsetting, especially because he was the victim of such an horrific crime. I do not believe that this is a matter for legislation. Others who participate in this debate might think differently, including those who have put their name to this amendment. But after the noble Baroness, Lady Masham, and I talked, we decided to table this probing amendment to explore whether the presumption could be that at a crime scene the police constable in charge would allow entry to a minister of religion to give the last rites or other prayers associated with dying.
Perhaps now is the moment to declare that I am not a Catholic, or, I have to say, particularly religious, but like most of us who are perhaps hatch, match and despatch types, agnostics or atheists, I respect and understand how important faith is to people who practise their religion and recognise that it can become important at times of grief and loss, irrespective of the extent of our convictions. Like most other people, I think it is right that the police and all public authorities respect all religious faith, but I do think it is reasonable to expect the main elements of the Christian faith to be understood or more familiar to the police than most religions, because while religious affiliation is in decline among today’s Britons, it is still safe to say that Christianity is the main religion in the UK. That complex picture of increasing diversity and a declining majority does not mean that we should not give the importance of Christianity a plug from time to time and should not take for granted that something such as a priest being given access to a dying man at the scene of a crime will happen just because we assume that the reason why it is important is widely known and understood.
Even though there is no evidence that this was anything other than an isolated incident, having learned that something so innocent yet important was prohibited, those of us who are public figures have a responsibility to say loud and clear that we would expect it to be possible unless there are good reasons otherwise, and that we do not want the myriad sensibilities which these days the police are required to take account of to be at the expense of timeless expectations, such as access of a religious minister to someone at their most desperate hour of need.
I am grateful to the Catholic Union, which has been in contact with me since I tabled this amendment. It has been at pains to emphasise that the Catholic Church is not looking for special treatment for priests; it believes it is important for all people of faith to have access to ministers of religion when they are sick or dying. I know that the Catholic Union and the Catholic Bishops’ Conference have requested a meeting with the Minister. Notwithstanding what my noble friend has already said at Oral Questions today—I was not in the Chamber for that, but I caught up with it and know that a working group has been set up off the back of a discussion between Cardinal Nichols and the Met Police Commissioner—I reinforce that request for a meeting, so that we can discuss the appropriate steps for the Government to communicate to the police the level of importance that Parliament has afforded this matter and to receive assurance from the police that they have understood our concerns.
If it is doable, my noble friend the Minister might also like to invite a ministerial colleague from the Department of Health and Social Care, as I understand that there is growing evidence of a lack of access for priests and ministers of all faiths to care homes, hospices and some hospitals. This too was raised during Oral Questions earlier today. I realise that this would have been difficult during Covid because of lockdown restrictions, but the fear is that social norms may have been permanently uprooted and replaced by new customs and practices which, while necessary during a pandemic, are here to stay because they are more convenient for the institutions concerned.
I know from my private conversations with her that my noble friend the Minister cares deeply about this topic. In her response, I hope she is able to tell the Committee what action the Government have taken to assure themselves that, in all possible circumstances, the police will give access to a local priest or religious minister. I very much look forward to hearing what she has to say. Meanwhile, I am grateful to the noble Baroness, Lady Masham, for allowing me to work with her on this, and to all noble Lords who have put their name to this amendment. I beg to move.
Baroness Masham of Ilton (CB)
My Lords, I thank the noble Baroness, Lady Stowell of Beeston, for introducing this amendment. When I read about the terrible murder of Sir David Amess while he was attending his parliamentary surgery, I was very shocked and saddened. Later, I learned that his parish priest was denied entry by the police to the crime scene to administer the last rites. I was also shocked and surprised then. After the disgusting and tragic murder of Sarah Everard by a member of the police force, I hope they will show some contrition by understanding this sensitive amendment. We need kind, honest, well-trained police to undertake their vital work to keep everyone safe.
David Amess was an honourable, brave man. He will be remembered as an exemplary Member of Parliament. If someone else had been murdered instead of David, I feel that David would be bringing an amendment similar to this to Parliament.
The sacrament of the last rites, which is also known as extreme unction or anointing the sick, is for people who are gravely ill or close to death. It is the sacrament for the remission of sins, to strengthen and comfort the soul, and food for the journey. While not every Catholic will request the last rites to be administered by a priest, many do. It can be of utmost importance to some.
I would like to thank Alasdair Love from the Public Bills Office, who helped to put together this amendment. I am pleased that Cardinal Vincent Nichols and the Commissioner of the Metropolitan Police, Dame Cressida Dick, have agreed to establish a joint group to study these issues. I hope that training for police officers on this matter will be included. This gives some hope. I add that the coronavirus has made this sensitive and important matter even more complicated, but problems are for solving. I hope that providing the sacrament of healing to the dying who desire it will become more available. I look forward to the Minister’s reply and thank all who support this amendment.
The Lord Bishop of Leeds
My Lords, this is very sensitive territory. Dying is sacred and is part of our living. I think I am the only minister of religion here, and I have accompanied many people, including my own father, to and through their death. If you have been party to that, you will know that it is holy territory.
One could say that violent death is even more holy because of how that dying has been brought about. It seems that there needs to be religious literacy on the part of the emergency services and the police, and that the religious bodies need also to improve their literacy in relation to the nature of these events and how they are dealt with.
The noble Baroness the Minister mentioned at Oral Questions the complicating factor that this is a crime scene. The body becomes significant—I do not know what the correct terminology is, but you cannot muck about. Adding oils to the body or whatever becomes significant. But it should not be beyond the wit of man and woman to come to a reasonable accommodation.
Some 20 years ago, I came down to London to become the Archdeacon of Lambeth. I was surprised at how organised the Church of England was in south London, though not because it was south London—I had come from Leicester. There was a very well worked out arrangement with what are called ecumenical borough deans, so that each borough had a way of bringing the different faith communities together—not just Christians —working with the Met and other emergency services to ensure that, when there was a disaster, violence or violent death, there was a way of ensuring that ministers could have access to provide the ministry that the victim or their family requires.
I know that this is a probing amendment. I praise the emergency services and the police for their sensitivity in the way they have addressed this, but they are doing so within a culture that often treats religion as a private matter. I get told sometimes that Christians, Muslims, Jews and Hindus are all the same but just wear different clothes and have a different diet. It is not like that. Culturally, we need a deeper religious literacy—in the media, in our public institutions and public life, and in the nature of our discourse, where the language is often a giveaway.
I am glad that the Catholic Bishops’ Conference and Cardinal Nichols are having these conversations. I ask the Minister to urge that those conversations perhaps go wider and deeper, as we take our time to work out a more effective way of handling what is very sacred territory.
Lord Moylan (Con)
My Lords, I have two points to raise. Following the right reverend Prelate the Bishop of Leeds, I start by saying that this is a sensitive subject. I agree with him that, even though this is the day of burial of Sir David Amess, and he is in our thoughts, I do not wish to criticise the police and their conduct on that day or talk about that incident. I want to talk at a slightly more abstract level. I appreciate that anyone in charge of the crime scene on that day faced a difficult decision and it is not for me to criticise what they did at that time; that is not my point.
My first point is to stand back and ask a more abstract question: who owns a death? The assumption, especially when a death is violent or in emergency circumstances, is that the death is owned by the state—by the police and the ambulance service primarily. They are in charge, it belongs to them and everybody else must have permission to be admitted. Even the right reverend Prelate the Bishop of Leeds sort of admitted that and gave that point away by saying that police needed better training to understand why and when they should admit people to the scene.
I would go a little further and say that the claims of the police and ambulance service have to be understood and considered in the light of other claims. Those other claims include the claims of the family and the dying person themselves as to who owns what is going on and who has a say. If we simply collapse into thinking that it is just a matter of getting better police procedure, we are conceding the major point. Of course it is in the public interest that a criminal who has killed people should be brought to justice, that their trial should be fair and the evidence preserved. But that is not the only interest in a death. It is not the only subject and there are other claims we should consider.
This afternoon, as some noble Lords know, there was an Oral Question on this topic in my name on the Order Paper. One noble Lord genuinely asked: has this subject ever come up before? I think he meant: has it ever come to a ministerial desk before? The answer of my noble friend was that she thought not—that the Amess case had brought it to public attention, but it had not really come up before. However, the real answer to that question is, “Yes, yes, yes”. It has come up before, for example at the Manchester Arena, and countless times in care homes over the last year throughout this country; it just does not rise to the level of Ministers’ desks.
Here, I have to admit that I have taken some advice from a distinguished academic specialising in emergency response, and I am told by her that this is partly because there is indeed police training on this subject, but it is primarily focused on how to explain to the families afterwards why the priest was not allowed in. That is the main focus of police training, rather than training them to think of the circumstances in which they might relinquish their claim—valid though it is—in order to respect the claims of others. That is my first point, and I think we should reflect on that.
My second point is a little more practical: we can do this better if we want to. We have done it better in the past. I was told today, again by the same distinguished academic, that there are lovely pictures from the Second World War of ARP wardens going into bomb sites—arduous and horrible work—immediately after a bombing to try to rescue the dying and recover the dead. They were accompanied by clergy with “ARP clergy” written on their tin hats, because it was assumed that these people were correctly and properly embedded in any team that was going to identify, and to find and rescue, people who were dying in the wake of a bomb. Of course, in those circumstances, there was no question of identifying the perpetrator. The perpetrator was well known and was not going to be brought to criminal trial on that basis.
I am treading on slightly uncertain ground for me here, but if you go to other countries—to Israel, for example—I am told that where there are bombs and emergency responses, there are people who are again embedded with the police. They would not be clergy because Judaism operates in a different way; there is no function, as I understand it, reserved to a clergyman in Judaism that cannot be carried out by a lay person. Although the approach to death is slightly different—it is not a question of last rites for the dying, but more a case of the proper treatment of the dead—these people are embedded with the police and it is all well understood. My noble friend Lord Moynihan, asking a supplementary question earlier today, drew attention to practice in certain US states. Again, there is much better relationship, a working relationship, between the police and what are called faith groups, in exactly these circumstances.
That illustrates the two points. First, we need to ask ourselves some radical questions about who is charge in these circumstances, and who has a claim—not just as a petitioner, merely standing at the door asking—to be there at the death. Secondly, if we want to, we can do better. That is why, today, I asked my noble friend if she would at least undertake a study that looked at practice in other countries and jurisdictions to see how they do it and what we can learn from that. I think we would benefit greatly from that. I do not ask any more.
Baroness O’Loan (CB)
I thank the noble Baronesses, Lady Stowell and Lady Masham, for tabling this probing amendment, prompted by the tragic and terrible murder of Sir David Amess and the inability of the attending priest to gain access to Sir David in what may have been his final moments. I am not sure if it is a declarable interest but, like Sir David, I am a Catholic. My support for this amendment is a product of my faith.
In almost any situation in which someone has suffered a terrible injury, there is the possibility that a crime has been committed and therefore, of course, the location of that injury will become a crime scene. Current police procedures are very specific about the management of such scenes and actions taken in those first minutes may be critical to resolve any crime that has been committed. The responsibility lies with the first officers to attend. Access to such a scene is necessarily limited. A scene log will be created to manage and record all the activities within the crime scene. However, a variety of people do gain access. They include ambulance and medical personnel, undertakers, photographers and scene of crime officers. They all have a legitimate purpose in being at the scene, but not all these purposes relate to the maintenance of the integrity and provenance of any material that may be recovered from the scene. Crime scene officers are required to ensure that persons entering the scene are wearing suitable protective clothing to prevent contamination of the scene, and to ensure that they are protected from any hazards present. So, it is possible to provide safe access for clergy that will not in any way contaminate or inhibit an investigation. The question then must be: is it desirable to do so?
Northern Ireland has seen the cost and the benefit of the presence of a priest on many occasions. The PSNI has worked with very well with clergy of all denominations. Perhaps I could remind your Lordships of the terrible murder of the two corporals, Derek Wood and David Howes, by the Provisional IRA on 19 March 1988 in west Belfast. Father Alec Reid of nearby Clonard Monastery attended them as they lay dying. His prayers—his intervention at that most savage moment—were enormously important to so many.
Two Belfast priests died during the Troubles attending their parishioners who had been shot. Father Hugh Mullan died in 1971, going out into gunfire knowing that he could be shot. Another, Father Noel Fitzpatrick, died in 1972 when accompanied by a parishioner, Paddy Butler. Waving a white handkerchief, he attempted to reach wounded men during sustained and heavy gunfire. These were brave men living their call to minister. It has long been a tradition in this country and many others that there is recognition of the value of spiritual and pastoral support. For this reason, chaplaincy services are publicly funded in many situations. However, at the present moment, attending an emergency scene as a priest can be a daunting experience, as the response of police and ambulance personnel is not certain. It depends on a decision made by someone who may have no religious faith and who may see absolutely no justification for permitting access by a priest.
To be able to receive sacramental spiritual support in the event of a death, or possible imminent death, is of profound meaning and importance to Catholics. Indeed, the support of a priest or other minister of religion is of great importance to those of other denominations and faiths. As your Lordships have heard, Cardinal Nichols and the Commissioner of the Met have agreed to establish a joint group to study the access given or refused to Catholic priests at scenes of traumatic violence and to consider whether any changes are required to the guidance issued to officers facing such a situation. This is a very positive initiative that will inform the national debate. There can be no doubt that many factors will be considered but, given that safe access, with protection against any crime scene contamination, can be secured, the primary question must be whether such access should and can be managed in a way that will enable the celebration of the sacraments at this most sacred moment, the moment when we believe a soul is passing.
Undoubtedly, any future guidance will require processes for the identification, training, et cetera, of clergy who might be granted access in such situations, but these are practical issues which can be resolved. I put my name to this amendment because I believe it can be done, and it should be done, for the support of the dying person and for their family and friends, who may be enormously comforted by the fact that a priest was allowed to attend someone at this most sacred moment.
Baroness Newlove (Con)
My Lords, I support this amendment. I appreciate the time, but as somebody who has lost somebody to a violent act and has been in a crime scene, I reiterate the words of my friend, the noble Baroness, Lady O’Loan. I am a Roman Catholic, but actually I am speaking about the procedures that the police had in place on that night. I was in a crime scene and I had to wait for permission to leave that crime scene and to be able to go and see Garry, who was dying. He died on the ground—he came around and then they rushed him. It may have been only minutes but it was hours in my mind. You have to wait for police procedures. I fully respect that the police are doing what they are doing, but it did feel at times that it was about the process and not about the dying man on the ground and my three daughters, who were covered in blood, being whisked away as victims of a horrendous, horrific crime. Even the priest in the hospital had to step away with anger at seeing how vicious a scene it was.
I support this probing amendment, not out of disrespect for the police officers, but I do believe that there are a lot of processes that go on. Even the Home Office is on the phone to see if things are flagging up. So, with respect, to make this procedure a lot better, we have to look at how we help victims and their families. My heart has gone out to Sir David’s family, because the shock of those seconds of losing somebody is something you will never, ever get over.
Lord Touhig (Lab)
My Lords, that was one of the most powerful statements I have heard in this House, coming from someone who knows what it is like to suffer. It is a horrible tragedy that the Amess family have suffered. I echo the noble Baroness who introduced the amendment in saying that our thoughts and prayers are with them tonight, and for the repose of Sir David’s soul.
I was not sure that I could add much to this debate, but I gave it some thought and would like to share some personal observations. Thinking about the amendment, I recalled the singing of the hymn, “Abide With Me”. I have heard it sung twice recently: first, when I tuned into a vigil mass celebrated by Canon Pat Browne, the Roman Catholic priest in Parliament, on the eve of Armistice Day, and, again, when I watched the Festival of Remembrance at the Albert Hall on television. What kept coming into my mind was a line in that hymn:
“Hold Thou Thy cross before my closing eyes.”
Those words express what I believe many people of the Christian faith hope for at the end of life. They emphasise how important it is to receive spiritual comfort.
For Catholics like me, the last rites are an important and spiritual passage, a sacrament, an opportunity for reflection on past failings and for seeking forgiveness and reconciliation. I bear witness from within my own family of the peace experienced by loved ones when they were supported in their faith by a priest administering the last rites.
People of faith, whether Jews, Muslims, Christians or indeed of any other faith belief, desire the spiritual support that their faith can give them at the end of life. More widely, I think that many of my friends who have no faith would always wish to be surrounded by family and friends at the end of that life. Let us ask ourselves: who among us would not hope to leave this life comforted by family and friends or, as in the case promoted in this amendment, by a priest?
I strongly agree with the noble Baroness, Lady Stowell, who made it clear that this is a probing amendment and the matter does not require legislation. Rather, it requires a little bit of common sense, perhaps education, training and research, so that the blue-light services, especially the police, recognise this matter and treat a request such as the one that has prompted the tabling of this amendment in a way that will allow a minister of religion to be with a dying person at the end.
Lord Paddick (LD)
My Lords, I thank the noble Baroness, Lady Stowell of Beeston, for bringing this amendment to the Committee, particularly in such a selfless way in that she said that she was neither a Catholic nor particularly religious. Seeing the arrival of Sir David Amess’s body at the House this evening was very moving, and our thoughts are with his family. I thank the noble Baroness for saying that she was not second-guessing the police officers at the scene of that terrible tragedy, but, as she said, there was a local priest who was not allowed to give the last rites.
The right reverend Prelate the Bishop of Leeds gave a very moving and sensitive speech, and I agree with much of what he said. I should declare an interest both as a Christian but not a Roman Catholic and as a police officer who served for more than 30 years. Religious faith is important to people, but so is bringing offenders to justice, particularly those responsible for offences where fatal injuries or injuries expected to be fatal are inflicted. The contribution of the noble Baroness, Lady Newlove, was extremely powerful in giving first-hand experience of that tension between the need to preserve evidence in order to convict those responsible and wanting to address the needs of the dying person and their family.
Securing forensic evidence is often vital to the identification and prosecution of offenders, as in the case of Sir David Amess. I agree that there needs to be a meeting of police and religious leaders—not just Roman Catholics—to ensure that both sides understand the needs of the other. Police officers should have a real understanding of the religious needs of people and the religious leaders should understand the needs of the police in these circumstances. As I said this afternoon in Oral Questions, surely there must be a role for government in bringing these two sides together, in facilitating this understanding and in ensuring that, after this understanding has been reached, operational police officers share it and know how to respond in these very difficult situations.
Interestingly, in groups of amendments that are to come, I refer to the valuable lessons from Northern Ireland to which I do not think we are paying enough attention. I am grateful to the noble Baroness, Lady O’Loan, for her remarks.
Lord Coaker (Lab)
My Lords, what a moving and powerful debate we have had this evening. I know that the noble Baroness, Lady Williams, and her noble friend will have been moved by it as well. The real challenge that has been presented to the Minister and the Government is how to capture what has been said in this Chamber tonight in relation to the practice that takes place in very difficult and challenging circumstances.
I am not going to rush this, and I am pleased that noble Lords have not rushed this either, as this is too important a debate to be rushed. In speaking to their amendment, the noble Baronesses, Lady Stowell and Lady Masham, spoke in such a way that gave respect to the awfulness of what happened with David Amess. I pay tribute to the noble Baronesses. Out of the horror of that situation, they are trying to make something positive happen in future. We have all been moved by that. The challenge for the Government is how to do something about it.
I say gently to the Minister that the system will respond in a bureaucratic, almost insensitive way, by saying, “It’s really difficult, Minister. It’s very tough to do something about this.” This is one of those situations that requires the system to respond. Human needs to speak to system and make it work, and that is not easy—it really is not.
The noble Baroness, Lady O’Loan, brought her perspective from Northern Ireland. She did incredible work there in trying to ensure that, among the terrorist atrocities, somehow or other there was comfort for the dying and bereaved, as well as the pursuit of justice. That was a beacon in that situation, and they made it happen there. The noble Lord, Lord Touhig, talked about the situation in his own family. The noble Baroness, Lady Newlove, made a very moving, personal statement about the horror of what happened to her and the tension between trying to comfort the dying while ensuring that the police were allowed to do their work.
The noble Lord, Lord Moylan, made a brilliant speech. I am not a lawyer so, when I spoke just now, I spoke as a politician who demands that the system works. There are brilliant lawyers on both sides of this Chamber who can dissect the law; that is not me. I say to those with legal expertise, like the noble Lord, Lord Moylan, that I may not have that legal expertise, but I know what the public would expect the system and the law to do. I know how they would expect the legal system, the courts and the police to respond, and how they would expect the system to work.
The phrase that the noble Lord, Lord Moylan, used was, “Who owns the death?” Who owns it? I will talk about myself because that is easier to do. Maybe I have got this wrong, but my sense is that, if I were attacked in the street and stabbed—God forbid that this happens to any of us, but if it happened to me and I was dying—I would not want a police officer ensuring that the crime scene was not compromised. If my wife, or my children, or my grandparents were nearby, that is who I would want to come. I would not care if the crime scene was compromised; I would not.
I know that that is difficult for the police because the police will want—as, of course, in generality, we would all want—the perpetrator to be caught, put before the courts and dealt with. I am just saying what Vernon Coaker, a human being, would want: I would want my family or my friend, if they were nearby, to be allowed to come and see me and talk to me, in the way that no doubt the right reverend Prelate the Bishop of Leeds has had to do on many occasions. I would want them to give me comfort, and to give me a sense that I could say goodbye properly to my loved ones.
I do not know what that means for the law, to be honest, or what it means for the guidance, but I do not believe that it is impossible to learn, as the noble Lord, Lord Moylan, laid out, from other countries or jurisdictions, or from what is done elsewhere, to find a means of balancing those two priorities in a more sensitive way than perhaps we see at the moment. That is all that this Chamber is asking for—and that is what the Minister needs to demand from the system. The system will say, “It’s tough, it’s difficult. We need to do that, but we have also got to preserve the crime scene.” The Chamber is saying, “Yes, preserve the crime scene; yes, let’s catch the perpetrators, but not at the expense of everything else.” Let it not be at the expense of human beings knowing what is best for themselves—of individuals at the point of death being able to choose who they want to see.
I suggest that the majority of us would want our family with us, even if it meant some compromise to the crime scene. That is what I think and what I believe this Chamber is saying and demanding. The debate has been incredibly moving; people have laid out their souls. They have done it with a sense of purpose, to say to the law and the system: it needs to change; this cannot happen again. If this had happened to somebody else, I believe, as somebody else said, that David Amess would be saying the same as the rest of us. Maybe that is a fitting tribute to him as well.
Baroness Williams of Trafford (Con)
My Lords, I echo the words of the noble Lord, Lord Coaker; this has been one of the loveliest debates that I have ever been privy to in this Chamber. As his family prepares to say goodbye and his body lies in the Crypt just yards away, may we all spare a moment to think about David Amess, and the tragic way in which he died. It was absolutely senseless; it has shocked us all.
As noble Lords have said, we must extend our thanks to Essex Police and the Metropolitan Police for their quick and comprehensive response, and apprehending and charging the alleged culprit. I also bring out for special mention my thanks to my noble friend Lady Stowell of Beeston for moving this amendment, to my noble friend Lady Newlove, whose testimony with her first-hand experience was deeply moving, and to the noble Baroness, Lady O’Loan, who has shared such experience in this area, particularly in Northern Ireland, and how it has been dealt with day in and day out for decades.
As a Catholic, I understand the importance of extreme unction, absolution and viaticum for those close to death. However, this is not just about Catholics, of course, as the right reverend Prelate the Bishop of Leeds said. To answer my noble friend Lord Moylan’s point about who owns a death, we have to strike a sensitive balance. Humanity and sensitivity need to be shown to families and the person who is dying. That is the balance that we need to strike here.
Baroness Stowell of Beeston (Con)
My Lords, I am very grateful to my noble friend the Minister and to all noble Lords who have spoken today. First, in response to my noble friend’s last couple of points, of course I will withdraw this amendment, and I am grateful to her for agreeing to the meeting requested by the Catholic Union and for including in that meeting a Minister from the Department of Health and Social Care. Having been requested, it is important that that meeting goes ahead and provides an opportunity for a discussion on these issues from that single perspective. As she has already said, it is very encouraging that Cardinal Vincent Nichols and Dame Cressida Dick have initiated this working group to look at the issues arising from the events of that tragic day.
The debate this evening has been remarkable. I have found it quite moving. I was very unsure about tabling this amendment, if I am honest. I hesitated quite a bit about it, and then after I had tabled it, even with the support of the noble Baroness, Lady Masham, I kept thinking, “Oh God, is this the right thing to do?”, but I thought it was important that we had an opportunity to debate these matters. As I said earlier in my opening remarks, I genuinely felt that it was important for us to stand up and say, “This is important”, rather than just accept it as something that happened and move on.
The result of that seems to have been noble Lords expressing views and raising points that I had not even thought about and elevating the importance of this issue. In addition to what the Minister has already agreed to, it would be proper for her to give further thought to how we can explore its importance even more. I think it was the noble Lord, Lord Coaker, who suggested that the Government facilitate the dialogue between the various different religious faiths. As the right reverend Prelate, to whom I hope I did justice to at the beginning, said, this is not just about the Catholic faith but about how we address some of these bigger issues, which really do need to be considered. As a society, we have to make sure that the things that are really important to us as human beings and to our cohesiveness as communities are recognised and given the attention and weight that they deserve by those of us in positions of power to make these things happen.
Again, I am grateful to all noble Lords and I look forward to sitting down with the Minister and the representatives of the Catholic Union. Until then, I beg leave to withdraw the amendment.
Lord McColl of Dulwich
“Modern slavery through control of another's property
In Section 1 of the Modern Slavery Act 2015 (Slavery, servitude and forced or compulsory labour) after subsection (1)(b) insert—“or(c) the person occupies or exercises some substantial control over another’s home in connection with the commission of another criminal offence and the person knows or ought to know that the other person—(i) has not given consent,(ii) is unable to give free and informed consent, or(iii) has withdrawn consent.””Member’s explanatory statement
This new Clause would make exploitation through exercise of control over another person’s property without their consent an offence under Section 1 of the Modern Slavery Act.
Lord McColl of Dulwich (Con)
My Lords, over the six years since the Modern Slavery Act was passed, we have seen the criminals involved in modern slavery continuing to find new ways to exploit others for their own advantage. In particular, we have seen the rise in criminal exploitation of children and vulnerable adults in county lines drug dealing. Amendment 292F seeks to address the phenomenon of cuckooing, which is an example of criminal exploitation that has recently grown in prominence.
Cuckooing is the evocative name given to a situation whereby criminals take over a person’s home against their wishes and use the property to facilitate criminal activity. Most commonly, this occurs where drug dealers take over the victim’s home and use the premises to store, prepare and distribute drugs. Your Lordships may be unfamiliar with this issue, but just last month there was a national police week of action on county lines drug dealing during which the National Police Chiefs’ Council reported that 894 cuckooed properties were visited in just one week.
This is a crime affecting hundreds if not thousands of people. Victims of cuckooing are often quite vulnerable people, perhaps people with learning disabilities or mental or physical health challenges, survivors of abuse or people living with addiction. Their vulnerability is exploited by the criminals, who take advantage of them to control their home. None of us could accept that indignity, insecurity and wrongful intrusion into that most precious space, one’s home. That is what the victims endure.
It is important that the Government are tough on this area of crime. As David Cameron said in 2010, burglars
“leave their human rights at the door.”
An Englishman’s home is his castle, and if the law cannot protect him there, then who can?
Victims are targeted by criminal gangs and have their homes taken over for prolonged periods by sometimes dangerous people, putting them at significant risk of harm. One such victim was Anne. Anne had had a difficult upbringing and suffered many abusive relationships. After leaving an abusive marriage, she became a victim of cuckooing when she was given local authority housing in an area where there were many drug dealers. Due to alcohol and drugs, Anne’s physical and mental health deteriorated quickly. When the police entered her home they found a perpetrator, who was just 21 years old, lying on a sofa. He was in possession of drugs, weapons and some cash that the police found in the flat. Anne was in a very bad state but she saw the perpetrator as her protector who was keeping trouble out of the door, yet he himself punched and assaulted Anne, threatening her on multiple occasions. He told her to go to the streets to supply other dealers but she was not getting any money, just some drugs.
This is clearly a form of modern slavery. The victim’s home is taken over without their consent, and they are vulnerable and powerless to prevent it in the face of dangerous criminal gangs. Like Anne, victims are often physically and emotionally abused. Although police and prosecutors are aware of this phenomenon and determined to target the criminals, it seems that the law may not offer them adequate tools for the job. Cuckooing does not meet the definition of the human trafficking offence in Section 2 of the Modern Slavery Act because there is no travel involved. According to the CPS, however, neither does it fall within the definition of slavery, servitude or forced or compulsory labour under Section 1 of that Act unless the criminals demand labour or service from the victims in addition to occupying their home.
While it may be possible to prosecute these criminals for other offences, such as drug crimes, we cannot be satisfied with a situation that does not reflect the exploitation of a person at the heart of the offence. We must hold criminals to account for the harm done to victims of this exploitation and offer victims hope for a future free from this kind of control. There is a clear public interest in protecting the right of every person to their private and family life without having their home taken over against their will.
Lord Paddick (LD)
My Lords, I am grateful to the noble Lord, Lord McColl of Dulwich, for raising the important issue of cuckooing. This is when criminals, mainly drug dealers, take over the homes of vulnerable people. It is a very serious and not uncommon problem, as the figures cited by the noble Lord gave witness to. I look forward to the Minister explaining why this amendment is not necessary or what alternative the Government propose.
Lord Coaker (Lab)
I note the work that the noble Lord, Lord McColl, has done on modern slavery over many years, and thank him for it. It is right for us to acknowledge that in speaking to this amendment.
I want to draw particular attention to the section of the noble Lord’s amendment that covers something that is often not recognised to the degree it should be when it comes to county lines gangs’ operations and the way cuckooing works. Proposed new sub-paragraph (ii) talks about when a person
“is unable to give free and informed consent”.
That is the crucial bit. Too often, people are asked, “Why have you allowed this to happen? Why have you let them take over your property?” It is almost as though they have given their consent. But they are sometimes so frightened that they give their consent because, if they do not, the consequences will be such that they live in fear. Somehow, the law does not seem to recognise that.
Proposed new paragraph (c)(ii) refers to someone being unable to give “free and informed consent”. This is absolutely crucial to stopping the offence of cuckooing. People sometimes appear almost as though they have left a property of their own free will, saying, “Here you are. Come into my property. Use it for drugs and county lines operations.” Then, sometimes—not always, but sometimes—the police say, “Well, what did you do about it? Why didn’t you stop it?” That does not reflect the real world. People are terrified; they are frightened. They are told, “If you don’t let us use your property and get out of it, or if you tell anyone about it, we are going to do X, Y or Z to you or to your family.” That is sometimes not recognised, but it is the crucial part of what the noble Lord’s amendment gets at. If we want to stop cuckooing, we must understand that people are coerced into giving their consent; often, the law seems to treat them as though they have given their consent willingly. If we are to stop cuckooing, we must understand the context in which it occurs. I hope that the noble Baroness will be able to reflect on that.
Lord Sharpe of Epsom (Con)
I am sorry to disappoint the noble Lord.
I am grateful to my noble friend Lord McColl for introducing this amendment which seeks to provide for a bespoke criminal offence to tackle what is known, as he pointed out, by the evocative name of “cuckooing”. I assure noble Lords that this Government take all forms of exploitation seriously and we are determined to tackle it. I fully sympathise with the intentions behind this amendment, as we recognise that these unscrupulous exploiters often target the most vulnerable in our society to control their homes and, as my noble friend argued most powerfully, against their will to perpetrate a range of crime types. This practice is often associated with drug dealing, which is a feature of county lines offending, but also encompasses other forms of exploitation types such as sex work, which not only devastates the lives of the victim but impacts the local community in which they live.
While I support the sentiments behind this amendment, we remain to be persuaded that a new offence is needed. There are existing powers that can be and are being used to disrupt cuckooing, including the use of civil preventive orders, such as closure orders and criminal behaviour orders, breach of which is a criminal offence. As to the criminal law, there are offences under the Misuse of Drugs Act 1971 which may be charged, specifically those under Section 4 relating to the supply of controlled drugs and under Section 8 relating to the occupier of premises knowingly permitting the production or supply of drugs from their property. The offence of participating in the activities of an organised crime group in Section 45 of the Serious Crime Act 2015 may also be relevant. That said, this is an area of the criminal law which we continue to examine.
Moreover, I am sure my noble friend would agree that were there to be a new offence, Section 1 of the Modern Slavery Act is not the proper place for it. That section deals with offences where a person exercises control over another person to hold them in slavery or servitude, or requires them to perform forced or compulsory labour. The focus is on controlling another person and not their property or belongings. Having said all that, we recognise the seriousness of this phenomenon, and we will continue to look into it and support law enforcement partners in their efforts to tackle this malicious crime. In the light of this assurance, I hope my noble friend will be content to withdraw his amendment.
Lord McColl of Dulwich (Con)
I thank the Minister for his reply and the noble Lord, Lord Coaker, for being so supportive. The problem is that this is falling between two stools, and I do not quite understand how the present law is going to be used to deal with this problem. I would like some explanation; perhaps the Minister could write to me explaining exactly how the present law can and should be used. Meanwhile, I beg leave to withdraw my amendment.
Lord Wasserman
“Recording the sex and acquired gender of alleged victims and perpetrators of crime
After section 44 of the Police Act 1996 insert—“44A Recording sex registered at birth and acquired gender (1) Police forces in England and Wales must keep a record of the sex registered at birth of each person who is—(a) the alleged victim of a crime reported to that police force, or(b) arrested for a crime by a member of that police force.(2) Police forces in England and Wales must keep a record of the acquired gender of each person with a gender recognition certificate who is—(a) the alleged victim of a crime reported to a member of that police force, or(b) arrested for a crime by a member of that police force.(3) Provision by a police force to the Secretary of State of any protected information recorded under subsection (2) above does not constitute an offence under section 22 of the Gender Recognition Act 2004.””Member’s explanatory statement
This amends the Police Act 1996 to ensure that the sex registered at birth and acquired gender, if appropriate, of anyone who is the alleged victim of a crime or who is arrested for a crime will be recorded by police.
Lord Wasserman (Con)
My Lords, before I say anything substantive about this amendment standing in my name and the names of the noble Baronesses, Lady Morris of Yardley, Lady Grey-Thompson and Lady Ludford—who apologises for not being in her place this evening—I apologise to the House myself for having been unable for medical reasons to attend the Second Reading of this important Bill. However, I watched the debate with much interest, and was impressed by the wide range of issues raised and the very strong feelings with which many of those issues were discussed.
For me, the key point at Second Reading was made by the Minister, my noble friend Lady Williams of Trafford, who, when introducing the debate, described the Bill as having one overarching objective; namely, to keep the public safe. I have devoted almost the whole of my professional life to advancing this objective, both in this country and abroad, and it is for this reason that I enthusiastically welcome the Bill and welcome the opportunity to speak to this amendment.
If I were asked to name the most important lesson I learned from my long experience of policing, on both sides of the Atlantic, I would say that it is the importance of accurate, timely and comprehensive information in reducing crime and making communities safe. Without such information, policing and crime reduction become simply a matter of guesswork and luck. With such information, however, our police forces and those who advise and assist them can begin to understand why, when and where crimes occur, and to develop effective evidence-based plans, strategies and tactics for tackling them. In a nutshell, the more comprehensive, consistent, timely and accurate the information available to our police forces, the more effective their efforts and the safer our communities will be.
Everyone who cares about policing and public safety recognises this, and it is this concern for consistent, accurate and comprehensive national information which accounts for Section 44 of the Police Act 1996, which gives the Home Secretary the power not only to require all forces in England and Wales to collect, maintain and return information about criminal behaviour and policing but to
“specify the form in which information is to be provided.”
It is this power to specify the form of the information to be provided that makes our national collection of criminal statistics so useful, because it permits the Home Office to issue its so-called counting rules—a set of memoranda that spell out in detail what information is to be collected by individual forces. These rules, which are kept regularly up to date to reflect new crimes and other changes in legislation, ensure that our national collection of criminal information is accurate, comprehensive and timely, rather than a set of random figures that reflect the whims and preferences of individual chief constables or police and crime commissioners.
I am making something of these Home Office counting rules because I want noble Lords to appreciate that there are already in place tried and tested arrangements to collect information from the police and to ensure that these collection arrangements are easily amended in the light of practical experience on the ground. For this reason, I very much hope at this late stage of this evening’s debate to concentrate on the main proposals of the amendment and not get bogged down in discussing the modalities of how this information should be collected. These are matters of detail for practitioners to consider in the light of the general principles that Parliament lays down for them, and not really matters for primary legislation.
Let us turn, therefore, to the heart of the amendment. It aims to fill a serious gap in our national collection of criminal statistics caused by the fact that, at present, police forces are not routinely or consistently required to collect data on the sex of all alleged victims or perpetrators of crimes. As a result, practice on the collection of sex data varies across forces and, in recent years, there has been a confusion with gender and related concepts, such as gender identity, which have been compromising the accuracy of our national data relating to sex. For example, most police forces currently allow biologically male alleged perpetrators to self-identify as women, even when charged with rape, and will then record the crime as carried out by a woman.
As is obvious from this example, our present laissez-faire attitude to how sex is recorded by forces across England and Wales has important practical consequences. It deprives policymakers and police practitioners of accurate and consistent national statistical data about discrimination on the basis of sex. It thus makes it very difficult, if not impossible, to develop effective evidence-based policies for fighting these crimes, especially crimes relating to violence against women and girls—the tackling of which is one of the Government’s principal objectives and one to which they are committed by international agreement.
The amendment aims to fix this problem by amending the Police Act 1996 to require all forces to collect, for
“each person who is … the alleged victim of a crime reported to that police force, or … arrested for a crime by a member of that police force”,
at least one and in some cases two pieces of personal information. The first is the sex registered at birth of the alleged victim or arrestee, and the second is the acquired gender of that person, provided that he or she has a gender recognition certificate—known as a GRC—which legally recognises their acquired gender in the UK. I am sure some noble Lords would wish to argue that neither of these categories is appropriate in the context of the criminal justice system and that forces should collect only information on alleged victims’ or arrestees’ gender identity as he or she declares it to be. Let me deal with this argument in stages.
Baroness Brinton (LD) [V]
My Lords, I wish to speak against this amendment, because on first reading it set off a number of alarm bells. But I say to the noble Lord, Lord Wasserman, that I listened carefully to what he said, to try to understand his arguments. For me, there are consequences for trans people in the amendment that no other group of people with protected characteristics would have to face in our society.
Those who have laid and spoken to amendments to this Bill against transgender people have repeatedly said there is a data collection problem. But I do not understand why the data needs to be collected by the police, given that for most crimes—whether the victim or the person being arrested, as set out in this amendment—being a trans person is just not relevant.
A parallel example would be requiring a disabled person to register with the police. I have chosen this example deliberately because, four years ago, I was physically attacked in my wheelchair at Euston station. For that incident, the wonderful British Transport Police recorded the crime as a disability hate crime—the crime, note, not the victim or the perpetrator. I would be appalled if every time I reported a crime thereafter—online fraud, for example—I had to say, “By the way, I’m disabled and I’m on your disability register.”
Rape offences are probably the only offences where the police need to know the sex of the offender because the legislation is dependent on the person’s genitals. It is otherwise not relevant information because the police do not need to know it. The noble Lord, Lord Wasserman, says that it is easy to add one section to the crime reporting information system—CRIS—but is it so easy? Adding just one extra category will take time and, for an existing reporting system, is usually very much more expensive than expected. Just ask the Government about the costs of adding the booster jab details to the Covid app, when they have thrown millions at IT during the pandemic.
I note that the amendment says that the above
“does not constitute an offence under section 22 of the Gender Recognition Act 2004”,
which prevents the disclosure of this protected information. On what grounds, then, is it acceptable to share people’s protected characteristics when the GRA says that is private information? In the context of personal information, can the noble Lord confirm whether the amendment complies with GDPR? I am not sure that it does, as it is not personal information that is essential to record.
I return to why the amendment was laid. Can the noble Lord, Lord Wasserman, answer some questions to try to explain the aims of his amendment? I will give a hypothetical example: a trans individual is subject to house burglary or to a street mugging unrelated to their gender. This amendment requires them, if they report that crime, to out themselves to the police. Why should they suffer that loss of privacy and human rights, and to what end? Why should trans people face such a disincentive to report crimes perpetrated against them? Why is this the one group of people being singled out as victims?
I have a second example. A trans person is arrested for being drunk and disorderly but they have been assaulted and in fact are suffering from concussion, which can give the same appearance. That would be a defence to any charge but they are required to out themselves upon arrest. Why? A key tenet of our law is that accused persons are presumed innocent and mostly have the same right to privacy and liberty as all citizens. That is different for criminals. The noble Lord, Lord Wasserman, referred two or three times to crimes and criminals but that is not what this amendment says. It concerns anyone who is arrested. What is the position of an accused person who refuses to provide the relevant information? The amendment does not make this clear. Would they be obstructing a police officer in the execution of their duty under Section 89(2) of the Police Act 1996?
A further real concern about this amendment, if enacted, is that it would prevent trans people coming forward to report being victims of crime as they would have to out themselves. Many would not be comfortable with disclosing that sort of information. It also implies that a gender recognition certificate is what defines gender, whereas many trans people do not have or want one of them.
The fundamental problem for me, though, is the labelling and targeting of trans people, either as victims or those arrested by the police, alone of any group in our society. While this amendment may not be being instructing them at this stage to wear a pink triangle on their jackets at all times, there would be a data pink triangle. It would set them apart from every other grouping in society. It sets a dangerous and unacceptable precedent. I hope the noble Lord will withdraw the amendment.
Baroness Morris of Yardley (Lab)
My Lords, I have put my name to this amendment and I shall speak in support of it. I very much welcome the way in which the noble Lord, Lord Wasserman, presented the argument. He gave a lot of detail, and at this time of night I will not go over it again, but I want to emphasise one or two points.
To begin with, I say that I sort of understand the points made by the noble Baroness, Lady Brinton, and I take them seriously, because anybody who thinks that any proposed legislation will discriminate against one group deserves to be heard and to have those questions explored. But at the core of this is the collection of data; we are an immensely data-rich society at the moment. Sitting here, throughout the debates this evening, there have been so many times when the argument that has been put forward has depended on the collection of data. Whichever public service you look at, whether it be education, health, the criminal law or whatever, much of the progress that we have made over previous decades has been because we have had the ability to collect data.
I am a woman, and I think that my sex has made many advances over the past decades because people arguing for legislation that has protected women, men, people with disabilities and people who are transgender have been able to make the case only because they have been able to collect the data. Unless you have the data, you are arguing vaguely about some impression about something that might happen, so I am deeply wedded to the idea of collecting data in the formation of public policy and the advancement of political ideas.
I think that is defensible, but I do not take for granted the fact that we do not give something up in the collection of that data. I will be honest. I am trustee of a number of charities, as I think everybody in this Chamber is. Every year, when I am asked to fill in the data declaration, I see another bit of data there. Sometimes, I think “Why do they want to know that about me?”, and the one I am saying that about at the moment is sexuality. I sit there, I tick the box that says “heterosexual”, and I think “What’s that got to do with me being a trustee of this body?” But I sign it, because I think that, on the whole, that declaration of bits of information about ourselves can be put to the common public good. If we were to look at charities, without declaring that information, how do we ever get to make the argument that women, or people who are black or from ethnic minorities, or from the gay community, are not represented on charities? Whether we like it or not—and I accept that it is difficult to come to terms with it sometimes—it is about the protection, rights and freedoms of individuals. But I would never say that we do not pay a price for the collection of this data, or that we must not continuously and constantly make sure that the data we are asking to be collected is in the public policy interest.
That is why I have come to this amendment and why I very much support the arguments that have been made. What the amendment asks is simply that we collect two bits of data, among others. One is the sex at birth and the other is any gender acquired during the lifetime of the person. Without that, I do not know how we can go on to develop public policy in the pursuit of those who have committed crime and of the public duty to protect those who have been victims of crime. Unless we have the data about how many of which groups there are, they will be ignored.
I have sat through a long and very interesting debate today. My noble friend on the Front Bench said that one of the most important things about the Bill before the Committee is that it is a Bill about protecting women and girls. I do not know how you do that unless you collect the data. We have heard about county lines and knife crime. Unless we collect the data to know that many of the people who are drawn in and persuaded to commit those crimes are young men, we cannot develop a suite of policies that support them. When we collect data about sex, it is entirely proper to ask about acquired gender as well. We must not conflate the two.
The problem at the moment is that different police forces are collecting data about sex at birth and about gender acquired at some other point and then conflating the two. We do not have the sequencing of data and information across police forces in this country that can enable us to make public policy. That is what this amendment is asking. It wants to disaggregate those, as the mover of the amendment has said.
Baroness Grey-Thompson (CB)
My Lords, I thank the noble Lord, Lord Wasserman, for tabling this amendment, to which my name is attached, and for very clearly explaining it. I also thank the noble Baroness, Lady Morris, for talking about public policy interest. That is the reason I have attached my name to this amendment.
I believe that the collection of consistent, routine and accurate data is paramount, not least in order to provide the correct services and support for both alleged victims and perpetrators of crime. But the data has to be consistent in being able to spot trends, allocate resources and make historical comparisons. In the past, the words “sex” and “gender” have been used interchangeably. This is no longer the case. A clear definition and understanding of what information is useful and appropriate to be recorded is important.
I agree with the noble Baroness, Lady Brinton, on her point that people need to feel safe and be encouraged to come forward and report crimes, but I am afraid I do not agree with her when she talks about having a register that adds people. That is not my intention in supporting this amendment. Disclosure can be an issue, and it can trigger strong emotions and fears for some vulnerable individuals. As legislators, we must understand and address such fears, but also recognise that they are not a sufficient reason to compromise accurate data collection for the benefit of everyone in society.
It is really important that data is taken in a careful and sensitive way. By carefully gathering this data, this amendment seeks partly to help policymakers in making decisions on support for alleged victims and treatment for those who commit crimes, but also to provide consistency and, as the noble Baroness, Lady Morris said, the best information that we can get to make good public policy.
Baroness Barker (LD)
My Lords, we clearly have a division in the House about the merits of this amendment. There are those of us who quite clearly understand the way in which the terms “sex” and “gender” are used and have been used, not just in this country—under several bits of legislation, most importantly the Gender Recognition Act—but also in international law. There is a growing body of international law in which “gender” and “sex” are well understood.
I simply want to ask the noble Lord, Lord Wasserman, to explain three points that he made in his speech. First, he said that the intention of this amendment was to keep the public safe by the accumulation of accurate, appropriate, timely and consistent data. If that data is not aligned with a person’s gender identity, then it will not be accurate, so how can he ask us to accept it? Secondly, he told us that we should not get bogged down in modalities, but this is about a very practical exercise of gathering data, not in a theoretical way and not on the basis of gender-critical beliefs but actually on the basis of people’s lives. Does he not think that this is important enough detail to put into primary legislation? Finally, he said that experience has shown that it was very useful to gather information about sex and gender. Whose experience? Can he give us more information about that?
Baroness Chakrabarti (Lab)
My Lords, I will speak briefly. I thank all noble Lords who spoke to this. It is a controversial amendment, but I think it has been spoken to quite sensitively, all things considered; maybe it is the lateness of the hour—maybe that was a good move.
I agree with the previous speaker that difficulties in the drafting of an amendment cannot just be dismissed as modalities because when we put forward draft amendments to legislation and say “must” we need to examine what that means. If, as the amendment suggests:
“Police forces in England and Wales must keep a record of the sex registered at birth of each person”,
how is that going to be executed and what will the consequences be? One has to imagine that one is a younger version of the noble Lord, Lord Paddick, in the police station back in the day. People turn up to record whatever it is—a theft, shoplifting, burglary, or a violent offence. How is this recording of the birth sex as well as the subsequently declared gender going to happen and what is the sanction for the “must”? That is not a modality, it is what law requires; there have to be consequences to a “must” being breached. Whatever is really going on, I know there are really sensitive issues in our society at the moment of sex and gender which we will not, I suspect, resolve tonight—we might, but maybe not.
I agreed with my noble friend about the value of data. Whether in the health service or criminal justice system, data is great, but there is another side too, which I think my noble friend acknowledged: that data will put some people off. There are other jurisdictions not far from here where people are really nervous even about declaring their race because of obvious historic reasons for being sensitive about declaring your race at the police station—let alone declaring your birth sex.
We need to see the yin and yang of this particular debate. On the one hand is the brilliant research and analysis of crime we could do if we had more and more data. But on the other hand—and this is not completely different from the previous debate—what we want is victims to come forward and criminal justice to be done. We do not want to do anything that discourages victims from coming forward and reporting crime. That includes people who feel anxious about certain sensitive pieces of information about themselves. We would never want them to put off going to the police station for fear that they say too much. For instance, a person who has been burgled thinking “Was I burgled just because I was burgled, or because I am a trans person? Do I really want to draw more attention to myself because I am an anxious victim of crime?” We need to think about that, let alone the poor old practicalities for a younger version of the very youthful-looking noble Lord, Lord Paddick.
Lord Paddick (LD)
My Lords, I thank the noble Baroness, Lady Chakrabarti, for introducing my speech. This amendment is designed to compel police forces to
“keep a record of the sex registered at birth”
of anyone who is a crime victim or who is arrested by the police for a crime. It also forces the police to
“keep a record of the acquired gender of each person with a gender recognition certificate”
who is a crime victim of crime or is arrested for a crime.
It also says that providing this data to the Secretary of State will not be an offence under the Gender Recognition Act. Again, I want to try to focus on the amendment and not get drawn into the wider debate, as far as I can. As the noble Baroness pointed out, I was a police officer for over 30 years, so I want to look at this from the perspective of the police.
How will a police officer know what the sex registered at birth is—thumbscrews, or a chromosome test—even without the consent of the victim? Maybe they could force victims to give their fingerprints, in the hope that they may have had their fingerprints taken before they transitioned and that will prove it—except they may have had them taken after they transitioned, and that will then show their acquired gender, so that will not work. Will victims have to produce their birth certificates before they are even allowed to report a crime? Of course, if someone has acquired a gender recognition certificate and used it to have their birth certificate changed, as they are legally allowed to do, the birth certificate will show their acquired gender, so that will not work either. How exactly will police forces keep a record of something they do not know and have no reasonable way of finding out unless the victim or perpetrator volunteers the information?
If the victim or the perpetrator is a trans person, they are legally protected from having to disclose that information. “Well, it’s obvious,” some people will say, “you can tell, can’t you?” I have met trans men who you would never believe were assigned female sex at birth and trans women who you would never believe were assigned male sex at birth. I have also, embarrassingly, been with a lesbian friend of mine, assigned female sex at birth and who has always identified as a woman, who was stopped going into a women’s toilet in a top London restaurant because they wrongly thought that she was a man.
The supporters of this amendment may say that if they do find out, maybe the police can record it—that maybe the victim is reporting a transphobic hate crime or for some other reason volunteers that information.
The second part of the amendment is totally unnecessary. Section 22(4) of the Gender Recognition Act 2004 already states:
“But it is not an offence under this section to disclose protected information relating to a person if … (b) that person has agreed to the disclosure of the information”—
for example, if they are the victim of a trans hate crime—or, as stated later in the same section, at paragraph (f),
“the disclosure is for the purpose of preventing or investigating crime”.
So the police can use that information already, without fear of being prosecuted. The amendment is not necessary if the victim or perpetrator volunteers the information.
My noble friend Lady Brinton asked if she would have to declare every time she becomes a victim of crime, even if it is a burglary, that she has a disability? What about me? Will the next step be that I have to tell the police that I am gay before I can report that my flat has been broken into? For what purpose should victims have to out themselves? What if I get caught stealing a bottle of Marks & Spencer Prosecco?
Lord Paddick (LD)
It is very good, actually; I had some on Saturday. I have not tried to do that but if I did, will I have to admit being gay, as well as being a shoplifter?
In 2018, the Government tentatively estimated that there were between 200,000 and 500,000 trans people in the UK. Noble Lords have said they like data; I am going to give them lots of data. Between the Gender Recognition Act coming into force and 2018, 4,910 trans people have been issued with a gender recognition certificate. If we take the top of the range of the estimate, I make that 0.75% of the population identifying as trans and 0.0076% of the overall population having a gender recognition certificate, or less than one in 10,000 people.
Even if a victim went through the whole criminal justice process without disclosing, and without the police establishing the sex assigned to them at birth, if they were a trans woman, it would increase the number of woman victims, and if they were a trans man, it would diminish the number of woman victims, and taken together, and taking account of the total number of trans people, it would even out. Taking into account that only a fraction of them will become victims of crime who report it to the police, any difference to the crime statistics will be statistically insignificant.
The police arrest, on average, 12 in 1,000 people each year—three in 1,000 women. I do not know how many of the estimated 7.5 in 1,000 trans people are trans women and how many are trans men. Of course, if trans women are counted in the female offender figures, they will also be counted in the female population figures, boosting both the numerator and the denominator. I was never any good at mathematics—I left that to my twin brother—but it is quite clear to me that trans people are not going to make any statistically significant difference to the crime figures unless we assume, and there is no factual or statistical basis to think otherwise, that trans people are more likely to commit crime or to commit particular types of crime.
Lord Coaker (Lab)
My Lords, interesting points have been raised by Members around the Chamber. I agree with my noble friend Lady Morris about the need for data; how you collect it and what data you collect is always the issue, but data is essential, obviously. We have some concerns around this amendment regarding its breadth and the inclusion of victims. As the noble Baroness, Lady Brinton, and the noble Lord, Lord Paddick, pointed out, to require someone who is a victim of any crime, from theft of a pet up to violent robbery, to record their sex at birth in order to report that crime and interact with the criminal justice system is, in my view, quite troubling. It may have a significant effect on anybody potentially coming forward if that is an actual requirement of every single victim of every single crime. I think it may well act as an impediment to their coming forward and that is a consideration.
Having said that, there are some concerns around certain types of crime, namely rape and sexual violence. I agree with the noble Lord, Lord Paddick, about what the data says, but I think the impact on victims of how these crimes are recorded does vary between police forces in a way that is not helpful either. I did a little research, and I just preface this by saying that the only research I could find was a couple of years old, so if it is out of date, I apologise, but it did point to a problem around this.
“Police forces are recording suspected and convicted rapists as female if they no longer wish to identify with their male birth sex. Six forces”—
I will not name them—
“disclosed under freedom of information laws that if someone is arrested for or convicted of rape, the official record will state the gender they chose to identify themselves as. A further five forces … did not answer the question directly but each said they recorded gender in line with the person’s wishes.”
Irrespective of the rights and wrongs of what that data would tell us, I do not think it is helpful to have such a stark difference between lots of different forces. That goes to the point that my noble friend Lady Morris made, unless I misunderstood her, about the consistency of data that can be applied in a way that means we can learn from it and make judgments about it. Those are the only comments I would make on this amendment.
Baroness Williams of Trafford (Con)
I thank my noble friend Lord Wasserman and others for explaining this amendment, which relates to the recording of sex and gender by the police.
The Government do not currently stipulate how a victim’s or offender’s sex at birth or gender identity must be recorded by the police. It is an operational matter for each individual police force to decide what information to record in cases where a crime is committed, taking into account any relevant national guidance. There are no other instances across government where there is a mandatory requirement to record both a person’s sex as registered at birth as well as their acquired gender, if that is applicable. The Office for Statistics Regulation is clear that it is for each department to decide when and how it collects data, including data on both sex and gender.
We have already stated that we do not plan to require biological sex to be recorded across the criminal justice system in our response to a recent petition calling for the biological sex of violent and sexual offenders to be so recorded. The response cited the practical difficulties in recording biological sex, some of which have been cited this evening, as well as the implications for those with a gender recognition certificate as justification, the implications of which I will touch on later.
I understand that this issue has received media attention, with the media reporting that there have been cases of sexual offences committed by transgender women where these crimes, which are traditionally male crimes, have been recorded as being committed by women. The Daily Mail reported that the Home Office is working with police to develop a new procedure for officers to record the sex of criminals in order to ensure that crime statistics are more accurate.
As noted in much of this reporting, the Home Office has already started work with the National Police Chiefs’ Council to promote a standardised approach—a phrase that lots of noble Lords have used—to the recording of all protected characteristics, which is currently at an early stage. Further, the Office for Statistics Regulation has issued draft guidance for the collection of sex and gender data for public bodies. This work should bring greater accuracy and consistency of the recording of sex and gender and allow the police to understand how best to collect it. I think it is through these processes, rather than legislation, that it is appropriate to improve the accuracy of the recording of sex and gender.
There are also a number of legal concerns arising from the amendment. It is unclear why the Government would need to mandate the uniform recording of this information regarding both alleged victims and perpetrators for all offences, and how this would be considered both necessary and proportionate for operational purposes. Accordingly, it could amount to an unlawful interference in someone’s right to respect for their private and family life under Article 8 of the European Convention on Human Rights. The requirement might also breach Article 14 on the basis that it amounted to discrimination where transgender individuals are concerned. It is not clear, due to the scope of the amendment, that such a requirement could be lawfully justified.
I put it to the Committee that legislating so that the police routinely record this type of data is not the solution to the problem of standardising how sex and gender are recorded. Reasonable and appropriate actions are already being taken to address this that do not carry the same potential consequences as mandating it by law. There will be more to be said on this in the coming months, as the noble Baroness, Lady Chakrabarti, said, but I hope that for now I have said enough to persuade my noble friend to withdraw his amendment.
Lord Wasserman (Con)
My Lords, I am grateful to my noble friend the Minister for her comments, which were thoughtful and helpful, as ever. I assure the noble Baroness, Lady Brinton, that now, after midnight, I will withdraw my amendment. She need not worry about any more debate.
I recognise very much the problems of collecting this information, which is why I went out of my way to speak at some length about the Home Office counting rules. I happened to be involved with their development when I was at the Home Office. They are very much based on consultation with the National Police Chiefs’ Council, experts, think tanks, academics and so on. As I said, these rules ensure that the collection arrangements are easily amended in the light of practical experience on the ground. I have no doubt that any debate about the collection of such information will get careful consideration by the experts at the Home Office who run the counting rules, by the police, and others.
I still think that it is important to have national criminal information. One of the weaknesses of our system, as we said in an earlier debate on the Bill, is that we have 43 separate forces with 43 chief constables, each deciding how they will collect and maintain crime statistics. This is not the best way to do it. Some noble Lords will no doubt suggest a single police force, as in Scotland. That is not such a good idea, but there is another way of doing it—by Parliament setting clear rules at high level, and the experts then deciding how best to collect the information sensitively, with due respect to human rights and to people’s deepest feelings, ensuring that they take the population with them. Having said that, I beg leave to withdraw my amendment.
Police, Crime, Sentencing and Courts Bill
Wednesday 24th November 2021
(2 years, 5 months ago)
Lords ChamberRead Full debate Police, Crime, Sentencing and Courts Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 40-XI Eleventh marshalled list for Committee - (22 Nov 2021)
Lord Falconer of Thoroton (Lab)
My Lords, before my noble friend Lady Blake comes to move her Amendment 292H, everybody will have seen what the plans are for today by looking at the groupings. They basically involve five groups dealing with things that have stood over from the pre-protest section of the Bill, and then three or four groups dealing with all the protest sections in the Bill, including one group, I think, dealing with all the proposed new clauses that have been added.
On any basis, the grouping is inappropriate. The proposed new clauses have the additional feature that they have not been debated at all in the Commons, from where this Bill originated. They have had no Second Reading of any sort in this House and now, to have Committee stage with them all crammed in effect into one or two groups means that there will be no proper scrutiny in this House.
Can I make a suggestion and ask a question? In relation to the new clauses, could we treat, without any additional formality, the proceedings today as a Second Reading in effect and then have an additional day in Committee so that there is proper consideration? In addition to that, could one have more time to deal with these very important clauses?
My concern is that this marginalises the House of Lords in relation to considering these provisions in detail—although I am sure that was not deliberate on the part of the Whips. It may well be that these provisions are needed; our role is to look at them line by line. The effect of the way in which this has been done is that now that is not possible. The House as a whole was entitled to look for protection in that respect from the Leader of the House and the Government Chief Whip. Instead, they have just gone along with the Government, like so many institutions, in pushing the institution to one side—and it is not right.
Lord Paddick (LD)
I support the noble and learned Lord, Lord Falconer of Thoroton, in what he has just said. I have heard two rumours—one, that the Government Chief Whip is urging people to keep their comments on the Bill today short. I wish to declare to the Government Chief Whip that that is not possible, bearing in mind the number and complexity of issues that we are supposed to debate today. The other rumour that I have heard is that, if the House is still debating at 2 am, only then will the debate be adjourned. If that is right, looking at the timetable, that means that the most contentious parts of the Bill—the new amendments, as the noble and learned Lord said, which have not even been considered by the House of Commons—will be debated either side of midnight. That is no way for this House to be treated.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, I have not heard the rumour about keeping comments short. We are about to begin the 11th day in Committee of this Bill. In total, this House has sat for 60 hours in Committee, including starting early and going beyond 10 pm, as well as allowing three extra days. By the time when we finish today—and we intend to do so—we will have considered and debated more than 450 amendments.
As for the new clauses, they have been agreed with the usual channels and with the noble Lord, Lord Kennedy. I would say to noble Lords who have spoken that we intend to finish Committee today.
Baroness Jones of Moulsecoomb (GP)
I support the noble Lords who have spoken. Quite honestly, this is no way to treat the House of Lords. Especially as we get older, we do not want to stay up until 2 am—and, quite honestly, this Bill should have been four Bills. I think that everybody on the Government Benches knows that. Therefore, the 60 hours of debate and 400 amendments is not that that unusual. Bringing in these amendments at the last minute is really scandalous, and very typical of an arrogant attitude towards your Lordships’ House.
Baroness Williams of Trafford (Con)
I no more want to stay until two in the morning than does the noble Baroness. We will get to the public order new measures later on. I understand that the Liberal Democrats wish to vote against them, and ultimately I shall introduce them but will withdraw them, so there will be another occasion on Report to discuss them as well.
Lord Falconer of Thoroton (Lab)
To pick up on that last remark, the Government are going to withdraw the new amendments—so how will they regard Report? Will it be treated like a Committee stage?
Baroness Williams of Trafford (Con)
Report will not be treated like a Committee stage, but I have no intention of moving amendments that this Committee intends to vote against, so I shall withdraw them.
Lord Rosser (Lab)
Can I confirm, though, that we will be going on until such time as we conclude the Committee stage—that is, as far as today and the early hours of the morning are concerned? So if it takes until 2 am to get through this list, we will be here until 2 am, and if it takes till 4 am, we will be here till 4 am. What the Minister said was a statement of hope that we would finish tonight; it is not an undertaking from the Government that we will not go on beyond midnight, even. Can I be clear on that?
Baroness Williams of Trafford (Con)
We will finish Committee today—and, yes, a statement of hope is certainly what it is.
Lord Paddick (LD)
Can the Minister then confirm, if the Government accept that it is unreasonable to force through these new amendments—these eighteen and a half pages of new offences and police powers— and that therefore they are going to withdraw those amendments, they also undertake to have the accepted gap between Committee and Report, which is 14 days, rather than the shortened period that has appeared in Forthcoming Business?
Lord Ashton of Hyde (Con)
If the Committee will allow, I can answer some of these questions. We intend to have an Order of Consideration Motion so that, on Report, items will be taken as much as they can be in the same order as they are in Committee—so there will be plenty of time to consider these matters. We have discussed, in the usual channels, how the arrangements for this Bill should take place. I completely accept that it might go quite late tonight. We have spent a lot of time on this Bill—I accept that. But this is the Committee stage, and it cannot go on for ever because, if it goes on and on, the House of Lords looks as if it is preventing the Bills that have been passed by the House of Commons from going ahead.
The noble Lord shakes his head. As my noble friend the Minister has said, there has been ample time to talk about this Bill—and all we are saying is that, after three extra days, we have to draw this to a conclusion at some stage. This is not an unreasonable number of amendments to deal with—we have often done this in the past. The key, of course, is that we actually get on with it and that noble Lords have a view to the rest of the Members of this House. None of us wants to stay up too late. It is perfectly doable to have this number of groups—we have done it before—if noble Lords are able to be brief and succinct and make their point.
On the government amendments, the idea of having them in Committee is that we can debate them today. My noble friend has said that she will withdraw them, and that allows Report to go ahead—and, if necessary, noble Lords can vote on them.
Baroness Chakrabarti (Lab)
My Lords, I do not want to elongate this procedural debate before a lengthy debate that we are debating the length of, but the protest provisions in this Bill have been some of the most contentious—and not just in your Lordships’ House but in the country. They are not the final provisions or the final part of this Bill, even, yet they have been saved for the latter stages of this Committee, and the later hours of this last day will include this raft of new and even more contentious amendments. That is the reason for this suspicion and the concern that your Lordships’ House has not been shown the appropriate respect of a second Chamber in a democracy, when dealing with provisions that are, arguably, contrary to the human rights convention, and are certainly thought to be very contentious and illiberal by many communities in this country.
Baroness Jones of Moulsecoomb (GP)
Something that we did last week was to start early. Why could we not start earlier today so that we did not need to go into the early hours of the morning? We could have started at 10, which would have been a reasonable start for most people.
Lord Ashton of Hyde (Con)
Because when we started three hours earlier, the usual channels asked us to finish three hours earlier—so it did not achieve anything.
Lord Harris of Haringey (Lab)
My Lords, I have listened to this with great fascination. I am afraid that the Chief Whip is being slightly disingenuous. He says that all this time has been spent in Committee in this House on this Bill. Nobody disputes that; it is a fact. But what is significant is that this is new material which has not previously been considered anywhere—except within the bowels of the Home Office perhaps. It is new material and that is why this House needs the opportunity to scrutinise it. Without that scrutiny, it will pass into law without there having been adequate discussion of what are clearly important provisions—they are important because, otherwise, I presume the Government would not have brought them forward.
Lord Ashton of Hyde (Con)
But they will be scrutinised, at the Committee stage and then at the Report stage.
Lord Paddick (LD)
My Lords, just because you cram 58 amendments, most of which are government amendments, into two groups does not shorten the debate.
Amendment 292H
Baroness Blake of Leeds
“Offences under the Protection from Eviction Act 1977
(1) Where a local authority is investigating an offence under the Protection from Eviction Act 1977, the police must cooperate with the relevant local authority and provide relevant information to it. (2) Local authorities must review such information that they have received every year.”Member’s explanatory statement
This amendment would support procedure for dealing with illegal evictions.
Baroness Blake of Leeds (Lab)
My Lords, this amendment would improve enforcement against illegal eviction. It would provide for stronger partnership between the police and local authorities to combat this serious crime, requiring co-operation and the sharing of relevant information by police forces. In almost all cases, an eviction is legal only if it is performed by court-appointed bailiffs. Anything else is an unlawful eviction, and renters have been protected from these since 1977 under the Protection from Eviction Act. A landlord may seek to deprive a renter of their home through harassment, changing the locks, cutting off electricity or other utilities, and other tactics that circumvent the legal system. This is a criminal offence, with penalties including up to two years in prison. Although those protections have been in place for years, in reality tenants are far too often left unprotected. In effect, there is a failure to enforce the law. In 2019-20, local authorities across England reported 1,040 cases of homelessness caused by illegal eviction, yet there were only 30 prosecutions of offences under the Protection from Eviction Act.
We have to ask what is behind that exceptionally low prosecution rate. The impact of cuts to local authority budgets has meant that many local authorities do not have tenancy relations officers who are trained in this area of law. More crucially to today’s debate, this issue of training also applies to police forces, with significant problems arising because forces lack officers and call handlers who are fully trained to respond to such incidents. Where the police do not recognise the criminality of these tactics on the part of landlords, it leads to underreporting of incidents and to those reported being routinely classed not as a criminal offence but as civil matters or breaches of the peace.
Although London Councils reported 130 incidents of homelessness caused by illegal eviction in 2019-20, the Metropolitan Police recorded only a 10th of that number of offences. In addition, in recent evidence to a Senedd committee, Shelter Cymru explained that it had encountered police assisting illegal evictions of tenants from their homes.
Amendment 292H is a small step which builds on the principle of partnership between local authorities and the police, strengthening their ability to prevent illegal evictions, prosecute offenders and ultimately deter landlords from using such tactics. It would require the police to provide local authorities with the information they need to investigate suspected offences and, as part of that, to increase police forces’ awareness of the offence. As part of a much-needed package, these changes must also inform police training programmes to ensure that illegal evictions are recognised and responded to.
The key questions for the Minister are: what are the Government doing to improve the dismal prosecution rate of this offence and what is being done to find and replicate good practice by police forces on this issue? For example, South Yorkshire Police routinely provides Sheffield council with incident logs to help support eviction cases.
The process of being evicted is most likely to be a traumatic experience when done legally. Being evicted illegally, often with nowhere to go and with one’s belongings dumped on the street, can be devastating. Renters should know that, when they reach out for help, police and local authorities will both recognise and be able to provide support against illegal activity. Failure to do so erodes trust and paves the way for increasingly serious problems, including homelessness.
I look forward to hearing from my noble friends Lord Hunt and Lady Armstrong on their important amendment in this group, which addresses protecting children both from violence in their own home and from exploitation outside it. Since the delay from the other evening, there are two additional amendments in the group, Amendments 320 and 328. I look forward to hearing the contributions on those. I beg to move.
Lord Hunt of Kings Heath (Lab)
My Lords, I want to speak to my Amendment 292J. This is a pretty heroic group of amendments in a bid to assist the Committee.
There is a connection between the amendment in the name of my noble friend Lady Blake and mine, because her amendment is about encouraging collaboration between the police and local authorities. I too want to see such collaboration. I want to add to that the NHS and other local bodies and, essentially, give a huge boost to support for services for vulnerable children. If we were able to do that, it would have a massive impact on the lives of those vulnerable young children but also ensure that far fewer of them went through our criminal justice system in later life, hence my justification for bringing this amendment to your Lordships today.
I am very much relying on the recently published report of the Public Services Select Committee. I am delighted that my noble friend Lady Armstrong, who excellently chairs the committee, is with me today, and I pay tribute to the members, some of whom will make a brief intervention in this debate, and the staff for their excellent work and the report.
The number of vulnerable children was increasing before Covid hit us, but, since March 2020, the crisis has accelerated. More than 1 million children are now growing up with reduced life chances, and too many end up in our criminal justice system. Despite this, the Government have not yet recognised the need for a child vulnerability strategy. Unfortunately, the results of not having one are readily evident. Our inquiry showed a lack of co-ordination on the part of central government and national regulators, which has undermined the ability of local services to work together to intervene early and share information to keep vulnerable children safe and improve their lives.
This poor national co-ordination means that many children fall through the gaps. In 2019, the Children’s Commissioner warned that more than 800,000 vulnerable children were completely invisible to services and receiving no support. We think this unmet need is likely to have grown during the pandemic. The Select Committee surveyed more than 200 professionals working with children and families and they reported increases of well over 50% during the past 18 months in the number of children and families requesting help with parental mental ill-health or reporting domestic violence and addiction problems in their home.
The problem is that public services are just too late to intervene before trouble comes. In our most deprived communities, too many children go into care and have poor health and employment outcomes. They are excluded from school or end up in prison.
Baroness Jones of Moulsecoomb (GP)
My Lords, I support Amendment 292H in particular. It is a bit of a stretch to have included Amendment 292J, which has been clearly explained, in this group, but I support it as well. I am afraid the inclusion of Amendments 320 and 328 has caught me out, because I know that my noble friend Lady Bennett would have liked to have spoken on those.
On Amendment 292H, it has been extensively reported that, despite the Protection from Eviction Act, the police routinely fail to assist tenants against illegal evictions. Part of this, as the noble Baroness said earlier, is lack of police, but it is also lack of training on this Act. Many police wrongly conclude that this is a civil matter and not a criminal one. As we know, this could not be further from the truth, and I hope the Minister can confirm that the police have power of arrest to prevent an unlawful eviction, so that we are all completely clear.
This has been a problem for quite some time, and it will only get worse in the coming months as winter comes on and Covid protections against evictions lift. Many frustrated landlords will want to kick people out of their homes, and some will knowingly or unknowingly try to evict without following the correct procedures. So I hope the Minister can confirm that police have power of arrest and that the Government will outline what is being done to ensure that the police properly protect tenants.
Baroness Kennedy of Cradley (Non-Afl)
My Lords, I support Amendment 292H and declare my interest as director of Generation Rent. I also add my voice in support of Amendment 292J in the name of the noble Lord, Lord Hunt of Kings Heath, and others. As my noble friend Lady Blake of Leeds said, it is a criminal offence under the Protection from Eviction Act 1977 for a landlord to try to evict a tenant themselves. Local authorities and police officers have a crucial role to play and have the powers to stop illegal eviction and to prosecute offenders. However, the law on illegal evictions is not enforced nearly as much as it should be. Generation Rent research has shown that less than 2% of cases result in a prosecution.
As the noble Baroness, Lady Jones, said, there are too many instances where a tenant calls the police for help with an illegal eviction, only to find that the police officer dismisses the issue as a civil matter, despite it clearly being a criminal act. This was highlighted very well in a 2020 report by Safer Renting, a charity which helps tenants enforce their rights. If the Minister has not read it, I urge her to do so. In London in 2018, for example, there were 130 cases of homelessness due to an illegal eviction, but only 14 incidents were recorded by the police.
We need a stronger partnership between the police and local authorities to combat this serious crime. Requiring co-operation and sharing of relevant information by police forces is necessary. This amendment will help secure that co-operation. In addition, more needs to be done to reset police attitudes to illegal evictions, with better training of police officers and call handlers so that they know how to respond correctly when a renter is being illegally evicted. We need better data recording and the publishing of that data on incidents between landlords and tenants. Authorities need the powers that currently exist with regard to enforcing safety standards and licensing to demand documents from parties of interest to cover investigations into illegal evictions. The sentencing guidelines should also be addressed; only two of the 10 fines handed down in 2019 were of more than £1,000. Fines can even be lower than the £355 it costs to make a legal claim for possession through the courts. They are far too low to act as any real deterrent to the crime.
Illegally evicting someone is a grave offence, and it affects the most vulnerable renters. Amendment 292H is a step forward. It will improve enforcement of this crime through ensuring that closer working relationship between the police and local authorities which is necessary for proper enforcement and prosecution.
Baroness Armstrong of Hill Top (Lab)
My Lords, I will intervene briefly to support my noble friend Lord Hunt of Kings Heath, who is a member of the Public Services Committee, which I chair. I am delighted to see other members of the committee in the Chamber this afternoon. We published our report only on Friday and I am sure the Minister will be relieved to know that I will not go through its recommendations in great detail. I am sorry the Chief Whip has gone; I was going to say that I hope we will get an opportunity to do that properly on the Floor of the House in the not- too-distant future.
The amendment, despite its length, is quite simple and straightforward. It arises from our report on vulnerable children, which was published last Friday. The report demonstrates very clearly that the country faces a crisis in the growing number of vulnerable children —or “children in need”, as the Government tend to say. The committee found that, since 2010, money at local level has been moved from early intervention and programmes of prevention to crisis intervention. I do not blame those at local level; they had to bear large cuts because of the austerity programme and, legally, they cannot avoid crisis intervention. If something goes wrong, they have a duty to remove a child from the home, exclude them from school or get them into the criminal justice system if they are in real trouble. We know that, as early support for families is reduced, there is evidence that children are more likely to end up in crisis and require being taken into care or excluded from school, or even ending up in the criminal justice system.
The amendment seeks to protect families and children through a duty on agencies at the local level to provide early intervention to help prevent that crisis and breakdown, and it encourages and puts within that duty collaboration between those local agencies. One of the quite shocking things we heard, given that this has been talked about for so many years, is that one agency would very often not know what was happening with the child or the family if they were directly involved with another agency. We think that that level of co-operation and collaboration at a local level is also essential.
This provision would protect what local agencies feel is necessary in order to have that early intervention, which, if it works well—and we know it can—will prevent necessary crisis intervention later on. In the long term, this would save us money as taxpayers and as a society. That is the problem: we never get to the long term, because since 2010, the money spent on early intervention has been slashed. In my own county of Durham, 66% of the funding they were spending on early intervention has now been switched to crisis intervention. In Sunderland that figure is 81%. We found in our inquiry that this had happened most in the areas of greatest need around the country. For us as a nation, that is unacceptable.
There are huge pressures on local authorities in relation to children, and even more have been flagged up since our report was published only last Friday. The County Councils Network report earlier this week predicted a rise in the number of children requiring care, and yesterday the Home Office said it was going to require more local authorities to accept unaccompanied asylum-seeking children. I approve of that responsibility being shared, but it tells us that the pressures at that heavy end are not going to lessen at this time. The only way to reduce those pressures is by giving families support at the time that will help them to avoid crisis down the line. I know that if a new duty is placed on a local authority, the Government have committed themselves to it and it is in legislation that they will fund—although certainly never as much as the local authority wants—that new responsibility. So, there is money attached to a new duty, and that is one of the reasons why we put this in the way we did.
As a nation, we cannot afford this continuing and escalating crisis in the number of children who are vulnerable and in need. This is spelled out in the amendment, so let us really back what we know can work in terms of early intervention. I ask the Government to signal that they understand what this amendment is about and that they are going to make sure that this sort of thing happens in the future.
Baroness Wyld (Con)
My Lords, I rise briefly to support Amendment 292J in the names of the noble Lord, Lord Hunt, and the noble Baroness, Lady Armstrong. It has been a real pleasure to serve on that committee with them, and it was brilliantly chaired by the noble Baroness, Lady Armstrong. I did not agree with everything she said this afternoon, but we always disagree well. I do agree with the terms of the amendment, and I think the arguments were tightly set out. The points around siloed working are critical, and if we do not do this, we will see more of the pretty harrowing examples that the noble Lord, Lord Hunt, referred to. I am pleased to give my support to this amendment.
Lord Best (CB)
My Lords, my Amendment 320 and the consequential Amendment 328 are—slightly surprisingly—in this group. Together, they would finally repeal the Vagrancy Act 1824, which makes homelessness a criminal offence.
I am grateful to the homelessness charity Crisis for devising these well-crafted amendments. I am most grateful to the noble Baronesses, Lady Thornhill and Lady Bennett of Manor Castle, the noble Lords, Lord Young of Cookham and Lord Sandhurst, and the noble and learned Lord, Lord Falconer of Thoroton, for adding their names to these amendments. They join the long list of distinguished parliamentarians, including William Wilberforce in the 1820s and Winston Churchill in the 1930s, who have opposed this objectionable legislation. Indeed, last month the Prime Minister himself spoke out, saying:
“No one should be criminalised simply for having nowhere to live, and I think the time has come to reconsider the Vagrancy Act”.—[Official Report, Commons, 20/10/21; col. 752.]
Since there can be no objection from the Treasury, as there is no expenditure involved, it seems, therefore, that the moment has arrived. After almost 200 years, the antiquated and misguided Vagrancy Act can at last be laid to rest.
Certainly, the importance of repealing the Act remains, although I will not repeat my Second Reading speech on this theme. Suffice to say, punishing people for being homeless is entirely the wrong approach. Fining people up to £1,000 for sleeping rough or begging and giving them a criminal record is surely a travesty, making their recovery and reintegration into society more difficult than ever. It inhibits the referral of those sleeping rough to the community and social services that can help them, and as long as being homeless is itself a criminal offence, homeless people are deterred from engaging with the law when they are the victims of dreadful violence and abuse, as they so often are.
I note that rough sleepers are 17 times more likely to be victims of crime than the rest of us. Among the examples provided by Crisis, I note the quote from a man in Oxford, who said that
“in my nine years on and off the street, I was violently attacked, shouted at and even urinated on by total strangers. Enduring this abuse was hard enough—I didn’t expect the law to hold my very existence against me.”
Other case studies from Crisis demonstrate just how counterproductive the Act is in blocking the chance for agencies to help and instead penalising and fining those least able to pay.
However, it is now clear that, to the highest levels of government, Ministers have accepted the case for repeal. Nevertheless, in case there are any lingering doubts or hesitations, perhaps I could offer some observations on possible objections to these amendments.
First, securing this repeal has been inhibited to date by the problem of finding the parliamentary time for the Government to do what they want to. Clearly, this obstacle is behind us now that the Police, Crime, Sentencing and Courts Bill provides the opportunity for this to be expedited right away. Indeed, it would absorb far more parliamentary time if the Government were to prepare a fresh Bill to be taken through its 10 stages in the two Houses. It would also take more time if the Government turned down the opportunity before us and required these amendments to go to a vote, with all the extra toing and froing that this would entail. Missing this moment now would surely mean a long, frustrating and pointless wait for the next legislative opportunity, which might be years away.
Secondly, there is the objection that the amendments themselves need revising. The Minister raised such an objection at Second Reading: she noted the devolution implication, given that it extends to Wales. This is an important point and has now been the subject of discussion with the key people in Wales. Welsh Government Ministers have themselves advocated a repeal, and the Ministry of Justice has now been notified that the Welsh Government have indicated their full support for the amendments to apply to Wales as well as England. The necessary legislative consent Motion from the Senedd is scheduled once further amendments are made to the Bill. A tweak to the amendments before us has been prepared to embrace this Welsh dimension, and this can be brought forward, I hope with government approval, on Report. The devolution issue here is one of extra support from Wales. I add that the Vagrancy Act has already been successfully repealed in Scotland.
Thirdly, it might be argued that there are still parts of the original legislation covering aggressive begging and anti-social behaviour which need to be preserved, complicating any repeal of the Act. However, this line of argument ignores the far more extensive powers now available under other legislation, notably the Anti-social Behaviour, Crime and Policing Act 2014, to which I believe the noble Lord, Lord Sandhurst, will draw attention.
There are compelling arguments for the police to use these powers very sparingly in so far as they embrace homeless people, but it cannot be said that the necessary powers do not exist. To support necessary action by front-line police, Amendment 320 includes the totally non-contentious but none the less valuable subsidiary provision for updated guidance on the 2014 Act to be disseminated, promoting the preventive approach now adopted by most police forces.
Fourthly, it is said that it is not worth bothering with repeal of the Vagrancy Act since the number of people charged under it has been declining. However, the Act is still used as a fallback, even though other, more appropriate measures are available. Under pressure from local members of the public, the Act is still deployed.
Moreover, the symbolism in this repeal should not be underestimated; it demonstrates a more enlightened understanding of homelessness. The Government could be rightly proud of making this symbolic gesture alongside their good work in responding to homelessness in the pandemic with their Everyone In initiative; their support for the Homelessness Reduction Act 2017, Bob Blackman MP’s Private Member’s Bill, which I had the honour of taking through your Lordships’ House; and their excellent funding for the Housing First projects.
The Government have the laudable objective of ending homelessness by 2024. Removing the barrier of the Vagrancy Act that still hangs over homelessness policy must be an essential step in this direction. I hope the Minister will agree that there really are no arguments for further delay. It has been over three years since the Government committed to look again at this issue and no difficulties have been uncovered. It is almost 200 years since this controversial measure was enacted; let us not kick the can any further down the road. At last, here and now, we have the opportunity to get this done.
I would be delighted to meet Ministers to discuss any further tweaks that could improve these amendments before Report, an offer I am sure goes for the other noble Lords supporting these amendments. Because of the way amendments have been grouped today, I will not be invited to sum up the position after the Minister’s response, so perhaps I can be clear now that I intend to take these amendments to a vote on Report if we are unable to agree a form of words to repeal the 1824 Act. However, I hope it will not come to this and I eagerly anticipate the Minister’s response.
Lord Young of Cookham (Con)
My Lords, first, I will say a brief word on Amendment 292J, proposed by noble Lords on the Public Services Committee, on which I and my noble friend Lady Wyld also serve. It backs one of the recommendations made in last week’s report and I support the case being made. Indeed, on 25 October, I tabled an amendment with the noble Baroness, Lady Blake, to help exactly the same group as mentioned in this amendment, namely children at risk of domestic violence and criminal exploitation. In that amendment, I argued for them to be given housing priority, so I hope the Minister will reply sympathetically to the case made by the noble Lord, Lord Hunt, and others.
I have added my name to Amendment 328, which is consequential to Amendment 320, tabled by the noble Lord, Lord Best. I add a brief footnote to what he said, in support of the campaign which he has long championed. On 23 April 2020, in an Oral Question about the Vagrancy Act 1824, I asked the Minister if he agreed that
“attitudes to those who sleep rough have softened over the past 200 years and that legislation which refers to ‘idle and disorderly’, ‘rogues’ and ‘vagabonds’ living in ‘coach-houses’ and ‘stables’ has no place in modern legislation”.
Later in that exchange, the noble and learned Lord, Lord Judge, weighed in, saying:
“If Section 4 of the Vagrancy Act, which was enacted after repeated harvest failures created an army of the dispossessed, were presented to us today, beyond the archaic language to which the noble Lord, Lord Young, has already referred, we should reject it as being vague and uncertain, and arguably tarnished with an improper reverse burden of proof.”—[Official Report, 23/4/20; col. 84.]
We have heard the Prime Minister’s words on this. The former Secretary of State at the then MHCLG said that, in his opinion, the Vagrancy Act, whose short title is
“An Act for the Punishment of idle and disorderly Persons, and Rogues and Vagabonds, in England”,
should be repealed. As the noble Lord, Lord Best, said, here we have an amendment that would deliver government policy. At Second Reading, the Minister said she was sure the House would hold her to account on her assurance that she was on the case—so here we are.
This is not the first attempt at repeal. On 17 August 1911, Sir William Byles asked the Home Secretary
“whether the new Recorder of Liverpool, Mr. Hemmerde, K.C., has just sentenced a young man, Edward Gillibanks, to twenty-five strokes with the birch, in addition to twelve months’ hard labour, for being an incorrigible rogue; and whether, in view of the effect of this form of punishment, he will consider the desirability of proposing the repeal of the Vagrancy Act”.
The Home Secretary, one Mr Churchill, replied:
“I cannot say that I think the punishment inflicted on him supplies an argument for repealing the Vagrancy Act.”—[Official Report, Commons, 17/8/1911; cols. 2103-04.]
Let us hope we fare a little better today.
It is now common ground that the Act does nothing to resolve or tackle the causes of homelessness. On the contrary, by directing rough sleepers down the criminal justice route, it risks isolating them from the very sources of help now generously provided by the Government, which can help them to rebuild their lives.
The right approach is set out in the thoughtful and comprehensive approach of Westminster City Council, detailed in its rough sleeping strategy, which outlines how rough sleeping can be sensitively handled in a borough to which the magnetism of the capital attracts so many. Every rough sleeper is offered a personalised and sustainable route away from the streets, based on their circumstances. The council has remodelled its services to accept women, who make up some 17% of rough sleepers, and can accommodate women who will not be parted from their dogs.
Westminster also makes it clear that it needs powers to deal with those who behave aggressively or anti-socially. The amendment contains the necessary provisions and my noble friend Lord Sandhurst will refer to other provisions on the statute book to deal with unacceptable behaviour. We have the perfect vehicle to bring our legislation up to date. I hope we are pushing at an open door and I look forward to the Minister’s gracious speech of acceptance.
Baroness Thornhill (LD)
My Lords, I give the support of our Benches to Amendments 320 and the consequential amendment, Amendment 328, to which I have put my name. We also support Amendments 292H and 292J. I ask for the indulgence of the Committee in allowing me to speak now, as I was unable to speak at Second Reading. I am also very conscious that time is short for the weighty matters that we are trying to achieve today, so I will try to be succinct in covering what should have been two separate interventions.
The noble Lord, Lord Best, has summed up only too well why the Vagrancy Act 1824 should be repealed, so noble Lords will be relieved to know that I will not repeat his arguments. That we still criminalise homelessness in 2021 is a stain on our societal conscience. Some 200 years ago, starving children were imprisoned for stealing bread, people hanged for petty theft and poverty was attributed—this is the key point—to individual fecklessness. The fact that vagrancy remains a crime is an anachronistic throwback to those times and repeal is long overdue.
Having dealt with several police chiefs in my 16 years as a directly elected mayor, I know that the very fact that begging and homelessness were in themselves crimes evoked different attitudes in different offices, in both the council and the police. This resulted in conflicting approaches to how we should work and how effective we were. We had to work together and go on a journey to find a truly multiagency approach. On that journey, we had to challenge some very firmly held views on the stereotypes of homelessness and what we believed might work. Repealing this Act would change this culture and ensure consistency of approach towards the homeless.
A concern that one might have in agreeing to the amendment is whether the police would feel that they would be unable to deal with some of the genuine issues that occur—I know because we have used some of these tools. When an area has a significant number of homeless people in the community, would they feel a loss of some powers? I am sure that the noble Lord, Lord Sandhurst, will expand on that. From my experience, I know that there are plenty of other arrows in the antisocial behaviour quiver to deal with such issues. Thus, we hope that the Government will give serious consideration to our amendments.
Lord Sandhurst (Con)
My Lords, I will speak to Amendments 320 and 328, which would repeal the Vagrancy Act. This 197 year-old Act does nothing to tackle and resolve homelessness, and nor does it prevent antisocial behaviour. In fact, by criminalising rough sleepers, it prevents them accessing vital services to support them to move off the streets. This is important in the context of people trafficking—modern slavery. Its victims are those likely to end up sleeping rough on the streets to escape danger. They need our help. Criminalising rough sleeping marginalises the most vulnerable and may mean that rough sleepers move away from, not towards vital support. It does not address the underlying causes.
The Act now has only two effective provisions. Section 3 makes it an offence in any public place to beg or cause a child to beg. An offender can be locked up for one month. Section 4 addresses what we call rough sleeping. It also encompasses those who are in enclosed premises for an unlawful purpose. This is used to deal with people who are thought to be “up to no good”. The fact is that there are perfectly good ways of dealing with all those people both within and without the criminal law. Indeed, on 9 March the then Secretary of State said in answer to a Parliamentary Question that the Act should be repealed. In this amendment, we offer a fully drafted way forward. If minor changes are needed, they can be made—there is no problem there.
The number of convictions for rough sleeping and begging have fallen consistently in the past 10 years. Indeed, in 2019—the most recent year for which figures are available—only one person received a custodial sentence for begging, and only 16 received a custodial sentence for being in enclosed premises for an unlawful purpose. The numbers are tiny. Let us throw away the sledgehammer. The police, local authorities and other agencies have ample powers.
Let me explain very briefly. The Highways Act 1980, Section 137, makes it an offence wilfully to block free passage along the highway. That is punishable by a fine. The Public Order Act 1986, Section 5, makes it an offence to use threatening or abusive words or behaviour. That, too, is punishable by a fine. Moving to civil measures, the Anti-social Behaviour, Crime and Policing Act 2014 introduced a wide range of measures to deal with the different types of anti-social behaviour. Recourse can properly be made to those measures for people who are repeat nuisances. They are all available under the 2014 Act.
Taking it very summarily in the short time available, there are civil injunctions to prevent nuisance and annoyance. Breach of those civil injunctions gives rise to civil contempt, with all the remedies available for that—up to 2 years’ imprisonment for the worst offenders, but it is done properly. Secondly, there are criminal behaviour orders. These can impose requirements as well as prohibit certain activities. Thirdly, there are community protection notices. These can be issued by the police, a social landlord or a local council if behaviour is detrimental to the quality of life of a local community. Fourthly, there are dispersal powers, under which a local council, following consultation with the police, may issue a public spaces protection order to place restrictions or impose conditions on activities that people may carry out in the designated area.
In respect of that, since 2014 the Home Office has issued statutory guidance under the 2014 Act, recently updated this January. Our amendment, as noble Lords will see from its terms, will strengthen that. We propose a co-ordinated package. Where something has to be done, the police and local authorities have the powers to do it. We ask the House to act now to put an end to this prehistoric, unjust and inappropriate law. I commend the amendments.
Lord Thomas of Cwmgiedd (CB)
Briefly, I entirely support the repeal of the Vagrancy Act, and there is no point in repeating what have been compelling, eloquent and, I believe, unanswerable points. Long experience has shown that arguments do not get better by repetition.
What I wanted to do, however, was to make four quick points from my experience in support of Amendment 292J in the name of the noble Lord, Lord Hunt of Kings Heath. First, the category of person dealt with is easy to identify. Therefore, that is not an answer. Secondly, the evidence of the risk of future offending is compelling. That in relation to Wales is set out—I need not repeat it—in the report of the Commission on Justice that I chaired and there is masses of such evidence. Thirdly, the proposal is plainly value for money. One has only to look at the cost of what it takes to deal with those who have gone wrong. Fourthly—surprisingly, some may think—the proposal would have enormous public support. When we canvassed views about it, and when I did so as a judge, one always found that the overwhelming majority felt that these people deserved a chance and support.
Lord Paddick (LD)
My Lords, my noble friend Lady Thornhill has spoken comprehensively on these amendments, so I can be brief. I thank the noble Baroness, Lady Blake of Leeds, for introducing the amendment. She rightly points to the failure of the current legislation to adequately deal with this problem on the basis of the facts that she presented. Something clearly needs to be done to ensure that the police play their part. If South Yorkshire Police can do it, why cannot every force? We support this amendment.
I also thank the noble Lord, Lord Hunt of Kings Heath, for his Amendment 292J. Noble Lords may have seen the ITV “News at Ten” last night on how young people are increasingly being exploited, particularly by drug dealers. That is in addition to a 6% increase in reported domestic violence during lockdown, when many more children would have become vulnerable. There is too much emphasis on the criminal justice system as a way to deal with these vulnerable young people, rather than there being a statutory duty on local authorities, the NHS and the police, as this amendment suggests. We support it.
The noble Lord, Lord Best, introduced Amendments 320 and 328. I remember being told as a young constable about the antiquated legislation—the Vagrancy Act 1824—introduced to deal with soldiers returning from the Napoleonic wars. That was in 1976—not the Napoleonic wars, when I was a young constable; they were a bit earlier. People should not be criminalised simply for begging and sleeping rough. There is adequate alternative legislation to deal with anti-social behaviour and the Vagrancy Act is now redundant. As the explanatory note says, these amendments would require police officers
“to balance protection of the community with sensitivity to the problems that cause people to engage in begging or sleeping rough and ensure that general public order enforcement powers should not in general be used in relation to people sleeping rough, and should be used in relation to people begging only where no other approach is reasonably available.”
On that basis, we support these amendments as well.
Baroness Williams of Trafford (Con)
My Lords, perhaps I may begin by saying that I have great sympathy with the wish of the noble Baroness, Lady Blake, to firmly stamp out the illegal eviction of tenants. This distressing activity has no place in our society and it is an unacceptable practice carried out by rogue landlords, perpetrated on tenants.
I totally agree that the police and local authorities need to work together to tackle that. Many noble Lords have spoken in today’s Committee who have experience of this type of multiagency working. It is essential in terms of supporting the vulnerable, and there are many examples of that. I always talk about the troubled families programme, which is one such intervention but it is such an important one because some people have multiple problems. It is a fantastic way for agencies to sort them out together. Local authorities and the police also have mechanisms in place to work collaboratively to tackle criminal landlords. The police are also able to establish protocols for information sharing, which the noble Lord, Lord Hunt of Kings Heath, spoke about. We expect them to use those protocols to their full extent to aid investigations into illegal evictions and enforce the law.
If the noble Baroness, Lady Blake, has examples that suggest a lack of effective co-operation, I should be very happy to pass them on to my colleagues in DLUHC. As has been pointed out, there are lots of good examples of how interventions have worked well, particularly in Westminster. If there is an issue, the solution here is not more legislation. The existing powers we have are sufficient. But I accept that it is incumbent on the police and local authorities to work collaboratively to tackle crime in their areas, including on illegal eviction investigations. As regards the point about police saying that issues are a civil matter, which the noble Baronesses, Lady Kennedy of Cradley and Lady Jones of Moulsecoomb, mentioned, the police have powers of arrest and it is important that those powers are used appropriately, including on illegal eviction investigations.
Baroness Armstrong of Hill Top (Lab)
Does the noble Baroness accept that there is a problem with that situation, which happens often at the crisis level and not the early intervention level? It also excludes any organisation, such as a voluntary sector agency, that may be working with a child if they are not one of the three official statutory agencies.
Baroness Williams of Trafford (Con)
What I was trying to say was that legislation is in place but, if it is not always followed in practice, it would be very helpful to know about it. However, I accept the final point that the noble Baroness makes.
I turn to the issues that the noble Lord raises in his amendment. If you consider first children impacted by domestic abuse, it is totally unacceptable that some children have to witness abuse carried out in their home by those whom they should trust the most. This Government have demonstrated their absolute resolve to tackle domestic abuse and its impact on children, both in legislation earlier this year—the Domestic Abuse Act—and through the upcoming domestic abuse strategy.
As part of the landmark Domestic Abuse Act, children are recognised as victims of domestic abuse in their own right where they see, hear or experience the effects of domestic abuse. This is an important step which will help ensure that locally commissioned services continue to consider and address the needs of children. Further, the Act created the role of the domestic abuse commissioner in statute to provide public leadership on domestic abuse issues and to oversee and monitor the provision of services for victims, including children. The provisions of the Act came into force on 1 November.
It is really important that young victims receive the right support at the right time—which was precisely the wording that the noble Baroness, Lady Armstrong of Hill Top, used—to help them cope and recover and to mitigate the long-term impact of their experiences. We are determined to continue to improve the standard of support for victims of crime. This year the Government will provide £150 million to victim support services, which includes an extra £51 million to increase support for rape and domestic abuse victims. That includes support for children and young people.
Through the children affected by domestic abuse fund we have provided £3 million this year for specialist services for children who have been affected by domestic abuse. This funding is enabling a range of therapeutic interventions for children, such as one-to-one or group support. In addition, the Home Office is this year providing £169,000-worth of funding to Operation Encompass, a scheme which connects the police to schools through a specialist support helpline for teachers concerned about children experiencing domestic abuse. The helpline was established during the Covid-19 pandemic, as noble Lords might recall, and we are continuing to fund it this year.
Turning to the matter of child criminal exploitation, the Government are investing in specialist support for under-25s and their families who are affected by county lines exploitation in the three largest exporting force areas—London, the West Midlands and Merseyside. The Government are also funding the Children’s Society’s Prevention Programme, which works to tackle and prevent child criminal exploitation, child sexual abuse and exploitation, and modern-day slavery and human trafficking on a regional and national basis. This has included supporting the #LookCloser public awareness campaign, which focuses on increasing awareness and encouraging reporting of the signs and indicators of child exploitation. We also fund Missing People’s SafeCall service, which is a national confidential helpline for young people, families and carers who are concerned about county lines exploitation.
Through cross-government efforts we are working to identify areas of learning with regard to child criminal exploitation and improving our response to it. The Home Office and the Department for Education are currently testing the effectiveness of how multi-agency safeguarding partnerships respond to serious violence and county lines through a series of deep dives. We have recently received the findings from those reviews and are considering the best way to share the learning and practice with local areas.
In the wider landscape, the noble Lord will be aware that the Government will be consulting on a victims’ Bill. As part of that consultation, we will seek views on the provision of community-based support services for victims, including children. The consultation will carefully look at how local bodies collaborate to support victims and will consider the evidence to determine where legislation could be used more effectively. Therefore, although I am very sympathetic to the aims of the noble Lord’s amendment, I hope that he is sufficiently reassured by the extensive ongoing efforts to tackle these two issues, the existing arrangements in place and, indeed, our plans to consider the duty to collaborate further as part of the victims’ Bill.
Finally, in relation to Amendments 320 and 328, I agree wholeheartedly with the noble Lord, Lord Best, that the time has come—
Lord Paddick (LD)
I am very grateful to the Minister for giving way. Before we get on to the Vagrancy Act and the other amendments, she talked about treating children as victims of domestic violence if they witness it, and about child criminal exploitation. There is a third group: children who witness violence, particularly in the home, and suffer adverse childhood experiences as a result which lead them into committing crime. I remember attending a juvenile detention facility in Scotland, where almost every child in custody had experienced violence in the home as a cause. The Minister talked about two issues, but there is this third issue of adverse childhood experiences leading to offending behaviour, which I believe the noble Lord’s amendment addresses in a way that the Minister has not.
Baroness Williams of Trafford (Con)
My intention was not to leave out that issue; we could have a whole debate on the effect of childhood abuse, trauma and witnessing violence on the future prospects of a person when they become an adult and their increased likelihood of going on to abuse, but my intention was not to dismiss it. I apologise that I did not mention it, but the intention certainly was not to dismiss it at all.
Finally, I move to the amendments in the name of the noble Lord, Lord Best. As I said, the time has come to reconsider the Vagrancy Act—some of the language that was used is so antiquated that it would perhaps be alien to some of this generation. I agree that nobody should be criminalised just because they have nowhere to live. Back in 2018, we committed to review the legislation following mixed views among stakeholders regarding the continued relevance of the Act, given that it is, as noble Lords have said, nearly 200 years old. I am sure that noble Lords can understand that announcing the outcome of this review has been delayed by several factors. One noble Lord mentioned the dedicated response for vulnerable individuals who are sleeping rough during the pandemic, which was outstanding.
It has been imperative to understand the full picture of how and why the Vagrancy Act is used, and what impact any change to or repeal of the Act will have. Rough sleeping and begging are complex issues, and the Act continues to be used. The review considered a range of factors and at its heart has been the experiences and perceptions of relevant stakeholders, including local authorities and the police. The Act continues to be used to tackle begging, and, if repealed, a legislative gap would be left that might impact on the police’s ability to respond to it.
The Anti-social Behaviour, Crime and Policing Act 2014 is not an alternative in this context. The powers in the Act are available to police and local authorities to tackle specific forms of behaviour that meet the legal tests in that legislation—for example, behaviour that is likely to cause harassment, alarm or distress to a victim or community. As I have said, begging is complex, but plainly it does not always come with these forms of accompanying behaviours.
Baroness Chakrabarti (Lab)
I did not speak earlier to save the Committee’s time and please the Government Whips, but I now have two short questions in relation to the Minister’s answer.
Baroness Williams of Trafford (Con)
I was just about to say that I have not finished my answer.
Begging is clearly complex but plainly does not always come with these forms of accompanying behaviours. We must ensure that there are no unintended consequences in repealing the Act. We carefully consider the operational impact for the police, who play a very important role in local partnership approaches to reducing rough sleeping, as well as ensuring community safety and tackling crime. Although the police will often not be best placed to provide support to vulnerable individuals, enforcement can form part of moving people away from the streets when working closely with other agencies and coupled with a meaningful offer of support. It is important that the police have effective tools to respond to behaviour that can impact negatively on communities.
The anti-social behaviour powers to which my noble friend Lord Sandhurst referred do not have the immediacy of a criminal offence. We need to consider further whether there is a continued place for criminal law in tackling begging.
As I have previously stated, the Government do not wholeheartedly agree that the Vagrancy Act is outdated and inappropriate—I am sorry; we do agree. I am quite tired today. The Government agree that the Vagrancy Act is outdated and inappropriate for modern-day society. However, as I have outlined, it needs to be considered alongside consideration of what more modern replacement legislation should look like.
To that end, in relation to subsection (4) of the proposed new clause, I share noble Lords’ ambition to make sure that those who are rough sleeping are supported appropriately. We know that not all individuals who are rough sleeping beg and that not all individuals who beg are rough sleeping. There is a range of circumstances in which an individual may beg, including forced begging; a perpetual cycle of begging can have a detrimental impact on the health of an individual, as well as impeding engagement with support. We also know that some people engage in begging with various motives. Where an individual is truly destitute, it is paramount that a multiagency approach is wrapped around them to provide the necessary support, but we must recognise that this does not always happen. We need to ensure that legislation creates the right environment in which to deliver effective services and engage with vulnerable people constructively.
In relation to subsection (5), I am not convinced that additional guidance is needed on the use of anti-social behaviour legislation beyond existing statutory guidance. The Anti-social Behaviour, Crime and Policing Act 2014 was introduced to provide simple and effective powers to tackle anti-social behaviour, and existing statutory guidance makes it clear that those powers are not there to target vulnerable people based solely on the fact that they are homeless or begging without there being accompanying behaviour that meets specific legal tests. Therefore, we believe that the position that subsections (3) to (7) of the proposed new clause seek to specify are an already-established position reflected in statutory guidance.
I accept that these are relative points of detail about the drafting of the noble Lord’s amendment. The central point is that the Government are committed to completing their review of the Vagrancy Act as soon as practicable. This helpful and timely debate will inform that process. I would like to extend an offer on behalf of Eddie Hughes, the Minister for Rough Sleeping, to meet the noble Lord, Lord Best, and other noble Lords who have spoken in the debate ahead of the next stage.
Lord Young of Cookham (Con)
Was the former Secretary of State, Robert Jenrick, speaking on behalf of the Government when he said that the Vagrancy Act should be repealed?
Baroness Williams of Trafford (Con)
When I voiced my support for something needing to be done about the Vagrancy Act, there was a general acknowledgement that something needs to be done about it. I extend the invitation to the noble Lord, Lord Best—and, indeed, to my noble friend as well if he so wishes—because it would be an important discussion ahead of the next stage. What I was trying to say in my rather long-winded explanation is that there are some complex things in the Vagrancy Act that need to be unpicked and understood, with consideration of the legislation on the back of that.
Baroness Chakrabarti (Lab)
I hope that this is an appropriate time for me to ask the Minister two questions in relation to her answer on this group.
First, in contrast with the Minister’s answer to the subsequent amendment in the name of my noble friend Lady Armstrong of Hill Top, the answer to Amendment 292H in the name of my noble friend Lady Blake seemed to be that there are adequate powers for local authorities and the police to work together to protect people from unlawful eviction. However, there is obviously a difference between powers and duties. The intention behind this neat and compelling amendment is to do what the Government have tried to do in other aspects of this draft legislation: create a duty for people who already have powers to prioritise a problem and work together. Why not prioritise protection from eviction in the way that other types of crime have been prioritised, with duties and not just powers, in other parts of the Bill?
Secondly, I listened carefully to the Minister’s answer on vagrancy. I do not understand why, if begging is not causing harassment to people, it is a crime at all. The Minister talked about two sides of the begging problem: it is bad for the person who has to do it and potentially bad for the people who experience it. If it is bad for the people who experience it, there are, as the noble Lord, Lord Sandhurst, set out, adequate criminal laws, whether in anti-social behaviour or in other legislation, that cover unwanted harassment. If it is just about protecting people from unhealthy behaviours, we do not do that by criminalising people for being desperate and poor. When she meets her noble friends to discuss this amendment, will the Minister look at whether this review cannot be speeded up in time for Report? The Government seem able to move very quickly when it comes to adding extra powers to suppress protests, but it takes hundreds of years to repeal the Vagrancy Act.
Baroness Williams of Trafford (Con)
I am sure that, when my noble friend and the noble Lord, Lord Best, meet Minister Hughes, they will cover some of the points made by the noble Baroness.
I do not think that this is about an acknowledgement that there are adequate powers; it is about the application of those powers. As I said to the noble Baroness, if there are deficiencies in collaboration at the local level, it would be helpful if they were brought to my attention.
Lord Carlile of Berriew (CB)
I did not want to interrupt or contribute to this debate because there have been many eloquent speeches, but I want to ask the Minister a granular question. This is going to turn into a shaggy dog story in which everybody agrees that this 200 year-old legislation is out of date unless somebody sits down and does something serious about it with the intention of bringing the discussion to an end. As a question of fact, has parliamentary counsel ever been instructed to produce, or try to produce, legislation to replace the Vagrancy Act? If not, why not? If so, can we know something about the result?
Baroness Williams of Trafford (Con)
I thank the noble Lord for trying to wrap the discussion up in that one important question. I will take it away. When my noble friend and the noble Lord, Lord Best, speak to Eddie Hughes, the Minister, we will see what progress has been made at that stage. But at this stage, I wonder whether the noble Baroness, Lady Blake, will be happy to withdraw her amendment.
Lord Falconer of Thoroton (Lab)
I apologise for interrupting. We have had an hour and 19 minutes on this, but the answer that the Minister gave on the problems with Amendment 320, to which I have put my name, were difficult to follow. She made the point that begging or sleeping rough does not in itself amount to action causing alarm or distress in the absence of other factors under the 2014 Act, with which I agree and which the drafters of Amendment 320 explicitly reflect in subsection (3). I am simply unable to understand her reasons for not accepting Amendment 320.
This is important. It is not possible to say, “Well, here are some incomprehensible reasons that nobody in the Chamber understands, therefore we need the completion of a review.” I did not follow whether the review is part of the way through, whether it is finished or whether there is an expected date for its conclusion. Will the Minister answer two questions? First, what is wrong with Amendment 320 if it precisely reflects what she said? Secondly, where has the review got to? When did it start and when will it finish?
Baroness Williams of Trafford (Con)
As for what is wrong with Amendment 320, I explicitly said to the noble Lord, Lord Best, that the Government agree that the time has come to consider the Vagrancy Act. There is an opportunity to speak to the appropriate Minister before Report to answer some of the questions that have been asked this afternoon. I do not know the answer to the second question, but I will write.
Baroness Blake of Leeds (Lab)
My Lords, I pay tribute to the contributions that we have heard this afternoon. They have been incredibly thoughtful and based on evidence. On my Amendment 292H, we have heard many examples supporting the words that I used: there is evidence out there of what works, in the same way that there is evidence of what does not work. This is a real opportunity to get to grips with this issue for the sake of the victims of eviction and their families. I assure the Minister that everyone who has access to evidence will be extremely happy to supply it, with the expectation that it will be considered as we make further progress with this Bill. This is a real opportunity to get things right.
I thought that I was going back a long way, to 1997, not back 200 years, but it clearly is not good enough that, where there are powers, they are not being used. My noble friend Lady Chakrabarti put it well: there must be an express duty to focus minds. It is not enough for us to say that in certain parts of the country this is being done. I can attest from my time as leader of Leeds City Council that there was incredible progress in this area and a real expectation that everyone would come to the table. Not sharing data was never an excuse. It was expected and supported by all the partners. It can be done everywhere but it is not being done everywhere. The resources are not there within the police or local authorities—they are diminishing—to ensure that enforcement is seen through. We are talking about innocent victims who suffer from the lack of enforcement. I made the point that all we are asking for is a simple change, through the amendment, that would bring to an end so much misery for people that does not need to happen.
Baroness Brinton
“Desecration of a corpse
(1) A person (‘D’) is guilty of an offence if—(a) D acts with severe disrespect to a corpse, and(b) D knows that, or is reckless to whether, their acts are one of severe disrespect.(2) In subsection (1)(a), disrespect to a corpse includes but is not limited to—(a) dismembering a corpse, including—(i) removing or attempting to remove identifiable body parts such as teeth, or fingers;(ii) decapitation or attempted decapitation;(b) destroying or attempting to destroy a corpse by means or burning or the use of chemicals.(3) For the purposes of subsection (1)(a), whether an act is one of severe disrespect is to be judged according to the standard of the reasonable person.(4) A person is not guilty of an offence under this section if—(a) the act would otherwise be criminal under section 1 of the Human Tissue Act 2004,(b) the act is also a criminal offence under section 70 of the Sexual Offences Act 2003 (sexual penetration of a corpse), or(c) the act is a lawful cremation under the Cremation (England and Wales) Regulations 2008.(5) A person guilty of an offence under this section is liable—(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;(b) on conviction on indictment, to imprisonment for a term not exceeding 3 years.”Member’s explanatory statement
The current common law offence of preventing a lawful and decent burial is rarely used. This amendment therefore creates a specific criminal offence of desecration of a corpse to address intentional acts of disrespect towards a deceased person’s remains.
Baroness Brinton (LD) [V]
My Lords, Amendments 292K and 292L in my name seek to create a criminal offence of desecration of a corpse and concealment of a corpse. At present, there are only common-law offences of preventing a lawful burial and obstructing a coroner by concealing a body.
Marie McCourt, the mother of Helen McCourt, still does not know what happened to her daughter who disappeared on 9 February 1988, or where her body was hidden or disposed of. Marie is one of those extraordinary women who absolutely refused to stop looking for her daughter, even though Helen’s murderer, who was convicted on clear DNA evidence, has not only served his term in prison but been released on licence. Despite being pressed repeatedly by the authorities over the years, he has refused to say where Helen’s body was left or what happened to it.
Marie has been arguing for decades that the desecration and concealment of a corpse is an extra-heavy sentence on the victim’s loved ones. She has supported the families of many other victims who have seen their loved ones murdered but have no remains to bury, or have heard of unspeakable desecration of their bodies.
In 2015 Marie started to campaign for a change in the law for these killers, seeking to require them to reveal where their victims’ remains were before being considered for parole. In July 2019, she was successful in getting that law changed—but not in time for her daughter’s killer. Marie was not doing it just for her, her family or Helen’s friends. She does not want anyone else to go through the agony they have faced for over three decades.
Others have also spoken out: Coral Jones, Tony Cox and Lesley Rees are the parents and family members of April Jones, Lorraine Cox and Michael O’Leary, who were also not just murdered but had their bodies desecrated by their murderers. Some remains were dismembered and some were burned. These families have had the extra distress of not knowing what happened to part or all their loved ones’ bodies. For these families there is no closure. More recently, Sarah Everard’s remains were burned by her murderer—although in her case police were able to find her remains.
At present, with the common-law offence of preventing a lawful burial, and these days with excellent forensic skills such as those used by police and forensic staff in the Sarah Everard case, it is possible to identify not just remains but also links with the murderer. The common-law offence of obstructing the coroner by concealing a body is rarely used, and there are no consequences for a convicted killer who continues to conceal the whereabouts of a body. Some killers enjoy having this last part of control over their appalling acts. They know that most families will never have a day without reliving the distress of their loved one being murdered. Refusing to disclose what they have done with the body, or where they have concealed a corpse or partial remains, is a form of control.
I thank Marie McCourt, Fiona Duffy and Claire Waxman, the London victims’ commissioner, and her office, for helping to brief me this. There can be few things worse for a family than hearing that a loved one has been murdered. To then learn that their remains have been further abused or have never been found causes unimaginable distress. The current laws are inadequate and mostly not used by prosecutors. These amendments say that these two offences should become criminal offences where an offender has done an intentional act of disrespect towards the deceased person’s remains. The second amendment makes it a criminal offence for an offender to refuse to co-operate in the recovery of their victim’s remains. These offences will punish an offender who has committed these unspeakable acts beyond murder, and also perhaps begin to bring closure to grieving families. I beg to move.
Lord Paddick (LD)
My Lords, I thank my noble friend Lady Brinton for introducing these amendments, which we support. The “Helen’s Law” campaign has achieved a great deal by persisting in campaigning for victims and their families by ensuring that failure to disclose the whereabouts of a victim’s body can increase the killer’s time in custody. These amendments go further, as my noble friend has explained. She has worked with Helen’s mother, Marie McCourt, and others on these amendments, proposing to create specific offences of desecration of a corpse and concealment of a body.
These amendments address serious and real human suffering caused by preventing a victim’s family from recovering the body of their loved one, whose life has already been cruelly snatched from them. The proposed offences would respond to that cruelty in a way that may be inadequate in reducing the hurt, but at least they reflect the justified anger we all feel when killers compound their inhuman actions with further callousness and inhumanity. As my noble friend explained, the existing legislation is not only inadequate but rarely used. We support her amendments.
Lord Falconer of Thoroton (Lab)
My Lords, I pay tribute to the noble Baroness, Lady Brinton, for the clarity with which she has put this forward. The driving force behind this amendment is Marie McCourt whose daughter Helen McCourt was murdered by Ian Simms, and the body was never found. Ian Simms never indicated where the body was, refused to acknowledge what had happened, and was eventually released on parole. Prior to him being released on parole, Marie had campaigned successfully for a change in the law, which said in effect that if you did not indicate where the body was, parole should normally be refused.
Now, very effectively and with great understanding, Marie McCourt has pressed for a change in the law to make sure that there is, in effect, a crime of desecrating the body of somebody you have murdered. This is a greater problem than previously. In recent times, 54 murder trials have taken place without a body. We on this side of the Committee strongly support this offence. It might be asked whether this matters if you are being charged with murder. It matters to the victims’ families and therefore it should matter to the law. That is why we support this amendment.
The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)
My Lords, I will address the two amendments in reverse order, starting with Amendment 292L. This creates a new offence of concealment of a body and repeals the existing offence of obstructing a coroner. As it stands, to obstruct or prevent a coroner’s investigation of any body found, when there is a duty to hold one, is to commit an offence. That offence is a common-law one, triable only on indictment, and carries a maximum penalty of life imprisonment. The common-law offence is therefore wide-ranging. Proof of the offence does not require a person to conceal or attempt to conceal a body, or proof of a specific intent to obstruct a coroner—only that the coroner’s inquest is obstructed or prevented.
Amendment 292L replaces that wide-ranging offence that covers several ways in which a coroner is obstructed with a more narrowly defined offence which relates to obstruction by concealing a body or to facilitate another criminal offence. The specific offence proposed by the amendment also has a maximum penalty of three years—less than the life sentence that can be imposed under the current law. This approach, in our view, creates gaps in the coverage of the law compared with the existing common law and reduces the ability of the court to sentence for the full range of the offences.
We agree that concealing a body in this context should always be recognised by the law, and it already is in several ways. First, in the circumstances where an offender is responsible for a homicide, the fact that they concealed or mutilated a body is a clear aggravating factor in sentencing. As a result, the sentence will be increased to reflect the additional harm caused. Noting what the noble and learned Lord, Lord Falconer of Thoroton, said about the increasing number of trials that take place without a body, we acknowledge that as forensic techniques have improved, so has the determination or ingenuity of the criminal to try to erase traces.
Secondly, where the concealment of a body is part of a course of action that includes the killing, the sentence for murder—or for manslaughter, I imagine—will include that aggravating factor in deciding on the starting point from which the sentence should be imposed.
Baroness Brinton (LD) [V]
I thank all speakers for their thoughtful and moving responses to the difficult issues covered by these amendments. I particularly thank my noble friend Lord Paddick for his support; he was absolutely right to talk about the devastating, inhuman and callous behaviour that these two amendments attempt to codify. The noble and learned Lord, Lord Falconer, reiterated the key legal arguments and had information that I did not—that there have been at least 54 murder cases where this is relevant. I thank them both for their support.
The Minister says that Amendment 292L narrows the area from the common law equivalent and that the sentence is less. The problem is that the common law equivalent is never used. The reality is that many prosecutors do not recognise it, and noble Lords know that there are a number of times when prosecutors do not go for more serious charges to ensure that they get something through a court that a jury recognises. But it is important to understand that we are not proposing to repeal the common law offence. It is vital to understand that. The amendment deliberately did not propose repealing the common law offence expressly to keep it on the statue book and therefore give the courts full discretion to use it, if they so wish.
On Amendment 292K, the Minister said it is paramount that bodies should be treated with respect, and he is absolutely right. He also said that desecration to facilitate the hiding of the body is an aggravating factor, but too rarely has that been recognised. I am grateful that he used the word “may” in possibly considering these issues as part of the inquiry into the Tunbridge Wells case. I spoke on the Statement on this matter in your Lordships’ House, when it came up two or three weeks ago, and one of the problems with the current crime of necrophilia, which, from memory, has been on the books since either 2013 or 2003—I apologise for not remembering which—is that it has never been used. We have these cases that either are too embarrassing to deal with or have concerns from prosecutors that they will not get past a jury.
Will the Minister have a meeting with me to consider changing that word “may” and to see whether it is possible to include this in the inquiry? Despite the acts of the Tunbridge Wells case being different, the consequences remain the same for the families of the bereaved. In the meantime, I am content to withdraw the amendment and will consider whether to bring both back on Report.
Lord Russell of Liverpool
“Strategy on stalking
(1) The Secretary of State must, before the end of the period of 12 months beginning with the day on which this Act is passed, prepare and publish a document setting out a strategy for—(a) detecting, investigating and prosecuting offences involving stalking,(b) assessing and managing the risks posed by individuals who commit offences involving risks associated with stalking, and(c) reducing the risk that such individuals commit further offences.(2) In preparing the strategy, the Secretary of State must—(a) seek to adopt a multi-agency stalking intervention programme;(b) seek to ensure that risk assessments for stalking victims are carried out by trained specialist stalking professionals;(c) seek to ensure that any judge, police officer or other relevant public official involved in an investigation or legal proceedings involving stalking has attended and completed relevant training.(3) The Secretary of State—(a) must keep the strategy under review;(b) may revise it.(4) If the Secretary of State revises the strategy, the Secretary of State must publish a document setting out the revised strategy.(5) In preparing or revising a strategy under this section, the Secretary of State must consult such other persons as the Secretary of State considers appropriate.(6) Subsection (5) does not apply in relation to any revisions of the strategy if the Secretary of State considers the proposed revisions of the strategy are insubstantial.(7) In this section—the references to “acts associated with stalking” and “risks associated with stalking” are to be read in accordance with section 1 of the Stalking Protection Act 2019;“multi-agency stalking intervention programme” means a programme through which public authorities, including police forces, probation services and the National Health Service, collaborate with each other and stalking advocacy support services to intervene on those carrying out acts associated with stalking, whether or not convicted of an offence, depending on the level of risk they pose to the victim and the public.”Member’s explanatory statement
This amendment aims to promote the early identification of and intervention on stalking, and better investigation and prosecution of the crime, by requiring the Government to develop a strategy that includes: the adoption of a multi-agency intervention programme, risk assessments for victims to be carried out by trained professionals, and training for relevant public officials.
Lord Russell of Liverpool (CB)
My Lords, I rise to propose this amendment, because the noble Baroness, Lady Newlove, is suffering from an extremely painful frozen shoulder. She has had an injection of cortisone, which I hope is having the desired effect and, if she is listening to this debate, I hope she is seated in a comfortable chair, because she deserves a good rest. I thank in advance the noble Baroness, Lady Brinton, and the noble Lord, Lord Hunt, who have also kindly added their names to this amendment.
This is déjà vu all over again. We keep returning to stalking, because we have not yet been able to take all its complexities on board, for all our attempts to deal with this bit and that bit, this piece of revised guidance and a bit of training, and this new perpetrator system to replace ones that have manifestly failed; for all the admonitions for different agencies and statutory bodies that are not co-operating as they are meant to, and despite pilots here and there, X millions of pounds spent here and new resources there. Despite all this effort and the extensive time that Ministers have spent at the Dispatch Box, the headlines keep on coming up with new cases of victims who are being failed, despite all the time, effort and resources expended to try to protect them.
It is not working. Just ask the elected Members of another place, particularly female MPs, what it feels like to be stalked, targeted, and even to require personal protection. What price democracy when its representatives are being systematically intimidated to the point that it inevitably begins to impact on their mental health—and even, as we have tragically seen recently, their personal safety?
I know that the Minister and Her Majesty’s Government are serious and well intended in their attempts to deal with stalking, but our contention is that the evidence suggests that they are not doing this well enough to make a tangible difference for the estimated 892,000 female victims of stalking for the year ending March 2020. That is according to the Crime Survey for England and Wales.
The Minister will not be surprised that, in evidence to back up the case I am putting forward, I will refer to Zoë Billingham’s September 2021 HMICFRS report, Police Response to Violence Against Women and Girls. Its findings are worrying. Its findings on the much-vaunted use of stalking protection orders, introduced in January 2020—18 months before this report—are on pages 56 to 59. The report found that the application of stalking protection orders by police forces is very inconsistent. Some are using them carefully and effectively, but others are doing little or nothing. One force had failed to issue a single stalking protection order, because its legal department thought that every case had to be approved in person by the chief constable. In fact, statutory guidance makes it very clear that decision-making can and should be delegated to superintendents.
The report examined 25 stalking protection orders in detail. Two findings stand out. A majority of the orders did not contain any positive request to be placed on the person subject to the order. The report rather dryly remarks:
“This is disappointing and may indicate that forces aren’t familiar with this important change of practice.”
The second finding was that the details of 16 out of the 25 protection orders and their conditions have not been circulated and communicated within the relevant police force, so the offices within the police force were not even aware that an SPO had been issued to somebody within their jurisdiction. What happens if and when SPO conditions are breached? The report says:
“We conclude that some forces do not pay enough attention to breaches of orders, the effect they have on victims and how well they”—
the police forces—
“perform in this important area.”
Enough of this report, but I strongly recommend that it should be required reading for anybody interested in or charged with the responsibility for reducing violence against women and girls.
Although it is often a significant factor in many domestic abuse cases, stalking is broader and more complex. Fifty-five per cent of stalkers are ex intimate partners, which would therefore be regarded as domestic abuse stalking, but that means that 45% are not. The latter group could be an acquaintance, a neighbour, a friend, a stranger or even a colleague. Surely it is imperative that all stalking victims are offered the same level of protection, regardless of their relationship, and sometimes no relationship at all, to the stalker. For all its many excellent new laws and guidance, the Domestic Abuse Act does not support the victims of this enormous group of 45% of stalkers.
Baroness Brinton (LD) [V]
My Lords, the noble Lord, Lord Russell of Liverpool, has very ably set out the reasons why this amendment has been tabled, so I will be brief. Let me put it politely: the House will know that a number of us remain concerned that stalking is still not taken seriously by the Home Office, the Government and some parts of the criminal justice system. We know that training remains patchy, and that victims are still told they should be grateful for the attention of their stalker. That is why we tabled this amendment to create a stalking strategy—not for the first time; I have been tabling amendments on a stalking strategy for a decade—for training in recognising, and working in a truly multidisciplinary way to recognise, possible stalking perpetrators, and to let MAPPA professionals become involved at an early stage as soon as the possibility of fixated and obsessive behaviour emerges.
The noble Baroness, Lady Williams, told your Lordships’ House during the passage of the Domestic Abuse Bill, on consideration of Commons’ amendments, that the Government were consulting with different key parties in the criminal justice system to amend the guidance on MAPPA and to recognise and manage stalking. I thank her for sharing the proposed revisions to the statutory guidance. She said:
“Once the revised guidance is settled, we will promulgate it through a Written Ministerial Statement, and this will provide an opportunity to update the House on the delivery of the other commitments I have set out. Noble Lords talked about having some sort of debate in this place, perhaps after the Summer Recess.”—[Official Report, 27/4/21; cols. 2180-81.]
When will this be brought back to your Lordships’ House for such a debate?
The noble Baroness also said:
“We are also legislating already in the Police, Crime, Sentencing and Courts Bill to put beyond doubt the powers of duty to co-operate agencies to share information under MAPPA by clarifying existing information-sharing provisions. We are investing new resources to tackle perpetrators, with an additional £25 million committed this year.”—[Official Report, 27/4/21; col. 2182.]
I understand that that is not just stalking perpetrators but perpetrators of a range of serious crimes.
Despite her encouraging us to bring back stalking-specific matters to this Bill because they were not appropriate for the Domestic Abuse Bill, it is noticeable that there is still no sign of a stalking strategy. It is as if stalking protection orders, now passed, are the magic answer, when actually they are part of the toolkit for managing fixated and obsessive perpetrators who may not come under domestic abuse legislation. As the noble Lord, Lord Russell, demonstrated, the patchy application of SPOs is real evidence of the old problem continuing. The choice about how to apply the stalking laws remains with people inside the police and courts system.
In a case in Wales in the last two weeks, a man was charged with two incidents relating to stalking his ex-partner, but she had already moved home twice and it is evident from the case that this stalking had been going on for a considerable time. Can the Minister say what training is happening within all police forces and all the courts—family as well as criminal—and for social workers, among others involved in MAPPA?
It is 13 years since my stalker was convicted—after 100 incidents had happened—and close to 10 years since stalking was created as a separate offence from harassment, but people being stalked still have to face many issues in the system because there is no overarching strategy for dealing with stalking. It is time that there was.
Lord Hunt of Kings Heath (Lab)
My Lords, the noble Baroness, Lady Brinton, has eloquently and bravely described on a number of occasions and brought home to us just how important it is to tackle stalking in an effective way. I also pay tribute to the noble Baroness, Lady Newlove, who has been an inspiration during our discussions on these issues.
I will make just two points to emphasise the excellent speech by the noble Lord, Lord Russell. First, he mentioned the huge number of women who are victims of stalking and the disgracefully low number of prosecutions. The problem is not just the inconsistencies to which he and HM Inspectorate have referred. It is also clear that in too many police forces stalking is seen as a low-level nuisance behaviour issue rather than the serious crime it often is.
We know that a number of stalking perpetrators who potentially pose the highest risk to victims would not meet the threshold for the assessment and management of risk for a relevant domestic abuse or stalking perpetrator, as proposed under the MAPPA model. This is a big problem. As the Suzy Lamplugh Trust, which does so much fantastic work in this area, has identified, stalking is often not recognised as a crime. The level of risk to a victim is therefore inadequately identified and addressed, and this has the potential to put many lives in serious danger.
I refer the Minister to Dr Jane Monckton Smith’s 2017 study of 358 homicides, all of which involved a female victim and a male perpetrator. It revealed stalking behaviour as an antecedent to femicide in 94% of those cases. That demonstrates why it is so important to work on prevention and action in relation to stalking.
The noble Baroness responded at great length to our previous debate in Committee, setting out the proposals and the actions her department is taking. As the noble Lord, Lord Russell, said, in the end they do not really amount to a cohesive strategy that will actually start to take this seriously. I hope the Minister will perhaps agree to reflect on this between now and Report to see whether we can take this any further.
Baroness Bennett of Manor Castle (GP)
My Lords, I believe the case for this amendment has already overwhelmingly been made from all sides of this Committee. The Green group would have attached our name to it to make it even more cross-party, had there been space.
I go to the words of one victim that, I believe, sum this up. They are taken from an article in the popular mainstream magazine Vogue, published this week. They are from a single victim whom it called “Chloe”, whose stalker was jailed after breaching protective orders more than a dozen times, even though he had never been convicted of stalking. Chloe told Vogue:
“The system designed to protect us is broken and reactive. It waits for harm … I will live in fear until the day he dies.”
Those are the words of lived experience. The system is broken. I believe the case for this amendment and for a strategy has been overwhelmingly made.
Lord Paddick (LD)
My Lords, I thank the noble Lord, Lord Russell of Liverpool, for moving Amendment 292N on behalf of the noble Baroness, Lady Newlove; I wish her well.
Victims of stalking, including female Members of Parliament, are being failed, as the noble Baroness has just said. As the noble Lord, Lord Russell, set out in his opening speech, there were 892,000 victims of stalking in the year to March 2020, according to the crime survey. The noble Lord pointed out the findings of the HMICFRS report on violence against women and girls regarding the inconsistent approach across different police forces to stalking protection orders; that the majority of orders had no positive obligation on the perpetrator; and that officers in force areas were unaware that the perpetrators were even subject to the orders, so there was no enforcement of the orders.
There is clearly a need to address perpetrator behaviour, in addition to protecting victims. My noble friend Lady Brinton said—and I agree—that stalking is not being taken seriously enough. That is as much a cultural issue for the police and courts as it is for society as a whole. There is clearly a need for a stalking strategy to ensure a consistent and effective response from all the authorities involved, as the noble Lord, Lord Hunt of Kings Heath, just said—not just the criminal justice system but charities and others that offer services to address the behaviour of offenders. We support this amendment.
Lord Rosser (Lab)
I will be very brief as the case for this amendment has been so eloquently put by the noble Lord, Lord Russell of Liverpool, and other noble Lords who have spoken. I take this opportunity to pay tribute to the noble Baroness, Lady Newlove, who unfortunately cannot be in her place tonight, and to the other noble Lords who are signatories to the amendment, for their tireless work on this issue. In that context, I also pay particular tribute to my noble friend Lady Royall of Blaisdon, who cannot be in the Committee today, for her dedication and years of leadership on this issue.
I know the Minister is also passionate about this issue, but for years the House has found itself returning to this debate, as the noble Lord, Lord Russell of Liverpool, said, and each time the answer from the Government is largely that the current system is adequate although improvements are needed in how it is delivered. Yet each time we come back to it, more women have been killed and more lives devastated. This amendment has our wholehearted support, and I hope we can now look forward to a clear and encouraging response from the Government.
Baroness Williams of Trafford (Con)
My Lords, I thank the noble Lord, Lord Russell of Liverpool, for setting out this amendment calling for a strategy on stalking. As the noble Baroness, Lady Brinton, pointed out, this can have a devastating impact on the victims that are pursued. I actually have much higher figures than those that noble Lords talked about today: an estimated 1.5 million people were victims of stalking in the last year. I assure noble Lords that this Government are utterly committed to protecting and supporting victims of stalking, as some of our work in the last few years demonstrates. We will do everything that we can to ensure that perpetrators are stopped at the earliest opportunity.
Lord Russell of Liverpool (CB)
My Lords, I thank the Minister, as usual, for her comprehensive reply and praise the fact that, unlike some incumbents on the Front Bench from time to time, she actually listens to the debate and tries to respond to points, which can be a refreshing change. I thank all noble Lords who have taken part in this mercifully short debate.
The noble Baroness, Lady Brinton, pointed out that there is still no sign of a comprehensive stalking strategy. We have heard that elements of it are coming together, but I am not sure that it would meet the requirement to be regarded as a completely comprehensive strategy—but we shall see when it happens. The noble Lord, Lord Hunt, made an extremely good point about the contrast between the extraordinarily high number of victims of stalking—nearly 900,000 women in one year—and the derisory level of prosecutions. There are echoes of what is happening with rape convictions, and that parallel is worrying.
The noble Baroness, Lady Bennett, pointed to the case of Chloe. The phrase that resonated with me from that case was when Chloe said that she will probably live in fear for the rest of her life. That is the effect stalking can have on an entirely innocent individual. I sometimes think that not only do we not realise it; given the evidence from a lot of the agencies and individuals charged with trying to arrest or identify perpetrators, and to do something about it, I am not sure whether they understand the real effect stalking can have on people. That is where effective training comes in, to make them understand what they are dealing with and to help them deal with it in a much more proactive and sensitive way.
The noble Lord, Lord Paddick, speaking from direct experience of his time in the police force, once again put his finger on a critical problem. There is a cultural issue within the police force and some other statutory agencies that deal with stalking in understanding what it is in all its myriad guises, recognising it and knowing what to do about it—both for the victims and the perpetrators.
The noble Lord, Lord Rosser, echoed my déjà vu all over again by reminding us that the issue keeps stalking this House. It recurs again and again. The contributions have indicated just why that is the case.
I thank the Minister very much for her reply. I am pleased to hear of the different initiatives being undertaken, so the positive side of me welcomes that. The slightly more sceptical—and stalked—side of me thinks, “Here we go again.” Here we have a range of initiatives which may or may not be as joined up as we passionately believe they should be. Unless they are completely joined up, and unless one is clear about what they are there to do and how all the bodies and individuals involved are meant to act in pursuit of these initiatives, I have a horrible feeling. If Zoë Billingham’s successor did a similar report looking at the effect of all these initiatives in about two years’ time, I personally have no high degree of confidence that the findings would be different. That is a cause for concern.
I take the point that if we want to have a MAPPA debate, it is for this House to choose it. I am sure we will stalk the usual channels to try to ensure that it takes place. If the Minister is open to discussing this, in the extremely long time we have between now and Report, that would be very helpful. What I take away from this is that I understand all the initiatives taking place, particularly those focused on domestic abuse, for obvious reasons, but what about the other 45% of stalked women? I come back to those who are not in domestic abuse situations. Most of these initiatives are aimed at the domestic abuse arena, and I laud them, but what about the 45%? If we are to have a cohesive strategy—frankly, that is why we need one—the 45% have to be included so that we are looking at 100% of the problem. In the meantime, I beg leave to withdraw the amendment.
Lord Thomas of Gresford
“Royal Commission on criminal sentencing
(1) Within six months of the passing of this Act, the Secretary of State must establish a Royal Commission to carry out a full review of criminal sentencing.(2) In particular the Commission must make recommendations on—(a) how to reduce the prison population;(b) how to reduce violence and overcrowding in prisons;(c) addressing the particular needs of young people in custody;(d) addressing the particular needs of women in custody;(e) how to ensure that sentencing for offences is focussed upon reform and rehabilitation of offenders and reducing reoffending;(f) how to reduce the over-representation of people from Black, Asian and minority ethnic backgrounds in prison; (g) the imposition and management of non-custodial sentences; and(h) the abolition of some mandatory or minimum prison sentences.”Member’s explanatory statement
This amendment would establish a Royal Commission to review criminal sentencing.
Lord Thomas of Gresford (LD)
My Lords, I move this amendment in my name and that of my noble friend Lord Marks of Henley-on-Thames, who regrettably cannot be with us today. In the Conservative Party manifesto for the 2019 election, there was a promise to set up a royal commission on the criminal justice system within the first year of government. Of course, that did not happen; instead, we have this enormous Bill, which covers police, crime, sentencing and courts, with bells and whistles attached. It is a great pity that the Government did not carry out their manifesto promise, which might have produced much better and more targeted reforms.
Lord Falconer of Thoroton (Lab)
I am grateful to the noble Lord, Lord Thomas of Gresford, for moving this amendment. I had not realised, until he mentioned it, his own critical role in the constitution of the UK as it is now through the evidence that he gave to the Kilbrandon royal commission, rightly described as important. Now we know where to look when we see problems in relation to the constitution.
I wholeheartedly agree with the underlying point that drives the way the noble Lord put his case. The criminal justice system is in a terrible mess. He described the position of the prison system, which is also a terrible mess and is not delivering on its aims, particularly to protect the public from crime and reoffending. However, it does not just go to imprisonment; the whole range of sentencing is now in a terrible mess. It goes even beyond that, to the way that the criminal justice system operates in terms of both its procedures and its effectiveness. Surely the time has come for a long hard look to be taken at the criminal justice system.
This is not remotely a criticism of the noble Lord, Lord Thomas of Gresford, because a royal commission is a worthwhile thing, but I can imagine no more profound exercise in futility than a royal commission promoted by your Lordships’ House, moved by the marvellous noble Lord, Lord Thomas of Gresford, and the wonderful noble Lord, Lord Marks of Henley-on-Thames. Can your Lordships imagine this Government —the Government who approximately an hour and a half ago wagged their finger at us and told us we had to finish the consideration of this Bill by the end of tonight, no matter what time it ended—listening to a royal commission’s proposal for an objective look at sentencing? My own judgment is that, sadly, although the noble Lord, Lord Thomas, makes a very powerful point, the same finger of this Government would be waved at the royal commission and no attention would be paid to it. I share the noble Lord’s feeling and analysis but I fear that, because of the nature of this Government, it would be a waste of time.
Lord Thomas of Cwmgiedd (CB)
May I add a more hopeful note? It has been wonderful to see this Government bring forward Professor Ormerod’s work on the Sentencing Code and bring it on to the statute book, and in this Bill—this is a good point—the code is being amended rather than there being any new proliferation of legislation. So one ought to say thank you for that.
However, the Sentencing Code shows the problem. I do not know how often the Minister looks at it but it is a fiendishly complicated set of sentences that we have accumulated over the years. Although we have seen a lot of criticism of the 2003 Act, I would say in its defence that an awful lot of thought was given to it. It may not have been quite right, and there was one area which has gone badly wrong. As I complimented one side, I now compliment the other: when we looked at the 2012 reforms to sentencing, a huge amount of thought went into that. A lot of sentences that were thought to be apposite were brought forward or modified, but at least there was some thinking.
We have now reached a stage where we need—on, I hope a nonpartisan basis—to think again. Is it too complicated? The answer must be yes. Have we got the sentencing regime right in terms of its outcomes and, equally importantly, its cost and whether the money can be spent better? There can be no better mechanism for that than a royal commission. I would hope that the initial thoughts of those who drafted the manifesto could be taken forward, at least in that respect. I would hope, though maybe I am being optimistic, that when it was all laid out what an awful state our sentencing regime is in, logic would prevail and we would see some reform. However, that is just an expression of hope by a person who is not a politician.
Lord Beith (LD)
My Lords, I support the amendment. My support goes back to the time when I served as chairman of the Justice Committee in the House of Commons. I became utterly convinced that the absence of a coherent strategy or policy for the use of custody and other disposals was extremely damaging and distorted the use of resources in the criminal justice system to an amazing extent, leading to unsatisfactory outcomes in reducing reoffending and many other respects.
If I had not been so convinced, even during the passage of this Bill we have seen further examples of an incoherent approach to sentencing. In the course of the Bill, it was announced in the press, but by a Minister, that there would be a mandatory life sentence for the manslaughter of emergency workers. The Daily Mail reports today that that provision will be included in the Bill, although it is not clear to me how that can be accomplished—it is not even in the government amendments tabled for today—but that would be a very significant change.
We are also told that the Government intend to provide for an offence of the theft of a pet animal with a sentence of up to five years’ imprisonment. So you could get up to five years for stealing your neighbour’s cat by putting out a dish of milk and some bread because the cat seems a little underfed because your neighbours do not look after it as well as you think you would. It is absurd that we should get into that situation of sentence inflation—and there will be sentence inflation, as my noble friend referred to, because then you have arguments where legitimate organisations come to us and say, “There should be at least seven years for this offence because you get five years for stealing your neighbour’s cat.” That is how the parliamentary and political side of sentence inflation works. My noble friend has pointed to how it influences the judiciary as well, when minimum sentences cast—I was going to say “a shadow” but, rather, a particular colour of light on decisions about offences that fall short of the maximum sentence.
The reason I think a royal commission would be appropriate—notwithstanding the belief of the noble and learned Lord, Lord Falconer, that no one in government would take any notice of what it said, whoever had appointed it—is that there are different kinds of issue that need to be considered. Some are philosophical issues and issues of principle while others are practical, but they all affect sentencing and all lead to the misuse of custody, either in its extent or, in some cases, in its use at all, when other disposals could be more effective in preventing crime and dealing with offenders.
Lord Berkeley of Knighton (CB)
My Lords, I fear that I am going to venture still further on to the shores of Utopia. Having listened to the amendment of the noble Lord, Lord Thomas, and indeed earlier amendments, and recalling my days, many years ago, working in a hospital and then for the Koestler Trust—which takes art into prisons—I could not help thinking of how both in hospital and in prison, and for police officers, huge time is taken up dealing with people who should simply not be there. This has been said a lot, and it will go on being said.
My Utopian contribution to this debate is that, really, we need another agency to deal with people who are mentally ill, thus taking time off the work of the police, who are often tied up for hours trying to sort out what to do with somebody who is mentally ill. Think of the doctors and nurses in A&E who are constantly dealing with mentally ill people and people who are addicted to drugs or alcohol, and also of the prison officers who are trying to deal with similarly afflicted people. My feeling is that maybe, one day, it will happen. It probably is Utopian, but we need a third agency to take the stress off police officers, prison officers and those working in the National Health Service.
Lord Ramsbotham (CB)
My Lords, I support Amendment 292P, so ably introduced by the noble Lord, Lord Thomas of Gresford. As the noble and learned Lord, Lord Falconer, bleakly pointed out, the history of royal commissions under this Government is not particularly promising, which will not give much hope to the mover.
In the 2019 Queen’s Speech, as the noble Lord, Lord Thomas, said, it was announced that there was to be a royal commission on the criminal justice system, towards the cost of which £3 million was made available. But it has yet to materialise, as the noble Lord, Lord Wolfson of Tredegar, can testify, because I regularly ask questions about the discourtesy to Her Majesty the Queen of asking her to announce something that the Government had no intention of implementing, judging by their continued failure to announce either its terms of reference or the name of its chairman.
I say this in the certain knowledge that the Minister will ask for this amendment to be withdrawn, as different Ministers have throughout Committee on this Bill, notwithstanding the obvious degree of consensus throughout the House in favour of one amendment after another.
Lord German (LD)
My Lords, this has been an interesting debate, and it is so interesting to see such support around all parts of the House. I pay particular tribute to the noble Lord, Lord Ramsbotham, and his dogged determination to find out what happened to the royal commission that the Queen announced and that the Government have put on ice. We will talk about that perhaps a little later.
In thanking all those who have contributed, my only other comment goes to the nay-saying of the noble and learned Lord, Lord Falconer, whose argument is that there is no point in having it because we are fearful of the Government. I believe that politicians need to be strong, and I think that, in this instance, there is a case for us all together being strong in our determination. If we can do that then we can carry this forward.
The Bill does not simplify or streamline the process of sentencing. It adds to the piecemeal and confusing history of sentencing legislation—of which, perversely, the Government themselves are most critical—and guarantees the continuation of general sentence inflation, which has stretched our prison and probation services to the limit. Several of the proposals in this Bill have been inspired by exceptional individual cases, but law made on the basis of reacting to exceptional cases has contributed to the piecemeal approach to sentencing for many years. It is time to step back and rethink in a rational way. I suspect that, later this evening, we will be confronted with exceptional casework.
Over the last two decades, the nature of the prison population has changed considerably, precisely because Parliament has increased the severity of sentencing. The Prison Reform Trust estimates that sentencing changes alone have added around 16,000 people to the prison population since 2003. The Government’s own figures show that average sentence lengths are now over two years longer than they were in 2007. We are now faced with an increase in the prison population, giving rise to more self-harm, violence and overcrowding, and for an increase in family breakdown, which in turn affects prisoner mental health and the risk of increased reoffending. There are, of course, some good things in this Bill, but the pendulum has swung to the retributive side away from the rehabilitation side of our justice system. The balance between these two has been further eroded.
In practice, all Governments since 1990 have produced laws which seek to change the way in which we punish offenders. Being “tough on crime” has always been delivered but only rarely has being “tough on the causes of crime” been delivered. If this Bill does not achieve the balance between these two phrases, we certainly need a fresh look at what needs to be done. It is absolutely right to ask this question, one I think the noble and learned Lord, Lord Thomas of Cwmgiedd, was hinting at: how can the Sentencing Council be expected to advise on the right period for retribution between different categories of crime, when the punitive part of different sentences has changed so dramatically?
The Government have told us that the reason for this legislation is that current sentencing policy is complex, ineffectual, difficult to understand, insufficiently focused on public safety, and guilty of tying the discretion of judges. Those are all taken from government statements. I agree with these characterisations—so does the evidence stand up that this Bill will turn these factors round? Will it make sentencing simple, effective and easy to understand? Will it have a focus on public safety, and untie the hands of judges to increase their judicial discretion? If not—and I shall demonstrate why not in a moment—we most certainly need an independent inquiry into our sentencing policy. We need to understand the elements which would provide the legal and moral principles to underpin the sentencing regime.
Does this Bill meet the Government’s own ambitions? I hope the Minister will answer these questions. Does it reduce complexity? It is quite obvious to me from sitting through this Committee and seeing the Bill’s progress through this House that that is a big no—it has actually made it more complex, not less. Will it ensure effectiveness? The Bill dwells on public protection and reconviction; it does not dwell on whether sentencing policy can best deliver improvement in public protection and reconviction matters. That is the bit that is missing.
Will it make sentencing easier to understand? The additional complexity introduced by this Bill means that it will be less, not more, likely that this ambition will be met. Will it improve public safety? Longer sentences may do so, but the regime does little to ensure that the levels of reconviction are reduced.
The last test that it sets for itself is whether it is going to increase the judicial discretion of our judges. That is probably one of the most surprising ambitions that I have heard about this Bill. The Government are anxious to make one of the key aims of their policy to remove judicial discretion in relation to repeat offences. Added to this are the prescriptive sentences proposed in this Bill. Mandatory minimum sentences are a distortion to the sentencing process, as the Bar Council states, because they
“fetter a judge’s discretion to impose a sentence that is commensurate to the offence”.
Alongside that, of course, we need better data; the noble and learned Lord, Lord Falconer of Thoroton, moved an amendment to get better data. We need to understand the effectiveness of rehabilitation activity, and to do that we need data—this in turn will have an effect on the sentences handed down by the courts. This is a key area for the proposed royal commission. It will also need to examine a policy of having a sentencing policy based on the evidence of danger and harm—for example, a crime/harm index of the kind used in Canada.
This amendment provides an opportunity for a detailed look at our whole sentencing policy, set apart from the political maelstrom so amply exampled by my noble friend Lord Beith, a maelstrom of which we are all a part. Set apart from us, it can make recommendations for a coherent policy underpinned by a sound philosophical base.
Lord Stewart of Dirleton (Con)
My Lords, just at the very moment when the noble and learned Lord, Lord Falconer of Thoroton, was admonishing the Government for wagging their finger at this Committee of your Lordships’ House for seeking to impose upon it that it should finish this evening, a message popped up on my phone saying that there is to be no dinner break tonight. Lest that be taken as a sign of this Government’s authoritarian tendencies in action, I assure the Committee that I am told that that has been agreed via the usual channels.
I thank the noble Lord, Lord Thomas of Gresford, for introducing this interesting debate and all noble Lords for their contributions. The noble and learned Lord, Lord Thomas of Cwmgiedd, and the noble Lord, Lord German, addressed themselves to the fiendishly complex nature of sentencing. As is appreciated across the House, I think, the business of sentencing is in many respects a collaborative project, involving not only this Parliament but the Bench as well as the profession. On the topic of sentence inflation, referred to again by the noble Lord, Lord German, as well as by the noble and learned Lord, Lord Thomas of Cwmgiedd, I have noted at least in the neighbouring jurisdiction that, as we monitor or study sentencing patterns, we see that, as some sentences over time appear to have extended, sentences in other areas appear to have diminished. I go back to the notion that it is not simply Parliament that sets these trends but the judges independently of Parliament—albeit I accept the point made by the noble and learned Lord, Lord Thomas of Cwmgiedd, that there must necessarily be some degree of influence on the Bench coming from this place and the devolved Administrations.
In his thoughtful contribution, the noble Lord, Lord Beith, described an incoherent approach, and made the point that there was too much emphasis on the retribution side of sentencing as opposed to the rehabilitative. In that regard, I note that the principles of sentencing as set out in statute are fivefold; as well as rehabilitation and the reduction of crime, they also include punishment, reparation and public protection.
The noble Lord, Lord Berkeley of Knighton, setting sail for Utopia, in a compassionate contribution, proposed or floated before your Lordships the possibility of an additional service dealing with the mentally ill, whose difficulties, problems and tortures are so often seen by the medical profession, hospital staff and the emergency services. I regret that I am not in a position to address that thoughtful contribution tonight. Perhaps a royal commission is needed.
Lord Stewart of Dirleton (Con)
The noble Lords, Lord Ramsbotham and Lord German, also referred the Committee to the lack of progress on the royal commission on criminal justice. The noble Lord, Lord Ramsbotham, chided the Government for having been discourteous to Her Majesty by having her make in this place a commitment on behalf of the Government which the Government had no intention of fulfilling. As I understand it, with the onset of the Covid pandemic and with resources being limited, a decision was taken to slow the work in that regard. There certainly has been no departure from the manifesto commitment.
Lord German (LD)
In answer to a question—I cannot remember whether it was asked by me or by the noble Lord, Lord Ramsbotham—I was told that all the staff who had been allocated to the royal commission had been reallocated to other duties. Rather than slowing it down, it has been stopped, surely.
Lord Stewart of Dirleton (Con)
The noble Lord makes a useful point. I did not have the fact, to which he referred your Lordships’ Committee, that all staff had been reallocated, but, as I do not have that fact, with the noble Lord’s leave, I will make inquiries and commit myself or my colleagues to write to him.
I commend the noble Lord, Lord Thomas of Gresford, for his commitment in relation to these important and difficult issues, expressed today as they have been on many other occasions in the past, but I offer the Committee the assurance that the Government are already pursuing a range of programmes and reforms in these areas and therefore consider a royal commission unnecessary.
A sentencing White Paper published last year set out the Government’s proposals for reform of the sentencing and release framework. Work is under way on the non-legislative commitments made there, and legislative proposals are being delivered by the body of the Bill. The White Paper was clear that the most serious sexual and violent offenders should serve sentences that reflect the severity of their offending behaviour—that, of course, is nothing more than the object of all sentencing exercises.
In answer to the point raised by the noble Lord, Lord German, about minimum sentences, we consider that there is room for minimum sentences in the overall statutory framework. I note that proposed new subsection (2)(h) acknowledges this, in that it seeks to review
“some mandatory or minimum prison sentences”
but not the overall principle by which Parliament dictates that some sentences will be mandatory. Minimum sentences have a place in the sentencing framework, particularly to deal with persistent behaviour that blights communities. These sentences are not technically mandatory; they are a mandatory consideration that the court must make before passing a sentence, and it is important to note that the court retains the discretion to ensure that individual sentences are commensurate with the seriousness of the offence. Clearly, there are appellate procedures relating to sentences which do not adequately reflect the seriousness of the offence.
However, the White Paper also makes it clear that properly robust, effective and trusted community-based sentencing options are equally as vital to protecting the public and to supporting confidence across the system and are a way of breaking a cycle of reoffending, which often will lie with these community solutions. It sets out a number of community sentencing measures to support rehabilitation, and it is made clear that this was a fundamental aim of its more targeted approach to sentencing, diverting low-level offenders away from criminality, whether this be with treatment for mental health issues, drug or alcohol misuse, more effective use of electronic monitoring, or problem-solving approaches to address offending behaviour. This work will also be supported by our recent reform of probation services, bringing together the management of offenders of all levels of risk into one organisation and delivering a stronger, more stable probation system that will reduce reoffending, support victims of crime and help keep the public safe, while helping offenders make positive changes to their lives.
The royal commission that the amendment sets out would look to address the particular needs of young people and women in custody. I again recognise the noble Lord’s laudable intention with regard to these cohorts of offender, and I commend him for this. I reassure the Committee that we are already taking action to support these vulnerable offender groups.
The youth justice sentencing framework already makes it clear that custody should be used as a last resort for children, and measures in this Bill make more rigorous community sentences available with the intention that those sentencing should have more confidence to give community- rather than custody-based disposals, where appropriate. We are also continuing to reform youth custody so that children are safer and better able to lead positive, constructive lives on their release from the penal system.
The aims of our female offender strategy are to have fewer women coming into the criminal justice system and fewer women in custody, with more female offenders managed in the community and better conditions for those in custody supporting effective rehabilitation. Publication of the strategy was the start of a new and significant programme of work intended to deliver better outcomes for female offenders, and we are making good progress.
The noble Lord’s amendment also seeks to address the overrepresentation of ethnic minorities in the criminal justice system. The Government recognise that this is a deep-rooted issue and that the reasons behind these disparities in the representation of different ethnic groups in prison are complex. We have a broad programme, intended to draw together the wide discourse on disparities, such as the findings of the Lammy review, the Commission on Race and Ethnic Disparities report and the inspectorate’s race-thematic reports. We are clear that we wish address race disparity wherever it appears.
Finally, as to the state of prisons, illustrated by the noble Lord by reference to the Berwyn prison but intended generally, the royal commission proposed would also make recommendations to reduce the prison population, overcrowding and prison violence. In one of the largest prison-build programmes since the Victorian era, we are delivering an additional 20,000 prison places by the middle of this decade through the use of around £4 billion of funding. We will continue to monitor the need for prison places over the coming years to ensure that there is capacity to meet demand.
In relation to the important matter of prison violence, to which the noble Lord made reference, we have increased staffing levels in prisons and are improving how staff identify and manage the risk of violence. We will continue to deliver our £100 million investment in security to reduce crime in prison, seeking to clamp down on the weapons, drugs and phones that fuel prison violence.
In July, we also announced our intention to publish a prisons White Paper. It will set out our ambitions for prisons, considering information learned during the pandemic and setting out a longer-term vision for a prison system that fulfils its objectives of being safe and secure and cutting crime.
I regret that the specific matters of recruitment of prison staff to which the noble Lord referred are outwith my ability to answer at this stage. However, as with other noble Lords, if he will permit, I will have the relevant department write to him on the topic. I hope that the Committee is assured of the Government’s work and commitment on these areas. I therefore urge the noble Lord to withdraw the amendment.
Lord Thomas of Gresford (LD)
My Lords, I first acknowledge my place in devolution history. For the purposes of the footnote in that history, I should say that the place where I gave my evidence was, as I recall, the Grand Hotel on the front in Llandudno.
The noble and learned Lord asks whether they would listen. That is really the purpose of this amendment: a royal commission is and should be listened to. As the noble and learned Lord, Lord Thomas of Cwmgiedd, said, there must be thinking about sentencing—thought must be given to the policy that the Government are pursuing. I listened to the noble and learned Lord, Lord Stewart, and I do not doubt that his Government are pursuing these various courses, policies and whatever he is talking about, but they are failing. He said that they are building capacity to meet demand, but who is demanding? I can tell him that people in north Wales are not demanding to go to the sort of prisons that exist, with their dreadful conditions.
As I understood it, the noble and learned Lord conceded the need for a royal commission to meet the point made by the noble Lord, Lord Berkeley, on his utopian idea that there should be a separate agency for the mentally ill. We can pursue that idea in all sorts of ways.
My noble friend Lord Beith referred to the most recent offence to be created—stealing a cat, for which you get five years. But he got it wrong. It is not stealing, because you do not have to prove an intent permanently to deprive; all you have to do is show TWOC—taking away the cat without the consent of the owner. Do not give Tiddles from next door some milk without telling your neighbour, or you might get five years for it.
Lord Beith (LD)
I remind my noble friend that it is worse than that. All you have to do is induce the animal to accompany you.
Lord Thomas of Gresford (LD)
All those people yearning for a cat now know where they stand with this Government.
I pay tribute to the noble Lord, Lord Ramsbotham. For decades we have listened to him in this House with great attention on all these subjects. He has been a beacon in the attempt to reform prisons, with his great knowledge in having been Chief Inspector of Prisons over that period. I am grateful for his support for this amendment.
My noble friend Lord German pointed to the way in which sentencing has inflated over the years. I know from personal experience—from the other side of the Bar, not in the dock—that that has happened and continues to happen.
The Minister said two contradictory things: that there is no departure from the manifesto commitment for a royal commission and that the Government are already pursuing these ideas, so a royal commission is unnecessary. It is still their manifesto commitment, but they think that it is unnecessary. With these ideas being pursued in some secret corner of Whitehall, are there public hearings? Is there a call for expert evidence? Is there a publication of the results? It is not the same thing as a royal commission at all; it is simply the Government squirrelling away in the background, trying to make the best they can of the resources they will put to it. What we need is this royal commission acting not for any political reason but trying to put a real problem right. I will return to this matter, while asking to withdraw the amendment, when we get to Report.
Lord Coaker
“Fast-track public space protection orders
In the Anti-social Behaviour, Crime and Policing Act 2014, after section 61 (variation and discharge of orders) insert—“61A Fast-track public spaces protection orders (1) A local authority may make a fast-track public spaces protection order where the following conditions are met—(a) the public space to which the order will apply is a school within the local authority area,(b) activities carried on, or likely to be carried on, in the vicinity of the school have had, or are likely to have, a detrimental effect on the quality of life for pupils and staff,(c) the local authority has provided for a five-day consultation period, and consulted—(i) the leadership of the school to which the order will apply,(ii) a chief officer of police of the police area in which the school to which the order will apply is located, and(iii) other such persons as the local authority considers appropriate, and(d) consent for the order to be applied has been granted by—(i) the leadership of the school to which the order will apply,(ii) a chief officer of police of the police area in which the school to which the order will apply is located, and(iii) the leader of the local authority which will make the order.(2) A “fast-track public spaces protection order” is a public spaces protection order which immediately imposes prohibitions or requirements as provided for under section 59.(3) A fast-track public spaces protection order may not have effect for a period of more than 6 months unless extended under this section.(4) Before the time when a fast-track public spaces protection order is due to expire, the local authority that made the order may extend the period for which it has effect if satisfied on reasonable grounds that doing so is necessary to prevent—(a) occurrence or recurrence after that time of the activities identified in the order, or(b) an increase in the frequency or seriousness of those activities after that time.(5) A fast-track public spaces protection order under this section may not be—(a) extended for a period of more than 6 months(b) extended more than once.””Member’s explanatory statement
This probes the need for fast-tracked exclusion zones around schools, in response to anti-vaccination protesters targeting schools, pupils and teachers.
Lord Coaker (Lab)
My Lords, it is a pleasure to move Amendment 292Q in my name. Before I speak to it, I will refer to the other amendments in the group, particularly Amendment 292S in the name of my noble friend Lord Bassam. It deals with an incredibly important issue: he seeks to change the relevant offences for footballing banning orders. I think that we all remember the horror when we witnessed the racism that English football players, in particular, experienced at the end of the Euros. We all condemned it and thought it disgraceful. I say this to my noble friend: I hope that the football world and the public more generally hear about the amendment that he has tabled, because sometimes they think that we do not get the world in which they live. We abhor the racism that our professional footballers, in this instance, face, as well as the racism often experienced in many other spheres of life. It is totally and utterly unacceptable to everybody in this House and beyond. My noble friend’s amendment is very good. I know that it is late in the evening, but it is an important amendment and I wish him well with it.
I wish my noble friend Lord Faulkner well with his Amendment 229U. Including it in this group is an interesting selection—having scrap metal included here makes for an interesting group of amendments. Can the Minister perhaps explain how that happened? I think that we would all be interested in the answer.
To move on, the purpose of Amendment 292Q in my name is to express
“the need for fast-tracked exclusion zones around schools, in response to anti-vaccination protesters targeting schools, pupils and teachers.”
As the Minister will know, this builds on the public space protection orders already legislated for in Section 61 of the Anti-social Behaviour, Crime and Policing Act 2014, so the principle of the need for public space protection orders has already been agreed by the Government. However, as I pointed out with reference to certain figures, this amendment seeks particularly to say, regarding the way in which those orders operate under the law at the moment, that they need to be fast-tracked. I know that the Minister will have read the various parts of the new clause that we are proposing, but it is the fast-tracking that is essential. Whatever the rights and wrong of the existing legislation, it simply cannot be applied with the speed necessary to allow school leadership, the police and local authorities to deal with some of the many problems that they have had.
In moving this amendment, I thank my friend Peter Kyle MP for his work. As the Minister will probably be aware, in Westminster Hall in the last day or two he has highlighted the particular problems that schools in his constituency in Brighton have faced and the need for something to be done about it. In particular, he talked about anti-vax protesters outside schools spreading dangerous information to children—something that we all agree is utterly unacceptable.
I looked for figures, and the ones I managed to find are from the Association of School and College Leaders. I think noble Lords will forgive me for a minute if I read out some of the statistics, because they are pretty shocking; I was shocked by them. According to the ASCL survey, nearly eight in 10 schools had been targeted by anti-vax protestors. I add that most of that was by email, but the fact remains that they have been targeted. Protests outside schools have been reported in Glasgow, Cardiff, London, Telford, Leicester, Manchester and Dorset, so this problem has been experienced right across the country. I ask noble Lords to imagine for a moment the teachers and members of staff at these schools, the parents and grandparents of children attending them, and the children themselves. Some of these children are very young—admittedly, many of them are in secondary school—and are having to deal with some of the misinformation and protests going on in the immediate vicinity of their schools.
The Association of School and College Leaders found that 420 schools had experienced protests. Of 526 responses from schools eligible for the Covid vaccination programme for 12 to 15 year-olds, 13% had reported seeing demonstrators outside their school, in the immediate vicinity. I think there is a point to be made about it being in the immediate vicinity. Eighteen schools said that demonstrators had gained access to the school, which is obviously particularly worrying, and 20 had received communications threatening harm.
What my amendment seeks to do is to say that this is unacceptable. There is legislation available, but it has taken too long for that legislation to be enacted. Even where the police, school leaders and local authorities want to take action to deal with this problem, it is taking far too long, and the children, parents and pupils at those schools are experiencing that difficulty.
I finish by saying that many media outlets have started to pursue this campaign, particularly the Mail, but it is sickening that anti-vax protestors in protests outside schools are spreading dangerous misinformation to children. The uptake of the vaccine among children is far too low, and the Government would wish to accelerate the rollout. Everything must be done to get those who are eligible to be vaccinated as soon as possible—and who knows where that will go in the coming weeks and months as the Government roll out their vaccination and booster programmes, wherever that takes us.
We are facing a public health emergency, and the last thing we need is for our children to be targeted by the irresponsible activities of a few people. I think the Government need to act to fast-track the existing legislation. I beg to move.
Lord Bassam of Brighton (Lab)
My Lords, I thank my noble friend Lord Coaker for congratulating me on my amendment before I have spoken to it. I think that is a bit of a rarity in your Lordships’ House, but I will take it from wherever it comes.
My Amendment 292S covers racism in football and, in particular, online offences. As the explanatory statement to the amendment says:
“This would add online offences, specifically posting racist abuse aimed at football players, to the list of relevant offences for which a football banning order can be made.”
It would add offences under Section 127 of the Communications Act 2003 to Schedule 1 to the Football Spectators Act 1989, which controls banning orders, where these messages are sent to a member of a football team and involve racial hatred.
In speaking to my amendment, I should enter a bit of history. Back in 2000, I was the Home Office Minister, sat where the noble Lord is this evening, and I had to introduce to this House what was effectively emergency legislation covering football-disorder related offences. The banning order regime that it brought in was aimed at dealing with violent and disorderly behaviour and racist activity at football matches. This was on the back of extremely poor behaviour by England football fans at the Euro 2000 competition. Such was the international outrage at the behaviour of our own fans, I believe that if we as a Labour Government had failed to act firmly, England would have been banned from competing in the subsequent World Cup in 2002.
Lord Faulkner of Worcester (Lab)
My Lords, like my noble friend Lord Coaker, I was a little surprised to find my amendment grouped with two very different amendments, both of which I am happy to support. If I were not such a collegiate person, I would probably have asked for my amendment to be degrouped and debated separately, but I suspect that the Government Front Bench and your Lordships would not have regarded that as a particularly friendly gesture at this time of night and at this late stage in the Bill.
I wholeheartedly support my noble friend Lord Bassam’s amendment. He will recall that I was a very new Member of this House in 2000, and, having previously been involved in tackling football violence, I was very pleased to give him every possible support in the measure that he took. His description of the difference it made was absolutely correct.
My amendment is something completely different. It introduces an offence of receiving cash for scrap metal by amending Section 12 of the Scrap Metal Dealers Act 2013 and would effectively close a loophole in that Act. Noble Lords with longer memories will recall that cash was removed as a means of payment with the introduction of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. Its provisions created a criminal offence which prohibited all scrap metal dealers from paying for scrap metal in cash. This was reinforced in 2013, with the introduction of the SMDA—the Scrap Metal Dealers Act—and that was a significant step forward in tackling the scourge of metal crime, which was having a devastating effect on our national infrastructure, heritage, transport operators, public undertakings and communities across the country.
That legislation made it more difficult for criminals to convert stolen metal into cash and removed the opportunity for sections of the scrap metal industry to avoid taxation and launder money. Serious attention was paid to enforcement by the metal theft task force and Operation Tornado, led by the British Transport Police, and in the face of falling commodity prices, levels of offending fell and generally remained fairly low until about 2019. But then values of commodities increased significantly, and enforcement was switched to other priorities.
The National Police Chiefs’ Council metal crime lead is Assistant Chief Constable Charlie Doyle of the BTP. He requested a review of the 2013 SMDA to see how it could be improved to meet the new challenges that did not exist when the Act was written. He set up a group of representatives from all the sectors hit by metal theft and drew up a priority list for updating the legislation. The one suggestion that was universally supported was the introduction of an offence of receiving cash for stolen metal. The introduction of an offence of receiving cash would discourage those who would not normally be involved in any form of criminality, and make it more challenging for those who are.
I am afraid that metal crime is now on the rise again. It is being fuelled by ever increasing commodity prices: copper is at an all-time high, and the projections are that it will continue to rise over the coming years as demand increases. Catalytic converter theft has also emerged as a growing problem, with rhodium rising sixfold in value during the last couple of years. We know that cash continues to be used within sections of the industry and, because of reduced enforcement activity, its use has increased in line with these rises in commodity prices.
As with football violence, referred to by my noble friend Lord Bassam, the emergence of social media marketplaces and online platforms has given rise to an explosion of criminal activity linked to metal crime. A quick search on these platforms reveals page after page of adverts offering to purchase metal, catalytic converters and other items linked to metal crime for cash, with effectively no questions asked.
This amendment would allow a greater degree of leverage with the online platforms to have listings and accounts removed because they would be operating in contravention of the law. The money launderers would find it much more difficult to convert their cash into legitimate assets and it would add an additional layer of difficulty for those who continue to deal in cash.
The Minister, who I am pleased to see back in her place on the Front Bench, will recall that I raised the issue of metal theft in an Oral Question which she answered on 14 October. She was good enough to follow that up with a meeting on 9 November, also attended by the right reverend Prelate the Bishop of Bristol and the noble Lord, Lord Birt, who I am also delighted to see in his place. I thank him for signing my amendment this evening.
Last Thursday, I attended a demonstration in Worcestershire, by the West Mercia Police, of a number of sophisticated initiatives to track stolen items as varied as farm trailers, four-wheel drive tractors and bicycles. I discussed this amendment with the new chief constable, Pippa Mills, who wishes me to tell your Lordships that she supports a change in legislation that acts as a further deterrent to metal thieves or dealers in stolen metal and enables the prosecution of those involved in metal theft.
Lord Faulkner of Worcester (Lab)
In view of the very positive nature of the Minister’s comments at our meeting a couple of weeks ago, I hope her noble friend can give some hope that the law will be changed in line with the terms of my amendment.
Lord Birt (CB)
My Lords, I shall speak briefly in support of the amendment tabled by the noble Lord, Lord Faulkner. He and I sit together on the APPG. This is a highly organised crime committed by gangs and it has a devastating impact not only on our national infrastructure but on many—primarily rural—communities. In the year to March 2020, 36,000 metal thefts were recorded by the police. Just last week the Countryside Alliance, as a result of FoI requests from police forces, identified that 1,500 lead and metal thefts since 2017 were from churches. Theft of lead from church roofs can have a devastating impact on local communities. I have had direct experience of that, which is why I joined the noble Lord’s group.
As the noble Lord said, adverts offering “cash for scrap” are now widespread. The 2013 Act made it illegal to pay cash for scrap metal but not to receive it. This amendment closes that glaring loophole. I very much hope that the Government will support it.
Baroness Fox of Buckley (Non-Afl)
My Lords, I apologise for taking the instruction to hurry up rather too literally.
Despite being an anti-racist and a football fan, I have serious free speech concerns about the amendment tabled by the noble Lord, Lord Balsam—
Baroness Fox of Buckley (Non-Afl)
I am making too many mistakes and I am sorry. As the noble Lord, Lord Bassam, suggested, online abuse will be thoroughly debated in the online safety Bill, when I will lay out my concerns and listen to further discussion on this.
For now, I want to focus on Amendment 292Q, tabled by the noble Lord, Lord Coaker, which I am rather concerned about. Civil libertarians have warned us recently about public space protection orders increasingly being used to carve out more and more public space away from the public, effectively privatising it and excluding citizens from the public square. Therefore, I am concerned about an amendment that tries to fast-track these very orders. I was struck by the explanatory statement from the noble Lord, Lord Coaker, that the amendment is aimed at anti-vaccination protestors who target schools, pupils and teachers.
I, too, worry about hardcore anti-vax sentiment in society. However, in the interests of accuracy and not to allow misinformation to flourish, some protests at schools have comprised fully vaccinated parents who were specifically worried about the use of the Covid vaccine on children, a sentiment echoed by some in the JCVI at least. It would be wrong to characterise these protests as anti-vaxxers per se. Also, while the amendment was discussed in relation to anti-vaxxers, it could be used against any protest. Would other protests be targeted by the amendment?
I am rather worried about education authorities having to make politically contentious decisions about who is allowed at the school gates. I am thinking of the instances in the build-up to COP 26 when there was a lot of leafleting of schoolchildren by environmental activists advocating eco school strikes. Personally, I have qualms about encouraging political truancy but, none the less, I support their right to leaflet, and I know that many young people appreciated talking to those campaigners.
Baroness Chakrabarti (Lab)
In response to that and in support of the broad thrust of my noble friend Lord Coaker’s probing amendment—I think it is fair to call it that—I have long had concerns about public space protection orders in general, and I defer to no one as a civil libertarian, but there is a great tradition in human rights thinking for child protection. So my instinctive response to the noble Baroness is that it is not because the protesters are anti-vaxxers and I disagree with them, it is that it is at school. They are young and potentially vulnerable people, and it does not seem proportionate or fair to me that we as grown-up legislators in this place take greater protection for our immediate vicinity than we give to even primary school children up and down the country, regardless of the nature of the protest.
The point about free speech and freedom to protest being a two-way street is incredibly important, and I suspect that we will return to it in a forthcoming group, but on this issue, for me, at least, the principle is not that I think that this is dangerous speech or disinformation—it is out there anyway online, et cetera—it is that no young person, particularly a very young person, should be subject to an aggressive demonstration, whether or not it is one that I would approve of, on their way to or from school.
Some of us remember the Holy Cross school dispute in Northern Ireland some years ago. The reason why Her Majesty’s Government had to intervene with soldiers, and so on—it was tragic—was not to take sides in the dispute, it was to protect young children, who do not have the same robustness as an older person and should not feel scared on their way to or back from school. I would take that view whether or not the protest by adults from outside the school community was one with which I agreed—about the climate catastrophe or whatever else it happened to be.
It is so important at this stage in the evening, before we get to the next group, to introduce the concept of the two-way street in relation to free speech. So I support my noble friend Lord Coaker in the thrust of his amendment, about schools being special—particularly primary schools, but possibly also secondary schools; that will be up for more detailed discussion—and needing some level of protection from whatever kind of protest by people from outside the school community.
I add that caveat because I think children should be able to protest themselves if they want to. I would not want inadvertently to do anything that caused criminal sanction for children and young people who chose to launch their own protest about whatever it was.
I see this very much as a probing amendment, but the status quo, whereby we have these protections as legislators in the vicinity around the Palace of Westminster —and companies have greater protections from pickets than primary school children have from aggressive demonstrations from whatever quarter—does not seem right. Human rights principles are: always protect children first, and any interference then has to be necessary and proportionate. But equal treatment and the two-way street, particularly in relation to freedom of speech and the right to protest, are crucial.
Lord Paddick (LD)
My Lords, I thank the noble Lord, Lord Coaker, who moved the amendment, which is about the need for fast-track exclusion zones around schools to prevent, in particular, anti-vaccination protests in the vicinity of schools.
If she will allow me, I said to the noble Baroness, Lady Fox of Buckley, I think after we finished on Monday night, how important it is to have her voice in the Chamber to test these sorts of issues. All I would say to her on this occasion is that the amendment talks about “activities carried on” that have
“a detrimental effect on the quality of life for pupils and staff”.
So it is not simply a question of banning any demonstration in the vicinity of a school. It would have to have that detrimental effect. I understand that that is a subjective judgment, but at least there is something there, rather than just a blanket ban on anybody protesting about anything at all.
Noble Lords will not need me to tell them that this is not about protecting children, perhaps older school-age children, from not being vaccinated. It is about protecting the whole community because, as we know from previous times in the pandemic, there is a risk of schoolchildren infecting vulnerable parents and grandparents. We also know from the health data that being double-vaccinated does not necessarily protect you completely from the worst effects of Covid, and in particular long Covid, although it gives you much better protection. On the news yesterday, an expert was talking about the fact that, although Covid has mild effects on children, it is not known how much they could be affected by long Covid. So this is not simply about a demonstration outside a school; this is a wider public health issue. However, I understand that, although that is what the noble Lord, Lord Coaker, is aiming at here, the amendment, if passed, would have wider implications than just for anti-vaccination protests.
Amendment 292S, from the noble Lord, Lord Bassam of Brighton, relates to online racism against footballers and enabling football banning orders to be made against those guilty of online racial hatred directed at a member of a football team. He is probably the best-qualified noble Lord to talk on this issue, bearing in mind his experience on the Front Bench in the Home Office under the Labour Government who introduced the banning orders in the first place, and the beneficial effect that they have had in rooting out racism in football. It is a serious problem.
Talking about a hierarchy of diversity is fraught with danger. But, as a gay man, I have always considered racism to be a far more serious issue than, say, homophobia. Some people might argue against this; but I could conceal my sexuality if people from a different planet did not know who I was or what my background was. But you cannot hide your colour; you cannot avoid racism in the way that some gay people, at least, could avoid homophobia; it would not be obvious to people.
I do not know of any professional footballers who have been open about their sexuality, because of their concerns about being open about it. Hopefully, as years go by and social attitudes change, some professional footballers will be open about their sexuality. They should be able to benefit from similar protection, so this legislation should not exclusively provide protection for racism, which is the major issue at the moment, while professional footballers’ sexuality is not. This is a good idea, and hopefully the Government will discuss how this can be taken forward.
This group is diverse—not in the sense of “diversity,” but in terms of the different subjects covered. Amendment 292U, in the name of the noble Lord, Lord Faulkner of Worcester, highlights a loophole in the law. My understanding—although I am not sure as there was no explanatory note—is that it is unlawful for scrap metal dealers to pay cash for scrap metal, but it is not against the law to sell it on for cash. That is the loophole. A scrap metal dealer who surreptitiously acquires stolen metal could sell it on for cash, and the noble Lord’s amendment would disallow that. The payment would have to be made by a traceable means, thus clamping down in the other side of the transaction, which makes sense.
We have debated the issue of scrap metal and the impact on the railway system and churches, for example, and the problem with catalytic converters. As shortages of resources are exacerbated by countries coming out of lockdown and the demand for raw materials grows, scrap metal will become an increasingly important issue. Therefore, closing this loophole regarding the other side of the transaction seems sensible, and we support it.
Lord Sharpe of Epsom (Con)
My Lords, I thank noble Lords for taking part in this debate. The noble Lord, Lord Coaker asked if I could shed any light on the grouping methodology. No, I cannot, but I salute the collegiate nature of the noble Lord, Lord Faulkner.
I am grateful to the noble Lord, Lord Coaker, for explaining what he describes as a probing amendment to tackle the issue of disruptive anti-vaccination protests outside schools. Like him, I stand by people’s right to protest, but as I am sure we will debate when we get to Part 3 of the Bill, this is not an unqualified right, and there is a line to be drawn. When crossed, it is right that the police or, in this case, local authorities should be able to take appropriate and proportionate action to protect schoolchildren and their parents, as well as teachers and other school staff.
The police and local authorities have a range of powers which can be used to manage protest activity affecting schools. This includes powers in the Public Order Act 1986 to manage protests, measures in the Education Act 1996 to prevent nuisance and disturbances on school premises, and measures in the Anti-social Behaviour, Crime and Policing Act 2014—as noted by the noble Lord, Lord Coaker—targeted at anti-social behaviour. The police also have their common law powers to prevent a breach of the peace.
Despite prominent media reporting, the scale of the issue is quite small. I concur with the noble Lord’s statistics, which I have seen. The issue has affected 68 schools in the various geographies he talked about, and the number of protesters ranges from one to about 20. But the statistics do not add any colour to the human experience people are suffering, so I take the noble Lord’s point.
These people typically hand out leaflets and display placards, with some serving “liability notices” or “cease and desist” letters to head teachers. The Government continue to closely monitor anti-vaccination activity occurring at schools. There is close working between the vaccine programme, the police, local authorities and other partners to gather intelligence and provide proportionate mitigations to keep people safe.
Lord Bassam of Brighton (Lab)
Before the noble Lord moves on to the next amendment, thinking back to 2000, the football riots took place in Charleroi and elsewhere, involving some 600 or 700 England fans, and within two weeks the Labour Government swiftly moved to introduce legislation that has been effective for the last 21 years. I do not quite understand how a Government with a majority of this size have failed to act on the promise made by the Prime Minister on 14 July. It is a pretty simple piece of legislation, as the noble Lord gave voice to in his response. Why have they not been able to find the opportunity to put that promise, made very clearly in the House of Commons, into effect? They could do so in this legislation now. We will help the Government to do it by helping them to perfect the amendment and get it right. This is a serious matter. The noble Lord, Lord Paddick, made that point very well. It is time that the Government fulfil some of the promises that they make. This is a relatively simple one to do.
Lord Sharpe of Epsom (Con)
I reiterate that the Government agree with the noble Lord. I can only repeat what I said earlier: we are working at pace and I commit to updating him before we get to Report. I hope that there will be a helpful outcome.
Finally, the noble Lord, Lord Faulkner, has Amendment 292U on metal theft. This is an important subject and one that my noble friend Lady Williams recently discussed with the noble Lord, as he acknowledged. I also thank the noble Lord, Lord Birt, for his contribution and his examples. I shall say a bit more about that meeting in a moment.
The Government recognise the impact of metal theft on infrastructure companies, including theft of cable from railway projects, construction companies and solar farms, as well as from heritage and community assets such as churches. The Scrap Metal Dealers Act 2013 was introduced to tackle the metal theft that was affecting many people’s day-to-day lives at that time. Under Section 12 of the 2013 Act, it is already an offence for a scrap metal dealer to pay for scrap metal using cash. The 2013 Act also places requirements on scrap metal dealers to hold a licence, verify the identity of those supplying scrap metal and retain records of metal bought and sold. These elements, together with powers for the police and local authorities to enter and inspect the premises of scrap metal dealers, make the Act an effective tool to tackle the sale of stolen metal.
The noble Lord’s amendment seeks to extend the provisions in the 2013 Act to make it an offence for anyone to sell scrap metal for cash. Although I understand the intention behind this amendment and the desire to have additional powers to tackle those who see metal theft as a profitable crime, the Government do not consider this amendment to be needed. The amendment would broaden the remit of the 2013 Act beyond the responsibilities placed on scrap metal dealers. Should an offender encourage, assist or incite the cash purchase of stolen metal by a scrap metal dealer, they could be found guilty of an inchoate offence under the Serious Crime Act 2007.
I will set this in a broader context. The noble Lord and my noble friend Lady Williams had a very productive meeting, as he acknowledged, on 9 November to discuss this important subject. They were joined by members of the All-Party Parliamentary Group on Metal, Stone and Heritage Crime: the noble Lord, Lord Birt, the right reverend Prelate the Bishop of Bristol and Andrew Selous MP, together with a representative from the British Metals Recycling Association. I understand that it was a constructive discussion and I hope that the noble Lord was left in no doubt as to the seriousness with which the Government view this crime.
At that meeting it was agreed that enforcement of the 2013 Act is key to tackling metal theft. The Government are committed to supporting partners to increase the enforcement of the Act. The Home Office provided £177,000 of seed-corn funding in the last financial year to establish the National Infrastructure Crime Reduction Partnership. The partnership is spearheaded by the British Transport Police and was set up to better co-ordinate police forces and other agencies to tackle metal theft from rail, telecoms and utilities companies.
At the meeting on 9 November, concerns were also raised about the disparity between metal theft figures published by the Office for National Statistics and figures held on the police national computer. We are looking into this and my noble friend Lady Williams—who, by the way, expressed to me that she would have liked to answer the noble Lord’s amendment—will write to the noble Lord when we have clarification on this. However, let me be clear: no one is trying to play down the problem or argue that statistics somehow show things are not as bad as some suggest.
The all-party parliamentary group agreed to provide the Government with a paper setting out its recommendations for tackling metal theft. My noble friend looks forward to receiving this and we will give it careful consideration. The right reverend Prelate and Andrew Selous, who is a Church Commissioner, agreed to see what more could be done to gather data and intelligence about thefts from churches, particularly of lead roofs. That is something that I welcome. I am sure that your Lordships all share my concern about these attacks on our heritage and recognise the particular vulnerability of churches, many of which are in isolated and remote areas. We look forward to continuing to work with the noble Lord and others who have contributed to the work of this all-party group. I hope that he is in no doubt of our commitment in this respect.
In the light of my comments and the undertaking to give sympathetic further consideration to Amendment 292S, I invite the noble Lord, Lord Coaker, to withdraw his amendment.
Lord Coaker (Lab)
My Lords, in thanking the Minister for his reply, I will make a couple of comments about the two amendments not in my name. First, I think that we all heard clearly, in answer to my noble friend Lord Bassam and his amendment, that the Government agree with him. The question that my noble friend then posed was: when will the Government act to implement the amendment that he put forward and that the Government say they agree with? That is the key question.
I take the Minister’s point that he will do something before Report—unless I have misrepresented him—or consider it before Report. That is where we start to get into difficulty, because he has moved from doing something to considering it. If the Minister agrees with it, something needs to be done. We have gone past considering it; it is time for action. That is what my noble friend Lord Bassam was saying and I very much agree with him.
I am sure that my noble friend Lord Faulkner will have heard the remarks about dealing with scrap metal, which—irrespective of whether it should have been in this group—is an issue. I think that he will be pleased that the Minister sought to answer those points.
With respect to my amendment, which of course I will withdraw—and I will come to a couple of the points made by other noble Lords—I think that schools will be interested that the Minister says powers are already available to them, notwithstanding the way in which he moved on to powers that we are yet to discuss. Of course, if everyone agrees with them, it will all be solved—that is for another debate later on. The Minister specifically said that powers are already available to schools, should they wish to deal with this issue. That is not how they feel. They feel as though it takes an inordinate amount of time to get anything in place. That is the whole point of what this amendment seeks to do. The Government need to consider how they reassure schools that those powers are available to them to deal quickly with problems that occur.
I thank the noble Lord, Lord Paddick, and my noble friend Lady Chakrabarti for their support for the amendment, in the sense of their recognition that it is a two-way street. I accept that it is not unbridled, unqualified support, but it is important.
“The right to protest
(1) The Public Order Act 1986 Part II (Processions and Assemblies) is amended as follows.(2) Before section 11 insert—The right to protest(1) Everyone has the right to engage in peaceful protest, both alone and with others.(2) Public authorities have a duty to—(a) respect the right to protest;(b) protect the right to protest; and(c) facilitate the right to protest.(3) A public authority may only interfere with the right to protest, including by placing restrictions upon its exercise, when it is necessary and proportionate to do so to—(a) protect national security or public safety,(b) prevent disorder or crime, or(c) protect public health, or the rights and freedoms of others.(4) For the purposes of this section “public authority” has the same meaning as in section 6 of the Human Rights Act 1998 (acts of public authorities).””Member’s explanatory statement
This amendment would introduce an express statutory right to protest, imposing both negative and positive obligations on public authorities while recognising that the right to protest may need to be limited to protect other legitimate public interests.
Lord Dubs (Lab)
My Lords, I am privileged to be a member of the Joint Committee on Human Rights, and these amendments—there are at least seven in my name—are based on its reports, so the Government have been fully warned of what we are going to say, because they have had those reports before them. This group of amendments is probably the substance of a whole Bill in themselves and it is very difficult to keep one’s remarks short. I should just say that I picked up a message about us on my phone, saying “Everyone looks knackered”. I just pass on that comment from the wider public.
Before I get to the substance of the amendment, I should make it clear that I have been on a large number of demos and protests over the years, even against Labour Governments. The most recent ones have been on child refugees in Parliament Square, and outside the Foreign Office in support of Richard Ratcliffe, who was on a hunger strike to try to get his wife out of imprisonment in Iran. I should add that, when I was a Minister in Northern Ireland, there were demos against me for what I was doing or failing to do. So I have had some experience of demos on all sides. I do not know whether that gives me much authority to speak, but at least I have had the experience. When I talk about not making noise on demos, I speak from the experience of having made a lot of noise on demos, because it is the thing that keeps one going and that attracts attention.
Let me get to the substance of this. I repeat that I am speaking to at least seven amendments, but I will try to be as brief as possible. The first is to do with the trigger for imposing conditions on processions and assemblies in England and Wales. A lot of what I want to say is about the trigger and the adverse effect that it will have. Articles 10 and 11 of the ECHR guarantee the right to peaceful protest, and any interference with non-violent protest is therefore an interference with those convention rights. That is absolutely clear and it is why the Joint Committee has taken such a firm stand.
Any restriction on the right to protest that targets noise is a particular concern, as it strikes at the heart of why people gather to protest. Larger and well-supported demos are much more likely to be louder. Therefore, restrictions on noise could disproportionately impact demonstrations that have the greatest public backing, which would be a perverse outcome.
The Joint Committee on Human Rights heard from witnesses who suggested that restrictions on protests based on the noise they produce pose
“an existential threat to the right to protest.”
One witness told us that protests
“lack value and are pointless if they cannot be heard and seen”.
I speak from experience. Perhaps not the demo outside the Foreign Office recently in support of Richard Ratcliffe’s hunger strike, but every other demo that I have been on has been about noise and having our voice heard, whether it is has been on marches or in Parliament Square when we have talked about child refugees. This is absolutely fundamental.
The second aspect is that the new noise trigger proposed in the Bill would allow for restrictions on peaceful protest to prevent the intimidation or harassment of “persons in the vicinity” suffering
“serious unease, alarm or distress”.
That is significant. Preventing intimidation and harassment, which are already criminal offences, would fall within the legitimate aim of preventing crime and disorder. However, the inference with Articles 10 and 11 of the ECHR, which refer to people being involved in making noise that causes alarm or distress—particularly noise that causes “serious unease”—can reasonably be justified only on the basis of
“the protection of the rights and freedoms of others.”
The proposed new noise trigger also puts considerable responsibility on the police officers responsible for the decision whether to impose conditions. The conditions on public processions and assemblies represent a restriction on the right to protest that is not necessary in a democratic society. The amendment would remove the proposed new trigger.
I also refer to the effect of the trigger on a protest by a single person, as is specifically itemised in the Bill. Clause 61 extends the proposed new trigger based on noise generated by protest to cover protest by a single person, in addition to assemblies of two or more or processions. What can a single person do to disrupt good order? A single person would still be exercising their right to free expression under Article 10 of the ECHR. For the reasons given above in respect of Clauses 55 and 56, the Joint Committee on Human Rights opposes the introduction of the new trigger as an unjustified interference with this right. We also noted in our report that
“a single protester has less ability to produce seriously disruptive noise than a large assembly or procession.”
That is pretty evident, is it not? It should be added that existing criminal offences dealing with whether the noise crosses the line and becomes harassment or a threat to public order are available and easy to use against a single protester.
I turn to the question of awareness about the conditions that may be imposed and how they will impact on demonstrators. The Bill seeks to prevent demonstrators who breach conditions imposed on processions and assemblies avoiding prosecution on the basis that they did not know that such conditions were in place. However, it goes too far, sweeping up those who breach conditions of which they were genuinely and innocently unaware.
Amendments 309 and 312 would prevent this, ensuring that only those who know that conditions have been imposed on a demonstration or avoid gaining knowledge of the conditions deliberately and recklessly can be prosecuted for breaching them. A breach of conditions imposed by the police may justify a prosecution, but the potential penalty for a non-violent offence of this kind must not be disproportionate. An overly severe penalty may have a chilling effect on those considering exercising their right to protest. For this reason, Amendments 311 and 312 would remove the increased sentences proposed in the Bill, which seems a moderate suggestion indeed.
I will move on to the proposal to penalise people who “intentionally or recklessly” cause “public nuisance”. The Bill introduces a new statutory offence of
“intentionally or recklessly causing public nuisance”,
which was previously an offence under common law. The committee reported:
“We are seriously concerned that, as currently drafted, the public nuisance offence may be used to criminalise non-violent protest that would be protected by Articles 10 and 11 of the ECHR. The offence would catch not only individuals who cause ‘serious annoyance’ or ‘serious inconvenience’ to the public but also those who create a risk of causing serious annoyance or serious inconvenience.”
It went on:
“It is not entirely clear what behaviour the Government and police are trying to tackle with the new offence”
that would not already be tackled by existing legislation. That runs through a lot of the difficulties we have had: the existing legislation is there, but the Government simply want to take it further.
The report says the new offence runs the risk of being
“used as a catch-all offence because of the wide range of conduct it covers.”
The JCHR has
“serious concerns about the new offence being included in Part 3 of the PCSC Bill, especially given the broad drafting which would catch non-violent protest. Protests are by their nature liable to cause serious annoyance and inconvenience and criminalising such behaviour may dissuade individuals from participating in peaceful protest.”
A protest must make an impact; it must be heard and seen, otherwise what is the point of a protest? Yet the Government seek to penalise what is a legitimate democratic activity. Under the current law, as I have said, there are a plethora of offences already available to the police.
The report says:
“The essence of the public nuisance offence is causing harm to the public or a section of the public. However, as drafted, the offence is confusing and could be read as meaning the offence is committed where serious harm is caused to one person rather than the public or a section of the public. This does not achieve clarity for either the police or protesters. The current drafting also risks the offence being broader than the common law offence it replaces.”
I am going to move on quickly. There needs to be a balance of rights between protesters and the public. I think that is accepted in the European Convention on Human Rights but is not something that runs through the drafting of the Bill. The report says:
“Current rhetoric around protest … focuses on discussions about ‘balancing’ the rights of protesters against the rights of members of the public … Whilst protests may cause inconvenience”—
and I fully accept that they may—
“they are also fundamental in a democratic society to facilitate debate and discussions on contentious issues and this is of value to the public generally … Whilst the ECHR provides that protests can be limited in order to protect the rights of others, any restriction of the right is only lawful if it is both proportionate and necessary.”
It is my contention that, throughout the Bill, the measures are not proportionate and many of them are not necessary.
Public authorities, including the police, are under a negative obligation not to interfere with the right to protest lawfully and a positive obligation to facilitate peaceful protest. This amendment would introduce a specific statutory protection for the right to protest and sets out the negative and positive obligations of the state in relation to protest. I beg to move the amendment—and I hope we are not all looking knackered.
Lord Campbell-Savours (Lab) [V]
My Lords, I am not a lawyer, and I have not been briefed to speak; I am only following my instinct. I have not intervened earlier in these proceedings because it is difficult remotely to pick up on the cut and thrust of a debate on issues that command strongly held views. This debate will inevitably draw on strong feelings this evening.
I will concentrate my remarks on one amendment, Amendment 293, moved by my noble friend Lord Dubs, who has spent a lifetime promoting issues of freedom and liberty. The amendment as currently worded, along with associated amendments, is an attempt to weaken provisions in parts of the Public Order Act 1986. My noble friend is well aware of my reservations, in that while Amendment 293 would further restrict a public authority’s power to limit the right to protest, it would still leave the door open for the prevention in advance of disorder, as referred to in subsection (3)(b) in the proposed new clause in the amendment. As I understand it, both would remain in breach, chargeable under highways and public order legislation.
It is at that point that I part company on the amendments. For me, liberty and freedom in this context must stand at the heart of the law. I am talking of the freedom to demonstrate, to object and to peacefully oppose—indeed, simply to say, “No, not in my name”. Under the provisions proposed for the Bill, they are all to be further subject to the approval of a statutory authority in the form of a mere mortal police officer acting on behalf of the state. As I understand it, it is a police officer who would be deciding on whether a liberty, in the form of a demonstration, could be deemed to be excessively disruptive potentially—yes, potentially. I can never accept that.
Lord Beith (LD)
My Lords, I will speak to two amendments in my name. By way of preface, I must say how much I agree with the noble Lord, Lord Dubs, in his masterful presentation of the case against what the Government are doing, and of the observations of the Joint Committee on Human Rights.
The noble Lord mentioned proportionality. Proportionality was central to the case of Ziegler and others in the Supreme Court back in July. I thought the wording it used, as reported by the Times, summed up my feeling in a way:
“Peaceful protest was capable of constituting a ‘lawful excuse’ for deliberate physical obstruction of the highway … There had to be an evaluation on the facts of each case to determine whether any restrictions on the protesters’ rights to freedom of expression and freedom of peaceful association was proportionate. There should be a certain degree of tolerance to disruption to ordinary life caused by the exercise of those freedoms.”
I do not think the Government like the concept of proportionality, and the whole direction of these clauses—and those in the subsequent group, more recently tabled —illustrates that.
The amendments I have tabled are probing one feature, which is the word “unease”. They are Amendments 297 and 307. In the new subsection that the Government propose, which is about
“the noise generated by persons taking part in”
an assembly, there is reference to the impact it may have on “persons in the vicinity” of that assembly
“if … it may result in the intimidation or harassment of persons of reasonable firmness with the characteristics of persons likely to be in the vicinity”.
A court is going to have some fun working out what the characteristics are of people likely to be in the vicinity, but that is another part of the story.
The subsection also applies if
“it may cause such persons to suffer serious unease”.
That is a very low bar indeed. It made me think of the Governor of the Bank of England speaking to the Treasury Committee a couple of weeks ago. He said that he was “very uneasy” about the inflation situation¸ but not so uneasy that he sought to raise the interest rates. In his view of vocabulary, “uneasy” is clearly nowhere near the top at all.
It is the purpose of numerous protests to make people uneasy; I have been made uneasy by both the intensity and subject matter of protests. The protests that went on in Glasgow were designed to make people feel uneasy about what is happening to the planet, and to do so in ways which might even more directly make them feel uneasy, by noticing that such a large number of people are involved and making such a lot of noise.
However, it has always been so. John Wesley and his followers made people uneasy, by preaching loudly out in the open air and singing loud hymns. It was to make them uneasy about the life they were leading and trying to cause them to change their way of life. I have been confronted in my time by all sorts of demonstrations and protestors, putting forward views which I sometimes agreed with and sometimes did not. But being even seriously uneasy does not seem any reasonable basis on which to restrict the rights of protest. I simply cannot conceive that the Government have any other intention than to make protest much more difficult, even in circumstances which most people, on reflection, would accept were reasonable.
Baroness Jones of Moulsecoomb (GP)
My Lords, we have had some powerful speeches already and it is a real pleasure to hear them. This was supposed to be the worst bit of the Bill. It is a terrible Bill but this was meant to be the absolute pits. However, the Government have made things worse by bringing in the latest amendments, so this is not the worst bit any more; it is just the next worst bit.
I have signed about a dozen amendments in this group. I could have signed them all and definitely support them all. Many of them are good, and worth raising, but the only real way forward is to remove these clauses altogether. I hope that opposition parties can join together to do that on Report, because our civil liberties and human rights are far too important to be negated in this way.
Amendment 293 from the noble Lord, Lord Dubs, sets the scene perfectly because it stresses the importance of the right to protest in a free country. We always look down our noses at all these illiberal countries abroad who suppress their citizens—their human rights and liberty to protest—but this Government are trying to do exactly the same. Any restriction on the right to protest has to be really carefully considered, not rushed in with 18 pages of amendments at the last minute and without any proper discussion.
There is a balancing act between the rights of individuals and those of wider society. The balancing act already happens because there is a great number of restrictions on protest in this country. The police have many powers, which they use, and many tactics—some of which go too far, such as kettling. The Government want to ramp up these restrictions even more: being noisy or annoying could be banned. Some Peers could be banned because they are annoying. We could end up with the only protests, as has been said, being the ones that are so quiet and uneventful that they achieve absolutely nothing.
This is deep, dark politics. This is about a Conservative Government wanting to rewrite completely how we operate within society, as individuals against the state. I think they are planning, or hoping, to remain the dominant political party for generations to come. That is what could happen through these terrible amendments.
If you make protests impossible to perform legally, criminalise non-violent direct action, abolish or restrict the ability of citizens to challenge the Government in court through judicial reviews, turn people against lawyers, gerrymander the election boundaries and dish out cash in the way that looks best for Conservative MPs, that is deep, dark politics. Many of us here are not particularly political and perhaps do not see the dangers inherent in what you, the Government, are doing. It all seems like a calculated ploy to turn all the cards in favour of an unaccountable Government that cannot be challenged in the courts, at the ballot box or on the streets. We all have to unite against this and deleting these clauses from the Bill is the beginning of that fight.
I have a tiny quibble on the issue that noble Peers have mentioned about the survival of the planet. The chances are that the planet will survive. What we are doing in this climate crisis is destroying the little bit of ecosphere that supports human life, so that is what we have to think about. It is not about survival of the planet but about survival of people.
Baroness Stowell of Beeston (Con)
My Lords, I may be able to tone down some of the hyperbole. Let’s go back to first principles on what this Bill is about. I think we are all united in this country in support of our right to protest. That is a very precious right that we all feel strongly about. Nobody wants to put that at risk and nobody is trying to put that at risk.
In a world which is becoming more divided, with people having very strong, trenchant positions in the views they adopt, we are trying to ensure that it is possible for people to express their views in a way which does not undermine some of the other social norms in our society which allow us to disagree but be united at the same time. Over the last few years, we have seen a new fashion of protest which is carried out in a way that is unacceptable to other people in its disruption; whether they agree with the matter in question or not is almost irrelevant. We need to try—I believe this is what the Government are trying to do through this Bill—to make it possible for protests to continue in a way which does not divide society further.
I do not support the amendments, but I agree with one point, made earlier by the noble Lord, Lord Dubs. We have to be very careful on the issue of noise. It is impossible for people to protest silently and I will look to the Government for reassurance on that matter when the Minister comes to respond.
Let’s not forget what we are trying to do here: allow people to disagree in a way which does not divide us further. I worry that some of these amendments will perpetuate a division which we do not want to see happen in this country.
Viscount Colville of Culross (CB)
I rise to support Amendments 294 and 298 because I believe that Clauses 55 and 56, which introduce noise triggers for public demonstrations and assemblies, are fundamentally undemocratic and will have a detrimental effect on free speech in England and Wales. I apologise that I was not able to speak at Second Reading, but I was unable to attend the House on that day.
I have always thought of the Conservative Party as supporters of free speech, so I am disappointed that this Government seek to take that right away through these clauses. I repeat the quote from Jules Carey that the noble Lord, Lord Dubs, gave that this is
“an existential threat to the right to protest.”
Of course, these clauses are a response to the outrage at BLM, Extinction Rebellion and Insulate Britain protests which have been incredibly disruptive to the lives of thousands of people across the country and especially in London. But the blocking of highways was always illegal under the Highways Act and the existing triggers in the Public Order Act 1986 can be harnessed by the police to control the other protests. The House will debate the new draconian measures the Government plan to introduce later which, as was mentioned at the beginning of today’s Committee debate, seems to be a poor way to treat the House.
The introduction of noise as a criterion for the police limiting or stopping protests and assemblies seems to me an unnecessary and damaging extension of police powers. The factsheet for the Bill promises that the police will use the noise trigger only
“where it is deemed necessary and proportionate.”
But “proportionate” must be subjective as a threshold for the trigger.
Baroness Chakrabarti (Lab)
My Lords, I have a duty, first, and then, I hope, the privilege to make some comments of my own. My noble friend Lord Hendy is unable to be here to speak to his Amendment 304, so, if the Committee does not mind, I will read his remarks in support of that before I make a few remarks of my own on this group.
He says the following: he is grateful to my noble friend Lord Hain for adding his name to the amendment and to me for reading these remarks. The Delegated Powers and Regulatory Reform Committee, under the excellent chairmanship of the noble Lord, Lord Blencathra, on which he has the privilege to serve, criticised in its report of 13 September Clauses 55, 56 and 61 of the Bill for the surrender of the definition of certain phrases to delegated legislation, thus bypassing the full scrutiny of primary legislation.
At Second Reading, the noble Lord, Lord Blencathra, emphasised that his committee took no position on the substantive provisions but recognised that they are contentious and should therefore be in the Bill. My noble friend Lord Hendy goes on to say that he and many other noble Lords supported that argument, but the Government have not taken heed of this criticism, and the power remains to define by secondary legislation some very contentious phrases in these sections.
I continue to support the committee and the amendments brought by noble Lords—particularly that of the noble and learned Lord, Lord Judge—to obviate this procedural but fundamental flaw, but Amendment 304 goes beyond the procedural to the substance of Clause 56. That clause will be the basis for yet further restriction on the right to picket in an industrial dispute. That is objectionable because the right to picket, still extant in UK law, is already constrained in law in multiple ways which go far beyond those imposed on other kinds of public assembly. Further restrictions on the right are simply not warranted. It would be tedious to review the law on picketing today. Suffice to say, it is already highly regulated by statute, case law and its own code of practice.
By the Conspiracy, and Protection of Property Act 1875, 146 years ago, it ceased to be a criminal offence to attend
“at or near the house or place where a person resides, or works, or carries on business, or happens to be, or the approach to such house or place, in order merely to obtain or communicate information”,
although the use of violence, intimidation, damage to property, persistent following, watching and besetting were all made statutory offences. From this beginning, the right to picket was established. It has been further restricted many times since, including by the outlawing of picketing of domestic premises. The current formula is Section 220 of the Trade Union and Labour Relations (Consolidation) Act 1992. It reads:
“It is lawful for a person in contemplation or furtherance of a trade dispute to attend … at or near his own place of work, or … if he is an official of a trade union, at or near the place of work of a member of the union whom he is accompanying and whom he represents, for the purpose only of peacefully obtaining or communicating information, or peacefully persuading any person to work or abstain from working.”
The Act defines both “place of work” and a “trade dispute”.
I should add in relation to the latter, in case any of your Lordships were unaware of it—which I doubt—that collective action
“in contemplation or furtherance of a trade dispute”
will not be lawful without the prior fulfilment of many statutory conditions. These include service of a highly complex notice of ballot on every relevant employer; a ballot in favour, which must conform with complicated and demanding thresholds on turnout and majority; and service of an equally complex notice of industrial action on every relevant employer. There are many provisions regulating all this in detail and many other requirements, such as the provision of mandatory qualified scrutineers, full postal balloting—no workplace or electronic voting is permitted—and so on.
Case law has held that Section 220 on the right to picket does not protect against private nuisance—interfering with someone’s enjoyment or use of land—nor against public nuisance in the form of violence, intimidation, molestation, excessive numbers, obstruction, blockade or an unreasonable obstruction of the highway. There is no exemption from the criminal law or the law of trespass, so this is all covered.
The Code of Practice on Picketing—the latest edition of which is from 2017—is taken into account by the courts and runs to 19 detailed pages of guidance. The code provides, among many other things, that
“pickets and their organisers should ensure that in general the number of pickets does not exceed six at any entrance to, or exit from, a workplace; frequently a smaller number will be appropriate.”
In consequence, a requirement that there be no more than six persons on a picket line is applied as though it was statute law by both the police and the courts.
As if that is not enough, the Trade Union Act 2016 imposed yet further restrictions. The union must appoint a picket supervisor to supervise the picketing. They must be an official or other member of the union familiar with the code of practice and have taken reasonable steps to tell the police their name, where the picket is to take place and how they can be contacted. The picket supervisor must be in possession of a letter stating that the picketing is approved by the union, which must be shown to the employer if sought. This is very highly regulated.
The possibility of flying pickets and anything else that any of your Lordships might think requires restraint has already been closed off. Surely all this is enough. Picketing in recent years under this strict legislative regime has not thrown up problems which require further legislative redress, yet Clause 56 will give the police the power, in many sectors, virtually to extinguish life from the remains of this emaciated right.
Among other things, the clause gives power to a senior police officer to impose conditions on an assembly where the officer reasonably believes that noise generated by persons taking part may result in
“serious disruption to the life of the community”
or
“serious disruption to the activities of an organisation which are carried on in the vicinity of the assembly”.
Senior officers seeking the meaning of these phrases will not find them in the Bill, which does not define either. Instead, the Bill will give power to the Secretary of State to create definitions by regulation. We can only guess how the Secretary of State might choose to define these phrases. However, we have a strong steer as to what she currently has in mind, because she has provided a draft set of regulations in relation to the meaning of the phrases. There is not, so far as I can ascertain, a draft of regulations to define
“serious disruption to the activities of an organisation which are carried on in the vicinity of the assembly”,
but the draft regulations that deal with a
“serious disruption to the life of the community”
state:
“It may be regarded by the senior police officer as serious disruption to the life of the community if there is … a significant delay to the supply of a time-sensitive product impacting on the community, or … prolonged physical disruption to access to essential goods and services impacting on the community.”
They go on to say that a
“‘time-sensitive product’ includes newspapers and perishable items”
and
“‘essential goods and services’ means … the supply of money, food, water, energy or fuel … a system of communication … a transport facility … a place of worship … an educational facility … a service relating to health, or … another critical public service.”
If pickets in a trade dispute are successful in persuading workers not to cross the picket line, it is obvious that, depending on the nature of the employer’s business, picketing may involve significant delay to the supply of time-sensitive products or prolonged physical disruption to access to essential goods and services. Accordingly, under Clause 56, the assiduous senior police officer may well impose conditions on workers who legitimately but noisily picket their place of work in order to persuade others not to work during a lawful industrial dispute in relevant sectors. Such relevant sectors will be where the workplace is involved in the production or delivery of food, water, power, railways, buses, places, lorries, ships, newspapers, mail, TV, radio, film, education, health, local government and so on. It is hard to think of many workplaces at all that will not be included.
Though the Explanatory Notes to the Bill do not expressly refer to picketing in an industrial dispute, it is plain that these draft regulations have given the game away. Clause 56 is precisely aimed at picketing in a lawful industrial dispute, whatever other assemblies may also be impacted. Accordingly, Amendment 304 proposes to exclude lawful picketing—subject to all of that regulatory regime that my noble friend Lord Hendy sets out—in legitimate trade disputes from these additional restraints. The Minister is invited to agree the amendment in order to exempt picketing from this intended regime, given that it is so closely regulated.
I am grateful to the Committee for its patience in listening to my noble friend Lord Hendy’s rationale for Amendment 304. Perhaps I may be indulged in making just a few comments of my own about this whole group. I shall try not to hyperbolise but do my best to disagree well with the noble Baroness opposite. I do not think that noble Lords who have spoken and expressed their concern so far have hyperbolised. Let me try to explain why some of us are so desperately concerned about the impact on freedom of expression and freedom of association of Part 3 of this draft legislation.
If we take existing tests, there is so much law already on the statute book, some of it passed by Conservative Governments, much of it passed by Labour Governments—much of which I objected to at the time, alongside friends of mine in the Conservative Party. I may be wearing a red dress now, but it was not always the case; I hope noble Lords opposite will understand that. Free speech is a two-way street and, in my lifetime, no Government have been perfect when it comes to protecting it.
The Lord Privy Seal (Baroness Evans of Bowes Park) (Con)
This has been quite a long speech. We do need to get through business tonight. Can noble Lords please respect other Members and think about the length of their contributions?
Baroness Jones of Moulsecoomb (GP)
Perhaps the Government could decide not to bring huge Bills such as this, so that we are forced to sit late at night.
Baroness Evans of Bowes Park (Con)
This is the 11th day in Committee on the Bill; I think we have given it due course. I am sorry, but I do not accept the noble Baroness’s views. Perhaps we can all respect each other and move on. Noble Lords have very important points to make, but if we can make them succinctly, that will be very helpful.
Baroness Jones of Moulsecoomb (GP)
Respect goes both ways. The Government are not respecting this House.
Baroness Chakrabarti (Lab)
I am happy to wrap up. I am sorry, I had to read for my noble friend Lord Hendy, who had an amendment, and that took a little time. I beg your pardon; I will be very brief.
I have talked about the past—suffragettes and anti-apartheid, et cetera—and I have talked about Russia and China and the places that we have to persuade, in the current, dangerous world, not to suppress protest. The domestic context is that we have come out of Brexit, which was incredibly divisive; whichever side you were on, we know that it divided communities. I was subject to protesters who were very cross with me, and a little scary, but in the end, I put up with it. We are coming through a pandemic, and people are scared and very worried by climate change. I do not believe that oppressive powers giving this level of discretion to the police to suppress free speech will bring our communities together.
Lord Walney (CB)
My Lords, if I may, I will speak succinctly on the noise amendments. I appreciated what the noble Baroness, Lady Chakrabarti, said about the two-way street, favourite protests and standing up for all protests, but I wonder about the extent to which we are actually doing that. I listened carefully to the persuasive argument made by the noble Lord, Lord Coaker, in introducing the Opposition amendment on fast-track orders for schools. I also listened to the excellent opening speech from the noble Lord, Lord Dubs; if that is the kind of protest which is being restricted, I am sure that a majority in both Houses would vote against it. Opposition Members have spoken in favour of protections around schools, and I can very much see the case for protecting schools. But are we really saying that untrammelled noise cannot be intimidating and unacceptable, in the manner which the Bill attempts to frame as a problem?
Anti-vaxxers outside schools were given as an example. Are we saying that noise should not be a factor if anti-vaxxers are making a sustained attempt to disrupt Covid vaccine clinics? Another entirely feasible example is a far-right protest that was seeking to intimidate council workers using high levels of noise, because the council was volunteering to bring in refugees and a section of that community did not want that.
The question raised by the noble Viscount, Lord Colville of Culross, was pertinent: is existing legislation sufficient to deal with this? I hope that Ministers will address that point when summing up and in bringing the Bill to Report. I am much less comfortable with the rhetoric which simply cites noise as beyond the bounds of regulation in a legal framework. We all know that many protests are noisy—I would imagine that the majority of us in this Chamber have been on such protests—and that is a good thing. But it is surely not what this legislation is intended to debar.
Baroness Fox of Buckley (Non-Afl)
My Lords, I support those who oppose the clauses in Part 3 standing part of the Bill, but I will support each and all of the specific amendments that aim to mitigate the most egregious harm to liberty that Part 3 represents. The comments by the noble Viscount, Lord Colville of Culross, and the noble Lords, Lord Dubs and Lord Beith, and the personal remarks from the noble Baroness, Lady Chakrabarti, sum up many of my concerns.
I do not agree at all with the sinister reading of the Government’s motives from the noble Baroness, Lady Jones, but I am genuinely utterly baffled as to what the Government intend this part of the Bill to achieve. We are consistently told, I think in good faith, that Part 3 does not threaten the right to protest, but whether that is disingenuous, naive or whatever, it is just not true: it does threaten the right to protest. This part of the Bill weighs the balance of power heavily towards the authorities and will make it harder for members of the public to demonstrate their views and have their concerns heard. It explicitly aims to restrict protest in an ever-wider range of circumstances and, more insidiously, by threats of criminalising, eye-watering fines and imprisonment for an ever-expanding number of types of protesters. That will have a chilling effect.
How would the Government advocate that citizens stand up to the state to make their voices loudly heard or hold the Government to account beyond the ballot box within the prescriptive clauses of Part 3? Surely, this Government have championed popular sovereignty in relation to Brexit, for example. Surely, they will not then be frightened of a lively culture of politically engaged citizens who, on occasion, might have noisy, boisterous protests and demonstrations to effect change.
Having said all this, I am aware that many members of the public—many millions, probably—have become frustrated by some of the recent protests we have seen in the UK. They want the police to deal firmly with these new kinds of protests, which seem less about democratic rights and more about using tactics against the public, almost with the aim of disrupting ordinary people’s lives until they relent and accept their net-zero aims without the bother of winning over the majority by argument. So, I get that the Government and the headlines pose Part 3 as tackling these new-style, seemingly anti-democratic, not anti-power but anti-public protesters.
However, it just is not true that the original Part 3, without the new amendments that are to be added, did not have any elements that would tackle those new types of protests. As I said at Second Reading, laws already exist that are just not being enforced by the police consistently. At the judicial review of the Extinction Rebellion protests across London, the Commissioner of the Metropolitan Police conceded that she was satisfied that the power in the Public Order Act 1986 was sufficient to allow the police legally to deal with protests that, even in design, attempt to stretch policing to its limits. I suspect that those Insulate Britain protesters in prison now might think that the law is pretty sufficient. Indeed, when Sajid Javid was Home Secretary he admitted that
“where a crime is committed”
during a protest,
“the police have the powers to act”,
and that significant legislation
“already exists to restrict protest activities that cause harm to others.”—[Official Report, Commons, 13/9/18; cols. 37-38WS.]
As Garden Court Chambers notes:
“The suggested ‘gaps in the law’ simply do not exist … These additional powers are designed to make it prohibitively difficult for the public to exercise its right to protest at all”.
As it happens, it seems that the Home Secretary possibly agrees with me—I do not imagine she was influenced by me—that the original Part 3 does not make a blind bit of difference to policing Extinction Rebellion-style protests. That is presumably why Priti Patel announced at the 2021 Conservative Party conference a whole swathe of new amendments specifically to deal with new protest tactics. I might not agree with those new amendments, but at least I understand the logic of creating new offences to deal with things such as the act of “locking on”, which is a new form of protest, or to tackle all those people gluing themselves to highways and so on. But the rest of Part 3 makes little sense if it is the case that the Government are addressing public concern over the new-style protests.
There is loads that I want to say on the detail, but I will not do that. I want to make a couple of points on noise, although a lot has been said. I cannot believe that we in this House have been reduced to looking at what is too noisy. The police have been given such expansive and draconian powers to impose conditions on protests based on interpreting how much noise may have a significant impact, and so on, that I have spent quite a long time researching decibels and statutory noise nuisance laws and much more. Noble Lords will be relieved to know that I am not going to give them any fascinating detail on any of that in this speech. But as I was researching it, I thought, “Oh my goodness, all these police officers who are charged with making judgments on what’s too noisy won’t have my research at their fingertips—rather, they’ll have a nebulous, vague and subjective idea that they’ve got to make a judgment about what noise might be causing unease”.
Lord Oates (LD)
My Lords, I speak particularly to Amendments 294, 299, 303 and 305 in the name of the noble Lord, Lord Rosser, and other noble Lords. I have added my name, but I want to speak in support of the wider amendments in this group. In doing so, I declare my interests as co-chair of the All-Party Parliamentary Group on Zimbabwe.
As we have heard, the amendments tabled by the noble Lord, Lord Rosser, take up recommendations from the Joint Committee on Human Rights to remove the trigger for imposing conditions on protests based on noise. In her brief remarks about Part 3 of the Bill at Second Reading, the Minister stated:
“The right to peaceful protest is a fundamental part of our democracy”.
She went on to say that Part 3 was
“not about stifling freedom of speech and assembly”.—[Official Report, 14/9/2021; cols. 1281-82.]
The noble Baroness, Lady Stowell, said earlier in this debate that nobody wants to undermine the right to protest, and complained about hyperbole. I might make a complaint on the other side about complacency. If it was really the intention of the Minister, the Government and Government Back-Benchers not to impact on protest, they really should have brought another Bill forward, and they should talk to the drafters, because the right to peaceful protest is clearly under attack in this part of the Bill, as the noble Baroness, Lady Fox, said.
Noise is fundamental to peaceful protest, as is impact —not least because protest is about making one’s voice heard when it would otherwise be ignored. As the noble Lord, Lord Dubs, said, what on earth would be the point of a protest if you were not heard and if you did not have an impact? So any measure that makes the level of noise and its impact on others an arbiter of whether or under what conditions a protest may go ahead is, quite apart from being an absurd road to go down, self-evidently an attack on the right to peaceful protest that the Minister has told us is such a fundamental part of our democracy.
Do we really think that a senior police officer should be put in a position where they have to take on the responsibility of determining whether a protest should go ahead at the place proposed or on the route planned on the basis of the noise that protest may generate and the impact that it may have on people?
The noble Baroness, Lady Stowell, said that there was a new fashion in protests, but I do not think there is a new fashion for protests to be noisy. All the protests I have ever been on in my life have I think been noisy.
Baroness Stowell of Beeston (Con)
I did make the point that I was not wholly comfortable with what was being said about noise in the legislation, and I was looking to my noble friend the Minister for some comfort—but I do think there is a new fashion of protest, which the noble Baroness, Lady Fox, also referred to, which is very different from that which we have seen before and is causing a huge amount of disruption, which people find unacceptable.
Lord Oates (LD)
I thank the noble Baroness for her clarification, but I have to say to her that noise is absolutely fundamental to the issues that we are debating now. As the noble Viscount, Lord Colville, said, in relation to the other protests and the obstruction of highways et cetera, the powers exist already in the Public Order Act and in other places to deal with them. So the question now is whether we should have the new, very restrictive curtailments on the right to protest proposed in this Bill which are about noise and its impact, and that is what I am addressing.
Not only is it a terrible idea which will place the police in an impossible situation, but the Bill compounds their difficulty by failing to provide any definitive criteria by which the police can determine whether the level of noise or its impact on others is sufficient to trigger their powers. The noble Baroness, Lady Fox, raised this issue. No decibel level is defined in the Bill; no definition of intensity of impact, which the police are supposed to take into account, is set. As a result, the police will be dragged into areas of heated political controversy on which they will have to make entirely subjective decisions—except in the cases where the Home Secretary will help them out by making her own entirely subjective decisions—deciding that one protest may go ahead in a certain way and a certain place but having to decide that another may not. Presumably the police’s decisions will be open to challenge by protesters on the one hand and those who wish to curtail protest on the other. It is hard to think of a better way to undermine trust in the impartiality of our police services.
As I mentioned at Second Reading, and as the noble Baroness, Lady Chakrabarti, has also mentioned, many noble Lords will have taken part in the protests outside South Africa House against the apartheid regime. It was the express intention of those protests to generate noise and, doubtless, the agents of the apartheid state were impacted, and they may well have genuinely felt serious unease as a consequence, but, as long as those protests remained peaceful, it was surely no business of the state to protect them from the impact of that noise or any serious sense of unease that it may have caused.
That is an example from the past—it would be interesting to know how the Minister thinks the powers would be applied in that case—but let me take one from the present. Currently, a fortnightly vigil for democracy and human rights is held outside the Zimbabwe embassy on the Strand. The vigil is not normally loud, but, on occasion, when the Zimbabwe Government are involved in particularly egregious violations of human or political rights, it can be noisy and, without doubt, it has an impact on people in the vicinity. People are understandably angry in such circumstances, particularly in circumstances where protesters have been gunned down in Zimbabwe, and the noise that the protesters here generate will certainly have an impact on and may cause serious unease to embassy staff. But again I ask: if the protest is peaceful and orderly, is there any reason to prevent it happening?
As evidence to the Joint Committee on Human Rights highlighted, police will inevitably be faced with pressures from certain embassies to ban protests outside their premises on the grounds of noise or serious unease. Can the Minister expressly address this issue in her summing up? Do such embassy protests fall under the powers of this Bill? Could a senior officer, for example, direct protestors not to protest outside the Zimbabwe embassy if he was convinced of serious unease being caused to embassy staff? How would the police assess evidence of the threat of serious unease in court? I hope the Minister will not tell the House that she cannot envisage the police using such powers in these circumstances, because that would only highlight how this part of the Bill will entangle the police in decisions they simply should not have to make.
If those are some of the potential, but hopefully unintended, consequences of this part of the Bill, what of the intended consequences? We know that the public protest clauses and proposals contained in Part 3 and in the government amendments, which will be debated in a later group, are deliberately aimed at environmental protestors, whether Extinction Rebellion or Insulate Britain, because the Government have basically told us that they are. Many of the people involved in these protests are young people who are protesting against an existential threat to their futures. The noble Lord, Lord Campbell-Savours, made a very powerful speech in this regard. What is the reaction of the Government to these tiresome people who have the temerity to demand a future for themselves and their children and who understandably will not be bought off by the long-term promises so casually given out by the Prime Minister and so nakedly betrayed by his failure to take the action now to realise them? To deal with them, the Government propose using these wholly disproportionate powers.
What do these people want? They want us to insulate Britain. It is hardly world revolution. Yet in the face of an unprecedented climate emergency, we cannot even do that. No wonder they are angry. No wonder they despair of politics as usual. Instead of consuming a lot of time and energy banning their protests, because they are noisy or might have some impact, perhaps it would be better to have an infrastructure Bill with a long-term programme to tackle the problem of our energy-leaking and climate-threatening buildings. At least that is a problem we know how to deal with and could if we had the will. Certainly, it would be a better use of time, because if the Government think that these measures to curtail protests on the spurious grounds of noise and impact and to jail more people for a longer time will stop these protests, they are sadly mistaken.
Those who face an existential threat do not just buckle under, no matter the level of restriction or curtailment of their rights. If you doubt that, look at a history book. Look at the civil rights movement which the noble Baroness, Lady Chakrabarti, mentioned, or the suffragettes, as the noble Lord, Lord Campbell-Savours, highlighted. These people were protesting in the face of laws far more extreme than even this Government would contemplate. Bringing in unjust laws to deal with this situation does not stop protest. You deal with it by addressing the issues fairly. These measures will only further embitter the protests. Far from what the noble Baroness, Lady Stowell, hopes for, it will not bring about any greater sense of unity, and it will not only further embitter the protest but embroil the police in unending controversies which, as far as I understand, they have no desire to be dragged into. Also, they have been provided with no objective criteria on which they can adjudicate such controversies.
The amendments in this group will remove some of the most objectionable aspects of this attack on peaceful protests. I hope that the Minister gives serious consideration to the powerful arguments that have been made by noble Lords on all sides, but really this part should come out of the Bill completely.
I conclude by saying that I am very pleased to say that we are a long way from the situation in Zimbabwe, where a youth leader languishes in jail in appalling conditions for more than 200 days, charged with blowing a whistle at a protest, where the police have become so embroiled in political controversy that they are no longer trusted by the public at all, and where public safety and public order are consistently deployed as reasons to stifle the most modest of protests. But those who courageously struggle in such situations look to our democracy, with our traditions of free and raucous protest, as a beacon. We should remember that. Every time we take a step away from them, we dishearten democrats around the world and give succour to those who oppose them.
Lord Hogan-Howe (CB)
My Lords, I broadly support what the Government are trying to do here. There will be times when you might disagree with some of the language, but it seems to me that the only reason why the Government are bringing forward these proposals is that they have been asked to. I do not think they set off with an agenda to limit protest, but presumably people have complained about it. The public have complained; the media have complained, representing the public; and sometimes the police have complained—and everybody has complained about the police, which is not an unusual place to be. That is the nature of the job.
What the police want is some simple law that they can implement on behalf of the public to protect the weak against those who sometimes intimidate them. That seems to me to be what this part of the Bill is trying to address.
British policing, and criminal law generally, has always been about doing what is reasonable and making criminal what is unreasonable. It is about trying to strike that balance all the time. In most protests, people carry out their protest in a peaceful way that attracts attention. Sometimes it gets change and sometimes it fails. Sometimes it moves along the spectrum from irritation to nuisance, to serious disruption to life, to crime, to serious crime. Protests in the last group are relatively small in number, but when they happen they are pretty awful.
On the whole, the police do not want to be there. They are not seeking to be at a public protest, but in London you are probably talking about at least one protest march a day, every working day. Just to show the scale of the challenge that the Metropolitan Police faces—it happens in other parts of the country, but of course the Government, who attract most of the protests, are in London—on average, 400 or 500 officers are still drawn into central London every day for something called aid. It may see them coming out of Croydon or Lewisham to police central London, because there is no separate box; they have to come in to help police these types of protest. Of course, when they are doing that they are not in Croydon, Lewisham and all the other places, so it is something of significance that we all have to consider when we talk about the number of protests and the type that we allow.
The most difficult types of protest—I think this is pertinent to whether a senior police officer should have some powers in these cases—are those where the protesters generally do not engage or explain their plans. When both those things happen, on the whole, plans can be made. The police may not always agree with a certain approach, but some kind of agreement will be reached. That enables everybody to plan. The disruption that will flow is probably restrained to a reasonable amount. That goes back to the reasonableness test.
When those things do not happen—the people do not engage, do not have organisers who are prepared to engage, or do not even acknowledge that there are organisers, or they are prepared to take what others may regard as unreasonable action—it gets pretty hard for the police to deal with it and, more importantly, for the public to deal with the consequences.
The types of unreasonable things that I think everyone is always worried about include interference with free movement. That can mean just blocking a road. I do not think anybody minds it for five minutes, but an hour, four hours? We all have our own limits, but when it goes on for a long time, serious disruption can happen. Another type is any disruption of public space generally; we all want to go where we want to go, when we want to go there. Some of the people in this Chamber will be the most aggravated in dealing with cops who prevent them travelling through a protest, saying that they have a right to go where they want to go. They have a right to move around too, and of course we all have the right to enjoy our homes and places where we have a business. There are times when we all have a right to make the nuisance caused clear to the police and expect them to take some action.
Some of the tactics have changed recently. That is the nature of protests; they will always change. You are never going to have the protests of 50 years ago, as people will move on to try to achieve a new aim. We have seen the M25 blocked and Heathrow invaded. There was one case where protestors broke through a perimeter fence, went in and disrupted the international airport; eventually, they were found not guilty. Fine, if that is what happened in that case, but I do not think it a very safe thing to do, in the case of either the motorway or the international airport. Is it for the protester to decide what is safe and reasonable or is it for some objective standard? I cannot see how it is okay for you to be driving along the M25 at 70 miles per hour, at least, for people to decide it is now okay to block the road. I agree that obstruction of the highway is an existing offence, but this is something of far more gravity, which needs a new approach. The police struggle to interfere when people are preparing for acts of protest, where there is going to be a disruption. This is another thing that the legislation is trying to address.
I will mention some of the specific items that people have rightly been concerned about in this Bill. The first is noise. As the noble Lord, Lord Walney, said on noise, just because I shout, does that mean I am going to be locked up? That has never been the case and I doubt that it ever will be in the future but, whether it is 150 decibels, or 10 decibels in your ear for two hours or four hours, noise can be more than an irritant. We have a right to enjoy peace in whichever way we prefer. Noise can be injurious of itself.
I went to Notting Hill carnival every year on the bank holiday Monday. For anybody who has not been, and the ex-commander and the noble Lord, Lord Paddick, must have been, there are these huge amplifiers. I do not know how many decibels they produce, but they are the size of a two-storey house. They can produce some significant effects. In fact, the police horses had to shift back, because they were knocked back by the percussion from the loudspeakers. Noise can be an irritant and do damage. We have to consider its effect on people, where it is either so loud or so persistent that it cannot be ignored. If people turn around to the police and say, “What are you going to do about it?” and they say, “Actually, it’s not illegal. It is okay and you shouldn’t be irritated by it,” that will not work. I will come back to why that is something that we have to think about.
I agree that it is hard to imagine a single-person protest of such significance that the police should intervene. However, we have seen it outside this place. Somebody with the right amplification can cause a lot of effect, particularly if it is outside your front door or business. People will ask for help and the police need to know where they stand on that. If Parliament does not want to help them to decide that issue, it is left to the officer on the street to decide. That goes back to the simple advice, at three o’clock in the morning or more likely nine o’clock at night, to make their own decisions. They are pretty good at acute problem-solving, but they deserve the support of Parliament to be clear about what is and is not okay.
There has been a slight tone from some contributions —perhaps this is just my old sensitivities—of “How can we possibly expect the police to make this type of decision?” I have to say that they make it every day and usually quite reasonably. Senior police officers have been making it on public order for years. Occasionally, it goes wrong but, on the whole, the British police get these things right. There are many things you can criticise the British police for, as we hear every day in here, but I do not think that dealing badly with protests is one of them. You can trust the cops to get this right and be reasonable, because they do not seek to fall out with the majority—or with anybody, come to that. I honestly think that you could trust them to make this type of decision, provided that the legislation is clear. There has been some challenge to the language, which I support, in some cases, as you can always make language more precise.
My final point is that it is important to get this right, for no other reason than that there is a debate between protesters’ right to protest and the police’s right to intervene. If we do not get it right, we leave the public to intervene on their own account. We have already seen examples of that. Before the cops arrived, the people at the front of the queue who were getting blocked said, “I’m going to move you. You’ve got two choices.” When the police arrived, it was a difficult situation to resolve. The law needs to be clear. There is a duty on the law, set by Parliament, to make clear lines in the sand, so that you do not leave members of the public to decide for themselves. That will end in the worst of all worlds.
To go back to my first point, the Government have only reacted to the concerns expressed by the public initially, sometimes through the vehicle of the media but also through the political process. I do not think that what has been proposed is entirely unreasonable. It can always be improved in this process and on Report, but it would be foolish to suggest that it is completely unreasonable to change the law to adapt to the tactics of the protesters.
Viscount Goschen (Con)
My Lords, my speech can be very quick because I should just like to associate myself with the remarks of the noble Lord, Lord Hogan-Howe. It was an exceptionally informative and balanced speech about just how difficult these issues are and how difficult the job of the police is to draw that balance and get it right. We should all be extremely grateful that we are policed in such a consensual and high-quality way.
I spoke about this at Second Reading and we have had an exceptionally interesting debate here in Committee. I shall make just a couple of points. First, we ought to avoid, if at all possible, differentiating between good protests, on an issue that I agree with, and bad protests, on an issue that I disagree with. We should resist the temptation to talk about specific causes. The noble Baroness, Lady Chakrabarti, made that point in one of her two speeches; I think that it was the second one.
Baroness Chakrabarti (Lab)
Forgive me, but I did not make two speeches. I asked the Committee’s permission to read the remarks of my noble friend Lord Hendy because he could not be here to speak to his Amendment 304. I thought that I had the consent of the Committee. If I misunderstood that, I apologise, but I did not intend to make two speeches on my own part.
Viscount Goschen (Con)
My Lords, the noble Baroness spoke for nearly 20 minutes and I am attempting to speak for about two minutes.
We ought to avoid drawing the distinction to which I referred. However, there is a clear difference between a lawful expression of protest drawing attention to a particular issue, wanting it to be heard, and a deliberate and aggressive attempt to disrupt the lives of the general public. That is what we have seen over recent weeks. It is entirely reasonable that we look carefully at the current legislative settlement and examine what can be done with the existing powers. I hear the remarks made that the police have the powers that they need. Some feel that they do and others do not. That matter should be carefully looked at.
However, where there are gaps and where the police require additional powers to take those finely balanced judgments, it is entirely legitimate that we look at that in the Bill while maintaining a clear balance and making sure that we do not trespass too much on some of the issues that have been raised around, for example, noise. In essence, there are grounds for a constructive debate and finding that balance. It is never going to get everyone’s support but we all ought to look beyond the Westminster bubble and consider the reaction of the general public when they see their lives and critical national infrastructure such as transport being substantially disrupted and when the police are unable to deal with it effectively.
Lord Judge (CB)
My Lords, I am not sure that I would have been elected Convenor of the Cross Benches if my colleagues had known that I, too, was once a protester.
Lord Judge (CB)
I wanted to join the general acclaim for people who had been protesting. I was 17 years old and I was idealistic. I believed in what I was doing.
My point is this: no one has spoken at all to Amendments 295 and 306, which were intended, according to the script, to remove new triggers. I hope that that was on the basis that Amendment 298 in the name of the noble Lord, Lord Beith, and Amendment 308 in my name covered that point. If anyone wants me to cover the point now, I shall do so, but would it not be better for me to sit down?
Lord Paddick (LD)
My Lords, we are now on to arguably the most controversial aspect of the Bill—the public order measures. The debate began at 8.30 pm and is made even more controversial by the Government tabling more than 18 pages of new amendments last week, creating new offences and draconian new powers for the police that the other place was not even aware of when it passed the Bill. Not only that, but debate has been concertinaed into one day, on both the existing and the new measures, and, with the collusion of the Official Opposition, the vital two-week gap between Committee and Report is being shortened, further curtailing proper scrutiny. This Government are behaving unacceptably and Labour are letting them get away with it. Of course, I make no criticism of my hard-working and conscientious comrades on the Labour Front Bench, nor indeed of the government Ministers on the Bill, who will no doubt say they are just following orders; the criticism is of the usual channels.
I am speaking on every group today, bar one, so I have been unable to eat or have a proper break; it is a bit like being back on the Job—with a capital J, for the benefit of Hansard. No wonder observers think I look knackered, to use the words of the noble Lord, Lord Dubs.
As other noble Lords have said, this legislation should be a separate Bill because of the many fundamental issues around people’s human rights. I said last week that my comments on serious violence reduction orders were the longest I had made in eight years in the House. I am going to exceed that, and I will explain why—it will become clear.
It was gone midnight on another day of Committee when the Minister said four times that he would keep his remarks short because of the lateness of the hour. My response was that the Bill needs to be properly scrutinised and I do not care what time of night it is. I promise not to speak for more than two minutes on each amendment in this group, so, if noble Lords will give me 54 minutes, that should be enough.
For the information of the Committee, I was involved in public order policing throughout my policing career. I was deployed at Notting Hill Carnival in various roles for seven consecutive years—I can still hear—and at the Grunwick trade dispute, and the Lewisham, Southall and Brixton riots, as a senior officer, as the officer in overall command, and as gold commander at numerous events, having been selected and trained and regularly retrained to maintain my position in the small cadre of advanced trained senior officers in public order policing. This involved practical exercises, in riot gear, with commanding officers, and involved missiles and petrol bombs, as well as weekend table-top exercises with people from the media and community groups, looking at the practical consequences of banning or imposing conditions on protests.
I was, however, fortunate to spend time away from operational policing, being sponsored to undertake a full-time degree course during the miners’ strike, in which I took no part, other than to give money to support miners’ families. I think it is important that the House understands where I am coming from. I am also grateful to Liberty for its briefing.
I start with Amendment 293, in the name of the noble Lord, Lords Dubs, which I have signed. Not only is the right to protest a human right enshrined in the Human Rights Act but it is a right that British people have had for centuries. The police have recent history that is relevant here. Up to and including the early 2000s, the police had been taking an increasingly hard line with protestors, frequently using techniques such as kettling—which the noble Baroness, Lady Jones of Moulsecoomb, mentioned—where protestors, and many innocent bystanders, were contained in a small area and not allowed to leave except in groups of two of three, sometimes requiring those leaving to be photographed and to give their names and addresses.
As a result of violent incidents in 2009 at the G20 London summit protests, the Independent Police Complaints Commission concluded that the Metropolitan Police should review its crowd-control methods, including kettling. As a result, the Metropolitan Police, for a while at least, changed emphasis, stating that the police role was to facilitate peaceful protest, and, interestingly, putting women senior officers in charge of some of the most controversial protests. This amendment is an important reminder of the recent history of policing protest in this country, and the dangers of the emphasis being placed on controlling protest rather than facilitating protest.
It is also important to comment on the origins of this legislation in connection with this amendment. The Home Secretary asked Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services to look specifically at whether new legislation, further offences and stronger police powers were necessary. Her Majesty’s Inspector of Constabulary, Matt Parr, a retired Royal Navy rear admiral, conducted the review.
I read the report with interest because, as the Guardian reported on 31 March this year:
“The official policing inspectorate showed repeated bias in favour of the police and against peaceful protesters as it compiled a report which backed a government clampdown, a whistleblower has alleged.”
The allegations were that HMICFRS wrote to the Home Secretary five months before the report was published, saying that it backed the need to change the laws. The Home Secretary replied—again, I quote the Guardian:
“Protests have proved a significant challenge over the last year and I am keen to ensure that the police have the powers and capabilities they need to help address the disruption they face. Your findings will help me to do that.”
The whistleblower, who had worked for HMIC for more than five years, said:
“The purpose of the report was not to collect evidence and then make a decision, but rather to collect evidence to support the decision that had already been made”.
I have read that report. I have also read the report into the Sarah Everard Clapham Common vigil by the same author. I agree with the whistleblower that the contents of both reports do not match the conclusions.
Almost all police forces outside London said that the limiting factor on policing protest was the number of police officers available to enforce existing laws, not a lack of legislation. Indeed, as we will see—yes, I am only just getting started—despite what the Government say, these proposals are based on a false premise. The Police Federation, which represents 130,00 front-line police officers, was not even consulted about these proposals. In my discussions with the federation, it is, to say the least—and to use a word that has been popular this evening—uneasy about them.
Amendments 294, 295, 299, 300, 303, 305 and 306 refer to new powers to control protests on the basis of them being too noisy, marking a significant expansion of police powers. As other noble Lords have said, protests are by their nature noisy, and threatening to curtail or close down protests because they are noisy is threatening to close down protest full stop. HMICFRS did not comment on the noise proposals in its report. Again, noble Lords are being asked to sign off on open-ended legislation because these half-baked proposals have to relegate important aspects of the proposed legislation to regulations that this House will not see until after the Bill receives Royal Assent.
Amendments 297 and 307 from my noble friend Lord Beith probe what “unease” means. The Joint Committee on Human Rights goes further, saying that it places too much into the hands of the police officer at the scene and that
“What one person considers to be noise sufficiently ‘intense’ to be likely to cause ‘serious unease, alarm or distress’ may be very different to what another person would believe meets this threshold.”
Amendment 302 in the name of the noble Lord, Lord Dubs, rightly seeks to limit the conditions that can be imposed on an assembly for the reasons why they were restricted when the original legislation was debated. On 13 January 1986, in the House of Commons, the then Conservative Home Secretary said:
“We stopped short of a power to ban because we believed that that would be an excessive limit on the right of assembly and freedom of speech. For this reason, clause 14 does not permit the police to impose conditions changing the date and time of an assembly.”—[Official Report, Commons, 13/1/1986; col. 797.]
We think that Lord Hurd of Westwell was right.
We support all the amendments in this group but, to continue, Amendments 309 to 312 refer to disobeying conditions imposed on protests by the police. Not for the first time in the Bill, the hideous phrases “ought to know” and “ought to have known” appear. I understand that in the past some protesters have put their fingers in their ears or made a lot of noise so that they could not hear what conditions the police were imposing on them, but Amendments 309, 310 and 312 contain the much-preferred wording
“deliberately or recklessly avoided gaining knowledge that the condition has been imposed”.
Amendment 311 removes the increased penalties for disobeying conditions; we agree that non-violent civil disobedience should not face harsher penalties.
I stand alone with Amendment 318, requiring the most senior police officer present at a one-person protest who wants to close it down to hold at least the rank of inspector. It is a rank of officer who is on duty and available in every police area 24/7. It is a serious claim to make, that the decision on the level of noise or disruption caused by a solitary individual peacefully protesting should not be made by a police officer, no matter how junior. In fact, we do not believe that one-person protests should be subject to any conditions and we oppose Clause 61 standing part of the Bill.
I will talk now about the impact of these proposals on the police, in terms of both resources and public trust and confidence in them. In so doing, I will address my Amendments 296 and 301. The first thing to say, from my professional experience, is that the more conditions the police impose on a protest, the more police officers are needed and the more likely those conditions are to be resisted. Taking the point of the noble Lord, Lord Hogan-Howe, it is not right that lots of police resources should be taken from the suburbs of London, for example, to police protests in central London, but the more conditions you impose, the more police officers you will have to take from the suburbs to police that demonstration.
Lord Hogan-Howe (CB)
I think the noble Lord will agree that the number of officers put into an event is usually down to intelligence about the nature of the event, which leads to the conditions, which then leads to the numbers. I am not sure it is down to the conditions; in my view, the conditions are always subject to the character of the protest.
Lord Paddick (LD)
I understand what the noble Lord is saying, and I shall develop my argument further.
I have referred to away-weekend table-top exercises that I attended as part of keeping my “certificate to practise”, if you will, my continuing professional development as an advanced trained public order senior officer. We were told the maximum number of police officers, horses and so forth that were available to us and we were often presented with scenarios where the level of disorder anticipated led one to contemplate banning the protest entirely or imposing severe conditions. We were divided into syndicates which separately presented their proposals for dealing with the scenario. Invariably, syndicates that advocated an outright ban or severe conditions found that they ran out of resources to implement the plan. I do not know whether the noble Lord, Lord Hogan-Howe, has benefited from this sort of advanced public order training, but that is my experience. He has his experience, and I have mine.
Lord Hogan-Howe (CB)
I am not quite sure of the noble Lord’s point. I go back to my original point: the nature of the intelligence tells you what the event is going to be, which drives the conditions and the number of officers. Nothing he has said has changed my view.
Lord Paddick (LD)
My Lords, a peaceful protest with no anticipated violent infiltrators and an agreed route, however large, can be policed with a minimum number of police officers, a lot of traffic cones and miles of white tape. Imposing conditions that the organisers are resisting is likely to require double to five times as many police officers, as confrontation must be anticipated and the conditions imposed by force if required, such as a march wanting to take a different route.
Lord Rosser (Lab)
The amendments in this group to which my name is one of those attached would, based on recommendations by the Joint Committee on Human Rights, remove the proposed new trigger for imposing conditions on public processions based on noise and provide that a person who breaches a condition after deliberately or recklessly avoiding knowledge of the relevant condition can face criminal liability, but without extending the criminal offence to cover persons who breach conditions accidentally. In other words, that amendment would remove the offence of breaching a condition that you “ought to have known” was there. My name is also attached to the notifications opposing Clauses 55, 56, 57 and 61, which concern imposing conditions on public processions and public assemblies, “Offences under sections 12 and 14 of the Public Order Act 1986”, and “Imposing conditions on one-person protests”, respectively.
The Prime Minister said that he would sit in front of the bulldozers to protest against and seek to prevent the construction of a third runway at Heathrow. Can the Government, in their response, say whether he could have been arrested and prosecuted under existing legislation for doing that? If not, could such an arrest and prosecution for that activity be made under the legislation the Government are now pursuing in the Bill? It would be somewhat ironic if the Government were now seeking to introduce legislation to enable action to be taken against the kind of protest that the Prime Minister was only too happy to commit himself to undertaking—presumably, as a democratic right in a democracy.
Likewise, we saw protests against the increase in fuel prices recently, with drivers of goods vehicle trailers going at 5 mph along a motorway, resulting in significant delays to traffic. Can the Government say whether that action could have led to arrests being made and prosecutions taking place under existing legislation? If not, could such arrests be made and prosecutions pursued under the legislation that the Government now propose?
It is important to be clear about the extent to which existing laws do, or do not, enable action to be taken against the kind of protest to which I have referred, along with recent protests by Insulate Britain, and thus whether the issue is the way and extent to which existing legislation is applied and enforced, rather than a need for legislation of the kind now proposed. Insulate Britain protesters have ended up with custodial sentences under existing legislation.
As my noble friend Lord Blunkett wrote in April of this year:
“Protest might be inconvenient for politicians, but it acts as a pressure valve, allowing citizens to express their views and vent frustrations that could otherwise boil over … If we suppress protest, we could see more anger towards institutions including the police, the judiciary and parliament.”
Protest needs to be peaceful and tolerated, and accepted as a democratic right, against which we have to balance the rights of others to go about their daily business. We do not believe that the Government’s proposals in the Bill deliver those goals and reject the attempts to amend the Public Order Act 1986 with this loosely drafted legislation, which would restrict democratic rights to peaceful protest.
Clause 55 imposes conditions on public processions, including powers for the Secretary of State to define
“serious disruption to the life of the community”
or to the activities of an organisation carried out in the “vicinity” of a public procession, as well as powers for the police to impose conditions when they believe that noise might have
“a significant impact on persons in the vicinity”
or may result in
“serious disruption to the activities of an organisation”.
With that reference to noise, it would appear that it is now also protestors and not only children whom some people think should be seen and not heard.
Clause 56 allows the police to place any necessary condition on a public assembly as they can now with a public procession. Clause 57 removes the need for an organiser or participant to have “knowingly” breached a condition and increases the maximum sentences for the offence. Further clauses impose conditions on one-person protests and make significant changes to the police powers contained in the Public Order Act to respond to protest by expanding the types of protests on which the police could impose conditions.
The Bill also widens the types of conditions that the police can place on static protests, since it would significantly lower the legal tests that must be met for the police to issue conditions on protests. The police would be able to issue conditions on protests where they are noisy enough to cause “intimidation or harassment” or
“serious unease, alarm or distress”
to bystanders.
Before using their amended powers to issue conditions on a protest, the police would have to consider the “likely number of persons” affected by the protest, the “likely duration” of the impact and its “likely intensity”. The clause would also widen the types of conditions that the police can issue on static protests to match their powers relating to protest marches. They would also be able to issue any condition on static protests that they think necessary to prevent
“disorder, damage, disruption, impact or intimidation”.
These powers would also amend the offence of failing to comply with a condition imposed by the police on a protest. They would remove the legal test that requires protestors “knowingly” to breach a condition to commit an offence. People would commit the amended offence if they disobeyed a condition that they “ought” to have known was in force. Finally, these powers will allow the police to issue conditions on one-person protests. Currently, protests must involve at least two people to engage police powers.
The Bill includes many ambiguous clauses and will no doubt cause lots of legal argument in the effort to define what they mean. That puts the police in an impossible situation. There is no real drive from them for the government measures that we are discussing in this group of amendments. They do not need more legislation because they already have the powers in place, under the Public Order Act 1986, to impose conditions and to prohibit protests. Good policing is done with discretion. The Bill tries to require the police to do certain things that they may not want to do or may not feel are appropriate.
It is our belief that the powers in the Bill threaten the fundamental balance between the police and the people. The most severe clauses are not actually what the police asked for. We believe that these new broad and vaguely worded proposals would impede the ability of the police, rather than help them in their job. These clauses put way too much power into the hands of the Home Secretary, and the powers threaten our fundamental right to peaceful protest. The proposals risk making protests ineffective and curtail fundamental rights of citizens in a democracy that allow people to express their concerns about the Government of the day or other issues that they feel passionately about.
The provisions of the Bill put more power in the hands of the Home Secretary, who, in the future, may use these powers in an authoritarian way, further impacting on people’s rights. On the power of the Home Secretary to make regulations on the meaning of
“serious disruption to the activities of an organisation … or … the life of the community”,
the former Prime Minister and Home Secretary Theresa May said at Second Reading in the Commons:
“It is tempting when Home Secretary to think that giving powers to the Home Secretary is very reasonable, because we all think we are reasonable, but future Home Secretaries may not be so reasonable.”—[Official Report, Commons, 15/3/21; col. 78.]
Throughout our history, protests and marches have led to significant changes for the better in this country. If the provisions of the Bill had been in place, would they have been stopped for causing annoyance or being too noisy? There is no doubt that those who disagreed with the objectives of the protestors might well have claimed that they were being caused annoyance and found them too noisy.
Baroness Williams of Trafford (Con)
My Lords, it has been rather a lengthy debate, but rightly so. I accept that the provisions in Part 3 of the Bill raise important questions about the balance of rights in our vibrant democracy, as my noble friends Lady Stowell and Lord Goschen and the noble Lords, Lord Hogan-Howe and Lord Walney, so eloquently outlined. This Government stand by the right to freedom of expression and assembly; no democracy can survive without them. However, these are necessarily qualified rights and must be balanced against the rights and freedoms of others. That point was well put by the President of the Queen’s Bench Division just last week when sentencing the protesters who had breached the M25 injunction. She said:
“In a democratic society which recognises the right to freedom of peaceful assembly, protests causing some degree of inconvenience are to be expected and, up to a point, tolerated. But the words ‘up to a point’ are important. Ordinary members of the public have rights too”.
The provisions in Part 3 of the Bill are about where to draw that line—to paraphrase the noble Lord, Lord Dubs, and indeed the point made by the noble Lord, Lord Campbell-Savours. We believe that, in the light of the experience in recent years with protest groups such as Extinction Rebellion, Insulate Britain and others, the law governing the policing of protests—which is over 35 years old—needs to be updated.
Again, just last week, we heard from the Metropolitan Police the cost of policing the Extinction Rebellion protests in August and September: as well as £4.5 million in overtime costs, the protests required as many as 2,000 police officers to be assigned to police Extinction Rebellion events on any given day. Some 4,000 rest days were cancelled overall. This means 2,000 officers being taken away from protecting local communities—as the noble Lord, Lord Hogan-Howe, pointed out. Of course, there were also costs and significant inconvenience to members of the public and local businesses—and this was on top of the £37 million cost of policing the 2019 protests by Extinction Rebellion. Some costs and disruption are an inevitable part of peaceful protests but, as the noble Lord, Lord Coaker, recognised with his Amendment 292Q, there is a line to be drawn.
Nobody could fail to empathise with people trying to get to work or to get their children to school or their loved ones to hospital who were obstructed, not just—as the noble Lord, Lord Hogan-Howe, said—for a small amount of time but sometimes for hours on end. There were utterly heartbreaking stories of people who were not able to visit people who were dying in hospital. Those protesters are not winning public support in this; the public are pretty disgusted. The working public want to go to work. As the noble Lord, Lord Hogan-Howe, said, police resources are diverted from other parts of Greater London when the protests take place in London. I note that not one Member of the Committee who opposes what the Government are doing mentioned these protests or their effect on the working public.
That brings me to Amendment 293 in the name of the noble Lord, Lord Dubs. I reiterate here that this Government fully support the right to peaceful protest. This amendment aims to enshrine that right in legislation. As the Committee will be aware, the Human Rights Act 1998 writes the European Convention on Human Rights into UK law, including those rights in Articles 10 and 11. Under Section 6 of the Human Rights Act, it is already unlawful for public authorities to act in a way that is incompatible with the convention rights. That being the case, while I share the noble Lord’s belief in the importance of the freedoms of expression and assembly, I do not think that this new clause is necessary.
Amendments 294, 295, 299, 300, 303, 305 and 306 would remove the ability of the police to place conditions on processions and assemblies where the noise they generate risks causing serious disruption to the activities of an organisation or significant impact to those in the vicinity of a protest. The threshold at which the police will be able to impose these conditions is very high, and the vast majority of protests will be able to continue making noise as they currently do. These powers can be used only on unjustifiably noisy protests.
I would also like to take this opportunity to clarify that the police will be able to place conditions only on the basis of the level of noise which is generated from a protest. This means that the police will not be able to place conditions on a protest if the content of what is being said or chanted causes anyone unease, alarm or distress. Protests by their nature highlight often very controversial and difficult issues in society, and we have no intention of preventing this. In making use of this power, the police will have to consider the intensity and duration of the noise generated, the number of people and organisations affected, and the rights of the protestors involved, to respond to the question from the noble Lord, Lord Oates, on the embassy protest. As the noble Lord, Lord Hogan-Howe, said, the police make these judgment calls every day.
I remind the Committee that the police are restrained in their use of conditions on protests, and this will not change. In his evidence to the JCHR, the NPCC public order lead, Chief Constable Harrington, said that there were over 2,500 protests between 21 January and 21 April 2021, and that where they have records, conditions had been imposed no more than a dozen times. As the noble Lord, Lord Hogan-Howe, said, the police have been acting proportionately.
Moving now to Amendments 297 and 307 in the name of the noble Lord, Lord Beith, I am grateful to him for pointing out that these are probing amendments to understand the meaning of the term “unease”. Should the noise from a protest risk causing persons in the vicinity “serious unease”, the police may place conditions on the protest to prevent that harm. As I have indicated, when setting conditions, the police will be required to consider the likely number of people impacted by the noise, the likely duration and the intensity of the impact on those people. The police will also be required to act compatibly with the rights to freedom of expression and assembly of those generating the noise.
The word will take its natural meaning and it will ultimately be for the courts to interpret. Removing “unease” would raise the threshold at which conditions can be placed on the basis of noise. The police will be able to do so only where there is a risk of intimidation, harassment, serious alarm or serious distress. That would leave a gap where protesters could continue to cause harm to those in their vicinity through the level of noise they generate.
Amendments 296 and 301 in the name of the noble Lord, Lord Paddick, would require the police to obtain a High Court order before they can impose conditions on public processions and assemblies. This would be a significant departure from the framework in the 1986 Act. As the noble Lord will know, the nature of protests can change rapidly. It is vital that the police are able to respond swiftly to developments, and I fear that requiring them to seek permission from the High Court to place conditions does not recognise the fast-moving dynamics of policing a protest.
Public order commanders receive extensive training and guidance on the safe management of protests. Through the College of Policing’s authorised professional practice, their training and their continuous professional development, the police are continuously improving their ability to strike the correct balance between the rights of protesters and the rights of others.
Amendment 302 in the name of the noble Lord, Lord Dubs, would remove the ability for the police to place any necessary condition on an assembly, as they can currently do for processions. I have already explained the fluid nature of protest, and I re-emphasise the need for the ability to place conditions on assemblies and processions to be aligned. While giving evidence to the JCHR, Chief Constable Harrington detailed that it is not always evident when a procession becomes an assembly, or indeed vice versa, which makes the imposition of conditions for complex protest scenarios extremely challenging. He also stated that the limitations on what conditions can be placed on assemblies are not suitable for some of the assemblies they have had to police in the past. Ensuring that the range of conditions which can be placed on assemblies matches those currently available for processions would resolve both these issues.
Lord Dubs (Lab)
My Lords, I am grateful to the Minister for the detail with which she went through the amendments, which was helpful. It is far too late in the evening to have a point-by-point discussion about them; we will leave that for Report. I shall make just two or three brief comments.
First, I am not satisfied from what the Minister said that the existing police powers are not adequate for most of the situations described. It seems to me that the police are able to take action, and there may be only a limited number of additional respects in which they need more powers. I should like to examine that in more detail.
Secondly, there was widespread concern about the noise issue. I am grateful to the noble Lord, Lord Hogan-Howe, for what he said. Although I was on the human rights committee—and still am—I cannot remember whether the question of electronic amplification ever came up. I am very sympathetic to the criticism of noise that is amplified in that way. I may have missed a point or misremembered, but I certainly think that that is not acceptable. However, it would be of concern if noise without amplification was going to be subject to the more stringent measures proposed.
I repeat my gratitude to all Members of the Committee who have contributed to a very interesting if somewhat lengthy debate. I beg leave to withdraw the amendment.
The Deputy Chairman of Committees (Baroness Finlay of Llandaff) (CB)
I must inform the Committee that if Amendment 294 is agreed to, I cannot call Amendments 296 or 297 due to pre-emption.
Clause 55: Imposing conditions on public processions
Lord Beith
Member’s explanatory statement
This is based on a DPRRC recommendation. It removes the ability of the Secretary of State to make regulations defining “serious disruption to the activities of an organisation” and “serious disruption to the life of the community”, thereby requiring these terms to be defined on the face of the Bill.
Lord Beith (LD)
My Lords, this is a simple and straightforward amendment implementing the wishes of our Delegated Powers and Regulatory Reform Committee. It deals with the “serious disruption to … an organisation” and “serious disruption to the life of the community” provisions, which, instead of being set out in the Bill, are to be the subject of a statutory instrument, a draft of which, or parts of which, have already been circulated by the Government.
The Delegated Powers and Regulatory Reform Committee was quite clear that the affirmative procedure for a statutory instrument is wholly inadequate to anything as important and fundamental as this. An affirmative statutory instrument, being unamendable and debated only once in each House, was not in its view adequate. It considered that the definitions of the expressions in question should be added to the Bill to give Parliament the opportunity fully to debate them. It said:
“We consider that the definitions of the expressions ‘serious disruption to the activities of an organisation’ and ‘serious disruption to the life of the community’ are of such significance that they merit the fuller scrutiny afforded to Bill provisions and should therefore appear on the face of the Bill.”
It is not clear to me that it was necessary to have got into this territory at all. There is a complex potential conflict with ECHR provisions which will probably lead to the matter being resolved in the courts in any event. For us to allow Ministers to proceed by statutory instrument on a matter which could have such a profound effect on how these provisions operate in practice does not seem wise. I therefore strongly support the views of the Delegated Powers Committee and believe that either the Government should go ahead and include these provisions in the Bill or they should take this element out altogether.
Lord Judge (CB)
My Lords, we have not had time yet for all of us to read the report from the Secondary Legislation Scrutiny Committee or, for that matter, that of the Delegated Powers and Regulatory Reform Committee, whose paper is entitled Democracy Denied? The Urgent Need to Rebalance Power between Parliament and the Executive. I have read that, but I did not get round to the first.
We have to support our committees—that is why we have them; they are cross party. This is a tiny amendment of significance. The amendment does not propose any interference with the power to address the problem of serious disruption. It is not intended to address that. The submission is that the way in which the legislation is drafted, in Clause 55(4) and Clause 56(6), is completely unnecessary to enable justice to be done in whichever way the Government think it is appropriate for justice to be done.
Secondly—this is a bit naughty of me—I think the provision reflects a growing constitutional wheeze, what I call the “blank cheque wheeze”. It is this: the Executive tell the legislature to please legislate, and the legislature legislates—and, when it legislates, the Executive then tell the legislature what the legislation means. That is a blank cheque that we are being asked to give in these clauses.
As to the words, I know that it is quite late at night and so I shall be short, but do any of us here not understand two simple English words—“severe disruption”? I mean, come on, even the lawyers among us cannot think of a lot of differences. “Severe”, “serious”—get out your thesaurus. They are simple English words, and the two words put together make a perfectly clear picture of what is being addressed and sought to be protected.
This is unnecessary and a wheeze. We really must not allow the Executive to start treating this way of legislating—called in more elegant terms tertiary legislation —by saying, “We’ll tell you what it means when we get around to it”. The Secretary of State has started to tell us what it means. The place where we should be told what it means, if it does not mean what it says—and I think that it does mean what it says—is in a definition clause within the primary legislation.
Lord Hope of Craighead (CB)
My Lords, I put my name to Amendment 308 in the name of my noble and learned friend Lord Judge and shall say a few words in support of what he has just said. It was quite clear from the reply by the Minister to the previous group that these words, “serious disruption”, are the key to the proportionality of the clauses that we are considering. They are absolutely central to the whole proportionality of the scheme. Of course, if something does not amount to a serious disruption, the police take no action; if it does amount to that, within the ordinary meaning of the word, the police have authority to do so.
I mention that because, while I support entirely what my noble and learned friend has just said, there is an element of risk here, which I think the noble Lord, Lord Rosser, hinted at in his comments in the last group. It is the risk of lowering the threshold. Why else is the power being taken? If it is not in the present Home Secretary’s mind to lower the threshold, the risk is there. It is for that reason that I suggest there is a risk here that should be avoided.
There is also the point about the clarity of the legislation. One element of the rule of law is that the law should be accessible, and the more you attempt to define words by regulation and not in primary legislation, the more inaccessible the true meaning of the words becomes. It is not a way to go down—it is unnecessary, as my noble and learned friend said—and I hope very much that the Government do not proceed with this scheme.
Baroness Chakrabarti (Lab)
The noble and learned Lord is exactly right about this constitutional problem, but there is a further point to be made. In this context, it is not just the usual problem of allegedly unclear legislation that is then going to be sorted out by regulation later, and the relationship between the Executive and the legislature not as it should be. It is also in danger of interfering with police operational independence. To be explicit about this, my fear is that the police will take whatever view they take of what this legislation means in certain circumstances and do their best—and if a Home Secretary of the day, even well into the future, thinks that the police are being too lenient towards protesters, or perhaps there is a commotion in the media, regulations will be used further to define what “serious” and “disruption” mean so as to mandate the police effectively to be more heavy-handed than the natural meaning of the words would suggest.
Lord Paddick (LD)
My Lords, I can be relatively brief. Do not worry—it is a temporary blip.
Amendments 298, 308 and 319 question “serious disruption” being decided by the Secretary of State rather than being either defined in the Bill, as my noble friend Lord Beith proposes, or simply left to its natural meaning, as the noble and learned Lord, Lord Judge, suggests in his Amendment 308.
Lord Coaker (Lab)
My Lords, I very much support the amendments tabled here and the comments by the noble Lords, Lord Paddick and Lord Beith, the noble and learned Lords, Lord Judge and Lord Hope, and my noble friend Lady Chakrabarti.
I want to say a little more on the next group of amendments, so I will be quite specific with respect to this group. The example is used of the meaning of “serious disruption” and defining that in the Bill, but this is a problem right the way through Part 3. A number of terms are left either to future regulations or to the discretion of the police.
I will quote not the Delegated Powers and Regulatory Reform Committee but the Joint Committee on Human Rights, because I want to point out to the Committee the Government’s response, which points to a very real problem as we discuss the Bill. The Joint Committee on Human Rights says:
“Using multiple terms that are open to wide interpretation, such as ‘intensity’ and ‘serious unease’”—
okay, it does not say “serious disruption”—
“leaves an excessive degree of judgment in the hands of a police officer. This is likely to prove challenging to the police, who already have significant responsibility for ensuring that demonstrations are lawful and safe. It will also give rise to uncertainty for those organising and participating in demonstrations and fails to provide convincing safeguards against arbitrary or discriminatory use of these powers.”
Surely that is why the noble Lord, Lord Beith, and the others who have spoken are trying to give some clarity—I think that was the word that the noble and learned Lord, Lord Hope, used—to the legislation, so that the police and others know exactly what the legislation says they can or cannot do. More importantly, this Parliament is legislating for what it thinks is appropriate.
I have to say to the Minister—I do not know whether it is the noble Baroness or the noble Lord responding—that I was very disappointed in the response from the Government last month, before this Committee has discussed and thought about these amendments and listened to the arguments. Bear in mind that the Joint Committee on Human Rights referred to
“multiple terms that are open to wide interpretation”,
so, whatever anybody’s view, there are numerous phrases that people are concerned about. The Government’s response before this Committee met today was: “We reject this entirely.” That is the first sentence of the Government’s response.
Before the debate has happened and any points have been made on amendments tabled by the noble Lords, Lord Beith and Lord Paddick, the noble and learned Lord, Lord Hope, and my noble friend Lady Chakrabarti, the Government have rejected it all. What is the point of debates, discussions, arguments, clashes of views and opinions and well-meant and well-intentioned differences if, before we have even discussed it, the Government do not believe that using multiple terms presents a problem and are rejecting that view? It is not a case of “we will consider this”.
I have been a Minister and the normal ministerial response is, “We’re considering this. Some good points have been made and we need to consider how this is best reflected as we take this forward”. You would certainly have said that before a debate or discussion. This is the Government’s own response to the JCHR report that says that using multiple terms is open to wide interpretation.
The concern of the noble Lord, Lord Beith, is that “serious disruption” should be in the Bill. The Government have already rejected it. There is no listening to the debate: “We reject this entirely.” Those are the first four words—unbelievable. I will not say any more than that, because this speaks for itself, but I would like to know from the noble Baroness the Minister, if she is replying, what the point is of us debating these amendments, even if the Government disagree. There is well-put, well-intentioned and sometimes brilliant analysis of some points, but the Government have already rejected it in response to a committee report that says there is a problem with using multiple terms. It is just unbelievable.
They are an elected Government in the other place, and they will get their way. This is a revising Chamber, the purpose of which is to suggest to the Government where they might improve the legislation, even if we do not agree with it. If the Government have rejected this before we have even discussed it, what is the point? “We reject this entirely.” I am speechless about it, to be honest.
In responding to this debate, can the Minister explain who signed that off? Which Minister signed it off? I presume, if I am being fair, that it was missed. But it is a hell of a thing to miss before a debate in Committee, where the use of multiple terms such as “serious disruption”, “alarm” and “distress” concerns us all. Even if the Bill passes, we need some clarity around those terms. I will leave it there. I have more to say on the other groups of amendments, but I very much support what all noble Lords, and my noble friend Lady Chakrabarti, said about this and look forward to the Minister’s response.
Baroness Williams of Trafford (Con)
I have listened to the noble Lord loud and clear. Governments are urged to respond to Select Committee reports within two months, and only last week the noble Lord, Lord Faulkner, was pressing for the response to the DPRRC. I will say two things, and I will be brief, in response to the noble Lord, Lord Beith, and the two noble and learned Lords.
The Government are considering the DPRRC’s recommendation to list the definitions in the Bill, and I have listened to the points made loud and clear by the noble and learned Lords, Lord Judge and Lord Hope, and will consider them and the strength of their views. I assure noble Lords that we will publish our response to the DPRRC report very soon. With that, I hope the noble Lord, Lord Beith, will withdraw his amendment.
Lord Beith (LD)
My Lords, much as I would welcome publication of the response, what matters is what it contains and whether, even at this stage, the Minister recognises that it is still possible and well within the Government’s capacity to make an appropriate amendment on Report. I am not asking her to make a commitment to that effect, because she has obviously not been given the authority to do that, but we clearly have to return to this. I hope that we can do so on the basis of the Government recognising the point made by the Committee.
This is the trigger that allows police involvement in setting quite challenging conditions regarding protest and noise, which worry us a great deal. This is the key trigger, so for it not to be clear in the Bill or used in the sense in which people normally use it and understand it in courts is to imperil one of the key operating features of the Government’s proposals. I am not in the least enthusiastic about the Government’s proposals, but I think they should be coherent and capable of working. For that to happen, the Minister needs to look at this carefully. We will await what she brings forward on Report with interest. I beg leave to withdraw the amendment.
The Deputy Chairman of Committees (Baroness Fookes) (Con)
The question is that Clause 58 stand part of the Bill.
The Deputy Chairman of Committees (Baroness Fookes) (Con)
No. It is a clause stand part. I paused slightly, but if nobody wishes to speak to it—
Lord Coaker (Lab)
Is the Clause 58 stand part debate not in the next group?
The Deputy Chairman of Committees (Baroness Fookes) (Con)
Clause 58 stands on its own to be either agreed or not agreed. I think perhaps the noble Lord wishes to speak to an amendment. No?
The Deputy Chairman of Committees (Baroness Fookes) (Con)
Okay, but I think I need to put Clause 58 to the Committee now. The question is—
Lord Coaker (Lab)
I am sorry. On the Order Paper, it looks as though Clause 58 stand part is the lead amendment. Then there is a series of other amendments and clauses with it.
The Deputy Chairman of Committees (Baroness Fookes) (Con)
Yes, but I must put the question first. The question is that Clause 58 stand part of the Bill.
The Deputy Chairman of Committees (Baroness Fookes) (Con)
I did actually pause originally, but nobody spoke.
Lord Coaker (Lab)
I am not used to standing up and speaking. If I was in the other place, I would have shouted out.
The Deputy Chairman of Committees (Baroness Fookes) (Con)
Yes, but we do not shout here.
Lord Coaker (Lab)
Clearly. That is the problem. No, I am glad that we do not. It is sometimes a bit off-putting when there is a nobody shouting at me when I speak, but there we go.
The serious point I want to make is this. Obviously, we have come to Clauses 58 and 59, which relate to various changes to the law with respect to demonstrations outside Parliament. I want to make a general point, because I have not done that already. Some really fascinating points have been made about public protests: the right to protest and the need to balance that with people’s right to be able to go about their lawful business. Clause 58, headed “Obstruction of vehicular access to Parliament”, extends the area, while Clause 59 is headed “Power to specify other areas as controlled areas” and Clause 60 is headed “Intentionally or recklessly causing public nuisance”.
On Clauses 58 and 59, I think it was my noble friend Lord Dubs who made the point that many of us, including me, may well have not been able to protest if this law had been there. I am old enough to remember coming here, during a formative time for me as a local councillor in Cotgrave, which was a Nottinghamshire pit village, to demonstrate about pit closures, both in the mid-1980s, in and around the miners’ strike, and at the beginning of the 1990s, when the pit closure programme happened.
Lord Dubs (Lab)
My Lords, I support what my noble friend Lord Coaker has just said, but perhaps I may say a brief word about Amendments 315 and 316. They are there to improve the drafting of the offence to make it clear, first, that it is committed only when serious harm is done to the public, rather than to any one person, which is what the Bill’s wording is now, and, secondly, that when considering the reasonable excuse that the defence supplies, the court should take into account the importance of the rights guaranteed by Articles 10 and 11 of the ECHR. In other words, put simply, it is not about any one person but the public, and the courts should look at Articles 10 and 11 when coming to any decision about whether an offence has been committed.
Baroness Jones of Moulsecoomb (GP)
My Lords, for me, this is getting like election night. Any politician in the room will tell you that it is when you are really tired but you are so wired that you cannot possibly sleep anyway.
I have signed three of these amendments but I wanted to speak mainly to Amendment 315A. I am concerned about this whole part of the Bill, because it is far too broad and risks criminalising a host of innocent behaviour. We heard earlier about the right to move around. Today, I was stopped by the police outside and could not go for nearly 250 yards on the pavement because a band was going through. I love an Army brass band—it is absolutely fine—so I joined the crowds on the other side of the road who were all pushing and shoving. We often take away the right to move around, sometimes for good causes. I would argue that protest is a good cause.
As regards stopping traffic, let us remember that traffic jams cost us billions of pounds every year and millions of people are inconvenienced, with long times added to their journeys to work—working people who are delayed by traffic jams. This morning outside the Marlin Hotel on Westminster Bridge Road, three Mercedes were parked in the bus lane. The buses had to go around them, slowing all the traffic. What are the Government doing about that sort of thing? I contacted the police and sent them the registration numbers, so let us hope that they were caught.
The definitions in the Bill of serious harm are a mess because serious annoyance cannot be a crime—it is too difficult to define. You cannot put people in jail for just being annoying. I am sure that sometimes we would all like to, but you cannot do it. I am particularly worried, after the way in which Covid was policed early on, about the inclusion of disease in the new public nuisance offence. At the start of Covid—and possibly all the way through—every prosecution was wrongful. That was partly because—and I will be generous to the Government for once—the Government were confused and blurred the lines between law, guidance, advice and so on. As I have said before in your Lordships’ House, it was hard for the police because they did not know what they should be doing and became a bit overzealous. That may have been well intentioned but it was not appropriate. There were wrongful prosecutions and convictions as a result. Let us be a bit more careful about the definitions in the Bill, because I think that they will cause more problems.
We are all boasting about our qualifications for going on demonstrations and that sort of thing. My first demo was in 1968 for CND, of which I am still a member, and we are still fighting nuclear weapons—but that is another issue. I argue that the Government are taking chaos and ambiguity to new heights and I urge them not to allow the dangerous and confusing language in the Bill to go through because it is certain to lead to injustice.
Lord Paddick (LD)
My Lords, as we have heard, this group contains two completely different issues: protection of the routes around Parliament and potential places where Parliament may sit while renovation work is undertaken; and the new statutory offence of public nuisance. How putting these two issues into one group is supposed to save time, I have no idea.
Clause 58 is about the obstruction of vehicular access to Parliament. Noble Lords, particularly those with mobility issues, have had difficulty accessing Parliament, particularly during Extinction Rebellion demonstrations, although I would not describe the Prime Minister being hindered from attending Prime Minister’s Questions in September 2020 as someone with mobility issues, unless you are talking about levelling up. It is a bit late for subtle jokes like that.
These provisions go much further. They expand obstruction to include
“making the passage of a vehicle more difficult.”
Presumably, any delay caused, even slow-moving traffic, would be covered by such an offence, and this could potentially criminalise any protest within the expanded controlled zone outlined in these proposals. Protests that have resulted in Members of Parliament being prevented from accessing Parliament have been few and far between, which suggests that the existing provisions are adequate. Clause 58 is unnecessary.
Clause 59 allows the Secretary of State to move the controlled area in the event of either House of Parliament being relocated because of building works under the restoration and renewal programme. This enables the Secretary of State to impose restrictions on protest to whatever area she thinks fit, however wide, by regulations. Parliament has no chance to question or vary the extent of the controlled area; it must either accept or reject the proposal made by the Secretary of State. The clause also gives the Secretary of State power to
“make provision for any other enactment, or any instrument made under an enactment, to have effect with modifications in consequence of regulations”
under this provision. This is too much power given in regulations to the Secretary of State, who could effectively ban protest almost anywhere within a wide area around any place where Parliament may be relocated to. Clause 59 is too broad and should not stand part of the Bill in its current form.
Parliament is at the heart of democracy in this country, but what about other institutions and organisations that are also important to the democratic process? What about news broadcasters or print journalists who hold politicians generally, and the Government in particular, to account? Where is the protection from protests aimed at disrupting a free media, such as the blockading or invading of television news and radio studios and newspaper printworks? This looks very much like protecting the Government and Government Ministers while doing nothing to protect those who hold the Government and Government Ministers to account.
Clause 60 creates a new statutory offence of public nuisance, as recommended by the Law Commission, but the provision appears to be far too wide and could potentially impact on all protests. Liberty’s briefing quotes Lord Justice Laws, who said in the case of Tabernacle v the Secretary of State for Defence in 2009:
“Rights worth having are unruly things. Demonstrations and protests are liable to be a nuisance. They are liable to be inconvenient and tiresome, or at least perceived as such by others who are out of sympathy with them.”
If someone is seriously annoyed or inconvenienced, or is put at risk of being seriously annoyed or inconvenienced, by someone doing something, that person commits an offence if they intend to seriously annoy or inconvenience the public or a section of the public.
Almost every protest could be criminalised by this provision, and not just public protests on the streets, as the noble Lord, Lord Coaker, has said. Are the Government a “section of the public”? If they are, take me away now. As a minority party in this House, we are, very often, unable to change what the Government plan to do, but we can seriously annoy the Government by pointing out the error of their ways and by holding them to account for their actions. Even if we do not have the intention of doing the Government serious harm—maybe—we may be at least reckless as to what harm it causes. Are we too to be criminalised by this provision, however much some noble Lords might like us to be?
The Government will point to the “reasonable excuse” defence contained in the provisions, but that applies only once a person has been charged with an offence under these provisions. The provisions do not say that a person commits an offence if, without reasonable excuse, the person does an act. Therefore, the police would be justified in arresting and charging people who believed that they had a reasonable excuse because the reasonable excuse provision applies only once a person has been charged.
We oppose in its entirety this provision as drafted, but we have Amendment 314, which removes the obstruction of
“a section of the public in their exercise of a right that may be exercised or enjoyed by the public at large”
from these provisions, to at least narrow the extent of this proposed new offence. A counterdemonstration against a far-right group, for example, would be caught by the provisions of this new offence as drafted, but not as we suggest that it should be amended. We support Amendment 315, as far as it goes, in attempting to ensure that the serious harm applies not just to one person but must be caused to the public, further limiting the extent of the offence.
We also support Amendment 315A tabled by the noble Baroness, Lady Morrissey, to leave out serious harm to a person if, as a result, the person suffers disease. As the noble Baroness, Lady Jones of Moulsecoomb, has said, we saw during the coronavirus pandemic, particularly with the attempt the ban the vigil for Sarah Everard on Clapham Common, restrictions on protest on public health grounds. That is why the police intervened in the Sarah Everard vigil. They felt that there was a public health risk. Although the provisions under which the Sarah Everard vigil was done have been repealed, this appears to be an attempt to reintroduce them. As drafted, it matters not whether the protesters intend to spread disease. They must only be reckless as to whether it would have such a consequence.
We also support Amendment 316—again, as far as it goes—but we would prefer there to be a reasonable excuse provision added to the offence itself, as I have said before, rather than protesters, for example, having to raise their reasonable excuse in court. People such as protesters, who have a reasonable excuse, should not be arrested in the first place. They should not be charged, and they should not have to appear in court. With respect to the noble and learned Lord, Lord Etherton, I am sure that his amendment is right, but I am not sure that it is necessary. However, I am sure that the Minister will enlighten us.
This clause needs to be withdrawn and thought through again.
Baroness Williams of Trafford (Con)
My Lords, I am grateful to all noble Lords who have spoken in this debate on Clauses 58 to 60. These three clauses will help ensure unimpeded vehicular access to Parliament and implement the Law Commission’s recommendation to codify in statute the common-law offence of public nuisance.
The noble Lord, Lord Coaker, mentioned pressure from “wherever” regarding Clause 58. In fact, the clause gives effect to a recommendation by the Joint Committee on Human Rights, of which Harriet Harman is chair, to protect the right of access to the Parliamentary Estate for those with business there, including, of course, Members of your Lordships’ House. The clause amends the Police Reform and Social Responsibility Act 2011 to allow a police officer to direct an individual to cease, or not begin, obstructing vehicular access to the Parliamentary Estate. If a person does not comply with a direction, they will be committing an offence and may be arrested. Currently, parliamentarians and others conducting business in the Palace can face delays in entering and leaving Parliament via vehicular entrances, both impeding the functioning of our democracy and creating a security risk, with vehicles held stationary while police clear the way.
I should stress at this point that this power does not stop people protesting in the vicinity of the Palace of Westminster. Those who want to protest outside Parliament can continue to do so but, if asked by a police officer, must allow the passage of vehicles through the Palace’s gates or face the consequences.
Should Parliament need to relocate for any reason, such as the ongoing restoration and renewal works, Clause 59 provides the Home Secretary with the power to designate a new controlled area around Parliament’s new temporary location. This would ensure that the protections afforded by the Police Reform and Social Responsibility Act 2011, as amended by this Bill, applied wherever Parliament relocated to.
Clause 60 implements the Law Commission’s recommendation that the common-law offence of public nuisance should be codified in statute. We heard last week calls for the Government to be more diligent in implementing Law Commission recommendations, so I hope noble Lords will support and welcome this measure. Putting the long-standing common-law offence of public nuisance into statute will provide clarity to the police and potential offenders, giving clear notice of what conduct is forbidden.
We have followed the Law Commission’s recommendation as closely as possible. In doing so, we are narrowing the scope of the existing common-law offence. That is being achieved by retaining the use of the terms “distress”, “annoyance”, “inconvenience” and “loss of amenity” within scope of the offence but by requiring that these harms be “serious”. We are also increasing the fault element of the offence. Currently, a person would be guilty through negligence; under the new offence, that is raised to intent or recklessness. Finally, we have made it a defence for a person to prove that they had a reasonable excuse for their act or omission that caused a public nuisance.
The Law Commission’s report stated that as the offence is intended to address serious cases for which other offences are not adequate, if a maximum sentence is set then it should be high enough to cover these cases. We have therefore set the maximum custodial sentence at 10 years. It is worth noting that that is lower than the current unlimited maximum sentence available under the common-law offence.
I turn to the amendments tabled to Clause 60, beginning with Amendment 314 in the name of the noble Lord, Lord Paddick. As the clause is currently drafted, the offence is committed if a person’s act or omission causes serious harm to the public or a section of the public, or obstructs the public in the exercise or enjoyment of their rights. The amendment would limit the scope of the offence to only where serious harm is caused to the public. That would significantly narrow the scope of the offence. Most forms of public nuisance will, by their nature, impact on only a section of the public rather than the public generally.
However, I believe it is right that the offence be committed if it affects a section of the public. It is a fundamental part of the common-law offence of public nuisance that not every member of the public need be affected but a section of the public must be. Similarly, the offence should include where the rights of the public are infringed; the Law Commission concluded it is right to do so. For example, the effect of excessive and persistent noise or the release of a foul-smelling substance or gas in a public place may affect only a small number of local residents but potentially affects any member of the public who enters the relevant area.
Amendment 315 flows from a JCHR recommendation that aims to clarify that this offence is not committed if serious harm is caused to a person. That would be achieved by removing the word “person” from the definition of “serious harm”. I understand that the noble Lord is trying to clear up ambiguity as to whether an offence of public nuisance can be committed to a person, but I remain to be persuaded that the amendment is strictly necessary. Subsection (1) of the clause already sets out that the offence of public nuisance can be committed only against the public or a section of the public, with the references to persons in the definition of “serious harm” being an interpretive provision that does not affect the scope of the offence. That said, I am ready to consider this point further ahead of the next stage.
The amendment would also raise the threshold at which the offence is committed where an individual put the public at risk of serious harm. The amendment would raise that to “serious” risk of serious harm. We have followed the Law Commission’s recommendations in setting the scope of the offence and the thresholds at which it will be committed. The commission conducted a rigorous consultation on the offence, and it is right that, in this instance, we follow the recommendations set out in the report.
Lord Coaker (Lab)
I do not know whether it is for me to move the first amendment in the group.
“Offence of locking on
(1) A person commits an offence if—(a) they intentionally—(i) attach themselves to another person, to an object or to land,(ii) attach a person to another person, to an object or to land, or(iii) attach an object to another object or to land,(b) that act causes, or is capable of causing, serious disruption to—(i) two or more individuals, or(ii) an organisation,in a place other than in a dwelling, and(c) they intend that act to have a consequence mentioned in paragraph (b) or are reckless as to whether it will have such a consequence.(2) It is a defence for a person charged with an offence under subsection (1) to prove that they had a reasonable excuse for the act mentioned in paragraph (a) of that subsection.(3) A person guilty of an offence under subsection (1) is liable on summary conviction to imprisonment for a term not exceeding 51 weeks, to a fine or to both.(4) In relation to an offence committed before the coming into force of section 281(5) of the Criminal Justice Act 2003 (alteration of penalties for certain summary offences: England and Wales), the reference in subsection (3) to 51 weeks is to be read as a reference to 6 months.(5) In this section “dwelling” means—(a) a building or structure which is used as a dwelling, or(b) a part of a building or structure, if the part is used as a dwelling,and includes any yard, garden, grounds, garage or outhouse belonging to and used with a dwelling.”Member’s explanatory statement
This amendment creates a new offence of “locking on”, involving the attachment of an individual to another individual, to an object or to land, or an object to another object or to land. It is a requirement of the offence that the act causes or is capable of causing serious disruption to two or more individuals or an organisation and that the accused intends that to occur or is reckless as to whether it will occur.
Baroness Williams of Trafford (Con)
My Lords, the amendments tabled in my name are in response to the significant and repeated disruption we have seen over the last months by a small number of protesters. Their behaviour has clearly demonstrated that the balance between the rights of protesters and the rights of others tips far too far in favour of the protesters.
It is completely unacceptable for a minority of protesters to repeatedly and deliberately cause serious disruption to members of the public trying to go about their daily lives: trying to get to work or trying to get to hospital. Additionally, some of the tactics we have seen have been extremely dangerous, placing the police and the public, and the protesters themselves, at serious risk of harm.
We cannot have sections of our transport infrastructure or other critical infrastructure brought to a halt by a small group of protesters, whatever their cause. As I said in an earlier debate, we accept that some level of disruption is to be expected and tolerated from protest actions, but there is a line to be drawn. Insulate Britain, Extinction Rebellion and others have overstepped that line. The sentences recently handed down for breaches of the injunction obtained by National Highways demonstrate that clearly.
These amendments will strengthen the police’s ability to respond to the types of protests we have seen and reflect the seriousness of that type of behaviour. We need to update the criminal law and police powers to deter and prevent such wholly unacceptable disruption taking place. Civil injunctions have their place, but they are not enough on their own.
Amendments 319A and 319B introduce new offences of locking on and going equipped to lock on. These offences are designed to deter individuals from engaging in lock-on tactics, which cause serious disruption to the public and organisations. Lock-ons waste a considerable amount of police time and some, such as those on the side of buildings or on tripods or similar temporary structures erected by protesters, place the police and the protesters themselves at serious risk of injury or even death.
The locking-on offence will be committed where individuals attach themselves to other individuals, objects or land, or attach objects together or to land. It would be an offence only if their act causes or is capable of causing serious disruption. Furthermore, there must be an intention to lock on, and the offender must intend to cause, or be reckless as to causing, serious disruption. If found guilty of this offence, an individual will be liable to a maximum penalty of an unlimited fine, six months in prison or both. The offence will apply to lock-ons that cause, or are capable of causing, serious disruption on public and private land. However, private dwellings, including people’s houses, will be excluded.
Supporting this measure is the new offence of “going equipped to lock on”. This offence will apply where a person has with them an object with the intention that it will be used, either by themselves or someone else, in the course of or in connection with a lock-on. In this case, the maximum penalty is an unlimited fine.
Amendment 319C increases the maximum penalties for the offence of obstruction of the highway and clarifies the scope of the offence. Currently, individuals found guilty of this offence face a maximum fine of only £1,000. Recent actions by Insulate Britain have shown that this is disproportionality low compared with the widespread misery and disruption that an obstruction of a major road can cause. Anyone found guilty of this offence will now face an unlimited fine, up to six months in prison or both.
Additionally, this amendment clarifies that the offence is still committed even if free passage along the highway in question has already been suspended. This is to address the defence that some have used, claiming that they were not guilty of obstructing the highway because they joined a protest after the police had already closed the road to ensure protesters’ safety while they were being removed.
Amendment 319D creates a new offence of obstructing major transport works, such as airports, roads, railways and ports. As noble Lords will know, protesters have caused huge disruption in the construction of HS2. Additional costs to the project resulting from protester actions alone are estimated at £80 million. That is unacceptable.
Protesters have been able to evade conviction for highly disruptive and dangerous acts, such as tunnelling under Euston Square Gardens, on effectively a technicality, namely that HS2 was not carrying out construction work on the site at the time of the occupation. This new offence will make it clear that obstructing the construction, and preliminary work to construction, of important transport infrastructure constitutes criminal activity and that the Government see this as a serious offence.
Acts in scope of this offence would include interfering with construction apparatus or obstructing the surveying of land prior to the commencement of construction. Such behaviour will carry a maximum penalty of an unlimited fine and/or six months’ imprisonment.
The amendment defines “major transport works” as any works that are
“authorised directly by an Act of Parliament”
or by development consent orders under the Planning Act 2008. This would capture transport works of strategic importance that support the levelling up of our transport infrastructure across the country.
Lord Beith (LD)
Will the Minister explain that a little further? In relation to the recent announcement about not proceeding with the Yorkshire leg of HS2 but instead carrying out a variety of other works, does that mean that these other works, which are not separately sanctioned by Parliament, will not be included within the scope of the clause?
Baroness Williams of Trafford (Con)
Yes—it is confined to works that are authorised directly by an Act of Parliament, so, if they have not been, they are not in scope. As I said, the amendment would capture transport works of strategic importance that support the levelling up of our transport infrastructure.
To ensure that the police have the ability to proactively prevent protesters causing harm, we are introducing supporting stop and search powers for these and other protest-related offences. In its March 2021 report on policing protests, Getting the Balance Right?, HMICFRS argued that new stop and search powers could help police to prevent disruption and keep the public safe.
Amendment 319E amends Section 1 of the Police and Criminal Evidence Act 1984 to allow a police constable to stop and search a person or vehicle where they reasonably suspect that they will find an article made, adapted or intended for use in the course of committing one or other of the offences relating to locking-on offences, public nuisance, obstructing a highway or obstructing major transport works. While this power will significantly help police in preventing protesters using highly disruptive tactics, in a fast-moving protest situation it is not always possible for the police to form suspicions that certain individuals have particular items with them. Therefore, Amendment 319F provides for a police officer of the rank of inspector or above to authorise the use of the suspicionless stop and search power.
I have just been passed a note that says that Amendment 319D defines major transport works as any works that are
“authorised directly by an Act of Parliament”
or by development consent orders under the Planning Act 2008. That further clarifies my response to the question of the noble Lord, Lord Beith.
Lord Beith (LD)
That is very helpful of the Minister. It probably means that the announcement made last week about HS2 not proceeding but various other kinds of rail works going ahead will mean that none of those alternative rail works will be covered by these provisions.
Baroness Williams of Trafford (Con)
It depends on whether they have been authorised directly by an Act of Parliament or by development consent orders under the Planning Act 2008. I will not pretend to know the detail of that at this point, but I can get the noble Lord the detail, if he would like me to.
Amendment 319F provides for a police officer of the rank of inspector or above to authorise the use of the suspicionless stop and search power. This mirrors the powers currently available to the police under Section 60 of the Criminal Justice and Public Order Act 1994. As with existing Section 60 powers, this power can apply only in a specific locality and for a maximum of 24 hours, with the option to extend it if deemed necessary by a senior police officer. Amendments 319G to 319J make further provisions in respect of the suspicionless stop and search powers, in line with the existing Section 60 stop and search powers.
Finally, Amendment 319K introduces serious disruption prevention orders, or SDPOs. These new preventive court orders are designed to tackle protesters who are determined to repeatedly cause disruption to the public. There are two circumstances in which they can be made. A court will be able to impose an SDPO on conviction where an individual has been convicted of a protest-related offence and has been convicted of an earlier protest-related offence.
Lord Paddick
Member’s explanatory statement
This would limit the offence to an act that causes serious disruption.
Lord Paddick (LD)
My Lords, we now come to the most controversial part of the Bill: the Government’s new public order amendments. They have not been debated before in either House—and this debate started at 11.49 pm. Is this any way to conduct legislation?
I have amendments 319AA, 319AB, 319AC, 319BA, 319BB, 319BC, 319DA, 319DB, 319DC, 319L, 319M, 319N, 319P, 319Q, 319R, 319S, 319T and 319U in this group, all of which are, of course, amendments to the Government’s amendments. If I took just two minutes for each of those amendments, that would be 36 minutes. I will speak to each of the government amendments in turn; I will then add what Liberty has said to noble Lords in its excellent briefing on each amendment. I will then outline our proposed amendments to each government amendment in turn. We oppose all the Government’s amendments.
Government Amendment 319A concerns locking on. I have to ask: how much of a problem is this? Yes, it is inconvenient and annoying but it is temporary, and the police are becoming quite accomplished at unsticking. The amendment includes the phrase
“causes, or capable of causing, serious disruption”
so there does not even need to be serious disruption for this offence to be committed. It refers to serious disruption to two or more people or an organisation. Is a counterdemonstration to stop Holocaust deniers marching past a synagogue, or an Islamophobic organisation marching past a mosque, causing serious disruption to two or more people or an organisation? What does “capable of causing” mean? If it were on a different road or at a different time, it would be capable of causing serious disruption. But if it is 3 am on a Sunday, is that still capable of causing serious disruption? It is difficult to say because “serious disruption” will be defined by the Secretary of State in regulations only after the Bill has received Royal Assent.
Amnesty has talked about case law having established that protestors have a right to choose the manner of conduct of their protest. That is an important aspect of freedom of assembly. I too will quote from Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services, which said that “most interviewees”—junior police officers—
“did not wish to criminalise protest actions through the creation of a specific offence concerning locking-on.”
Can the Minister explain why the Government have gone against what the police want where this is concerned?
Our Amendment 319AA would leave out “is capable of causing” so that the offence applies only if there actually is serious disruption. Amendment 319AB leaves out
“or are reckless as to whether it will have such a consequence”,
so that there must be an intent to cause serious disruption, while Amendment 319AC’s insertion of
“not exceeding level 2 on the standard scale”
is to probe whether an unlimited fine is proportionate to this offence.
Government Amendment 319B concerns going equipped to lock on. “Going equipped” offences have always been difficult as they often involve innocent articles where the intent has to be proved. You could buy a tube of superglue to repair a broken chair at home, then get caught up in a protest and be accused of going equipped for locking on, for example. Amnesty’s briefing asks, in relation to
“in the course of or in connection with”,
whether having a megaphone that might be used to shout encouragement to those intending to lock on is going equipped with something for use “in connection with” locking on. How broad is this offence?
Our Amendment 319BA would leave out “in connection with” to probe how broad that phrase is. I hope the Minister will be able to explain. Our Amendment 319BB would
“leave out ‘any person’ and insert ‘them’”
so that the offence applies only if the person carrying the equipment intends to lock on, while our Amendment 319BC is to probe whether an unlimited fine is proportionate.
Government Amendment 319C contains an increased penalty for highway obstruction. As the Minister mentioned, it does not matter if the road is already blocked. This is sentence inflation again—more people in prison for non-violent offences. The current offence involves only a fine. I can understand that the Government might want to lock people up, but sit-down protests are an important part of freedom of expression and assembly. The chilling effect if people fear being sent to prison will be considerable.
Government Amendment 319D is about the obstruction of major transport works. This is a blatant and direct attack on climate change protesters, covering such projects as HS2, with its impact on biodiversity; new roads, which will create more traffic; and new airport runways, such as the third runway at Heathrow. So when the Prime Minister carries out his promise to lay down in front of the bulldozers, he will be committing this offence. Amnesty questions whether construction workers picketing such sites would be committing an offence. Could the noble Baroness say whether this would apply to them?
Our Amendment 319DA would remove an undertaker
“taking … steps that are reasonably necessary for the purposes of facilitating, or in connection with, the construction or maintenance of any major transport works”,
because we feel that this is far too broad. Amendment 319DB would remove interfering with or moving apparatus, again because we think this offence is far too broad. Our Amendment 319DC probes whether an unlimited fine is proportionate for such an offence.
Government Amendment 319E provides the police the power to stop and search for anything made, adapted or intended for use in the course of or in connection with highway obstruction, public nuisance, locking on or the transport infrastructure offence. This is a massive expansion of an already contentious power—the power of the police to stop and search—at a time when trust and confidence in the police is low. It would apply the power to a whole range of new offences, providing the police with a whole new range of excuses to stop and search people. This power would allegedly be on the basis of reasonable suspicion, but other stop and search powers exercised on this basis result in the police allegedly “reasonably suspecting” black people eight times more than white people. The police did not ask for this power, and some do not want it, so why are the Government doing this?
Amnesty quotes the report from Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services, which says:
“Some of the most intrusive and contentious … powers are those that allow the police to use force and to stop and search people.”
Police suggested 19 new powers they wanted in connection with policing protests, and this was not one of them. One police officer told HMICFRS that
“a little inconvenience is more acceptable than a police state”,
and HMIC agreed with the sentiment. This amendment could result in black and other minority ethnic people being deterred from protesting, and police could seize banners, placards and all sorts of legitimate props used in protests.
Government Amendment 319F would provide the power to stop and search without suspicion. We have already proposed the removal of the last remaining stop and search power without suspicion, Section 60 of the Public Order Act. Section 44 of the Terrorism Act, another suspicionless stop and search power, has already been repealed, and Section 60 needs to follow. When we debated an amendment to a previous part of the Bill, we set out comprehensively why stop and search without suspicion should not be exercised for anything, as it is hugely damaging to police-community relations and ineffective. Disproportionality increases—from being eight times to 18 times more likely to be stopped and searched if you are black—and only one in 100 searches under Section 60 resulted in a weapon being found, the purpose for which it is now being used by the police. Objects can be seized, retained and disposed of, as set out in regulations. We have only just seen the proposed primary legislation, let alone the regulations. We cannot think of any useful amendments to this provision; we simply oppose these powers being included in the Bill.
Lord Beith (LD)
My Lords, I strongly support my noble friend. When I came to this House, I was told that this was a place in which, line by line, we scrutinise legislation to make sure that, whatever its policy objectives, it is properly constructed, workable law. I was also told that we pay particular attention to things that have not been debated fully in the Commons. I came here happily, ready to try to assist in that sort of thing.
That is not what we are doing now. These proposed new clauses have not been considered by the House of Commons. They were not sent to us from the House of Commons; nor were they tabled when they could have been. In her introductory remarks, the Minister did not give us any indication as to why we are getting them at this stage and why they were not tabled in the Commons, or at least at the beginning of Committee stage in the Lords. It seems to me that political considerations have taken precedence over all considerations relating to making good law and, indeed, policing protests satisfactorily and effectively.
This is so unsatisfactory because this group of proposed new clauses covers at least five fundamental issues, to which my noble friend referred. The new offence of locking on is a completely new offence with no obvious precedent in existing law; it therefore requires pretty careful consideration, first, as to whether it is necessary and, secondly, as to what the consequences will be of having on the statute book provisions as bizarre-sounding as some of them are. I will not trouble the Committee with the details at this late hour, but locking on and
“being equipped for locking on”
are wholly new elements being introduced into our criminal law.
Then we have “search without suspicion”. We succeeded in excising that from other, earlier legislation, but here it comes back to us. Subsection (7) of the new clause proposed by Amendment 319F states:
“A constable may, in the exercise of the powers conferred by subsection (6), stop any person or vehicle and make any search the constable thinks fit whether or not the constable has any grounds for suspecting that the person or vehicle is carrying a prohibited object.”
Should the person concerned, perhaps out of the sort of anxiety that has arisen after the Sarah Everard case, feel that they are being asked to do something unreasonable, perhaps even dangerous, they must remember this:
“A person commits an offence if the person intentionally obstructs a constable in the exercise of the constable’s powers under section (Powers to stop and search without suspicion).”
This is very discomforting language to find in legislation.
That is two fundamental issues already. Then we have “obstruction of highway”. The Minister explained the reason for one of the odder provisions in that proposed new clause, but it has a rather bizarre effect. Let us say that the road outside your house has been blocked for a week or two by some public undertaking supposedly carrying out works, although you never see any workmen there or anything happening; that is a fairly regular occurrence. You decide with your neighbours to protest about this, so you all gather in the road and effectively block the road, perhaps to the machine that the company has at least brought along. If the company says to you, “You’re blocking the road”, and you say, “No, you’re blocking the road. We’re protesting at you blocking the road”, you are still committing an offence because you are blocking the road—even though it is already blocked. That is what is provided for under this legislation. Sometimes one must look at the secondary consequences of legislating badly.
Then there is “Obstruction etc of major transport works”. I tried to assist the Minister in making this a little clearer; she was very helpful in producing the note that she had been given. However, again, there is a slightly bizarre effect. Having announced that we will not get the rest of HS2 to serve us in the north but, in various other ways, lines will be improved and some bits of new railway will be put in, none of that is covered by any of the provisions referred to, as far as I can see—not that the people of the north are eager to stop rail improvement. Perhaps some of these issues will not arise but, again, if you try to write legislation around an individual set of circumstances that has arisen, you get into trouble. You turn into general law attempts to deal with very specific cases.
Then we come to the issue to which my noble friend Lord Paddick gave particular attention: serious disruption prevention orders. Here, again, I must refer to the work of the Delegated Powers and Regulatory Reform Committee. It described the orders, some of their features and the fact that they can be imposed on people who have not been convicted of any offence—the orders are not limited to the prevention of criminal conduct, either—by saying that the proposed new clause
“allows the Secretary of State to issue guidance to chief officers of police and chief constables in relation to SDPOs, including … identifying persons in respect of whom it may be appropriate for applications for SDPOs to be made”.
I am genuinely puzzled as to what that means or what the consequences will be.
Lord Paddick (LD)
My Lords, I apologise. I forgot to speak to five more amendments: Amendments 319Q, 319R, 319S, 319T and 319U, which remove the ability for SDPOs to be renewed.
Baroness Chakrabarti (Lab)
My Lords, I will be brief and not repeat the valid and chilling points that have already been made. I just say this: for me to even attempt a line-by-line examination of this whole suite of new amendments would result in not just the Leader coming in to censor me again, but me probably being arrested. I am not going to do that, but I will try to say two things that noble Lords have not said yet.
On locking on and in particular going equipped for locking on, and stop and search with or without suspicion of locking on, I am worried not about the glue referred to by the noble Lord, Lord Paddick, but about people with bicycle locks. I am worried about young people going about their business, sometimes riding to a demonstration or being in the vicinity of potential demonstrations, carrying bicycle locks. I cannot see how they are not potentially in jeopardy, en masse, of both the stop and search powers, and going equipped.
Secondly, as a former Home Office lawyer and a director of Liberty, to me, this suite of measures, which could be a Bill in itself, looks, smells and tastes a lot like anti-terror legislation of the kind that I have always opposed as being disproportionate and counterproductive. Whether it is the new orders, the stop and search powers, including suspicion, or offences including thought crimes, this new Bill within a Bill looks like some of the anti-terror powers that, when they were introduced, noble Lords opposite and elsewhere, and I and some of my noble friends—forgive me, I hope—looked the other way. Those powers have inspired what we see here, but this time they are not for terrorists but protesters.
Baroness Fox of Buckley (Non-Afl)
My Lords, the Minister gave a powerful justification for upgrading and updating the criminal law to deal with these new forms of protest. She made the point that the general public have had enough, and we recognise that. We have all seen instances of workers begging protesters to let them through to go to work, parents trying to get ill children to hospitals and so on. We have seen frustration turn to fury and people often taking action on their own, dragging protesters away as the police have stood by. At least this section of the Bill makes sense to me based on that motivation, but we have spent hours and hours on previous sections on banning the types of protest in Part 3, which was justified on the basis that it was dealing with those kinds of actions, when in fact none of the measures that we previously discussed would deal with them at all.
The measures that we previously discussed in Part 3 elicited some very fine speeches about the right to protest. I was struck most recently by the speech by the noble Lord, Lord Coaker, which I related to. We were probably on the same miners’ demos. It properly and entirely understood why people were demanding the right to protest. All those fine words were effectively shot down by the Minister on the basis that these are things that we need to do to deal with Extinction Rebellion and these different kinds of protest. In fact, the only dealings that I had when I got caught up in an Extinction Rebellion protest—I mean that I was trying to get through it, rather than that I was on it, in case anyone panics—was when they were doing a five-hour silent vigil in mime. There was no noise involved. But we have spent all that time discussing how noise is going to trigger the police having a huge amount of power to deal with those people.
I find it utterly galling, because now we have a set of amendments, and at least I can understand why the Government have brought them in—and the public will think that they will tackle what they are furious about—and we should therefore, in this House, be able to scrutinise them line by line, as has been explained. People will probably like the locking-on offence—I say “people”, meaning that there might be popular support for it. But the noble Lords, Lord Paddick and Lord Beith, have done a really good take-down of what the consequences of these measures would be beyond the headlines, and people might be less keen on the equipped to lock-on offence. Certainly, when they work out the frightening aspects of the serious disruption prevention orders, they might want to think again. The “causing and contributing to” aspect, as the noble Lord, Lord Paddick, noted, really is a very serious threat to free speech—absolutely. And this is a Government who claim all the time that they are here to defend free speech, but they are introducing, without even casually noting it, something that would absolutely have a damaging effect on free speech.
Maybe I am wrong, and maybe the Government could persuade us that these special kinds of protests need special laws, in which case we should have hours and hours to discuss it. Instead, here we are, fed up, having discussed a whole range of other legislation that was supposed to deal with these issues when in fact, it did not; and now, the things which might deal with those issues we do not have time to discuss. It is frustrating for all of us.
Baroness Jones of Moulsecoomb (GP)
When Boris Johnson was Mayor of London, he brought in a rule about not drinking on the tube, which was a solution in search of a problem—because it was not a problem at the time. But it immediately made me want to run out, buy a bottle of gin and go drinking on the tube, because it was such a stupid rule. This provision is a little bit like that: I do not really want to carry a tube of superglue around, but I have on many occasions carried a bike lock. It is absolutely ludicrous.
When the Minister read out the list of amendments, my heart sank. Although I had looked at them all individually, somehow hearing them one after the other made me feel that this is totally wrong. If the Government do not withdraw all these amendments, we should vote against the Bill in its entirety.
The Minister talked about protestors, referring to the issue of whatever their cause may be. But the HS2 protestors, of whom I consider myself one, have actually been trying to save precious things for the nation. It is not fun to be out on a picket line, being shoved around by security guards and hassled by the police constantly. I was standing next to one man on a picket line who said, “I retired last year and I thought I would be birdwatching, but here I am holding a placard”. Those are the sorts of people who have been protesting about HS2; they have been trying to save precious eco-systems for the nation, for all of us, and to prevent the chopping down of ancient woodlands. We really cannot dismiss these people as troublemakers, deserving of all these amendments. I admire the attempts of the noble Lord, Lord Paddick, to improve these measures, but it is a hopeless case.
The Government are very quick to talk about the views of the public and what the public want, perhaps from a few clips on TV and a few emails, but on the sewage amendment to the Environment Bill, they had thousands and thousands of emails, but they absolutely ignored them and carried on allowing sewage to be pumped into our rivers and on to our coastline. So please do not tell me that the public want this. The public did not want sewage, but the Government ignored that. The Government pick and choose to suit themselves what they design legislation around.
As the noble Lord, Lord Beith, mentioned, there is also the late tabling of these amendments. It is a democratic outrage. They are of such legal significance and such a threat to people’s human rights that they should be the subject of a whole Bill, with public discussion about it, public consultation, human rights declarations and equalities impact assessments. Every MP should be furious that they have been bypassed, because the only scrutiny they will get is, if they are lucky, a quick 20 minutes during ping-pong to find out what they are all about. Because they are whipped, they will probably not pay any attention to it anyway. This is nothing more than a naked attack on civil liberties and a crackdown on protest, and we must oppose it for both what it is and how it is being done.
Lord Oates (LD)
My Lords, I will speak specifically to government Amendments 319F to 319J on powers to stop and search without suspicion, and Amendment 319K and subsequent amendments on serious disruption orders. Before I do, I add to the comments made by just about all noble Lords on the outrageous way in which the Government have proceeded in this matter. To bring this number of amendments, introducing, as they do, among other things, unlimited fines, wide-ranging suspicionless stop and search powers, the creation of criminal liability on the basis of the civil burden of proof, with powers of indefinite renewal, at such a late stage in the Bill and at this time of night amounts to absolute contempt of Parliament. I may not get to say this often when we are in Parliament together, but on this matter I agree with every word that the noble Baroness, Lady Fox, had to say.
I turn to powers to stop and search without suspicion. As the Minister explained it and as other noble Lords have commented, this provides an extraordinary power, exercisable by any police officer in an area where an inspector or above has delegated that locality, under a whole series of offences. We already know how stop and search powers are abused. We know how disproportionate they are. My noble friend Lord Paddick set out the stark figures.
You do not have to take it from the Liberal Democrat Benches or the other Opposition Benches. We have heard a lot quoted from the former Prime Minister and Home Secretary this evening, but it is worth reminding the Committee of the issues that she has highlighted over suspicionless stop and search and the dangers that causes: the undermining of trust in the police and all the problems that come with that.
The noble Baroness, Lady Chakrabarti, raised the important point that people on bicycles travel with locks. We all have locks on our bicycles. I should be interested to know the Government’s answer. Government Amendment 319J provides for 51-week imprisonment—nearly a year—for anyone who obstructs a police officer who, without suspicion, demands the right to search them. This is not how you stop protest; it is how you cause it.
As if that is not enough, we have heard about government Amendment 319K, which introduces serious disruption prevention orders, creating criminal liability based on the civil burden of proof, and imposing a series of potential restrictions on individuals. The penalty for breaching any of those conditions is imprisonment. As my noble friend Lord Paddick said, these are protest banning orders, and they have no place in our society.
Baroness Hamwee (LD)
My Lords, the noble Baroness, Lady Jones, gave some well-deserved compliments to my noble friend Lord Paddick, but he was not trying to improve these proposed clauses. He was trying to show why they should not go forward, and he did.
There are many points that puzzle me, but I will ask about two. First, on prevention orders, is the phrase “causing or contributing to” used elsewhere in legislation? Certainly, “contributing” is a vaguer term than I have come across elsewhere. Would it extend to financial contributions? Is a response to a crowdfunding appeal caught by it?
The second point, to which my noble friend Lord Beith referred, relates to Amendment 319J. It refers a person who
“intentionally obstructs a constable in the exercise of the constable’s powers”.
How does that fit with the advice given after Sarah Everard’s abduction and murder about requiring another constable to be called, flagging down a bus, and so on? I simply do not understand the policy.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, this is my first contribution on this Bill in your Lordships’ House. It is nice to be back.
I am pleased to join my noble friends replying to the debate by setting out the position of the Opposition on the new clauses before us. First, I want to say that this is no way to do business, as has been said. To introduce clauses of such magnitude, complexity and controversy to a Bill in the House of Lords, with the Bill already having left the elected House, is just wrong. It is no way to treat the House of Commons, where the Government have a huge majority; no way to treat the House of Lords; no way to treat Parliament; and, as we have heard from the noble Lord, Lord Oates, no way to treat the public, whatever their view on the matters before us today.
If the Government felt that they needed these powers, they should have introduced a separate Bill in the Commons and treated Parliament, not least the elected House, with some respect. None of us wants to be here at this late hour but the Government have left us no opportunity to do otherwise.
I make it clear that we do not support these clauses that have been added to the Bill in Committee today, and we expect the Government to withdraw them. I also want to be clear that when we come to the Motion on the order in which we will consider the clauses on Report, we expect that these clauses will not be considered until the new year in the last part of our Report-stage consideration of the Bill. If the government Motion does not put that down clearly, I will move a Motion to achieve just that, and I think we will be successful in getting that Motion through the House. I hope the Minister can confirm that these clauses will be debated in the new year at the end of Report.
The Government are creating problems for themselves, and we have seen by their actions in recent weeks that that is nothing new. As I said, the Government are introducing at the last minute clauses that we are not able to consider properly, even today. They were published just a week ago. That is totally unacceptable.
I want to be clear that I condemn the actions of the Insulate Britain protesters. Their tactics are wrong and counterproductive. We have seen images of protesters gluing themselves to roads and people desperate to get their relatives to hospital, and that is completely wrong. I support the right to protest. I have protested, marched, sung, waved placards, stood in line and locked arms with the best of them, and have been doing so for 43 years. Having strong views, being passionate about what you believe in and making your voice heard are good things in a democracy; that is what living in a democracy is about. The Government must recognise that, even though sometimes the protesters do things they do not like. That can be irritating—as my noble friend Lord Coaker said, we can all be irritated when we cannot get across the bridge to come into Parliament or go down the road—but, equally, the way that this has been done is counterproductive and completely wrong.
My honourable friend the Member for Tottenham, Mr David Lammy, said:
“The police have got to have the powers to deal with these issues … endangering lives, creating a situation in which an ambulance travelling with a patient can’t get to the hospital—someone ended up with paralysis as a result of some of these actions—I’m afraid is totally, totally unacceptable.”
I agree with him entirely on that. It is right that the police have the powers that they need to deal with this unacceptable behaviour—but what powers do they genuinely need? What powers are missing? What powers would be effective? What would be the impact of what the Government are suggesting?
It is crucial to remember that although we are responding only to one particularly crass protest, the law that we are debating tonight would not apply to that one crass protest but to all peaceful protest, and that is the issue here. We must be thoughtful and get it right, and that is why the Government’s handling of this issue is so wrong. For me, the key question is: is none of the powers at the disposal of the police and law enforcement today fit for purpose? Is there nothing that can be done? I have key concerns about stop and search and the proposed disruption orders, and a number of questions for the Minister.
I hope that she can set out for us the organisations—the police forces, the National Police Chiefs’ Council or the police and crime commissioners—that have been demanding these powers and these specific tools in front of us tonight. Can the Minister give us more details about why the protesters cannot be dealt with under Acts such as the Public Order Act 1986? Why is it not sufficient? I thought—maybe I am wrong—that, under that Act, if a senior police officer reasonably believes that actions will give cause for serious disruption, they can give directions about where a protest can be held and for how long, and it is an offence to breach those conditions. Can that not limit this action? Maybe I am wrong, and they have got that.
Regarding lock-ons, are we really suggesting that if I go on a protest with my noble friend Lord Coaker, and we hold arms together—lock on—we are committing an offence? Are we suggesting that?
Lord Kennedy of Southwark (Lab Co-op)
Yes, absolutely. Are we really suggesting that? Lock-ons are not new, but what is the basis being used here for dealing with these protesters? Is it only, for example, about taking attachments such as glue or locks? I think I have a padlock sitting on my desk in the office; this is just nonsense. These clauses would affect just two people together; that would have prevented the suffragettes protesting. When we do tours in Parliament, we often stop in St Stephen’s Hall and show our guests the statue that the suffragettes locked themselves on to; we talk about it. Clearly that would have been an offence then, and it is an offence now. If you locked yourself on to the Downing Street gate, I am sure that would be an offence now, so why do we not have the powers already?
Of course, we have powers, so I want to understand why we need to do this. Many people have mentioned the pledge by the Prime Minister in the 2015 election. He was going to
“lie down … in front of those bulldozers”
to stop the third runway. He has pledged other things as well. He would be potentially criminalising himself if he went and did that.
On suspicion-less stop and search, and the serious disruption prevention orders, the Government are mirroring laws that currently exist for serious violence and knife crime. Unless I am wrong, and I am sure the Minister will correct me if I am, these measures apply to peaceful protesters, not people carrying knives or causing violence, and that is a huge issue for us. The noble Lord, Lord Beith, referred to the report of the Delegated Powers and Regulatory Reform Committee, chaired by the noble Lord, Lord Blencathra, a Member on the Conservative Benches. I looked at some of the points made by the committee. It said:
“We consider that new section 342V contains an extreme example of a power to issue guidance on the exercise of statutory functions. It allows the Secretary of State to influence the exercise by the police of functions that could prove to be highly controversial—including identifying persons in respect of whom the courts may make serious disruption prevention orders under which people who have not been convicted of any offence—and are not considered to be at risk of offending—may nonetheless be made subject to restrictions on liberty backed by criminal penalties.”
That is pretty extreme, and that is being suggested by the party opposite. I hope that the Government will read very carefully what is being suggested here by the committee.
In conclusion, it is very important that we do not consider these issues until the new year. These are very controversial proposals, whether you agree with them or not, and the fact that we are debating them at 1 o’clock in the morning is not a good place for any of us to be. We need to ensure that they are discussed in the new year and that we keep scrutinising them. I hope the Government will listen to the debate tonight and to the report from the Delegated Powers Committee, and will come back on Report to ensure they temper these measures, because at the moment they are totally unacceptable and would not be passed by the House.
Baroness Williams of Trafford (Con)
My Lords, I thank all noble Lords who have spoken to these amendments. Amendment 319AA would limit the offence of locking on—on the point made by the noble Lord, Lord Paddick, the deputy commissioner has in fact welcomed this offence—to cases where serious disruption had been caused, thereby excluding from the ambit of the offence cases where the use of a lock-on has not caused serious disruption but where the conduct is capable of doing so. Removing this element of the offence would make it possible for those who engage in such behaviour to evade prosecution. This could happen if they were quickly removed by the police or if they removed themselves from the lock-on after having caused some disruption which did not meet the threshold of “serious”.
In a similar vein, it is necessary that the offence can be committed if a person locks on and was reckless as to whether it would cause serious disruption. Amendment 319AB would remove this and have the offence be committed only if there was intent to cause serious disruption. If this amendment were made, a person who is aware of the risk of causing serious disruption but unreasonably took that risk anyway would not be captured by the offence.
What matters here is the protester’s intention and/or the impact of their actions. It may simply be fortuitous that the action of locking on did not cause serious disruption, but, if that was the intent, we believe the offence should apply. Equally, if there was not an intention to cause serious disruption but it was a risk of which they were aware and they unreasonably took that risk, again we believe that such conduct should be covered by the new offence.
A few noble Lords talked about bikes, specifically people innocently going about their business with a bike lock. It is a defence for a person to prove that they had a reasonable excuse for carrying the equipment in question. For example, carrying a bike lock for the purposes of locking one’s bike to a designated space for bikes could be considered a reasonable excuse. The prosecution must also demonstrate that the person intended to use the item in the course of or in connection with the lock-on offence.
A couple of noble Lords asked whether this was a ban on protests. HMICFRS concluded that protest banning orders would not be compatible with human rights, but the report considered only orders that would outright ban an individual from protesting. The two are quite different. SDPOs grant the courts discretion to impose any prohibitions and requirements necessary to protect the public from protest-related offences, breaches of injunctions and serious disruption. Depending on the individual circumstances, this might mean that the court will not consider it necessary to stop individuals attending protests. Also, a court as a public authority must not act incompatibly with protesters’ Article 10 and Article 11 rights. This means that the court must decide whether making an SDPO is proportionate in an individual case.
Amendments 319AC, 319BC, 319DC and 319P seek to probe the maximum fine for the new offences created by the government amendments. What were level 5 fines, or a maximum of £5,000, were replaced in 2015 as a result of reforms introduced by the coalition Government through the Legal Aid, Sentencing and Punishment of Offenders Act 2012. We think that an unlimited fine is appropriate in the case of these new offences; a level 1 or level 2 fine, as proposed by the noble Lord, would not, in our view, reflect the seriousness of the conduct in question. An unlimited maximum fine allows courts to determine the level of any fine on a case-by-case basis, having regard to the gravity of the offence and the ability of the offender to pay.
Amendment 319BA probes what objects it will be a criminal offence to possess under the “in connection with” limb of the going equipped to lock-on offence. This could include items that supported the deployment of a lock-on but did not form a part of it—for example, tools to set up structures to be used in the course of a lock-on.
Amendment 319BB would limit the offence such that a person would only be guilty of going equipped to lock on if they are carrying the equipment to commit the lock-on offence themselves. This would mean that a group of protesters could each legally carry items to lock on for use by others in the group.
Amendment 319DA would limit the scope of the offence to where a person obstructs the setting out of lines for major transport works or actual construction or maintenance. We think that it is necessary to include acts that obstruct steps necessary for facilitating construction. This would include steps such as environmental surveys and the translocation of species. If protesters delay ecological surveys into nesting or hibernation season, construction works may be delayed by a period of a year, potentially adding millions to the cost of HS2.
Amendment 319DB seeks further to narrow the scope of the offence to omit activity where a person interferes with, moves or removes any apparatus necessary for the works. This amendment would enable protesters to interfere with works without committing the offence simply by interfering with equipment rather than the relevant works. It is necessary that this limb of the offence remains.
Finally, turning to the amendments on serious disruption prevention orders, one of the circumstances in which an order can be imposed is when at least two protest-related offences have been committed. Amendments 319L and 319M seek to raise the burden of proof for demonstrating that two offences were protest related from “on the balance of probabilities” to “beyond reasonable doubt”. We have had this debate before, including in the context of serious violence reduction orders, and it is our view that these are civil orders and that it is therefore entirely appropriate for the civil standard of proof to apply in the making of an order. It is already the case that the court must consider the SDPO necessary to prevent a person committing harmful protest-related acts. In the event of a prosecution for breach of an order, of course the prosecution would need to prove the case beyond reasonable doubt.
Amendment 319N removes the ability of the courts to impose an SDPO on application. We think it is essential that the courts should have the power to impose an order in such circumstances. It will allow SDPOs to be placed on those who are intent on causing unjustifiable disruption at a protest but who have not met the criteria for an SDPO on conviction. It is entirely right that, where there is sufficient evidence of a pattern of behaviour that an SDPO be imposed. The public should not have to risk unjustifiable disruption caused by an individual who the police knew was likely to cause such disruption simply because they did not have two prior protest-related convictions. This would mean that even if someone had two convictions, if the application was not made at the time of the second conviction, an application could not be made until they were convicted of a third protest-related offence. This approach is consistent with other risk-based civil orders that may be made in the absence of a conviction—for example, domestic abuse protection orders.
Amendments 319Q to 319U remove the ability for a court to renew an SDPO. Where there is strong evidence that that an individual would go on to cause serious disruption, it is appropriate that the facility exists for SDPOs to be renewed.
Very finally, on the point raised by the noble Lord, Lord Beith, on the DPRRC report, we consider that the negative procedure for the SDPO’s statutory guidance to be appropriate, but we are studying the report and will respond soon.
The question of causing or contributing to felt like a bit of an exam question at the end of quite a long day. I have three Acts in which causing or contributing feature: the Water Act 2014, the Climate Change Act 2008 and the Football Spectators Act 1989. On the question of the noble Lord, Lord Kennedy, about whether these measures will be taken in the new year, the answer is yes.
I am obviously disappointed that the noble Lords, Lord Paddick and Lord Kennedy, have signified their objections to the amendments tabled today but, given that, I will not move them. However, the Committee should be in no doubt that we will retable them for Report and, if necessary, seek the opinion of the House. With that, I beg leave to withdraw Amendment 319A.
Lord Kennedy of Southwark (Lab Co-op)
Before the noble Baroness sits down, I want to be absolutely clear about something. I am sure that the answer must be yes, but it would be good to hear it from her, as this is my first time speaking from the Dispatch Box on this Bill. On these SDPOs, I always thought that we operated on the basis that you were innocent until proven guilty in this country; we would all defend that right. These orders can be imposed and have an effect on people who are totally innocent of any crime whatever. Can she confirm that, as it is good to get it absolutely clear on the record? If that is the case, as I am sure it is, that is totally outrageous.
That and other reasons are exactly why we need to ensure that there is the maximum amount of time to enable this House and people outside it to discuss and debate these issues. For that reason, I think it is absolutely right that these amendments be withdrawn. Can these orders be imposed on totally innocent people who have committed no crime?
Baroness Williams of Trafford (Con)
Does the noble Lord want a response on the nature of the orders?
Lord Kennedy of Southwark (Lab Co-op)
I want confirmation that the Government intend to bring orders in which would be imposed on totally innocent people who have committed no crime.
Baroness Williams of Trafford (Con)
They are civil orders; they are preventive measures.
Lord Paddick (LD)
If I can assist the House, the first amendment moved in the group was that of the noble Baroness, not mine.
The Deputy Chairman of Committees (Baroness Finlay of Llandaff) (CB)
Amendments 319AB and 319AC are not called because they were amendments to the amendment.
The Deputy Chairman of Committees (Baroness Finlay of Llandaff) (CB)
Amendments 319BA to 319BC are not called because they were amendments to the amendment.
The Deputy Chairman of Committees (Baroness Finlay of Llandaff) (CB)
Amendments 319DA to 319DC are not called because they were amendments to the amendment.
The Deputy Chairman of Committees (Baroness Finlay of Llandaff) (CB)
Amendments 319L to 319U are not called because they were amendments to Amendment 319K.
Lord Stewart of Dirleton
“2A_ In the table in section 122(1) (standard scale of fines for summary offences)—(a) in the heading of the second column, for “1 October 1992” substitute “1 May 1984”;(b) between the second and third columns, insert—
“Offence committed on or after 1 May 1984 and before 1 October 1992 |
£50 £100 £400 £1,000 £2,000”” |
This amendment makes a minor amendment to the Sentencing Act 2020 to correct an omission from that Act in relation to the standard scale of fines for historical summary offences.
Lord Stewart of Dirleton (Con)
My Lords, as an unacceptable substitute for my noble friend Lord Wolfson of Tredegar and in the light of the hour, I will simply move the amendment formally.
Lord Coaker (Lab)
Sorry, can I just ask a question? Does this change make any difference? The only reason I ask is because my noble friend Lord Kennedy and I—we are very good friends—looked at this and did not understand it properly, in particular, where it said
“in the heading of the second column, for ‘1 October 1992’ substitute ‘1 May 1984’”.
Given that that is eight years earlier, does that make any difference if you were fined during that period? Will you now get a fine in the post, or will something happen to you? Is it retrospective or does it not make a difference? I just worry that, because of the lateness of the hour, we pass something and then in a month or two—or even three or four months—we find that lots of people start moaning and complaining, quite rightly, that they have suddenly had a letter in the post. Can the noble and learned Lord just explain that to us?
Lord Stewart of Dirleton (Con)
I think that I can assist: the provision is not truly retrospective. The Sentencing Act 2020 makes it clear that the repeal of relevant provisions by the Act for the purpose of consolidating sentencing law into the Sentencing Code should not change how the law operates. I hear the noble Lord’s concerns, including that this matter is coming out so late. I will raise it with my noble friend in the Ministry of Justice and he will communicate with the noble Lord in order that these matters can hopefully be clarified to the noble Lord’s satisfaction.
Lord Coaker (Lab)
That is very helpful. I thank the noble and learned Lord.
Lord Stewart of Dirleton
“(2A) In paragraph 34, in the opening words, for “omit” substitute “in”.”Member’s explanatory statement
This amendment corrects an error in paragraph 34 of Schedule 22 to the Sentencing Act 2020, which refers to the omission of subsection (4) of section 257 of that Act rather than providing for the amendment of that subsection.
Lord Stewart of Dirleton
“(ca) section (Expedited procedure for initial regulations about remote observation of proceedings);”Member’s explanatory statement
This amendment provides for the new Clause after Clause 170 in the name of Lord Wolfson of Tredegar to extend to England and Wales, Scotland and Northern Ireland.
Lord Stewart of Dirleton
“(6A) Sections 167 and 168 extend to England and Wales, Scotland and Northern Ireland.”Member’s explanatory statement
This amendment provides for Clauses 167 and 168 to extend to England and Wales, Scotland and Northern Ireland (in consequence of their expanded scope as brought about by the amendments in the name of Lord Wolfson of Tredegar at page 187, line 17 and page 190, lines 27 and 28).
Lord Stewart of Dirleton
“(u) sections 167 and 168;(ua) section (Expedited procedure for initial regulations about remote observation of proceedings);”Member’s explanatory statement
This provides for Clauses 167 and 168, and the new Clause after Clause 170 in the name of Lord Wolfson of Tredegar, to come into force on Royal Assent.
Police, Crime, Sentencing and Courts Bill
Wednesday 8th December 2021
(2 years, 5 months ago)
Lords ChamberRead Full debate Police, Crime, Sentencing and Courts Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 72-I(b) Amendments for Report (Supplementary to the Marshalled List) - (8 Dec 2021)
18:53 - Division on Viscount Hailsham’s Motion. - Ayes: 125 / Noes: 162 - Viscount Hailsham’s Motion disagreed.
19:08 - Division on Amendment 1 - Ayes: 211 / Noes: 82 - Amendment 1 agreed.
Lord Wolfson of Tredegar
“Required life sentence for manslaughter of emergency worker
(1) The Sentencing Code is amended in accordance with subsections (2) to (15). (2) In section 177 (youth rehabilitation orders), in subsection (3)(b)(i), after “258” insert “or 258A”.(3) In section 221 (overview of Part 10), in subsection (2)(b), for “section 258” substitute “sections 258 and 258A”.(4) In section 249 (sentence of detention under section 250), in subsection (2)(a), for “section 258” substitute “sections 258 and 258A”.(5) In section 255 (extended sentence of detention), in subsection (1)(d), after “258(2)” insert “or 258A(2)”.(6) After section 258 insert—“258A Required sentence of detention for life for manslaughter of emergency worker(1) This section applies where—(a) a person aged under 18 is convicted of a relevant offence,(b) the offence was committed—(i) when the person was aged 16 or over, and(ii) on or after the relevant commencement date, and(c) the offence was committed against an emergency worker acting in the exercise of functions as such a worker.(2) The court must impose a sentence of detention for life under section 250 unless the court is of the opinion that there are exceptional circumstances which—(a) relate to the offence or the offender, and(b) justify not doing so.(3) For the purposes of subsection (1)(c) the circumstances in which an offence is to be taken as committed against a person acting in the exercise of functions as an emergency worker include circumstances where the offence takes place at a time when the person is not at work but is carrying out functions which, if done in work time, would have been in the exercise of functions as an emergency worker.(4) In this section “relevant offence” means the offence of manslaughter, but does not include—(a) manslaughter by gross negligence, or(b) manslaughter mentioned in section 2(3) or 4(1) of the Homicide Act 1957 or section 54(7) of the Coroners and Justice Act 2009 (partial defences to murder).(5) In this section—“emergency worker” has the meaning given by section 68;“relevant commencement date” means the date on which section (Required life sentence for manslaughter of emergency worker) of the Police, Crime, Sentencing and Courts Act 2021 (required life sentence for manslaughter of emergency worker) comes into force.(6) An offence the sentence for which is imposed under this section is not to be regarded as an offence the sentence for which is fixed by law.(7) Where an offence is found to have been committed over a period of 2 or more days, or at some time during a period of 2 or more days, it must be taken for the purposes of subsection (1)(b) to have been committed on the last of those days.”(7) In section 267 (extended sentence of detention in a young offender institution), in subsection (1)(d), for “or 274” substitute “, 274 or 274A”.(8) In section 272 (offences other than murder), in subsection (2)(b), for “or 274” substitute “, 274 or 274A”.(9) After section 274 insert—“274A Required sentence of custody for life for manslaughter of emergency worker(1) This section applies where— (a) a person aged 18 or over but under 21 is convicted of a relevant offence,(b) the offence was committed—(i) when the person was aged 16 or over, and(ii) on or after the relevant commencement date, and(c) the offence was committed against an emergency worker acting in the exercise of functions as such a worker.(2) The court must impose a sentence of custody for life under section 272 unless the court is of the opinion that there are exceptional circumstances which—(a) relate to the offence or the offender, and(b) justify not doing so.(3) For the purposes of subsection (1)(c) the circumstances in which an offence is to be taken as committed against a person acting in the exercise of functions as an emergency worker include circumstances where the offence takes place at a time when the person is not at work but is carrying out functions which, if done in work time, would have been in the exercise of functions as an emergency worker.(4) In this section “relevant offence” means the offence of manslaughter, but does not include—(a) manslaughter by gross negligence, or(b) manslaughter mentioned in section 2(3) or 4(1) of the Homicide Act 1957 or section 54(7) of the Coroners and Justice Act 2009 (partial defences to murder).(5) In this section—“emergency worker” has the meaning given by section 68;“relevant commencement date” means the date on which section (Required life sentence for manslaughter of emergency worker) of the Police, Crime, Sentencing and Courts Act 2021 (required life sentence for manslaughter of emergency worker) comes into force.(6) An offence the sentence for which is imposed under this section is not to be regarded as an offence the sentence for which is fixed by law.(7) Where an offence is found to have been committed over a period of 2 or more days, or at some time during a period of 2 or more days, it must be taken for the purposes of subsection (1)(b) to have been committed on the last of those days.”(10) In section 280 (extended sentence of imprisonment), in subsection (1)(d), for “or 285” substitute “, 285 or 285A”.(11) After section 285 insert—“285A Required life sentence for manslaughter of emergency worker(1) This section applies where—(a) a person aged 21 or over is convicted of a relevant offence,(b) the offence was committed—(i) when the person was aged 16 or over, and(ii) on or after the relevant commencement date, and(c) the offence was committed against an emergency worker acting in the exercise of functions as such a worker.(2) The court must impose a sentence of imprisonment for life unless the court is of the opinion that there are exceptional circumstances which—(a) relate to the offence or the offender, and(b) justify not doing so.(3) For the purposes of subsection (1)(c) the circumstances in which an offence is to be taken as committed against a person acting in the exercise of functions as an emergency worker include circumstances where the offence takes place at a time when the person is not at work but is carrying out functions which, if done in work time, would have been in the exercise of functions as an emergency worker.(4) In this section “relevant offence” means the offence of manslaughter, but does not include—(a) manslaughter by gross negligence, or(b) manslaughter mentioned in section 2(3) or 4(1) of the Homicide Act 1957 or section 54(7) of the Coroners and Justice Act 2009 (partial defences to murder).(5) In this section—“emergency worker” has the meaning given by section 68;“relevant commencement date” means the date on which section (Required life sentence for manslaughter of emergency worker) of the Police, Crime, Sentencing and Courts Act 2021 (required life sentence for manslaughter of emergency worker) comes into force.(6) An offence the sentence for which is imposed under this section is not to be regarded as an offence the sentence for which is fixed by law.(7) Where an offence is found to have been committed over a period of 2 or more days, or at some time during a period of 2 or more days, it must be taken for the purposes of subsection (1)(b) to have been committed on the last of those days.”(12) In section 329 (conversion of sentence of detention to sentence of imprisonment), in subsection (7)(a), after “258” insert “or 258A”.(13) In section 399 (mandatory sentences), in paragraph (b)(i)—(a) for “258, 274 or 285” substitute “258, 258A, 274, 274A, 285 or 285A”;(b) omit “dangerous”.(14) In section 417 (commencement of Schedule 22), in subsection (3)(d), for “and 274” substitute “, 274 and 274A”.(15) In Schedule 22 (amendments of the Sentencing Code etc)—(a) after paragraph 59 insert—“59A_ In section 285A (required life sentence for manslaughter of emergency worker), in subsection (1)(a), for “21” substitute “18”.”;(b) in paragraph 73(a)(ii), after “274” insert “, 274A”;(c) in paragraph 101(2), after “274,” insert “274A,”.(16) In section 37 of the Mental Health Act 1983 (powers of courts to order hospital admission or guardianship)—(a) in subsection (1A)—(i) after “258,” insert “258A,”;(ii) after “274,” insert “274A,”;(iii) for “or 285” substitute “, 285 or 285A”;(b) in subsection (1B)—(i) in paragraph (a), after “258” insert “or 258A”;(ii) in paragraph (b), for “or 274” substitute “, 274 or 274A”;(iii) in paragraph (c), for “or 285” substitute “, 285 or 285A”.”Member’s explanatory statement
This amendment inserts into the Sentencing Code provisions that require a court to impose a life sentence on an offender who is convicted of unlawful and dangerous act manslaughter against an emergency worker acting in the exercise of their functions as an emergency worker.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
My Lords, it is my pleasure to open the debate on the Report stage of this Bill. I stand to add the proposed new clause, after Clause 2, as printed on the Marshalled List.
This amendment, known as Harper’s law, will impose mandatory life terms on those who are convicted of unlawful act manslaughter, where the victim is an emergency worker who is acting in the exercise of their functions as such a worker. The amendment will apply to adult offenders, and to 16 and 17 year-olds. As the House will see, it contains a judicial discretion for the court to impose an alternative sentence in exceptional circumstances.
It may assist noble Lords if I provide a brief overview of manslaughter—I do not propose to turn this into a lecture—and the manner in which this amendment will work. The amendment applies to those convicted of manslaughter, but the proposed new Sections 258A(4), 274A(4) and 285A(4) of the Sentencing Code are provisions to explicitly exclude those convicted of gross negligence manslaughter, as well as those convicted of manslaughter following a successful partial defence to a charge of murder—for example, manslaughter by reason of diminished responsibility, loss of control or in pursuance of a suicide pact. As a result and by process of statutory elimination, the provisions will apply only to those who have been convicted of manslaughter by an unlawful and dangerous act, more commonly referred to as “unlawful act manslaughter”.
The Government are making this amendment following the death of PC Andrew Harper in August 2019. I am sure the House is familiar with the horrific facts of that case. PC Harper was responding to reports of the attempted theft of a quad bike. He suffered fatal injuries when he became caught in a strap trailing behind a getaway car and was dragged behind it. At their trial in July 2020, PC Harper’s three killers were acquitted of murder but were all convicted of unlawful act manslaughter.
The jury was therefore satisfied that the unlawful and dangerous actions of the defendants, namely the plan to steal the quad bike and then escape apprehension by whatever means possible, including driving dangerously along winding country roads, amounted to manslaughter. The court did not impose life sentences on any of the defendants. Each received sentences of between 13 and 19 years for the manslaughter of PC Harper, sentences that were subsequently upheld by the Court of Appeal. They will therefore all be incarcerated for a significant period. But the Government believe that, where a person is convicted of unlawful act manslaughter, and the person who has been killed is an emergency worker acting as such, that should be punished with life imprisonment.
The court will be able to impose a different sentence where there are exceptional circumstances. As covered in Committee, that term is already used in law and is deliberately undefined in legislation to allow for interpretation and application by the court. This will ensure that the court can apply a different sentence where justified, such as where there are exceptional circumstances relating either to the offence or the offender.
The successful campaign of PC Harper’s widow Lissie Harper and the Police Federation drew this issue to the Government’s attention, but this was not an isolated incident. While, thankfully, emergency workers are not often killed on duty, they are required to put themselves at particular risk when carrying out their duties and protecting the public. As is often said, they run towards the danger when others run away from it. I therefore beg to move Amendment 1.
Viscount Hailsham (Con)
I rise to express my grave concerns about this new clause, which I hope will not be enacted, although I am bound to say that I am rather pessimistic about that.
I will begin by saying something about procedure. I regret that this new clause is being brought forward on Report. The formal announcement of it was by way of a press release on 24 November this year. As the Minister has said, the new clause was triggered by the very distressing case of the killing of PC Harper. We need to keep in mind that the relevant trial took place in July 2020, and it came before the Court of Appeal for consideration in December that year. I suggest that it is hard to see why the new clause could not have been introduced in the House of Commons or, if that were not possible, in Committee in this House. In either event, there would have been a greater opportunity for discussion, both inside and outside Parliament.
All of us will have the greatest sympathy for PC Harper’s wife and family. However, we should be very cautious about legislating as a consequence of a single case or even a number of cases, however distressing they may be. I have referred to the trial in 2020 and the decision of the Court of Appeal in December that year. My noble friend referred specifically to them. In both those cases, very serious and detailed consideration was given to the appropriate sentence, and, as my noble friend has said, the Court of Appeal rejected the submission of the Attorney-General that, in the case of the defendant Long—the most culpable of them—the sentence should be increased to a life sentence.
I suggest that anyone who studies the judgments of the courts, together with the guidelines of the Sentencing Council—the relevant ones were published as recently as November 2018—will be satisfied that the existing law makes proper provision for the punishment of offenders convicted of serious offences of manslaughter and gives proper protection to emergency workers.
As your Lordships will know, manslaughter covers a very broad spectrum of culpability, extending from the very serious—the killing of PC Harper is an example of this—to many things that are very much less serious, such as a single blow that fells an individual, who strikes his head on the pavement and dies. In all conscience, that is an act of common assault, although the consequences are dreadful.
In the case of PC Harper, the trial judge stated that, had the defendant Long been a few years older— he was 19 at the time of the trial and 18 at the time of his offence—he would probably have been given a life sentence. So we need to be clear about this. A life sentence is already available for serious cases of manslaughter, where the trial judge, who has heard all the relevant facts, thinks that such a sentence is appropriate. Your Lordships are being asked to approve a mandatory life sentence in circumstances in which the trial judge might otherwise determine that one is not appropriate. I am deeply uncomfortable with that, especially when I consider the broad spectrum of culpability that arises in manslaughter cases.
Consider a police officer who intervenes in a street brawl, in or out of uniform—it might be a plain-clothes officer. The officer is struck by a single blow or trips in the course of a scuffle. He or she falls, hits their head on the pavement and dies. If the deceased person had been a civilian killed in such circumstances, the court would impose a relatively modest determinate sentence, but, in the case of the police officer and subject to the subsection (2) provisos, which I will shortly mention, the court would have to impose a life sentence. I do not believe that that can be right.
I said that I would speak briefly, if your Lordships would allow me, to proposed new subsection (2), which was briefly referred to my noble friend the Minister. Subsection (2) refers to the exceptional circumstances that relate to the offence or the offender and make it just not to impose a life sentence. The question that arises and must be considered is: what does that mean? Does that mean that, if the judge thinks that the offence falls at the lower level of culpability, a modest determinate sentence can properly be imposed? If that is the case, what is the purpose of the new clause? If such a discretion is not available to the trial judge, it is surely inevitable that injustice will happen on occasions.
At that point, we come to a related matter. We are talking here about not “whole life” cases but life-sentence cases in which a trial judge must impose a custodial tariff. Is the trial judge entitled under these provisions to set a modest determinate tariff in order to address a low level of culpability? If that is the case, what is the point of the new clause? If it is not the case and the trial judge may not impose a modest tariff, it is extremely unjust.
I have one final point, and I acknowledge that it is about drafting. Consider the following circumstances, which fall within proposed new subsection (3)—I will not read it out because it is on the Marshalled List and I do not want to detain your Lordships’ House. An off-duty officer in plain clothes, whose identity as a police officer is not apparent, intervenes in a street brawl or seeks to apprehend a fleeing thief. In the scuffle, he or she falls over, hits their head and dies. Is it right that, in those circumstances, such a defendant should automatically face a life sentence, unless the subsection (2) provisos apply?
I am profoundly uncomfortable with this new clause, and I would like to think that it will not pass.
Baroness Butler-Sloss (CB)
My Lords, I share the serious concerns of the noble Viscount. Given the degree of pressure that the Government have been under, understandably, after the shocking death of the police officer, they may have strayed too far into imposing upon the judiciary something that is not necessary, in my view. If they remain concerned about the extent to which the Sentencing Council may not have properly reflected the seriousness of an emergency officer being killed, it is perfectly simple to ask it to reconsider this. I suspect that, in the light of PC Harper, it might well do so.
Following what the noble Viscount has just said, I am particularly concerned about the off-duty, plain-clothes police officer, fireman or anybody else who intervenes—very properly, feeling it is his or her duty—and suffers a fatal injury. The situation is as the noble Viscount said: it really does go too far. I understand very well why the Government think it needs to be done, but I wish they would reflect on this, and think again before it goes back to the House of Commons.
Baroness Fox of Buckley (Non-Afl)
My Lords, I cannot speak as eloquently as the speakers we have just heard, but I want to say that this feels so much like law made by press release, and law made to virtue-signal, that I feel incredibly uncomfortable about it.
We want to say to emergency workers that we will protect them if they are at risk, but we know that the emergency worker in this instance, PC Harper, was not the target of the crime; it was not intentional to kill an emergency worker. So I do not see even how this operates as a deterrent, because it is not aimed at people who have put those emergency workers at risk, even though those workers have accidentally been killed in the pursuit of a criminal act that is, I accept, dangerous.
There is an exception, which is that the trial judge can make an alternative sentence in “exceptional circumstances”. But, as has been pointed out, the trial judge can already make an alternative sentence—a full life sentence in some circumstances—so why emphasise it, unless it is a political policy statement? It is not a matter of law; it is a question of saying, “We will be hard”, and it will inevitably lead to great injustice. The fact that 16 and 17 year-olds have been included means that very young people could now have mandatory life sentences for manslaughter, with no discretion, and no discretion encouraged. It is so wrong and brought in for all the wrong reasons.
Lord Beith (LD)
My Lords, I share many of the reservations expressed already and the analysis given on both the provision and the circumstances which have led to it. I ask the Minister, in his response to the debate, to deal with one of the points raised by the noble Viscount, which is the discretion that might be available to the judge in deciding what tariff accompanies the sentence, as opposed to the provisions of proposed new subsection (2), which give slightly more power—I refrain from defining it as a wider power—in exceptional circumstances to the judge to impose a different sentence altogether.
One thing the Minister did not cover in his helpful introduction was the extent to which the tariff provisions interact with this. I would be grateful if he could explain that, in case he can give us any reassurance about what seems to be the danger of making general law out of a particular case.
Lord Pannick (CB)
My Lords, if I may, I will add a point that follows on from what the noble Lord, Lord Beith, said. To require a life sentence is pure deception because we all know that life sentences are not life sentences, and there is a strong feeling that the life sentence for murder is a deception. Other than in the most exceptional circumstances, the person concerned will be released, and the judge pronounces, in open court, a tariff. I entirely understand why the Government wish to give comfort to the unfortunate relatives and friends of those heroic emergency workers who suffer this appalling treatment and die in service of the country, but it is a gesture—a misleading gesture. We really should not be perpetuating more and more life sentences when the reality is that people receive a term of years.
Earl Attlee (Con)
My Lords, arguing this case is far beyond my pay grade, but I support everything that my noble friend Lord Hailsham said in opposition to these amendments. I do not support Amendment 1.
Baroness Hamwee (LD)
My Lords, we have more and more life sentences and less and less judicial discretion. The point made by the noble Baroness, Lady Fox, that deterrence is not a factor in this really should not be glossed over; it is very important.
Lord Carlile of Berriew (CB)
My Lords, I am puzzled by the mechanism that the Government are trying to use to increase sentences, which, in some cases, should rightly be higher, in relation to the deaths of emergency workers. After a long period of development, we created a completely new mechanism: the Sentencing Council. Judges must have regard to sentencing guidelines in every case, and those guidelines are complex. They give examples of levels at which sentences should start in certain circumstances.
I see a number of noble Lords around this Chamber who have either acted as police officers or have prosecuted and defended manslaughter cases. In my case, I have done, on one side or the other, a number of one-punch manslaughter cases, in which there was a conviction, and perhaps a sentence of three or four years’ imprisonment. One can imagine circumstances in which that could have arisen where the person who died was an off-duty emergency worker trying to help someone, and the perpetrator of the offence had no idea that that person was an emergency worker.
Surely the better mechanism is to use the flexible, living instrument of the Sentencing Council, and the sentencing guidelines, and not to inhibit the discretion of judges. The Sentencing Council and the judges will, of course, respond to the pressure that rightly arises from the awful case that has given rise to this discussion and this amendment. With great respect to the Minister, relying on “exceptional circumstances”, a description that is always determined in a restrictive way—rightly so—by the Court of Appeal, seems to be the wrong mechanism to achieve the right result.
Lord Marks of Henley-on-Thames (LD)
My Lords, on these Benches we share the shock and revulsion at the death of PC Harper and the way that it came about. We support the principle that a life sentence should be available, and even possibly the norm in serious cases, for the manslaughter of an emergency worker. But where we part company with the Government is in sharing the concerns of the noble Viscount, Lord Hailsham, and everybody else who has spoken. We are unhappy with the proposal that such a sentence should be mandatory unless a judge can find “exceptional circumstances”.
The word “exceptional” has been seen in the past as requiring circumstances that are quite out of the ordinary. Frankly, I took issue with the Minister when he treated the word as allowing more latitude than the usual interpretation of “exceptional” would permit. The MoJ press release uses the phrase “truly exceptional” to describe what is required. In that connection, the noble Baroness, Lady Fox, rightly made the point about legislation by press release—a point echoed by the noble Lord, Lord Carlile, when he talked about the knee-jerk nature of this type of legislation in particular cases.
We would have far preferred the amendment to permit judges the discretion to depart from the life sentence where the circumstances and the interests of justice required. The Government’s determination to prevent judges exercising discretion, as seen throughout this Bill, is frankly depressing. This is despite Victoria Atkins MP saying in the other place only yesterday, in answer to a question from my right honourable friend Alistair Carmichael MP, that:
“Fundamentally, the judiciary and magistrates should be trusted in their sentencing decisions.”—[Official Report, Commons, 7/12/21; col. 206.]
Frankly, we agree. I made these arguments in Committee in connection with my amendments to the minimum fixed sentence provisions in Clause 101—now Clause 102 —and I will make them again when we come to debate my amendments later on Report.
The Explanatory Note to these provisions asserts that they require a court to impose a life sentence on an offender who is convicted of unlawful and dangerous act manslaughter against an emergency worker. That is misleading. There is no requirement in the proposals that the manslaughter be dangerous, in the sense that there was danger to the life of the victim, as there so obviously was in the Harper case. The requirement for danger in the case of unlawful act manslaughter, on the cases and in the CPS guidelines to prosecutors who apply those cases, it is very limited indeed. It is necessary only that the unlawful act exposed someone—not even necessarily the victim who died—to the risk of “some harm”.
I take a hypothetical case, similar to that mentioned by the noble Viscount, of a bad-tempered 17 year-old suspected by a shopkeeper of shoplifting. The shopkeeper accosts him. A row ensues, which turns into a fight—not serious, but serious enough to draw a passing police officer to come into the shop to intervene. The officer tries to arrest the youth. The youth resists arrest. He throws a punch at the officer—not hard, but plainly an assault on a police officer in the execution of his duty and enough to be obvious to everyone that it could cause some harm. The officer falls backwards and sustains an injury that turns out to be fatal.
All the elements of unlawful manslaughter are there. The guideline sentence would probably be two to four years. The required sentence under these proposals would be life imprisonment. Are these circumstances “exceptional,” as that word is known to the law? No. is the sentence just for that 17 year-old, whose very bad behaviour had such tragic consequences? I would suggest clearly not, when one considers the overall criminality of the offence and the offender. Of course, the death of the victim would significantly aggravate the sentence. That is true for all manslaughter cases. And of course, the fact that the victim was a police officer acting in the course of his duty would be another seriously aggravating factor. But should those circumstances lead to detention for life for a 17 year-old?
The manslaughter excluded from the operation of these provisions is, as the Minister helpfully explained, manslaughter by gross negligence—a very sensible exclusion—or manslaughter mentioned in certain sections of the Homicide Act or the Coroners and Justice Act, which cover diminished responsibility by reason of a recognised mental condition, suicide pacts and loss of control, reducing murder to manslaughter if the specified conditions are met. But that leaves the whole area of unlawful act manslaughter within the provisions, and any such manslaughter of an emergency worker would attract the mandatory life sentence.
The current sentencing guidelines mentioned by the noble Lord, Lord Carlile of Berriew, which came into force as recently as 1 November 2018, suggest a range of sentences for manslaughter of between one and 24 years. They divide culpability into four ranges, from A at the top to D at the low end. The factors indicating lower culpability are as follows:
“Death was caused in the course of an unlawful act … which was in defence of self or other(s) (where not amounting to a defence) OR … where there was no intention by the offender to cause any harm and no obvious risk of anything more than minor harm OR … in which the offender played a minor role,”
or where the
“offender’s responsibility was substantially reduced by mental disorder, learning disability or lack of maturity.”
Those factors, or some of them, could quite easily be present in many cases of manslaughter of an emergency worker. So these sentences might—perhaps even often—cause serious injustice.
A further point was alluded to by the noble Lord, Lord Pannick. When a life sentence is passed, the release date is ultimately in the hands not of the courts but of the Home Secretary. Any Home Secretary, not just this one, is subject to political pressures. Were a victim, for example, the holder of a Queen’s Police Medal, and there was a campaign to keep the offender in custody on that account, how easy would it be for this or a future Home Secretary to succumb to pressure to keep the offender subject to a life sentence in custody, for far longer than would be just?
Baroness Jones of Moulsecoomb (GP)
My Lords, I had a problem with this amendment myself but, not being a lawyer, I thought I would leave it to those who are. And, having heard the lawyerly wisdom pouring from your Lordships’ Benches on this amendment, I am astonished that there has not been an attempt to block the amendment. It is the only power we have to stop this Government overreaching. I am utterly disappointed and I deeply regret that I did not get more involved. I just hope the Minister actually listens to these very eminent views in your Lordships’ House and understands that this is not a smart move. I understand the public optics are very attractive, but, really, it just sounds foolish.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I stand on these Benches to support, or at least not to oppose, the Government. But I have to say that I am reluctant to go ahead and make this speech, based on the contributions we have just heard. The amendment inserts provisions into the Sentencing Code that require a court to impose a life sentence on an offender convicted of unlawful and dangerous act manslaughter against an emergency worker. As we know, this is known as Harper’s law, and it has been campaigned for by PC Andrew Harper’s widow after he was killed in the line of duty in 2019.
I listened very carefully to the Minister, and he made much play of the word “exceptional”. My noble friend Lord Carlile made the point about the interpretation of the word being fairly narrow in the Court of Appeal. I have to say, in the more “wild west” approach of magistrates’ courts, we interpret “exceptional” quite liberally at times. Having said that, I acknowledge that the Minister did make the point that this excludes those convicted of gross negligence manslaughter and includes only those convicted of unlawful act manslaughter, which I thought was an important point.
As I say, we on this side will support the Government in their amendments. However, I do recognise that some very serious points have been raised in this debate.
Lord Wolfson of Tredegar (Con)
My Lords, I am grateful to all those who have contributed and I can start by reassuring the noble Baroness, Lady Jones, that I always listen. We may not always agree, but I certainly always listen. I can also reassure the noble Baroness, Lady Fox of Buckley, that this is not law made by press release, nor is it law in the guise of a political policy statement. We have considered this issue very carefully. Indeed, it is because we have taken time to get the policy right as we see it that the amendment is here now and not earlier—to deal with one of the points made by my noble friend Lord Hailsham.
We believe this is the right approach to these circumstances. Of course, I carefully read the judgments in the Harper case, in particular the Court of Appeal judgment. I hope it goes without saying that, standing at this Dispatch Box, I have great respect for that court, as indeed I do for all courts. But that does not mean that Parliament is unable to or should be cautious to legislate in the area of sentencing, or should be prevented or inhibited from doing so. We are entitled to do so, and in this case, we ought to.
I will pick up on a couple of the points made by contributors. First, on exceptional circumstances, I seem to be being criticised both for refusing to define “exceptional circumstances” and for putting it too broadly. I deliberately did not gloss or parse the phrase. “Exceptional circumstances” is a phrase used in other legislation, for example the Sentencing Act 2020 and the Firearms Act 1968. We believe it is best to leave it to the courts to interpret and apply that phrase, and not to parse or gloss it from the Dispatch Box.
The noble Lord, Lord Marks, picked up on the word “totally”, which appears, as he said, in a press release form the Ministry of Justice. That shows the importance of leaving it to the words in the statute and not looking at anything else when the courts interpret those words.
An example was given of an off-duty police officer intervening in a fight in a pub. It is right to say that there is no requirement for the offender to know that the victim is an emergency worker acting as such. We stand by that. That is already the approach in other legislation passed by Parliament—for example, the Assaults on Emergency Workers Act 2018. There is no requirement in that Act, either, for the defendant to know that the victim is an emergency worker, although in most cases that will be apparent to the defendant.
For the unlawful act of manslaughter offence to apply in this case, the defendant must have been committing a criminal offence. If the actions of someone are such that they not only commit a criminal offence, but their actions further result in the death of an emergency worker who may be attempting to relieve that very situation, the Government believe the behaviour warrants a life sentence.
I come now to what we mean by a life sentence. I have already dealt with the “exceptional circumstances” point, so I turn to the point on life sentences raised first by my noble friend Lord Hailsham—regarding tariffs—and then more directly by the noble Lord, Lord Pannick. When a person is sentenced to a life term and not a whole life term, the judge will set out what the tariff is. Then it is a matter for the Parole Board to determine release, and the person will be under a life licence thereafter.
These provisions do nothing to circumscribe the ability of the trial judge to impose whatever tariff they think is appropriate in the circumstances. If the trial judge thinks a lower tariff is appropriate—the word “modest” was used by my noble friend—no doubt that is what they will impose. As in the case of murder, we believe the offence warrants a life sentence with a tariff and the consequences therewith.
I hear the point made by the noble Lord, Lord Pannick, that a life sentence does not normally mean that the person stays in prison for their whole life. That is the case across a swathe of criminal law, and maybe on a future occasion the House can decide whether that is an appropriate way to continue. Given that that is our sentencing structure—which I think is correct—it is also appropriate in this case.
I think the debate comes down to whether one accepts that the example given by my noble friend Lord Hailsham of the off-duty officer in civilian clothes who intervenes in a fight—
Lord Carlile of Berriew (CB)
I am grateful to the Minister for giving way. One point he has not dealt with, as I understand it, is why the Sentencing Council and sentencing guidelines are not seen as an adequate and flexible mechanism for dealing with cases of this kind. We need a reasoned explanation for the rejection of that proposition.
Lord Wolfson of Tredegar (Con)
The reasoned explanation is that the Government believe that this is an offence which should be marked by a life sentence—a mandatory life sentence. The amount of time the person serves can be set by the judge in a tariff.
Lord Carlile of Berriew (CB)
The Minister has just given the game away by his slip of the tongue. He said it is a case which should be marked by “a life sentence”, and then he said, “a mandatory life sentence”. He was right before he made the slip of the tongue. That is exactly what judges can do and exactly what the Sentencing Council can deal with. I am afraid that I do not accept that his explanation so far has been reasoned.
Lord Wolfson of Tredegar (Con)
We are now having precisely the opposite debate to the one we had in Committee. In Committee, when someone said to me—I think it was the noble Baroness, Lady Jones—“this is a mandatory sentence” and I said, “but there are exceptions”, it was said to me, “no, it is mandatory”. Now, when I am trying to point out that it is not mandatory, in the sense that it is a mandatory life sentence but it does not mean you serve life in prison, that is said to be a slip of the tongue. I absolutely meant what I said: this provision sets out a mandatory life sentence, because the Government believe that is the right way to mark society’s horror at the killing of emergency workers, in the same way that we do for murder.
However, with murder, and in this case, the trial judge will have the ability to set an appropriate tariff. Also, unlike with murder, the trial judge can, in exceptional circumstances, depart from the sentence entirely, something which society and Parliament does not enable a trial judge to do in any murder case. With great respect to the noble Lord—
Lord Carlile of Berriew
I am sorry to interrupt again, but the Minister has said something completely untenable. He said that under “exceptional circumstances”, the judge has the power to depart from the sentence entirely. That is absolutely not the case. If the sentencing guidelines in front of any judge sitting in a criminal court lead to the conclusion that the starting point for the sentencing process is a life sentence, but there are circumstances at which different levels can be set, they will operate on that basis. This provision is unnecessary if we trust the judges. The Government are telling us, on the basis of belief, as the Minister said—which I do not necessarily regard as reasoned—that they do not trust judges to pass appropriate sentences in these cases, on the basis of one or two instances, when there is a perfectly good living instrument for dealing with this.
Lord Wolfson of Tredegar
My Lords, with genuine respect, the noble Lord is wrong if he thinks that that is what I have said. Let me be clear: if there are exceptional circumstances, the judge is entitled to depart from the sentence. In other words, the judge does not have to impose the life sentence. The judge will then decide what sentence to impose. With the greatest respect, I was right to say that if there are exceptional circumstances, the life sentence does not apply. If there are no exceptional circumstances, the life sentence does apply, and the judge will then set a relevant tariff.
Viscount Hailsham (Con)
But does not all of this imply that we are really not serving any purpose by the new clause, partly because of the point made by the noble Lord, Lord Carlile, and also the point conceded very fairly by the Minister to the effect that the trial judge can impose in reality a very low tariff? So the question is, what is the point?
Lord Wolfson of Tredegar (Con)
My Lords, I have explained that. There is a difference between being given a life sentence with a 10-year tariff and being given a sentence of 10 years. That is a point that we all accept in the case of murder.
Viscount Hailsham (Con)
That is true, too, but the case of murder arises from the original bargain made with Parliament and the country at the time when capital punishment was abolished. That does not apply as an argument to what we are doing now.
Lord Wolfson of Tredegar (Con)
My noble friend is absolutely right to say that that is the origin of the life sentence for murder. It was a deal done, if I can put it in those respectful terms, but we have life sentences elsewhere in our legislation as well. The point that I was seeking to answer—and, with great respect, I think I have answered it—was, as I understood it when it was put against me: what is the difference if the trial judge is going to give a tariff of x years, why not just have a sentence of x years? However, there is a difference, as we all recognise, between a life sentence with a tariff of x years and a sentence of x years. We can have a debate—
Earl Attlee (Con)
My Lords, does the Minister not run the risk of ending up, in the case of the pub brawl, with the offender being sentenced to life but with only a four-year tariff?
Lord Wolfson of Tredegar (Con)
I would not use the word “risk” at all. On the one hand, I am being charged with not trusting the judges and, on the other, giving the judges too much discretion. I am entirely happy with a trial judge having the ability to set an appropriate tariff in these cases, as trial judges do in all cases of murder. Whether the tariff given is four, 10, 15, 20 or 30 years is entirely a matter for the judge. I am entirely happy to trust the judge. However, it is absolutely right for Parliament to say that, in these cases, where somebody has committed an unlawful act that has led to the death of an emergency worker who was acting as such, a life sentence ought to be the correct response from the court. Two points arise. First, with great respect to the noble Lord, Lord Carlile, if there are exceptional circumstances, that sentence does not apply at all. Secondly, if it applies, the judge can impose a tariff.
Baroness Butler-Sloss (CB)
Forgive me—and I thank the Minister—but perhaps I might ask him whether it is reasonable that a 16 or 17 year-old should be on lifetime licence when alternatively he might get the time of detention plus another three or four years. A lifetime licence means that he is under the control of probation officers from the age of 16 for the rest of his natural life.
Lord Wolfson of Tredegar (Con)
My Lords, we have considered this. We restricted the new sentence to 16 and 17 year-olds to ensure that only older children who are convicted of this serious offence are given a mandatory life sentence, unless there are exceptional circumstances that mean it is not justified. Of course, exceptional circumstances are not just those relating to the offence but those relating to the offender. There is a precedent for this age distinction. The Criminal Justice and Courts Act 2015 also uses the age of 16 as a threshold to begin applying minimum sentences for knife-crime offences. So we have considered the point made by the noble and learned Baroness.
Baroness Jones of Moulsecoomb (GP)
I am so sorry, but I do not understand why we are arguing about this. We are all dissatisfied with what the Government are doing, yet none of us can stop it. It is all angels dancing on the head of a pin, as far as I can see. I am really distressed at this and wish that I had spoken to more people and perhaps got some others onside. The Government are making a mistake and that is what the Minister should hear from this debate.
Lord West of Spithead (Lab)
I am not a lawyer, I am very pleased to say—I am just a simple sailor. However, it seems from the complexity of the debate that this is quite a significant amendment that was brought in quite late. I find that rather worrying, because the feeling around the House is that if there were a vote on this, it might well not pass; I think it would fail. That is a worrying position to be in and I do not know how we can resolve that. It is not really very satisfactory.
Lord Paddick (LD)
I was not going to say anything, but I am, I think, the only former police officer in the Chamber. Is the Minister saying that he would be satisfied if somebody were sent to prison for four years for killing a police officer on duty in these circumstances? That seems to be what the noble and learned Lord is saying. In which case, what is the point?
Lord Wolfson of Tredegar (Con)
I know it is bad form, but perhaps I can answer in reverse order. I certainly was not saying that. Indeed, the point that I was trying to make was that I was not going to get into what an appropriate tariff would be in any case; I regard that as absolutely a matter for the trial judge. It is not helpful for trial judges or indeed anybody else for Ministers on their feet to hypothesise as to what they might think an appropriate tariff would be in a particular case. The tariff is entirely a matter for the trial judge, who will decide it in the way in which they decide tariffs in other cases of life sentences as well.
To the noble and gallant Lord—forgive me, I am not sure whether I have that right; he is proud not to be a lawyer, a point with which I sympathise—I say that we brought in this amendment as soon as we had thought about the policy and, we think, got it right. When we were thinking about this issue, there were there were a number of points in the policy that required very careful consideration. That took time and that is why it is happening now. I cannot say any more than that.
I was going to acknowledge another point made, but I think I have already responded.
Baroness Lister of Burtersett (Lab)
I apologise for not being here at the outset, but I have listened very carefully to what has been said and it seems to me that it would be wrong simply to steamroller this amendment through now when virtually everyone who has spoken has done so very eloquently against it. Would it be possible to take it away, talk to learned Members of this House and come back at Third Reading with something that might be more acceptable ?
Lord Garnier (Con)
Like the noble Baroness, Lady Lister, I, too, apologise for not being here at the outset when my noble friend Lord Hailsham began. I know that next week we are going to talk about IPPs. That subject carries with it all the problems that this subject will bring with it. We now know that IPPs went wrong and have created injustices, and that there are people who have IPPs but short tariffs well past their expiry date and who are still in prison 10 or 15 years after their sentencing. Could we not learn the lessons from the IPP problem and, in order to help us learn those lessons, postpone a decision on this clause until after we have had the IPP debate, so that together we can draw a united conclusion about how best to move forward with justice?
Lord Wolfson of Tredegar (Con)
My Lords, the joys of the IPP debate are ahead of us. That raises very different points. The IPP sentence has different characteristics and the problems that it has given rise to are entirely different. I listened very carefully to the debate in Committee on IPPs, when a number of noble and noble and learned Lords expressed disquiet and tabled various amendments. They will know that I have had conversations with them about it. So I am entirely alive to the IPP issue, but that is completely separate from this issue. We consider that this measure is an appropriate response to this form of offending.
Baroness Fox of Buckley (Non-Afl)
The Minister listened very carefully to the debate in Committee on IPP. Some of us have read that and thought about it a lot since then. The problem is that noble Lords have not had the opportunity to listen very carefully to the debate on this particular amendment: that is the problem, in a way. It is not a straightforward amendment. I learned of it by hearing about it via the media and thought it could not possibly be being brought forward in relation to this Bill; I actually explained to people that they did not understand the way in which legislation was made, and that that was just something that the media said. Then, I realised that it was happening.
The Minister was very good and answered some of my queries and made sure that I did not fight any straw men when I went to him with particular arguments. He was very considerate in answering them. However, I do not think that the House has had the chance to consider this amendment. It is not without parallel to the IPP, inasmuch as it is a controversial sentencing change that has very big implications. We know that, because in the press release and the media reports, it was said that this would change everything. That is how it was announced: it was proclaimed as something that would change everything. Therefore, if it is going to change everything, people in this House should have a chance to debate it more thoroughly than now, so it is reasonable to ask if it could be brought forward later on in the Bill in order for some consideration to be given.
Lord Wolfson of Tredegar (Con)
I do not know which of the no-doubt multifarious press releases the noble Baroness read, but it was clear in the ones that I saw that the matter was going to be brought back here. This amendment was, I understand, tabled on 1 December, so the issue has been live. I am very happy to take any further interventions. That was probably not a good idea.
Earl Attlee (Con)
My Lords, I cannot resist the temptation. Would the Minister be prepared to express some uncertainty about the “exceptional” rule? If he expressed that uncertainty, it would mean that a Third Reading amendment to the noble Lord’s amendment would be acceptable.
Lord Wolfson of Tredegar (Con)
My Lords, I am not quite sure what I am being asked to accept, but I do not have any uncertainty as to what “exceptional circumstances” is. It is a phrase used in this legislation; it is used in other legislation; it is a phrase that is well known to the courts. It is a phrase that they are perfectly able to deal with.
Lord Beith (LD)
The relevance of IPP sentences to this debate is that, when IPP sentences were introduced, rather similar speeches were made from the Front Bench to the one that the Minister is making tonight. I know his style his different, but the fact remains that it was a disaster and a scandal. It developed in ways in which all those who introduced it did not anticipate, and now concede was wrong, but they had not fully understood at the time what the consequences were. This has all those hallmarks about it.
Lord Wolfson of Tredegar (Con)
As I said, I am very alive to the IPP issues, as the noble Lord knows; but the IPP issue and the IPP sentence was a novel sentence which did things that other sentences did not do. Indeed, that is why it was brought in. The shape of this sentence, however, is not novel. It is the application to this particular offence that is new. With the greatest of respect, therefore, I disagree with the comparison to IPP sentences, which were themselves novel.
I hope that I have set out the government position clearly and fairly—
Lord Paddick (LD)
My Lords, the noble Lord started his contribution to this debate by saying that he was listening. Surely, he has heard from the House that the House is not content to allow this amendment to pass at this stage. Surely, the only reasonable thing to do in these circumstances—because nobody wants to divide on this issue here and now—is for the Minister to say that he will take it away and bring it back at Third Reading once noble Lords have had a chance to discuss the issue with him between now and Third Reading.
Lord Wolfson of Tredegar (Con)
As I hope the House knows from this Bill and plenty of other Bills, I am very happy to discuss issues with anyone at any time. However, points of principle have been made, and points of principle have been answered by me as clearly and cogently as I am able to do. I think that the appropriate thing to do—relative newcomer as I am to this House—is that the Question on the amendment should be put. If people want to—
Lord Ponsonby of Shulbrede (Lab)
My Lords, I have another suggestion for the noble Lord, as we can all see that he is in a difficult situation. The Government have put forward their protest amendments, which are coming at the latter stage of Report. There is nothing to stop the Government from withdrawing this amendment now and bringing it back at the latter stage of Report. It will give everyone time to consider their position and the Government would not lose time. They could do it via Third Reading, or they could do it the way I am suggesting now. I hope that the Minister will consider that suggestion constructively.
Lord Marks of Henley-on-Thames (LD)
I am sorry to make a second intervention before the Minister has had a chance to answer the first. The point I wanted to make to the House and for the Minister’s consideration is really a very similar one. It seems to me that the suggestion of the noble Lord, Lord West, is a viable one and the suggestion of the noble Lord, Lord Ponsonby, is also a viable one. The noble Lord mentioned listening. We all know that he does listen and that he is prepared to listen. That listening generally involves talking and having meetings about amendments and proposals. This is a government amendment, and the Minister is quite right to point out that it was publicised on 1 December. That was one week ago for an important change in the law. The suggestion of the noble Lord, Lord Ponsonby, allows this to be considered and discussed with noble Lords about the House during the rest of Report, and it could come back in January, because we have this very long period due to the Christmas break. May I suggest that that is the fair and sensible way to proceed, rather than insisting on putting the Question on it tonight, landing the House with an unexpected vote if there were to be a vote, and failing to discuss it with noble Lords around the House in the meantime, which could quite easily be done?
Earl Attlee (Con)
My Lords, I am not convinced that the noble Lord, Lord Ponsonby, is correct because if we delay the amendment, we would be putting it at the back of the Bill, but it has to be in this position in the Bill. Therefore, I think we should leave it until Third Reading rather than delay it.
Lord Wolfson of Tredegar (Con)
My Lords, I am not going to try to adjudicate on that point, which seems to be a point of procedure, better left to those who know more about it than I do. I have listened very carefully to the debate, and points of principle have been raised. With genuine respect, however, I believe that I have set out the Government’s position on those points of principle. Kicking the can down the road—attractive as that can sometimes appear—will not achieve anything substantive.
Lord Falconer of Thoroton (Lab)
This is pretty shocking. There is a lot of support for the principle that the amendment could be so much better if it could be debated. I completely understand the noble Lord’s embarrassment. He does not want to go back to the Ministry of Justice and not have the amendment, but if you want good law, recognising that the Government want this, there is so much that could be discussed to make this provision better.
The noble Baroness, Lady Williams, agreed without any pressure on two things in relation to the additional protest measures. First, she agreed that they should come at the end of Committee and secondly, she did not move them in Committee because of the exact problem that has arisen in this case. She indicates the right way forward. We would greatly appreciate in the House if the noble Lord would show us the same courtesy that the noble Baroness, Lady Williams, showed us.
Lord Wolfson of Tredegar
I am very happy to be accused of all sorts of things, but I hope that nobody in this House believes that I act either towards it or towards any of its Members with discourtesy. We may have disagreements, but they are always, I hope, courteous. I am not in the least embarrassed about going back to the Ministry of Justice with or without anything. My task, as I see it, is to set out the Government’s position in this House and then the House has to take a view.
With great respect to the noble and learned Lord, I do not accept that this is a question of tweaking the provision or making it better. The points that have been put to me are really points of principle—people do not agree with this at all, while saying, “Of course we agree.” The matter ought to be presented to the House and dealt with by it today.
Lord Carlile of Berriew (CB)
Following on from the remarks of the noble and learned Lord, Lord Falconer, can the Government agree to the House being adjourned for half an hour or so, so that there can be a discussion between the usual channels and between the groups in the House as to how this should continue? We would be very grateful and it would be seen as a matter of utmost but necessary courtesy.
Baroness Jones of Moulsecoomb (GP)
I have an alternative suggestion; perhaps the clerk can tell us whether it is legal. Is there anything to stop any of us calling for a vote once—
Baroness Jones of Moulsecoomb (GP)
Then if the Minister puts the Question, I will call for a vote.
Lord Pannick (CB)
Any Member of the House can call a vote but, if the Minister is not willing to accede to any of the suggestions that have been made, it is the obligation of the Front Benches to indicate that they are so dissatisfied, in the light of all the debate and the fact that we have only had a week to consider this, that they will divide the House. If they were so to indicate, that might impose a bit more pressure on the Minister.
Lord Wolfson of Tredegar (Con)
In the last week, as is my wont, I have had discussions with a number of Members of this House on this matter. Any Member of the House knows that my door is always open to them, metaphorically and often literally. All the discussions that I have had on this amendment have been ones that I have reached out to others to have. Nobody has knocked on my door. In those circumstances, I cannot say that we will adjourn. If I am told differently, that will be for others to decide. At the moment, I will ask the House to vote on my amendment.
Viscount Hailsham (Con)
My Lords, I hate to intervene on my noble friend but I will formally move that the House be adjourned for one hour.
Lord Wolfson of Tredegar
My Lords, I ask the House to vote on my amendment.
Motion
Lord Wolfson of Tredegar (Con)
My Lords, I want to put it on record that in the last week, when this amendment has been tabled, all the engagement I have had on this matter I have facilitated, and I have reached out to. Not a single Member of this House has reached out to me about this amendment. I beg to move the amendment.
Police, Crime, Sentencing and Courts Bill
Wednesday 8th December 2021
(2 years, 5 months ago)
Lords ChamberRead Full debate Police, Crime, Sentencing and Courts Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 72-I(b) Amendments for Report (Supplementary to the Marshalled List) - (8 Dec 2021)
21:38 - Division on Amendment 11 - Ayes: 85 / Noes: 103 - Amendment 11 disagreed.
Lord Sharpe of Epsom
“(za) publish the strategy,”Member’s explanatory statement
This amendment requires specified authorities to publish a strategy prepared under Clause 7.
Lord Sharpe of Epsom (Con)
My Lords, this group of amendments responds to various recommendations made by the Delegated Powers and Regulatory Reform Committee. I am grateful to my noble friend Lord Blencathra and the other members of the committee for their careful scrutiny of the Bill. These amendments address issues across the Bill, but I hope the House will agree that it would be convenient to take them together.
Amendments 2 to 10 in Clauses 7 and 8 give effect to the DPRRC’s recommendation that provision for the publication of local strategies to prevent and reduce serious violence should be made in the Bill rather than in regulations. The amendments therefore require relevant authorities to publish their strategies, but this is subject to certain safeguards. These safeguards are that material should not be included in the strategies if the specified authorities consider that it might place the safety of any person in jeopardy, prejudice the prevention and detection of crime or the investigation or prosecution of an offence, or compromise the security of, or good order or discipline within, an educational, prison or youth custody authority. I am sure that noble Lords would agree that these are important caveats.
Amendments 36, 42, 65 and 95 respond to recommendations by the DPRRC relating to the parliamentary scrutiny of statutory guidance. Here we have accepted the committee’s recommendations in part only. There are various powers in the Bill for the Secretary of State to issue guidance in relation to the serious violence duty, offensive weapons homicide reviews, powers to tackle unauthorised encampments, and serious violence reduction orders. The DPRRC recommended that such guidance should be subject to the negative procedure, or, in the case of the SVRO guidance, the affirmative procedure.
The purpose of guidance is to aid policy implementation by supplementing legal rules. A vast range of statutory guidance is issued each year and it is important that guidance can be updated rapidly to keep pace with events. There is nothing to prevent Parliament scrutinising guidance at any time. It is therefore the Government’s view that it is not necessary to make specific provision for parliamentary scrutiny for most forms of statutory guidance, and there are plenty of precedents for this approach. To take one recent example, the Domestic Abuse Act 2021 enables the Secretary of State to issue guidance to the police in relation to domestic abuse protection orders; they are required to have regard to the guidance. Such guidance is not subject to any parliamentary procedure, and the DPRRC did not comment on that fact when the legislation was going through this House last Session.
Amendments 67 and 68 relate to the powers to attach conditions to a diversionary or community caution, specifically those which relate to the maximum hours of unpaid work, number of attendance hours and level of financial penalty. Clause 100 as currently drafted provides that only regulations increasing the maximum financial penalty and the maximum number of unpaid work or attendance hours attached to a caution will be subject to the affirmative procedure. The DPRRC recommended that regulations decreasing these maxima should also be subject to the affirmative procedure and, having considered the committee’s arguments, we agree.
Finally, Amendment 83 responds to the committee’s recommendation that the power for the Secretary of State to activate a problem-solving court pilot indefinitely should be subject to the affirmative resolution procedure. This amendment gives effect to the committee’s recommendation by separating the power to extend indefinitely from additional powers granted to the Secretary of State under Schedule 13. As such, this amendment ensures that the Secretary of State’s power to specify which courts are pilot courts for the 18-month pilot period, the cohort of offenders to be subject to the pilot arrangements, and the ability to extend a pilot for a specified period of time, will continue to be subject to the negative procedure.
I am sorry that the noble Lord, Lord Blencathra, could not be here today.
Lord Sharpe of Epsom (Con)
He is here—my apologies. In light of all I have said, I hope the House would agree that we have responded positively to the relevant recommendations from the DPRRC and will support these amendments. I beg to move.
Baroness Whitaker (Lab)
My Lords, I speak on behalf of my noble friend Lady Lister, who had to go to catch her train because of the postponements, and also on my own behalf.
We wanted to raise a point on government Amendment 56, which, as the Minister said, requires guidance for the police on unauthorised encampments to be laid before Parliament. This is of course welcome, but my noble friend says that she wanted to return to the current draft guidance statement that the police, alongside other public bodies,
“should not gold-plate human rights and equalities legislation”
when considering welfare issues.
When she pressed the noble Baroness, Lady Williams, on this in Committee and asked her what it meant—because, on the face of it, it appears to be an invitation to put human rights and equalities considerations to one side—I believe the noble Baroness, Lady Williams, said that the phrase was “novel” to her and she wrote to my noble friend Lady Lister about it.
In her letter, she explained that this phrase had been used in government guidance on unauthorised encampments since March 2015. But, when my noble friend Lady Lister followed the link in the letter to this guidance, it turned out to be called:
“A summary of available powers”—
which we do not think quite amounts to statutory guidance, and therefore perhaps was not subject to consultation at the time. Certainly, members of the Joint Committee on Human Rights were not aware of it, because they wrote a very forceful letter to the Minister on 17 November in which they
“strongly advise that the Government reviews the language and tone of its draft guidance with respect to its human rights obligations. Human rights are a minimum standard, which apply to all people equally. We do not and cannot ‘gold-plate’ human rights.”
Likewise, the British Association of Social Workers has written:
“We do not accept that this”—
gold-plating—
“is reasonable guidance. The wording is of no assistance to social workers or other professionals.”
It sees it as a
“disturbing attempt to water down fundamental human rights in relation to Romani and Traveller people”.
In her letter, the Minister wrote of the
“necessary balancing of the interests and rights of both Travellers and settled residents”.
But we ask her—or the appropriate ministerial colleagues —to look again at this wording in the light of the JCHR’s and the British Association of Social Workers’ responses. It would appear that they were not consulted when the “gold-plating” phrase was originally used in 2015 and I ask now whether anyone was consulted.
Also, does the 2015 document constitute statutory guidance as such? If the answer is no in either case, that strengthens the case for reconsidering the use of the term. As the body established by Parliament to provide an oversight of human rights issues makes clear, human rights
“must not be side-lined or undermined for administrative convenience”.
Will the Minister therefore give an undertaking to look again at this, ask the relevant Minister to do so, and report back to us before the Bill completes its passage through this House?
Lord Blencathra (Con)
My Lords, first, I apologise to my noble friend for wrongfooting him. I arrived about 15 minutes ago, having sent a message to the Front Bench earlier today that, since my train was going in slow motion because of wind on the line, I was likely to be here rather late. My message was to thank the Government, the Home Office and my noble friend Lady Williams of Trafford, who took on board the criticisms that the Delegated Powers and Regulatory Reform Committee made. I have the privilege of being chair of that committee for the next three weeks only—so the Government can rest in peace afterwards.
We made a large number of recommendations and, to be fair, the Home Office took them on board and my noble friend has accepted the majority of them. That is a good message to send to other departments. It goes to show that, when my committee makes recommendations, they can be accepted by the Government, because they do not sabotage the Bill or stop the political thrust of what the Government are trying to do. At the very most, our most extreme recommendations may mean that some bit of delegated powers legislation might be debated for 90 minutes in the affirmative procedure—never under the negative, unless it is prayed against—which will mean a Minister having to host a debate for 90 minutes. It will probably be a Lords Minister, because the Commons possibly will not bother. So it can be done.
The only substantive comment that I wish to make is about my noble friend using the standard excuse—although he used it in a more delicate way—that we hear from most departments when they refuse to accept that the guidance to which one must have regard should be seen by Parliament. Some departments take a much more arrogant attitude and say, “Oh, well, we publish lots of guidance every year and we consult the stakeholders and experts, so we don’t need to trouble you people in Parliament who know nothing about it”. That is not quite what they say, but that is the thrust of it. I had a tremendous success last week, when I had a two-word amendment accepted by the sponsor of the Bill and the department—and those two words were “by regulations”. The clause said that “guidance that must be followed will be issued”, and we inserted the words, “by regulations”. That made no difference to the practical effect of the Bill.
The other justification that we often hear is, “Oh, we issue a lot of guidance, you know, and it has to be changed rapidly”. I am not suggesting that it applies to this guidance, but a lot of that is simply not true. If the guidance has to be changed rapidly, it has to be printed and issued. All we say in that case is “Put it in a negative regulation which Parliament can see, and only those who have an interest, or the Opposition, may move a prayer against it”.
We issued a strong report last week, and so did my noble friend Lord Hodgson of Astley Abbotts, from the Secondary Legislation Scrutiny Committee. My committee issued a report complaining strongly about disguised legislation, where the Minister not only has power to issue his own regulations but they are called “directions”, “protocols” and so on. That is disguised legislation. We also complained about skeleton Bills. If you want to see a skeleton Bill, look at the new Bill on healthcare, where there are about 150 delegations. The Bill has no guts—that will be filled in by legislation later.
I hope that my noble friends will speak to the Department of Health and the Ministers there. I have no idea what our committee will report when we look at the Bill next week, but I suspect that we will be highly critical of the contents. I hope that my noble friend the Minister, coming from the Home Office, can tell the Department of Health to follow our example. If we in the Home Office, one of the mightiest departments of state, can accept the vast majority of suggestions from the Delegated Powers Committee, other departments can do so too, knowing that their legislation is safe. We do not sabotage it and we do not try to stop it. We have no political input on the merits of the Bill; we leave that to noble Lords here. However, we do care about inappropriate delegations.
Having read the riot act on that, I thank my noble friends on the Front Bench for the considerable changes that they have made on this—and I just wish that they would go a wee bit further and accept the last one.
Lord Beith (LD)
My Lords, the noble Lord, Lord Blencathra, just illustrated the value of his service as chairman of the Delegated Powers and Regulatory Reform Committee, which the House should thank him for—but in the knowledge that his successor is unlikely to give the Government peace because this is an area where all Governments need to be brought up to the mark. His more wide-ranging report last week illustrates this, and I will refer to it briefly in a moment.
It is good to be in the part of the Bill where the Government have listened, both to the Delegated Powers Committee and to the House itself, where voices were raised, particularly on the issue of the publication of the strategy on serious violence for which provision is made in the Bill. It really does not make sense for a strategy to exist which is not published and which therefore cannot be the subject of accountability. That was quickly recognised by Ministers at the Dispatch Box here. They have acted in accordance with that and I very much welcome that. They have met the objections to publication by specifying areas in which there must be a bit more care about what should not be published because of adverse consequences for the public interest, over things such as custodial institutions and other ways in which material could be released in a way which would be damaging to the general public interest.
That is one area where I am pleased that the Government have listened. I am also pleased that in a number of respects, if not quite all, the Government have responded on issues of laying guidance before Parliament and on providing a parliamentary procedure, either negative or affirmative, for some of the instruments. I will say in passing, however, that laying guidance before Parliament is a bit of a formality. Unless Members of one House or the other find a way of debating it—it is a little easier in this House than the other—laying it before Parliament does not achieve anything practical, whereas having a procedure in the House, defective though the negative procedure is, is much more useful. In most respects that request has been met.
Producing a list of previous legislation which was deficient in this respect is not a persuasive answer to the challenging issues raised by the Delegated Powers and Regulatory Reform Committee and the Statutory Instruments Committee. It is generally recognised that there is a serious deficiency which has been allowed to grow as the scope of legislations has extended. Things which have the practical effect of legislation have become more numerous, but Parliament has not developed effective procedures to ensure good scrutiny and to ensure that the neo-legislation is in workable and legally sound form.
As the committee said in its wider report, if, because of modern conditions, Parliament is being asked to accept new ways of legislating, it is surely right that the Government must stand ready to accept new methods of scrutiny and of being held to account. So, like others, we take the view that there is now an urgent need to take stock and rebalance their relationship. This Bill has arrived at the beginning of that very important process, but it is encouraging that Ministers have at least responded in a number of key respects, and I welcome that.
Lord Paddick (LD)
My Lords, noble Lords have already comprehensively covered the ground, and I am especially grateful to the noble Lord, Lord Blencathra, and his Delegated Powers and Regulatory Reform Committee, and to the Government for listening to that committee, and to the concerns that were expressed in Committee, and by the Constitution Committee and the Secondary Legislation Scrutiny Committee.
We are concerned that simply laying guidance before Parliament is not sufficient. It should be by regulations, as the noble Lord has said. However, we are pleased that the Government have listened to some extent and we support these amendments.
Lord Rosser (Lab)
My Lords, I too will be brief. As has been said, this group includes government amendments relating to recommendations from the Delegated Powers and Regulatory Reform Committee that the Government have accepted. It includes the requirement that strategies under the serious violence reduction duty are published, and that guidance on the series violence duty, police powers under Part 4 and serious violence reduction orders must be laid before Parliament. However, the Government have not accepted every recommendation of the DPRRC, and on some they have gone only half way. For example, the DPRRC recommended that guidance on serious violence reduction orders should be subject to the affirmative procedure, but the Government have made it subject only to the negative.
Like other noble Lords, I extend our thanks to the noble Lord, Lord Blencathra, and the Delegated Powers and Regulatory Reform Committee for the invaluable work that they do and no doubt will continue to do. We welcome the amendments in this group that go some way towards accepting a number of recommendations from the DPRRC, but it is interesting to note that, in its report on the powers in the Bill to introduce unpublished strategies and guidance without parliamentary scrutiny, the DPRRC said:
“We are disappointed that the inclusion of these types of delegations of power—on flimsy grounds—suggests that the Government have failed when preparing this Bill to give serious consideration to recommendations that we have made in recent reports on other Bills.”
This group of amendments introduces some improvements into the Bill, which we welcome. On that basis, we hope that the Government will be in listening mode over the next few days of debate on Report. Perhaps the next Bill that appears before us will not have such powers in it to begin with.
Lord Sharpe of Epsom (Con)
I thank all noble Lords who have participated in this brief debate. I do not know whether my noble friend Lord Blencathra was in his place when I started speaking, but I was praising him and his committee—I also praise him for his stealthy entrance. He asked about statutory guidance. As I said in my brief introduction, all the guidance will now be laid before Parliament, as the noble Lord, Lord Beith, noted, and the SVRO guidance will be subject to the negative procedure.
The noble Baroness, Lady Whitaker, asked the most detailed question, on behalf of her noble friend Lady Lister. She asked specifically about the comments on the gold-plating of human rights. I have a copy here of the letter that was sent to the noble Baroness, Lady Lister, and it is very clear that this is about balance:
“This language has been used in HM Government guidance on unauthorised encampments since March 2015,”
as the noble Baroness noted, but it was not statutory guidance; the Bill now provides this.
“That guidance made clear that human rights legislation does not prevent action to protect local amenities and the local environment; to maintain public order and safety; and to protect public health - for example, by preventing fly-tipping and criminal damage.
The necessary balancing of interests and rights of both travellers and settled residents reflects the position regarding qualified rights in the Human Rights Act 1998/European Convention on Human Rights … and the need to maintain good community relations under the Equality Act 2010. But operationally in the past, this may have been misunderstood by some public bodies.”
We have published in draft the guidance to be issued under Clause 65, so it is open to anyone who wishes to comment on the document to do so. We will, of course, continue to take any such comments into account before promulgating the final version of the guidance. With that, I hope that I have answered the questions, and I beg to move.
Baroness Whitaker (Lab)
Before the Minister sits down, who was consulted on this “gold-plating” terminology?
Lord Sharpe of Epsom (Con)
I am afraid I do not know; it goes back to 2015. We will look it up for you.
Lord Sharpe of Epsom
“(7A) A strategy under this section must not include any material that the specified authorities consider—(a) might jeopardise the safety of any person,(b) might prejudice the prevention or detection of crime or the investigation or prosecution of an offence, or (c) might compromise the security of, or good order or discipline within, an institution of a kind mentioned in the first column of a table in Schedule 2.”Member’s explanatory statement
This amendment means that specified authorities may not include certain material in a strategy published under Clause 7(7) as amended by the amendment in the name of Baroness Williams of Trafford at page 9, line 15.
Member’s explanatory statement
This amendment clarifies that regulations under Clause 7(9) may make further provision about the publication or dissemination of a strategy.
Lord Sharpe of Epsom
Member’s explanatory statement
This amendment and the amendments in the name of Baroness Williams of Trafford at page 10, line 37, page 10, line 38 and page 10, line 39 have the effect that specified authorities are required to publish a strategy prepared under Clause 8.
“(za) must publish the strategy,”Member’s explanatory statement
See the explanatory statement for the first amendment in the name of Baroness Williams of Trafford at page 10, line 37.
Member’s explanatory statement
See the explanatory statement for the first amendment in the name of Baroness Williams of Trafford at page 10, line 37.
Member’s explanatory statement
See the explanatory statement for the first amendment in the name of Baroness Williams of Trafford at page 10, line 37.
“(8A) A strategy under this section must not include any material that the specified authorities consider—(a) might jeopardise the safety of any person,(b) might prejudice the prevention or detection of crime or the investigation or prosecution of an offence, or(c) might compromise the security of, or good order or discipline within, an institution of a kind mentioned in the first column of a table in Schedule 2.”Member’s explanatory statement
This amendment means that specified authorities may not include certain material in a strategy published under clause 8(8) as amended by the second amendment in the name of Baroness Williams of Trafford at page 10, line 37.
Member’s explanatory statement
This amendment clarifies that regulations under Clause 8(9) may make further provision about the publication or dissemination of a strategy.
Baroness Meacher
Baroness Meacher (CB)
My Lords, I rise to move Amendment 11, and speak to Amendments 22, 25 and 30. I thank the Minister for our very helpful meeting this morning, and for the detailed letter I received at 4 pm. I have carefully considered the points raised, and reread the letter to ensure I had understood it, but the basics facts remain the same—as I think the Minister realises—and I will do my best to explain them.
My comments also apply to Amendment 25, but I will focus on the three identical amendments to the three clauses. They ensure that disclosure of information by one public body to another under Part 2 of the Bill does not contravene data protection legislation. This is an incredibly important principle, yet the data sharing provisions in Part 2, as the Bill stands, would enable data protection legislation to be breached. Data protection legislation does permit information to be shared for the purposes of preventing crime, which is important too. If Amendment 11, along with identical Amendments 22 and 30, is passed, personal data could be passed to be police, but professionals could not be forced to do so against their professional judgment. That is the key principle we want to achieve.
The Minister’s letter says that the data shared under the duty is intended primarily to consist of aggregated and anonymous data, et cetera. But we have to focus on what the Bill says, rather than what our excellent Minister may intend. As I said to her this morning, if our Minister were Home Secretary, I might be content with the wording in the Bill, on this issue—I am not sure about everything else—as I have great respect for both our Ministers.
The Minister also says the duty applies to duty holders, not directly to front-line professionals, including youth and social workers. But it is these professionals who hold the information which the police may find helpful, not directors of social services, for example.
It is vital that, if we are to deal with serious violent crime, we do not undermine prevention work. It is therefore important that young people trust their teachers and youth workers. We believe these professionals must be able to exercise their professional judgment about whether it is more effective and important, in preventing serious violence, to be able to continue working with vulnerable and potentially dangerous young people to steer them away from drugs and crime, or to pass on information to the police. There will be times when the sharing of information with the police may be the first, and immediate, priority. However, if in the professional judgment of the teacher or youth worker working with the young people is the top priority, then she or he must be able to exercise that judgment, in my view.
The Minister is likely to argue that the modification of the disclosure of information legislation envisaged in the Bill is similar to that in other Bills and therefore should be accepted. We had a lengthy discussion on that issue this morning. On checking these other Bills it appears the context is quite different, as is the nature of the information that may be shared. The closest example is the Environment Act, which uses similar wording to that in Clause 9, under which information sharing may be required. However, in the Environment Act, this relates to whether public authorities are complying with environmental legislation; it has nothing to do with personal information for law enforcement purposes, which is an entirely different matter. The Medicines and Medical Devices Act only requires information to be shared without consent in a veterinary context—you cannot really ask a cow for her consent to pass on information about her. Therefore, this is not relevant to this Bill.
It seems the Government may not have drawn the right conclusions from the criticism of the Met Police’s gangs matrix system. As the Minister knows, Corey Junior Davis was murdered after his details in the Met Police’s gangs matrix were shared and fell into the wrong hands.
The system that produced that breach is being reproduced in the Bill. Surely, we will see replicated across the country other harms generated by the Met Police’s gangs matrix: young people losing college places that would probably have given them a route out of trouble; the application of eviction notices likely to lead them on a downward spiral of drugs and crime; and endless costly and pointless stop and searches, thereby undermining young people. We could also expect a repeat across the country of the discriminatory profiling that was inherent in the Met Police’s gangs matrix.
I very much welcome the Government’s acceptance of the need to respect the professional judgment of medical and social care personnel. All that we are asking for in the amendment and, indeed, the other two in the group is that the same respect for personal judgment be applied to teachers and youth workers as the Government now recognise should be given to doctors and others. Without these amendments, the work of the key public servants to prevent serious violence will be jeopardised, an issue that I should have thought the Government would be concerned about.
The Bill also gives the police the power to monitor compliance with the duty to require other bodies to share information with them, and it gives the Secretary of State enforcement powers to back those police powers. The amendment offers vital protection for professionals in exercising their judgment on how best to reduce serious violence by their clients.
The Minister has said that the collection of data is necessary in order to identify the kinds of serious violence that occur in an area and, so far as it is possible to do so, their causes, and then prepare and implement a strategy with bespoke local solutions. I am sure that the Minister knows that no personal information is required in order to do that. It is well established that anonymous data is sufficient to develop appropriate strategies. The draft statutory guidance says that most information will be depersonalised, but it does not say in what circumstances it will not. If it were clear that it was all about professional judgment, that would be fine—and that is what we are seeking.
These are incredibly modest amendments that, added to the government amendments, would go some way towards protecting the efficacy of our public services and enable young people to benefit from preventive and therapeutic interventions. These are the best hope of preventing serious violence over many years. We are not talking just about a one-off crime here. We are talking about the culture and style of life, and these public servants are working on the front line to try to divert these young people into education, training, jobs and so on. Instead of doing that, it is a huge thing to somehow divert those people into the criminal justice system. Punitive responses are never the right answer to vulnerability and deprivation—generally the backdrop to serious violence.
Baroness Brinton (LD) [V]
My Lords, I thank the Minister and her officials in the Home Office and the Department of Health and Social Care for meeting me, the noble Lord, Lord Ribeiro, the General Medical Council, the British Medical Association and the National Data Guardian, and for listening carefully and agreeing that a patient’s personal information should not be disclosed under regulations made under Clauses 9, 15 or 16 by a health or social care authority, which currently includes a clinical commissioning group in England and a local health board in Wales, or under regulations made under those clauses. However, I wonder whether the Minister can help me and confirm that Clause 17, where the Secretary of State can instruct the transfer of information, even if a specified authority refused, will definitely not apply to patient data.
I am entirely supportive of the amendments in the group tabled by the noble Baroness, Lady Meacher, the right reverend Prelate the Bishop of Manchester and my noble friend Lord Paddick. While I am grateful that the Government have recognised that there is something particular about a patient’s personal health data, there still remains the issue relating to staff in a specified authority being asked to hand over personal data to the police and other bodies. There are some roles, such as youth workers and children’s home workers, where trust has had to be built up with the people who come to them. Any data relating to those at-risk people, whether potentially violent or potential victims, should not do anything to harm that relationship. As the noble Baroness, Lady Meacher, has said, anonymised data can be used.
As we know from doctors’ and nurses’ ethical arrangements, there are exceptional times when it is important for such information to be passed to the authorities. I believe that we can rely on the workers in other sectors to see that responsibility. Amendment 24 specifically sets out the ethical and legal rules that should apply.
Finally, I believe that the Secretary of State should not have these powers, however rarely they might be used, so I also support my noble friend Lord Paddick’s Amendment 35.
The Lord Bishop of Manchester
My Lords, I rise to support the amendments in my name and those of the noble Baroness, Lady Meacher, and the noble Lord, Lord Paddick. I draw your Lordships’ attention to my interests in policing ethics and my work with the National Police Chiefs’ Council, as set out in the register. I trust that those interests assure your Lordships that I am a strong supporter of effective policing, not its adversary.
As an occasional statistician, I am also well aware of the power and utility of data. Good data, including on the risks of serious violence, can provide the evidence that allows the limited resources of our police forces to be directed to the particular challenges faced in different contexts and localities. Perhaps it is because I trained not as a lawyer but as a mathematician that I hold firmly to the maxim that, before one can begin to find the right solution, one has to have clearly defined the problem. I am not sure that these clauses, as presently drafted, fully pass that test.
If the problem is that there are occasions when the sharing of personal data will be necessary in order to detect or prevent serious violence, such powers already exist. Indeed, they go further than simply applying to certain public bodies. Like all of my right reverend and most reverend friends on these Benches, I am a data controller—a fancy title—handling often very sensitive personal information regarding clergy, church officers and children who are in the care of churches. I know my general duties regarding when I ought to disclose such data to police or others. When I need specific advice, I have access to my legal secretary, my diocesan safeguarding adviser and others. It is difficult to see what a new duty on some public bodies to share identifiable personal information will add to this.
Alternatively, if the problem is the need to collect and process data sets that allow the setting of more general policing priorities and interventions, it is difficult to see why that cannot be done in ways that remove all identifiable personal details and hence are entirely compliant with the GDPR and other data protection law. I struggle to see why there is a need to create an opt-out for the anonymised data that can drive better policing.
The amendments that I and others have put our names to would, I believe, strengthen the Bill, making it clear that it is seeking not to set aside data protection law but to allow anonymised data to be shared where this will produce better policing outcomes. They would reassure children, vulnerable people, victims of crime and others that their personal data will not be shared, beyond that which is already shared under existing legislation. They would allow youth workers, whether they are employed by the Church, local authorities or whomever, to continue to be trusted by those who come to them.
As has been alluded to, the noble Baroness, Lady Williams—who, were it not for the particular protocols of this place, I would be proud to refer to as my noble friend—has already accepted the principle that health bodies should not be compelled to share patient data. It is not a huge leap to extend that to other authorities.
Lord Paddick (LD)
My Lords, I have Amendments 24 and 32 to 35 in this group, and I have signed Amendments 11, 22, 25 and 30, in the names of the noble Baroness, Lady Meacher, and the right reverend Prelate the Bishop of Manchester.
I start with the government amendments that effectively protect patient confidentiality on the basis that, if patients do not trust their doctors to keep sensitive personal information confidential, they will not seek healthcare when they need to. There are already protocols to deal with situations where there is a serious risk of harm to the patient or others which allow the sharing of information. In moving these amendments, the Government have accepted the principle that professionals need to keep sensitive personal information confidential in order to maintain the trust of those whom they are working with. I will return to this shortly.
Amendments 11, 22 and 30 do the bare minimum in maintaining the protection provided by data protection legislation. This is putting down a marker that specified authorities should not simply allow the duty to share information under the serious violence duty to override everything else. We will support these amendments if the noble Baroness, Lady Meacher, divides the House.
But we do not believe these amendments go far enough, in that they do not address the Secretary of State’s enforcement powers. Despite government protestations to the contrary, the almost unanimous view among NGOs is that the new serious violence duty is actually a duty on specified authorities to give information to the police, so that the police can try to arrest our way out of the problem of serious violence—an enforcement-led approach, which even the Commissioner of the Metropolitan Police says is not the solution. What we really need is a truly multiagency public health approach, which has worked so well in Scotland, where enforcement is only one part of the solution .
Baroness Fox of Buckley (Non-Afl)
My Lords, I am not particularly keen on GDPR legislation as it is, so I do not want to use it to support this group of amendments. I have also been happy to consider extraordinary measures to tackle things such as knife crime and gangs, because I do not want to pretend that this is a new problem. I live in Wood Green and I have seen someone stabbed. There is a horrible atmosphere in which you fear for young people’s lives. Instead, I want to raise my fear that this could have unintended consequences. It is a question of trust. The young people who we would all like to prevent from being involved in serious violence need to turn to someone and build up relationships with people, if they are to get out of situations where they could be involved in violence.
I will give a couple of examples from youth workers who I have spoken to. A young woman who is pregnant wants to extricate herself from the gang culture, but she worries that, if she talks to people such as youth workers, she will be accused of snitching on the father of her unborn child. That might lead them to the police’s arms, and so on. You can understand the situation. The youth worker reassures them that this will not occur but, actually, you cannot reassure them if the law changes as described. Then there is the young man who considers getting or tries to get himself out of a situation in which he is involved in gangs, but he is paranoid about the police. It is understandable that certain groups would think that any approach to anyone in authority would lead them into the police’s clutches. Actually, any attempt by a youth worker to reassure them that they should not be paranoid would be incorrect in this instance—they were right to be paranoid, because they are potentially putting themselves in the police’s clutches.
I ask the Minister how we can avoid the unintended consequences of this. I know that those individual youth workers will not necessarily be affected, but they work for institutions that have to make data available. Those anecdotes will become data points and important information can therefore be shared when it should not be. I note that I have told those stories anonymously and that I was given that information without any personal data being passed on. If you want to develop new strategies to tackle serious violence, it can be done without handing names, addresses and personal details to the police.
Lord Rosser (Lab)
My Lords, I will endeavour to be brief. This group of amendments includes government concessions to include extra protections on doctor-patient confidentiality and healthcare data. They provide that the powers under the serious violence reduction duty do not authorise the disclosure of patient or personal information by a health or social care authority. We support the amendments in the name of the noble Baroness, Lady Meacher, which, among other things, leave out the uncertain language in brackets in the Bill.
To be a bit clearer about it—although the noble Baroness, Lady Meacher, explained it extremely well, as one would expect—the serious violence reduction duty requires data sharing between bodies, and the Bill currently provides that data cannot be shared if it would breach data protection laws. It qualifies that with:
“(but in determining whether a disclosure would do so, any power conferred by the regulations is to be taken into account)”.
An amendment from the noble Baroness, Lady Meacher, and others would delete the provision in brackets, so data protection law would apply as normal, as it does to medical professionals. A number of noble Lords have referred to other people or organisations who have contact and involvement with that same degree of confidentiality, and professional judgments on disclosure should apply.
The noble Baroness, Lady Meacher, referred to a meeting she had with the Minister and a letter she only very recently received. I assume that is the one dated 7 December. I appreciate the letter and thank the Minister for it but, reading the paragraph that relates to the bit in brackets that the amendment from the noble Baroness, Lady Meacher, seeks to delete, I struggle to understand the argument for having the part in brackets. Why is it necessary?
Why can we not simply leave it, with statements in other parts of the letter that make it clear that data can be shared, where it is lawful to do so, only under the data protection legislation? One would have thought that is surely all we needed to say—not to have something in brackets which I do not fully understand the need for, despite the letter from the Minister. I sense from what the noble Baroness, Lady Meacher, is saying that she too struggles to understand why we need the bit in brackets at all. I have no doubt that the Minister will comment on that in her response.
Having said that, we welcome the concessions made by the Government on medical data and doctor-patient confidentiality. They show that the Government have accepted, up to a point, that the data-sharing powers in this chapter needed qualification. Data sharing, properly and intelligently done, with safeguards, can be absolutely key to tackling serious violence, to prevent silo working and some of the failures we have witnessed too many times. We have some concerns over the proposal to require all data shared under the duty to be anonymised, as there may be rare but crucial cases where information needs to be more specific to protect the vulnerable and pursue the criminal.
I come back to this point: in welcoming the concessions that have been made, we support what the noble Baroness, Lady Meacher, is seeking to achieve, but we find the language in brackets—to which reference has been made—which appears to qualify the application of data protection law, to be unclear, and we really do not see why those words need to be there at all.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, I thank all noble Lords who have spoken to this group of amendments, which concern the data-sharing provisions in Chapter 1 of Part 2 of the Bill. I thank the noble Baroness, Lady Meacher, for the time she has given me today and the discussion we have managed to have. I actually think we sneakily agree with each other—but not for the same reasons. Before responding to her amendments and those of the noble Lord, Lord Paddick, I will deal with the government amendments in this group, which, if I may take the mood of the House this evening, appear to have attracted broad support.
Information sharing between relevant agencies is essential to the effectiveness of the serious violence duty. It is very important to note that it can be shared only in compliance with data protection legislation. Nothing in this Bill either waters down that legislation or breaches it. The duty will permit authorities to share data, intelligence and knowledge to generate an evidence-based analysis of the problems in their local areas. In combining relevant datasets, specified authorities, local policing bodies and educational, prison and youth custody authorities within an area will be able to create a shared evidence base on which they can develop an effective and targeted strategic response with bespoke local solutions. We can see this in other areas where local bodies work together.
Each of the authorities specified in the legislation has a crucial role to play, and it is vital that authorities are able to share their data to determine what is causing serious violence in the local areas. For example, information sharing can contribute to local efforts by allowing authorities to identify patterns and trends, geographical hotspots and the most vulnerable victims, much in the way that the noble Baroness, Lady Fox, outlined.
Baroness Meacher (CB)
My understanding is that the police are able to require information to be given and Clause 17 gives the Secretary of State the power to reinforce that. As the Minister suggested this morning, the matter would then have to be determined in the courts. This is really the nub of it. We want professionals to feel able to undertake their work to prevent serious violence, with children and young people who really are pretty problematic, without feeling that, in the end, it will go to court to decide whether they are allowed to exercise their professional judgment.
Baroness Williams of Trafford (Con)
If the noble Baroness will be patient, I will get on to Clauses 16 and 17 in just a second.
Going back to Clause 15, this will permit, but not mandate, authorities to disclose information to each other. It simply ensures that there is a legislative basis in place to enable information to be shared between all authorities exercising functions under Chapter 1 of Part 2 of the Bill. The clause also ensures that any disclosures must only be made in compliance with data protection legislation and cannot be made if certain prohibitions on disclosure set out in the Investigatory Powers Act 2016 apply.
Clause 16 provides a power for a local policing body—a PCC or equivalent—to request information from a specified authority, educational authority, prison or youth custody authority for the purposes of enabling or assisting the local policing body to exercise its role to assist duty holders and monitor its functions to prevent and reduce serious violence. While Clause 16 places a statutory requirement on the specified authority, education authority, prison or youth custody authority to comply with such a request, a disclosure is not required if it would contravene data protection legislation or prohibitions in specified parts of the IPA 2016. The provision does not place any mandatory requirements directly on individual professionals to disclose information they hold under the duty, be that confidential information or otherwise.
There are also a number of safeguards in relation to the information that can be required. As proposed by government Amendment 20, local policing bodies must request only information already held by that authority. Requests must be related to the organisation or function to whom the request is made, except when functions are contracted out. Additionally, the information supplied under Clause 16 must be used by only the local policing body that receives it to enable or assist that body to assist the relevant authorities or monitor the activity it undertakes under the duty. The information received is not therefore to be used or disclosed onwards to any other bodies for other purposes, such as law enforcement.
It is against that backdrop that we need to consider the provisions in each of Clauses 9, 15 and 16 which Amendments 11, 22 and 30 seek to strike out. These provisions state that, in determining whether a disclosure would contravene the data protection legislation,
“the power conferred by this section is to be taken into account”.
This allows the power or duty to disclose to be taken into account when determining the impact of the data protection legislation. This is to preserve the effect of the data protection legislation, dealing with the logical difficulties that can arise where an information-sharing gateway, such as that proposed by these provisions, prevents disclosure in breach of the data protection legislation, but the data protection legislation allows a disclosure which is required or permitted by the enactment. This is to ensure that these provisions can be taken into account when authorities are determining the legal basis for processing data under Article 6 of the UK GDPR.
This Bill is by no means unique in including this drafting. The provisions have been used for a number of other information-sharing clauses, including most recently the Environment Act 2021 and the Forensic Science Regulator Act 2021. I know that I am not allowed props in your Lordships’ House, but if I hold up the list to myself, there are a huge number of Bills to which this pertains. This is a standard provision. I also reiterate that both Clause 15 and regulations made under Clause 9 provide for permissive gateways, meaning that they do not impose any obligation to share information. That is a crucial point.
On Amendment 25, I totally agree that any decision to disclose an individual’s personal data should not be taken lightly. The rationale for not excluding all personal data sharing under the duty is clear. Private and confidential health data has a unique status and needs special protection or trust between patients and doctors. That could be undermined, with individuals actually going as far as to avoid treatment for fear of their data being shared. However, in order for the duty to be effective, we really must still support sharing of case-specific information on individuals at risk to both safeguard them and support vital interventions; I know that the noble Baroness, Lady Meacher, agrees with that point. Decisions about whether disclosures of personal data can lawfully be made under these provisions would always need to be made on a case-by-case basis, and always in line with data protection legislation.
As I said in previous debates, we are not seeking to replace existing data-sharing agreements or protocols, including those under the Crime and Disorder Act 1998. All authorities subject to the duty should have clear processes and principles in place for sharing information and data. Any and all exchanges of data and information under Clauses 15 and 16 or regulations made under Clause 9 must not contravene existing data protection legislation or provisions of the IPA 2016.
I turn to the amendments tabled by the noble Lord, Lord Paddick. Amendment 18 seeks to ensure that relevant authorities are obliged to comply with the serious violence duty only to the extent that it does not conflict with its other statutory duties. We do not support this amendment, as it is essential that all relevant authorities are legally required to collaborate with the specified authorities or with other education, prison or youth custody authorities in their work to prevent and reduce serious violence when requested to do so, and to carry out any actions placed on them in the strategy. There are already sufficient safeguards in place, including considering whether the request is deemed to be disproportionate to the local serious violence threat level, whether it would be incompatible with an existing statutory duty or, indeed, whether it would have an adverse effect on the exercise of the authority’s functions, or would mean that the authority incurred unreasonable cost. In determining whether any of those conditions apply, the cumulative effect of complying with duties under Clause 14 must be taken into account.
We think that this approach strikes the right balance in ensuring that institutions which are affected by serious violence, or may have a valuable contribution to make to local partnership efforts, will be drawn into the work of the local partnership without placing unnecessary burdens on those which may not. This approach is also consistent with the structures and processes in place for existing safeguarding legislation and would allow for an effective and targeted approach within both the education and prison sectors.
Amendments 24, 32 and 33 require that any information disclosed under Clauses 15 or 16 or under regulations made under Clause 9 must comply with any duty of confidence owed by the person making the disclosure, where disclosure would amount to a breach of that duty, the Human Rights Act 1998, the Equality Act 2010, the data protection legislation, the Investigatory Powers Act 2016, and any other restriction on the disclosure of information, however imposed. In addition, Amendment 33 also specifies that no regulations may be published under Clause 9(2) prior to the Secretary of State publishing an equality impact assessment, a data protection impact assessment and a description of any guidance or codes of practice.
Lord Falconer of Thoroton (Lab)
Is the Minister saying—I take Clause 9(5)(a) as an example—that, when considering necessity and proportionality under the data protection legislation, the existence of this power is not relevant because the data protection legislation will determine whether it is necessary and proportionate, and the only significance of the words in brackets is to make it clear that this opens a new gateway?
Baroness Williams of Trafford (Con)
Can the noble and learned Lord elucidate?
Lord Falconer of Thoroton (Lab)
Under the data protection legislation, whether or not to disclose the information depends in part on its necessity and proportionality, which is a balancing act. I think the noble Baroness is saying that the words in brackets are there—I am taking Clause 9(5)(a) as an example—only to make it clear that we are opening a new gateway here. They are not there to say, “In considering necessity and proportionality, have regard to the fact that this new power is given”. Is that what the noble Baroness is saying about how the words in brackets operate? If it is too late at night and I am not clear enough, she can by all means write to me, but it is quite important.
Baroness Williams of Trafford (Con)
The words provide that the processing is lawful under data protection legislation.
Lord Falconer of Thoroton (Lab)
Is that separate from the words in brackets?
Baroness Williams of Trafford (Con)
My Lords, as I understand it, they must be read with Article 6 of the GDPR, so it is a read-across. Yes, I am tired—my brain is not working very fast today.
Clauses 9, 15 and 16 also already ensure that data can be disclosed only in compliance with the data protection legislation; I mentioned that that requires a case-by-case consideration of the necessity and proportionality of a disclosure.
Obligations of confidence and other restrictions on disclosure are not breached by a disclosure under Clauses 15 or 16, or regulations made under Clause 9, but patient information and personal information held by a health or social care authority should not be shared in line with our proposed amendments, as it is vital that authorities are able to share their data when necessary to determine what is causing serious violence in local areas. Our draft statutory guidance provides some additional steers on this, and the guidance will be subject to formal consultation following Royal Assent and can be revised if it needs further clarification.
I turn to Clause 17, and first I shall answer a point made by the noble Baroness, Lady Brinton. A direction under Clause 17 cannot be made to require information requested under Clause 16 to be provided if the information is patient information or if the health or social care authority is requested to provide personal information. I hope that she finds that clarification helpful.
Amendment 35 strikes out Clause 17, which confers a power on the Secretary of State to direct a specified authority, educational, prison or youth custody authority, where it has failed to discharge its duty imposed under the Bill. I assure the House that we expect these powers to be seldom used and utilised only when all other means of securing compliance have been exhausted. However, in order for this duty to be effective, there needs to be a system in place to ensure that specified authorities comply with the legal requirements that we are proposing to help prevent and reduce serious violence.
I hope, in the light of my explanation, that the noble Baroness, Lady Meacher, and the noble Lord, Lord Paddick, will be content not to press their amendments and support the government amendments.
Baroness Meacher (CB)
My Lords, first, I thank the right reverend Prelate the Bishop of Manchester and the noble Lord, Lord Paddick, very much for their support for these amendments and their excellent contributions, and I thank all other noble Lords who have contributed today—in particular the noble Lord, Lord Rosser, who has been very helpful behind the scenes, despite a slight issue this evening, as we know.
I thank the Minister for her reply. Her remarks must have left noble Lords completely confused because, of course, if these clauses really were benign, we would not have Amnesty International, Liberty and about a dozen other organisations desperate for these amendments to pass this evening. The fact is that they are not benign, and I congratulate the Minister on the brilliant wording that has somehow left me bemused, along I am sure with everybody else in this Chamber.
I regard the issue of the ability of professionals to exercise their professional judgment in deciding whether to pass information to the police, which could jeopardise the very vulnerable young people they are working with, as a very important issue of principle. It is for that reason that I wish to test the opinion of the House—albeit I know our numbers are severely limited at this very late hour—and call a vote.
“(5A) Regulations under subsection (2) must not authorise—(a) the disclosure of patient information, or(b) the disclosure of personal information by a specified authority which is a health or social care authority.”Member’s explanatory statement
This amendment and the amendment in the name of Baroness Williams of Trafford at page 12, line 11 require regulations under Clause 9(2) to provide that they do not authorise the disclosure of patient information or the disclosure of personal information by a health or social care authority.
““health or social care authority” means a specified authority which is listed in the first column of the table headed “Health and social care” in Schedule 1;“patient information” means personal information (however recorded) which relates to—(a) the physical or mental health or condition of an individual,(b) the diagnosis of an individual’s condition, or(c) an individual’s care or treatment,or is (to any extent) derived directly or indirectly from information relating to any of those matters;“personal information” means information which is in a form that identifies any individual or enables any individual to be identified (either by itself or in combination with other information).”Member’s explanatory statement
See the explanatory statement for the amendment in the name of Baroness Williams of Trafford at page 12, line 2.
Lord Young of Cookham
“Serious Violence and the Housing Act 1996
The Secretary of State must, before the end of the period of 3 months beginning with the day on which this Act is passed, issue a code of practice under section 214A of the Housing Act 1996 on preventing serious violence to provide—(a) that the application of section 177 of the Housing Act 1996 is to be applied to those at risk of serious violence so as to ensure that it is not deemed reasonable for a person to continue to occupy accommodation if the provision of alternative accommodation would prevent or reduce the risk of serious violence against that person;(b) for the Homelessness Code of Guidance for Local Authorities to be updated to include a new chapter on the duties of local authorities under sections 7(3A) and 8(3A) of this Act, with particular reference to preventing and reducing serious violence and safeguarding young people at risk of serious violence; (c) that the police shall be responsible for timely collaboration with housing providers on the reduction of the risk of serious violence to individuals where the exercise of housing duties may reduce or prevent the risk of serious violence; and(d) guidance on the disclosure of information in accordance with regulations under section 9(2) of this Act by and to specified authorities which are housing authorities to prevent and reduce serious violence in a prescribed area, with particular reference to assisting the housing authority with the prevention and reduction of serious violence in the exercise of its duties under Part 7 of the Housing Act 1996.”
Lord Young of Cookham (Con)
My Lords, I beg to move Amendment 14 in my name and that of the noble Baroness, Lady Blake of Leeds. This adds a new clause to the Bill after Clause 9—the clause dealing with the power to authorise collaboration to prevent and reduce serious violence. It is the same as Amendment 50, which we debated in Committee on 25 October. It links that objective of reducing serious violence specifically to the area of housing by giving priority to those who need to be rehoused to protect them, for example, from gang violence. Homelessness massively increases a young person’s risk of exploitation and abuse, and a safe and stable home is a key element in preventing and reducing youth violence.
The Government’s Serious Violence Strategy in 2018 identified homelessness as a risk factor in being a victim or perpetrator of violent crime. This has been confirmed by research by Crisis and Shelter. The amendment builds on the protection in the Domestic Abuse Act for victims of violence in the home, extending it to victims of violence outside the home that is every bit as dangerous. Whatever the theoretical protection offered to them by existing legislation and guidance may be, evidence on the ground shows these young people are not getting priority—a fact confirmed by the Child Safeguarding Practice Review Panel. The amendment does not ask for fresh primary legislation but requires current codes of practice and guidance to be updated and refocused, and for the police to collaborate and to ensure that relevant data is shared between authorities where people are at risk.
The Companion says:
“Arguments fully deployed … in Committee of the whole House … should not be repeated at length on report”.
I will therefore refer very briefly to what I said: that we are seeking to ensure that what the Government say is happening, and what should be happening, is actually happening on the ground. I also refer to what noble Baroness, Lady Blake, said when she gave specific examples with fatal consequences of a failure to rehouse a child out of area, and about how local authorities currently view their responsibilities in this area. The noble Baroness will deal with proposed new subsections (c) and (d) in the amendment.
The amendment was supported from the Cross Benches by the noble Lord, Lord Carlile, by the Liberal Democrat Benches and by a former police commissioner on the Labour Benches. In her sympathetic response to that debate, my noble friend the Minister said:
“We will continue to work with the relevant sectors to ensure that the statutory guidance is clear on this point”—
the priority need for those at risk of violence—
“ahead of a public consultation following Royal Assent and prior to the serious violence duty provisions coming into effect”—[Official Report, 25/10/21; col. 572.]
I took comfort from that.
But the amendment goes a bit further than that and refers to the code of practice and guidance under the Housing Act 1996. On that, my noble friend said:
“We think that the current legislative framework and accompanying statutory homelessness code of guidance, combined with the statutory guidance on social housing allocations, strikes the right balance as it considers the vulnerability of the applicant on a case-by-case basis and is the … appropriate means of determining priority for accommodation secured by the local authority.”
My noble friend also referred to the code of practice covering Section 177 of the Housing Act, saying:
“I say to my noble friend at this point that the statutory homelessness code of guidance already provides such guidance for housing authorities when a person at risk of violence or the threat of violence approaches a local authority in housing need. The statutory guidance on social housing allocations also makes it clear that local housing authorities should consider giving preference to such persons.”—[Official Report, 25/10/21; cols. 574-75.]
But the view of the Committee was that this did not go far enough to deal with the often tragic cases that we referred to.
At 5.50 pm yesterday, my noble friend wrote to me about the amendment, and I am grateful for a thoughtful and reasoned response. At the end, she says, “I hope that, in the light of these commitments, you will not consider it necessary to return to this issue on Report”. But the amendment had already been listed for debate today yesterday morning, so she will understand that this hope was ambitious. One argument in her letter for resisting the amendment is a tribute to the ingenuity of the civil servant who drafted it, but it cut little ice with me. This was the suggestion that giving strengthened advice to social landlords about those suffering from serious violence, as proposed, and simply ensuring that what should happen does happen, would add £88 billion to the PSBR. I do not believe that the National Audit Office would reclassify housing association debt on the basis of my amendment.
My noble friend’s letter says that the Government do not think that there is a case for changing the legislation, and I agree; the amendment is about the guidance. Here I welcome what she has said to me— namely, that “officials will work with those in Department for Levelling Up, Housing and Communities and representatives from the housing sector to strengthen the statutory guidance for the serious violence duty”.
In conclusion, can I press my noble friend to give a little more detail of what she has in mind? Will this new guidance complement, and so update, the homelessness code of guidance and ensure that all agencies are adequately protecting those at risk from serious violence, as in the amendment, without requiring them to gather extensive evidence and demonstrate unique vulnerability, often without a clear idea of what it is that they are being asked to demonstrate? In other words, will it make the process more like that for those who are threatened by domestic abuse, as in proposed new paragraphs (a) and (b)? These ensure that all local authorities would be required to consider the needs of individuals at risk of homelessness due to serious violence. At the moment, this is covered by only one paragraph in the code of guidance, compared with a whole chapter for those at risk of domestic violence. I hope that she is now able to go a little further than she was able to go in her letter and flesh out what she has in mind.
Baroness Blake of Leeds (Lab)
My Lords, I rise to support the amendment in the name of the noble Lord, Lord Young, to which I am pleased to have added my name; and I would like to take this opportunity to commend him for continuing to pursue the important issues raised and for the clarity in his exposition of the points in front of us. Given the lateness of the hour and how much pressure we know we are under with this Bill, I hope I will not repeat too often some of the points that have been raised already.
In speaking to this amendment, I would like to emphasise that we are aiming to protect some of the most vulnerable children and young people in our communities. I would like to highlight the comments the noble Lord made, knowing of the increased risk to a young person of exploitation and abuse that comes from vulnerability around their housing situation. We know, in the communities where young people are targets of gangs in particular, just how difficult it is to protect them if they are not given the full support from all the agencies that could be involved to help them—and we know that a safe and stable home is a key element in preventing and reducing youth violence.
There surely cannot be anyone in this Chamber who does not want to see an end to the sickening violence that is cutting short the lives of so many young people in the most harrowing of circumstances. The question is, as always: what further steps can we take to prevent such tragedies occurring? For the sake of brevity, I do not want to go over again all the arguments I made at Second Reading, and I will focus my comments on subsections (c) and (d) of the amendment at the end.
I must admit that I find the argument that changes are not necessary because local authorities already have “discretion” to grant priority in the area of rehousing to be far wide of the mark. Unfortunately, we know that local authority interpretation varies and often leaves the onus on immensely vulnerable families to provide evidence at what can be the most traumatic time of their lives. When asked, three in four local authorities have no specific policy governing how they treat people applying for a priority need because of serious violence. In effect, a postcode lottery has been created.
We need to be completely focused on coming up with practical solutions to what I believe are solvable problems. This new clause would ensure that families with members at risk of gang violence are given the support they need, rather than placing it on a legislative footing. This amendment seeks to update the guidance issued by the Government to ensure that all agencies are adequately protecting those at risk of serious violence—in effect, ensuring that all agencies are working together to protect those at risk and that, in this particular case, housing providers are automatically included. There are areas in the country where that relationship exists, and the results speak for themselves.
This new clause seeks to specify in law what the Government say is often happening anyway. Instead of people at risk of serious violence being forced to gather extensive evidence and demonstrate unique vulnerability—something not easily done when you are under threat or in a crisis—this would make the process automatic, as we rightly recognise should be the case for those threatened by domestic abuse.
Subsections (c) and (d) would ensure that housing providers are included in any collaboration around the reduction of serious violence. The Police, Crime, Sentencing and Courts Bill sets out the Government’s ambition to reduce violent crime and address the root causes of serious violence across England and Wales, by making sure that public bodies work together to stop serious violence. However, at present the Bill does not include housing as a partner agency.
The new collaboration duties can play an important role. Given the role which housing often plays in serious violence, whether because of the location of specific threats or criminal activity around particular locations, it is vital that these providers are not locked out of discussions because they are not specified in legislation. By ensuring the guidance specifically includes them, the Government can guarantee that the all the expertise of this sector will not be ignored.
I conclude by repeating the comments of the noble Lord, Lord Young, on bringing in the costs situation. This is about young people’s lives. I hope the Minister can provide further clarity and more progress, as the noble Lord, Lord Young, asked for.
Lord Paddick (LD)
My Lords, we support this amendment. As I said in Committee, it is not just victims of domestic violence that need help and support from housing authorities to escape serious violence; young people groomed and exploited by criminal gangs, for example, also need and deserve to be urgently rehoused in certain circumstances. The police need to provide information to housing authorities where they believe that someone is being coerced into criminal activity, where they are being threatened with serious violence if they do not comply, and where the police believe that taking the person out of that scenario by rehousing them can reduce the risk of serious violence. Many of the young people involved in county lines drug dealing have been groomed into criminality and been the victims of child criminal exploitation. They and their families are often terrorised by those higher up the drug-dealing network. In this sort of scenario, the police need to work with social housing agencies to provide a route out of serious violence. We support the amendment.
Baroness Williams of Trafford (Con)
My Lords, I thank my noble friend Lord Young of Cookham for setting out the case for his amendment. I also thank the noble Baroness, Lady Blake, and the noble Lord, Lord Paddick. I fully agree that local authorities can and do make a significant contribution to local efforts to prevent and reduce serious violence, and it is vitally important that all victims of serious violence who need to leave their home to escape violence are supported to access alternative safe and secure accommodation. As my noble friend has already outlined, the statutory homelessness code of guidance provides guidance on local authorities’ duties under Part 7 of the Housing Act. The amendment seeks to place a requirement on the Secretary of State to issue a code of practice under Section 214A of the Housing Act 1996.
The implementation of the serious violence duty will bring additional guidance to which local authorities will have a statutory duty to have regard. The guidance accompanying the duty, to be issued under Clause 18 of the Bill, will reinforce and complement the existing guidance issued under housing and homelessness legislation. Taken together, I hope there will be sufficient guidance in place to ensure local authorities are clear on how the legislation applies in addressing the housing needs of victims of serious violence.
I hope my noble friend agrees—and I think he would—that to introduce another code of practice in addition to the existing homelessness code of guidance and the serious violence duty guidance would lead to unnecessary confusion and duplication. I hope to assure my noble friend this evening that the points his amendment is seeking to address are already covered, and are what we are planning to do in future.
Paragraph (a) of my noble friend’s new clause would require the code of practice to provide guidance on the operation of Section 177 of the Housing Act 1996 in relation to people who are at risk of serious violence.
The Housing Act 1996, as amended by the Homelessness Reduction Act 2017, puts prevention at the heart of the local authorities’ response to homelessness and places duties on local housing authorities to take reasonable steps to try to prevent and relieve a person’s homelessness. When assessing if an applicant is homeless, local authorities should consider any evidence of violence and harassment. Section 177 already provides that someone is considered homeless if it would not be reasonable for them to continue to occupy the accommodation and it is probable that this would lead to violence against them, their family or their household.
Paragraph (b) of the new clause seeks to update the homelessness code of guidance to include a chapter on the duties of local authorities. We are committed to supporting victims of serious violence and know the important role that local authorities play in making sure that such victims get support when they are in housing need.
As noble Lords will know, we published a draft of the statutory guidance for the serious violence duty in May. The debates in both Houses have helped to identify areas which need further development prior to publishing a revised draft, which will be subject to a formal consultation following Royal Assent of the Bill. Officials will work closely with the Department for Levelling Up, Housing and Communities and representatives from the housing sector to strengthen the statutory guidance for the serious violence duty. This will point to the legislation and guidance that is already set out in the homelessness code of guidance and the allocation of accommodation guidance, and showcase examples of good practice in this area which local partners can draw on to raise awareness across public authorities of the legislation which protects this cohort.
I can also give a commitment this evening that we will expand the homelessness code of guidance to include a new chapter on supporting victims of serious violence, which I hope gives my noble friend the assurance he seeks in this regard.
Paragraphs (c) and (d) of the new clause concern the role of the police in timely collaboration with housing providers on reducing the risk of serious violence to individuals, and guidance on the disclosure of information. Of course, we must do all that we can to identify and provide support to the individuals most at risk of involvement in serious violence, including those who might be at risk of homelessness.
As noble Lords have stated, many housing authorities already work with the police and other key partners to reduce the risk of serious violence, including through the provision of alternative accommodation. Where this works well, it is clear that it is vital that services such as youth offending teams, educational authorities and national probation services work together locally to provide support for the household and victim of violence. Housing alone without support, I think noble Lords will agree, is not a sustainable option.
As part of the work to prevent and reduce serious violence, specified authorities in a local area will be required to work together to identify the kinds and causes of serious violence and, in doing so, to establish the groups of individuals who are most at risk in local areas.
The new serious violence duty will facilitate this and is intended to generate better partnership working locally to further protect this cohort. The draft guidance is clear that local authorities are responsible for the delivery of a range of vital services for people and businesses in a local area, including—but not limited to—children’s and adult’s social care, schools, housing and planning, youth services and community safety, so they will have an essential role to play in partnership arrangements. The inclusion of this detail in the guidance for the new duty, alongside the existing homelessness legislation and guidance, is the most effective way of supporting these victims of serious and gang-related violence to relocate and start afresh.
To support the collaboration, Clause 9 provides that regulations can also be made to authorise the disclosure of information, which we talked about earlier, between authorities and prescribed persons, which might be external bodies for this purpose, so long as it would not contravene existing data protection legislation or be prohibited under provisions of the IPA 2016. This of course would be a permissive gateway, permitting but not requiring the sharing of information.
I hope that, in the light of the assurances and commitment I have given in relation to the statutory guidance and the relevant existing legislation on this matter, my noble friend will be content to withdraw his amendment—and I apologise for the lateness of the arrival of the letter.
Lord Young of Cookham (Con)
My Lords, I thank, first, the co-sponsor of the amendment, the noble Baroness, Lady Blake of Leeds, for continuing the duet that we launched in Committee. I am grateful also to the noble Lord, Lord Paddick, for his continued support. I should also mention that I am grateful to Stella Creasy and her office for the briefing that she has been able to give us in connection with the amendment.
There was a lot in my noble friend’s reply and I am very grateful for what she said. I will pick out just three things. She said that the additional guidance under this legislation will place a statutory obligation on local authorities, which will complement existing guidance. I set great store by what she said on that. She also said that the draft guidance that has already been published will be developed further and strengthened in the light of debates in both Houses. She also said, crucially, that there will be an extra chapter to the homelessness guide—again, something that I asked for.
In the words of “Oklahoma”, I think she has gone about as far as she can go. Against the background of the assurances that she has been able to give, I beg leave to withdraw the amendment.
Police, Crime, Sentencing and Courts Bill
Monday 13th December 2021
(2 years, 4 months ago)
Lords ChamberRead Full debate Police, Crime, Sentencing and Courts Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 72-II Manuscript amendment for Report, supplementary to the Second Marshalled List - (13 Dec 2021)
16:12 - Division on Amendment 35 - Ayes: 83 / Noes: 183 - Amendment 35 disagreed.
19:04 - Division on Amendment 55ZB - Ayes: 171 / Noes: 171 - Amendment 55ZB disagreed.
19:20 - Division on Amendment 55A - Ayes: 71 / Noes: 167 - Amendment 55A disagreed.
(i) domestic abuse within the meaning of the Domestic Abuse Act 2021 (see section 1 of that Act),(ii) sexual offences,”Member’s explanatory statement
This amendment clarifies that “violence” for the purposes of Chapter 1 of Part 2 includes domestic abuse and sexual offences.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, as I set out in Committee, the Government are absolutely committed to tackling violence against women and girls. In July this year, we published a cross-government Tackling Violence Against Women and Girls strategy, which set out a range of actions to help ensure that more perpetrators are brought to justice and face the full force of the law, that we improve support to victims and survivors, and, ultimately, that we work to prevent these crimes. Our complementary domestic abuse strategy will be published early next year. However, there is always scope to do more. In Committee, I undertook to consider further an amendment tabled by my noble friend Lady Bertin, which sought to expressly provide in the Bill that “violence” for the purposes of the serious violence duty includes domestic abuse, domestic homicide and sexual violence.
I reiterate that the draft statutory guidance for the serious violence duty already makes it clear that specified authorities are able to take into account any form of serious violence that is of particular concern in a local area in their strategies. The guidance specifies that this could include, for example, domestic violence, alcohol-related violence, sexual exploitation, modern slavery or gender-based violence. We have been clear throughout that we believe that specified authorities are best placed to determine what the priorities should be for their area based on the local evidence. However, we agree that there is benefit to making it absolutely clear in the Bill that domestic abuse and sexual offences, perpetrated against adults or children, are included within the meaning of “violence” for the purposes of the serious violence duty. These government amendments do just that. To ensure that clarity, the amendments include definitions of “domestic abuse”, importing that contained in Section 1 of the Domestic Abuse Act 2021, and of “sexual offences”, utilising the list in Schedule 3 to the Sexual Offences Act 2003, subject to certain appropriate modifications.
I commend my noble friend and Nicole Jacobs, the domestic abuse commissioner, for their campaigning on this issue. These amendments are a tribute to their work and I commend them to the House.
Baroness Bertin (Con)
My Lords, I am delighted to welcome this group of government amendments. Making the change to explicitly recognise that domestic abuse and sexual offences are included in the Bill’s definition of violence really matters. It sends the signal loud and clear that these destructive and damaging crimes cannot just be swept under the carpet, ignored or tolerated, and that not tackling them is no longer an option.
The omission in the original legislation risked undermining very real progress and momentum in our fight against these pervasive offences, and the Government deserve real credit for recognising that and making this change. I thank again my noble friend the Minister, who does a huge amount on the Floor of this House but also an awful lot behind the scenes. These amendments may seem very easy to get over the line but they are not, and I know that she did a huge amount behind the scenes to ensure that that happened. I also thank the Home Secretary, because I know that she gets this and that she cares. The continued political leadership in this area from both of them is greatly needed if we are to continue making this kind of progress, so I thank them for that. I echo what my noble friend the Minister said about the domestic abuse commissioner and her dedicated team. If there was a blueprint of how to put together a brilliant team that supports so many important changes that have to be made, hers is that blueprint, and that team deserves huge credit today.
If done properly, this change will make a fundamental difference to how we tackle these crimes; putting prevention front and centre is the only way in which we can hope to be making different speeches in 10 years’ time. These amendments may be simple on the face of it, but the reality on the ground is very complex, and it is vital that the accompanying guidance gives local authorities the best chance of success.
On the guidance more broadly, I want to make a couple of points. I hope that the Home Office will continue to work with the domestic abuse commissioner’s office, as well as sector specialists and violence reduction units, which are already making these changes on violence against women and girls, domestic abuse and sexual offences—notably, in Nottingham and London—to make sure that the detail of best practice is properly communicated and effectively rolled out. One concern that I still have is that the guidance still refers local authorities back to the serious violence strategy, although the strategy still makes no reference to domestic abuse or sexual offences. Therefore, the guidance should be beefed up to help that omission.
The monitoring of the duty will also be vital. I would welcome close scrutiny from the Home Office to understand why any areas did not include these crime types, when we know how prolific they are nationally. I would also welcome greater involvement from the HMICFRS in responding to the new duty and how it is working in relation to these offences.
Briefly and finally, I want to talk about stalking. I absolutely accept the omission of stalking in this amendment, although reluctantly. However, does my noble friend the Minister agree that much more urgency and joined-up thinking needs to be applied to this crime? There is still a huge gap in understanding across the entire criminal justice system, from policing to the judiciary. The ratio of victims to convictions is absolutely wrong. We know that approximately half of stalking-related cases are perpetrated by a current or ex-partner. Could she clarify and confirm that ex-intimate partner-related stalking, such as domestic abuse-related stalking, is implicitly understood and intended to be included in the duty?
Given that the other half of stalking cases are stranger cases, I very much believe that the spirit of this duty should extend to all forms of stalking. It will therefore be essential to ensure that specific and robust instruction on the nature of stalking and the types of interventions needed to tackle it are included in the guidance. In particular, I would welcome an explicit reference to MASIP, a multi-agency approach to managing the risk and reducing reoffending by stalking perpetrators. Not enough local authorities or police forces use that approach, but it does work—I have witnessed it myself in the Met team. It helps front-line officers to understand what they are dealing with. There are experts there, including potentially mental health experts, and it is an important new approach to this crime.
All in all, today is very welcome, and I hope that it gives victims hope and reassures them that their voices are beginning to be heard.
Baroness Jolly (LD)
My Lords, I join others in thanking the Minister for bringing forward these amendments. I congratulate the noble Baroness, Lady Bertin, on securing this important concession to the Bill.
Last Wednesday, we had a really well-argued and informed debate. It is worth taking a couple of minutes to look at the recent history of this issue. Going back to coalition times, when Theresa May was Home Secretary, she had weekly meetings around a table with women from every department. She challenged them on what they were doing in the department and then asked them the following week what had happened, so she really kept the pot boiling. As a result, the coalition Government published the first call to end violence against women and girls just after they were formed in 2010. Activity carries on: my honourable friend Wera Hobhouse, through a Private Member’s Bill, introduced a new offence for upskirting. However, offences for stalking, controlling or coercive behaviour, and so-called revenge porn should also follow.
While I regret that my noble friend Lady Brinton was unable to persuade the Minister to include stalking in the definition of serious violence, we welcome the government amendment before us today on violence, particularly sexual violence. Violence is not acceptable in any circumstances, but violence by men towards women and girls is completely unacceptable. As many noble Lords said during debates on this issue in Committee, it is vital to have a multi-agency public health approach to prevent domestic abuse and sexual violence.
Including domestic abuse and sexual violence in the definition of serious violence will ensure that local areas properly take account of this within their strategies and work in a joined-up way to address and prevent these crimes. The setting up of local integrated care systems as a result of the Health and Care Bill, which is before your Lordships’ House, might be a useful first provider of support for families affected. In the Minister’s response, will she please outline the initiatives that the Government will implement, not only to support the families involved, but also the perpetrators of the crimes?
Lord Rosser (Lab)
My Lords, as the Minister said, government Amendment 15 clarifies that violence for the purposes of Part 2, Chapter 1 includes domestic abuse and sexual offences. We very much welcome these government amendments, the object of which has been a key issue for these Benches. It is a hugely important change to the Bill and an example of what can be achieved by this House, and indeed by Parliament as a whole, through proper scrutiny.
I too pay tribute to the noble Baroness, Lady Bertin, and to Nicole Jacobs, the domestic abuse commissioner, for the key roles that they played on this issue. I also pay tribute to my honourable friends Sarah Jones MP and Jess Phillips MP who began a campaign for this change when the Bill arrived in the Commons in March. This has been a cross-party, cross-House effort to ensure that these extremely serious, high-harm types of violence are recognised as such and are prioritised.
It has been mentioned that, although these amendments add domestic abuse and sexual violence to the definition, they do not specifically include stalking. Stalking that involves domestic abuse and sexual offences would be covered by the terms of these government amendments, which provide for the inclusion of violence against women and girls in the definition of serious violence. Of course, that does not include all cases of stalking. I hope and expect that we will hear from the Minister at some stage during the remaining stages of this Bill what the Government are doing to change the way we respond to stalking across the board.
Baroness Williams of Trafford (Con)
My Lords, I thank my noble friend Lady Bertin for her comments. I share entirely my noble friend’s commitment to ensuring that best practice in this area is properly communicated to duty holders. That is what will make it effective. I look forward to working with the domestic abuse commissioner’s office and wider stakeholders to develop the statutory guidance which will be subject to public consultation following Royal Assent. We intend to develop options and include detail on monitoring progress in our statutory guidance. In addition, specified authorities will be requested to keep their strategy under review. PCCs will also have a discretionary power to monitor performance, and routine inspection programmes undertaken by individual inspectorates in future may also consider the organisational response to local serious violence issues.
As my noble friend and others will know, the statutory guidance under Clause 18 already includes references to sexual offences, domestic abuse and gender-based violence. In updating the guidance ahead of the consultation, we will explore whether we should revise it to make it clear to specified authorities that they should consider violence against women and girls, including domestic abuse and sexual offences, in determining what amounts to serious violence in their areas.
In terms of stalking, we are very clear that the reference to domestic abuse to be added by the government amendments will encompass stalking in so far as it takes place in a domestic abuse context. Noble Lords will know that while many stalking offences take place in a domestic abuse context or involve violent behaviour, it is not the case in all instances. We have not expressly set these out in the Bill because we are seeking to avoid an exhaustive list of crime types, partly to allow local areas to take account of new and emerging forms of serious violence as they develop and are identified, and partly to recognise the geographical difference in the prevalence of these types of serious violent crimes.
As I have said, the draft statutory guidance for the duty sets out that there is flexibility for local areas to take account of their evidence-based strategic needs assessment and include in their strategy actions which focus on other related types of serious violence, including gender-based violence, which includes all forms of stalking as well as many other forms of violence against women and girls. We can look to make that clearer in the next iteration of the guidance, which we will be consulting on, as I have said. This is a view shared by the domestic abuse commissioner, and I put on record—following my noble friend’s thanks—my thanks to her for her continued engagement in this area.
Lord Hayward (Con)
My noble friend referred to sexual violence against women and girls. Can I clarify that this legislation actually covers all aspects of sexual abuse and stalking, not just that against women and girls?
Baroness Williams of Trafford (Con)
I am glad my noble friend has mentioned that. We have said right from the outset that it covers both sexes, but this violence is predominantly meted out to women and girls; that is why noble Lords sometimes question this. But, of course, anyone who is a victim of domestic abuse or serious violence is captured by this.
The noble Baroness, Lady Jolly, asked me about the initiatives we have in place. We have tripled the funding we provide to the National Stalking Helpline, run by the Suzy Lamplugh Trust, this year. The additional funding is enabling the trust to answer more calls and expand its advocacy service. I set out in Committee the other actions we are taking to tackle stalking, and I refer the noble Baroness to those comments. Our forthcoming domestic abuse strategy will include stalking as well.
On that note, I hope that I have answered my noble friend’s questions and those of other noble Lords. I conclude by thanking my noble friend and the commissioner, and I beg to move.
“(3A) In subsection (3)(a)(ii), “sexual offence” means an offence under the law of England and Wales which is for the time being specified in Schedule 3 to the Sexual Offences Act 2003, other than the offence specified in paragraph 14 of that Schedule (fraudulent evasion of excise duty).(3B) In determining for the purposes of subsection (3A) whether an offence is specified in Schedule 3 to the Sexual Offences Act 2003, any limitation in that Schedule referring to the circumstances of a particular case (including the sentence imposed) is to be disregarded.”Member’s explanatory statement
This amendment defines “sexual offence” for the purposes of the amendment in the name of Baroness Williams of Trafford at page 13, line 12 by reference to most of the England and Wales offences for the time being specified in Schedule 3 to the Sexual Offences Act 2003.
Member’s explanatory statement
This amendment modifies the reference in Clause 12(4) to any offence involved in violence to which Chapter 1 of Part 2 applies so that it is clear that such violence may not involve an offence.
Member’s explanatory statement
This amendment and the amendments in the name of Baroness Williams of Trafford at page 15, line 41, page 15, line 42 and page 15, line 45 have the effect that Clause 15 does not authorise the disclosure of patient information or the disclosure of personal information by a health or social care authority.
“(za) the disclosure of patient information,(zb) the disclosure of personal information by a specified authority which is a health or social care authority,”Member’s explanatory statement
See the explanatory statement for the first amendment in the name of Baroness Williams of Trafford at page 15, line 41.
Member’s explanatory statement
See the explanatory statement for the first amendment in the name of Baroness Williams of Trafford at page 15, line 41.
Member’s explanatory statement
See the explanatory statement for the first amendment in the name of Baroness Williams of Trafford at page 15, line 41.
Member’s explanatory statement
This amendment limits the information that may be requested by a local policing body under Clause 16 to information held by the person to whom the request is made.
Member’s explanatory statement
This amendment and the amendments in the name of Baroness Williams of Trafford at page 16, line 35, page 16, line 36 and page 16, line 39 have the effect that Clause 16 does not require the disclosure of patient information or the disclosure of personal information by a health or social care authority.
“(za) the disclosure of patient information,(zb) the disclosure of personal information by a specified authority which is a health or social care authority,”Member’s explanatory statement
See the explanatory statement for the first amendment in the name of Baroness Williams of Trafford at page 16, line 35.
Member’s explanatory statement
See the explanatory statement for the first amendment in the name of Baroness Williams of Trafford at page 16, line 35.
Member’s explanatory statement
See the explanatory statement for the first amendment in the name of Baroness Williams of Trafford at page 16, line 35.
Lord Paddick
Member’s explanatory statement
This removes the provisions enabling the Secretary of State to give directions to require compliance with the serious violence duty.
Lord Paddick (LD)
My Lords, I indicated on Wednesday that I would divide the House on leaving out Clause 17, so I wish to test the opinion of the House.
“(4) After issuing guidance under this section, the Secretary of State must lay a copy of the guidance before Parliament.”Member’s explanatory statement
This amendment requires guidance from the Secretary of State relating to Chapter 1 of Part 2 to be laid before Parliament.
(i) domestic abuse within the meaning of the Domestic Abuse Act 2021 (see section 1 of that Act),(ii) sexual offences,”Member’s explanatory statement
This amendment clarifies that “violence” for the purposes of Chapter 1 of Part 1 of the Crime and Disorder Act 1998 includes domestic abuse and sexual offences.
“(1ZA) In the definition of “violence” in subsection (1) “sexual offence” means an offence under the law of England and Wales which is for the time being specified in Schedule 3 to the Sexual Offences Act 2003, other than the offence specified in paragraph 14 of that Schedule (fraudulent evasion of excise duty).(1ZB) In determining for the purposes of subsection (1ZA) whether an offence is specified in Schedule 3 to the Sexual Offences Act 2003, any limitation in that Schedule referring to the circumstances of a particular case (including the sentence imposed) is to be disregarded.”Member’s explanatory statement
This amendment defines “sexual offence” for the purposes of the amendment in the name of Baroness Williams of Trafford at page 19, line 7 by reference to most of the England and Wales offences for the time being specified in Schedule 3 to the Sexual Offences Act 2003.
Member’s explanatory statement
This amendment modifies the reference in section 18(1B) of the Crime and Disorder Act 1998 to any offence involved in violence to which Chapter 1 of Part 1 of that Act applies so that it is clear that such violence may not involve an offence.
health or social care authority | section 9(9)” |
“patient information | section 9(9) |
personal information | section 9(9)” |
“(3) After issuing guidance under this section, the Secretary of State must lay a copy of the guidance before Parliament.”Member’s explanatory statement
This amendment requires guidance from the Secretary of State relating to Chapter 2 of Part 2 to be laid before Parliament.
“Domestic homicide reviews
(1) Section 9 of the Domestic Violence, Crime and Victims Act 2004 is amended as follows.(2) For subsection (2) substitute—“(2) The Secretary of State must in all cases which meet the circumstances set out in subsection (1) direct a specified person or body within subsection (4) to establish, or to participate in, a domestic homicide review.”(3) After subsection (3) insert—“(3ZA) The Secretary of State must by regulations set out—(a) the type of data relating to domestic homicide reviews which must be recorded, including—(i) the number of domestic homicide reviews taking place across England and Wales annually; and(ii) the time taken to complete each individual domestic homicide review;(b) that the data must be recorded centrally in a Home Office database; and(c) that the data must be published annually.””
Lord Ponsonby of Shulbrede (Lab)
My Lords, the new clause introduced by Amendment 42A seeks to modify the Domestic Violence, Crime and Victims Act 2004 to force the Secretary of State to automatically direct a domestic homicide review in the circumstances outlined in Section 9 of the Act. The new clause also aims to improve data collection methodologies around domestic homicide reviews.
My noble and learned friend Lord Falconer of Thoroton moved this amendment in Committee. The purpose of retabling it is to get a response from the Government. A letter was promised but none has been received as far as I am aware.
In preparing for this short debate, I reread the 2016 Home Office report on domestic homicide reviews. As the Minister will be aware, some strong themes emerged from that report, including the importance of record-keeping by the police and a multi-agency approach. Another particular theme was the need for GPs to keep records of people who reported domestic abuse.
In moving his amendment in Committee, my and learned noble friend asked three questions that I shall briefly repeat. First, it is difficult to see in Section 9 of the 2004 Act whether there is an obligation in every case for there to be a domestic homicide review. We think that there should be. Can the Minister confirm the Government's position on this question? Will she consider legislating to ensure that there is a review in every case?
Lord Paddick (LD)
My Lords, if domestic abuse is now included in the serious violence duty—and there is no more serious violence than murder—can the Minister say how the Government can resist this amendment, which we support?
Lord Carlile of Berriew (CB)
My Lords, if I may just say a few words in support of this amendment, which was moved with such clarity by the noble Lord, Lord Ponsonby, two points seem to me to arise. The first is that if the reviews are held in a centralised way, they will be more efficient. There will be less of a postcode lottery when it comes to the review taking place. Secondly, and most importantly, if social services, medical services, the police and others know that there will be a review in every case in which there is murder as a result of a domestic situation, they will take greater care. We know that that has not, unfortunately, always been the case, whatever their good intentions.
Baroness Williams of Trafford (Con)
My Lords, I thank the noble Lord, Lord Ponsonby, for outlining this amendment with such clarity. Domestic homicide is a horrendous crime and I reassure the House that tackling this is a key priority for the Government. Part of the solution is ensuring that domestic homicide reviews take place at every opportunity. They offer an opportunity, as the noble Lord said, to learn lessons to prevent the same mistakes occurring again. It is important that every domestic homicide is considered for a domestic homicide review so that, as he said, lessons can be learned and further deaths prevented.
I reassure the noble Lord that domestic homicide reviews are conducted in the great majority of cases, but there may be instances where one is not appropriate or necessary. The Government are clear that domestic homicide reviews should be considered at every opportunity, and the 2004 Act already makes provision for the Home Secretary to direct that a domestic homicide review takes place where required.
When a community safety partnership decides not to conduct a review, the decision is closely scrutinised and escalated to the Home Secretary to enable her to use her powers to direct a domestic homicide review, if appropriate. This involves a review of the decision by the independent quality assurance panel, whose views form the basis of the advice provided to the Secretary of State. The review of all decisions not to conduct a review is a new process implemented earlier this year. Since implementing it, the Secretary of State has directed four homicide reviews. I hope the noble Lord sees this as an example of how seriously this Government take these reviews.
On data collection, I reiterate to noble Lords that the Home Office has in fact committed to creating an online central repository of domestic homicide reviews to improve accessibility, exactly for the reason the noble Lords, Lord Carlile and Lord Ponsonby, pointed out. At present, all reports are published on individual local authority or community safety partnership websites, but often only for a limited period. Creating the central repository will mean that all completed reviews are readily available, including to support the monitoring of the implementation of any recommendations. This is expected to go live next year. I understand that the terms of reference of the review have been published.
Regarding the letter the noble Lord, Lord Ponsonby, cited at the beginning of his remarks, I will do some investigating and come back to him, because I really do not know what has happened to it. That is unfortunate, but I will chase it up and ensure he has a response. With that, I hope he will be happy to withdraw his amendment.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I will of course withdraw the amendment, which was essentially intended to nudge the noble Baroness. I thought the noble Lord, Lord Carlile, made a very reasonable point when he highlighted the postcode lottery if there is not a review of all cases. He also said—I thought very persuasively—that services will take greater care if they know there will be a review. Perhaps I could ask for an additional, interesting piece of information to be included in the letter: how many domestic homicides have there been in a recent period where there has not been a review? I beg leave to withdraw my amendment.
Baroness Chakrabarti
“(4A) The user may choose to be in the presence of the authorised person during the extraction unless either the user or the authorised person deems it impracticable or inappropriate, in which case an explanation must be set out in writing in the agreement referred to in subsection (1).” Member’s explanatory statement
This amendment, along with another amendment to Clause 36, page 29, line 32, in the name of Baroness Chakrabarti, would permit the user to choose whether to be present during the digital extraction, unless deemed impracticable or inappropriate; and create a statutory time limit for the authorised person’s retention of the device in the event that it is necessary to take possession of it. If the time frame elapsed without extraction taking place, a new agreement would need to be sought.
Baroness Chakrabarti (Lab)
My Lords, this group of amendments and the related clauses address the phenomenon that those unfortunate enough to have experienced it call digital strip-searching—the practice of demanding a complainant’s device, usually a mobile phone, in the police station in return for agreeing to pursue a criminal investigation, usually into an alleged sex offence such as rape.
I begin by thanking the Minister for taking the problem seriously and understanding the need to address it via statute. I am afraid that I remember Ministers standing at that Dispatch Box even a couple of years ago, denying that the practice was problematic, widespread or disproportionate and even arguing against the need for primary legislation—so-called consent, in exchange for a vindication of one’s fundamental right to an investigation into such a serious crime, being sufficient. Mansplaining to rape survivors is bad enough; “Baronsplaining”, if I may call it that, was a new level of insensitivity.
I will not insult the empathy of your Lordships’ House by reiterating why an extraction of data from a personal smartphone or computer is one of the most intimate searches in the modern era and can leave the complainant feeling more like a suspect, even if the extraction is swift and on the spot and takes no more data than is strictly necessary to the particular investigation. That successive Governments, DPPs and police leaders have failed to address this problem must have played at least some part in our appalling attrition rates for the prosecution of sex offences.
While this part of the Bill is a much-needed attempted correction, we would not need to amend it if survivor and human rights groups had been properly consulted. I declare an interest as a council member of the all-party group, Justice. Amendments 43 to 46, 48 and 51 in my name are advanced by a broad coalition of civil society organisations, led by Big Brother Watch, Amnesty International, the Centre for Women’s Justice and Rape Crisis. They are currently unconvinced that the Bill, either as it stands or with proposed government amendments, does enough to protect complainants and rebuild trust in the investigation and prosecution of sex offences.
Amendments 43 and 44 allow the complainant to be present during the extraction of data, unless that is impracticable or inappropriate, and create a time limit for any police retention of the device. Amendment 45 would make the threshold for extraction the tighter and objective ECHR test of strict necessity, and Amendment 46 would further tighten the criteria. Amendment 48 would allow a DCI review of the strict necessity of any extraction agreement, and Amendment 51 requires a fuller explanation of the person’s rights before they agree. I thank the noble Lord, Lord Paddick. Crucially, his Amendment 50 ensures that the explanation is given orally, as well as in writing. My noble friend Lord Rosser’s Amendment 52A makes provision for data in the hands of a third party.
Government Amendment 52 in the Minister’s name creates a proportionality but not a strict necessity test for extraction where the authorised person is of the subjective view that there is a risk of obtaining confidential information—of course there is. Amendments 53 to 56 replace the need for regulations with the laying of statutory guidance.
The government provision still contains fewer statutory safeguards than sought by the victims’ rights coalition, so I urge the Minister to move further in its direction by accepting its amendments, refining or tweaking them at Third Reading or, at the very least—and before the preparation of any statutory guidance under the new legislation—agreeing to meet with a small group of those representing voices that have been ignored for too long. I beg to move.
Lord Beith (LD)
My Lords, I am ready to support the commitment of the noble Baroness, Lady Chakrabarti, in bringing forward this amendment, and appreciative of the Minister’s moves as represented in the government amendments. I simply want to clarify some points, because there are still concerns in this area. Some of the concerns arise from the context.
Police abuse of procedures of various kinds has been apparent, even to the extent of affecting murder victims. It cannot be denied that within police forces there are a few people who will do these things. That makes it that much more difficult to have complete confidence in the voluntary arrangements that these amendments deal with. I ask the questions: how voluntary, how confidential, and how about disclosure?
How voluntary? When someone is asked to hand over their phone, the police officer usually says, “It’s up to you but unless you hand over your phone to me, I can’t see the Crown Prosecution Service having enough material to take this case forward, and I think that would probably be the end of your attempt to get justice”. I am paraphrasing, but that might effectively be what he says. That means the safeguards are important, and I welcome them, but will they be sufficient?
How confidential? Government Amendment 49 says “confidential” has the meaning it has in Amendment 47, but Amendment 47 does not actually define “confidential”. Clearly, on somebody’s phone there is a great range of confidentiality: from what might be a conversation about an intimate relationship through to a bank account, a family row or something else that someone regards as in need of safeguarding and treating as confidential. We need to be a little clearer about that.
What about disclosure? Can the Minister say a little about to what extent, if any, the requirement of disclosing material to the defence is affected by these provisions? That puts a further pressure, of course, on the victim of the crime, but it is an essential part of our justice system that when evidence is found that would assist the defence, it is the duty of the prosecution to hand it over. These are the points that concern me.
Lord Carlile of Berriew (CB)
My Lords, the noble Lord, Lord Beith, with his usual remarkable acuity, has put his finger on a very important point, which is the question of disclosure. It is clear that police forces have tended to use disclosure as the reason for obtaining much of the material that has been unnecessarily obtained, so let us be clear what the duty of disclosure is. There is a duty to disclose to the defence material that undermines the prosecution case or materially assists the defence case, but that cannot be a reason for oppressive conduct against a complainant.
I absolutely commend the amendments tabled by the Government—they are extremely helpful in taking this issue forward—but I also support the amendments tabled by the noble Baroness, Lady Chakrabarti, which would strengthen the forward-looking view of the amendments. It is a real risk that women, and indeed young men, who are the victims of rape will not pursue the case because they feel oppressed, embarrassed or threatened by unnecessary requirements framed under the heading “disclosure”.
We have a situation in which the number of rape cases prosecuted by the Crown Prosecution Service, and the number of alleged rape cases reported by the police to the CPS, has diminished dramatically over the years. It is no accident; the CPS does not like to run the risk of losing cases if it can avoid it. There are certain types of cases where there might be an inherently higher risk of a prosecution failing, but they should still be prosecuted at a significant level because of the effect the complaints behind those cases have on the way society operates—the way men and women, and men and men, have their relationships, which are so crucial to a stable society. I believe that the CPS has been completely wrong and unwise to abandon the procedures put in place in previous years. I regret that it has failed to recognise that in as clear a way as it should.
I hope very much that the Government will look at all these amendments together and accept that improvements can be made to achieve an end that we all share. The way our children and, for some of us, our grandchildren now use their mobile phones is quite different from anything we would have imagined. They share intimacies on their mobile phones that would have been shared only orally one generation ago and not at all two generations ago. This is a change in our society. We have to recognise that we must respect some part of the privacy of such material.
My final point is that there is a great responsibility particularly on the police. I absolutely recognise that there are expert police officers dealing with RASSO cases now, but there is an absolute responsibility on police officers, including in rural areas where there is a significant shortage of training for specialist police officers, to explain to complainants what is going on before they ask for the material and before those individuals have to make a decision as to how much of their intimate material to reveal to the police, and potentially to the court. One of the pieces of advice that should be given to them—I am afraid I have to confess that I have done this—is that some quite extensive cross-examination sometimes takes place in courts that is not expected by victims of rape. My support is, I hope, intensely practical and intended to be constructive.
Baroness Jones of Moulsecoomb (GP)
My Lords, I very much hope the Minister can listen to this, because it is obvious that there is a general concern. I will keep my remarks brief because I agree with everything that has been said so far, particularly on the Hobson’s choice that victims are often given: either they hand their telephone over voluntarily or they have it confiscated. That really is an abuse of procedure.
I would like the Minister to answer a question for me: if there is that threat inherent in what the police tell a victim, would any evidence gathered under Clause 36 be inadmissible in court? I rather think it should be. We should remember that government Ministers have been very reluctant to have their electronic devices pored over by the police, and have dropped them or broken them or things like that. This is an intrusive and invasive procedure. It should be done as best as it can be, and at the moment it really is not.
Baroness Hamwee (LD)
My Lords, regarding the point made by the noble Lord, Lord Carlile, about explanations, I absolutely support him, as do two of the amendments in this group—Amendment 43, in which “explanation” is used, and Amendment 50, concerning giving notice “orally”. I am sure that noble Lords will understand the significance of that. Many people will take in something which is explained to them face to face and orally in a way which they might not if given a rather formal document to read.
I ask the Minister about the extent of what is meant by “confidential information”. There is a reference to what will become Section 42. As I read it, it is not confidential in the normal meaning of the word, but refers only to journalistic material, legally privileged or business material, as referred to when one follows through the cross-references, and not to personal material. Can she confirm that, because it very much affects what these clauses do? Can she also help the House with the relevance in her Amendment 47, in the proposed new subsection (7C), of the amount of confidential information likely to be stored on the device? Amount is not the same as significance.
The Lord Bishop of Leeds
My Lords, especially following the speech by the noble Lord, Lord Carlile, I am conscious that I have no conception of what the world looks like through the eyes of my grandchildren. When I was their age there were three channels on television, which began at 4.40 in the afternoon with “Jackanory”. The world has changed considerably and, although I have tried to keep up with technology, professionally and personally, I am aware that I cannot see the world into which we are moving. We are not ahead of the game.
With the greatest respect, I look around this House and conclude that we are not the generation to be looking ahead and anticipating the world of communication, particularly through phones and so on. I am told by industry experts that what we have now is probably a couple of generations back from what we will have. I have lost track of Elon Musk and all the stuff going on in relation to space travel but, in framing such legislation, are we consulting the younger generations, who are well ahead of the rest of us on technology and communication potential? It is a simple question. I would not want to hand my phone over now, but I am sure that my grandchildren will have stuff on their phones which I would not even begin to understand. We need to be very careful.
Lord Paddick (LD)
My Lords, we support all the amendments in this group in the name of the noble Baroness, Lady Chakrabarti, and if I had been on the ball I would have signed them. I also have Amendment 50 in this group.
The user of the device from which data is being extracted should be able to see what is happening whenever that is practical, and be reassured that only relevant data is being downloaded, as suggested in Amendment 43. As has just been discussed, many people’s lives are on their phone and their lives are run by what is on their phone, so to be separated from it can have major consequences. That is why Amendment 44 suggests that the device should be taken only if absolutely necessary; an explanation given as to why it must be taken, if it is; and that it is returned as soon as practical, and in any event, within 30 days.
Amendment 45, adding “strictly” to “necessary”, narrows the circumstances in which data can be extracted. Digital downloads should not be used if there are other means of obtaining the information—whether “reasonably practicable” or not. Anything that deters survivors from coming forward or progressing their complaint should be avoided at all costs. “Not reasonably practical” sounds as if digital downloading could be used if it were easier than the alternative in Amendment 46. Amendment 48 provides for an independent review of the need for digital downloading, carried out by a senior police officer at the request of the user, who may be concerned that it is not strictly necessary and proportionate. Amendment 51 requires that an explanation is provided as to why it is necessary, how long it will take and the availability of a review.
As I pointed out in Committee, the Bill requires the authorised person to give notice only in writing to the user as to what, why and how the information will be extracted, the user’s right to refuse and the consequences of such a refusal. This is only to the extent that the investigation or inquiry will not end merely because the user refuses. Will the Minister state on the record that this is different from such a refusal having no consequences? For example, the defence in a rape case—where consent is an issue—may claim that withholding such information has implications which the jury might be asked to consider.
Akin to the rights of a detained person at a police station, it is not sufficient simply to wave a piece of paper under the nose of the user, who may be unable to read or be too traumatised to take in what she is reading. As the noble Lord, Lord Carlile of Berriew, and my noble friend Lady Hamwee have said, the authorised person should explain orally to the user and enter into a conversation to test her understanding to ensure that consent is informed and voluntary.
The government amendments attempt to address the concerns of my noble friend Lord Beith about confidential information. My noble friend Lady Hamwee was right: this should include confidential journalistic material and material subject to legal privilege, which was going to be dealt with by regulations. With the government amendments in this group, we appear to be inching forward on this, but concerns remain, as my noble friend explained. We support all the amendments in this group.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I thank all those noble Lords who have taken part on this group. The key issue which we need the Minister to take away is that there is more to be done in this area. We are grateful to her and her Bill team for their engagement with us and for the extra protections which the Government brought forward in Committee. I particularly pay tribute to the Victims’ Commissioner and her office for their leadership on these protections and the changes for victims which we need.
My noble friend Lady Chakrabarti and the noble Lord, Lord Paddick, both raised crucial issues, particularly about the need for strict necessity and the importance of making sure that victims—who may be going through this process at a point of shock or extreme vulnerability—genuinely understand their rights.
Amendment 52A in the name of my noble friend Lord Rosser returns to the issue of material held by third parties. It applies to material such as a victim’s school report or mental health records. I am grateful to the noble Lord, Lord Anderson, and the noble Baroness, Lady Newlove, for their support on this issue in Committee.
The Government have accepted on the face of the Bill that extra protections are needed for victims where data are extracted from their phones. The next step is that the exact same protections must also apply where a victim’s privacy is being raided in any other area of their life.
These changes are being championed by the Victims’ Commissioner, with the support of the National Police Chiefs’ Council. They are vital for victims, for culture change and for the system as a whole. We need to get it right to give victims confidence, to stop unnecessary requests for information and to reduce the huge delays in investigations. I know the Minister recognises this issue. Will she commit to take it away and consult on the issue of third-party material with a view to bringing in protections?
Baroness Williams of Trafford (Con)
My Lords, I agree that this has been a very thoughtful debate. I hope that, at the end of this, the noble Baroness, Lady Chakrabarti, will not find me guilty of “Baroness-splaining”. This is such an important issue. As the right reverend Prelate pointed out, for young people, their mobile phones are their life and contain things that certainly their parents should not see, nor others either.
In Committee, I gave assurance that the Government were considering very carefully the Delegated Powers and Regulatory Reform Committee recommendation to the effect that provisions regarding the extraction of confidential information from electronic devices should be set out in the Bill rather than left to regulations, as Clause 42 currently provides. In our response to the DPRRC, which we sent to the committee last week, we confirmed that we accept the recommendation. Amendments 47, 49 and 52 to 55 make the necessary changes to Chapter 3 of Part 2 of the Bill to include provisions dealing with this issue.
These amendments are designed to ensure that additional safeguards will apply where an electronic device may contain confidential information, because authorised persons will be required to go through a separate assessment of the appropriateness of using the power where there is a risk that confidential information may be held on a device. To answer the question from the noble Baroness, Lady Hamwee, confidential information for these purposes includes legally privileged, journalistic and other types of protected materials, but I think that is what she suspected.
The noble Baroness, Lady Jones of Moulsecoomb, asked whether information extracted from a mobile phone would be disclosed to the defence. These provisions do not alter disclosure rules, which will continue to apply as now.
The amendments place an obligation on authorised persons to make a risk assessment, based on information that they have available, to decide how likely it is that they will come across confidential information on the device that they wish to examine. Having done so, they must turn their mind to the potential volume of confidential information held on the device and its potential relevance to the purposes set out in Clauses 36(2) and 40(2), for which the power can be used, in order to come to a view as to whether it is proportionate to use the power. This is intended to ensure particular consideration is given to the potential handling of inherently sensitive information. This will be reinforced by best practice guidance, to be set out in the code of practice under Clause 41. Authorised persons will be required to have regard to the code in exercising the powers under this chapter. We consider that this approach provides that balance between enabling extraction to go ahead in appropriate cases and safeguarding against improper access to confidential material.
Turning to the amendments in the name of the noble Baroness, Lady Chakrabarti, the House will recall that substantial changes were made to these provisions in Committee to further strengthen the safeguards for device users. These changes have been warmly welcomed by the Victims’ Commissioner. We believe, and I think noble Lords alluded to this, that any further issues can and should be addressed through the code of practice—more on that later—which will provide authorised people with detailed guidance on the lawful use of these powers.
Amendments 43 and 44 would afford a device user the option of observing the extraction taking place, unless that is impracticable or inappropriate. I can see the appeal of that, but different authorised people will have different tools available to them to carry out extraction, and these may be held in parts of a police station or law enforcement premises where only members of staff can be present. It could also be held in third-party laboratories which are not equipped to host members of the public. We think that these restrictions will make this obligation impractical in many cases, and we do not think that an obligation to allow a device user to observe this process is workable.
Amendment 44 would also place a legal limit on the length of time that an authorised person can keep a device in their possession. Authorised persons already keep all devices for the minimum amount of time necessary, but the precise length of time is determined by a number of factors, and the officer to whom the individual gives their device gives an indication of how long this period will be. If for any reason this length of time changes, individuals are kept informed. I have highlighted in my notes that the rape review action plan makes clear our ambition to ensure that no victim is left without a phone for more than 24 hours.
Amendment 45 returns to a debate that we had in Committee about whether the necessity test in subsection (5)(c) of Clause 36 should use the language of “strict necessity”, as in the Data Protection Act, in these clauses. As I have said previously, the powers in Clauses 36 and 40 must be read alongside existing obligations under the Data Protection Act or, indeed, the UK GDPR. Looking at the requirements in more detail, Part 3 of the DPA 2018 contains specific provisions relating to processing personal data for a law enforcement purpose. The “law enforcement purposes” are defined, in Section 31 of that Act, as
“the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, including the safeguarding against and the prevention of threats to public security.”
To process personal data lawfully under Part 3 of the Data Protection Act, it must either be with the consent of the data subject or strictly necessary for a law enforcement purpose. In the case of the latter, one of the conditions in Schedule 8 to the Act must also be met. For example, the processing must be necessary for the protection of someone’s vital interests or necessary for the safeguarding of children or individuals at risk. The draft code of practice makes clear that “strict necessity” is the standard that must be met when exercising these powers for a law enforcement purpose and that “consent” is not an appropriate lawful basis.
The UK GDPR provides the regime that must be complied with for all other data processing; that is to say, processing for a purpose other than a law enforcement purpose. The regime is likely to apply where the powers are being used for the purpose of locating a missing person, protecting a child or an at-risk adult from neglect or physical, mental or emotional harm, or the investigation of death where there is no suspicion of criminal activity. It is not therefore appropriate to set one standard of data processing in these clauses where these different regimes apply. As I have previously indicated, the obligations under the DPA and the UK GDPR continue to apply, and we think that the code of practice is the appropriate tool to communicate these responsibilities to authorised persons.
Amendment 46 would remove the provision that allows for authorised persons to use these powers where other means of obtaining the information exist but it is not reasonably practical to use them. It is necessary that this provision remains, as there may be instances where alternative means are available, but they require excessive resource—for example, either time or costs. The draft code of practice makes clear that the authorised person must assess whether other means available would be unreasonable in the circumstances and that delay alone is not sufficient justification not to pursue an alternative method unless there is a real and immediate risk of harm.
Amendment 48 would create a formal process for an individual to request a review from a senior officer of the necessity and proportionality of using the powers. We agree that all individuals must be given all relevant details about any requests for personal information and have included the obligation to share these details in writing. The data processing notice used by the police includes details of how to challenge a request, but, in all cases, individuals should be asked to volunteer their device and agree to the extraction of information from it only as a last resort, and requests must be necessary and proportionate.
As part of the rape review action plan, Thames Valley Police has begun a pilot to introduce the ability for victims in rape cases to request a review when the police make a request for personal information during the investigation stage. This is not confined to requests for digital evidence. We will continue to engage with interest with colleagues in the NPCC and Ministry of Justice who are working with Thames Valley Police. Following the pilot, if appropriate, we can address this issue further in revisions to the code of practice.
Amendment 50 in the name of the noble Lord, Lord Paddick, would ensure that the matters set out in subsection (3) of Clause 38 are explained to a device user orally as well as in writing. The clause requires notice to be given in writing to ensure that this information is formally recorded and can be referred to at a later stage of an investigation or inquiry if needed. We think that the code of practice is the best place to provide that additional guidance to authorised persons on how best to communicate this information to an individual before they agree to the extraction of information.
Baroness Chakrabarti (Lab)
I am grateful to all noble Lords who spoke in this short debate. What a great team, and a model of brevity, clarity and compassion, if I may say so. I thank the noble Lord, Lord Beith, for his rhetorical prods, which highlighted why “strict necessity” should be the operable test here—and, of course, the noble Lord, Lord Carlile, for reiterating disclosure obligations and the nature of the abuse that has been taking place in this area for too long. He was the first to crystallise the intimate nature of the virtual world, which was echoed by the right reverend Prelate and the noble Baroness, Lady Hamwee, among others—thus making it so important that the police explain not just this material and what is going to happen to it but what the process will be thereafter, including potentially court.
The noble Baroness, Lady Jones, ever succinctly and pithily, pointed to the Hobson’s choice with which too many complainants have been presented up to now, and I know that the Minister understands that. The noble Lord, Lord Paddick, should never suggest that he has not been on the ball in relation to this group or any part of the Bill. He has been the most diligent of all the very senior retired police officers in your Lordships’ House on these matters. I am also grateful to my noble friend Lord Ponsonby for making the case so clearly in relation to third-party material; it will clearly need to be returned to in relation to the victims Bill. I am glad that the Minister does not want the police and CPS just to wait for that. It is about trying to improve things immediately; they have been too dilatory in this area for too long.
I shall not respond to each answer that the Minister so graciously offered, save to say that I am not totally persuaded. If anything, some of her answers actually pointed to the wisdom of these amendments. For example, she mentioned a number of times the principle of last resort before this material should be sought from a complainant. That is strict necessity—not the softer approach of necessity and proportionality, and I do not understand why that higher test should not be replicated. It is great that it is in data protection legislation, but why should it not, as a matter of good law and good governance, be in this legislation?
However, I shall not be churlish, because in both the tone and substance of her remarks, the Minister has been such a contrast on this issue with those who have sat there before her. While warmly accepting her invitation to meet with her later and the various organisations, I beg leave to withdraw the amendment.
“(7A) Subsection (7B) applies if the authorised person thinks that, in exercising the power in subsection (1), there is a risk of obtaining confidential information.(7B) The authorised person must, to be satisfied that the exercise of the power is proportionate— (a) have regard to the matters in subsection (7C), and(b) be satisfied that—(i) there are no other means of obtaining the information sought by the authorised person which avoid that risk, or(ii) there are such other means, but it is not reasonably practicable to use them.(7C) The matters referred to in subsection (7B)(a) are—(a) the amount of confidential information likely to be stored on the device, and(b) the potential relevance of the confidential information to—(i) a purpose within subsection (2) for which the authorised person may exercise the power, or(ii) a purpose within subsection (2) of section 40 for which the authorised person may exercise the power in subsection (1) of that section.”Member’s explanatory statement
This amendment would, in circumstances where an electronic device may contain confidential information, require an authorised person to carry out the additional steps in new subsection (7B) of Clause 36 in order to be satisfied that the exercise of the power in clause 36(1) to extract information from the device is proportionate.
““confidential information” has the meaning given by section 42;”Member’s explanatory statement
This amendment is consequential on the amendment in the name of Baroness Williams of Trafford at page 30, line 13.
“(6A) Subsection (6B) applies if the authorised person thinks that, in exercising the power in subsection (1), there is a risk of obtaining confidential information. (6B) The authorised person must, to be satisfied that the exercise of the power is proportionate—(a) have regard to the matters in subsection (6C), and(b) be satisfied that—(i) there are no other means of obtaining the information sought by the authorised person which avoid that risk, or(ii) there are such other means, but it is not reasonably practicable to use them.(6C) The matters referred to in subsection (6B)(a) are—(a) the amount of confidential information likely to be stored on the device, and (b) the potential relevance of the confidential information to a purpose within subsection (2) or section 36(2).”Member’s explanatory statement
This amendment would, in circumstances where an electronic device may contain confidential information, require an authorised person to carry out the additional steps in new subsection (6B) of Clause 40 in order to be satisfied that the exercise of the power in Clause 40(1) to extract information from the device is proportionate.
Member’s explanatory statement
This amendment is consequential on the amendments in the name of Baroness Williams of Trafford at page 30, line 13 and page 35, line 17. It omits provision requiring the Secretary of State to make regulations about the exercise of the powers under Clauses 36 and 40 (extraction of information) in relation to confidential information.
Member’s explanatory statement
This amendment is consequential on the amendment in the name of Baroness Williams of Trafford at page 30, line 24.
Member’s explanatory statement
This amendment is consequential on the amendment in the name of Baroness Williams of Trafford at page 36, line 16.
Lord Garnier
“(1A) The occupier, a representative of the occupier or a constable may only make a request under subsection (1)(d) if they have ascertained from the local authority within whose area the land is situated—(a) that there is a suitable pitch for P’s caravan or caravans and P’s other vehicles and property on a relevant caravan site, or(b) that, within 48 hours of their receiving notice of P’s presence on the land, a suitable pitch for P’s caravan or caravans and P’s other vehicles and property will become available within a negotiated stopping site in the local authority’s area, andthat in either case P has been informed of the availability of such a site.(1B) If there are no relevant caravan sites, or there will not within 48 hours of their receiving notice of P’s presence on the land be a negotiated stopping site within the local authority’s area, and P remains on the land in question for more than 48 hours, the local authority must compensate the owner or occupier of the land for all loss and damage suffered by them as a consequence of P’s entering upon and remaining on the land. (1C) Where P remains on the land under subsection (1B), P does not acquire any right of possession as against the owner or occupier of the land.(1D) In subsections (1A) and (1B)—“caravan”, “caravan site”, “relevant caravan site”, “relevant site manager” and “registered social landlord” have the same meanings as in section 62A(6);“a negotiated stopping site” is a site in respect of which an agreement has been reached between the local authority within whose area the site is situated and the trespassers which allows them to stay temporarily on a particular piece of land which is not an official site, in return for which the trespassers agree to certain conditions relating to, but not limited to, behaviour, tidiness of the site, the length of stay and payment for water, refuse collection and other utilities.”Member’s explanatory statement
The amendment would provide that a person only commits an offence where they are trespassing on land having been offered a suitable pitch at a caravan site or negotiated stopping site in the local authority’s area; and where they remain on the land because there are no other suitable sites, the landowner or lawful occupier are to be compensated for all loss and damage caused by their entering upon and remaining on the land.
The Deputy Speaker (Baroness McIntosh of Hudnall) (Lab)
My Lords, the noble Baroness, Lady Brinton, will be participating remotely in this debate.
Lord Garnier (Con)
My Lords, I begin by explaining that I will not be pressing my amendment to a Division. I thank the noble Baroness, Lady Whitaker, for prompting me—although she may not have realised this at the time—during the course of Committee, when we were debating other amendments in Part 4 dealing with unauthorised encampments. On that occasion, I explained that I thought there was an unfairness in the Bill in relation to the victims or respondents to criminal trespass—the tenant or landowning victims of trespass on the land; I know there are plenty of arguments about whether there should or should not be criminal trespass. I mentioned a particular example when I was a Member of Parliament some 25 years ago, in 1996 or 1997, when not only did a large group of travellers trespass on a constituent farmer’s land, but their dogs were troubling this farmer’s sheep. Some of them were killed by the dogs in question.
The noble Baroness, Lady Whitaker—perfectly fairly, I think—made the point in that debate, in which I was seeking to place the burden of proof that an activity on a landowner’s or tenant’s land was being conducted unlawfully, on the trespasser who wished to assert that the occupier of the land was conducting an unlawful activity, which could have been any sort of activity. Essentially, I was seeking to persuade noble Lords that it was far more just for the invader of the land to demonstrate that what they were seeking to stop—for example, the growing of genetically modified crops—was unlawful, and that it should not be for the owner or occupier of the land who was carrying out a lawful farming activity to show that he was not conducting an unlawful activity.
That aspect of the debate in Committee is not particularly relevant to what we are doing now, save that it prompted the noble Baroness, Lady Whitaker, to draw my attention to her argument that, because local authorities have historically failed to provide any, or any adequate, official sites for travellers to park their vehicles and reside on, this problem of invading other people’s land will continue.
Lord Garnier (Con)
I am so glad to have the approbation of the noble Lords opposite, for whom I have the greatest respect—on their negotiated stopping site.
That is what I invite the House and the Minister to consider, and perhaps the Minister will respond in due course, saying why my idea is not quite as wonderful as I think it is.
Baroness Brinton (LD) [V]
My Lords, I am a patron of the Traveller Movement. I thank the Minister for reaching out to those of us interested in this issue and I am sorry that the change in date meant that I was unable to attend. I also thank the noble Baroness, Lady Whitaker, for her dedicated work in co-ordinating the efforts of those of us who remain very concerned about these clauses in the Bill.
In Committee, we had a full debate on how the clauses on authorised encampments are a breach of the human rights of the Gypsy, Roma and Traveller communities to live a nomadic life. I thank the noble and learned Lord, Lord Garnier, because he has tried to propose a compromise regarding stopping sites. It certainly merits listening to, and I hope the Minister will take account of it.
In my contribution today, I wish to focus on just one area. Clause 63 also creates the right for the police to confiscate a vehicle that may be an individual and their family’s main residence. That confiscation would have the most extraordinary consequences, giving the police very strong powers that they do not have in respect of other people’s principal residences. If the police were to confiscate a vehicle under this clause, families would not only become homeless, but because they would be deemed to have become intentionally homeless, there is a possibility that their children would be taken into care, especially if there was no appropriate emergency accommodation locally. By doing that, parents may also not be able to move on to their next planned place of work.
I support Amendment 55ZC from the noble Lord, Lord Paddick, which protects individuals by preventing police confiscating their vehicles if it would make the individual owner, and their family, homeless.
The National Police Chiefs’ Council could not be clearer. It said:
“We believe that criminalising unauthorised encampments is not acceptable. Complete criminalisation of trespass would likely lead to legal action in terms of incompatibility with regard to the Human Rights Act 1998 and the Public Sector Equality Duty under the Equality Act 2010, most likely on the grounds of how could such an increase in powers be proportionate and reasonable when there are insufficient pitches and stopping places?”
In Committee, the Minister said that these clauses are not targeted at the Gypsy, Roma and Traveller community, but it certainly looks that way, especially as the Government explicitly referenced Traveller caravans in the background briefing to the Queen’s Speech. The Government have also made it clear that they are not criminalising trespass more generally. Even if the outline of these proposals were in the Government’s manifesto, actions that target one particular community, infringing their human rights and giving the police powers that they have said repeatedly that they do not want, cannot be right. I hope that the Minister will rethink this deplorable legislation.
Baroness Whitaker (Lab)
My Lords, I apologise for not raising my eyes to the noble Baroness, Lady Brinton, initially. Her remarks are well worth paying attention to.
I am flattered by the attribution of influence by the noble and learned Lord, Lord Garnier. I have taken a slightly different route, but his amendment is interesting. All the amendments in this group are aimed at resolving prejudice against and actual homelessness of the Gypsy and Traveller communities. They all deserve serious consideration. Amendment 57 in the name of my noble friend Lady Lister and the cosignatories of my amendment would deal with the underlying social situation of these fellow citizens, in particular the non-arrival of the strategy initiated quite some time ago by the noble Lord, Lord Bourne, when he was the very effective Minister responsible, and I think endorsed by the noble Baroness, Lady Williams.
I will speak to Amendment 55ZB in my name and supported by a distinguished cross-party group to whom I express my gratitude. I will move it to a vote if its thrust is not accepted by the Government. I am also grateful to the Minister for the meeting she gave several of us last week, when she said that the provision of the sites for Gypsies and Travellers was a planning matter and an amendment that dealt with that was not for this Bill. Indeed, it is a planning matter, as the police said in their evidence to the consultation on the Bill, but the trouble is that the lack of sites and consequent vulnerability of Gypsies and Travellers to summary eviction is inexplicably linked. Despite the noble Baroness’s assurance at our meeting that she would consult DLUHC on a way forward, I have heard nothing further.
Baroness Bennett of Manor Castle (GP)
My Lords, I will speak to my Amendments 55A, 55B and 56A. I also express support for amendment from the noble Baroness, Lady Whitaker, and great appreciation for her enormous hard work on this issue over a very long period. I declare my position as a member of the APPG on Gypsies, Travellers and Roma.
Persecution of Gypsy and Roma people in the UK goes back a very long way to soon after they arrived as an established community on these shores. They were banished in 1531 and again in 1544. In 1655, an Edinburgh merchant was allowed by the Privy Council to transport a range of people including Egyptians, as Gypsies were then known, to Barbados and Jamaica. In 1715, nine women and men were, in the same manner, transported to Virginia. There is no evidence that any of these people had committed any crime.
We are quite a few centuries on from the history I am citing, yet somehow we find ourselves in a sadly familiar place, with a part of the law explicitly targeting people who been long subject to the prejudice, discrimination and the bigotry that the noble Baronesses, Lady Whitaker and Lady Brinton, referred to. Part 4 of this Bill has caused great distress, concern and fear among the people who risk being affected by it and a great outcry from our entire human rights community.
That is why I have tabled Amendments 55A, 55B and 56A, which would strike out all of Part 4 of the Bill. I cannot move in any other way at this point, even though I accept and will vote for the amendment from the noble Baroness, Lady Whitaker, should she put it to a vote. It is my intention, however, to test the opinion of the House, because this is a moral point that cannot be allowed to simply drift by.
No one can claim to be unaware of these issues. Should it be new to any noble Lord, I point them to an article on openDemocracy by Luke Smith, an article in the Independent by Lisa Smith, and the submission from the Friends, Families and Travellers group to the government inquiry. I also point to the fact that George Monbiot has described Part 4 of the Bill as “legislative cleansing”.
At Second Reading, the Minister claimed that this was all about protecting communities from the distress and loss of amenity caused by unauthorised encampments. However, the noble Baroness, Lady Brinton, referred to the police reaction to this, and I will expand a little on what she said. In the response to the government consultation in 2018, 75% of police responses said that current police powers were sufficient, and 85% of police responses did not support the criminalisation of unauthorised encampments. I am going to repeat the conclusion of the National Police Chiefs’ Council, because it must not be ignored:
“We believe that criminalising unauthorised encampments is not acceptable. Complete criminalisation of trespass would likely lead to legal action in terms of incompatibility with regards to the Human Rights Act 1998 and the public sector equality duty under the Equality Act 2010, most likely on the grounds of how could such an increase in powers be proportionate and reasonable when there are insufficient pitches and stopping places?”
I must apologise to the House for being unable to attend Committee for this part of the policing Bill because I was at the COP 26 climate talks, and as the very small Green group we have to divide our resources as best we can. However, I thank my noble friend Lady Jones of Moulsecoomb for her explanation and expression of my intent to do this at this stage. As my noble friend said then, these clauses are completely unacceptable, discriminatory and dangerous, and that is why I am making this move today.
Again at Second Reading, the Minister said that this was delivering on a manifesto commitment. I can imagine it being said that under the conventions of the House the Lords are not supposed to thwart things that are in an elected party’s manifesto—even when that manifesto won the backing of only 44% of voters. But what if something is simply morally wrong—is racist, and risks putting us on a potentially slippery slope to horrors that the world has seen before?
It also worth questioning the celebration of British values. If any noble Lords have not seen it already, I point them to the article by the noble Lord, Lord Dubs, in the Independent today, which addresses that very point. I also point them to the conclusions of the Joint Committee on Human Rights:
“Gypsies, Roma and Travellers would … be in the position of potentially committing a criminal offence without having done anything at all, merely having given the impression to another private citizen that they intended to do something. This is very dangerous territory, which risks creating offences whose elements could largely be based on the prejudice of the accuser, and, perhaps, the justice system.”
To really explain why I intend to test the opinion of your Lordships’ House—at least on Amendment 55A; I will see how that goes—I would point out that blowing a dog whistle does not just create a momentary disturbance. Blowing a dog whistle calls the pack together, and we know that in a pack behaviour is different—potentially more violent, dangerous and disastrous than people acting alone. The amendments, commendable as they are, do not silence the dog whistle. Having looked at history, I have to say to your Lordships’ House that I have to do what I can today to try to ensure that that whistle is not blown. It is my intention, therefore, to call a vote on Amendment 55A.
Baroness Lister of Burtersett (Lab)
My Lords, I rise to speak to Amendment 57, which is in my name, those of the noble Lords, Lord Bourne of Aberystwyth and Lord Alton of Liverpool, and that of the right reverend Prelate the Bishop of Manchester, whose support I am very grateful for.
First, however, I express my support for other amendments in this group, in particular the one in the name of my noble friend Lady Whitaker, who, as has already been said, has been such a long-standing and doughty campaigner on these issues. I also wish to make clear my opposition to this part of the Bill, on the grounds of social justice and human rights, which, as we made clear last week, should not be subject to a process of so-called “gold-plating”. I will not, however, repeat the arguments that I made in Committee, and unfortunately I do not think, realistically, that we can excise these clauses, damaging as they are. I say that with apologies to the noble Baroness, Lady Bennett of Manor Castle, who has made a very strong case for doing so.
As I warned the Minister in advance, the purpose of this amendment is not quite what it says on the tin, which reflects what the Public Bill Office considered to be in scope. The phrase “entrenched inequality” is taken from a June 2019 press statement for the launch by the then Communities Minister, Lord Bourne, of a national strategy to tackle the inequality experienced by the Gypsy, Roma and Traveller communities. Thus, what this amendment seeks to do is facilitate a debate about what has happened to this much-needed and overdue strategy, and to push for some action on it. It is framed in the way that it is because Part 4 should not have effect until the strategy, which should address Part 4’s likely impact on entrenched inequality, has been published, with a report laid before Parliament for debate.
The announcement of the proposed strategy in June 2019 followed a blistering report from the Women and Equalities Select Committee. It concluded that Gypsy, Roma and Traveller people have the worst outcomes of any ethnic group across a huge range of areas, including education, health, employment, criminal justice and hate crime—to which I would add housing, which it chose not to look at. The committee observed:
“While many inequalities have existed for a long time, there has been a persistent failure by both national and local policy-makers to tackle them in any sustained way.”
The committee deplored the lack of leadership shown by the relevant ministry and the failure to develop a cross-departmental strategy. It was also critical of the reliance on pilot projects that did not seem to go anywhere. In a letter to the then Minister, the committee welcomed the announcement of the proposed strategy as “a very positive step”, but noted the lack of detail. More than two years later we still await that detail, despite repeated ministerial assurances that they remain committed to a strategy to tackle the inequalities identified by the committee and others.
In Committee, I asked the Minister for an update and an assurance that the long-awaited details would be published before Report. The Minister responded that she understood that the department for levelling up, et cetera, was
“working closely with other government departments to progress the strategy, which will be published in due course.”—[Official Report, 3/11/21; col. 1333.]
She then predicted that I would roll my eyes at the phrase “in due course”—and how right she was. She assured noble Lords, however, that the Government remained firmly committed to the strategy’s delivery.
I am afraid that simply is not good enough, especially in the face of legislation that is widely predicted to entrench further the inequalities suffered by the GRT communities. I gave the Minister notice of the purpose behind this amendment in the hope that she might have been able to extract something more substantial than “We’re working on it” from the department for levelling up et cetera, and answer questions such as: what are the parameters of the proposed strategy? Will there be targets? When will it finally be published? Answers to such questions are the very least we—and, more importantly, members of the GRT communities—can expect at this stage. I hope the Minister will be able to provide some answers.
The Lord Bishop of Manchester
My Lords, I declare my interests, first in my work with the National Police Chiefs’ Council, which has already been referred to today, secondly as chair of the Wythenshawe Community Housing Group, and lastly as deputy chair of the Church Commissioners for England, one of the largest owners of farmland in the country. I think I have almost as wide a range of interests as has this extraordinarily diverse and far-reaching Bill.
I am grateful to those noble Lords from across the House who have proposed and supported the amendments in this group and spoken to them so powerfully in this debate. Like others, I am also grateful to the Minister for generously taking time to engage with us last week.
In my short time so far as a Member of your Lordships’ House, I have become accustomed to Ministers telling us that they have sympathy for our position but that the present Bill is not the way to address the matters that concern us—for example, when we tried to look at safety in high buildings on the then Fire Safety Bill. I do not see why we cannot play the same card. We need a separate Bill, one that deals comprehensively with the needs as well as the obligations of Gypsy, Roma and Traveller people—not simply legislation that offers fresh and very serious penalties for what may be rather minor infractions. The matters addressed in these clauses would surely be better dealt with in that more balanced context. That would allow Her Majesty’s Government to deliver on their manifesto commitment.
If that is asking too much, the penalties exacted for matters treated in this part of the Bill should at least be proportionate to the offences committed and not excessive. I draw your Lordships’ attention to the principle of lex talionis, set out in the Hebrew scriptures and most commonly referred to as “an eye for an eye”. This was intended never as an endorsement of physical mutilation but as a limit to how severe a sanction should be. It sets a maximum, not a minimum. Put bluntly, no penalty should exceed the seriousness of the offence.
I know from my housing association experience that there are many cases in which someone may inhabit their dwelling in ways that cause nuisance to their neighbours —the way they dispose or do not dispose of rubbish; playing loud music late at night; abusive language; sometimes even damage to neighbours’ properties—but I also know that there are many checks and balances before anyone can be removed from their home. Yet these clauses could allow for confiscation of somebody’s primary or only dwelling on the basis of a very low level of nuisance caused. Unless Amendment 55ZB in my name and those of other noble Lords is accepted, there will be no need to ensure that any alternative accommodation or site is, or rapidly can be made, available. There is some irony that we are debating powers to render families with no place to lay their heads, not even a stable, this close to Christmas. Surely we need to balance these provisions by a limitation on using them in such circumstances.
I know it is not the Minister’s intention to enact disproportionate penalties for minor infringements, so finally I ask her, as well as accepting our Amendment 57, to put on record in this debate that, before the Bill becomes law, suitable statutory guidance will be published to limit the exercise of these powers to that small minority of cases in which a very high threshold of wrongful behaviour has been reached; and, further, that reports on the exercise of these powers will be compiled and made available to your Lordships’ House at least annually, so that we can detect any tendency to abuse the powers that the Bill would enact.
Lord Alton of Liverpool (CB)
My Lords, it is a great pleasure to follow the right reverend Prelate the Bishop of Manchester and to support the noble Baronesses, Lady Lister and Lady Whitaker, on Amendments 57 and 55ZB, to which I am happy to be a signatory along with noble Lords drawn from right across the House.
The noble Baroness, Lady Lister, set out the arguments for Amendment 57 with her usual clarity. At the heart of her remarks is the compelling case for social justice and the upholding of human rights. Suffice it to say that when it comes to inequalities, this group of people—Gypsies, Roma and Travellers—are in a league of their own. That was the conclusion of the March 2019 report of the Women and Equalities Select Committee. I know the Minister has given a great deal of personal attention to this issue; like others, I put on record my gratitude to her. When she comes to reply, I wonder whether she can tell us what account was taken of that report in framing this legislation and what action was taken to develop the cross-departmental strategy it called for.
The noble Baroness, Lady Lister, noted the absence of any detail still. I simply reinforce her message that the Government should publish and allow a debate on the strategy before implementing Part 4, or at least give a clear commitment as to when the strategy will be published. No doubt Covid will be prayed in aid to justify the delay but, even allowing for Covid, more than two years is simply too long. After all, those same constraints did not prevent the department coming forward with this change of law—or, for that matter, this entirely new Act of Parliament.
I will say a few words in support of the noble Baroness, Lady Whitaker, who in her admirable way has pursued this issue over so long and has encouraged so many of us to join the all-party parliamentary group in which she plays such a leading role. She has rightly pointed to the absence of sites—a point made by the noble and learned Lord, Lord Garnier. How we respond to that is surely about whether to criminalise or incentivise local authorities to do something about it.
The greatly missed Lord Avebury promoted the Caravan Sites Act 1968. As a young city councillor in Liverpool in 1973, I, along with others—some of whom are in the Chamber this evening—pressed for the city council to do something about that Act. We pushed for the opening of a permanent site for Travellers. It is situated in Oil Street, in Tara Park. The Act led to many new sites, but its repeal in 1994 disincentivised provision, and there are now some 1,696 households on the waiting list for permanent pitches in England, while the last funding round secured resources for just two transit sites.
The civilised answer is to make provision, not to introduce draconian, criminalising legislation based on some very dubious legal principles, which seem to me to run contrary to human rights obligations and our duties to contest bigotry and prejudice with solutions—points made by the noble Baroness, Lady Bennett. According to the Equality and Human Rights Commission’s barometer of prejudice, 44% of those surveyed expressed hostile and openly negative feelings towards Gypsies, Roma and Travellers. We should beware of doing anything to reinforce such prejudice and the old tropes.
The noble Baroness, Lady Bennett, reminded us of where prejudice can lead. On 2 August each year, the day on which we recall the Roma genocide, I am always struck that on that very day in 1944 the Gypsy family camp at Auschwitz-Birkenau, the German Nazi concentration camps in the then occupied Poland, was liquidated. It is sometimes suggested that, during the Holocaust, half a million Roma and Sinti perished. At the time of the liberation of Auschwitz, just four Roma remained alive.
In our generation, it is down to us to guard against prejudice, which—I know the Minister would agree—can so easily morph into something worse. That is why the noble Baroness, Lady Whitaker, is right to draw attention to the obvious and inevitable violation of human rights that will occur if this clause remains unamended. As the Bill stands, it both criminalises people and deprives them of their rights under Article 8 of the European Convention on Human Rights, which requires respect for their homes—a point the noble Baroness, Lady Brinton, made—and their private and family life, which by law includes respect for their traditional ways of life. As long ago as 2001, the ECHR ruled that there was
“a positive obligation on Contracting States by virtue of Article 8 to facilitate the Gypsy way of life.”
I wonder whether the Minister can tell us how this provision achieves that objective.
Since 1995 the UK has been a signatory to the Framework Convention for the Protection of National Minorities, Article 5 of which says:
“The Parties undertake to promote the conditions necessary for persons belonging to national minorities to maintain and develop their culture”.
It is impossible to see how this legislation honours that obligation.
Before Second Reading, the noble Baroness, Lady Whitaker, the noble Lord, Lord Bourne of Aberystwyth, and the right reverend Prelate the Bishop of Manchester, along with myself, published an article in the House magazine pointing out that the way of life lived by the Roma, the Gypsies and the Travellers stretches back half a millennium, long before the enactment of the Enclosure Acts and the agricultural revolution. In this Bill, we intend to overturn the practice of centuries and criminalise trespass and enable the police to seize vehicles, as we have heard, and homes. Imagine the impact on the children of these families as they watch their parents’ possessions sequestrated and their families evicted—and this could be in the very depths of winter.
These amendments point to rank discrimination and are an attack on a way of life. Adequate accommodation for Gypsies and Travellers is a better, more civilised and more humane way to proceed, rather than locking people into endless cycles of criminalisation and evictions. If this amendment is taken to a vote by the noble Baroness, Lady Whitaker, I for one will certainly go into the Division Lobby to support her.
Lord Bourne of Aberystwyth (Con)
My Lords, I first of all apologise that I was unable to be here for the Committee on this Bill because of the difficulties of the rail link from Salisbury, which Members will recall. I thank the Minister for making time available to discuss these amendments and this general area. I wish to speak specifically to Amendment 55ZB, which was so well proposed by the noble Baroness, Lady Whitaker, who has done great work in this area, and Amendment 57, where, similarly, the noble Baroness, Lady Lister, proposed it so effectively.
I oppose the provisions on the criminalisation of trespass and Part 4 in general. I do so for several very practical reasons, which I will deal with. First and foremost, it does not deal with the root of the problem: the massive undersupply of sites for Gypsy, Roma and Travellers. I recall this from when I was a Minister; one has only to see around the country the lack of supply of places to know that this is true. I anticipate that the Minister will probably say—because it will be in the brief—that there is a great supply of private places. That is true, but that is a bit like arguing that families on moderate income should be reassured by hotel places in London because there is always a suite available in the Ritz or the Savoy. It does not answer the basic point about the lack of local authority sites. Were they available, this problem would melt away like snow in springtime. That is my first basic point. I do not understand why an attempt has not been made first—before bringing this legislation forward—to deal with that planning aspect and bring legislation forward on that point, as other noble Lords have said.
The second basic point I want to come to is whether this will make any difference. We have heard from many noble Lords that the police are against this provision—they know very well that it will make no difference. People—victims, I would say—will be moved from site A to site B, then from site B to site C and so on, all the way through to site Z and then back again. It is pointless; it is fruitless; it is costly; it is divisive; it is draconian. We should drop it. It does not help the situation, and it will lead to the police being put in a difficult position in relation to legislation that they do not want. I join other Members in saying that there are many local authorities from across the political spectrum that have come forward with proposals. We have heard about Leeds, but it is true also of Fenland, in Cambridgeshire, which has come up with imaginative proposals for dealing with the shortage of sites. Local authorities should be incentivised across the country to deal with this deep-seated problem.
My third reason for opposing this legislation is perhaps at the root of my real objection, and that is that there is something dreadfully un-British about this. It seems to home in on a community that is, in many ways, the lost minority and lost in plain sight. We have heard reference to the committee on equalities, which presented a report, and what it said was reinforced by the race disparity audit, which was a great initiative undertaken by Theresa May and which led to the talk of this strategy. Indeed, there were meetings: taking it forward for education was Nadhim Zahawi, as a junior Minister, and for health, Jackie Doyle-Price; there were representatives from the Home Office, such as, if I am not mistaken, the then Home Secretary, Sajid Javid, and representatives from justice, pensions and so on. All committees were represented in taking this strategy for legislation forward. I wonder what has happened to that.
Baroness Greengross (CB)
My Lords, I am speaking in favour of Amendment 55ZB from the noble Baroness, Lady Whitaker, which would ensure that Gypsies and Travellers are not evicted from an unauthorised site unless they have refused to go to a suitable alternative site. I note the noble Baroness’s comments that, when she met with the Minister, the noble Baroness, Lady Williams, she was told that the provision of sites for Gypsies and Travellers was a planning matter and that an amendment which dealt with it was not for this Bill.
On 4 November, the Minister, the noble Lord, Lord Greenhalgh, in response to my question highlighting that only eight local authorities out of 68 in the south-east of England have identified a five-year supply of specific, deliverable sites for Gypsies and Travellers, responded that it is the responsibility of local planning authorities to make an assessment of the need for both permanent and transit sites and to identify sites in their local plans. The Government are of course correct that this is a planning matter, yet the evidence is clear that this issue has not been appropriately addressed by many local authorities.
This amendment provides some protection for the Gypsy and Traveller communities, as it stipulates that they cannot be forcibly evicted unless they have refused a suitable alternative site. While this Bill is not about planning, we cannot ignore the impact it is going to have, if passed, on nomadic communities at a time when there are too few suitable sites.
It is encouraging to hear that, in Leeds, there have been systems established and sites made available to address this issue. It is even more encouraging still to hear that the noble Lord, Lord Greenhalgh, is taking steps to encourage these types of systems across the country.
This amendment would provide appropriate protection for Travellers and Gypsies, while also ensuring that, where a suitable alternative site is available, this cannot be refused. Further, it highlights why more must be done to encourage local authorities to provide suitable sites for Gypsies and Travellers.
Lord Pannick (CB)
My Lords, I have a question for the Minister which is relevant to Amendment 55ZB, in the name of the noble Baroness, Lady Whitaker. The noble Baroness will know that the offence which will be created by new Clause 63 contains a defence in subsection (6), at line 40 of page 59 of the Bill. The defence is that it is open to the Traveller to say that he or she had a “reasonable excuse” for not moving on when asked to. Does the noble Baroness accept that it would be open to the Traveller to say, “I have a reasonable excuse for not moving on; my reasonable excuse is that there is no suitable pitch in the local authority area to which I can go, and it is therefore completely unreasonable on the facts of my case to expect me to move on”? Does the noble Baroness accept that it would be open to the Traveller to present that defence? It is certainly the defence I would advise the Traveller to use, were I representing him or her. If the noble Baroness accepts that that defence in principle would be open to the Traveller, I respectfully suggest that much of the force of the amendment in the name of the noble Baroness, Lady Whitaker, is reduced, because there is a balance in this provision.
I make one other point: I do not myself find it particularly helpful when we are debating these difficult issues—and they are difficult issues—relating to a balance between competing interests for noble Lords to refer to Auschwitz. Let us be proportionate and reasonable about these issues. We have here a difficult question of the rights and interests of the Traveller and the rights and interests of the occupier or owner of land. I remind noble Lords that this criminal offence applies only if it can be shown that the occupation of the land by the Traveller is causing “significant damage”, “significant disruption” or “significant distress”. I understand the concerns, but let us keep a sense of balance and recognise, if I am right in my understanding of subsection (6), that there is a defence open to the Traveller who can show that they have a reasonable excuse—which, so far as I can see, would cover the absence of suitable pitches in the area.
Baroness Bakewell of Hardington Mandeville (LD)
My Lords, I support this group of important amendments, which seek to bring some sort of equality into the Bill when dealing with the Gypsy, Roma and Traveller communities, which is significantly absent from the Bill as it stands.
On Friday, the most reverend Primate led a debate on the challenges to freedom of speech and the role of upholding freedom of speech. He said in his remarks that one of the threats to freedom of speech is the “dehumanisation” of those with whom we disagree:
“We must be alert to how our habits of communication can stifle our creative imagination—how they might make us see others as somehow less than fully human.”—[Official Report, 10/12/21; col. 2109.]
While this section of the Bill is not about freedom of speech, it is certainly about the loss of freedom to roam.
In Committee, we heard speeches from some quarters which made assumptions about the character and lawfulness of the Travelling community, without evidence being provided to substantiate the allegations. All the amendments in this group deal with Part 4 of the Bill, which seeks to demonise and terrorise the Travelling community. I support Amendment 55ZB and congratulate the noble Baroness, Lady Whitaker, on her contribution.
The Travelling community is often portrayed as being less than fully human. It is true that their way of life is very different from that of those in this Chamber, but they are human, and they have the right to a roof over their heads, to educate their children and to have access to healthcare. This can be achieved only when they have somewhere to stop with their caravans. The Minister has rightly said that the provision of sites is a local authority matter and dealt with through the planning process, but she is reluctant to ensure that local authorities step up and fulfil this role.
As a vice-president of the LGA, I receive a regular copy of the Local Government First periodical. In the latest edition, there are two articles on Gypsies and Travellers. The first is from Sarah Mann, the director of Friends, Families and Travellers, about countering inequalities. GRT communities are known to face some of the poorest life outcomes across multiple indicators among the UK population. FFT provides local government with training on cultural awareness to provide more inclusive services, and this has resulted in the provision of more transit and permanent sites in certain areas. The second article was from Boris Worrall, chief executive of Rooftop Housing Group, which provides high-quality accommodation solutions to the Travelling community. He writes that the evidence shows that
“where high-quality sites are provided for the … (GRT) communities, and managed effectively, there is a wealth of evidence about better outcomes for residents, positive community relations and the avoidance of taxpayer costs.”
There are solutions out there to what some sections of our community see as the problem of GRT. It is part of the role of government to promote these to the benefit of all. The draconian measures in this Bill are not the answer and are a sledgehammer to crack a nut. My friend Lord Avebury, had he been here, would have had much to say on this matter.
Lord Hope of Craighead (CB)
My Lords, there is a lot of force in what the noble Lord, Lord Pannick, said about reasonable excuse. There is a problem, however, in that one would not know that one had a reasonable excuse until one had been charged with the offence. The advantage of the amendment spoken to by the noble Baroness, Lady Whitaker, and others is that it achieves certainty and intercepts the risk of being brought to court to have one’s reasonable excuse determined. Although I tend to agree with what the noble Lord said, it comes too late in the process, and the safest and most secure way of dealing with it is to intercept the process at the beginning, which is exactly what the amendment in the name of the noble Baroness, Lady Whitaker, seeks to do.
Lord Paddick (LD)
My Lords, there are two problems here. Because of the behaviour of the lawless few, all Gypsy, Roma and Traveller communities are being stereotyped as troublemakers. The new law creates offences when people trespass on land with vehicles where, among other things,
“it is likely that significant damage or significant disruption would be caused”,
and, again, where
“significant distress … is likely to be caused”.
All GRT people are likely to be criminalised by these new offences because people’s prejudices will result in them anticipating damage, disruption or distress, despite no previous experience of the GRT people concerned, or any other evidence—just their own prejudice. The second problem is that there is no option for many GRT people other than to trespass on land because local authorities do not, and do not want to, provide authorised pitches. Imagine the reaction of motorists if there were no local car parks and double-yellow lines on every road? That is the equivalent of what GRT people face.
That is the reason for these amendments. In the absence of removing the whole of Part 4 from the Bill, we will vote with the noble Baroness, Lady Whitaker, should she divide the House. At the very least, the police should not be allowed to seize caravans when they are peoples’ homes and the statutory duty on local authorities to provide authorised sites should be reinstated. That is the purpose of my Amendments 55ZC and 55AA. These may be planning issues, but the clerks have ruled that these amendments are within scope.
Lord Rosser (Lab)
First, I congratulate my noble friend Lady Whitaker on her amendment and on all the work that she and many others have done over a considerable period on the issue we are discussing. I express our support for the amendment, on which her co-signatories have also spoken to great effect. The Caravan Sites Act 1968 laid down a statutory duty to establish authorised sites with funding from central government, but unfortunately the Criminal Justice and Public Order Act 1994 repealed this provision, since when there have been fewer than three authorised sites built in England on average every year. We are now faced with a Bill under which people on unauthorised encampments who do not cause damage, disruption or distress can commit the new offence of
“residing on land without consent”.
I say that because the Bill provides that the offence can be triggered when a person is considered “likely” to cause damage, or that significant distress is “likely” to be caused by their being there.
As has been said, it appears that the police do not support these powers: they say that site provision is the issue. My noble friend’s amendment is, in my view, very moderate. It does not remove the powers but adds the importance of site provision and negotiated stopping places into the Bill. Deputy Chief Constable Janette McCormick from the National Police Chiefs’ Council told the Joint Committee on Human Rights that
“the issue of unauthorised encampments is a planning issue and is an accommodation issue … we as the police are not seeking any additional legislation to deal with that”.
She also said of authorised sites that
“where we have an increasing number of sites, we have a direct correlation with a reducing number of unauthorised encampments.”
In the 2018 consultation on these powers, the National Police Chiefs’ Council said:
“Trespass is a civil offence and our view is that it should remain so ... The NPCC position has been—and remains—that no new criminal trespass offence is required. The co-ordinated use of the powers already available under the Criminal Justice and Public Order Act 1994 allows for a proportionate response to encampments based on the behaviour of the trespassers.”
In evidence to the Commons Public Bill Committee, the National Police Chiefs’ Council said that it
“strongly believes that the fundamental problem is insufficient provision of sites for Gypsy Travellers to occupy, and that that causes the relatively small percentage of unlawful encampments, which obviously create real challenges for the people who are responsible for that land and for those living around.”—[Official Report, Commons, Police, Crime, Sentencing and Courts Bill Committee, 18/5/21; col. 15.]
It also raised concerns about police resources and the police being drawn into this issue. We seem to be in a position with the Bill where the Government are not accepting the advice of the police, but are pulling in extra police resources from overstretched forces and skirting the issue that is really at the heart of this, which is site provision, which our police and local authorities advise is the thing that will actually make the difference.
Let me make it clear, as others have done, that damaging and harmful behaviour is totally unacceptable, and that landlords and local communities need protection and police support where it happens. It is already a criminal offence for a person to fail to leave land where the police direct them to, when their behaviour has caused damage to land or property or been abusive or threatening. Presumably, that is why the police say that they already have the powers that they need, based on behaviour.
As I said at the beginning, my noble friend Lady Whitaker’s amendment is very moderate. It does not oppose the powers and will not remove the powers from the Bill but would simply add a need to look at the issue of site provision and the successful model of negotiated stopping places. Let us be clear that it provides that the powers under this section can be used only where there is a suitable local pitch for people to be moved on to or a negotiated stopping site can be arranged within 48 hours. It defines a negotiated stopping site as a location temporarily agreed on with the local authority where people can stay, subject to conditions including
“behaviour … length of stay and payment for water … and other utilities.”
It thus specifically deals with the issue, raised repeatedly by the Government, where some people may refuse to use sites that are available.
The cross-party Joint Committee on Human Rights said that
“the Government should not use the criminal law to address what is essentially a planning issue”.
I am sure all noble Lords are waiting to hear the answer to the question of the noble Lord, Lord Pannick, as to what is “a reasonable excuse”. If the Government were to accept my noble friend Lady Whitaker’s amendment, far from weakening the Bill, it would give this part of the Bill a significantly greater effect in reducing the number and impact of unauthorised encampments. I hope the Government will be prepared to move on this issue.
Lord Young of Norwood Green (Lab)
My Lords, I waited because I wanted to hear which amendments our Front-Bench speakers were supporting. I made my views clear in our previous debate on this issue. I was a member of the All-Party Parliamentary Group on Gypsies, Travellers and Roma and I no longer am, because in my view the behaviour of some Travellers—I stress “some Travellers”—was not being publicly condemned. I used the phrase “the 2R formula”: I will absolutely continue to defend the rights of Travellers, but along with those rights, in our society, there also comes the responsibility to behave in a reasonable way.
I congratulate my noble friend Lady Whitaker on her amendment, because at least there is an acknowledgement in it that there are problems with behaviour, and we should recognise that. I thank the noble Lord, Lord Pannick, for his contribution about adopting a proportionate response to this. This is not about dehumanising Gypsies, Roma and Travellers; it is not about taking us back to Auschwitz, and I say that as a non-practising Jew, so I hope my contribution will be taken in this light. There are, unfortunately, real examples of some Travellers behaving in ways that are totally unacceptable. Some, unfortunately, have been associated with modern slavery. These are cases that have been proven. Others seem to think that it is perfectly reasonable to go around collecting building waste, or other waste, and saying it will be disposed of properly when it will not—it will be dumped. We had this on our own village green.
When somebody says that people are opposed to Travellers, they mean that they are opposed to the unreasonable behaviour of some Travellers. That is what causes a lot of it. Of course there are examples of people who are prejudiced, but we should not generalise on this issue. I have some sympathy for my noble friend Lady Whitaker’s amendment and that of the noble and learned Lord, Lord Garnier, who has genuinely tried to find a way forward on this.
I thank the Minister; we had a useful meeting, and I suggested to her that one thing that could be done is to set up local liaison committees—they may exist already—which would involve representatives of Travellers, residents and local authorities. I have not tried to define specifically what they would be but there certainly needs to be more contact and communication between the groups. It would be useful if the Minister could give some examples of what she considers best practice around the country; I believe some examples have been usefully quoted.
A minority of Travellers behave in ways that are unacceptable to communities. If that behaviour could be stopped or condemned, I think there would be a totally different attitude within communities. It is about proportion, about getting the balance right. Have the Government got it absolutely right? I am not sure—I am waiting to hear the Minister’s response—but polarising the debate in this House as some have done by saying that it is all based on people’s innate prejudice and discrimination against Travellers does not help.
There is a genuine problem, and it may be that the Government’s solution is not absolutely right. I was interested in the comments of the noble Lord, Lord Pannick; I might have known that he would put his legal finger on it when he asked whether, if someone was behaving reasonably and gave an excuse that there was no other stopping place, that would be considered a reasonable response in the circumstances.
I look forward to the Minister’s reply. I hope my noble friends will recognise that although I have not entered this debate with the most popular view, I have tried to show that I do not discriminate against Gypsies, Roma and Travellers—far from it. I continue to want to support their rights, but on the basis that they recognise that they too have responsibilities.
Baroness Williams of Trafford (Con)
My Lords, I thank all noble Lords who have spoken in what has been quite a wide-ranging debate on Part 4 of the Bill. Part 4 delivers on a clear manifesto commitment to tackle the harms caused by unauthorised encampments. I thank the noble Lord, Lord Pannick, for his comments, and agree that equating the measures in this Bill with the atrocities committed in Nazi Germany is, quite frankly, disgraceful. I will not take an intervention until I have finished my point. Any noble Lord who thinks that I would stand at this Dispatch Box and promote anything that had even a sniff of that is quite wrong. I give way to the noble Lord.
Lord Alton of Liverpool (CB)
I thank the Minister. I hope she will read Hansard carefully in the morning. She will see that I did not equate this Bill with what happened in that period. I said that, when prejudice is inflamed, it can morph into terrible things; historically, we know that to be true. That is all that I said—I did not say that that is what the Government are doing. I do not like what the Government are doing in Part 4. I support the amendment, and I gave very good reasons for that.
Baroness Williams of Trafford (Con)
My Lords, it is interesting that the noble Lord thinks that I was referring to him. I said that the comments of noble Lords who equated this with the atrocities of Nazi Germany were, quite frankly, disgraceful. I did not name him. It is interesting that he thinks it might have been him to whom I was referring.
We have brought forward the measures in Part 4 because we understand the challenges that many locations across the country face when individuals cause significant damage, disruption or distress to communities, businesses and landowners. It is important to remember why we are introducing a new offence: to tackle individuals who cause significant harm. This could include unauthorised encampments within urban areas set up in local parks, car parks or on local sports fields. It could include fly-camping which is a huge problem within national parks and our natural beauty spots, where people park cars, campervans or motorhomes on land without permission and damage the land.
Lord Pannick (CB)
I thank the noble Baroness for answering my earlier question. As I understood her answer, it was that there can be no reasonable excuse for causing significant damage or significant disruption. I point out to her that the defence under new subsection (6) is that the defendant would have a defence if they have
“a reasonable excuse for … failing to comply as soon as reasonably practicable with the request”
to leave. It has nothing to do with whether they have caused disruption, distress or damage; they have an absolute defence if there is a reasonable excuse for not leaving the land when asked to do so. That is why I put to her that, surely, it could be a reasonable excuse that there is nowhere else they can go. Would she like to reflect on that?
Baroness Williams of Trafford (Con)
As the noble Lord probably knows, that will be a determination for the courts to make.
Lord Pannick (CB)
I am simply anxious that the matter is not left on the basis that the Minister put it, because I respectfully suggest that that is not right.
Baroness Williams of Trafford (Con)
Perhaps we could discuss this further if that is amenable to the noble Lord, but I accept his point that it is not right to just leave it like that. In determining what is a reasonable excuse, it would be for the police and the courts to determine whether the excuse was reasonable.
Lord Garnier (Con)
My Lords, 15 noble Lords have spoken in this debate. Most of them have concentrated on amendments other than mine, which is hardly surprising. Three broad points have emerged from this debate which I hope are uncontroversial.
First, there is an undersupply of official local authority Traveller sites. Regardless of quite how far along the pendulum one places this, that must be a reason why there is a high incidence of trespass. The Government say this is a problem and I am sure others do as well, but the more interesting question is, what do we do about it? If I may say so with the greatest of respect to my noble friend, this is not just a planning matter. It is a wider public policy issue, and this Bill turns it into a criminal justice matter. It is not an answer to complain that noble Lords are conflating unlawful occupation and damage. The two may be linked; none the less, they need to be thought about with some degree of care and not by sloganising.
The noble Lord, Lord Pannick, reminded us about Clause 63(6)(a) and (b), which provide for the reasonable excuse defence. I happen to agree with him, and his recent intervention on my noble friend saved me from making a speech of an additional 10 minutes—for which there is much relief. It strikes me that Clause 63(6) provides a second incentive to local authorities to get on and provide more official sites. The first incentive is the compensatory damages which I expect them to pay. Secondly, if they, the police or the CPS seek to rely on the criminal offences described in this part of the Bill, and there are no sites and therefore it is a reasonable excuse, surely, we come back to the fact that there is an undersupply of official sites so please, let us do something about it. I entirely take on board what the noble and learned Lord, Lord Hope, said about the point at which it is realised that this is a good defence. It is not a question of me being righter and you being wronger. It is a question of sorting out the problem sensibly, pragmatically and economically, in a way which does not cause additional, prolonged and unnecessary distress to local residents such as the neighbours of the noble Lord, Lord Young of Norwood Green, or to the families and children within the Travelling community. It is not impossible. It just requires political will.
I beg leave to withdraw my amendment. What others do with theirs is a matter for them.
Baroness Whitaker
“(1A) The occupier, a representative of the occupier or a constable may only make a request under subsection (1)(d) if they have ascertained from the local authority within whose area the land is situated—(a) that there is a suitable pitch for P’s caravan or caravans and P’s other vehicles and property on a relevant caravan site, or(b) that, within 48 hours of their receiving notice of P’s presence on the land, a suitable pitch for P’s caravan or caravans and P’s other vehicles and property will become available within a negotiated stopping site in the local authority’s area.(1B) A “negotiated stopping site” is a site in respect of which an agreement has been reached between the local authority within whose area the site is situated and the trespassers which allows them to stay temporarily on a particular piece of land which is not an official site, in return for which the trespassers agree to certain conditions relating to, but not limited to, behaviour, tidiness of the site, the length of stay and payment for water, refuse collection and other utilities.”
Baroness Whitaker (Lab)
My Lords, I am extremely grateful to all noble Lords who have spoken so eloquently in this debate. It is of great importance to some very beleaguered communities. I too note the widespread and authoritative emphasis on enabling local authorities to provide enough sites. I understand that the Minister is bound to follow the instruction to implement a manifesto commitment and stick to the disproportionality of Clause 63, but I think we need to strike a better balance. I therefore wish to test the opinion of the House.
The Deputy Speaker (Baroness Henig) (Lab)
There being an equality of votes, in accordance with Standing Order 55, which provides that no proposal to amend a Bill in the form in which it is before the House shall be agreed to unless there is a majority in favour of such an amendment, I declare the amendment disagreed to.
Baroness Bennett of Manor Castle (GP)
My Lords, as I indicated in the previous discussion, I feel that this is a moral issue on which a line has to be drawn. I will not rehearse all the debates we had previously, but I want to pick up one point from the Minister, who said that Part 4 does not target the Gypsy, Roma and Traveller community. The Equality and Human Rights Commission said in its response to the government consultation that this is indirect discrimination that cannot be justified. It was of the opinion that this criminalisation of trespass would breach the public sector equality duty. No equality statements have been issued in regard to the proposed new offence in Clause 63, so I would like to test the opinion of the House. It will be up to every individual to judge according to their conscience. I beg to move.
“(6) The Secretary of State must lay before Parliament a copy of any guidance or revised guidance published under subsection (5).”Member’s explanatory statement
This amendment requires the Secretary of State to lay any guidance published under the section before Parliament.
Police, Crime, Sentencing and Courts Bill
Monday 13th December 2021
(2 years, 4 months ago)
Lords ChamberRead Full debate Police, Crime, Sentencing and Courts Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 72-II Manuscript amendment for Report, supplementary to the Second Marshalled List - (13 Dec 2021)
22:54 - Division on Amendment 61 - Ayes: 18 / Noes: 105 - Amendment 61 disagreed.
“(3A) Section 34 of the Road Traffic Offenders Act 1988 (disqualification for certain offences) is amended as follows.(3B) In subsection (3), in the words after paragraph (d)—(a) after “the offence” insert “(“the new offence”)”;(b) for “three years” substitute “the period specified in subsection (3A)”.(3C) After subsection (3) insert—“(3A) The period is—(a) six years, where—(i) an offence of which the person was convicted within the ten years mentioned in subsection (3) falls within paragraph (aa) of that subsection, and(ii) the new offence also falls within that paragraph;(b) in any other case (but subject to subsection (4ZA)), three years.”(3D) In subsection (4)—(a) in the words before paragraph (a), after “(3) above” insert “and subsection (4ZA) below”;(b) in paragraph (a)—(i) omit sub-paragraph (ii) (and the “or” after it);(ii) in sub-paragraph (iia), for “that Act” substitute “the Road Traffic Act 1988”;(iii) omit sub-paragraph (iii) (and the “or” before it, but not the “and” after it).(3E) After subsection (4) insert—“(4ZA) Subsection (1) shall apply as if the reference to twelve months were a reference to five years in relation to a person convicted of—(a) an offence under section 1 of the Road Traffic Act 1988 (causing death by dangerous driving), or(b) an offence under section 3A of that Act (causing death by careless driving when under the influence of drink or drugs),but this is subject to subsection (3) in cases within paragraph (a) of subsection (3A).””Member’s explanatory statement
This amendment increases minimum disqualification periods for offences under sections 1 and 3A of the Road Traffic Act 1988.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, keeping our roads safe is a key priority for the Government. Too many innocent road users are killed or injured by the reckless actions of a minority of selfish and uncaring drivers who simply do not understand or appreciate the responsibility that comes with holding a driving licence. We can and must do more to force home the message that holding a driving licence comes with a serious level of responsibility. If drivers are prepared to ignore their responsibility, we will use the law to ensure that they are removed from the roads.
We listened carefully to the passionate and well-informed opinions voiced by noble Lords during the Committee stage debates on road traffic offences. Against that background, we reflected with great care on what change we might make to the Bill to further the cause of road safety. Our deliberations have resulted in the Government tabling Amendment 58, which I am confident will improve road safety.
The amendment focuses on two of the most serious road traffic offences: causing death by dangerous driving and causing death by careless driving when under the influence of drink or drugs. These cause untold grief to many families every year. Both involve a degree of recklessness that is completely unacceptable. Elsewhere in this Bill we are increasing the maximum sentence from 14 years to life for these offences.
This amendment reinforces the seriousness with which the Government regard these two offences by increasing the minimum period of disqualification from driving for anyone convicted of them. In the case of causing death by dangerous driving, the amendment increases the minimum period of disqualification from two years to five years. In the case of causing death by careless driving when under the influence of drink or drugs, the amendment also increases the minimum period of disqualification from two years to five years. But it also goes a step further in respect of this offence. The amendment maintains the existing principle of having a longer minimum period of disqualification for a repeat offence of causing death by careless driving when under the influence of drink or drugs, raising it from three years to six years.
I recognise that depriving a driver of his or her licence for at least five years is a substantial sanction, but when a driver causes the death of another person by driving dangerously or carelessly because of drink or drugs, I think we are fully justified in saying that those drivers should be taken off the road for a substantial period of time. This amendment should act as a serious deterrent for drivers—a warning that driving so dangerously or carelessly as to cause the death of another person is completely unacceptable and will have serious consequences, not only for personal liberty but for the ability to continue driving.
There will remain within the law an element of discretion for judges. They will be permitted to impose a disqualification that is less than the minimum period of five or six years, or not to impose a disqualification at all where there are special reasons for doing so. This allows judges to deal with the unique circumstances of any case before them, which is an important element of our judicial system.
A number of other road traffic-related amendments in this group put forward by the noble Lord, Lord Berkeley, and the noble Baroness, Lady Randerson, raise important issues, but the nub of it is that the sponsors of these amendments want to see a wider review of road traffic legislation. I can advise noble Lords that the Department for Transport is currently scoping a call for evidence on changes to road traffic offences. I will say more when winding up, but, for now, I beg to move.
Lord Berkeley (Lab)
My Lords, I will speak to the various amendments in this group. I first thank the Minister for arranging two meetings with her colleagues, one in Transport and one in her department, which were very helpful in sharing our concerns—I am speaking from briefings from a large number of groups that are concerned about road safety generally. As a result, we reached some quite good conclusions about where things are going.
Amendment 58 is a good start, so I do not need to spend too long speaking to some of the other amendments. Although it is a welcome start, I also welcome the much wider review that the Minister mentioned. The issue with that review, which comes under my Amendment 65, is that it could cover an enormous scope of issues. We can all think of things about road safety that should be improved—the legislation and the penalties—and it covers some of the issues which will probably come up later today in considering other amendments. I am pleased that the review is starting in January, but I hope that the Minister will be able to say a little more about it. How long it will take? Who will be involved? Will the Government welcome input from people outside—from your Lordships’ House, from the other place and from other groups? Will a report be published with all the evidence? One hopes so.
If that is the case, the next thing, of course, is the legislation needed to implement those. Some of it may require primary legislation; some of it could perhaps be done by secondary legislation. But, again, that needs to be looked at. Perhaps when the Minister responds at the end of this grouping, she could give us a bit more detail about that. This is a good start, but there is still a long way to go.
I will speak very briefly, first on Amendment 63. We discussed “exceptional hardship” at some length in Committee. What worries me—it is worth repeating the statistics—is that 8,632 motorists are still permitted to drive despite having 12 or more points on their licence. I will not go into examples, but that indicates to me that something needs to be done. I do not know whether the Minister has considered it, but in advance of and separately from the review, would it be possible for Ministers to look again and consider revising or amending the sentencing advice to magistrates, so that this was tightened up a bit? I think she will agree that 8,000 such people driving around, having decided that having their car is essential to take their dog for a walk, is probably rather more than one would want to see.
Turning now to Amendment 64, on failure to stop and report, we got into quite a significant debate about that and the relationship between the circumstances and the penalties. What worries me is that, since 2017, the number of people convicted of this offence had gone up by 43% in four years. I do not know why that should be—maybe the Minister has some answers to that—but it indicates that failing to stop and report collisions is quite serious. We discussed in Committee whether that was due to more people having mobile phones or whatever, but this is another of those things I would ask her to look at in advance of the review. If she can, what timescale would that entail?
I think I have probably spoken enough about the review itself. We are grateful for the review. The list of issues I put in the amendment is just a sample, and I am sure many people will have many other things to put in. But if the Minister can give us some information about the scope, as well as the timescale and everything else, that would be extremely good.
I will now speak very briefly to the manuscript amendment I tabled this morning. I apologise for the late delivery of this, but it was due to a changed meeting with Network Rail that many of us thought would be a good idea to have before we tabled the amendment—it turned out that it did not happen. I put it to the Minister that she is aware that this is a serious problem. Network Rail’s figure is that there is an average of seven bridge bashes a day—I repeat, seven a day—across the whole network. Some are not serious, but some could derail a train, and I do not want to go into what might happen there.
I have got as far as coming up with a long list of possible solutions, which I will not spend too much time on, and this is something that needs looking at. One of them is to allow local authorities to prosecute lorries for contravening the height regulations. They can prosecute for contravening weight regulations at the moment, so why could they not do height ones as well? I think it just needs a small change to the regulations. Traffic commissioners could be asked to remove the licences of drivers of vehicles that contravene. Obviously, the drivers and shippers could be prosecuted. The Government could require drivers’ apps—or whatever it is we put on our mobiles—to include the height of bridges; it could even include the height of the lorry, and an alarm could sound if it went wrong. You could erect those barriers we talked about last time, with the little electronic eyes.
Baroness Randerson (LD)
My Lords, I thank the noble Lord, Lord Berkeley, for that vote of confidence. I wish to speak to the amendments in my name and to the group in general.
I start with Amendment 63, on exceptional hardship. If you Google “exceptional hardship”, the first listing is an advert from a firm of solicitors. I will not give their name; they do not need free publicity from me because they also advertise on the television. They describe themselves as “exceptional hardship” and “totting up” solicitors. They define exceptional hardship as “real hardship”. They say they have covered more than 10,000 cases and have a 98% success rate. No wonder, as a recent FoI request revealed, there are 8,632 drivers driving around with more than 12 penalty points. The firm I have described is not alone; there are dozens of other firms of solicitors advertising similarly. This is an industry: this is not an exceptional situation that we are dealing with.
Amendment 63 seeks to define exceptional hardship as something significantly greater than the definition provided by that firm of solicitors and significantly greater than the hardship that would arise for a large majority of other drivers. The definition takes into account the offender’s economic circumstances, location and family circumstances. I bring this to the attention of the Government, and say that there is no point in putting down amendments for more and more stringent penalties if there is a gigantic loophole which is being exploited in front of our eyes.
Amendment 66AA, on bridge strikes, is the manuscript amendment from the noble Lord, Lord Berkeley. I am grateful to him for persisting with this issue because it is a very serious accident waiting to happen. As he has described, lorries hit bridges all the time. This causes a major impact on train services and on our economy, as well as obviously presenting a road safety issue. There are huge costs to the HGV drivers as well. Clearly, drivers do not do this deliberately, so there must be a problem. The problem is almost certainly in the signage; we have the technology nowadays, and improved signage needs to be implemented. There also needs to be a reappraisal of responsibilities between Network Rail and the highways authorities, where there is an interface.
Clearly, both my Amendment 66A and that of the noble Lord, Lord Berkeley, present examples of the type of issues that need to be included in a long overdue review of road traffic offences. My amendment is similar to that from the noble Lord, Lord Berkeley, but I have selected some other features that I think are important. It is unfortunate that all these are lumped together, but it is important that we look at this in a little detail. There is a separate group for pedicabs, which are a very small feature of modern roads and do not exist outside London, but they are one of a large number of new features of our transport system that need to be looked at and reappraised in the context of road traffic overall.
Another example of a new feature is e-scooters. It is reported that at least 11 people have been killed in the last year either on or by e-scooters. The Government’s approach has been to set up lots of pilot projects. Basically, e-scooters have been allowed to spread nationwide as a result of a lack of intervention. In a Written Answer I received from the Minister, the noble Baroness, Lady Vere, when I made inquiries about safety issues associated with e-scooters, she said:
“While trials are running, privately-owned e-scooters will remain illegal to use on the road, cycle lanes or pavements.”
That is fair enough, but no one ever does anything about the fact that thousands of them are being used, and tens of thousands more will be bought this Christmas.
The large number of pilot projects has led people to believe that e-scooters are legal everywhere. The problem is that, because they are illegal, there are so many of them around and the rules not enforced, bad practice is now the norm. Noble Lords have only to walk outside this building to see that bad practice. There are issues such as minimum age—they are often ridden by very young people—maximum speed, wearing helmets, registration, and where you ride: on the pavement or on the road. This week, Transport for London has responded to the latest danger: fires from exploding batteries. There have been several fires on TfL vehicles because people carry those scooters on trains. Transport for London has said that people can no longer do that, but it has had considerable problems and all transport operators will have to consider this issue.
We will come later to the issue of alcohol levels, so I will leave that, but another issue I want to raise is road signage. In 2016, there was a relaxation of the specification and standards for road signs. It appears to be part of a drive to reduce red tape. Last week, the noble Lord, Lord Rosser, and I met the family of a young woman who drowned when she drove at night into a ford in bad weather on a country road. From the coroner’s report, it is obvious that the poor quality of the signage was a key factor because other people had also driven into that ford by mistake—luckily for them, with not such a terrible impact. The depth gauge at that ford was so slim and poorly marked that it was invisible at night. The previous standard for depth gauges, which was abolished in 2016, required a much bigger and clearer structure.
This and others are simply taster issues for the huge range that need to be included in a review. It was promised in 2014, with a public consultation phase. We are still working on the basis of the endlessly amended Road Traffic Act 1988. Our roads have been transformed since then by the number of vehicles, vehicle technology and capability and new sorts of vehicles. The key point I am trying to make with this amendment is that the review must be comprehensive, rather than just addressing a handful of issues that are annoying Ministers at the moment. It needs to be done now, not kicked into the long grass again. It needs specifically to grapple with new technologies and forms of transport such as autonomous vehicles. It must take an overall approach to consistency of sentencing.
The problem with the approach in the Bill is that the Government have plucked out some offences for tighter sentencing, which will inevitably leave them out of kilter with other offences. The Government’s approach is for stiffer sentences with longer jail terms, but many transport campaign groups would prioritise appropriate sentencing, especially disqualification and community sentences. There are many bad drivers out there, but they often lead otherwise law-abiding lives. We have nothing to gain as a society by locking them up, which is costly to the taxpayer in the short term and in the long term, as they become much less employable on release. So, alternatives ought to be considered to simply putting people in prison.
The good thing about disqualification is that it protects the public. The key point of my amendment is that there needs to be full public consultation. In 2016, in a debate in the other place, the Government claimed that there had indeed been a review, as promised in 2014, but there was no public consultation and no published outcome. That makes a mockery of the whole process, so I am very pleased to hear from the Minister that there are plans now for a proper review, and I shall be listening carefully to what she has to tell us. I hope it will be a full and comprehensive review with proper public consultation that will take place in the very near future.
Baroness Jones of Moulsecoomb (GP)
My Lords, it is good that the Government have realised that our road traffic laws are a mess, because the cost—the human cost, the social cost—of the crimes and offences we are talking about is extremely high. When we think of the cost of the deaths and injuries to the NHS, to social services, to the emergency services, we are talking about billions of pounds and we really ought to understand that a lot of the causes are avoidable.
When I first got on to the Met Police authority, I went out a lot with the traffic teams—I have told this story before—and one sergeant said to me, “If I wanted to murder somebody, I would run them over with a car, because nobody could ever prove it was not an accident”. This brings me to the word “accident”, which we really should not use when we are talking about road collisions, road incidents and so on. It offends me and the whole road safety community deeply, because the minute you use the word “accident”, you are judging the cause of whatever happened and that is obviously unfair. You have to look into what really happened.
The most dangerous idea is people who should be disqualified from driving being able to plead exceptional hardship. We have heard a lot about “exceptional hardship”: what a misnomer. People are often allowed to keep on driving and quite honestly, they should feel lucky that they have not gone to prison because a lot of the time, it is complete nonsense. I have read about a lot of cases where the judge or the magistrate allowed someone to get away with—well, not murder, but certainly manslaughter at times. It is obviously a crime against society, not to mention the families themselves.
Baroness Jones of Moulsecoomb (GP)
Was that objection to what I am saying or support? I could not work it out. We should be aiming for zero road deaths. They just should not happen. The roads and pavement should be safe spaces. We achieve that by making sure that drivers—and pedestrians as well, of course—obey the law. Legislation must comprehend just how damaging bad and careless driving are.
Finally, Amendments 65 and 66A would require a total review of road traffic offences and penalties. That really is the only sensible way forward, and the only way for society to properly address the damage caused by car culture and start the journey towards zero road deaths. I look forward very much to hearing the details of the review and hope that it happens soon.
Earl Attlee (Con)
My Lords, I most sincerely apologise to the House for not being present at the start of this debate. I strongly support the thrust of the amendment about bridge-bashing in the name of the noble Lord, Lord Berkeley. One day the holes in the cheese will line up and there will be a very serious accident, and the whole world will ask why we did not use technology to avoid such accidents. I strongly support the amendment from the noble Baroness, Lady Randerson, about “exceptional hardship”; I would not actually vote against the Government on it, but I strongly support it.
Lord Rosser (Lab)
We welcome the fact that the Government are committing to a call for evidence on road safety issues next year. Like other noble Lords, I should be interested to know how long this exercise is expected to take. Also, is it purely a DfT matter, or a cross-departmental matter—and, if so, which departments are involved? On the general issue of road safety, I comment briefly on what the noble Baroness, Lady Jones of Moulsecoomb, just said. You could always reduce the number of road accidents fairly dramatically if you reduced the speed limit everywhere to 10 miles an hour, but, as a Government, you might not survive very long politically if you did that.
On “exceptional hardship”—the subject of one of the other amendments—maybe there are cases where courts are a bit too lenient. You have to draw the distinction between hardship and inconvenience, because the two are not the same. You do, however, get cases where there could be exceptional hardship and you have to think long and hard. An example would be a single parent who loses access to a car. That could have quite a profound impact on the children, particularly if they do not realistically have anyone else to help them out. You could also end up with a situation where the disqualification of a carer might involve significant impact—hardship perhaps not so much for the carer but for the person being cared for. When you are faced with some of these situations, it is not quite as straightforward as saying “You’ve broken the law, you’ve reached 12 points and you’re off the road”: you may need to look at the consequences. I note with interest the amendment on exceptional hardship. It may well be taken into account in the review what exceptional hardship means and whether it is being applied too leniently and too frequently.
We support Amendment 58—the minimum driving disqualification periods—as we have the increases in sentences for those offences, including causing death by dangerous or careless driving. We welcome the change that the Government propose.
I think that Amendment 64, relating to hit-and-run, mentions a maximum sentence of 14 years in custody. That seems quite a dramatic increase from the current limit. I am not sure whether it is envisaged that if an accident has caused a serious or fatal injury the maximum of 14 years for not stopping is in addition to what you would get for causing the fatal injury—in which case you could get quite a high sentence. I am just commenting on the fact that it seems to be raising the maximum sentence for failing to stop quite considerably. I do not know what the Minister will say about this on behalf of the Government but again, presumably, there is no reason why that should not be considered as part of the review.
With regard to the new amendment on the hitting of bridges, which my noble friend Lord Berkeley has proposed, I have some sympathy with the view that has been expressed that surely there must be a way that technology can reduce the frequency of these events. Perhaps one is a bit too prone to make speeches saying that technology must be able to resolve these issues for us, but one would have thought that this is one area where technology should play a role, and I hope that the Minister will take this issue away and that the Government will reflect on it as part of their general look at road safety issues. I will leave it at that, without commenting on the other amendments in this group.
Lord Berkeley of Knighton (CB)
My Lords, with regard to Amendment 58, I welcome the fact that the Government are taking to task the causing of death through careless driving or being under the influence of drugs or drink. For many families that have lost loved ones to then sit in court as the perpetrator gets a ludicrous sentence for the taking of life while not having the personal responsibility to control their behaviour, especially in terms of being under the influence of alcohol or drugs—that can only be described as insult added to injury. I therefore very much welcome that amendment.
On Amendment 63, can the Minister find some common ground between the noble Lord, Lord Rosser, and noble Baroness, Lady Randerson? Both their points seemed to me to carry weight.
Not stopping after a collision can lead to the serious deterioration of an injury where the other party is unable perhaps to summon help. The situation is seriously exacerbated if someone drives away without reporting it.
Finally, I make a small point about e-scooters. This occurred to me only this evening, when driving here, and then listening to the noble Baroness opposite. Somebody pulled out in front of me on an e-scooter, and the real problem was that any light it might have had was below the bonnet or even wheel of the vehicle behind—even if it was there in the first place. There was no lighting or reflective clothing on this person above shoe level, and none on the helmet; it is completely impossible to see somebody like that, and it gave me a terrific start. I could so easily have seriously damaged this person; it would not really have been my fault, but I would have felt profoundly disturbed by it. That is just a small point that the Government might want to look at in due course.
Baroness Jolly (LD)
My Lords, I declare my interest, as I am president of RoSPA. I shall make a few quick points. I took my driving test in 1975, and in 2005 I had a job with a brand new shiny car that went with it, which was lovely. The organisation that I worked for insisted that every member of that organisation who had a car had to spend a whole day a year having a lesson with a driving instructor. It was amazing. I had completely forgotten an awful lot, and I learned even more. It made me very much more aware of all these issues that we are talking about now—and I see several heads nodding, so perhaps there is a certain amount of empathy with that.
On the point of bridges and signage, the other issues that we are not including in this measure is that a majority of cars these days have a GPS system incorporated. Why do they not have the height of bridges programmed into the GPS so that, as they drive towards the bridge, the height comes up, and lorry drivers can see that they are not going to get under it and stop? Those are the small points that occurred to me—although this is completely not my field—as noble Lords were debating these issues.
Baroness Williams of Trafford (Con)
My Lords, I welcome the support for the government amendment. I know that there is a strong appetite to go even further among noble Lords in reforming road traffic offences. Amendments 63, 64, 65 and 66A are directed to this end. I am pleased that many noble Lords who contributed to this debate were able to discuss these issues with my noble friend Lady Vere, as the noble Lord, Lord Berkeley, said.
Amendment 63 seeks to introduce a definition for the term “exceptional hardship”, which applies in the context of a court’s decision on whether to impose a driving ban. I am most grateful to the noble Lord, Lord Rosser, for his good analysis of it, and the implications that it might have. We agree that drivers who display poor driving behaviours and reach 12 points should receive an automatic ban to protect themselves and other road users. However, sentencing decisions are properly a matter for our independent courts, based on the facts of the case before them. They have discretion over the length of a driving disqualification to ensure that it is right for the offence and offender before them and, if they are satisfied, they can accept mitigating circumstances justifying a claim of “exceptional hardship”. The noble Lord, Lord Rosser, gave some very good examples of what that might mean to some people.
We do not consider the introduction of a definition of this term to be necessary. The amendment would introduce a narrow definition that would not be able to account for all circumstances presented to the courts, and would remove their freedom to use their experience to reach decisions accordingly.
Member’s explanatory statement
This amendment would include pedicabs within scope of the offence of causing serious injury by careless, or inconsiderate, driving.
Baroness Stowell of Beeston (Con)
My Lords, in moving Amendment 59 I will also speak to the other amendments in my name as part of this group. I will try to take as little time as possible, because I know that there is still much to get through this evening.
These amendments refer to pedicabs, which are also sometimes known as rickshaws. They are loud and sometimes garish, and they hang out at all the tourist hot spots here in London. I will not repeat all that I said in Committee, but let me remind your Lordships of the problem I am seeking to address.
Pedicabs are the only form of public transport in London that is completely unregulated. The vehicles and their drivers are not subject to any kind of checks, they do not need insurance, they can charge passengers whatever they want, and they are exempt from the vast majority of traffic violations. Pedicabs can ply for hire in direct competition with our heavily regulated black cabs on any street or place in Greater London. Knowing that they can act with impunity, the vast majority of them do.
Noble Lords heard me describe in Committee the evidence of careless driving and antisocial behaviour. One of the most unacceptable aspects of pedicabs is the huge disruption they cause through the extremely loud music that many of them play. This unacceptable situation has gone on for well over 20 years. Westminster City’s residents, business owners and tradespeople who have to navigate our congested streets to do an honest day’s or night’s work have had enough and want something done.
My modest amendments to this Bill do not go anywhere near far enough in addressing the unfairness of this situation, never mind limiting the damage and reputational risk of allowing these vehicles to continue unregulated on our roads. I tabled them in part to raise awareness of the problem. These amendments are the best I can do with the legislation in front of us.
I am very grateful for the positive response I received from noble Lords in Committee. I am especially grateful to the Government for their fulsome support, not for these amendments but for the much better solution, which I referred to in Committee, that is currently in the House of Commons. A Private Member’s Bill has been brought forward by Nickie Aiken, the Member for the Cities of London and Westminster, which would give Transport for London the powers it needs to introduce a licensing and regulatory regime for pedicabs. It would not ban them outright, because there are one or two reputable businesses which provide this service and want to be properly licensed and regulated.
Before I say any more about why I have retabled my amendments and where we are now with the Private Member’s Bill, I should explain why legislation is needed. Although pedicabs can be covered by local authority licensing and regulatory regimes in the rest of England and Wales, case law has determined that, in London, these vehicles are stagecoaches rather than hackney carriages. Therefore, Transport for London needs to be given the necessary powers to introduce a proper licensing and regulatory regime.
I am pleased to say that Nickie Aiken’s Pedicabs (London) Bill started its Second Reading on Friday 19 November, which was after the Committee stage of this Bill. Getting that far is no mean feat, bearing in mind where she was on the Order Paper that day—she was fifth, and she managed to get her debate under way. She set out her case very powerfully, and the Minister responded, declaring the Government’s full backing for the Bill, which is brilliant news and vital if that Bill is to make it on to the statute book. Sadly, time ran out that day before it could complete its Second Reading. Nickie tried again, unsuccessfully, to complete it on 3 December. It is now scheduled again, for Friday 21 January.
Nickie is not giving up, and neither am I. There is still a real chance that she will get over that hurdle next month. If she does, and with the Government’s declared support, there is every reason to be positive that we will get this on to the statute book this Session—but time in this Session is starting to run out.
I am very grateful to my noble friends Lady Vere, Lady Williams and Lord Sharpe, their officials and the Bill team for the time they have given to meeting me to discuss this matter over the last few weeks. Since Committee, I have explored a range of alternative amendments to this Bill, as stopgaps in case that Private Member’s Bill fails, but these are either deemed out of scope or are detrimental in some other way as to render them unacceptable.
I will not divide the House on these amendments tonight, as I know the Government do not support them; no doubt the Minister will explain why. I remind noble Lords that these amendments would bring pedicabs into scope of careless driving offences and prohibit loudspeakers, which they use to amplify music.
Even though Nickie and I have not given up on her Private Member’s Bill succeeding, I am worried not to lose the faith of the people of Westminster, the black cab drivers and businesspeople who pay their taxes, live by the law of the land and work hard to maintain the reputation of our capital city. Countless times over the years they have had their hopes raised and dashed that this will be sorted out. Indeed, this situation must feel like a real injustice when they face so much regulatory burden and so many hurdles, while the pedicab riders who flout the law without a care in the world do not. This sense of unfairness only gets worse, as yet more road restrictions in the capital are implemented, especially for our black cab drivers.
I am immensely grateful for the Government’s ongoing support of the Private Member’s Bill and all the effort everyone is making to get it over the line. We are not giving up on that; there is still everything to play for. Before I withdraw this amendment at the end of the debate, I ask my noble friend the Minister: what assurance can he give me that the Government will not allow this injustice to drift on if the worst happens and Nickie’s Bill does not pass in this Session? I beg to move.
Lord Berkeley (Lab)
My Lords, I am grateful to the noble Baroness for tabling these amendments, which are very interesting. I will speak to the amendments as opposed to the Private Member’s Bill, but I will have quite a few comments on that too.
I have nothing at all against pedicabs, though I do not like the noise and they get in the way sometimes—but then so do bicycles, although they do not make noises. My worry is, first of all, with the definition of a pedicab. As I read it, it would also include a tandem bicycle. Who would know whether my passenger on the back was paying me? I think one has to go into a bit more detail than that.
There are more and more pedicabs going around which are actually pulling freight. I am sure the noble Baroness would not want to stop them being an environmentally friendly form of freight. If the vehicle had two seats, and if the driver had a friend on the back and somebody said, “You’re paying for it”, he would come under this regulation. That is before we get into the question of electric assistance, which I think some pedicabs have. Frankly, some of them go very fast and I do not think it is particularly safe, but we have to make sure that the definition is absolutely right.
Lord Ponsonby of Shulbrede (Lab)
My Lords, the noble Baroness, Lady Stowell of Beeston, moved her amendment extremely clearly and explained the background in a way that I, as a sitting magistrate in the City of Westminster, understand very well. I have indeed dealt with some pedicabs in my time. The noble Baroness said that she will not divide the House, and I understand that.
I will pick up a couple of points made by my noble friend Lord Berkeley. This is a fast-evolving situation with freight pedicabs and electric freight pedicabs. Even in my current sitting pattern over the last few months, I have seen the way the police charge e-scooters changing really quite radically. To give an example, probably less than a year ago, I only ever saw e-scooters charged with traffic offences if there was another offence associated with it, such as robbery or an accident. But now, literally in the last month or so, I see e-scooters charged as a stand-alone traffic incident, if I can put it like that. There is clearly an evolution in the way the police are addressing these issues. Nevertheless, the noble Baroness has tabled an interesting group of amendments, and I look forward to exploring it in more depth if the Private Member’s Bill ever gets here.
Baroness Randerson (LD)
My Lords, I will comment briefly on the points raised by the noble Lord, Lord Ponsonby. This is an evolving situation. The key point is that the noble Baroness has raised the issue of a particular type of pedicab, but there is a crossover with the cargo bikes that are increasingly being used and are increasingly welcome for the delivery of goods, parcels and so on. They are hugely welcome on our streets. It is really important that any legislation deals with those two issues and separates them out, although the vehicles are very similar. To my mind, that underlines the point I was making earlier about my amendment and that of the noble Lord, Lord Berkeley: we need a complete and comprehensive review of the emerging and changing picture of traffic on our streets.
Lord Sharpe of Epsom (Con)
My Lords, I thank again my noble friend Lady Stowell for her work on this issue. I know she feels passionately about the regulation of pedicabs, particularly in the capital. I also thank all noble Lord who took part in this brief debate.
In England outside of London, as my noble friend is aware, pedicabs can be regulated as hackney carriages—that is, as a taxi—so the local licensing authority can require the driver and the vehicle to be licensed. In London, which has separate taxi and private hire vehicle legislation, this is not the case, as my noble friend pointed out. This means that there are not many powers for Transport for London to regulate pedicabs.
The Government agree that there needs to be greater regulation of pedicabs in London. That is why they are fulsomely supporting the Private Member’s Bill being brought forward by Nickie Aiken MP in the other place. I know my noble friend has also been a strong supporter of that Private Member’s Bill. The Government also strongly support that Bill as it would enable Transport for London to put in place a cohesive regulatory framework for the licensing of pedicabs in London. I share my noble friend’s disappointment that it has yet to pass its Second Reading, but, as she noted, that has been rescheduled for 21 January.
Should that Private Member’s Bill be unsuccessful, the Government remain committed to bringing forward the necessary legislation when parliamentary time allows. I assure noble Lords that we will take this commitment seriously. We explored whether the provisions of the Private Member’s Bill could be incorporated into this Bill, but regrettably, as they focus on regulation and licensing, they fall outside its scope.
Once again, I praise my noble friend’s commitment to resolving this issue, but although I note the spirit with which her amendments have been proposed, it is the Government’s view that amendments are not the right method for making these changes. The introduction of a licensing regime for pedicabs, as the Private Member’s Bill would introduce, is the appropriate way forward for this matter. The Government do not believe that a partial way forward would be an appropriate or effective way to deal with this.
On the subjects raised by the noble Lord, Lord Berkeley, and the noble Baroness, Lady Randerson, to go back to the previous group, my noble friend the Minister outlined the call for evidence. I suggest that that would be the appropriate place to raise those points, because they are very good ones. This is probably not the right time to get involved in a debate about what is and is not a tandem, however.
I hope my noble friend is somewhat reassured that the Government share her view and commitment on this. Although I cannot give her the categorical assurance she seeks, I hope she feels able to withdraw her amendment.
Baroness Stowell of Beeston (Con)
My Lords, I am very grateful to my noble friend the Minister for his and the Government’s ongoing support for resolving this matter, and particularly for the Private Member’s Bill, which remains live in the other place.
I note that my noble friend said that amending this legislation is not the right way to address this issue. That point is very much in response to most of the points raised by the noble Lord, Lord Berkeley. What I acknowledged in bringing forward these amendments is that there is a well-established regulatory body here in London standing ready to introduce a licensing and regulatory regime that would properly cover pedicabs in a way that would target them and not catch the other vehicles that would not be intended to be included in any kind of regime. The concerns he has would be addressed by the way we want to make sure this matter is dealt with.
The point is that it is possible in the rest of England and Wales for local authorities to license and regulate pedicabs as and when they arrive in cities or different towns, as my noble friend the Minister has already said. It is only in London where we have this legal gap. There is nothing at the moment—apart from any kind of specific laws that get broken—which would cover any unacceptable activity. But it is so unfair because we currently have operators on the street who can quite legally ply for trade and compete with black cabs on an uneven playing field, and in doing so, they rip off tourists and give our capital city a bad name. None the less, I am sure there are a lot of pedicab operators who would provide a fantastic service that would operate alongside black cabs, Uber and everything else if we were able to bring in a professional regime and, at the same time, prevent them operating in a way which would be unacceptable to residents and businesspeople in our capital city.
This issue needs to be addressed, so let us all keep rooting for this Private Member’s Bill. I would be happy to speak to the noble Lord about any specific points he wants to raise about that Bill, in the hope that it is going to come here.
Finally, if I can use the collective noun of “officialdom”, there comes a point when we have to recognise that it is not good enough if the only thing we ever do is legislate in a way which increases the burdens on people, but we never find the time to introduce laws that tackle those who have no intention of ever operating within the law. That is what we need to do. However, on that note, I beg leave to withdraw my amendment.
Lord Hope of Craighead
Lord Hope of Craighead (CB)
My Lords, I am moving this amendment to enable the House to continue the discussion which took place in Committee with regard to what was then Clause 66: the new offence of causing serious injury by careless or inconsiderate driving. I should stress that we are dealing here with careless driving pure and simple, with no aggravating factors or other offence being committed—an act of carelessness or a moment of inattention which causes a serious injury.
My objection to the clause relates to the fact that among the penalties that a conviction for this offence will attract is a sentence of imprisonment: two years on indictment and one year if prosecuted summarily. There are also provisions for automatic—or, I should say, obligatory—disqualification and endorsement. I make no complaint about that, nor do I complain about the two-year sentence on indictment. However, I am concerned about the sentence of imprisonment in cases which do not deserve to go to jury trial and are taken summarily before magistrates, or before sheriffs in Scotland.
I recognise that as the law stands, causing death by careless or inconsiderate driving does attract a sentence of imprisonment. On the other hand, causing a very serious life-changing injury, where perhaps the injured party has survived only by the skill of the doctors, does not. I can well understand why the Government see this as a gap which needs to be filled. But the situations to which the wording of this clause will apply extend well beyond those where one can reasonably say that there is a gap in the present law that needs to be filled. The words “careless” and “serious injury” can embrace many situations where to send the careless driver to prison would be wholly disproportionate. That is my concern.
Lord Marks of Henley-on-Thames (LD)
My Lords, I support the opposition of the noble and learned Lord, Lord Hope, and my noble friend Lady Randerson to this clause. The clause as it stands is simply wrong in principle and I agree with the noble and learned Lord that this is not a case where you can simply tinker with the language. The problem is that the clause threatens to penalise the outcome of the offence—that is, serious injury—with imprisonment, yet the mental element of the offence of careless driving is no more than negligence. Careless driving involves no more than a driver falling below the standard of care of a prudent driver. All negligence is careless; a simple mistake or inadvertence will suffice. To make such an offence imprisonable because it results in serious injury is not a step that we have taken before. It offends against the principle that the seriousness of the offence should depend not just upon the act done, but on the state of mind of the offender. That is what distinguishes careless driving from dangerous driving, because dangerous driving involves a very serious departure from the normal standard of a careful and sensible driver.
I make one further point. In the absence of mechanical failure or an unexpected event, almost every accident is the result of negligence on the part of at least one of the drivers involved. Sadly, a large number of accidents involve serious injury. A broken limb is a serious injury for this purpose, as the noble and learned Lord, Lord Hope, pointed out.
The vast majority of accidents arising from negligence —whether they cause serious injury or not—do not currently lead to prosecution. I should be grateful to hear whether the Minister regards the establishment of this new offence as likely to lead to more prosecutions. This clause would leave it to the police and prosecuting authorities to pick out the few accidents which they decided should lead to prosecution. This would expose drivers to the risk of imprisonment for a simple mistake. Leaving this decision to the police and prosecuting authorities to implement in a very few selected cases would be arbitrary and unfair. It would introduce an unwelcome element of lottery into our justice system.
It may well be that the noble and learned Lord does not press this to a vote. I hope that, for the reasons I have outlined, we will get a very clear statement from the Minister as to how prosecuting decisions will be taken in these cases and as to what he regards as the likely approach to sentencing. I suggest that imprisonment for inadvertence is a retrograde step.
Baroness Randerson (LD)
My Lords, I was pleased to have the opportunity to join the noble and learned Lord, Lord Hope, on Amendment 60A—whether Clause 67 should stand part of the Bill. I thank the Minister for his time and willingness to try to assist us. I shall listen carefully to what he has to say.
The crux of this is when careless becomes dangerous. My experience in 20 years as a magistrate is that, basically, people are charged with both in the hope that the prosecution manages to make one or the other stick, as they say. I share the concern expressed by my noble friend of exactly what careless means. What should it mean? It should mean exactly what comes into our minds when we use the word. It should not be regarded as just a slightly milder form of dangerous. The thought processes behind it should be significantly different. Careless usually implies without specific intent—often a momentary lack of attention. Most of us sitting here will have suffered from this at some point in our driving careers. Most of us will have been lucky enough not to have caused an accident during that momentary lack of attention. Or, if we did cause an accident, hopefully it did not cause injury. Even the noble and learned Lord, Lord Hope, has struggled with the definition and hence opted to try to remove the clause.
I look forward to hearing the Minister’s response, because he has assured us that he will be able to elucidate sufficiently for us to feel that there will be a clear distinction. We do not want to face a situation in which, for example, a harassed mother with a child or two in the back who backs out of a parking space and inadvertently hits a pedestrian might go to prison, when she was backing out carefully in terms of her own concentration at that moment, was not going fast and was looking in her mirrors, but there were too many things happening at the same time for her to be able to concentrate fully and she made a terrible mistake.
I think we have all been guilty of that sort of momentary inattention or error of judgment and people should not find themselves being sent to prison for something such as that. It is therefore very important that the Minister is able to reassure us that that is not the kind of thing the Government have in mind.
Lord Ponsonby of Shulbrede (Lab)
My Lords, it appears that there has been some constructive discussion behind the scenes in preparation for this debate—I can see the Minister nodding his head.
I thank the noble and learned Lord, Lord Hope of Craighead, for his very clear exposition of the issues he is raising with this. Essentially, his points were that the law should not threaten prison if somebody is careless, when a disqualification is more appropriate, and that adding the word “very” before the words “careless” or “serious injury” is not an appropriate way forward and there should be another approach. I hope we may hear from the Minister on that in due course.
I support the opposition to the clause itself expressed by the noble and learned Lord, Lord Hope, and also listened with great interest to the question from the noble Lord, Lord Marks, on whether the Minister thinks there may be any possible increase in prosecutions under this new definition of carelessness. I hope that is not what the Minister intends.
I also share the point made by the noble Baroness, Lady Randerson, that in magistrates’ courts you often see dangerousness and carelessness charged in the alternate and it is up to the court to decide which is the more appropriate charge. Having said all that, I look forward to the Minister’s response.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
My Lords, the noble Lord, Lord Ponsonby of Shulbrede, referred a moment ago to constructive discussions. There have indeed been discussions between me, the noble Baroness, Lady Randerson, and the noble and learned Lord, Lord Hope of Craighead, and, so far as I was concerned, they were constructive. I am grateful to both of them for the time they gave to those conversations. I will set out the Government’s position, and I hope it will reassure them on the various points they raised.
Clause 67 introduces a new offence of causing serious injury by careless driving. By creating this new offence, the clause fills an admittedly small but, we think, significant gap in the current legislation. We considered the creation of this new offence and the maximum penalty it attracts very carefully during the review of driving offences that cause death or serious injury. We remain of the view that there is a clear gap in the law. That view was supported by the vast majority of people who responded to the consultation and by the other place.
Although I understand why the noble Lord, Lord Marks of Henley-on-Thames, says that this clause is wrong in principle, I respectfully disagree. I will explain why we think there is a gap in the law by looking first at the position with regard to dangerous rather than careless driving.
For dangerous driving, there are three main offences. The most serious—causing death by dangerous driving—has a maximum penalty of 14 years, to be increased to life by Clause 66. Secondly, there is causing serious injury by dangerous driving, which has a maximum penalty of five years. Thirdly and finally, there is the basic offence of dangerous driving—for example, where there is no injury. That has a maximum penalty of two years.
Baroness Randerson (LD)
I thank the Minister for his explanation, which is very interesting and largely reassuring. The one aspect of it that worries me is the comparison with the maximum six-month sentence for driving while disqualified, because that goes back to the points my noble friend Lord Marks was making: if I go out and drive while disqualified, I am doing so with a settled determination to do something I know is wrong. I have already been punished for doing something pretty bad, and I am building on that by ignoring the disqualification. Comparing that with the case of someone who goes out with no intention to be careless—because it is at the heart of carelessness that it comes on you unexpectedly—but does something wrong by mistake and someone is injured as a result, it seems to me that the mental state is far worse in the case of the person who goes out to drive while disqualified, however perfectly they manage to drive.
Lord Wolfson of Tredegar (Con)
My Lords, of course I understand and to a certain extent accept that point; we have previously helpfully discussed it. What we try to do with the two-year maximum is find the appropriate level. One has to fit it between that six-month point and the five-year point for the reasons I have explained. Even if the noble Baroness does not accept the comparison with six years, it still obviously has to be below five years. The question is where we should put it. The central point is that maximum penalties are there for the worst imaginable case. The two years, therefore, is really for the worst imaginable case. I have sought to set out, in not too great length but clearly, why it is two years and, more importantly, what a maximum sentence means in this context and what the very limited circumstances are in which we would expect a maximum sentence to be imposed—not because the Government are telling the courts what to do but because, given the guidelines under which the courts already operate, it would be a very rare case to have a term of imprisonment or, certainly, a maximum term of two years. That is why I set it out earlier in the terms I did.
Lord Hope of Craighead (CB)
My Lords, I am grateful to all noble Lords who have spoken in this short debate, and in particular to the Minister for his careful attention to the points that I have raised and the carefully worded assurances that he has given us in the past few minutes.
The worst imaginable case is the reason why I accept that there is a gap that needs to be looked at and filled, and this offence obviously addresses that gap. But one is faced with the mental element that the noble Baroness, Lady Randerson, and the noble Lord, Lord Marks of Henley-on-Thames, have drawn attention to. It is that which makes it very difficult to accept that, even for the middle layer, there should be a sentence of imprisonment at all, in comparison with the many offences where there is a distinct mental element and a deliberate intention to flout the law—to disregard it, shrug your shoulders and go ahead anyway. It is not that kind of offence, which is why it is so important to signal, as the Minister has done, that it is only for the most extreme cases that a sentence of imprisonment for this kind of offence would really be appropriate.
Obviously, we must listen and wait for the Sentencing Council to set out the scales, and no doubt it will do so with great care. But, for the time being, what the Minister has said offers some reassurance, and I am extremely grateful for that. For those reasons, I beg leave to withdraw the amendment.
“Alcohol limits
(1) In section 11(2) of the Road Traffic Act 1988 (interpretation of sections 4 to 10), the definition of “the prescribed limit” is amended as follows.(2) For paragraph (a) substitute—“(a) 22 microgrammes of alcohol in 100 millilitres of breath,”.(3) For paragraph (b) substitute—“(b) 50 milligrammes of alcohol in 100 millilitres of blood,”.(4) For paragraph (c) substitute—“(c) 67 milligrammes of alcohol in 100 millilitres of urine,”.”
Lord Brooke of Alverthorpe (Lab)
My Lords, in moving Amendment 61, I shall speak also to Amendment 62. It is convenient to take the two together.
Since Committee, the noble Lord, Lord Sharpe, has kindly written, and I am grateful to him for sending a letter in which he set out statistics relating to the deaths and serious injuries arising from drinking and driving and for those drinking excessive alcohol. The numbers that he quoted are broadly similar to those which I ran in Committee. Reference is also made to the later figures which have come out for 2020, on which I shall not comment because they relate, in part, to four months of the year when we were in lockdown, when traffic levels fell and a whole range of other factors were quite different from normal life. I suppose the one saving grace of that period was that pedal cyclist casualty rates fell by 34%; one can only hope that that might continue in future.
What we have had is a decade of broadly the same number of deaths of people who have been killed by drunk drivers and probably a marginally increasing number of people being seriously injured in recent years. Is this to continue? Is the law right? The Government maintain that they want more evidence before they make changes. In his opening remarks in Committee, the Minister said:
“the Government take road safety very seriously and believe that any form of drink-driving is unacceptable and a serious road safety issue”.—[Official Report, 8/11/2021; col. 1535.]
I was surprised, but pleasantly pleased, to hear him say that.
I assume that the provisions are based on science and evidence. If so, could I ask the Government again, as I did way back in 2016, when I moved a Private Member’s Bill, whether they are prepared to present that science and put it in the public domain? As the Government know, clearly, that has relevance to the law of the land.
However, why do the Government continue to permit and give guidance that allows motorists and motorcyclists to drive with quite high levels of alcohol in their blood, especially when other countries now do not? In recent years, many have reduced their levels, but not the UK and Malta. If the Government really believe what I have just quoted from the noble Lord, why do they ignore the science that the more alcohol you drink, the more you risk a collision and possibly maiming or killing people on the scale that continues, as a decade’s data now shows?
Baroness Finlay of Llandaff (CB)
My Lords, I have added my name to Amendment 61. During the previous debate on alcohol limits, it was suggested that the evidence from Scotland did not support lowering the blood alcohol content limit from 80 to 50 mg per 100 mls.
Scotland changed its law in December 2014, as has been said by the noble Lord, Lord Brooke of Alverthorpe. I am most grateful to the Minister, the noble Baroness, Lady Vere, for asking her officials to provide me with the raw data on alcohol levels in fatalities year by year. I am particularly grateful to those officials who patiently went through the number of fatalities with me. I have spent some time today looking at this and doing graphs; I am sure that the House will be glad that I cannot project Powerpoint here. Looking at the data, two years before and about two years after Scotland changed the law, I am not convinced that there is not a change. In other words, I think Scotland stayed pretty well static, but the number of deaths in England and Wales went up.
I have not had a statistician go through the data with me, so I put that caveat around it—and O-level maths was a long time ago. However, we know Scotland has an alcohol problem and a problem with a culture of drinking. When I was a GP in a poor area of Glasgow, I certainly found that I almost had to redefine alcoholism, because alcohol was completely endemic; it really was a problem, and I think it still is. The importance of the data that I have been looking at, and for which I am grateful, is that the law change brought a message of not drinking and driving, and the messaging is important.
Last week, a young woman I knew, a superb musician who taught and encouraged many other young people, was killed by being run over by an intoxicated lorry driver. The tragedy is compounded by the fact that people apparently knew that this driver was repeatedly intoxicated on drugs and alcohol. This has been pretty devastating for me and my family in the week before we came to this amendment, but I want to share it with the House, because I want people to understand that this is real. Young, completely innocent, people are being killed by someone with this powerful weapon in their hand: the keys, the steering wheel, the accelerator, et cetera.
In 2019 alone there were 130 fatalities where alcohol was detected on the driver of the car, motorcycle or other vehicle, some at very high levels. The purpose of a threshold is not to say that it is safe to drive below that threshold, because it is not: the threshold is the threshold for prosecution by the police, because that is the level at which the impaired reaction time and co-ordination become indefensible. That impairment, however, is not all or nothing: there is a gradient of deterioration. In some people, that deterioration happens at very low levels of blood alcohol—lower than the limit set in law. I would like to see the threshold set at 10 milligrams per hundred millilitres, but I know that that would not be acceptable to others.
Laws send powerful messages, so I ask the Government: who benefits from leaving intoxicated drivers to kill people? Who loses out if they cannot drink alcohol and hold the car keys? Are the Government in the grip of the alcohol industry? Is that why we have to accept fatalities and life-changing injuries, at enormous cost to health and social care, to education services, which have to cope with the bereaved children, and to our society overall? The current law is indefensible, and it is about time we changed it.
Baroness Bennett of Manor Castle (GP)
My Lords, it is a great pleasure and a real responsibility to follow the noble Baroness, Lady Finlay of Llandaff, and her hugely powerful speech. I also thank the noble Lord, Lord Brooke of Alverthorpe, for introducing Amendment 61 in particular. I speak on behalf of my noble friend Lady Jones of Moulsecoomb. She is much more of a lark and I more of an owl—so the timing works for this amendment.
I start by picking up on the account that the noble Baroness, Lady Finlay, gave the House of one death, and the fact that the Institute of Alcohol Studies estimated a few years ago that if the level was reduced to 50 micrograms, at least 25 deaths would be saved every year. It sounds like a number, and perhaps not an enormous number compared to the total number of deaths on the road. Think, however, about 25 individuals, like the single victim that the noble Baroness, Lady Finlay, just spoke about—their families, their work colleagues and the people they have helped—and ask yourself why we have the highest level of legal blood alcohol in Europe.
It is also worth picking up a point that the noble Baroness hinted at: the level we have now encourages people to think how much they can drink and still drive. I entered a search, “knowledge drink-drive units UK”, on a popular search engine—one of those that throws up a series of suggested questions based on what lots of other people have asked. The most popular question was “How many drinks can I have and drive in the UK?”, followed by “Can a man drink two pints and drive?”. That is where our current level is set—it invites people to push up to the limit.
Going back to my origins in Australia, in particular my time as a young journalist in rural Australia, I saw a great deal of drink-driving and its effects—the casualties and the families left behind. It is important, however, to stress the point made by the noble Baroness, Lady Finlay, which is that any level of drinking and driving is drink-driving. Figures from the road safety charity Brake show that in the 50 to 80 microgram range, you are six times more likely to be in a fatal crash than at zero micrograms, and between 20 and 50 micrograms you are three times more likely to be in a fatal crash. It is clear that we should be at zero or at such a low level that it is effectively the same as no drinks. Let us at least improve it.
Prior to this amendment, the Government said in 2018 that they were interested in looking at this issue and were thinking very seriously about it. That was three years ago. They might say that we have had a pandemic et cetera since then, but surely this is the time to take action to get us at least to a better place and to save lives like the one the noble Baroness, Lady Finlay, was just speaking about.
Lord Berkeley (Lab)
I will speak briefly to support my noble friend’s amendments and welcome the support that other noble Lords have given to him. I watched from the sidelines an issue that reminded me that the drink-drive legislation comes from the Health and Safety at Work etc. Act. It does not just apply if you are driving on a public road; it applies if you are on a private road, driving along a beach in a 4x4 or driving round a large field or estate that you own. The fact remains that if you are under the influence there and you injure somebody, the penalties are no different from those you would incur if you were on the road.
I reflect that it is a responsibility to drive a vehicle. It is no different to driving a train, piloting an aircraft or operating machinery in a port or a factory. Most companies nowadays are adamant that employees should not have alcohol in their bloodstream. We all accept that and think it is a very good idea—we do not want to be on a plane if the pilot is half drunk. Why, then, do we accept that people can go around with too high a blood-alcohol level when driving a car, which is just as lethal as a plane, a train or a piece of machinery?
I support these amendments. I would go further, as I think the noble Baroness would. This is not about fun. It is about driving safely what can be lethal machinery.
Baroness Randerson (LD)
I was very pleased to add my name to Amendment 61. Alcohol has been a factor in road safety for as long as there have been roads, but we know a lot more about it now and there is worldwide evidence of what works. That evidence has been taken up across Europe and, indeed, across the world, by a large number of countries.
In Committee, I was surprised to hear doubt being cast on this issue on the basis of an apparently disappointing impact in Scotland of lowering the limit. However, this is a very misguided approach, casting doubt on the scientific evidence rather than looking to see, if it has not worked in Scotland in the way that was hoped, why. Indeed, I agree with the noble Baroness, Lady Finlay, that there are sound grounds for saying that it has had an impact in Scotland.
There are two factors involved in all this: the level at which it is illegal to drive and the enforcement of that level. There is scientific evidence for the former and a debate to be had on the best ways of enforcement, which is why I did not sign the other amendment, tabled by the noble Lord, Lord Brooke. That does not mean that I do not agree with it, but I think that there is a serious debate to be had about how you enforce it most fairly. The story in Scotland is that enforcement has been weak. All social change requires a combination of legislation, enforcement and social debate. There has been proper legislation in Scotland and some social debate, but also a lack of enforcement.
I want to concentrate on the statistics. In Committee, I made the point that with Scotland remaining at a stable level and things getting worse in England and Wales, you could say that Scotland was a success story. I am very pleased that the noble Baroness, Lady Finlay, has done her maths and confirmed that this speculation is possibly accurate. However, I want to turn to government analysis, because government statistics say that overall, 5% of casualties in reported road accidents in 2019 occurred when at least one driver or rider was over the limit. In Wales, the figure was 6.9%, which is very disturbingly high. In England, the figure was 5.1% and in Scotland it was 4.6%, despite the fact that Scotland has a lower limit, which you would expect to lead to a higher percentage of those involved in accidents being over the limit.
So the difference might be marginal, but at least these statistics show a positive impact in Scotland—and, remember, each percentage point represents lives saved. I can think of no reason why British drivers and riders should be different from those across the world. We need to modernise, and this should be a top priority for the review of road traffic legislation—but I will be supporting the noble Lord if he presses this to a vote.
Lord Rosser (Lab)
I well remember the debates that we had on this issue shortly after Scotland decided to reduce the drink-driving limit in 2014. My recollection was that the Government were in effect saying, “We want to wait and see what the outcome is in Scotland”, while others were saying, “Why wait to see what has happened? Why not just proceed and lower the limit to the same level as Scotland has done?”—which, as has already been said, would be in line with most other countries. The Government held their line that they wanted to wait for evidence from Scotland and would then look at the matter. I may be wrong, but I think that there was a general feeling that if it had had an impact on reducing drink driving in Scotland, the pressure would have been quite considerable on the Government to move, as far as this country was concerned.
Not all the suggested difficulties that might have arisen from reducing the limit in Scotland actually materialised. My understanding is that there was not a significant impact on pubs and restaurants, which is one thing that was said. We did not end up, as I understand it, with the police and the courts in Scotland being overloaded. My understanding—although obviously I will stand corrected if I am wrong—is that the lower limit was generally accepted by the public in Scotland. But it did not have the impact that many of us hoped it would have as far as drink-driving in Scotland was concerned. As I understand it—once again I will stand corrected if I am wrong—there have been academic studies by Bath University and Glasgow University that rather confirm that situation.
This is clearly an important issue and it needs looking at. There must be some logic in saying that one would have expected that reducing the drink-drive limit would have an impact on the level of such driving, to the benefit of us all—but it does not seem so far that it has had a great effect on the number or severity of accidents in Scotland. Views have been expressed this evening about lack of enforcement and lack of publicity for the change as far as Scotland was concerned, but certainly Scotland is not providing a particularly robust evidence base at present, subject to further studies and a more robust evidence base—the noble Baroness, Lady Finlay, referred to issues concerning the figures. We need to look at all the factors that might contribute to making people safer, including, although it is only one, the level of enforcement, and the culture.
The Government have said that they are putting out what they describe as a wide call for evidence on a number of road safety issues. It is supposed to be starting in a month’s time. I hope we will be told that this will be a major one, because the question is repeatedly asked why we have a much higher limit than virtually everywhere else, and that surely the logic would show that if you reduce the limit you ought to get a benefit from that in a reduction in drink-driving.
So we welcome the call for evidence that the Government are making. I know that I cannot speak for all my colleagues in saying this, but we accept that the evidence from Scotland is not showing that the change has had the effect many of us thought it would have. There may well be reasons for that and perhaps that needs further investigation and study, but our view is that, as long as the Government commit to look at this seriously in the review that is being undertaken and the call for evidence on a number of road safety issues, we should not vote on this issue immediately but wait for that further review. However, we have heard points raised quite validly about whether this review will go on and on, or whether it will be conducted within a reasonable timescale to enable decisions to be made that could involve further legislation.
The Government need to say what plans they have to bring down the level of drink-driving. One hopes that that will emerge from the review that is being undertaken and that the course of reducing the limit might well be part of it. In the meantime, we will wait for this call for evidence and the outcome of the review. We want some understanding that it will be conducted within a reasonably speedy timescale. In the meantime, we could not support the amendment that my noble friend Lord Brooke of Alverthorpe has moved if he decided to push it to a vote.
Lord Berkeley of Knighton (CB)
My Lords, like the noble Baroness, Lady Randerson, I would have some concerns about Amendment 62 and what that might lead to in terms of random breath testing. I am sure that the noble Lord, Lord Paddick, would have some thoughts about that.
I will say just one thing on the principal amendment. I thought what the noble Baroness, Lady Finlay, said was very enlightening and I do not think we can totally ignore it. The Government’s slogan, on which they have spent a great deal of money, is “Don’t drink and drive”. It is not “Drink less and drive”. So I would have thought that anything that hammers that home could be only a good thing.
Lord Sharpe of Epsom (Con)
My Lords, I am grateful to the noble Lord, Lord Brooke, for again affording us the opportunity to debate the issue of drink-driving. I commend him for his long association with this particular subject; it well predates my time in this House. I know that, since the debate in Committee, he and other noble Lords have discussed this issue and other matters with the road safety Minister.
Let me again reassure the noble Lord—I fear I am at risk of repeating what I said in Committee—that the Government take road safety very seriously and believe that any form of drink-driving is unacceptable and a serious road safety issue. We are committed to tackling drink-driving and ensuring that those guilty of this offence are detected and appropriately punished. As I explained in Committee, our approach combines tough penalties and rigorous enforcement with our highly respected and effective THINK! campaigns. This approach reinforces the social unacceptability of drink-driving and reminds people of the serious consequences that drinking and driving can have on themselves and others.
Turning to Amendment 61, which seeks to change the prescribed limits, we remain to be persuaded that the proposed lowering of the limits would deliver the desired result. We believe that more work needs to be done to assess whether a reduction in the drink-drive limit would deliver the hoped-for benefits in improved road safety and a reduction in deaths and injuries on our roads. I think every noble Lord involved in this short debate has referenced Scotland. The evidence we have, following the change in the law in Scotland in 2014, does not suggest a material improvement in road safety in that jurisdiction, as the noble Lord, Lord Rosser, just noted.
Noble Lords will be aware of the findings from the studies by the University of Bath and the University of Glasgow that have also been referenced. The research by the University of Bath established that there has been no change across all types of accidents involving alcohol as a result of the introduction of a stricter drink-drive limit in Scotland. The independent evaluation by the University of Glasgow, published by the Lancet in December 2018, found that lowering the drink-drive limit was not associated with any reduction in total road traffic collision rates or serious and fatal road traffic collision rates, but that the change was associated with a small reduction in per capita alcohol consumption from on-trade alcohol sales.
I obviously cannot comment on enforcement. I have seen the statistics too, but I think the noble Baroness, Lady Randerson, is right: each percent represents lives saved, and we should be aware of that. Of course, the personal tragedies movingly mentioned by the noble Baroness, Lady Finlay, also bring this debate into sharp relief.
The Government believe that our approach to any proposals for changing the law in this or indeed any other area must be evidence based. As things stand, the evidence does not support the case for lowering the drink-drive limit, although we of course keep this matter under review. But until there is a weight of evidence demonstrating that material enhancements to road safety would result from a lowering of the limit, the Government do not believe that the case for Amendment 61 has been made.
Turning to Amendment 62, which seeks to introduce random breath testing, it is again unclear to the Government if this would deliver the desired result of making the roads safer. As I indicated in response to a similar amendment in Committee, more work needs to be done to see whether there is any benefit resulting from introducing random breath testing. We would also need to examine carefully the equalities and human rights implications of doing so—an issue which I know is of concern to a number of noble Lords. I also take the point that the noble Lord, Lord Brooke, made on deterrents, particularly with regard to recent announcements in other topical areas on this subject, and I will take those back.
Having said all of that, I am going to repeat what my noble friend Lady Williams said earlier. My ministerial colleagues in the Department for Transport are currently working on a call for evidence on parts of the Road Traffic Act. While details are still being worked up as to its scope, I am sure they are paying close attention to the points raised in this debate and others and will welcome suggestions on what issues could be tackled. Once the call for evidence is concluded, we would welcome submissions from all interested parties, including noble Lords and Members of the other place. I obviously cannot give commitments on how long this will take, but I hope, having heard the debate in this House, that it will be speedy.
In conclusion, we need more evidence to justify the changes to road traffic legislation proposed in these two amendments. To this end, as I mentioned, the department is considering that call for evidence. I would therefore like to ask the noble Lord, Lord Brooke, to be patient for a little while longer. In the meantime, I hope he will be content to withdraw his amendment.
Baroness Finlay of Llandaff (CB)
Before the Minister sits down, can he just confirm, in the light of the comments he has made, that the consultation will consider lowering the limit below 50 down to 10 or 20, which would allow for what is termed “Grandma’s sherry trifle”, served up at a weekend, but would not —I repeat not—allow for a glass of an alcoholic beverage if you are holding the car keys? It may well be that 50 is completely the wrong level because it gives mixed messages.
Lord Sharpe of Epsom (Con)
I cannot give that assurance but, as I say, the scope of the consultation is still being worked up. As I have also said, once the call for evidence is concluded we would welcome submissions from all interested parties, so I am sure that that can be part of the scope.
Lord Brooke of Alverthorpe (Lab)
My Lords, I am grateful to all who have participated in the debate and particularly to the noble Baroness, Lady Finlay, for the work that she has done. I first express my sympathy about the experience that she has had. I am grateful to others who have spoken in support. I will not go on at length at this time of night, but I have two Front Benchers who are not happy about what I am seeking—or are certainly not supporting it.
My real concern is that we have been at this for years. I am offered, along with others, a review. But if the Scottish evidence is no different, we are in a Catch-22 situation where the Government will say, “The evidence from Scotland is not satisfactory from our point of view, and therefore we will make no change”. Personally, I am very much in the camp with the noble Baroness, Lady Bennett, and others who would like to see an even lower limit such as the Swedish one of 20. It cannot be nil, because the body itself generates a degree of alcohol that would always register, so for me personally it would be 20, but I have no evidence—other than going to Sweden and bringing it back—that will persuade the Minister. He is hooked on Scotland and what has happened. Changes need to be made in Scotland to enforce the limit more, given the problems encountered there.
So, I do not see a great deal of hope in withdrawing and waiting for this review, when there is no guarantee that the Government will take a different position—namely, that which I started on: the science is that if you drink, your risk of a collision goes up the more you drink. That is a fact of life and the scientists prove it, yet we go in a different direction and have a lead and guidance from the Government which allows people to drink and drive more than in any country in Europe, bar Malta. I believe it is wrong. I think that many Ministers believe it is wrong, and maybe even our Front Bench think it is wrong. So tonight, although I regret that it is late and I will keep noble Lords longer, I will not withdraw my amendment; I wish to test the mood of the House.
Police, Crime, Sentencing and Courts Bill
Wednesday 15th December 2021
(2 years, 4 months ago)
Lords ChamberRead Full debate Police, Crime, Sentencing and Courts Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 72-III(a) Amendments for Report (Supplementary to the Third Marshalled List) - (14 Dec 2021)
16:00 - Division on Amendment 66C - Ayes: 154 / Noes: 165 - Amendment 66C disagreed.
17:12 - Division on Amendment 71 - Ayes: 90 / Noes: 159 - Amendment 71 disagreed.
18:13 - Division on Amendment 78B - Ayes: 149 / Noes: 149 - Amendment 78B disagreed.
Lord Thomas of Cwmgiedd
“(2A) The code must provide for reviews to be made or other measures taken by the Secretary of State on a regular basis to ensure—(a) compliance with the provisions in the code of practice as to the giving of discretionary and community cautions, and(b) the consistency of application of the code of practice as between different police forces or Crown Prosecution Areas.”Member’s explanatory statement
The purpose of the amendment is to make provision for regular reviews or other measures to ensure compliance with the Code and consistency of practice across England and Wales.
Lord Thomas of Cwmgiedd (CB)
My Lords, when the Bill seeks to put the cautions regime on to a statutory basis, it is plainly a very important step forward. Although I welcome it, it is unfortunate that this is being done largely by secondary legislation—an issue obviously addressed in many other contexts, about which I do not wish to speak today.
However, it is clear that even in this skeletal Bill, one critical issue is omitted—addressing the issue of lack of adherence to practice and lack of consistency. I outlined the powerful evidence of this in earlier debates and suggested a solution. That is needed because of the significant evidence that cautions can blight the lives of others and, as cautions are in effect part of the sentencing system, they must reflect transparency and command public confidence.
It was, however, evident from the speech of the Minister in Committee that the need to deal with this is recognised as an issue. He said that
“scrutiny and monitoring of out-of-court disposals is vital to successful implementation, accountability and public perception.—[Official Report, 8/11/21; col.1576.]
The Government did not like the way in which I suggested that this be done in the amendment that was before the Committee, but the Minister has very helpfully discussed the issue. The amendment now before the House very much leaves the means to ensure consistency and adherence to the code to the Secretary of State but reflects the principle of the necessity of scrutiny for consistency and adherence to principle. I look forward to the Minister explaining what Her Majesty’s Government intend to do in relation to consistency and how, in due course, the House can review the details of that.
Lord Paddick (LD)
My Lords, I have Amendments 66C and 66D in this group and will speak to Amendment 66B, but I will take them in reverse order if noble Lords will bear with me.
Currently, first-time offenders can be given a fixed penalty notice—an on-the-spot fine—by the police for a range of offences of disorder including dropping litter, being drunk and disorderly, and the possession of cannabis or khat. This Bill removes fixed penalties for disorder, so if the police want to enforce the law they will have either to arrest those responsible, taking up valuable police resources that should be spent on more serious crimes, or to take no action, leading to an increase in anti-social behaviour. Amendment 66D would retain fixed penalties for disorder.
Currently, first-time offenders can be given a simple caution, where the salutary effect of being found out, arrested and taken to a police station is, in most cases, enough to ensure that they behave themselves in future. It is quick, simple and effective. This Bill removes simple cautions, so if the police want to enforce the law they will have to impose conditions on everyone they caution, including considering whether to impose restrictive conditions, unpaid work conditions, attendance conditions and/or a fine. The police must also consider the views of any victim, including imposing any conditions that the victim or victims suggest. Compliance with conditions must then be monitored and action taken for any breach.
There is no evidence that the existing system of conditional cautions is any more effective than simple cautions, and conditional cautions, of which diversionary and community cautions are a more complex and complicated version, take far more police and other agencies’ time. Can the Minister explain why the Government are getting rid of simple cautions? If the answer is that, given the choice between the bureaucratic nightmare of imposing conditions and a simple caution, the police choose the latter, I have to tell the Minister that, faced with the bureaucratic nightmare of imposing conditions, the police will either release the accused with no further action being taken, allowing the accused to get away with it, or argue that the accused should be charged and sent to court. In fact, I wholeheartedly recommend to the police that, in every case where a diversionary or community caution is being considered, they refer the case to the CPS so that independent prosecutors can advise, not least on the sentence—or, as the Bill calls them, the conditions—the police intend to impose on the accused.
The police want to retain simple cautions. We want to retain simple cautions. Amendment 66C would retain simple cautions. I must say, the Minster has his work cut out to convince me not to divide the House on this issue.
As the noble and learned Lord, Lord Thomas of Cwmgiedd, ably explained, the amendment in his name aims to try to ensure compliance with the code of practice and consistency of application of the code. Academic research into the existing system of conditional cautions is of mainly inappropriate and inconsistent conditions being imposed. I referred to this in detail in Committee. It was not challenged; the House can therefore take it as fact.
Lord Ponsonby of Shulbrede (Lab)
My Lords, speaking first to the amendment tabled by the noble and learned Lord, Lord Thomas, which would make provision for regular reviews of out-of-court disposals, there is a method for this. It is scrutiny panels, which were introduced in previous legislation. They work very unevenly across the country. As a magistrate, I have served on a number of scrutiny panels for the British Transport Police and for a certain area of London, for both adult and youth offences. It is a very interesting exercise because you work with the police, the CPS, probation and some representatives of civil society. We had a rabbi on the scrutiny panel I was on for the British Transport Police, and we reviewed the out-of-court disposals.
The big problem with this approach was that there was no central record of what we were doing with our assessment of the out-of-court disposals. As far as I could find out, neither the Home Office nor the Ministry of Justice collected any of the results of these scrutiny panels. In fact, scrutiny panels do not sit in some areas of the country. Nevertheless, the approach advocated by the noble and learned Lord, Lord Thomas, is a good one. He said that he had held sympathetic discussions with the Ministry of Justice on this matter, so I wish him well with that endeavour.
I too am very sympathetic to Amendments 66C and 66D. As the noble Lord, Lord Paddick, said, simple cautions are quick, simple and, when they work, effective. One of the downsides of being a magistrate is that you see things only when they are ineffective—that is why they have come to court in the first place. Of course, if a simple caution is effective they would not come to court, but the noble Lord makes a very strong point about having something that is quick and simple for the police to administer and which is, for a first-time offender, a salutary experience: they have admitted their guilt, they have got the caution and they are on their way relatively quickly.
It is a similar point for the on-the-spot penalties for littering and other minor offences. A quick on-the-spot penalty will have a salutary effect for someone who is largely law abiding. It seems a pity to lose that from the armoury of the police. If the noble Lord moves his amendment, we will support it.
Earl Attlee (Con)
My Lords, the noble Lord, Lord Paddick, makes a very good case for his amendments. I hope that my noble friend the Minister can satisfy the House, but I think that he will struggle a bit.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
My Lords, that is a very encouraging note on which to rise. I thank the noble and learned Lord, Lord Thomas of Cwmgiedd, and the noble Lord, Lord Paddick, for bringing back matters that we discussed in Committee.
I say respectfully that Amendment 66B, tabled by the noble and learned Lord, Lord Thomas, commendably deals with the need for consistency in both the use of, and compliance with, the code of practice that will guide the use of diversionary and community cautions under Part 6 of the Bill. I am grateful to the noble and learned Lord for making time to discuss this matter with me.
For the record—it may have been in the mêlée that occurred when people were leaving—I thought I heard the noble and learned Lord refer to cautions as part of the sentencing framework. Without wishing to split hairs, we see this as separate from the sentencing framework and as an out-of-court disposal, but if the noble and learned Lord did say that, I understood that he was talking in broad terms. I am keen to reassure him and, indeed, the House that a fundamental aim of reforming the out-of-court disposal options currently in use was to improve consistency by reducing the number of disposals and creating two clear and statutory options.
Some attention was paid in Committee to the lack of data currently recorded and available on the use of cautions, whether conditional or simple, and the types of conditions attached to the former. We are keen to address that and believe that the proposals in Part 6 of the Bill, along with the code of practice that will accompany it, will do so. We are currently engaging with the Home Office regarding the outcomes framework so that police can accurately report the number of cautions given, and we will also explore the practicalities of gathering qualitative data from police on the types of conditions used.
We want to preserve the balance between a national framework for decision-making on the one hand and, on the other, operational decision-making that rests on the facts of the case and can be independently and locally scrutinised. We believe that working to develop more effective and consistent scrutiny panels in forces, thereby ensuring independent representation and transparency of findings, would be the most effective course of action. For that reason, we are currently engaging with stakeholders on precisely this issue, including a range of questions on transparency and scrutiny regarding the use and monitoring of the new cautions. It will only be possible to find the balance we seek once we have that feedback. I can assure the noble and learned Lord and the House that this will subsequently be included in the code of practice accompanying this legislation, which will itself be brought before Parliament for scrutiny in due course.
Amendments 66C and 66D, tabled by the noble Lord, Lord Paddick, relate to the essence of the reform that the Bill makes to the out-of-court disposals framework. As I noted in Committee, this reform has its roots in the work led by the National Police Chiefs’ Council, whose strategy in 2017 removed the need for the simple caution, penalty notice for disorder, and cannabis and khat warnings. The Government have listened to the NPCC and are now taking steps to ensure national consistency in the framework that it has helped to develop. The current position is that one-third of police forces have already moved to using only conditional cautions and community resolutions, and many more, including the Metropolitan Police, are currently in the process of moving over to this two-tier framework.
With Amendment 66D, the noble Lord seeks to retain penalty notices for disorder. We have already seen a marked decline in their use by police. The most recent CJS statistics show that the use of penalty notices for disorder has fallen 28% from the previous year. These are distinct from the fixed penalty notices, which are unaffected by Part 6 of the Bill.
I should also make reference to an important matter that was raised by the right reverend Prelate the Bishop of Gloucester in Committee, speaking through—if I can put it in these terms—the right reverend Prelate the Bishop of Durham. This was in regard to the intention behind the use of conditional cautions. The point she made was that they should have the aim of rehabilitation or restoration. The purpose of this is both to address the causes of the offending in order to support the offender to desist from reoffending and to put a welcome emphasis on the wishes of the victim, allowing for appropriate restoration to be made, where appropriate. The fact is that simple cautions and penalty notices do not allow for this victim-centred approach that mandates rehabilitative and restorative actions. I therefore do disagree with the noble Lord, Lord Paddick, that this gives rise to what he called—if I heard him correctly—a bureaucratic nightmare.
Retaining the use of penalty notices and simple cautions would undermine these aims entirely and indeed the reform itself. They are inconsistent with it. I heard the noble Lord say, somewhat in stereo as it was repeated behind me by the noble Earl, Lord Attlee, that I have my work cut out to persuade him not to divide the House. But I hope I have set out the principles that underly the new approach: the conditions support rehabilitation and encourage the offender to desist from reoffending. You simply do not get that with a simple caution or notice. I therefore hope that, having listened to what I have said, both he and the noble and learned Lord, Lord Thomas, will not press their amendments.
Lord Paddick (LD)
Before the noble Lord sits down, could he just confirm that these changes—not allowing fixed penalties or simple cautions—are being made on the basis of no evidence whatever of the efficacy of conditional cautions versus simple cautions? He has just admitted from the Dispatch Box that the Government do not retain any data on the number of conditional cautions versus the number of simple cautions, or about the sorts of conditions imposed, but retain data only on the total number of cautions.
Lord Wolfson of Tredegar (Con)
My Lords, I think we might now be in double figures for the times I have been asked that question. I have set out in my remarks, fairly I hope, what lies behind it. The work from the National Police Chiefs’ Council lies behind this; a third of police forces have gone there; and many more are considering it. Whether one calls that evidence or not, that is the basis on which these reforms are predicated. I have answered this question before, and I answered it in Committee. I appreciate my answers may not satisfy the noble Lord, but that is the basis on which we think this is a good idea; and quite a number of police forces already think this is a good idea.
Lord Thomas of Cwmgiedd (CB)
My Lords, I thank all who participated in this debate. I will deal very briefly with the two points that have arisen.
First, the system to ensure consistency and compliance with the code will apply to whatever system is brought into effect, including the conditional cautions or fixed penalty notices. I am very grateful to the Minister for his statement, and it seems to me there is now a proper basis for going forward. I think it is fair to say that, when fixed penalty notices and cautions came to be used much more frequently, attempts were made by the judiciary from about 2005 onwards—therefore spanning both Governments—to try and put in place such a system. I am afraid we did not get very far, but it is encouraging to know the Minister is now behind this.
I hope for two things. One is for us to go forwards, as the noble Lord, Lord Ponsonby of Shulbrede, has said, with the magistrates doing matters locally, and I hope the MA will positively engage. The other is for a national basis. National consistency is important, because to the man on the Clapham omnibus—or whatever the modern phrase is—whether you get required to do something by the court or by the police, it is still part of the same system and it is still the law that requires it. Therefore, I look forward very much to scrutinising, when this comes back, the proposals put forward by the Government in the code.
As to the second part, I am again grateful to all who have taken part. If I may respectfully say so, I think there is a certain lack of wisdom in getting rid, without an adequate evidence base, of something that has been as useful in the past as a simple caution. However, I beg leave to withdraw the first amendment.
Lord Paddick
Member’s explanatory statement
This amendment would retain the use of the simple caution.
Lord Wolfson of Tredegar
Member’s explanatory statement
This amendment provides for regulations under Clauses 81(8) and 90(8) to be subject to the affirmative procedure whether they increase or decrease the maximum number of hours a person may be required to work or attend at a place pursuant to a caution.
Member’s explanatory statement
This amendment provides for regulations under Clauses 82(3) and 91(3) to be subject to the affirmative procedure if they increase or decrease the maximum amount of a financial penalty pursuant to a caution by more than is necessary to reflect changes in the value of money.
Lord Wolfson of Tredegar
“Penalty for cruelty to children
(1) In section 1 of the Children and Young Persons Act 1933 (cruelty to persons under 16), in subsection (1)(a) (penalty on conviction on indictment), for “ten” substitute “14”.(2) Subsection (1) applies only in relation to offences committed on or after the day on which this section comes into force.”Member’s explanatory statement
This amendment increases the penalty under section 1(1)(a) of the Children and Young Persons Act 1933 to 14 years.
Lord Wolfson of Tredegar (Con)
My Lords, these amendments follow a discussion in Committee and an undertaking given on Report in the other place in response to amendments tabled by Tom Tugendhat MP, with cross party-support, which sought to raise the maximum penalties for child cruelty offences. We said at that time that we would bring forward proposals for reform as soon as possible.
I pay tribute to Tom Tugendhat and the family of his young constituent, Tony Hudgell, who have campaigned tirelessly for these changes to the law in his name. As a baby, Tony was abused to such an extent by his birth parents that he is now severely disabled. No child should suffer such appalling abuse, especially from those who should love and care for them most. Therefore, it is right to ensure that, in such cases, the punishment fits the crime. I should add that today saw the sentencing of those involved in the tragic death of Star Hobson. I offer my and the Government’s sincere condolences to Star’s friends and family. The violent death of a child as young as Star really is heart-breaking.
Government Amendments 69 and 70 amend Section 1 of the Children and Young Persons Act 1933 and Section 5 of the Domestic Violence, Crime and Victims Act 2004 respectively to increase the maximum penalties in three circumstances. Those for cruelty to a person under 16 rise from 10 years’ imprisonment to 14 years’ imprisonment; those for causing or allowing the death of a child or vulnerable adult rise from 14 years’ imprisonment to life imprisonment; and, finally, those for causing or allowing a child or vulnerable adult to suffer serious physical harm rise from 10 years’ imprisonment to 14 years’ imprisonment.
Government Amendment 70 also adds the offence of causing or allowing the death of a child or vulnerable adult to Schedule 19 to the Sentencing Act 2020. This is a consequential amendment of Schedule 19 which lists offences where the penalty may be life imprisonment. It means that, if the judge determines that the offender is dangerous and the circumstances of the offence are sufficiently serious, the offender must receive a life sentence. Furthermore, a consequence of increasing the maximum penalty for causing or allowing the death of a child or vulnerable adult to life imprisonment is that offenders sentenced to seven years or more for that offence will now spend two-thirds, rather than half, of the sentence in custody.
I am confident that the House will agree, especially in light of the recent appalling cases, that the courts should, where necessary, have the fullest range of sentencing powers available—I underline that these are new maximum sentences—to deal appropriately with those who abuse children and vulnerable persons. I therefore beg to move Amendment 69.
Baroness Jones of Moulsecoomb (GP)
My Lords, it is a pleasure to rise to support government amendments. There are cases of child abuse and neglect that cannot be adequately punished under the current maximum sentences. It is rare for me to urge more punishment; I always try to focus on rehabilitation, deterrence and restitution, but here I see more punishment as appropriate, simply because protecting a child is our natural human response.
A few years ago, a grave was found in Italy containing a 10,000 year-old skeleton of a tiny baby girl, just a few weeks old. She was buried with what would have been quite precious things: an eagle owl talon, shell pendants and some precious stones. This showed us that, first, 10,000 years ago people cared about their children even when they were of a very young age, and we did not necessarily know that—burials from the Mesolithic period are quite rare—and, secondly, the fact that she was a girl showed that it was an egalitarian society and they did not have our western attitude of women being rather less than men.
There is, however, no deterrent effect required from criminal law because if the only thing stopping someone hurting a child is that it is illegal then there is something deeply wrong with that person. We have an innate reaction to child abusers—a natural hatred towards anyone who would do something so vile. However, that is not to say that every single case of child abuse or neglect is the same, so I am pleased that this is an increase in the maximum sentences and that the Government are not messing around with mandatory minimum sentences.
Lord Marks of Henley-on-Thames (LD)
My Lords, we also support these amendments. There has been a ghastly spate of tragic cases of cruelty to children, both those mentioned by the Minister and others. We agree that increasing the maximum sentence from 10 years to 14 in cases of serious harm, and from 14 years to life in the case of death, is both acceptable and to be supported.
Along with the noble Baroness, Lady Jones, we note that the proposals in the government amendments, as the noble Lord, Lord Wolfson, has fairly pointed out, are for an increase in the maximum sentences, and there is no proposal for a mandatory minimum sentence. Nor is there any proposal for a judge to find exceptional circumstances before departing from a minimum, as was the case with the “Harper’s law” amendment to the Bill, made by the Government earlier in these proceedings, and as there is in the proposals to be discussed in the next group.
We agree with the Government that the offences targeted by these amendments are of the most grievous kind. We fully understand that the severity of the proposed penalties is warranted, and we therefore support the amendments.
Baroness Chapman of Darlington (Lab)
My Lords, we support the amendments. I read with interest the debate on Report in the Commons, where there was clear support for them across the House. The concern to protect children and vulnerable adults is felt particularly keenly at this point. We have all been deeply shocked and moved by the recent cases, and by the voice of Arthur Labinjo-Hughes—I cannot bear to repeat his words. It is little wonder that the Government feel moved to act on this issue. Our justice system should reflect the public’s disgust and concern at what has happened.
However, I want to say something about the impact of these amendments. As hinted at by the noble Baroness, Lady Jones, increasing sentences will not prevent these crimes. These measures are the right thing to do and we support them, but they will not prevent these crimes. The Government have systematically undermined early intervention and prevention services, which have largely been delivered by local government, along with health in schools, which have combined to protect children and vulnerable adults. I ask the Minister to speak to his colleagues about working urgently and strategically to deal with the now well-understood and reported problems of poor communication, lack of curiosity, excessive case loads and inadequate co-ordination of services that put child services under so much strain and children at risk. Addressing those issues would do far more to safeguard children and vulnerable adults. For today, though, we support these changes, insufficient though they are.
Lord Wolfson of Tredegar (Con)
My Lords, I am grateful to all those who have contributed to this debate. I will pick up the point just made by the noble Baroness, Lady Chapman of Darlington. There has indeed been cross-party support on this point in your Lordships’ House, as there was in the other place, and I am grateful to her and the noble Lord, Lord Marks of Henley-on-Thames, for that. I therefore will not shatter the mood of consensus by descending into a debate on early intervention, save to say that I too agree that early intervention is important. I will pass her remarks on to my colleagues and I am sure we will continue that debate at another time.
For today, it is important to preserve that consensus. There is a mood across the House that these amendments are important, for the reasons given by all speakers. I was particularly grateful to have the support—perhaps unusually, if I may say so—of the noble Baroness, Lady Jones of Moulsecoomb, which shows that this issue is a cross-party, and perhaps even a non-party, issue. With those thanks, I commend the amendments to the House.
Lord Wolfson of Tredegar
“Penalty for causing or allowing a child or vulnerable adult to die or suffer serious physical harm
(1) Section 5 of the Domestic Violence, Crime and Victims Act 2004 (causing or allowing a child or vulnerable adult to die or suffer serious harm) is amended in accordance with subsections (2) and (3).(2) In subsection (7) (penalty in the case of a person’s death), for the words “liable on conviction on indictment” substitute “liable—(a) on conviction on indictment in England and Wales, to imprisonment for life or to a fine, or to both;(b) on conviction on indictment in Northern Ireland,”.(3) In subsection (8) (penalty in the case of serious physical harm), for the words “liable on conviction on indictment” substitute “liable—(a) on conviction on indictment in England and Wales, to imprisonment for a term not exceeding 14 years or to a fine, or to both;(b) on conviction on indictment in Northern Ireland,”.(4) Subsections (2) and (3) apply only in relation to offences where the unlawful act to which the offence relates is an act that occurs, or so much of such an act as occurs, on or after the day on which this section comes into force.(5) In Schedule 19 to the Sentencing Code (list of certain specified offences carrying maximum sentence on indictment of imprisonment for life), after paragraph 20 insert—“Domestic Violence, Crime and Victims Act 200420A(1) An offence under section 5 of the Domestic Violence, Crime and Victims Act 2004 that meets the conditions in sub-paragraph (2). (2) The conditions are that—(a) the unlawful act to which the offence relates was an act that occurred, or so much of an act as occurred, on or after the day on which section (Penalty for causing or allowing a child or vulnerable adult to die or suffer serious physical harm) of the Police, Crime, Sentencing and Courts Act 2021 came into force, and(b) the offender is liable on conviction on indictment to imprisonment for life.””Member’s explanatory statement
This amendment increases, for England and Wales, the penalties under section 5(7) and (8) of the Domestic Violence, Crime and Victims Act 2004 to life (if a person dies) or 14 years (if a person suffers serious physical harm). The amendment includes a consequential amendment of Schedule 19 to the Sentencing Code, which lists offences where the penalty may be imprisonment for life.
Member’s explanatory statement
This amendment, along with Lord Marks’ amendment to page 88, line 23, would remove the requirement for the circumstances to be exceptional before a judge was empowered to decline to impose the minimum sentence (for offences of threatening with weapon or bladed article) and would entitle the judge to do so where in the circumstances the judge concluded that such a sentence would be contrary to the interests of justice.
Lord Marks of Henley-on-Thames (LD)
My Lords, of the amendments in this group, Amendments 71 to 78, to which I speak now, replicate the amendments I spoke to in Committee, which were also in my name and the name of the noble Lord, Lord Pannick, whom I thank for adding his support to them. Noble Lords will remember that in Committee we had significant and powerful support across the Chamber, including from noble and learned Lords and two former Lord Chief Justices, among them the noble and learned Lords, Lord Thomas and Lord Judge.
These amendments raise an important point of principle concerning judicial discretion. The proposed provisions in Clause 102 impose mandatory minimum sentences and permit judges to depart from those mandatory minima only in “exceptional circumstances”. That amounts to a serious attack on judicial discretion in sentencing and is likely in many cases to give rise to significant injustice. That is true for all four of the minimum sentences proposed: six months in custody for adults threatening with a weapon or bladed article, and four months for 16 and 17 year-olds; seven years for a third class A drug trafficking offence; three years for a third domestic burglary; and six months, or four months for 16 and 17 year-olds, for a repeat offence of carrying an offensive weapon or possessing a bladed or pointed article in a public place or on educational premises.
I am grateful to the Minister for considering our arguments on this topic and for meeting me to discuss them. However, my understanding is that he is likely to maintain the position he took in Committee. He is likely to argue that the judge’s power to depart from the minimum sentences if they find they are exceptional circumstances allows a judge some latitude. Yet he maintains the position that “exceptional circumstances” is a phrase well known to the law as a threshold and should not be changed.
The reality is that the phrase “exceptional circumstances” allows a judge very limited latitude indeed. It is true that the noble Lord, Lord Ponsonby, with his long experience as a magistrate, has said that magistrates’ courts are in the habit of treating the requirement for “exceptional circumstances” with a degree of flexibility. Perhaps that is true of exceptional hardship in relation to disqualifying people for acquiring 12 points on their driving licences. However, the reality is that, properly applied and precisely because this is a threshold phrase well known to the law, as the Minister says, the requirement for exceptional circumstances is far more rigid and far stricter than that experience of magistrates’ courts would imply. Courts have regularly held the phrase to mean that the circumstances must be completely out of the ordinary for exceptional circumstances to be found. Indeed, it is patently obvious that that is the reasoning behind the proposed provisions in Clause 102. The Government are concerned to ensure that more severe custodial sentences are imposed in the cases to which these minima would apply.
Our amendments, on the other hand, would allow for judicial discretion to depart from the minimum sentences where the judge decides that it would be contrary to the interests of justice to impose such a minimum sentence, having regard to circumstances relating to the offence or the offender. Under our amendments, the prescribed minimum sentences would remain the default position—the default sentences—but judges would have the power to depart from them if they thought that the minimum sentences would be unjust. We believe that if only the Government could trust the judges to apply the law and to do what the interests of justice require in particular cases, they would simply accept these amendments.
Viscount Hailsham (Con)
My Lords, I support the observations made by the noble Lord, Lord Marks. On previous occasions, and indeed in Committee, I expressed my real anxiety about mandatory minimum sentences, particularly in the context of this group of amendments. I share the noble Lord’s view that a mandatory minimum sentence of this kind is capable of doing very considerable injustice.
I appreciate my noble friend the Minister’s view about exceptional circumstances, which he has explained before. I recognise that there is an ability on the part of the judge in exceptional circumstances to disapply the minimum sentence, but I share the noble Lord’s view that the concept of “exceptional circumstances” means something way out of the ordinary—exceptional. That means that the proviso, in my view, will be seldom applied.
The amendment moved by the noble Lord goes much further than that and, in my interpretation of it, imports the concept of fairness and justice. I agree with him. Because that is my interpretation of the amendment —namely, that we are introducing the concept of fairness and justice as a means of disapplying the minimum mandatory sentence—I shall support the amendment if the noble Lord seeks the opinion of this House.
Lord Pannick (CB)
My Lords, I have added my name to the amendment proposed by the noble Lord, Lord Marks, and I agree with everything that he said and, indeed, what has been said by the noble Viscount, Lord Hailsham. There is no doubt that there is a real difference, both in principle and in practice, between exceptional circumstances and what is required in the interests of justice. It seems to me that, whether or not the circumstances are exceptional, it is essential that the court has a power not to impose a sentence that the judge believes to be contrary in the circumstances of the particular case to the interests of justice.
I am surprised and disappointed to hear from the noble Lord, Lord Marks, that a Minister of Justice, particularly one as wise and fair as the noble Lord, Lord Wolfson, should resist an amendment that confers power on the courts to avoid imposing a sentence that the judge believes would be contrary to the interests of justice. How can that possibly be right? If we are to have more minimum sentences—and I share the concerns as to whether we should—it is absolutely essential that the judge has a discretion to impose a sentence that he or she thinks is in the interests of justice.
Lord Garnier (Con)
My Lords, I entirely agree with the noble Lords, Lord Marks and Lord Pannick, and my noble friend Lord Hailsham.
Lord Faulks (Non-Afl)
I have had the opportunity on a number of occasions, sitting as a recorder, to pass sentence in cases where, in one case after another, advocates have suggested that I take an exceptional course—and sometimes I have been persuaded to take an exceptional course. It seems to me that the word “exceptional” provides an opportunity for a judge in the interests of justice to depart from the minimum sentence. But this is a decision taken by the Government in response to a particular set of offences, and the general public would perhaps agree with that policy; it requires judges to think long and hard before deciding that there are exceptional circumstances. I note that the noble Lord, Lord Marks, suggested that there may be many cases where they consider it in the interests of justice not to pass a minimum sentence. It seems to me that that is a question of policy that the Government have identified and, although naturally I favour as much judicial discretion as possible, it seems to me a policy decision that they are entitled to take.
Baroness Jones of Moulsecoomb (GP)
I do not want to re-enter an old argument but, in Committee, I was almost embarrassed when the Minister pointed out that I was completely wrong about mandatory minimum sentences. Not being a lawyer, I thought that I had made some sort of legal error, but apparently not. Clause 102 will lead to gross injustice for anyone who is convicted of these offences, except in exceptional circumstances. That is revealed by the very clever wording of the amendments tabled by the noble Lord, Lord Marks of Henley-on-Thames, which contrasts those exceptional circumstances with a much preferable
“contrary to the interests of justice”.
These amendments bring justice into play rather than pure, unmetered punishment. I and my noble friend will be supporting the amendments.
The deterrent effect of these minimum sentences would still be in play, but there would also be the freedom that, when justice requires, a person is not given one of these mandatory sentences—so the Government can still hold their “tough on crime” stance and even call this “crime fortnight” while justice is still served—although it would be good if they could admit their own crimes sometimes.
Lord Hope of Craighead (CB)
My Lords, I will say a few words in support of Amendment 82A dealing with short custodial sentences. The value of this amendment is that it places greater emphasis on alternative disposals, which fits in with what I thought was the Government’s policy of trying to rehabilitate offenders. Sending people to prison for a short period is counter- productive. One knows what happens in prisons. To send people for a short sentence is wasteful of public money. If there is an alternative to a custodial sentence, then it should be adopted. The proposal made in this amendment has a great deal behind it.
As for the other issues, speaking as a former judge I tend to support what the noble Lord, Lord Faulks, has said. If I was faced with the choice of words, I would find it easier to work with the Government’s wording than the wording proposed in the amendments.
The Lord Bishop of Gloucester
My Lords, I agree with much of what has been said. On Amendment 82A I reiterate what has been said, and I hope will be said later, about primary carers. We know the damage short sentences do to families. We also know that close to half of those leaving custody go on to reoffend within a year of their release, but two-thirds of those sentenced to less than 12 months go on to reoffend.
This is not pie in the sky; if we look at Germany, which performs better on virtually every metric including reoffending, they imprison a far smaller proportion of the population and sentencers have to make two assessments before sentencing. First, they have to show that a community sentence is inappropriate and, secondly, they have to say that a short sentence will suit the need better. I commend Amendment 82A.
Lord German (LD)
My Lords, I have added my name to Amendment 82A. I apologise to the House for being a few moments late into the Chamber; my little legs would not carry me fast enough from committee to Chamber.
Amendment 82A amplifies the debate we had on short sentences in Committee. It does not seek to ban short sentences but sets out to reduce the use of custody for less serious offences for which there are better options within the community. The argument made in Committee, that there are already guidelines and the Sentencing Code to guard against the overuse of short sentences, is disproven by the way in which the matter does not arise in sentencing at the moment.
The current arrangements—the ones the Minister spoke of in Committee—appear to be robust in theory because imprisonment is already reserved for serious offences and custody is already described as a last resort. As principles, these sound restrictive but have not proven to be so in practice. The current arrangements regarding the custody threshold are an unsatisfactory test because they can be interpreted as permissive when an offender has experienced all other possible forms of sentence even though their latest offence is not that serious. The problem with this is that it magnifies the roundabout, which is short sentences without any opportunity for rehabilitation, being outside for a very short period, reoffending and coming back through the system yet again.
This Bill creates a strange ladder of offences because, if you add in the additional features of the community sentences, which is detention in people’s homes, then that increases the features of the system in this first part of the ladder. The ladder then has a rung which has a much shorter stage to the position of imprisonment. We could say that the position after this Bill will be that the first part of the community sentences has much more amplification of the measures that can be used to deal with the sorts of crimes we have been talking about.
Lord Bradley (Lab)
My Lords, I will speak very briefly to this group of amendments. In particular, I support Amendment 82A in the names of my noble friend Lord Ponsonby and the noble Lord, Lord German. I declare my interest as a trustee and vice-chair of the Prison Reform Trust.
In Committee, I tried to make the arguments, both social and economic, against the use of short custodial sentences and in favour of robust community sentences, where appropriate. I will not repeat those arguments this afternoon. Suffice it to say that, in 2020, over 40,000 people were sent to prison, the majority of whom had committed a non-violent offence. Almost half were sentenced to serve six months or fewer.
As many voluntary and charitable organisations have pointed out, and as we have just heard, short prison sentences have proven less effective than community sentences at reducing reoffending. Short-term prison sentences have a particularly harmful effect on women, who often have primary care responsibilities. We will debate that later today. In 2020, the National Audit Office estimated that the annual cost per prison place was £44,640, whereas for a community sentence it was, on average, £4,305.
I support the views expressed by the noble Lord, Lord German. I have two quick examples which show why Amendment 82A is totally in line with the Government’s own recent policy statements. First, the Ministry of Justice’s Female Offender Strategy clearly states:
“We will support a greater proportion of women to serve their sentence in the community successfully and reduce the numbers serving short custodial sentences by … Ensuring that courts have better and more comprehensive information about female offenders to inform sentencing decisions”.
The Government support community sentences. As a committed member of the Minister’s Advisory Board on Female Offenders, I fully endorse this strategy. I believe it is totally consistent with Amendment 82A.
Secondly, there is the Government’s recently published From Harm to Hope: A 10-Year Drugs Plan to Cut Crime and Save Lives. They have committed £780 million to this programme, £120 million of which will be used to increase the number of offenders and ex-offenders engaged in the treatment they need to turn their lives around. The plan goes on to say that this enhanced spending on drug treatment and recovery will also drive down crime by cutting levels of drug-related offending.
I agree, and I believe these programmes will be successful if they are clearly linked to community sentences, not short-term prison sentences. Such community sentences, with treatment requirements—whether for drugs, alcohol, mental health conditions or a combination of all those requirements—properly funded and overseen by the reconstituted National Probation Service, will give the judiciary the confidence to administer them, as opposed to the expensive and futile experience of a short prison sentence.
I therefore believe that recent government policy announcements are totally in line with our proposals in Amendment 82A, and I feel sure that the Minister will give a very positive response to the proposal.
Earl Attlee (Con)
My Lords, I have no objection to short prison sentences per se. The problem I have is that our current prison system is so hopelessly ineffective at rehabilitation. That is why in Committee I tabled my Amendment 241, a proposal for drastic reform. I am grateful for the response I got from the Committee, and indeed from my noble friend the Minister, and that is why I saw no need to table it on Report.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I will speak first to Amendment 82A, to which I put my name, together with the noble Lord, Lord German. It specifies that short periods in custody should not be an inevitable response to someone with a history of relatively minor offending and that sentencers should be required to state the reasons for giving a prison sentence up to and including six months.
A coalition of views has been expressed in support of the amendment. We have, if she does not mind being described in this way, a campaigning right reverend Prelate who consistently talks about short prison sentences, particularly as they affect women, and my noble friend Lord Bradley with his expertise in this area regarding harmful effects on women in particular but also people with mental health problems. I also include myself in the coalition, because I regularly sentence short sentences.
The point I have made in these debates before is that, while the reoffending rate is indeed as bad as the right reverend Prelate said—there are high reoffending rates—in my experience as a sentencer, I sentence short sentences only when a community sentence has failed. I literally cannot remember a time when I have sentenced a short custodial sentence where there have not been—sometimes multiple—failures of community sentences. When I sentence, I am comparing a 100% failure rate for the community sentences of the people in front of me with the 60% failure rate of those who come out of short custodial sentences and reoffend within a year, so I am making a very unfortunate calculation when I give short custodial sentences.
Nevertheless, the noble Lord, Lord German, made absolutely the right point. We are trying to help the Government realise their own policy. The Government acknowledge what I have just said regarding the inevitability, sometimes, of short custodial sentences. The real answer is to come up with a robust, community-based approach that works and that sentencers have some level of belief in. I look forward to the Minister’s response to Amendment 82A.
I turn to the other amendments in the group. As I said in Committee, the Labour Party will abstain—with reluctance—if the noble Lord, Lord Marks, chooses to move his amendments to a vote. The point made by the noble Lord, Lord Faulks, was essentially the point the Minister will make, which is that what we are seeing here is the Government’s response to a particular set of offence types and that it is a policy decision on behalf of the Government, which they are entitled to take and which they see as a response to public demand. Frankly, I am not comfortable with the position I am taking on this, but the view of the Opposition is that we will abstain if the noble Lord, Lord Marks, decides to move his amendments to a vote.
Lord Wolfson of Tredegar (Con)
My Lords, this group of amendments broadly covers topics related to custodial sentences. We debated them at some length in Committee. The Government have listened carefully to the arguments put forward by noble Lords in support of these amendments. In particular, I am grateful to the noble Lord, Lord Marks of Henley-on-Thames, and others for discussing them with me. However, the Government remain unpersuaded that these amendments are necessary. I will briefly explain the reasons why and will begin with Amendments 71 to 78 in the name of the noble Lord, Lord Marks.
As the noble Baroness, Lady Jones of Moulsecoomb, reminded us, we had a lengthy debate in Committee on Clause 102 and minimum sentences. For the avoidance of any doubt, this clause does not introduce any new minimum sentences or new offences. Rather, it seeks to ensure that courts depart from imposing the minimum sentence only in exceptional circumstances. We are making sure that in these cases, where a minimum sentence applies, the criteria by which the courts can depart from the minimum sentence are consistent and are set out.
The amendments use the term
“contrary to the interests of justice”.
This term is not itself unusual, indeed at Section 59 of the Sentencing Code courts are directed to follow the relevant sentencing guidelines unless
“satisfied that it would be contrary to the interests of justice to do so”.
However, as the noble Lord, Lord Marks, accepts, these amendments would create a new and different test in respect of which a court can depart from imposing a minimum sentence when sentencing for these specific offences. The noble Lord’s amendment could be seen, as I think he tacitly accepted, as creating a lower threshold at which the courts may depart from imposing the minimum sentence, whereas the Government intend to raise and clarify the threshold.
As I explained in Committee, the necessity for this measure is supported by the data. In 2020, approximately half of all adults convicted for a third-time domestic burglary offence received less than the minimum sentence, even after taking account of the early guilty plea. We should not forget that minimum sentences are, in the main, for repeat offences which have a large community impact.
I know that concerns have been raised that Clause 102 may lead the courts to impose the minimum sentence in situations that they regard as unjust, because they cannot find the circumstances to fall within the ambit of “exceptional circumstances”. Concerns have also been raised that what constitutes “exceptional” might be treated as being subjective, leading to inconsistent application.
I can, I hope, reassure the House that courts are well accustomed to determining whether there are exceptional circumstances. There is a body of case law relating to the minimum sentence for certain offences involving firearms which already applies unless there are exceptional circumstances. This provision aligns the minimum sentence provisions with that test. Without wishing to turn Report stage into a seminar, in R v Nancarrow—the reference is 2019, EWCA Crim 470; old habits die hard—the Court of Appeal established a number of relevant principles, including that circumstances are exceptional if the imposition of the minimum sentence would be arbitrary and disproportionate. The court should also take a holistic approach and consider whether the collective impact of all the relevant circumstances makes the case exceptional. Therefore, judicial discretion for the court to consider fully the facts of the case and decide on the appropriate sentence in light of the statutory regime is retained in this measure.
I respectfully disagree with the noble Lord, Lord Marks, that this is an attack on judicial discretion. It is not a case of the Government not trusting judges; indeed, we have minimum sentences. The noble Lord is not suggesting that we should not have any minimum sentences, so the issue between us is not whether a judge has full discretion or no discretion—I am not advocating no discretion; the noble Lord is not advocating full discretion—but the ambit of that judicial discretion. I suggest that that is a matter of policy and therefore properly a matter for Parliament.
Lord Garnier (Con)
I hate to disagree with the Minister on this matter of policy, but of course Parliament can do what it likes. The question is whether that is wise.
Lord Wolfson of Tredegar (Con)
We must distinguish carefully between whether it is wise, which is a point we can make about any legislation, and whether it is proper. When the point is put against me that this is an attack on judicial discretion and a case of not trusting judges, I hear it as a matter of policy and constitutional propriety first and a matter of wisdom second. So far, I have addressed the point on constitutional propriety. My noble and learned friend is right to say that Parliament can do what it likes; my point is that, here, Parliament is doing what is constitutionally proper as well. As to whether it is wise, I set that out earlier.
In these circumstances, it is proper to endorse the exceptional circumstances test. A system in which 50% of people are not being given the minimum sentence is, I suggest, one in which something is going seriously wrong. Although I pay great respect to anything said my noble and learned friend, the point put briefly but clearly and firmly by the noble and learned Lord, Lord Hope of Craighead, ought to carry serious weight with the House.
Lord Pannick (CB)
The Minister mentioned a Court of Appeal authority on this matter. Can he confirm whether that authority suggests that, if a judge in an individual case believes it would be contrary to the interests of justice to impose the minimum sentence, that is a strong indication that there are exceptional circumstances?
Lord Wolfson of Tredegar (Con)
As we found in Committee, it is very tempting for Ministers to start parsing or glossing the term “exceptional circumstances”, and I hope the noble Lord will forgive me if I do not do so. That phrase has been used in statute and considered at the very highest level by the judiciary. The application of statute is properly a matter for the judiciary. In these circumstances, it is not helpful for a Minister on his feet to start parsing or glossing what has been said by the Court of Appeal. With genuine respect, I will leave that matter there and leave it for the Court of Appeal to explain what “exceptional circumstances” means. However, I repeat that the noble and learned Lord, Lord Hope of Craighead, said in terms that he found that test not a difficult one to apply—indeed, he found it an easier and more straightforward test to apply than the interests of justice.
Amendment 82A, tabled by the noble Lord, Lord Ponsonby of Shulbrede, with the support of the noble Lord, Lord German, would require a court imposing a custodial sentence of six months or less to state its reasons for being satisfied that neither a fine nor a community sentence could be justified.
The noble Lord, Lord German, reminded us of the Government’s position set out in 2020, which, of course, I stand totally by. There are plainly issues of rehabilitation and reoffending when it comes to short sentences, and that is why, as I explained in Committee, provisions in the Sentencing Code already ensure that custody should be a last resort in all cases, and for the shortest term possible. Even where the custodial threshold is met, courts retain discretion to impose non-custodial sentences after taking into account wider considerations. The code also places a duty on the court to explain its reasons for passing any sentence, and this can include an explanation of the factors the court has taken into account in making its sentencing decision.
This amendment also sets out a series of principles for courts to have regard to when imposing a custodial sentence of six months or less. For the most part, these are included in the independent Sentencing Council’s Imposition of Community and Custodial Sentences guidelines. As courts are already under a statutory duty to follow any sentencing guidelines relevant to the offender’s case, the Government do not consider it necessary to put these principles on a statutory footing.
As the noble and learned Lord, Lord Hope of Craighead, said, if an alternative sentence to custody can properly be handed down, it should be. While I do not propose again to gloss the sentencing guidelines, I respectfully agree that that is a useful summary of them. Again, as the noble Lord, Lord Ponsonby, said with his own experience, it is often only when community sentences have failed that a custodial sentence is handed down. That, again, is in accordance with the approach set out in the sentencing guidelines.
Of course, I listened very carefully to what was said by the noble Lord, Lord Bradley, with whom I have had discussions on this and other issues, and by the right reverend Prelate the Bishop of Gloucester—I was going to say the “campaigning” Bishop of Gloucester, but I will leave out the adjective, although she might like it. I hope that they will each be satisfied with—and certainly understand—what I have said and the reasons for the Government’s position on these amendments. For the reasons that I have set out, I urge the noble Lord to withdraw his amendment.
Lord Marks of Henley-on-Thames (LD)
My Lords, I am very grateful for the support that I have had for my Amendments 71 to 78 from Members of the House and for all the contributions to this important debate. I am also grateful to the Minister for his response. However, when one analyses it, what he was saying about discretion cannot survive a proper reading of what is meant by “exceptional circumstances”. Certainly, it is the case that authorities have analysed exceptional circumstances, including the Court of Appeal authority of Nancarrow that he mentioned.
Nevertheless, the nub of it is that “exceptional circumstances” means circumstances that are very unusual, and what the Minister did not address was my point that there are many situations which in general experience are commonplace, and the circumstances are common- place, but where it would nevertheless be unjust—contrary both to the judges and to any normal sense of justice—to impose the minimum sentence. Because the circumstances are not exceptional, the judge would be bound to impose that sentence.
In answer to the points of the noble Lord, Lord Faulks, of course it is the case that judges are daily addressed on the basis that they should take an exceptional course of leniency, and it is not surprising that, as a recorder, he has been asked to take that course many times. However, that does not mean that he has been asked to find that circumstances are exceptional. It is interesting that the test for the sentencing guidelines and departing from them is “contrary to the interests of justice”, and not a requirement that there should be exceptional circumstances.
On the matter of policy, I respectfully suggest that the answer to the Minister’s point was comprehensively expressed by the noble and learned Lord, Lord Garnier. He used the word “wise”. It may be that the Government are entitled to legislate in this way, but is it wise? The Minister said that there was a difference between “wise” and “constitutionally proper”. The point I am making is simply that, although it may be a matter of policy in the sense that the Government can have the policy and can legislate—as the noble and learned Lord, Lord Garnier, said, Parliament can do what it likes—the question is: is it bad policy? We say that it is bad policy because it forces judges to do what they would not otherwise do, having regard to the interests of justice.
In respect of the point made by the noble and learned Lord, Lord Hope, of course it is right that it may be easier to apply a test of exceptional circumstances, because the authorities are so clear, but the point about the interests of justice, as the noble and learned Lord, Lord Judge, picked up in Committee, is that sentencing decisions are difficult.
Lord Hope of Craighead (CB)
I am grateful to the noble Lord for giving way. My point is that I would be drawn into arguments with myself about policy in deciding whether to do what Parliament has asked me to do. I am afraid that, as a judge, the constitutional position is that I have to accept what Parliament has laid down. I do not like minimum sentences; they are a very blunt instrument, and I can think of cases where I would not want to be driven down that road. But that is not my position as a judge. I have to follow what Parliament has said, but I have leeway with the phrase which has been inserted in the Bill. That is my point.
Lord Marks of Henley-on-Thames (LD)
My Lords, I understand that point. It is very rare that I disagree with the noble and learned Lord, but it is still the fact that what Parliament decides, judges must implement. If they decide that there is an exceptional circumstances test, that is far more limiting than an interests of justice test. That is my point and I will close on it—except to say that the default position under my amendment is to accept minimum sentences and simply to allow the judges to depart from those sentences where it is just to do so, having regard to all the circumstances. I do not believe that there has been any answer presented to that central position, on which I therefore wish to test the opinion of the House.
The Deputy Speaker (Lord Duncan of Springbank) (Con)
We shall now move on to the amendments that follow those to Clause 102. We begin with Amendment 78A. I should inform the House that the noble Baroness, Lady Brinton, will be taking part remotely.
Amendment 78A
“Minimum sentence for an offence under section 1 of the Sexual Offences Act 2003
(1) This section applies where—(a) an individual is convicted of an offence under section 1 of the Sexual Offences Act 2003, and(b) the offence was committed after the commencement of this section and at a time when the individual was aged 18 or over.(2) The court must impose an appropriate custodial sentence (or order for detention) for a term of at least the required minimum term (with or without a fine) unless the court is of the opinion that there are exceptional circumstances relating to the offence or to the offender which justify it not doing so.(3) In this section “the required minimum term” means seven years.”
Baroness Chapman of Darlington (Lab)
My Lords, I shall move and speak to the amendments in the name of my noble friend Lord Ponsonby—this amendment and Amendments 78B and 78E, as well as Amendments 78C and 78D, which the noble Baroness, Lady Brinton, has also signed.
The amendment would introduce a minimum sentence of seven years for rape, apart from cases in which the court is of the opinion that there are exceptional circumstances relating to the offence or offender that justify the court not doing so. This issue was raised in the previous debate. I should refer to my noble and learned friend Lord Falconer who spoke on this issue in Committee. I was going to be incredibly nice about him but I see that he is not here, so I shall just move on. He said:
“The framework for sentencing by the courts has to be set by Parliament. The way Parliament does this—as the two former Lord Chief Justices made clear—is by setting a maximum sentence, and the courts then reflect on what they conceive to be the justice of the case, as determined by the maximum. In exceptional cases—I use that word advisedly—it is appropriate for there to be minimum sentences as well. If there is a minimum sentence, the judge’s discretion is removed, but that is because Parliament is saying that a particular offence merits a minimum sentence except in exceptional cases … There is nothing wrong with Parliament doing that. Rape is, in our view, one of those cases.”—[Official Report, 10/11/21; col. 1807.]
The amendment does not force judges to pass unjust sentences. There should be a minimum sentence for rape, which should be departed from only in exceptional circumstances. Victims need to see this happen. The reason that we are particularly concerned about this issue is the wider context in the justice system, which we should not ignore because confidence in the justice system is at an historic low, with just one in 67 rape complainants seeing their case come to court. It can take four years for that process to be completed.
The latest data from the CPS shows that the number of rape convictions fell by 6.7% in the last quarter. There are 3,357 victims of violent and sexual crime who have already been waiting over a year for their day in court, and a further 654 victims of those horrific cases have been waiting for over two years. Victims are not reporting; too many of those who report would say that they would not report a crime again; or they drop out of the process before any case comes to court. Parliament needs to show victims that it considers rape a crime of such seriousness that it is prepared to reflect that view in law.
Amendment 78B would introduce a maximum sentence of two years for publishing the identity of a sexual offences complainant. We are keen to test the opinion of the House on this amendment but we will, of course, listen to what the Minister has to say. This is an important issue and we should like the Government to, in some way, accept this measure. I am sure I do not need to explain to noble Lords just how distressing publication of the identity of a complainant is for the victim and their family. Fear of publication puts victims off reporting. The law understands this already and attempts to protect victims. Amendment 78B sends a signal that people who reveal names could have a sentence as high as two years. It does not say that that should happen in every case or that two years is a minimum sentence, but Parliament should mark the seriousness of this issue and the fact that people can be put under enormous pressure by the threat or fear of publicity.
In Committee, the Minister was sympathetic to the objective of this amendment and accepted that the unlawful naming of people whose identity is protected by law ought to be appropriately punished. We understand that the Attorney-General has invited the Law Commission to undertake a review of the law of contempt of court, with particular reference to the interface between that and the criminal law, including the specific breach offences under discussion today.
The Deputy Speaker (Lord Duncan of Springbank) (Con)
My Lords, the noble Baroness, Lady Brinton, will be taking part remotely, so I hope she is there now. Baroness Brinton, are you with us?
Baroness Brinton (LD) [V]
My Lords, I welcome this further opportunity to speak to Amendments 78C and 78D in the name of the noble Lord, Lord Ponsonby, on the unduly lenient sentence scheme, to which I have added my name, and to Amendment 82B in my name on home detention curfews.
First, I thank the Minister for trying to set up a meeting. It was unfortunate that he had to cancel it and that, because of the emergency coronavirus legislation, I was not free to meet him either yesterday or today. Further, as an aside, it is good to see the Government finally publish their consultation on a victims law and I hope that, after the consultation, legislation will swiftly follow. We have been waiting a long time and today’s amendments are very definitely there to help victims.
Turning first to Amendments 78C and 78D, in Committee, speakers made clear how the ULS scheme plays an important role in our justice system, providing the right for individuals to apply to the Attorney-General’s Office where they believe a sentence to be unduly lenient. As the Minister clarified earlier, the unduly lenient sentence scheme does not provide a direct right to appeal, but instead provides an individual, including victims of crime and bereaved family members, with the opportunity to have their concerns considered by the courts.
On Amendment 78C, we hope that the Minister will acknowledge both the intent and practicalities of such a proposition. The Government’s own victims’ code of practice is clear that victims deserve the right to be told about this scheme and that the responsibility for informing victims of crime about it is assigned to the witness care units. The problem is that the witness care unit is the wrong authority to have this responsibility, because it interacts with only those who are witnesses in court, thus excluding many victims, including bereaved family members.
Amendment 78D seeks to allow flexibility in the 28-day time limit in exceptional circumstances, which would remain at the discretion of law officers when considering the application. If the Minister is concerned about the perceived risk this poses to the certainty for the offender, we believe that allowing a degree of flexibility in exceptional circumstances, as is given to the offender in this case, at the discretion of law officers, does not pose such a risk.
Part of the current problem, and its true risk to finality in sentencing, lies in the current backlogs facing our court system. One recent unduly lenient sentencing case has taken 10 months to reach the Court of Appeal. This does not resolve the fundamental problem that victims face, which is that the criminal justice system should ensure that victims are aware of their rights, have sufficient opportunity to exercise them and have the same rights of flexibility in truly exceptional circumstances. We believe that these amendments, rather than posing a risk to justice and its efficiency, seek to ensure that justice is truly served and that victims of crime have the right—as the Government have set out elsewhere—to a fundamental role in this process.
I turn now to Amendment 82B, which seeks to amend the policy framework governing the use of home detention curfews to exclude those who have previously breached protective orders and who have a history of stalking, harassment, domestic abuse and coercive control. During the debate in Committee, we discussed the fixated and obsessive nature of these offenders and the risk this poses to victims and the public. We gave worrying examples of cases where high-risk offenders were released on home detention curfew, only to appear outside their victim’s home or work, often despite court injunctions not to contact their victim.
After Committee, Victoria Atkins, Minister for Prisons and Probation, wrote to the Victims’ Commissioner for London, stating that the scheme provides a transition to the community for lower-risk offenders. If we are to believe that this Government take violence against women and girls seriously, can the Minister explain how they can consider those convicted of stalking and domestic abuse as lower-risk offenders? The Minister himself stated, in a recent event held by the Domestic Abuse Commissioner, that domestic abuse is at the top of the Government’s agenda and reforming and reframing their response is their top priority.
Support for this amendment would present a small step in the right direction to give victims of such violence the trust and confidence that the justice system is committed to tackling violence against women and girls. I will not press Amendment 82B to a vote, but would welcome a meeting to see if we can make some progress on reducing the contradiction highlighted by Victoria Atkins for something that would provide real support for victims.
Viscount Hailsham (Con)
My Lords, I appreciate that the noble Baroness who moved the lead amendment in this group is concerned primarily with Amendment 78B, but perhaps I might be forgiven if I focus exclusively on Amendment 78A. This relates to the new clause, which would apply a minimum mandatory sentence of seven years to the offence of rape.
I am against this proposed new clause and think it profoundly wrong. I am against it for essentially two reasons. First, as one who has practised in the criminal courts for many years, I know that the offence of rape carries within it a very broad spectrum of culpability, from the most serious kinds of offence to ones significantly less serious. That should be reflected in the ability of the judge to impose the appropriate sentences.
Already a life sentence is the maximum that can be imposed. This takes me to my second point—that I really think the amendment is unnecessary. Anybody who goes to have a careful look at the guidelines published by the Sentencing Council as to how courts should approach sentencing for rape will come to the conclusion that public protection is already appropriately safeguarded. In fact, the spectrum of custodial sentences set out in the Sentencing Council guidelines is between four and 19 years. There is a whole host of considerations set out to assist the judge in determining what level of sentence should be imposed.
That takes me to the last point that I want to make. If you go to the Sentencing Council’s guidelines, as I am sure many of your Lordships have done, you will see a whole range of mitigating circumstances—as well, of course, as aggravating circumstances. Those mitigating circumstances are circumstances that a trial judge could take into account when imposing a determinate sentence of less than seven years. In the new clause proposed in Amendment 78A, nothing is said, for example, about what the consequences would be of remorse or contrition, nor about the making of an early plea, although that of course now attracts a mandatory reduction as a general proposition. Nothing is said about what happens if the defendant has been assisting the prosecution, nor about the time spent on bail. All those things are built into the sentencing guidelines of the council, but they do not appear in the proposed new clause.
If the amendment was to be accepted by your Lordships’ House, very considerable injustice would be done. I also happen to think that it is wholly unnecessary.
Lord Sandhurst (Con)
My Lords, I shall speak to Amendment 78B, on the maximum sentence for disclosing the identity of sexual offences complainants. I understand the motivation for this amendment and agree with the sentiment underlying it. The current level is obviously inaccurate and inappropriate, but it should not be addressed in isolation. It is correct that the present provisions for dealing with disclosure need revision, as they were passed in 1992 and plainly directed at conventional print, radio and TV media, antedating the internet. For newspapers and TV stations, a fine is generally appropriate. Since 2015, a level 5 fine has meant an unlimited one, which could run to hundreds of thousands of pounds for a newspaper that does this either deliberately or inadvertently. But we all know that today a malicious individual can cause similar damage with a post on the internet, and imprisonment may well be appropriate.
These are serious sexual offences—I do not deny that at all—but there are other matters of great sensitivity that will not be covered by this; it could well cause offence and upset if they are not dealt with at the same time, and they should all be looked at as a whole. The ones that I pull out in particular are, for example, to be found in Section 71 of the Female Genital Mutilation Act 2003. There is still only a fine if you disclose identity, when really it is a very sensitive matter—but, for historical reasons, it remains just a fine. So too if you disclose the name of someone involved in slavery—it is also only a fine—and so too with witnesses in the context of youth justice, which also results in only a fine. All those cases are dealt with in a magistrates’ court. Those things, which are all sensitive and difficult, would be better dealt with in the round. It might be that, for one category of offences, it was thought that the maximum sentence ought to be more than two years, and for others two years, but you want to look at them as a package and reach a considered decision.
This is a worthy amendment, in one sense, but it should not be pursued. Instead, I urge the Government to bring on the review with the Attorney-General that has been promised, really get cracking on it, and look at all offences of the unlawful disclosure of witnesses’ names. I am sure that, if the Government’s officials have time after Christmas, they could draw up a list of all those categories pretty swiftly and get on with it, so they are all dealt with as a whole. I call on the Minister to give appropriate assurances in that respect.
Lord Faulks (Non-Afl)
The noble Lord, Lord Sandhurst, identifies the need for consistency, and he is right. I wonder whether this amendment was not provoked by the appalling case of Phillip Leece, who not only committed rape but named the victim and posted grossly insulting material on the internet. That is something that was probably outside the scope of those who drafted this legislation. Newspapers are regulated—as I know, as the regulator of newspapers—but social media remains wholly unregulated. There is significant work to be done in this regard, which Parliament will grapple with when looking at the online safety Bill. This is just the sort of matter that a duty of care should deal with, in a proper system to prevent this sort of posting taking place.
I am sure that the Attorney-General is thinking carefully about contempt of court aspects. Of course, there is a power on the part of the judge to deal with the matter much more seriously than with the derisory fines that are currently imposed, but it is something that has to go to the administration of justice, and it is not always predictable or easy to identify what cases will or will not constitute contempt of court—so I welcome that.
Although I wholly understand why this amendment has been proposed, it seems that it would be stark and inconsistent with other provisions—but it addresses a mischief that very much needs to be addressed.
Lord Marks of Henley-on-Thames (LD)
My Lords, I shall speak briefly to this group of amendments. First, I turn to the minimum sentence for rape of seven years, subject to an exceptional circumstances disregard or permitted departure. We acknowledge and endorse everything that has been said to the effect that rape is the most appalling crime. The terribly low success rate of prosecutions of which the noble Baroness, Lady Chapman of Darlington, spoke is acknowledged by everyone and has been the subject of a great deal of research by parliamentarians, policymakers and the Government. It needs addressing. The problems that she talked of, of low reporting rates and very high withdrawal of support, along with very low conviction rates, all need addressing. However, I am not convinced that a minimum sentence would address any of those things. Furthermore, for all the reasons, which I shall not repeat, I believe that the use of an exceptional circumstances test for the ability of judges to depart from a minimum sentence is simply wrong.
I also agree with the noble Viscount, Lord Hailsham, when he pointed out that, as anybody who has dealt with rape cases in criminal courts knows, rapes are so very different, the one from another. He was right to point to the very wide range of sentences endorsed in the sentencing guidelines, which mean that courts treat rape very differently, from the milder cases to the very serious cases that merit life imprisonment. I also have some concern that, in some cases, it would make juries even less likely to convict if they knew that there was a minimum sentence of seven years. I cannot support, and I do not think that we cannot support generally, the proposition that this seven-year minimum sentence should be legislated for.
By contrast, Amendment 78B, which would increase the sentence for publishing the identity of sexual offences complainants, is one that we do support. I suspect that it is not often realised quite how serious an offence this is. Sometimes there is a substantial risk of further harm when the identity of a complainant is published. There is very often significant fear on the part of the complainant if her name—as it is usually, although it may be his name—is published. There is almost always really significant distress caused by an unlawful publication. It is of course open to complainants to waive anonymity if they wish. But if they do not wish their identity to be published, to have the law flouted in the way the offence requires seems to me to justify a sentence of imprisonment in some cases. It is important to hear that these are only maximum sentences that we are dealing with.
I agree with the noble Lord, Lord Sandhurst, that there are other cases of unlawful disclosure that should be considered and reviewed but, that being the case in an ideal world—and we all know that these things do not happen as fast as they should—that is no reason for not doing anything at all. So we support Amendment 78B.
For all the reasons given by my noble friend Lady Brinton and, no doubt, to be given by the noble Lord, Lord Ponsonby—the noble Baroness, Lady Chapman, has already spoken to it—we support Amendment 78D on the duty to inform under the unduly lenient sentencing scheme, as well as the extension of the time limit for complaint in respect of unduly lenient sentences. In Committee we went through the reasons for the whole-life order to be taken as a starting point in cases of abduction, sexual assault and murder, and we do support that—again, because it is only a starting point—and this ranks right up there with the other serious offences for which a whole-life order is appropriate.
We support for the reasons given by my noble friend Lady Brinton her amendment on home detention curfews as well.
Lord Wolfson of Tredegar (Con)
My Lords, these amendments, introduced by the noble Baroness, Lady Chapman, on behalf of the noble Lord, Lord Ponsonby, include those aimed at increasing penalties for sexual offences, those focused on enabling victims to challenge a sentence perceived to be unduly lenient, and those aimed at restricting additional offenders from release on home detention curfew. We debated these at some length in Committee, and we listened carefully to the arguments put forward by noble Lords in support. There are obviously some emotive and important issues here, and I welcome the opportunity to set out the Government’s position again this evening. But while the sentiment behind the amendments is fully supported by the Government, we do not consider them to be either necessary or the right course of action.
Let me start with a point on which I think there is common ground, as was set out by the noble Baroness, Lady Chapman. Victims must feel that they are put right at the heart of the criminal justice system. They must be supported so that they can engage properly at every step of what can be an incredibly difficult journey. As the noble Baroness, Lady Brinton, set out and referred to, last week we launched a package of measures to help achieve this: a consultation on a new victims’ law; a national rollout of provision of pre-recorded cross-examination for sexual and modern slavery victims; national criminal justice and adult rape scorecards; and a progress report on the end-to-end rape review action plan. We believe that those initiatives, individually and collectively, will raise the voice of victims in our criminal justice system and give them the justice they deserve. That especially includes the victims of often horrendous crimes of sexual violence.
I will address first the amendment regarding minimum sentences for rape. There is no dispute across your Lordships’ House that such crimes should be punished with sentences that match the severity of the offence. But the noble Baroness, Lady Chapman, is proposing that a court be required to impose a minimum custodial sentence of seven years for a rape offence committed under Section 1 of the Sexual Offences Act 2003,
“unless … there are exceptional circumstances … which justify it not doing so.”
Rape offenders already receive very significant sentences. The courts can, and do, pass sentences of life imprisonment. In 2020, of those who received a custodial sentence of less than life for a Section 1 rape offence, the average sentence was almost 10 years—117.5 months—an increase of almost 15% over the last decade. More than two-thirds of adult offenders sentenced for a Section 1 rape offence received a custodial sentence of over seven years, which is the minimum proposed by the amendment.
In this Bill, and in legislation introduced last year, the Government are ensuring that serious violent and sexual offenders, including rape offenders, sentenced to over four years now spend two-thirds of their sentence in prison, as opposed to having automatic release at the halfway point. However, the nature of this offence and the wide range of circumstances which the court may need to take into account are complex, as my noble friend Lord Hailsham pointed out. I also agree with the noble Lord, Lord Marks of Henley-on-Thames, although, while I know what he meant, I am not sure I would use the word “mild” for any case of rape. I know he did not mean it in that way. What we are dealing with here is different degrees of seriousness of an offence, and I know he meant that.
Lord Marks of Henley-on-Thames (LD)
May I confirm that? It was the wrong word to use, and I apologise.
Lord Wolfson of Tredegar (Con)
I was keen to help the noble Lord out, because I think we all knew what he meant, but it is important in these areas to make sure that the record is really clear. I think we all agree that it is especially important, therefore, because we are dealing with different degrees of seriousness in a complex offence, that we maintain judicial discretion for the courts to consider the full facts of a case before them and decide on the appropriate sentence.
Although the sentence lengths for rape have increased, we have long recognised that the decline in the number of effective trials for rape and serious sexual offences is a cause for significant concern. Let me take a moment to mention some of the wider action we are taking: we have introduced legislation to tackle crimes including stalking, forced marriage, FGM and the those set out in the Domestic Abuse Act; we have committed to more than doubling the number of adult rape cases reaching court; we published the end-to-end rape review on 18 June; and we want to improve the number of rape cases being referred by the police, being charged by the CPS and reaching court. I have already mentioned the victims Bill. In July, we published the tackling violence against women and girls strategy, and we hope that also will help us better target perpetrators and support victims of these crimes, which disproportionately, although not exclusively, affect women and girls.
I turn to Amendment 78B, which would increase the maximum penalty for publishing the identity of sexual assault victims—currently a summary, non-imprisonable offence—to two years in custody. We do not dispute that the current maximum penalty is too low. Our concern, however, is that it would not be right to legislate, as the amendment does, only for the Sexual Offences (Amendment) Act 1992.
The naming offence in Section 5 of that Act protects complainants in sexual assault cases and was later extended to cover human trafficking cases as well. The effect of this amendment would be that the penalty for breaching these restrictions would be markedly different from the penalty for other offences also involving the breach of anonymity. Two of these, in relation to female genital mutilation and forced marriage, are modelled on the 1992 Act, and it therefore would be difficult to impossible to justify treating these identical offences differently from the 1992 Act offence.
Lord Falconer of Thoroton (Lab)
Having very kindly accepted that the maximum is wrong, the Minister’s only point appears to be that it would put it out of sync with these others. What work is being done in the Ministry of Justice and when can we expect to see legislation bringing them all to a position where there is an appropriate maximum sentence? This matters very considerably to victims of a Section 1 crime.
Lord Wolfson of Tredegar (Con)
My Lords, it certainly matters. I am a little concerned that the noble and learned Lord has seen my notes because that was precisely the point to which I was coming when he intervened. I am grateful for the intervention and for the points made by my noble friend Lord Sandhurst and the noble Lord, Lord Faulks, which I endorse. We need consistency and a fair approach in this area. We will begin by drawing up, as my noble friend Lord Sandhurst invited us to, a list of relevant offences, to ensure that we capture this issue fully.
Lord Falconer of Thoroton (Lab)
I am sorry to interrupt again, but when that has been done, what is the next stage?
Lord Wolfson of Tredegar (Con)
There may be others, but I am coming to the next stage. The noble and learned Lord is very keen.
Also part of the framework is the law of contempt of court, which we must consider if we are to look at this area properly. In some circumstances, it might be an alternative to charging the appropriate breach offence, although conduct is usually dealt with as a contempt only where some harm to the administration of justice was likely. It also does not attract the investigatory powers which these offences attract.
My right honourable friend the Attorney-General has already independently asked the Law Commission to examine the law of contempt in this regard. I could not say this in Committee because at that point I was saying that we would invite the Law Commission to do it. In fact, they have already committed to such a review. We have asked them to add in the breach of anonymity offences, both for Section 5 and related offences.
The noble and learned Lord says “years”. It will take some time, but the alternative is to legislate on a piecemeal basis. I do not want to explain to a victim of FGM who is named why she is being treated less favourably than a victim of any other offence. We want consistency in this area. If we have a Law Commission to ensure that we look at the law holistically in an appropriate way, it will deliver a coherent approach to penalties for all offences involving breach of reporting restrictions.
Moving to Amendments 78C and 78D, the unduly lenient sentence scheme allows anyone—the CPS, victims, witnesses, or members of the public—to ask for certain sentences imposed by the Crown Court to be considered by the law officers, where that sentence is felt to be unduly lenient. I underline that point. Anybody can ask the law officers to consider referring the sentence to the Court of Appeal. I am afraid that a number of my colleagues at the Bar have taken the view that it is somewhat improper for Members of Parliament to invite the Attorney-General so to consider. I underline again that anybody can ask the Attorney-General to consider referring a sentence to the Court of Appeal. That is how the scheme operates. It is then for the law officers to decide whether to refer the case to the Court of Appeal, which may then decide to increase the sentence.
Amendment 78C places a duty on the Secretary of State to nominate a government department to inform victims of the details of the scheme. We recognise the importance of victims being aware of the scheme and being clear on how it operates. However, the duty is not necessary. The revised Code of Practice for Victims of Crime—the victims’ code—which came into force on 1 April, already provides victims with the right to be informed about the existence of the scheme. Furthermore, it includes a requirement for the witness care unit to inform victims about the scheme following sentencing. Therefore, that provision is unnecessary.
Turning to the timing point, an application by the law officers to the Court of Appeal must be made within 28 days of sentencing. The absolute time limit of 28 days reflects the importance of finality in sentencing. That point of finality in litigation is sometimes marked by a Latin tag, which I will not trouble your Lordships with, but it is particularly important when it comes to sentencing. While we will keep the operation of the scheme under consideration, including the time limit, there are no current plans to remove the certainty of an absolute time limit in any circumstances.
Amendment 78E would expand the circumstances where a whole life order would be the starting point to include cases of murder involving the abduction and sexual assault of a single person. I explained in Committee that of course we sympathise enormously with the concerns that underpin this amendment, but we do not agree with its purpose. Our current sentencing framework can and does respond to these horrendous cases. The courts can, and do, impose lengthy sentences that fully reflect the gravity of this type of offending and the appalling harm that it causes to families of victims and the community generally.
All those convicted of murder already receive a mandatory life sentence. The murder of a single victim involving sexual conduct has a starting point, when determining the minimum time to be served in prison—the tariff, as it is sometimes called—of 30 years. This can be increased depending on the circumstances of the individual case and the presence of aggravating factors. Additionally, as was demonstrated by the sentencing of Wayne Couzens for the horrific murder of Sarah Everard, there is an existing discretion to impose a whole life order if the seriousness of the individual case is exceptionally high, which Wayne Couzens received.
Amendment 82B, tabled by the noble Baroness, Lady Brinton, seeks to prevent the release on home detention curfew of any offender who has previously breached a protective order and who has been convicted of offences relating to stalking, harassment, coercive control, or domestic abuse. I set out in Committee the importance that we attach to this area. The noble Baroness was quite right to refer to my comments made in another part of the Palace at an event organised by the right reverend Prelate the Bishop of Gloucester, and I stand by them.
I have asked officials to consider the risks presented by such offenders, to ensure that all appropriate safeguards are in place to protect victims and the public and to ensure that unsuitable offenders are not released on home detention curfew. Once that review is complete, I will update the noble Baroness and the House. Despite the fact that we were not able to arrange a meeting in the last 48 hours, I or the Minister for Prisons will be happy to meet with her. I do not believe that legislating on this matter is proportionate or effective in safeguarding victims. The safeguarding can be achieved via the policy framework, without the need for any change in statute.
We are committed to ensuring that serious sexual and violent offenders serve sentences that reflect the severity of their crimes. For those reasons, I urge noble Lords not to press these amendments.
Baroness Chapman of Darlington (Lab)
I am grateful to noble Lords, and particularly to the Minister for his comments in response to the amendments tabled by my noble friend Lord Ponsonby.
On Amendment 78A, clearly it is right that mitigating factors are taken into account and that remorse, guilty pleas and assistance with prosecution are considered; no one is arguing anything to the contrary. However, I put it gently to noble Lords that it is important that sentencing adapts as attitudes in society evolve. I suggest to those noble Lords who were so outraged that we might want to change the system with regard to rape that attitudes towards that crime have changed. That is a very good thing and we should welcome it. However, public confidence in how rape is handled is in crisis.
All rape is violent, often with life-changing consequences for the victim, and we will continue to press the Government on this. I am pleased that women are speaking up with confidence and demanding this kind of change. Speaking personally—although I know that is not something you can properly do from the Dispatch Box—I find the frequent emphasis in this discussion on the idea that there are different degrees of rape, that “There’s rape and then there’s rape”, troubling. As I say, though, we will return to this in future because the women of this country will demand that of us.
Viscount Hailsham (Con)
On the question of a spectrum of culpability, does the noble Baroness not realise that the sentencing guidelines take that as their premise? That is why the spectrum in custodial sentences is between four and 19 years, because the sentencing guidelines recognise that there is a broad spectrum in culpability and that, as well as aggravating circumstances, there can be mitigating circumstances.
Baroness Chapman of Darlington (Lab)
Of course I realise that; I have read the sentencing guidelines. All I am saying is that attitudes in the country outside this House have changed, and the view of a minimum sentence of four years, as opposed to a minimum of seven, is changing, and we are reflecting that in our amendment. That is the point that I am making. I beg leave to withdraw the amendment.
“Maximum sentence for publishing the identity of a sexual offences complainant
(1) Section 5 of the Sexual Offences (Amendment) Act 1992 is amended as follows.(2) In subsection (1), leave out “and liable on summary conviction to a fine not exceeding level 5 on the standard scale”.(3) After subsection (1), insert the following subsection—“(1A) A person guilty of an offence under this section is liable—(a) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine not exceeding level 5 on the standard scale, or both, or(b) on summary conviction, to imprisonment for a term not exceeding twelve months, or a fine not exceeding level 5 on the standard scale, or both.””
Baroness Chapman of Darlington (Lab)
I will explain why we want to move this amendment. I am afraid we are unpersuaded by the Government’s response on this issue. There are many victims of this problem today and they could be better protected now. The failure to do so leaves complainants subject to publication without adequate justice, and that is putting people off reporting crime. This is a problem today, and the Minister’s position—the inability to fix it for all complainants—is, frankly, beneath him. I would like to test the opinion of the House on this issue because I think there is sufficient concern about it in many areas that we really need to make some progress on it now. I beg to move.
The Deputy Speaker (Lord McNicol of West Kilbride) (Lab)
My Lords, there being an equality of votes, in accordance with Standing Order 55, I declare the amendment disagreed to.
Baroness Noakes
“Maximum sentence for an offence under section 70 of the Sexual Offences Act 2003
In section 70 of the Sexual Offences Act 2003 (sexual penetration of a corpse), in subsection (2)(b) (penalty on conviction on indictment), for “2” substitute “10”.”
Baroness Noakes (Con)
My Lords, this is a probing amendment. It increases the maximum sentence for the offence of sexual penetration of a corpse in Section 70 of the Sexual Offences Act 2003 from two years to 10 years.
I am tabling this amendment in the light of the appalling case of David Fuller. He was convicted month of the murders of two young women more than 30 years ago. When the police finally caught up with him, thanks to advances in DNA techniques, they discovered in his home evidence of some appalling sexual crimes, including 4 million images of sexual abuse. The most terrible of these images had been created by David Fuller himself. He had recorded himself sexually abusing the dead bodies of women and girls in the mortuary of the Tunbridge Wells NHS hospital—both the old one in Tunbridge Wells and its replacement in Pembury. This is where I live, so it is an issue that is close to my heart. It is also close to the heart of my right honourable friend Greg Clark, the MP for Tunbridge Wells.
Fuller had raped the dead bodies of more than 100 women and girls over a period of 12 years up to 2020. The youngest was nine; the oldest 100. Sometimes he repeated the offence on the same body. He kept records of his acts. There are no words to describe the depths of this kind of depravity.
Last month, Fuller pleaded guilty to the two murder charges, to 33 counts of the sexual penetration of a corpse involving 59 individual victims and to some other important charges. Unsurprisingly, this afternoon he was given a whole life sentence.
This case has shone a spotlight on the maximum sentence of only two years which is available for the offence of sexual penetration of a corpse. The judge today emphasised that there is no sentencing guideline for this offence. She in fact gave Fuller a 12-year concurrent term for the totality of his other crimes.
Lord Sandhurst (Con)
My Lords, I support the amendment. I am conscious that the Bill is on Report. This is a probing amendment, but it raises an important and pressing point. I hope I shall be short. I make four points.
If this offence is taken on its own, I think we would all agree that two years is plainly an insufficient maximum. Let us assume for these purposes that an offender comes before the court, is not a murderer and has not been a party to the death of any victim, but has had access to the bodies and has done what Mr Fuller did. It appears that he committed many offences of sexual penetration of corpses to which he had access by virtue of his employment. It may not be common, but we simply do not know what someone may do in the future. It is an appalling prospect, but we simply cannot exclude the possibility that a non-murderous necrophiliac might offend in a similar way. I suggest that we must do all we can both to deter and to punish in that event. If there is no murder but a large number of offences, is 10 years really too long a maximum sentence for someone such as Mr Fuller?
I talk about punishment because it is impossible to contemplate the horror of a relative who learns that their deceased loved one was defiled in this way. We as society owe it to such a relative, who is truly a victim, to show that we respect the dead and will mark such behaviour in a way that demonstrates that respect.
When I was approached by the noble Baroness to help her on this matter, I asked the Library to do some research. It very helpfully uncovered materials relating to the debate that took place in 2003. There was the Home Office’s consultation paper of July 2000, and section 8.6 addressed this issue. It disclosed that at that time, somewhat to the authors’ surprise, there was no offence that made necrophilia illegal. The consultation disclosed that there was
“no firm evidence of the nature or the extent of the problem”,
but agreed that
“human remains should be shown respect”
and noted that
“relatives and friends would be deeply distressed”.
In section 9.2, that consultation addressed sentences for a range of offences. From my reading of the Government’s response in November 2002—I do not criticise anyone for this—it appears that the authors at that point may have proceeded on the assumption that the offence would follow and be additional to a charge of murder or manslaughter. In other words, it was not looked at on the basis of a stand-alone sexual deviant.
If we are looking for a comparator, brief research has disclosed what happens in Canada, where the offence carries a maximum sentence of five years. I question whether even that is sufficient in the worst case, but I leave it to others to consider.
To conclude, this is a most unpleasant criminal offence. It must be reconsidered as a matter of priority. The current sentence for the stand-alone offence is simply too low. I urge the Government to address this with dispatch and not to delay once the immediate clamour over the Fuller case has died down. It is not difficult. It simply needs a suitably steep maximum sentence to mark its gravity.
Lord Wolfson of Tredegar (Con)
My Lords, Amendment 78DA, moved by my noble friend Lady Noakes, is in regard to the maximum penalty for the sexual penetration of a corpse. I first place on record my shock and horror at David Fuller’s horrifying offending; my thoughts are with the victims and their families. I assure the House that the Government are committed to looking in detail at what happened in this appalling circumstance to ensure that it simply never happens again.
As we have heard, just this afternoon Mr Fuller has been sentenced to a whole-life term of imprisonment. An investigation into other aspects of his offending is ongoing. The House will understand why I will not comment on the sentence passed in this case, but I thank all those in the police, the CPS and the wider criminal justice system for bringing him to justice.
The Government have announced an inquiry into the events that occurred in hospitals in Tunbridge Wells. This will help us understand how the offences took place without detection in the trust, identify any areas where early action by the trust was necessary and consider wider national issues, including for the NHS as a whole. The Government have already made good progress in establishing the independent inquiry. I understand from colleagues in the Department of Health and Social Care that the inquiry’s chair, Sir Jonathan Michael, has developed draft terms of reference already and will engage with the families on them in the new year before they are published.
As well as that inquiry, I assure the House that the Ministry of Justice is reviewing the existing penalties available for the offence of sexual penetration of a corpse. The statutory maximum penalty for that offence is, as my noble friend indicated, two years’ imprisonment.
I reassure your Lordships, however, that that is the statutory maximum penalty for one offence. Where the offence is sentenced alongside other offences, each offence will be sentenced individually. The overall sentence passed will therefore reflect the totality of the offending behaviour.
I also pay tribute to my noble friend’s work in supporting the inclusion of this offence when it was debated during the passage of the Sexual Offences Act 2003. It was created primarily to deal with a different circumstance—different circumstances were in mind at the time. The focus was on the situation where a murderer abuses the corpse of their victim after death, and it was therefore perhaps thought likely that those sentenced for this offence would, for the most part, be sentenced at the same time for another offence, such as murder—which of course carries a mandatory penalty of life imprisonment. As we have seen in the Fuller case, that is sometimes the case but may not always be so.
It is therefore right that, in view of this depraved—which is not a word I use often, but I think is appropriate in this context—and horrifying offending where we have seen an individual commit this offence independently of other offending in relation to that victim, we review the current statutory maximum penalty for the Section 70 offence. It may also be that this review, and the public inquiry into the offending in hospitals in Kent, will highlight other issues that need to be considered relating to the existing offences that deal with sexual abuse of corpses.
To be clear, I am not saying—I cannot this afternoon —that the Government will adopt the specific approach taken in this amendment, but neither do I rule out future changes to the maximum penalty. Rather, we are reviewing the maximum penalty in its context, and speaking with DHSC officials to ensure that learning from the inquiry into events in hospitals can be taken into account into our review of the penalty. That is the best way to reach a considered conclusion about how to amend Section 70 appropriately.
As to timing, the inquiry into the events at hospitals in Kent is due to publish interim findings in the new year, with the full report at a later stage. I will write to my noble friend, and place a copy in the Library, with any further information on the inquiry’s timescales as soon as that is available. Our review of the available maximum penalties is likely to follow a similar timescale, to ensure that findings from the inquiry can be taken into account in our conclusions. It is therefore important that we await the findings of the inquiry before amending the current legislation. I listened carefully to how my noble friend opened this short debate, and I therefore ask her formally to withdraw this amendment.
Baroness Noakes (Con)
My Lords, this has been a short but important debate, and it will be particularly important for the families of those who died who were abused by that man. Clearly, they have suffered hugely. My noble friend is right to point out that I made clear that this was a probing amendment and therefore have no intention of pressing the amendment. My main purpose was to ensure that the Government are set upon dealing with this issue properly, and I was much reassured by what I heard from my noble friend. With that, I beg leave to withdraw my amendment.
Lord Blunkett
“Independent commission to consider proposals for reform of the IPP sentence
(1) Within three months of the passing of this Act, the Secretary of State must establish an independent commission to consider proposals for reform of the imprisonment for public protection (”IPP”) sentence.(2) The remit of the commission must include, but is not limited to, the consideration of proposals that—(a) would allow for existing IPP sentences to be terminated and for their replacement by arrangements appropriate to the circumstances of the individuals concerned; and(b) have regard to the interests of both public protection and meeting but not exceeding the original punitive intention of the sentence imposed.”
Lord Blunkett (Lab)
My Lords, first, I thank everyone who has made it possible to get to this group of amendments before the business at 7.30 pm. I repeat the thanks, in which I think all others joined on 15 November, to those families and individuals who have been campaigning but also to Members from across the House. I am deeply grateful for the commitment of people in every group of your Lordships’ House and, I have to say, to those who have stayed this evening on the eve of recess. I hope that, by the time that the Minister has responded, it will be possible to see at least a modest way forward. I shall speak very briefly to allow that to happen in good time, so that we can conclude this debate before 7.30 pm.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, in speaking only to Amendment 80, I mention that I also support Amendment 81 in this group. Amendment 80 is the one amendment in this entire Bill that could reduce—if only by a tiny fraction—the prison population, which most of this Bill is, of course, calculated to enlarge. More directly and importantly, it would go some small way towards ending a long-standing and ever-growing injustice, now recognised by many as the greatest single stain on our criminal justice system with regard to the cohort of IPP prisoners.
Amendment 80 applies only to some of the 1,700 or so IPP prisoners still in prison after the abolition of the whole discredited scheme nine years ago by LASPO. The amendment applies just to two categories within the 1,700: those who have now served more than 10 years beyond the tariff sentence—in other words, more than 10 years over the proper punishment for their offending —and those who have now served more than the statutory maximum determinate sentence prescribed by law for their offence. For these people this is manifestly preventive detention—frankly, it is internment by another name.
Your Lordships may like to know that, of the 570 IPP prisoners who have served more than 10 years beyond tariff, 200 had tariffs of less than two years and another 326 had two-to-four-year tariffs, so only very few—44—had more than four years. Your Lordships may also like to know that the UK has more indeterminate sentence prisoners, lifers and those on IPP, than any other of the 47 countries in the Council of Europe including Turkey and Russia.
Unlike life sentence prisoners, who are serving life for the gravity of the crimes they have actually committed, IPP prisoners are there simply for what they might do in future—what, in short, they cannot prove to the satisfaction of the Parole Board that they would not do on release. The uncertainty, hopelessness, utter despair and sheer misery of the prisoners and their families need no emphasis. It is small wonder that there have been many suicides and that the rates of self-harm among these prisoners are more than twice that of life sentence prisoners.
In urging this amendment, I stress the essential modesty of the proposal. It is purely a reversal of the burden of proof. It still leaves the public protected against those who can be shown to be dangerous. If the prison authority responsible for their continued incarceration, with all the various reports from prison staff, medics and so forth, can still show that the prisoner would pose an unacceptable risk on release, then they will not get out. The amendment goes nothing like as far as many would wish and think appropriate.
When the noble and learned Lord, Lord Clarke of Nottingham, who, alas, is not in his place, abolished this scheme in 2012, I understand he wanted to abolish it retrospectively as well as prospectively but was not permitted to do so. Michael Gove, after ceasing to be Lord Chancellor. recognised the intrinsic injustice in the Longford lecture. Matthew Parris recently wrote in the Times how the Government need the guts to reassess these cases.
I end, as I did in Committee, with this question: suppose one of these IPP prisoners with a tariff of a one-year sentence representing his criminality, is more than 10 years beyond that and still unable to discharge the burden of showing the Parole Board that he can be safely released without risk. What should happen? Should he remain incarcerated for another five, 10 or 20 years, or do we as a nation accept lifelong internment for this group? I hope not.
Lord Moylan (Con)
My Lords, I will speak to Amendment 81 in my name which is substantially the same as one I tabled and withdrew in Committee. I am grateful for the support of my noble and learned friend Lord Garnier, the noble Lord, Lord Blunkett, and the noble Baroness, Lady Burt of Solihull. We are dealing with a shame and a scandal. I shall not dwell on the nature of it because that has been well spelled out by the noble and learned Lord, Lord Brown of Eaton-under-Heywood. I shall come to the substance of the amendment because, of the three tabled on this topic, it is the one that is the most modest and helpful—indeed, it is intended to be most helpful to the Government.
Unlike Amendment 80, referred to by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, it does not concern those in prison serving an IPP, only those living in the community on licence—that is, those who have been released after the Parole Board has resolved that they do not represent a serious risk to public safety. At the moment, these persons are potentially subject to a lifelong licence. They can be recalled to prison for a breach of the licence conditions at any point. The only way the licence can be terminated is for the individual to apply to the Parole Board for a licence review after the expiry of the qualifying period, which is currently set at 10 years.
The Government have stated that they wish those reviews to be automatic in future, not requiring an application from the prisoner. My noble friend Lord Wolfson of Tredegar said on 21 July in a Written Answer to the noble Lord, Lord Blunkett,
“From September this year, officials will refer automatically to the Parole Board the case of every offender serving the IPP sentence who has become eligible to apply for termination of his/her IPP licence.”
I take that as a definitive statement of government policy: automatic referral. But yesterday, when I attended a meeting of the Justice Select Committee in the other place—referred to by the noble Lord, Lord Blunkett—and a question about this was put to Sonia Flynn, chief probation officer, she did not reply using those words. She said something rather different. She said that from September, the probation service had started proactively encouraging those who qualified to make an application. She had no explanation when asked by a member of the committee why, of the 500 persons currently entitled to apply for their licence to be terminated, only 20 had applied.
There is a good reason why the probation service is not carrying out the policy in the terms set out by my noble friend. Close examination of the current legislation makes it clear that the review can be undertaken only on the prisoner’s application. The Government cannot, therefore, make an automatic referral to the Parole Board without the prisoner’s active collaboration.
Lord Judge (CB)
It is such a folly, is it not, for legislatures to impose strict, rigid, statutory tramlines on sentencing decisions? That is what this problem stems from and I very much regret that the current Bill finds some more rigid, statutory tramlines to affect the sentencing decision.
What is the problem with this? It is very complex but I will try to sum it up. With the IPP, many of those subject to it or sentenced to it found that their dangerousness as an individual was being predicted on the basis of strict statutory assumptions of general application. That is not the way that we should legislate.
No one wants anybody dangerous to be released. I do not mean to be light-hearted about this, but nobody has ever thought that the noble Lord, Lord Blunkett, was a soft, lily-livered—I do not know what the right epithet would be, but he has never been one of them. He was responsible for this Act. He was the Minister and, if I may say so, I greatly admire his courage in coming to Parliament to say that something went wrong.
Lord Judge (CB)
We all know that IPPs are a failure. They were abolished years ago. They are not available. Why on earth do we continue to keep people subjected to them, incarcerated, unless they are indeed dangerous.
May I take a completely trivial example? My daughter is in South Africa. She hit the red line four days after the new virus appeared. If she comes back, she is subjected—or was—to 11 days’ incarceration in a hotel, which is trivial compared to anybody in prison. That has changed and the red lines have gone. Is it really being suggested that those who were in a hotel, in quarantine, should now continue to be in quarantine although people coming in from South Africa will no longer be subjected to it? Of course not; it is completely daft.
I regret to say that I think the current situation is daft. We really must try to help the Government get rid of this absurdity and—can we also remember?—enable justice to be done to a large number of individuals.
Lord Garnier (Con)
I think the last point made by the noble and learned Lord, Lord Judge, needs to be said often and loudly. The noble Lord, Lord Blunkett—I praised him in Committee—was brave enough to admit that this form of sentence was wrong. My noble and learned friend Lord Clarke of Nottingham abolished it when he was Secretary of State for Justice, but we are left with what I may call the detritus of this admitted mistake. What we must do now is clear it up. We have got rid of the sentence. As the noble and learned Lord said, it is no longer available. We are left with, as the noble and learned Lord, Lord Brown, just pointed out in a highly effective speech—and in Committee —hundreds of people remaining in prison long beyond their punishment tariff and others, as my noble friend Lord Moylan pointed out, on licence well beyond any sensible period.
I am a signatory to my noble friend’s amendment but, as I said in Committee, I could have signed any of the amendments to do with reforming IPPs. I say, as both a Member of this House and as a fellow trustee of the Prison Reform Trust with the noble Lord, Lord Bradley, that we have got to the stage now where nobody who has sense of justice or common sense could defend what we now have. All we are looking for is a way in which the Government can complete the task that my noble and learned friend Lord Clarke began when he was Secretary of State for Justice and which for some reason has not been completed in the eight or so years since the sentence was abolished.
Now is the time. If we are to have a Bill as huge as this, let us make good use of it by adding into it just provisions that do justice and which prevent men and women being incarcerated or on licence still for no very good reason. If I may say so, let us also get rid of this provision that is not doing the victims of their crimes any good either. Victims of criminal activity want justice both for them and for the defendant, but this is not justice for either the defendant or the victim.
Viscount Hailsham (Con)
My Lords, I rise briefly to support all three of the proposed new clauses, most particularly those proposed by Amendments 79 and 80. Looking back on my time in Parliament—nearly 40 years now—I think this was the most unfortunate decision taken in the criminal system. I pay tribute the noble Lord, Lord Blunkett, for coming to this House and putting before us his proposed new clause. Indeed, I pay tribute to the noble and learned Lord, Lord Brown, for his proposed new clause as well. A huge injustice has been done; as a parliamentarian, I view our contribution to it with a great sense of shame and embarrassment.
At the end of last week, a prisoner wrote to me to tell me that he had a tariff of two years imposed on him and has now served 14 years. I do not know the detail of his case but it is deeply troubling that that happened. In fact, I have referred his letter to the chairman of the Parole Board; I very much hope that she will look into it carefully. I can do no more. However, the truth is that the proposed new clauses before this House give us an opportunity to move forward. My belief is that they do not go anything like far enough, but we have to take the steps that are available.
I hope that my noble friend the Minister will respond sympathetically to the issues raised. I must say, if the opinion of the House is sought on any of these proposed new clauses, I will support them.
Lord Beith (LD)
My Lords, I certainly want to hear what the Minister has to say because I will go home very uneasy indeed if I pass up the opportunity for a vote to make it clear that this House rejects the system that has developed into a gross distortion of both our justice system and our sense of values about the circumstances in which someone can be incarcerated and those in which they are entitled to recover their freedom. We cannot tolerate this continuing. There is a hope that the Minister will say things that will enable us to feel that we are making some progress, but some of us will not sleep well tonight if we leave this place without being sure that some progress will be made.
Baroness Jones of Moulsecoomb (GP)
I will be brief. There is an IPP fact sheet on the Ministry of Justice website that describes IPP sentences as “unclear and inconsistent” and says that they are not working because they
“have been used far more widely than intended, with some … issued to offenders who have committed low level crimes with tariffs as short as two years.”
I do not understand why the Government would continue to leave people to rot in prison when they have scrapped the system. Perhaps the Minister could explain that particular conundrum. I have no legal training but I think I have an awful lot of common sense; to me, this is a clear injustice.
On rotting in prison, I have had a letter from the mother of an IPP prisoner. She said that two of his fellow IPP prisoners committed suicide because they felt that there was nothing left in their lives. Clearly, this is an injustice. Are the Government going to do something?
Baroness Burt of Solihull (LD)
My Lords, I just want to associate myself with the comments of my noble friend Lord Beith. I will reserve my comments until after the Minister has spoken.
Lord Wolfson of Tredegar (Con)
My Lords, I am extremely grateful to the various Members of the House who have spoken. These amendments relate to offenders serving sentences of imprisonment for public protection, known as IPPs. We had a heartfelt and powerful debate on this issue in Committee; the mood during today’s debate has been equally apparent. I should say that, throughout this time, I have personally received a lot of emails from families affected by IPP sentences. I put on record that I have read all of them, even if I cannot reply to them all individually.
Let me go through the amendments and set out the Government’s position clearly. First, I make it absolutely clear that the Government recognise that more work needs to be done in relation to this group of prisoners. On that basis, the Government intend to bring forward an amendment at Third Reading. I will give details of that amendment in a moment; let me first set out the work done so far.
Lord Moylan (Con)
Before my noble friend sits down, I heard what he said, but if the Justice Select Committee in the other place was to recommend a reduction in the qualifying period from 10 years to five years, would he at least give his personal undertaking to do his very best to ensure that the Government found an opportunity to legislate for that at the earliest possible time?
Lord Wolfson of Tredegar (Con)
I am not quite sure of the meaning of a personal undertaking from me to ensure that the Government will find an opportunity. I hope the House will appreciate that I have personally put a lot of time and effort into this matter. When I see the Justice Select Committee’s report, that time and effort will not diminish.
Lord Blunkett (Lab)
My Lords, I am not sure this is protocol, but it might help progress if I indicate to the House that, in discussions with the Minister, we had come to an understanding that we were taking steps forward in a way that would start to unlock this problem. In what he has just read out, the Minister has fulfilled what he agreed with me, and I trust him. On that basis, I recommend to colleagues that we accept the offer of the Third Reading amendment and the commitments that have been made on both procedure and recall, and we move forward on that basis this evening.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, I cannot pretend to be wholly content, let alone happy, with what the Minister has been allowed to say today. It falls dramatically short of providing any sort of an answer to the final question I asked earlier: are we to keep these post-tariff detainees in effect endlessly and for life? It is surely no answer to my point to say that reversing the burden of proof is unlikely to make any difference. That is even less a reason to object to this amendment.
I repeat that I am very far from happy but, as the noble Lord, Lord Blunkett, said, we have at least got some assurances, for the first time, that Ministers will look again at the plight of these IPPs and make some improvements at least to the recall regime—hopefully the first step in a re-evaluation of the entire remaining IPP problem. The other consideration that now weighs on me is the point that has been made that the Justice Select Committee in the other place is now deep into its full-scale IPP inquiry and its eventual report must surely inform the Government’s approach. In the meantime, alas, it provides something of an excuse for the Government to do little of great note.
It is clear that there is huge support for Amendment 80 around the House. What is ultimately needed is political will. For my part, let us hope that the Select Committee will call for proper reform and for the political will to deal with it, and that that is now shown. Meanwhile, I confess that I am deeply disappointed, as will be the IPP prisoners and their families. As the noble Lord, Lord Blunkett, points out, I have no alternative but to not press my Amendment 80.
Lord Blunkett (Lab)
On the basis of the Minister’s statement, and not wanting a pyrrhic victory, which would end in defeat and even greater hopelessness for those we seek to help, I beg leave to withdraw Amendment 79.
Police, Crime, Sentencing and Courts Bill
Wednesday 15th December 2021
(2 years, 4 months ago)
Lords ChamberRead Full debate Police, Crime, Sentencing and Courts Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 72-III(a) Amendments for Report (Supplementary to the Third Marshalled List) - (14 Dec 2021)
22:16 - Division on Amendment 85 - Ayes: 30 / Noes: 79 - Amendment 85 disagreed.
“Discretionary early discharge of prisoners
In section 23 of the Criminal Justice Act 1961, after subsection (3) insert—“(3ZA) A Minister of the Crown may by regulations establish pilot schemes under which, where a prisoner is to be discharged on a Friday or the day before a bank holiday, they may at the discretion of the governor of the prison be discharged up to two working days earlier than the day on which the prisoner would otherwise be discharged, provided that—(a) it would be helpful for the prisoner’s reintegration into society, and(b) the prisoner has served a custodial sentence of more than 30 days. (3ZB) The power to make regulations under subsection (3ZA) expires after the period of two years beginning with the day on which this Act is passed, and any pilot scheme must have concluded within that period.””Member’s explanatory statement
This amendment would enable trials of schemes for early discharge from prison which would reduce the bunching of releases on Fridays to take place during a two-year trial period.
The Deputy Speaker (Baroness Fookes) (Con)
There is a slight mistake on the Marshalled List. It should read “After Clause 125”.
Lord Hodgson of Astley Abbotts (Con)
My Lords, Amendment 82 is concerned about Friday prisoner releases, or perhaps I should say the bunching of releases of prisoners on Fridays. I place on record my thanks for the support that I have received from around the House, from the noble Baroness, Lady Lister, and the noble Lords, Lord German and Lord Ramsbotham, and from NACRO, which has done a lot of work and research on this subject over many years.
There is always the danger at this stage of a Bill’s proceedings that you just rehearse familiar arguments and regurgitate facts that have been introduced before. I want to avoid that tonight and instead state briefly the central thesis that concerns me and my fellow supporters; state how we have changed and amended it to meet the points made by the Government at the earlier stage of the Bill; and then explain why we have retabled it in this new form today.
The basic thesis is that when you are sentenced, the court sets a calendar date for your release, not a day of the week. If that calendar date falls on a Saturday, a Sunday or—if it is a bank holiday—a Monday, the prisoner will be released on the previous Friday. A quick bit of mental arithmetic will show noble Lords that some three-sevenths of all prisoners are likely to be released on a Friday. Equally, it is clear to us all that Friday is the last day of the week and so, as the afternoon wears on, the local authority and voluntary services begin to wind down. Because a greater number of prisoners are being released, inevitably they are reaching the places where they can access those services later, so they are even more likely to be closing down. Added to that, the prisoner may well have been released from a prison that is some way from his home town, and in the event perhaps he has no home anyway.
Wrap all that together with the discharge grant, which has now been raised from £46 to £76, a sum on which he or she has to live for two or three days, after allowing for any travel expenses that may have been required. The result is that prisoners who may have no accommodation or support, facing the challenges of freedom after a period of incarceration, are having to do so on very limited financial resources. I suggest that it would be hard to construct a set of circumstances in which the temptation to reoffend could be greater.
In Committee, we argued that giving prison governors five-day flexibility on the day of release could help to tackle this issue of bunching and so improve the opportunities for rehabilitation and reduce the chances of reoffending. In his response, my noble friend Lord Wolfson, while recognising the force of the amendment and that it had a core kernel of truth that needed to be addressed, argued—quite persuasively, in my view—that the amendment was deficient in three ways. First, he said that efforts to avoid the effects of Friday bunching needed to be focused on prisoners where the chances of rehabilitation were greatest—a fair point. Secondly, he said that a five-day release window was too long—I understand that. Thirdly, he said that was particularly significant in the case of short custodial sentences. So we sharpened our pencils and tabled a revised amendment to meet those criticisms.
Baroness Lister of Burtersett (Lab)
My Lords, I speak in support of Amendment 82, to which I was very pleased to add my name. I applaud the noble Lord, Lord Hodgson of Astley Abbotts, for his tenacity on the issue of Friday releases. I am also grateful to the Minister for meeting us last week and for his helpful letters on universal credit—which I am pleased to see is also addressed in the recent prisons strategy White Paper—and on how the power to avoid some Friday releases has worked in Scotland.
However, as I said to the Minister at our meeting, the latter tells us about the “what” of the small number of releases made under this power but nothing about the “why”. While I quite understand why the Scottish Prison Service could not, as the letter said, comment on the facts of individual cases, I would have thought it could have pulled out some patterns to help our understanding. Such an analysis would surely be of value to the Home Office, so I hope it will pursue the matter further. The fact that the Scottish Government are currently consulting on the possibility of ending Friday releases suggests they are not happy with the current—I would say—overbureaucratic procedures.
It is very encouraging that, as we have heard, the prisons strategy White Paper shows that the Home Office has been listening to concerns raised about Friday releases. I quite understand why the Minister does not want to pre-empt the outcome of the consultation, as he explained when we met. Hence, as the noble Lord, Lord Hodgson, noted, the amendment has been carefully drafted so as not to do so. Indeed, the adoption of pilots as envisaged would provide useful evidence to guide the Government when they are ready to legislate on the matter. Like that of the noble Lord, Lord Hodgson, my understanding is that it probably will require legislation.
The pilots could be established at the end of the consultation period so that they could take on board views expressed during that consultation. However, we have no idea when legislation will be possible because—even if everything goes smoothly and even with the best will in world—another legislative opportunity might not come along for quite a long while, as has already been suggested, in the wake of what is an extremely large Home Office Bill. It surely makes sense for the Government to support this amendment, which, by enabling the adoption of pilot schemes in the short term, contributes to longer-term, evidence-based policy-making. It could make the world of difference to a number of prison leavers and their reintegration into society.
I hope therefore that the Minister will accept it or at least the principle of it and, as has been suggested, come back at Third Reading with the Government’s own amendment. If he does not, I fear it will send out a message to those working on the ground that, despite the consultation, the Government are not in fact really interested in evidence and how best to address speedily the problems, which they now acknowledge exist, created by Friday releases.
Baroness Jones of Moulsecoomb (GP)
My Lords, when I was a child and my parents stopped me doing something I would say “That’s not fair” and they would say “Well, life isn’t fair.” I would argue that this House is where we can make life fairer and obviously Friday releases are not fair. I congratulate the noble Lord, Lord Hodgson of Astley Abbotts, on persisting because this is an injustice, and it is a relatively small fix—I would hope.
I understand the point about consultation, but we all know that it is not fair. This amendment is a simple practical solution to the problem. The noble Lord, Lord Hodgson, said “What’s not to like?” There is something not to like: it gives Ministers discretion, whereas I think that they must implement these schemes, so I am less giving than the amendment.
If you want to be tough on crime and want that to be your legacy, you have to break the endless reoffending cycle and give people the best opportunity you possibly can to reintegrate with society. Friday releases are the polar opposite of that. They make life much harder for released prisoners before they have even got on their feet. It is obvious that this has to change.
Baroness Bakewell of Hardington Mandeville (LD)
My Lords, I raised the issue of Friday releases at Second Reading and in Committee. I thank the noble Lord, Lord Hodgson of Astley Abbotts, for pursuing this issue now we are on Report. I agree wholeheartedly with his remarks. I was encouraged in Committee by the number of noble Lords who supported this amendment.
Some prisoners are lucky in that their families keep in touch with them while they serve their sentences. This means that on release they have somewhere to go. Others find that their friends and family no longer wish to be associated with them. It is not for me to comment on this aspect. It is those without support mechanisms on the outside that this amendment seeks to assist.
I will not repeat the remarks I made in Committee but just say that even the most well-organised and enthusiastic local authority housing department will have difficulty finding a suitable place if someone turns up at 3 pm on a Friday afternoon looking for accommodation. A roof over their head may be found but it may not be suitable due to previous difficulties such as drug and alcohol addiction. They may have been able to get themselves off their addiction during their time in prison but finding themselves in an overnight hostel on their release is not conducive to maintaining their willpower to remain clean and sober, or to their rehabilitation.
We are not suggesting that a definitive release date is suggested at the time of sentencing; that would be wholly inappropriate and unreasonable. But we are suggesting that prison governors should have discretion over the final days of the sentence so that the release date is not on a Friday, weekend or bank holiday for those without friends and family to support them, and that local authorities can be notified when someone is due to be released who may not have accommodation to go to. This seems to be a very reasonable way of ensuring that those released from prison have the best possible chance to keep their life on track and move forward positively. The prison strategy is welcome but waiting two years before tackling this issue of Friday, weekend or bank holiday releases is unacceptable.
Baroness Hamwee (LD)
My Lords, I do not disagree with a word of what has been said but regarding “What’s not to like?”, what I do not like is looking at the symptoms rather than the cause of this. I have understood over many years that the problem arises because there is no—I do not like the word—“upstream” work undertaken to support prisoners coming up for release. It needs a lot of preparation if the situation that my noble friend Lady Bakewell has just described is not to be encountered. Proper preparation for the release of prisoners is what requires attention. As I said, I do not disagree with a word of what has been said and I am happy to support the amendment, but I hope that what is proposed and what the Government are proposing will not be seen as a panacea because it is not; it is a much bigger problem than just Friday releases.
Earl Attlee (Con)
My Lords, I strongly support my noble friend Lord Hodgson of Astley Abbots. I agree with everything that noble Lords have said so far. I moved a similar amendment in Committee, which worked slightly differently from my noble friend’s amendment.
I am surprised that Ministers have not resolved this issue, especially as it was specifically referred to in the White Paper, which talked about a consultation. Who would be against it? What does the Minister think the cost is if a prisoner reoffends immediately on release and has to be sent to prison again? It costs £40,000 per annum so a six-month sentence could be £20,000, simply for releasing the prisoner on an inappropriate day.
I strongly support my noble friend. If he takes this to a Division, I will support him. I hope that my noble and learned friend the Minister seriously considers reflecting upon this issue and coming back at a later stage. There was a guffaw from the Front Bench.
Earl Attlee (Con)
Maybe the Minister was suggesting something. Seriously, I hope that my noble and learned friend agrees to reflect on this matter, thus avoiding a Division.
Lord German (LD)
My Lords, I too have signed this amendment. It amazes me that we have unanimity on the problem—a problem that may be solved in a number of different of ways but something which everyone thinks is a problem and should be solved—yet we are being asked to wait a number of years for that to happen. Talk to any Minister who has an interest in taking forward a new proposal, and the first thing that they will say is, “Ah, there is a problem with how much legislation we can get through in a year”, or whatever the space of time between the Queen’s visits.
Clearly, it is a difficult route for anyone to take through a Bill. I am sure that there would not be a Bill talking about the Friday release problem as a piece of primary legislation. It is bound to fall within another piece of legislation, but it is surprising that the Government support the principles upon which this amendment is created but cannot find the route for it to happen more swiftly. Let us remember the point that the noble Earl, Lord Attlee, just made, that the cost of not doing something here is immense.
If you stand outside a prison gate at a particular time on a particular week, you will often see people lined up at a bus stop with the same plastic bags containing their total belongings, their total life, and with their £76, if they have not already spent some of it on getting themselves some food. That is how they face the life in front of them. My noble friend Lady Hamwee was quite correct that the absolute certainty of getting this right is in the through-the-gate services which the Government must provide. It is one of the sad reflections that the gate is seen as a wall rather than as a place from where opportunities which commenced inside the prison can continue. I always relay to anyone who wonders about this that about 60% of the people who do my local recycling are on day release from prison and go back in the evening. The advantage is that they can earn a bit of money and eventually find their way back to employment more swiftly.
We know the difficulties here and it surprises me that the Government have not yet taken the view of the noble Lord, Lord Hodgson, who has sharpened his pencil and come up with the right answer. The right answer is that, if the Government want to take this forward in a bigger piece of legislation, in the interim you create the regulatory powers for the Minister to be able to give discretionary powers to the prison governor to identify those prisoners who are most at risk, and give them the opportunity to sort the problems out with local government. We are talking about a simple matter here.
As my noble friend Lady Bakewell of Hardington Mandeville said, local authorities have a major problem with housing. I experienced this with a couple of people coming out on a Friday. They went to the local housing office and were told there was nothing available. They wandered round from one local authority to another attempting to find a link between them, and I honestly do not know where they ended up, but it certainly was not in a place where their lives could continue and they could make a future for themselves.
The challenge in paragraphs 139 and 140 of the prisons strategy White Paper we were presented with is to get on with it—that is the Government’s intention. I am sure the intention is not to hold back from it. This is a straightforward, simple resolution of the problem, which meets all the Government’s objectives. I support this amendment, and I hope the Minister can tell me the answer to the question asked by the noble Lord, Lord Hodgson: what is not to like?
Lord Ponsonby of Shulbrede (Lab)
My Lords, my first interest in criminal justice came about 20 years ago, before I became a magistrate, when I was a trustee of the Wandsworth Prison visitors’ centre. Like all those centres, it was set up on the recommendation of Judge Stephen Tumim, and we dealt with the needs of the families of prisoners. It was then that I first came across this problem—it is not new—and the fact that it is very much the management of small issues that is of central importance for the prisoners and their families.
We owe a debt of thanks to the noble Lord, Lord Hodgson. He has indeed gone into the detail of this problem and come up with a highly practical way of resolving it—tonight, potentially. This House should take advantage of that opportunity. In one sense, I will be intrigued to hear what reasons the noble and learned Lord the Advocate-General for Scotland might give for not pursuing this, but this really is an opportunity. The noble Lord, Lord Hodgson, has addressed the three original points made in Committee in his new amendment, and I really encourage the noble and learned Lord to take advantage of this opportunity.
The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)
My Lords, this amendment seeks to reduce releases on a Friday, or on days before bank holidays, including releases of persons whose release falls on a non-working day, by creating a power for the Minister to establish a pilot scheme via secondary legislation that would grant prison governors the discretion to release earlier in the week, where that would be helpful for the prisoner’s reintegration into society.
I thank all noble Lords who have participated, particularly my noble friend Lord Hodgson of Astley Abbotts and the noble Baroness, Lady Lister, for their constructive and entirely commendable approach to this. As my noble friend put it, rather than simply rehearsing the arguments made at an earlier stage, they have gone away, considered the matter and sought to refine them in answer to the points made by my noble friend Lord Wolfson of Tredegar.
The question posed ultimately by the noble Lord, Lord German, rehearsing the one posed by my noble friend, was: what is not to like? Regrettably, I cannot answer that with “Nothing”, which I suspect was the answer being fished for. I will endeavour to explain why.
The noble Baroness, Lady Lister, highlighted the existence of a discretionary scheme in Scotland, in terms of the Prisoners (Control of Release) (Scotland) Act 2015. We have engaged with the Scottish Government and looked at research carried out by the Scottish Prison Service, and we have seen that the uptake of this discretionary scheme since 2015 is extremely low: only 20 prisoners in that period have been granted early release. I submit that that gives us some indication of the complexities attendant upon the point. It is not as though we have in the neighbouring jurisdiction a solution to this matter which could be taken from the shelf and applied in England and Wales. We plan further engagement with the Scottish Government to look at the matter in more detail, and we will share the results of that engagement with the noble Baroness.
Baroness Lister of Burtersett (Lab)
I am sorry to interrupt, but the Minister seems to be using this as an argument for not accepting the amendment. I have two points. First, there is no reason why the pilot should follow the example of the Scottish procedures, which, to me, seemed very bureaucratic when I read the helpful letter sent by the noble Lord, Lord Wolfson. Surely the whole point of pilots is to think about other ways of doing something before the Government actually legislate.
Secondly, yes, a very small number has been helped. We do not know why that is. Certainly, the letter I was sent tells us the what but not the why. But even a small number being helped is better than no one being helped in the period until such legislation can be passed.
Earl Attlee (Con)
My Lords, if the Scottish experience shows that it is no good, why on earth was it put in the White Paper?
Lord Stewart of Dirleton (Con)
The point is not simply to equiparate the example of Scotland; the point is to emphasise the complexities which underlie the matter. I will expand upon that in the rest of my answer.
We recognise that a high number of releases take place on a Friday. We accept that this can create challenges in some cases when it comes to prisoners accessing services, support in the community and finding accommodation, especially if they have multiple complex needs or a long way to travel to their home address.
I echo the observations from my noble friend Lord Hodgson of Astley Abbotts. As the House now appreciates, our recently published Prisons Strategy White Paper is allowing us to consult on the issue of Friday release from prison. In the course of that consultation, we will invite views on allowing prisoners who are at risk of reoffending to be discharged one or two days earlier, at the discretion of the governor of the relevant institution, where a Friday release can be demonstrated to be detrimental to an individual’s resettlement.
However, it is important that we allow time to understand the views of stakeholders, including operational colleagues, prison staff and the third sector. We submit that it would be premature to provide in statute for the pilot of a new release scheme, regardless of whether a sunset clause is attached—as the promulgators of the amendment have proposed—because, as mentioned, we are in the process of consulting on whether a legislative approach is necessary and, if so, what form such a scheme should take and how it should operate. We want to see the outcome of this consultation before we bring forward proposals. We will issue a response to the White Paper consultation in April 2022, and we will set out our plans on Friday releases moving forward from there.
I would call into question the appropriateness of using a sunset clause in relation to a pilot scheme. Sunset clauses are used only for temporary situations where the provision is needed only for a specific period of time and is not designed to remain on the statute books—for example, in the recent coronavirus legislation. This, I submit, is not appropriate for a pilot, as its purpose is to test out a policy with a view to fully enacting that policy if the pilot is found to work. A sunset clause would not allow this, so that, if we decided the right approach was to pilot and it was effective, we would still be required to wait for the next legislative opportunity to be able to rule it out fully. Therefore, tying our hands to a pilot scheme would likely extend the timescales required to enact full rollout of a new release scheme, if that was decided to be the most appropriate approach.
Baroness Lister of Burtersett (Lab)
Is the noble and learned Lord in effect saying it will be at least two years until there can be legislation, because this only runs for two years?
Lord Stewart of Dirleton (Con)
More than once, even today, this House has emphasised the importance of moving forward on the basis of evidence. The Government’s view is that it is appropriate to complete the consultation proceedings, interrogate them and decide how best to move forward.
Baroness Lister of Burtersett (Lab)
My suggestion was to wait until the end of the consultation, which we are told will be next April, review the evidence, which surely should not take that long, and then run the pilot on the basis of what is found out in the consultation.
Baroness Jones of Moulsecoomb (GP)
When this Government want to bring in some quite nasty legislation, they can move very fast. I do not see why they could not bring in some rather nice legislation very fast as well.
Earl Attlee (Con)
Surely the Minister could introduce at Third Reading an order-making power that would last indefinitely.
Lord Stewart of Dirleton (Con)
My Lords, notwithstanding the fact that we are in the season of Advent, approaching Christmas, I am not prepared to argue on the basis of what is naughty and what is nice, or what is nasty and what is nice.
Baroness Jones of Moulsecoomb (GP)
I am sorry, but I do not understand what the Minister means.
Lord Stewart of Dirleton (Con)
What I mean simply is that the noble Baroness, doubtless with the best possible intention, is using simplistic language to categorise the Government’s legislative approach, which language I do not accept.
On the subject of the holistic approach—if I may put it like that—which was urged upon us by the noble Lord, Lord German, and the noble Baroness, Lady Hamwee, it is indeed important that we acknowledge the funding the Government are making available to provide just such an approach. Our December Prisons Strategy White Paper set out plans to reduce reoffending and protect the public. We will spend £200 million a year by 2024-25 to improve prison leavers’ access to accommodation, employment support and substance misuse treatment, and for further measures for early intervention to tackle youth offending. We will make permanent the additional £155 million per year provided in the years 2019-20 for a new unified probation service to support rehabilitation and improve public protection, which will be a 15% increase on 2019-20 funding. This expands upon our Beating Crime Plan, which was published in July, setting out how we will cut crime and seek to bring criminals more swiftly to justice, reduce reoffending and protect the public. That included new commitments to recruit 1,000 prison leavers into the Civil Service by 2023, to expand our use of electronic monitoring and to trial the use of alcohol tags on prison leavers.
In addition, in January, a £50 million investment was made by the Ministry of Justice to enhance the department’s approved premises to provide temporary basic accommodation for prison leavers to keep them off the streets, and to test innovative new approaches to improve resettlement outcomes for prisoners before and after they were released. Then there is £20 million for a prison leavers’ project to test new ways to prepare offenders for life on the outside and ensure that they do not resume criminal lifestyles, and £80 million for the Department of Health and Social Care to expand drug treatment services in England to support prison leavers with substance misuse issues, divert offenders, make effective community sentences and reduce drug-related crime and deaths.
For the reasons I have outlined, including the overwhelming notion that these questions are not simplistic and we cannot simply move forward without the necessary evidence, as well as the assertion that an appropriate consultation is under way, I invite the noble Lord to withdraw his amendment.
Lord Hodgson of Astley Abbotts (Con)
My Lords, we have had an interesting debate. I thank all those who contributed to it. The noble Baroness, Lady Lister, is always sharp on these matters; she has been well up to her reputation tonight. As the noble Baroness, Lady Jones of Moulsecoomb, said, this is a small fix. As the noble Lord, Lord German, pointed out, it is not an expensive fix either; in fact, it may result in a net gain to the Government because, if we can stop some people reoffending, we will save more money than any cost—there is probably no cost here, or at least very little—and we could be better off as a result. I am grateful to those noble Lords and to the noble Baronesses, Lady Bakewell and Lady Hamwee. My noble friend Lord Attlee asked who is against the idea. I have not yet heard much about people who oppose it. I am grateful to the noble Lord, Lord Ponsonby, for his remarks and the fact that we are better than we were last night.
On my noble and learned friend the Minister’s comments, I do not think that the House buys the Scottish experiment as an example here. It is just not relevant. Nor do I buy the argument about the sunset clause being inappropriate; I think that is just the officials reaching for some reason to try to rubbish this amendment. I accept my noble friend’s point that we need time to understand and his commitment to a consultation finishing by April 2022. Most interesting is the possibility that legislation might not be needed and there might be other ways of achieving what we all wish.
So we have a sort of balance here. On the one hand, an immediate opportunity is being missed and progress seems glacial, to put it no more roughly than that; on the other, we have an encouraging set of statements in paragraph 139 of the White Paper. My judgment as to whether to divide the House on this amendment and possibly damage the concept is that we would really be dividing the House on whether we want to try to create a bridge and find a way to start some work on this project immediately. On balance, the Government have offered us half a loaf. I think we should probably take that half a loaf tonight; I therefore seek leave to withdraw the amendment.
Lord Wolfson of Tredegar
“(6) Regulations under this section are subject to—(a) the negative resolution procedure, where under subsection (1)(b) the regulations specify a period, and(b) the affirmative resolution procedure, in any other case.””Member’s explanatory statement
This amendment requires regulations under new section 395A of the Sentencing Code to be subject to the affirmative resolution procedure if they apply indefinitely.
The Deputy Speaker (Baroness Fookes) (Con)
The noble Baroness, Lady Harris, will take part remotely in the next debate.
Amendment 84
“CHAPTER 3ASSAULTS ON THOSE PROVIDING A PUBLIC SERVICE ETCAssaults on those providing a public service etc
In the Sentencing Act 2020, after section 68 insert—
“68A Assaults on those providing a public service etc(1) This section applies where—(a) a court is considering the seriousness of an offence listed in subsection (3), and(b) the offence is not aggravated under section 67(2).(2) If the offence was committed against a person providing a public service, performing a public duty or providing services to the public, the court—(a) must treat that fact as an aggravating factor, and(b) must state in open court that the offence is so aggravated. (3) The offences referred to in subsection (1) are—(a) an offence of common assault or battery, except where section 1 of the Assaults on Emergency Workers (Offences) Act 2018 applies;(b) an offence under any of the following provisions of the Offences against the Person Act 1861—(i) section 16 (threats to kill);(ii) section 18 (wounding with intent to cause grievous bodily harm);(iii) section 20 (malicious wounding);(iv) section 47 (assault occasioning actual bodily harm);(c) an inchoate offence in relation to any of the preceding offences.(4) In this section—(a) a reference to providing services to the public includes a reference to providing goods or facilities to the public;(b) a reference to the public includes a reference to a section of the public.(5) Nothing in this section prevents a court from treating the fact that an offence was committed against a person providing a public service, performing a public duty or providing services to the public as an aggravating factor in relation to offences not listed in subsection (3).(6) This section has effect in relation to a person who is convicted of the offence on or after the date on which section (Assaults on those providing a public service etc) of the Police, Crime, Sentencing and Courts Act 2021 comes into force.””Member’s explanatory statement
This amendment would add three new aggravating factors to the consolidated sentencing code, where the person attacked is (i) providing a public service, (ii) performing a public duty, or (iii) providing services, goods or facilities to the public or a section of the public.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
In moving the amendment in my name, I want also to address the related amendments tabled by the noble Lord, Lord Coaker, and my noble friend Lady Neville-Rolfe.
In truth, I do not believe that there is any great difference between noble Lords’ position and the Government’s. We all agree that it is entirely unacceptable that workers in public-facing roles should face verbal abuse and worse. That is why we have brought forward Amendment 84, to make it clear that such abuse will not be tolerated and to put in statute that the public-facing nature of the victim’s role will be an aggravating factor when it comes to sentencing.
I am grateful for the welcome the noble Lord, Lord Coaker, has given to the Government’s amendment. I know, too, that it has been welcomed by many of those who have campaigned on this important issue. I think they, rightly, regard this as a very welcome and significant step forward. In the debate in Committee, I gave your Lordships a firm commitment that the Government were in the process of considering, as a matter of urgency, how best to balance the many issues raised on this topic. Amendment 84 is the result of that consideration, and I would like to explain its purpose.
The amendment places in statute the aggravating factor applied by the courts in cases of assault where an offence is committed against those providing a public service, performing a public duty or providing a service to the public. The aggravating factor is set out in the Sentencing Council’s sentencing guidelines. The provision applies to offences listed in the sentencing guidelines, which are also specified under Section 67(3) of the Sentencing Act 2020, with the addition of common assault and battery. This provides consistency with the statutory aggravating factor applied to assaults against emergency workers, as set out under Section 67 of the Sentencing Act 2020. This includes assault occasioning actual bodily harm, wounding with intent to cause grievous bodily harm, malicious wounding and threats to kill, as well as an inchoate offence in relation to any of these offences. These are the assault offences most likely to be experienced by front-line workers. Importantly, the provision also allows the court to apply the aggravating factor to any other offence, where the court considers this factor relevant.
If the offence was committed against a person providing a public service or performing a public duty, the court will have a statutory duty to treat that fact as an aggravating factor, and must state in open court that the offence is so aggravated. This amendment will reinforce in statute the seriousness with which the courts should treat these offences. It will send a very strong signal to the public that assaults of this kind are totally unacceptable. The Government want to ensure that all those who serve the public can feel protected from abuse when working.
This legislative change recognises the very strong public and parliamentary feeling about assaults against public-facing workers. I understand the argument that retail workers are asked to enforce the statutory age restrictions and that many see this as a reason for increased protection. We have also heard concerns from the retail sector about the risk of increased abuse fuelled by the mandatory requirement to wear face masks in shops. However, I consider it is important to give the same protection to all workers who face a similar risk of assault. For retail workers, it builds on the important work already under way by the National Retail Crime Steering Group to ensure that assaults are not seen as part of a retail worker’s job. The steering group brings together the Government, retailers, unions and trade associations, the Association of Police and Crime Commissioners and the police-led National Business Crime Centre.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, I speak in support of the amendment. I thank the noble Baroness for bringing it forward. As she said, we met many years ago in her office upstairs, with representatives of the trade union USDAW to discuss these issues. We rightly pursued this point.
Many years ago, when I was about 14, I became a shop worker; I started working in a shop on the Walworth Road. It got me talking, and I have not stopped talking since. Meeting people gave me confidence. Equally, over the many years I worked there, there were often incidents when you were abused by customers. In those days, when someone paid by credit card you had to phone up if you were a bit suspicious. You had people legging it for the bus—there were all sorts of incidents. There were always issues. You would sometimes be abused by people who were seeking to do wrong: to shoplift or cause other problems. So I have first-hand experience of some of the problems that shop workers have experienced.
I was a member of USDAW. It is a fantastic trade union. It understands its members and the issues they have, and puts them forward persuasively to government and local authorities. It always did that. One of its long-running campaigns is called Freedom from Fear. You have the right to go to work, do your job, be paid for your work and not live in fear. Many shop workers have that issue; they are in fear of what will happen to them there. During the pandemic we have all seen some appalling stories of how shop workers have been treated. USDAW has been really good in standing up to that.
I pay tribute to John Hannett, the former general secretary of USDAW, to Paddy Lillis, the present general secretary, to the staff and to the many hundreds of thousands of USDAW members who have not let this issue rest. I also pay tribute to some really good employers, the supermarkets that understand the problems their staff have. The Co-op, Tesco and many others have stood up and backed the union and its members. This amendment has also been led by the work of Daniel Johnson MSP in Scotland. He got his Private Member’s Bill through last year.
What is really good about this amendment is how wide it is; it covers anybody delivering a service to the public. In some senses it is wider than my noble friend Lord Coaker’s amendment, which I think is great, and a better amendment. It is really good and we should do it.
I am really pleased. We all hear many stories about what goes on. My good friend Elaine Dean, the vice-president of the Central England Co-op, will tell you about some of the appalling incidents it has had with its members and with staff over the pandemic. I genuinely thank the Minister. She listened, understood and went back to the department and argued in support of the campaign, and we have come out with a good amendment. I thank her very much for that.
The Deputy Speaker (Baroness Garden of Frognal) (LD)
My Lords, I call the noble Baroness, Lady Harris of Richmond, who will speak remotely.
Baroness Harris of Richmond (LD) [V]
My Lords, I declare an interest in that my son works in retail. I have added my name to that of my noble friend Lord Dholakia on Amendment 114 in this group. This threshold needs removing from the Anti-social Behaviour Act, and here we have the perfect opportunity to do it.
Retailers keep UK plc going. They provide us with the goods we need to live our lives, no matter what. They are key workers, but they do not have the key support they need. It is shocking that retailers lose £770 million a year to retail crime. Between the 307,000 shops, this comes to an average of almost £2,500 per shop, per year. Noble Lords may say that this amount of money could easily be a sunk cost for our supermarkets —but not for our independent shops. Assuming an 8% margin, retailers such as those belonging to the British Independent Retailers Association would have to make sales of almost £32,000 for a small shop just to make back what they have lost to these criminals. This is while the level of retail crime is still increasing: by 19.1% between 2014 and 2018, compared with 4.96% between 2010 and 2014, before the Anti-social Behaviour, Crime and Policing Act was given Royal Assent.
As only one in 20 of all shoplifting offences are now prosecuted, it cannot be a shock that such odds are likely to give any wily criminal the feeling that their crime does not matter and that they can do what they want with little or no consequence. Is it any wonder that retailers feel that, while they are being punished, perpetrators of retail crime are not? This needs to change. Retailers need to feel that they have the Government’s support and that they are not the ones being punished when someone steals from their shop. I therefore support this amendment from my noble friend Lord Dholakia.
Baroness Neville-Rolfe (Con)
My Lords, I support the noble Lords, Lord Coaker and Lord Kennedy. I shall speak to my Amendment 104FB, which would require the Secretary of State a year hence to carry out a review of the adequacy of police resources devoted to assaults on retail workers. Like the noble Lord, Lord Kennedy, I always had very good relations with USDAW in my many years as—I suppose you could say “a retail boss”—an executive at Tesco.
I start with an enormous thank you to my noble friend the Minister for arranging a meeting with the retail industry bodies, USDAW and several parliamentarians, including myself, with a star cast of the Deputy Prime Minister, the Home Secretary and the Attorney-General. We all felt, for the first time, that we were having a high-level and constructive discussion on what could be done across the board about violence and abuse of retail staff. That is against a background of 455 security incidents a day, according to the BRC, and very few prosecutions.
The police response to these incidents has historically been inadequate. We need to ensure that the police have the right resources and can put a higher priority on prosecuting these retail crimes. This is particularly important given the role of retail workers in enforcing Covid restrictions such as masks, but also in addressing knife crime and shoplifting, as the noble Baroness, Lady Harris, explained, which in my experience is often caused by the need for individuals to get drugs, so it feeds into drug crime as well.
At the Zoom meeting, the industry welcomed the fact that the Government had recognised the seriousness of the issue and tabled Amendment 84, which we have heard about from my noble friend. This would mean that the worst offenders could see tougher sentences. The industry also very much welcomed the new relevant instructions from the Home Secretary and from the Attorney-General.
However, it is important to ensure that this new measure has the desired effect in terms of police effort. I believe there should be a regular review to monitor its effectiveness, hence my amendment proposing a review in a year’s time, which I hope the Minister will feel able to support.
Lord Dholakia (LD)
My Lords, Amendment 114 is in my name. We discussed it in Committee and I have studied at great length the response from the Minister. Unfortunately, it has not satisfied many retail traders, whose income depends on crime being prevented. The consequences for shop insurance and livelihoods depend on proper action on low-level crimes.
In 2014, a change in the law meant that shop theft valued at less than £200 would not be charged through the courts but, rather, would be tried summarily. The reasoning behind that was to make the prosecution of cases more efficient. The Government may claim that that has happened, but that is only because the courts no longer see the problem and no longer see that it takes an average of 30 convictions for this type of criminal to go to jail. The burden has fallen on small retailers, who now see savvy criminals exploiting the situation to steal with virtual impunity.
The cost of retail crime to retailers is huge. My noble friend Lady Harris mentioned the cost, according to figures supplied to us by the British Retail Consortium, to those such as members of the British Independent Retailers Association. Money that could otherwise be used to improve facilities, raise wages and improve the offers to consumers instead goes straight into the pockets of criminals.
Baroness Bennett of Manor Castle (GP)
My Lords, I signed and spoke to related amendments in Committee. I also take a perhaps rare opportunity to congratulate the Minister on a comprehensive and fair Amendment 84 that really addresses the concerns of workers who are particularly low paid and insufficiently respected.
Like the noble Lord, Lord Kennedy, I note that this demonstrates a hashtag I use often: #campaigningworks. USDAW has done so much work on this over so many years, as has the Institute of Customer Service and its Service with Respect campaign.
I want to ask the Minister two detailed questions. Does this also apply to people providing services over the phone or remotely? I am thinking particularly of Section 16 and threats to kill. It would appear that would also potentially be covered under this. If the Minister wants to write to me later that is fine. I also want to confirm—I think I know the answer but it is worth confirming for the record—that this is an offence committed against a person providing a public service. Will volunteers also be covered under these provisions? Many volunteers provide all kinds of public services and I think that is an important issue.
Lord Coaker (Lab)
My Lords, it is a great privilege to speak in this debate. I declare an interest as a member of USDAW and the Co-operative Party—I wanted to make sure that I did not forget to do that.
I know that it is quite late in the evening, but it is worth us spending a few minutes on something that impacts on millions of people across this country, in every single area of this country, from the smallest and most impoverished communities to the wealthiest. This directly impacts on all of them.
The Minister is quite right in saying that her amendment supersedes mine, and I welcome government Amendment 84. The noble Baroness, Lady Neville-Rolfe, will speak to her amendment, and we have heard from the noble Lord, Lord Dholakia. On my amendment, I thank my noble friend Lord Kennedy for pointing out that it is the first time in my life that my comrade has praised the Conservatives for tabling a better amendment than me. On this occasion, he is absolutely right; it is a far superior amendment to the one that I tabled. It is a great tribute to the Minister, who has listened.
We often say that Ministers should listen and need to take account of something. This Minister has actually acted on that and changed the legislation—she has talked to her civil servants. I say this as an example to other Ministers in both Houses: sometimes a Minister has to stand up and say, “This is what the public, the House and the Chamber demands, and this is what common sense says—so change the law and do what people think is right”. Millions of people across the country will see this as something that has taken years of campaigning by people such as the noble Baroness, Lady Neville-Rolfe, my noble friend Lord Kennedy and others. People on all sides have demanded this change.
One thing that we need to emphasise in the amendment that the noble Baroness has put before us is really important. Rightly, much of the emphasis has been on retail workers, and I want to emphasise some of the facts. We have emphasised the fact that the trade union and large retailers of all sorts have come together. But this amendment talks about assaults on those providing a public service; that is a huge expansion of the categories of worker that can be taken into account by those in court, using the aggravating factors before us. That is something that we should reflect on as a Chamber; it is a key change and a massive extension of the number of those workers who will be protected from abuse.
As we sit here in this Chamber at 9.23 pm, there will be people in the remotest part of Cornwall in a village shop, someone collecting tickets on a railway station in a different part of the country—a rural part of Northumberland, for example. There may be somebody on Walworth Road or in Manchester, who will at this time be facing the sort of abuse that we all deplore. We can say to those people that not only have we deplored and understand how horrific it is, we also recognise the responsibility that we have with the other place in legislating to do something about it.
The Minister was right to say that this sends a signal. Of course it does, and that is really important—but it also gives the magistrates and courts the power to say to people who think that they can act with impunity, whether it is in a village shop or a railway station or on a bus, “We are going to use that as an aggravating factor and you are going to receive a stiffer punishment than you otherwise would have done.” That should give people pause.
The noble Lord, Lord Dholakia, was quite right in some of the points he made. However, the important thing for us now—the Minister will know this, and I think the noble Baronesses, Lady Neville-Rolfe and Lady Bennett mentioned it—is how we ensure that we make this legislation work. How do we give the confidence to somebody, who is often on their own and sometimes not in the first flush of youth, to come forward and report that crime to the police so that those people get taken to court? Often those people will be their own witness. They have to go to the police to report that crime and say, “I’ll go to court” or whatever the process will be. As we move forward with this incredibly welcome piece of legislation, we need to understand how we build that confidence among people. That was one of the things that members of various trade unions as well as USDAW have raised with me. It is about building people’s confidence so that they come forward, are their own witness and report the crime. We must get to a point when the new powers that courts have can be used, because we understand the intimidation.
The Government could do with some good publicity at the moment. I would be ringing this out across the country, not to benefit a Conservative Government but to show that the Government of our country, responding to people across the Chamber, have turned around and said, “We are changing the law and we want people to be aware of the law.” Not only do we want those who act in a criminal way to understand that there is now a punishment that courts can use to deal with them, but, as I say, we want to give confidence to people to come forward.
Many other things could be said but it is important for all of us who have come together as we have to congratulate the noble Baroness, Lady Williams, and to say a big thank you to her again for the changes she and her colleagues have made and the way in which she put that meeting together. This is a strengthening of the law which reflects the seriousness with which the state views these assaults. We will not tolerate it, and the law is saying to people across this country, “We’re going to act, because these people deserve better protection than they’ve had so far.”
Baroness Williams of Trafford (Con)
My Lords, in my time as a Minister I have had a to-do list in my mind, and included on it was tackling assaults on retail workers and the historic disregards. I am very pleased that in the Bill we will be able to do both, so tonight is a very good night.
I thank the noble Lord, Lord Dholakia, for bringing back his amendment and for his obvious commitment to support business owners in areas affected by high crime rates, in particular business owners from diverse communities. In Committee my noble friend Lord Sharpe made it clear that shoplifting offences involving the theft of goods of up to £200 can and should be dealt with by the police as a criminal offence. Section 176 has no bearing on the ability of the Crown Prosecution Service to prosecute a person for theft from a shop or on the court’s powers to punish offenders.
My noble friend also spoke about a survey conducted by the National Business Crime Centre to ask police forces about the reporting of retail crime. I will repeat what he said, because it is important. He stated that the survey asked
“whether forces had a policy where the monetary value of shop theft determined whether the crime was investigated. Thirty-four out of 43 forces responded … the survey found that no forces used a £200 threshold for making decisions about responding to shoplifting offences.”—[Official Report, 3/11/21; col. 1272.]
I have heard what the noble Lord, Lord Dholakia, said today and I understand the concerns about the prevalence of shop theft. I understand in particular the concerns from owners of small businesses, such as small independent shops operating in areas with high crime rates. If the noble Lord is amenable, I would like to meet further with him to discuss it.
I thank the noble Lords, Lord Coaker and Lord Kennedy, for their fulsome support of the government amendment and for repeating the point that we are sending a very strong signal about how seriously we treat this issue. There is more that we are doing. As my noble friend Lady Neville-Rolfe said, prolific shoplifters often have a drug or alcohol dependency, and shoplifting funds this addiction. We need to have the right interventions in place, and the Government’s 10-year drugs strategy, published last week, sets out the Government’s intention to invest in substance misuse treatment, including clear referral pathways for offenders into treatment to reduce the risk of reoffending and help reduce acquisitive crime, including shop theft.
Baroness Neville-Rolfe (Con)
Before my noble friend sits down, perhaps she could get one final plaudit for her terrific performance in this area by agreeing that the Home Office, and indeed the other departments—the Ministry of Justice and the Attorney General’s Office—will look with favour on a discussion with the retail and indeed the wider sector on the impact of these changes, say, in a year’s time. I think she rightly said that what matters is the experience of retail and other workers in the light of the new law. I fear perhaps that not much progress might be made, so if we find that we need to review this in a year’s time, I hope she will look positively at that.
Baroness Williams of Trafford (Con)
I am more than happy to do that. In fact, I think it would be a very good idea to meet up, because the discussions have been positive and fruitful over the last period. So, yes, I am very happy to do that in support of my noble friend.
I welcome the support for the government amendment, as I have said. I think it makes a real, significant step forward. Let us keep it monitored, as my noble friend said.
Lord Kennedy of Southwark (Lab Co-op)
I am genuinely very grateful to the Minister. I think this is a good example for all Members of the House that when you have an issue, you should just keep raising it, because this House can maybe act in ways that the other place sometimes cannot. Sometimes people get into their trenches there, but we can do it a bit differently here. Certainly, by raising issues persistently, and with the Minister listening and bringing people together, we can actually get things right. I think that is one of the great things about this House.
Baroness Williams of Trafford (Con)
The noble Lord is absolutely right. I think we will call it the “Kennedy approach”, but then we have had the “Cashman approach” as well—and they have both worked. We have the bandwidth to look at things in a different way from the other place. On that note, I commend the amendment to the House.
Baroness Bennett of Manor Castle (GP)
Before the Minister sits down, I will just bounce off what the noble Baroness, Lady Neville-Rolfe, said. The Government are offering more protection to retail workers here. Does the Minister agree that this does not take responsibility off employers to make sure that they are also doing all they can to provide a safer working environment for their staff?
“Pre-sentence report requirements
(1) Section 30 of the Sentencing Act 2020 is amended as follows.(2) After subsection (3) insert—“(3A) A court must make inquiries to establish whether the offender is a primary carer for a child.(3B) If the court establishes that the offender is a primary carer for a child, unless there are exceptional circumstances before sentencing the offender the court must obtain a pre-sentence report containing information to enable the court to make an assessment of the impact of a custodial sentence on the child.”(3) After subsection (4) insert—“(5) In this section—(a) “child” means a person under the age of 18; and(b) “primary carer” means a person who has primary or substantial care responsibilities for a child.””Member’s explanatory statement
This Clause amends section 30 of the Sentencing Act 2020 to make clear the requirement for a sentencing judge to have a copy of a pre-sentence report, considering the impact of a custodial sentence on the dependent child, when sentencing a primary carer of a child.
The Lord Bishop of Gloucester
My Lords, in moving Amendment 85 I will speak also to the other amendments in my name in the group. I am very grateful for the support of the noble Lords, Lord Ponsonby and Lord German. I am very grateful for the briefing and expertise provided to me by the organisation Women in Prison and I declare my interest as Anglican Bishop for Her Majesty’s Prisons.
In Committee I highlighted the injustice of punishing a child for their parent’s mistakes and I will not go over that ground again. But I want to frame this discussion by reminding us that when a parent goes to prison it can affect every area of a child’s life, from losing their familiar home and school through to reduced educational achievement and mental and physical well-being. The consequences can last a lifetime.
It is also important to highlight again that the imprisonment of a household member is one of 10 adverse childhood experiences known to have a significant negative impact on a child’s long-term well-being, including life expectancy. It raises the possibility of children being imprisoned themselves at some point in their lives. However, I want to be very clear on that point that there is nothing genetic about offending. If a child is failed by the system, left disenfranchised and excluded, we have failed them. We must do all we can to ensure that children can reach their potential.
In response to the Government’s counter-arguments in Committee I wish to make three points, knowing that other noble Lords will provide more detail. First, on pre-sentence reports, the Minister said in Committee that
“a request to the court for an adjournment in order to prepare a pre-sentence report is considered mandatory in cases involving primary carers”.—[Official Report, 1/11/21; col. 1041.]
However, as I understand it, the sentencer does not have to accede to that request and a PSR will be obtained only if the sentencer requests it. Making it mandatory for probation to request a PSR still does not create an obligation on a sentencer to request one.
Over the past decade there has been a decline in PSR volumes and a shift from written to oral PSRs. There are three delivery methods of pre-sentence reports: oral reports and fast delivery reports are both usually delivered on the same day as the court hearing by the court duty probation officer, while standard delivery reports require more detail and are delivered after an adjournment of up to 15 days to obtain additional information.
A research and analysis bulletin from HM Inspectorate of Probation in 2020 found that the recent shift towards oral PSRs, with a focus on speed and timeliness, has impacted on the quality of information provided to courts. In 2018-2019 58% of reports were orally delivered rather than written, twice as many as in 2012-2013, while 39% were fast delivery reports and only 3% were standard delivery reports. I am encouraged that between March and May 2021 a pilot commenced between the Ministry of Justice, HMCTS and the probation service of an alternative delivery model to increase the number of cases receiving pre-sentence reports from 53% to 75%. I note that women are identified as one of three primary cohorts for higher-quality reports on the day.
However, I believe the pilot focuses on delivering written fast delivery reports for women produced on the same day rather than full standard pre-sentence reports, which would enable more time for information to be sought in relation to children and the impact of a sentence on them. It is true that some sentencers request pre-sentence reports when sentencing a primary carer, but not all do. The point of this amendment is to ensure that judges and magistrates have the full picture when sentencing.
I come to sentencing guidelines. Provided by the Sentencing Council to judges and magistrates, they already acknowledge the devastating impact of parental imprisonment. In Committee, the Minister said:
“Courts are required by law to follow those guidelines, and the guidelines specify that being a ‘Sole or primary carer for dependent relatives’ is a mitigating factor when sentencing an offender.”—[Official Report, 1/11/21; col. 1039.]
It is my understanding that being a sole or primary carer can be a mitigating factor, but it is up to the judge to decide whether they consider it as such, so it is left to the sentencer’s discretion whether they consider it a factor which should change the sentence. It therefore cannot be said that the guidelines create an obligation on sentencers to consider dependent children.
On the ground, there is evidence that these guidelines are not always being consistently and robustly applied. Dr Shona Minson has carried out research into the application of the guidelines being applied in sentencing. She spoke with 20 Crown Court judges and asked:
“What kind of personal mitigation most often influences you in sentencing decisions?”
Half of the judges interviewed thought of family dependants. Half of them did not. So it seems that judges do not take a consistent view on the relevance of dependants as a factor in mitigation. According to Dr Minson’s research, judicial understanding of the guidelines in case law, which set out the duties of the court in relation to considering dependants in sentencing, is limited and, at times, incorrect.
In Committee, the Minister said that the judiciary “get it” when it comes to sentencing mothers. I think that this assertion needs testing. In fact, we simply do not know the number of women in prison who are primary carers, so it is no more than speculation to say that judges “get it” on this issue. If the Minister is basing his assertion on the decline in the number of women in prison, the latest annual prison population projections explain that this recent decline
“is likely driven by a drop in prosecutions and sentencing as a result of the COVID-19 pandemic … lockdowns have affected the mix of cases brought to criminal courts and restricted the courts’ ability to process cases”.
Between 2013 and 2019, the women’s prison population remained relatively consistent. Indeed, the fact that 500 new women’s places are being built is not a sign that women’s prison places are projected to fall.
Finally, I come to the importance of data. I was really encouraged to read in the recently published White Paper on the prisons strategy that the Government intend to
“begin recording data on prisoners’ family circumstances and caring responsibilities, and conduct analysis to better understand the circumstances and needs of offenders.”
I applaud and welcome this as a step in the right direction. Without data, we are making policy in the dark. I should welcome confirmation from the Minister on the timeline for this. Amendment 88 in this group asks that this data be collected at sentencing, disaggregated by gender, ethnicity, sentence and offender type, and made publicly available. I should welcome further discussions with the Minister to ensure that we are collecting the right type of information.
In conclusion, as a Christian, I believe that each precious and unique child is made in the image of God and must be treated with dignity and respect. I know from the work of charities such as Children Heard and Seen the devastating impact that losing a parent to prison can have on a child of any age. Research from the Prison Reform Trust found that children with a parent in prison felt invisible. We must consider the rights of children to a family life. At the heart of these amendments is not a plea never to send a mother—or, indeed, a father—to prison. Instead, I hope that we might work towards preventing long-term harm for children whose parents have done wrong but for whom a community penalty is more appropriate for both the offender and the children. I look forward to hearing what the Minister has to say. I will be listening carefully but, at this point, I flag that I am minded to test the opinion of the House on the amendment. I beg to move.
Lord Bradley (Lab)
My Lords, I rise to speak—briefly at this hour—to this group of amendments and declare my interest in the register, particularly as a trustee and vice-chair of the Prison Reform Trust.
I strongly support these amendments, which have been so effectively moved by the right reverend Prelate the Bishop of Gloucester. I support everything she said. It is essential that the courts fully take into account primary caring responsibilities, especially for a child, in their sentencing decisions and recognise the consequences of not doing so on the impact on the child and the family.
I will not repeat all the arguments that I made in Committee, but, as we have heard, the key document before the courts at sentencing is the pre-sentence report. However, as the charity Women in Prison has pointed out in its supplementary evidence to the Justice Select Committee, the information from Her Majesty’s Prison and Probation Service shows a real decline in proper pre-sentence reports over the past decade. In 2010, for example, pre-sentence reports were available for 62% of all court disposals, reducing to only 53% in 2018. Almost half of the sentences that result in a custodial or community order have no new pre-sentence report prepared to inform the sentence. We have heard—and I support—the improvements that are being looked at in this area but that is the current situation and it must be urgently addressed.
Further, there is a lack of data to disaggregate those figures according to gender. In answer to a Parliamentary Question in 2019, the Government could not say how many women who are likely to be the primary carer had been imprisoned without a pre-sentence report. This remains totally unacceptable. Even where a pre-sentence report is available, it does not routinely provide information to the court about caring responsibilities. As I said in Committee, and it is worth repeating, in January 2021 I asked a Parliamentary Written Question about how many children in each of the past five years were taken into care because their mother was given a custodial sentence. Extraordinarily, the Answer was that the data requested was not something that Her Majesty’s Prison and Probation Service recorded. I am pleased to hear that it is now addressing that issue, but I again ask the Minister with what action and over what timescale will this matter be addressed.
Or course, prisons collect information on caring responsibility, but at the point of prison reception. That is simply too late. The damage to the child and the family has been done, especially for those sentenced to a short prison sentence. We can and must do better. The pre-sentence report must include information about primary care responsibility. Data from various sources must be brought together. They include: the local authority, which currently has responsibility for safeguarding children; the health service, because of the impact on the family and individual; and particularly liaison and diversion services. There must be agreed information-sharing protocols.
We must invest further in technology to ensure that information can flow seamlessly across the criminal justice pathway so that there are no barriers to the information being available to the judiciary in a timely way, ideally at first court appearance. Delaying getting that information can mean that the woman in the example I am giving is put on remand while that information is collected. Again, damage to the child and the family flows from that decision. We must try to reduce the number of people put on remand who have primary carer responsibilities. These amendments would underpin this ambition, and will be a significant step forward in limiting the damage, both social and economic, of imposing a custodial sentence—often a short one—which has the impact on the family, instead of administering a robust community sentence.
Ensuring a clear understanding of primary carer responsibilities will mitigate against the often-irreversible consequences for children of being taken into care, and the primary carer losing their home and employment. I am sure that the Government can see the overriding benefits of this, and will, like me, support these amendments tonight.
Baroness Bennett of Manor Castle (GP)
My Lords, I rise briefly to offer Green support to the right reverend Prelate, who so powerfully introduced these amendments. Indeed, the stress on the need for information is absolutely crucial.
I want to make a very specific point on how the damage of a prison sentence can be magnified where a prisoner who has primary carer responsibilities—most likely a woman—is then subject to recall to prison for a further time. I am drawing here on a report from the Centre for Women’s Justice, which notes:
“The Transforming Rehabilitation Act 2014 provided that all offenders who had served prison sentences of more than one day should be compelled to attend probation supervision for one year. They can be recalled to prison if probation staff find they have failed to comply satisfactorily. Women on licence recall now make up 8% of women in custody.”
That is a truly shocking and surprising figure. This reports notes that the main reason for recall is
“failure to keep in touch with the supervising officer”,
rather than some more serious offence.
A report by the Prison Reform Trust noted that, of 24 women recalled, three had been pregnant at the time of recall. One said that the reason why she failed to attend an appointment was due to a hospital visit for a pregnancy scan. She was then separated from her other children and put back into prison, with further massive disruption obviously resulting. Will the Minister look into this situation? This is part of the sentencing guidelines, but there is a particular issue here in respect of probation and the way in which women—or anyone with caring responsibilities—are treated in this situation.
Lord German (LD)
My Lords, I too pay tribute to the right reverend Prelate for her dedicated work in this matter. We could see her laser-like approach to looking at each of the issues facing this group of people, which are clearly addressed in these amendments. These amendments cover a range of issues, but I would like to take up the points already made by the right reverend Prelate, the noble Lord, Lord Bradley, and the noble Baroness, Lady Bennett, about data.
It is interesting that on 6 December, the Minister, in replying to the right reverend Prelate the Bishop of Gloucester, said:
“We do not hold current figures on how many women in prison aged (1) 18 to 24 or (2) 25 years or older have dependent children.”
I appreciate that there is attention being given to this for the future, but I can only echo the words that, if you do not know, then you are going to be making policy in the dark, as the right reverend Prelate said right at the beginning.
However, figures have been produced by the Howard League. I think it gained these figures by doing an analysis of what it could glean from talking to prison governors and staff. We know that women make up 5% of the prison population but are more likely than male prisoners to be serving short sentences for non-violent offences. The majority of those women experienced childhood abuse, and many are victims of domestic abuse, so they are more likely than male prisoners to report poor mental health and problems with alcohol and drugs.
Here is the crucial figure: the Howard League says that two-thirds of female prisoners are mothers of dependent children, and that at least a third of these are single parents. That means around 17,000 children are separated from their mothers by imprisonment each year, and the vast majority of them are moved out of their homes as a result. I am sure that every noble Lord here can understand the strong detrimental effect that has on their development and well-being. The harsh impact on the welfare of their mothers goes far beyond the impact of the imprisonment itself.
There was a review of women in prison in 2006-07 by the noble Baroness, Lady Corston. One of the outcomes of that was women’s centres, which have so far proved very effective at keeping women out of prison. However, there are insufficient numbers of them, and they are insufficiently well resourced. We need to enlarge that figure considerably.
The important feature here is the future. We understand that the Government now intend to collect the right data, so that we can inform our policy-making. The issue of recall, which the noble Baroness, Lady Bennett, talked about just now, is a specific issue and one that has a double effect, of course, because sometimes the reason for being recalled is very slender. The children’s lives are then doubly affected.
Finally, I go back to the number of children. A substantial number of children in this country are moved out of their homes and lack the family basis on which they are being brought up. We must recognise that this specific factor—all the other factors range with it—affects the future of those children. If nothing else, this series of amendments must put right, full and square, that the welfare of the child is fundamental in everything we do. There is an awful lot that we need to do, and these amendments reflect that.
Baroness Hamwee (LD)
My Lords, one of the children to whom my noble friend refers gave evidence to the Joint Committee on Human Rights when I was a member and we were looking at the impacts on children of imprisonment of mothers in particular—and fathers too. That child had been 15, I think, and found herself going from literally dancing around the living room to music when her mother was in court to finding herself responsible, as she saw it, for herself and her younger brother. The impact is devastating. I do not want to spend any longer on this at this time of night, but I thank the people who give evidence to committees such as the JCHR and the all-party groups about this sort of situation. It is very vivid and helps us to understand better than we can from words on paper just how devastating this situation can be.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I have also put my name to these amendments, so ably moved by the right reverend Prelate the Bishop of Gloucester, and I support them. I have to confess that, as she was speaking to each amendment, I was mentally going through the processes I go through as a sentencer. She introduced her comments by talking about probation reports. As I have mentioned, I became a magistrate about 14 years ago, when there were no oral reports, and fast-delivery reports were only just being introduced. Most of the time, we saw standard reports. There has been an evolution over the last 14 years. There are oral reports, fast-delivery reports and standard reports. In the youth court we have far more enhanced reports, which are 10 to 20 pages long, and in the domestic abuse courts we will be more informed of the family situation when sentencing somebody convicted of a domestic abuse-related offence.
I do support these amendments. The reports put in front of magistrates’ courts and Crown Courts need to be appropriate, and, of course, they need to include the family circumstances of the person being sentenced. The great dilemma, in any system, is to get enough information in a timely manner but not so much that it delays things. I remember that when oral reports were first introduced in magistrates’ courts, we very much appreciated that, because we had experienced probation officers who would interview the offender on the day and come to the court and tell us the various pros and cons of the sentencing options. We knew those probation officers and trusted them to give us a balanced view and guidance on the appropriateness of certain sentences.
That is a good example I have just given. There are, of course, less good examples where we may not have been made aware of the family responsibilities of the person we were sentencing, and there is an absolutely consistent dilemma, whenever one is sentencing, over whether one has a whole picture.
As I say, I support these amendments. This is all based on the data. It is about having appropriate data at the time and about recognising the domestic situation and whether there are responsibilities. Everyone here today has mentioned the position of children, but a lot of people I sentenced also had responsibilities for older parents or other caring responsibilities, and that needs to be taken account of as well.
While I support these amendments, I think more can be done. Reports need to be focused in the right way, and the probation service needs to build on its links with appropriate local social services, as it does when I sentence domestic abuse-related incidents. Much more needs to be done, and I will support the right reverend Prelate if she decides to press her amendments to a vote.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
My Lords, this group of amendments relates to primary carers in the criminal justice system. We debated it at some length during previous stages, and, as I noted in Committee, the proposed new clauses have their origins in previous work by the Joint Committee on Human Rights. Let me just take a moment to echo the tribute paid by the noble Baroness, Lady Hamwee, to those who give evidence to that committee and the other committees of this House. While the Government support the principle behind these amendments and have listened carefully to the arguments in support of them, we are still not persuaded that they are necessary.
I will explain the Government’s reasoning regarding each of these proposed new clauses. Amendment 88 would require the Secretary of State to take reasonable steps to collect data centrally and publish it annually on how many people sentenced have parental responsibility for a child or children under the age of 18 or are pregnant. We have publicly acknowledged the gaps in our current data collection on primary carers in prison and believe that understanding the position in prison is where we should focus our improvement efforts regarding data. This will provide an evidence base to develop policy solutions to offer proper support to primary carers who are imprisoned, and their children.
I am sorry that progress has been so slow, but I am pleased to say that the necessary changes to the basic custody screening tool will be made during the first quarter of the coming year. From that point we will be able to collect data on primary carers in prison and the numbers of their children. An important caveat is that our data collection is necessarily dependent on prisoners declaring the information. Although we do our best to encourage people to provide information, there will always be some people who, for various reasons, do not disclose what the underlying position is. We continue to look at this issue to ensure that our data collection is as good as it can be. I heard the right reverend Prelate say that she would be keen to continue discussions on that point. She knows from previous issues that I am very happy to discuss this with her. I will keep her informed of our progress.
Amendment 88 also refers to collecting data on women who are pregnant when they are sentenced. The Government’s view is that the primary focus should be on those who are pregnant and sentenced to custody. We have already taken steps to acknowledge previous weaknesses in our data collection. We are now collecting and publishing data on the number of pregnant women in prison in the HMPPS annual digest, which contains a weekly average for self-declared pregnancies, and the total number of births to women held in custody over the year, in location categories.
On the closely linked topic of maternity services in prisons, this week I met the noble Baroness, Lady Burt, to discuss the breadth of work already completed and under way to address learning from the appalling “Baby A” case, as per the existing statutory obligations. I am grateful to her for the time that she spent discussing the matter with me. HMPPS has accepted and completed all the PPO recommendations. The PPO’s recommendations for health have either been completed or are in the process of being completed.
This work includes investment by NHS England and NHS Improvement of recurrent funding for an improved maternity service at HMP Bronzefield that will be delivered by Ashford and St Peter’s Hospitals NHS Foundation Trust. All the work that we have completed or are in the process of implementing is set out in a joint action plan that we have submitted to the PPO, and which is available publicly on its website. Nationally, as part of the jointly commissioned women’s estate health and social care review, a perinatal steering group has overseen the development of a pregnancy and post-pregnancy service specification for health and justice commissioners. Publication is anticipated for early next year.
Turning to Amendments 86, 87 and 105, which concern remand and sentencing decisions in cases involving primary carers and pregnant women, I will not repeat the points that I made in Committee, but we consider these amendments unnecessary, since a series of relevant and adequate considerations for courts making such decisions are set out in relevant case law and sentencing guidelines, and, as I dealt with on earlier groups today, ensure that custody is a last resort in all cases.
The case law and the sentencing guidelines, which the courts have to follow, are clear that courts should give full and proper consideration to the fact that someone is either a pregnant woman or a primary carer. However, without wishing to diminish the importance of their consideration, we have to acknowledge that courts have to consider various and often complex circumstances relating to the offence or the offender. Regrettably, there will be cases where the risks posed by the individual or the seriousness of the offending is such that, despite the existence of dependents, custody is deemed necessary.
I listened carefully to the points made by the noble Baroness, Lady Bennett of Manor Castle, and the noble Lord, Lord German, about recall. In the time that I have had to respond specifically to that point, I can tell them that in the three years from June 2018 to June 2021 there was an 18% decrease in the number of women recalled to custody while the comparable decrease for men was 4%. So I acknowledge that there is an issue on recall and I am happy to continue that conversation, but the position has got better.
However, we are clear that delivering public protection and confidence across the system is not just about the better use of custody. As set out in our female offender strategy, we want fewer women serving short sentences in custody and more being managed in the community. As part of that strategy, we have committed to piloting residential women’s centres, which will offer an intensive residential support package in the community for women at risk of short custodial sentences.
I turn to Amendment 85. As I set out in Committee, current legislation already requires the court to obtain a pre-sentence report in all cases unless the court deems it unnecessary on the facts of the case—for example, if the offender had been before the court three weeks earlier and a pre-sentence report was obtained then. This requirement is reflected in the sentencing guidelines, which courts have to follow. When sentencers request pre-sentence reports, guidance introduced in 2019 mandates probation practitioners to request an adjournment to allow time to prepare a comprehensive pre-sentence report in all cases involving primary carers and for those at risk of custody.
I am keen to reassure the right reverend Prelate that a key objective of this Government’s reforms is to improve both the quality and the prevalence of pre-sentence reports in the justice system. We heard first-hand experience from the noble Lord, Lord Ponsonby, about the quality of pre-sentence reports, which can be extremely good. We want to ensure that that quality is consistently good.
Lord Ponsonby of Shulbrede (Lab)
I think the point I made is that they are extremely variable.
Lord Wolfson of Tredegar (Con)
I am looking at the glass as half full. I acknowledge their variability but we want to improve their standard across the board. It is a little simplistic, if I may respectfully say so, always to assume that a written report is better than an oral report. I know the noble Lord was not making that point but I have heard it elsewhere. He was quite clear from his experience that a good oral report may be better than a written report.
Lord Wolfson of Tredegar (Con)
If appropriate, exactly; it all depends. The sentencers have experience of the nature of the reports that are appropriate in each case.
On that point, we acknowledged in our sentencing White Paper that pre-sentence reports have decreased over the last decade. We specify in the White Paper that, although we do not propose to alter current judicial discretion, we want to build the evidence base around pre-sentence reports. We therefore commenced a pilot scheme in 15 magistrates’ courts in May this year, in collaboration with the judiciary and HMCTS. It strategically targets female offenders, and some other cohorts, for fuller written pre-sentence reports. The process evaluation will be published in autumn next year and will give us the evidence base to drive improvements in pre-sentence reports and make future decisions. We want to preserve a balance between the current legislation and sentencing guidelines and the independence of judicial decision-making. We very much hope and expect that that pilot scheme, which takes into account operational considerations in the courts as well, will enable us to improve the position significantly.
I hope that what I have said—I hope not at too great a length—will persuade the right reverend Prelate and noble Lords that the Government share the concerns underpinning these amendments and, importantly, that existing law and practice, together with the action we are already taking, make these amendments unnecessary. I invite the right reverend Prelate to withdraw the amendment.
The Lord Bishop of Gloucester
It is good to hear what the Minister has to say. Some of those points were things that I challenged when I talked about the mandatory comments on PSRs. It was good to hear the Minister say, “We want to improve things; we want to improve the quality”. This amendment would ensure that the “I want” becomes something in legislation. I would go back as far as the Farmer review, where, even then, the issue of the potential for inconsistency in PSRs was raised.
There is still a gap between what is being said and the evidence. For that reason, although I know it is late, I would like to test the opinion of the House. This amendment would not in any way compromise the decision-making discretion of judges but, I hope, would be useful in assisting judges by ensuring that they have all the right information. Although it is late—I cannot help that—I would like to test the opinion of the House on Amendment 85.
“(8) After section 102, insert—“102A Centralised monitoring of court decisions to impose youth custodial remand (1) Within six months from the day on which the Police, Crime, Sentencing and Courts Act 2021 is passed, the Secretary of State must nominate a body to collect, analyse and publish data on the decision-making process of courts when sentencing a child to custodial remand.(2) “Decision making process” refers to the consideration and application of the required Conditions for the custodial remand of children by the court, as set out in the Legal Aid, Sentencing and Punishment of Offenders Act 2012.(3) A report on the findings must be laid before Parliament and published on an annual basis.(4) The first report must be published and laid before Parliament no later than 18 months from the day on which the Police, Crime, Sentencing and Courts Act 2021 is passed.””
Lord Ponsonby of Shulbrede (Lab)
My Lords, we have been talking about data, and this is another example of collecting data, because the fear is that different parts of the country will remand children in different ways. The bail decisions for youth are a complex set of decisions; they are different as for adults, and it is absolutely and invariably the most difficult decision that any judge or magistrate will make. I can see that it would be easy to have different standards in different parts of the country, and that is the main purpose of this amendment. What I have just said is my subjective view but, of course, unless the data is collated in some way, it is only my subjective view. This is about complexity and a lack of consistency, and it is information on which the Ministry of Justice should really have a view on.
Amendment 89 seeks to raise the age of criminal responsibility from 10 to 12. The current Labour Party policy, which I agree with, is that it should remain at 10. I have been a youth magistrate for 12 years, and I have never seen a 10 or 11 year-old in court. It does happen, of course, but from what I understand is that it happens only in the very most serious cases; only in very extreme cases would anyone that young ever get to court.
Baroness Chakrabarti (Lab)
My Lords,
“No child should suffer such appalling abuse, especially from those who should love and care for them most.”
Who said that? It is not a Christmas quiz. It was the Minister repeating a sentence what feels like a long time ago, but it was earlier this evening in proceedings on this Bill in your Lordships’ House. What if the same child victim of cruelty or neglect survives and grows to act out as a damaged little person as a result of that neglect or abuse?
I am very disappointed to hear about my own party’s position on the age of criminal responsibility, not least because I was reading David Lammy’s comments in the Guardian just a couple of years ago in relation to concern that our age of criminal responsibility, at 10, is too young. I think that we as a society are failing some of our most vulnerable children, including victims of neglect and abuse, and we should not be criminalising them. Given what we know about child development, 10 is way too young. It makes us as a jurisdiction an outlier in the civilised world and that is not something to be proud of.
Perhaps understandably, much of the debate in Committee focused on some of the most notorious cases, including that of Thompson and Venables, but such horrific and notorious cases are few and far between. More often, we are talking about offences such as criminal damage, and it is often looked-after children who are criminalised for offences of that nature. They have already been let down in their lives by their natural parents and/or their adopted parents and are looked after by the state. They then get involved in something that is treated as criminal damage in a care environment and for which neither noble Lords’ children and grandchildren nor mine would ever be criminalised.
Lord Ponsonby of Shulbrede (Lab)
I have dealt with that exact point in my time as a youth court magistrate. It is not just children aged 10 or 11. In the past few years—let us say the past five years—I have never seen any child brought to court for criminal damage in their care home. They used to be brought to court because it was an insurance-related issue and a conviction was needed to get the insurance money, but that has been resolved as an issue. In my experience, care homes do not charge their children for criminal damage.
Baroness Chakrabarti (Lab)
I am grateful to my noble friend; obviously I do not have his personal experience as a magistrate but just today I looked at published statistics from 2018, which showed that a small number of children were criminalised for criminal damage.
Whether children end up in court or not, if they have criminal responsibility, they can be criminalised. They may never get to court—they may accept an out-of-court disposal—but they will be criminalised and will potentially have a conviction that follows them around for a very long time. This is amoral; it is not the way to treat a vulnerable little person who has probably been neglected and/or abused. They are not ready for criminal responsibility—they are not responsible. All the scientific evidence suggests that their brains are not developed enough at the age of 10.
We weep hot tears for these children when we see them as victims of abuse and neglect, but we do not do so when some of them manage to survive but act out in ways that children will. Some children will never be criminalised for minor theft or criminal damage because they have the protection of their privilege. Other children will sometimes be criminalised, which is wrong in principle and says something very embarrassing about this jurisdiction—even compared with the neighbouring jurisdiction north of the border, as my noble friend pointed out. I do not want to repeat what I said about this in Committee, but I thank and pay tribute to the noble and learned Baroness, Lady Butler-Sloss, and the noble Lord, Lord Dholakia, who have campaigned on this issue for many years to stop us being an outlier in the world.
I note that next year my noble friend Lord Adonis will bring forward a Private Member’s Bill to lower the voting age from 18 to 16—something I will support but I suspect the Government will resist. The Government will insist on 18 for voting purposes and the age of majority, and perhaps take the view that children and young people are not mature enough to vote until they are 18, but heap criminal responsibility on them at the age of 10. That is a mismatch of eight years. Of course. children and young people—indeed, all people—develop slightly differently. Personally, in an ideal world, I would support 16 as a decent compromise. However, that is not the point.
The amendment in the name of the noble and learned Baroness, Lady Butler-Sloss, and the noble Lord, Lord Dholakia, to which I have added my name, settles on just 12. I am afraid that the fact that neither the Government nor my own party can support that, despite report after report from the UN on the UN Convention on the Rights of the Child, is an embarrassment. We are choosing some children over others. These difficult issues about children and criminality are always about other people’s children. However, the difference between believing in and promoting human rights and not doing so is whether you care about other people’s children, and not just at Christmas—and not determining, as a noble and learned Lord said earlier, who is naughty or nice but caring for everyone’s children and all children.
With that, I will spare your Lordships any more of my thoughts on this issue—I feel very strongly about it. I wish your Lordships and your children and grandchildren a very good Christmas when it comes.
Baroness Bennett of Manor Castle (GP)
My Lords, it is a great pleasure to follow the noble Baroness, Lady Chakrabarti, and I agree with every word she just said. She noted that the UK is an outlier in the world in having an age of criminal responsibility of 10. However, I notice that my native Australia is now in the middle of the process of looking to raise its age from 10, which I think was inherited from UK law. With that development in Australia, we will be even more of an outlier.
I shall speak to Amendment 90, which appears in my name, but I stress that this is not in any way meant to compete with Amendment 89. I would support Amendment 89 but, like the noble Baroness, Lady Chakrabarti, I think it does not go far enough. My idea of a review is that if you were to hold a review, as the Justice Committee in the other place recommended last year, you would arrive at a figure higher than 12. Fourteen is the obvious one.
I apologise that I was not available to present the corresponding amendment in Committee because I was at the COP 26 climate talks. However, I thank my noble friend Lady Jones of Moulsecoomb for doing a great job of presenting it then, and the noble Baroness, Lady Chakrabarti, for supporting me at that stage. I also apologise for an administrative oversight on my part. There was extensive debate on the wording of proposed new subsection (2)(b). It was my intention to change the wording but I am afraid I did not. However, I hope noble Lords will look at the overall intention of this amendment rather than getting into the depths of discussion on the detail of the wording, since I have no intention of pressing this amendment to a vote tonight.
In particular, I want briefly to draw attention to proposed new subsection (4) in this amendment:
“The panel must consult with an advisory panel made up of young people currently and formerly in the youth justice system.”
There is a principle there that we should be following much more: people who have the lived experience of knowing what it is like to be the subject of the system have to be listened to, and we have to understand what the lived experience is like.
There is a risk in the situation I find myself in of thinking that everything has been said but not by me. I will try very hard not to do that. Rather than repeat all the arguments made in Committee, I will pick up one sentence said then by the Minister in response to the noble and learned Lady, Baroness Butler-Sloss:
“I have sought to set out why we believe that 10 is the correct age, given the way that our criminal justice system deals with children.”—[Official Report, 17/11/21; col. 263.]
In that context, I point to comments made by the former Children’s Commissioner, Anne Longfield, in late 2019. She called for a wholesale review of the youth justice system, saying that the youth court was
“not a child-friendly environment where you could really help a young person and is not meeting standards that we had hoped.”
Lord Ramsbotham (CB)
My Lords, I support Amendments 89 and 90. I endorse what the noble Baroness, Lady Chakrabarti, said. Thompson and Venables, the murderers of Jamie Bulger, although 10 at the time, had a developmental age of only four, which makes their High Court trial obscene. The noble Lord, Lord Dholakia, is to be praised for persistently trying to raise the age of criminal responsibility through a succession of Private Members’ Bills.
Lord Paddick (LD)
My Lords, prompted by the words of the noble Baroness, Lady Chakrabarti, I was reminded of a visit I made to the only young offender institution in Scotland, where we had the opportunity to speak to young people in custody there, the staff and the governor. They talked about how, without exception, those in custody had been subjected to a range of adverse childhood experiences. What came across from both the young people and the staff was that, even though those young people were aged 16 and over, it was not their fault that they found themselves in those situations; it was the adults and support mechanisms that had let them down. Moving the age of criminal responsibility from 10 to 12 is a move in the right direction and the minimum that should be done at this time, which is why I wholeheartedly support the noble Baroness.
Earl Attlee (Con)
My Lords, I rise briefly to support the noble Baroness in Amendment 89, for the reasons she has outlined. I think the noble Lord, Lord Ponsonby, in this Report stage seems to get the short straw every time. I have a question for my noble friend the Minister about the role of the CPS when deciding to prosecute. It has to apply the test of public interest. Is the very young age of a defendant a proper consideration for the CPS when making that public interest test?
Lord Dholakia (LD)
My Lords, Amendment 89 is also in the name of the noble and learned Baroness, Lady Butler-Sloss, who cannot be with us today but has faithfully promised to support it. I have a Private Member’s Bill on this same subject which is awaiting its Second Reading. Suffice to say, on at least two previous occasions, it has gone through all its stages in this House, but the general election intervened last time and halted its progress. Let me assure the House that the Bill is not going to be put into the long grass. I will come back again and again until we find some success in its implementation.
I also thank the noble Baroness, Lady Chakrabarti, for her support of this amendment, the noble Lord, Lord Ramsbotham, for his kind words, and my noble friend Lord German, who took up this issue in Committee when I was hospitalised on that particular day.
The amendment is designed to raise the country’s unusually low age of criminal responsibility from 10 to 12. At present in England and Wales, children are deemed to be criminally responsible from the age of 10. This provision was last amended over 50 years ago, in 1963, when the age of criminal responsibility was raised from eight to 10 by the Children and Young Persons Act of that year. This means that children who are too young to attend secondary school can be prosecuted and receive a criminal record. A 10 year-old who commits a “grave crime”, which includes serious, violent and sexual crimes but can also include burglary, will be tried in an adult Crown Court. A child of 10 or 11 who is accused with an adult will also be tried in the Crown Court.
The age of criminal responsibility in the United Kingdom is the lowest in Europe. In Ireland, in 2006 the age was raised to 12, with exceptions for homicide, rape or aggravated sexual assault. Even in Scotland, where the age of criminal responsibility is particularly low at eight, legislation in 2010 provided that children cannot be prosecuted below the age of 12. Outside the British Isles, the age of criminal responsibility is invariably higher: in Holland it is 12; in France it is 13; in Germany, Spain, Italy, Austria, Hungary, Bulgaria, Slovakia, Slovenia, Croatia and Romania it is 14. In most European countries it ranges between 14 and 18. Across Europe, the average age is 14.
The United Nations Committee on the Rights of the Child has repeatedly stated that our minimum age of criminal responsibility is not compatible with our obligation under international standards of juvenile justice and the UN Convention on the Rights of the Child. In a statement in 1997 the committee said:
“States parties are encouraged to increase their lower minimum age of criminal responsibility to the age of 12 years as the absolute minimum age and to continue to increase it to a higher age level”.
In subsequent reports in 2005 and 2007, the committee reiterated that a minimum age below 12 is not internationally acceptable. Recently the committee recommended that the UK should
“raise the minimum age of criminal responsibility in accordance with acceptable international standards”.
Taking 10 to 11 year-olds out of the criminal justice system will not mean doing nothing with children who offend. It would mean doing what other countries do with 10 and 11 year-old offenders; it would mean doing what we do with delinquent nine year-olds. In other words, it would mean dealing with the causes of these children’s offending through intervention by children’s services teams.
In the majority of cases where court proceedings are necessary, it would mean bringing children before family court proceedings, which can impose compulsory measures of supervision and care. In the most serious cases this can mean detention for significant periods in secure accommodation, but this would be arranged as part of care proceedings, rather than as a custodial punishment imposed in criminal proceedings.
Those who oppose increasing the age of criminal responsibility often argue that children of 10 to 12 are capable of telling right from wrong, as though it automatically follows that they should therefore be dealt with in criminal courts, but this does not logically follow. Most six year-olds have a sense of right and wrong, but no one suggests that they should be subject to criminal prosecution. In 2012, the Centre for Social Justice, which was set up by the former Secretary of State for Work and Pensions, Iain Duncan Smith, produced a report on the youth justice system entitled Rules of Engagement: Changing the Heart of Youth Justice. It said:
“There is now a significant body of research evidence indicating that early adolescence (under 13-14 years of age) is a period of marked neurodevelopmental immaturity, during which children’s capacity is not equivalent to that of an older adolescent or adult. Such findings cast doubt on the culpability and competency of early adolescents to participate in the criminal process and this raises the question of whether the current MACR, at ten, is appropriate.”
The evidence from international research is overwhelming. There is extensive evidence from neuroscientists, psychologists and psychiatrists demonstrating the developmental immaturity of young children. The Royal Society, in its report Neuroscience and the Law, concluded in 2011 that,
“it is clear that at the age of ten the brain is developmentally immature, and continues to undergo important changes linked to regulating one’s own behaviour.”
The Royal College of Psychiatrists has expressed the view, based on similar evidence, that our age of criminal responsibility is too low. The research shows that children of 10 and 11 have less ability to think through the consequences of their actions, less ability to empathise with other people’s feelings, a greater level of impressionability and suggestibility, and less ability to control impulsive behaviour. So while 10 year-olds may know that stealing something is wrong, their ability to apply that knowledge to their actions will be very different from that of an 18 year-old. This does not mean that children aged 10 or 11 have no responsibility for their actions, but on any reasonable interpretation of the evidence they must be regarded as less responsible than an older adolescent or an adult. It cannot be right to deal with such young children in a criminal process which assumes a capacity for mature, adult-like decision-making.
The Beijing rules on juvenile justice state that the age of criminal responsibility,
“should not be set at too low an age level, bearing in mind the facts of emotional, mental and developmental immaturity.”
The official commentary to the rules states that,
“there is a close relationship between the notion of responsibility for delinquent and criminal behaviour and other social rights and responsibilities”.
It is therefore significant that in no other area of the law, whether it is the age for paid employment, the age for buying a pet, the age of consent to sexual activity, or the age for smoking and drinking, do we regard children as fully competent to take informed decisions until later in adolescence. The age of criminal responsibility is an anomalous exception. In relation to the age of consent to sexual activity, for example, we regard any purported consent as irrelevant in order to protect children from abuse or immature sexual experimentation. It is completely illogical that we regard immaturity in this context as worthy of protection by law, but we take a diametrically opposite approach when it comes to criminal responsibility.
A 30 year-old with the mental age of a 10 year-old child would probably be regarded as unfit to plead, so why do we see a child of 10 as capable of participating in the criminal justice process? The illogicality of our current law is increasingly recognised. The Law Commission concluded in its report Unfitness to Plead that the age of criminal responsibility is not founded on any logical or principled basis and that
“there may be sound policy reasons for looking afresh at the age of criminal responsibility”.
Baroness Blower (Lab)
My Lords, it is late, and I have very little to add to this debate, since it has already been extensively outlined by the noble Lord, Lord Dholakia, and other speakers, save this. I have extensive experience of working with educators from many jurisdictions, including all those mentioned by the noble Lord, Lord Dholakia, and many beyond. Some will have, as I have myself, worked with a small number of 10 year-olds who, for a variety of reasons usually to do with adverse childhood experiences, behave in ways that are exceedingly difficult to manage—and some can, under certain circumstances, become aggressive or violent. But what I know is that educators from all those jurisdictions, in general, understand that 10 is simply too young to be an age of criminal responsibility, and many from the countries mentioned by the noble Lord, Lord Dholakia, and many others are astounded it is 10 in England.
Ten year-olds, as my noble friend Lady Chakrabarti has said, need to be nurtured if they have hitherto had circumstances in their short lives that have damaged them seriously. In my own view, 12 is still too young to be an age of criminal responsibility, and had the noble and learned Baroness, Lady Butler-Sloss, been able to be in her place tonight, she would certainly, I am sure, have listed all the jurisdictions that have an age significantly above 12, as well as notably, as referenced by the noble Baroness, Lady Bennett, the UN Convention on the Rights of the Child. But it is the case that a move from 10 to 12 would be a move in the right direction, and I hope the Government will consider this seriously.
Lord Wolfson of Tredegar (Con)
My Lords, we have two amendments before us in the sense of concept. I will take Amendment 88A first and then Amendments 89 and 90 together—they raise quite discrete issues.
Amendment 88A is twofold. It requires the centralised monitoring of youth remand decisions made by the court and the laying of a report of findings before Parliament on an annual basis. On centralised monitoring, as I made clear in Committee, courts will now be required to provide the reasons for their decision in writing. This will be provided to the child, their legal representative and the youth offending team, and it goes beyond what courts already do at present. The record will therefore provide qualitative information, which is not currently readily available. That will enable us and partners in the criminal justice system to understand and better monitor the reasons given for the use of custodial remand.
However, those decisions are complex. We should not prescribe in law at this time how the information should be collected and processed. I am also mindful not to impose unrealistic burdens on operations. As I have indicated previously, HMCTS is also currently designing a new digital case management system, which will deliver better data capturing and reporting. We will consider the best way to collect, analyse and, if appropriate, publish that information.
On the second point, as I explained in Committee, my department already regularly publishes statistics on remand: youth justice statistics are published annually; youth custodial statistics are published monthly. I hope the noble Lord, Lord Ponsonby, will agree that our objectives are in fact aligned here, and understand the need for pragmatism at this time. I therefore urge him to withdraw Amendment 88A.
Amendments 89 and 90, spoken to by the noble Baroness, Lady Chakrabarti, would raise the age of criminal responsibility from 10 to 12 years and require a review of the age of criminal responsibility. As I have said before, the primary objective of the youth justice system is to prevent children offending in the first place. Where it occurs, we must provide the police and courts with effective tools to tackle offending. That is why we believe that setting the age of criminal responsibility at 10 is the correct response. It provides flexibility in dealing with children and allows for early intervention with the aim of preventing subsequent offending.
Importantly, having the age of criminal responsibility at 10 does not preclude other types of intervention where they would be a better and more proportionate response. This could include diversion from the criminal justice system in the first place. I can answer with a simple “yes” my noble friend Lord Attlee’s question about whether the age of the child is taken into account by the CPS as part of the public interest test. Diversion from the criminal justice system is happening in practice. There has been a dramatic fall since 2009 in the number of children aged between 10 and 12 years in the youth justice system. We want that downward trend to continue.
As I said in Committee, no 10 or 11 year-old has received a custodial sentence since 2010. The noble Lord, Lord Ponsonby, talked about never seeing a 10 or 11 year-old in court. In response to the specific point about criminal damage or arson, in 2020, 171 children were proceeded against for either criminal damage or arson. Of those, the number aged either 10 or 11 was zero. We discussed the appalling Bulger case in Committee. It is a rare case, but it is important that when awful cases such as that arise, we have the correct mechanisms to deal with them.
The fact is that there are a range of approaches across Europe—and the wider world—to the age of criminal responsibility. Other European countries also have an age of criminal responsibility set at 10. The noble Baroness, Lady Blower, said that she was astounded that we had the age of 10, but so does Switzerland—not a country one normally associates with human rights breaches—and I suggest that neither Switzerland nor the UK is in contravention of our international obligations.
Baroness Bennett of Manor Castle (GP)
The Minister referred to the diversion of young people who might end up in the criminal justice system but are sent down other paths. Can he tell me, either now or in the future—I understand that he may not have the figures to hand—whether the Government have statistics on the demographic characteristics of which children get diverted and which go into the criminal justice system? I am aware that I recited quite a few figures, but they show that there is a greatly increased percentage of children from certain backgrounds who seem to end up in the criminal justice system, which suggests that diversion is working for some but not for others.
Lord Wolfson of Tredegar (Con)
I am happy to respond in writing a little more fully, but I can say—with the caveat that I absolutely share concerns about ethnicity proportions in the youth justice system, and indeed through the criminal justice system generally—that the number of black, Asian and minority ethnic children entering the youth justice system for the first time fell in the decade between 2009 and 2019 by 76%. So there is progress but there is still work to be done. I will look at the Official Report and write with anything further.
Police, Crime, Sentencing and Courts Bill
Monday 10th January 2022
(2 years, 3 months ago)
Lords ChamberRead Full debate Police, Crime, Sentencing and Courts Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 72-V Fifth marshalled list for Report - (10 Jan 2022)
16:27 - Division on Amendment 90A - Ayes: 198 / Noes: 163 - Amendment 90A agreed.
17:59 - Division on Amendment 95A - Ayes: 215 / Noes: 177 - Amendment 95A agreed.
19:07 - Division on Amendment 97 - Ayes: 99 / Noes: 169 - Amendment 97 disagreed.
Lord German
“(8) A local authority may establish and maintain a secure 16 to 19 Academy.”Member’s explanatory statement
This amendment would enable local authorities to run secure 16 to 19 Academies, either alone or in consortia.
Lord German (LD)
My Lords, the purpose of Amendment 90A in my name is to put beyond any doubt that an application to run a secure school by a local authority or local authorities, either working as an entity or acting in a consortium with others, will be treated on its merit, on the quality of the provision it proposes and can provide. In other words, there will be a level playing field for applications of this kind as for those from other, non-local government bodies. This amendment brings local authorities into the tent. It simply allows them to compete alongside other non-local authority organisations in order that the best provision will prevail, from whichever quarter it comes.
Since the debate on this matter, there have been discussions between the Minister, myself and other noble Lords from around the House and it is now clear that there is a legal route open to local authorities to make a bid for running a secure academy, but such a bid would run counter to the Government’s policy. I will return to this matter shortly, as it is fundamental to the rationale for this amendment.
I want to make it absolutely clear that we on these Benches support the proposal to create secure schools and academies. Youth custody, by its very nature, means that those within them are the most vulnerable and challenging young people. That is why Charlie Taylor, in his review, proposed secure schools as a major way of dealing with the problems of the youth custody system. It is worth remembering two points from his 2016 report. First:
“Children who are incarcerated must receive the highest quality education from outstanding professionals to repair the damage caused by a lack of engagement and patchy attendance.”
Secondly:
“Rather than seeking to import education into youth prisons, schools must be created for detained children which bring together other essential services, and in which are then overlaid the necessary security arrangements.”
These two points reinforce the need for the highest quality provision possible.
Further to that second point in the Taylor point report, the absolute importance of integration was emphasised, not only of education but of a wide variety of services within the work of these schools—health, social care and services providing reintegration following custody are required within the school and not external to it. These are services that local authorities currently provide. Following the logic of local authority statutory provisions, particularly those of the duty of safeguarding and promoting the welfare of their children and the need for a new form of integration, there is much that local authorities can offer.
What is clear is that the skills and abilities of the heads and staff of these secure schools are fundamental. They need the best, and only the best will do. That is why this amendment is so important, because it ensures that local authorities are not excluded from providing secure schools, simply because of their nomenclature as academies.
The letter from the noble Lord the Minister to my noble friend Lord Marks makes two fundamental points: first,
“it would be legally possible for a local authority to set up an entity capable of entering into academy arrangements”
with the Government; but, secondly,
“it is the policy of the Government that … no academy in England is operated by a local authority.”
The key issue here, then, is the use of the words “secure academy” rather than “secure school”. It is not a matter of who would be the best provider offering the very best and highest quality of education and integrated services outlined in the Taylor review and accepted by government. It is worth recalling that, when the Taylor review was published, the Government in a Ministerial Statement two days before the publication—which is quite interesting—referred to the setting up of two secure schools, one in the north and one in the south, and used the words “secure schools”. It is only in recent months that the word “academy” has moved into the nomenclature used for what was initially designed to be secure schools and was recognised by the Government as being secure schools.
Local authorities certainly have expertise in the provision required, but this amendment does not seek to favour them. It simply says that if they can produce the best provision needed, they should do the job. In doing so, they would have to follow all the frameworks set out by government, for example, on the devolution of decision making to the head, staff and governors. There would be no difference in the tender requirements, but these secure academies require the very best. To exclude a group of well-placed potential providers is a mistake.
As the noble Lord the Minister says in his letter to my noble friend Lord Marks, it is not a matter of the law but of the Government’s policy. That is why this amendment puts the matter beyond doubt. I and, I am sure, all noble Lords here will want the very best provision, from wherever it comes. I am not arguing that local authorities should win these bids, merely that they are given the chance to try. This legislation should provide the certainty that those who may be able to provide the best will not be left out. That is why I believe this amendment is important to put beyond doubt that all will be available and everyone can make a bid to run these services. I beg to move.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I start by reminding the House that I sit as a magistrate in youth and family courts and, as such, send youths to secure accommodation for welfare reasons and as a result of offences they may have been convicted of in the youth court. To make it clear, the Labour Party supports Amendment 90A, which the noble Lord, Lord German, has just spoken to. My Amendments 90B to 90F look at a different aspect of secure accommodation.
The amendments in my name seek to address national shortage in secure accommodation by placing a duty on local authorities to assess the local need and create a strategy to deal with that need. In Committee, Peers from across the House highlighted the significant lack of secure beds in certain areas that leaves children being dispersed across the country, sent to unsuitable establishments or unnecessarily remanded in custody. The Government responded by saying that they are taking steps to support local authorities to maintain existing capacity and to expand welfare provision in secure children’s homes.
There are currently no secure children’s homes in London, with London children being placed in justice and welfare placements in secure accommodation an average 124 miles from home. This is disruptive for the children, their families and the services supporting them. There are other significant geographical gaps across the country. Currently there are only 15 secure children’s homes in England and Wales. This amendment places a statutory duty—a requirement—on relevant local authorities to address this issue.
Following the Government’s response to the amendment in Committee, the Mayor of London’s office stated that the reality of the £259 million referred to by the noble Lord, Lord Wolfson, is that it will take some time to translate this into available secure beds. This is especially true given that there is no indication of how that funding will be apportioned across the country to address the geographical gaps to which I have referred. There is also no commitment to ensuring that both welfare and justice placements are provided for within this funding. This is also a gap in the answer given by the noble Lord. Therefore, the additional funding does not remove the need for relevant local authorities to assess the need for secure accommodation and to develop a strategy for any shortfall.
In conclusion, I will repeat a statement given by Lord Justice Baker. This is the ruling on an appeal brought in July 2021 by Just for Kids Law against Waltham Forest Borough Council which successfully argued that the failure by local authorities in London to provide appropriate alternative accommodation for children was unlawful. He said:
“The absence of sufficient resources in such cases means that local authorities are frequently prevented from complying with their statutory obligations to meet the welfare needs of a cohort of vulnerable young people who are at the greatest risk of harm. The provision of such resources is, of course, expensive but the long-term costs of failing to make provision are invariably much greater. This is a problem which needs urgent attention by those responsible for the provision of resources in this area.”
If the noble Lord, Lord German, chooses to put his amendment to a vote, we shall support it. Nevertheless, I have raised other issues which I hope the Minister will respond to in his reply to this group of amendments.
Lord Carlile of Berriew (CB)
My Lords, the aim of this exercise is to ensure that children who enter custody leave it better educated, better able to become part of normal working society and better able to function in a family environment. When Charlie Taylor produced his advice, which has already been mentioned, on the education of children in custody, his aims were exactly those: to ensure that the quality of education in custodial institutions, which currently is extremely variable, from the excellent to the terrible, should reach a good standard, comparable with that provided by decent schools around the country.
There is an issue about numbers. I would not like it to be taken that every local authority will be required to provide an educational provision for those children who come from that local authority. I know that is not what the noble Lord, Lord Ponsonby, with all his knowledge of this issue, is aiming at. There are well under 1,000 children in custody—significantly fewer than there used to be—which, after all, is the roll of a typical London comprehensive school as we speak. It would not be in the public interest to have a large number of academies for children in custody around the country because it would not be possible to supply the quality of education. However, as Charlie Taylor emphasised, we need the balance between having good schools or academies—whatever one calls them—for children in custody and local authority provision of the kind envisioned by the noble Lord, Lord Ponsonby, which ensures that they are kept in touch with their communities and their families and where they will probably go back to live after they leave custody.
It seems to me that, if all that is right, it is beyond argument that local authorities should be able to participate in this process without hindrance and establish educational institutions for those in custody, and that there should be as few obstacles in their way as possible. Once that is achieved, they will have to compete with everyone else who is in the area—that is perfectly sensible—but it would be wrong, for policy reasons that are, in my view, poorly conceived, to obstruct a legitimate role for local authorities.
Baroness Blower (Lab)
My Lords, it is a pleasure to follow the noble Lord, Lord Carlile of Berriew. As some noble Lords will know, I spoke on issues relevant to this amendment at an earlier stage of the Bill.
In quoting the Taylor review, the noble Lord, Lord German, made the case for his Amendment 90A. It would be singularly inappropriate—I think this was the point made by the noble Lord, Lord Carlile—to debar all local authorities from setting up appropriate provision simply because of the use of the word “academy”. This is wrapped up with other aspects of educational policy. If the local authority is capable of providing what would manifestly be the best institution and provision for this group of young people, who need absolutely the best quality of education that can be afforded to them, it should do so. I take the view that the provision in Amendment 90A should categorically be in the Bill to ensure that we do not debar any local authority from engaging in the process to set up an institution. As has already been said, this does not require that local authorities should do it but it does not debar them; debarring them would be unreasonable.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
My Lords, this group of amendments covers Part 9 of the Bill. I will cover the group in two parts, if I may.
Amendment 90A in the name of the noble Lord, Lord German, would allow local authorities to establish and maintain secure academies either alone or in consortia. The noble Lord kindly mentioned the sustained engagement that he has had with me and others on this matter; in turn, I acknowledge my gratitude to him for his time and commitment. As he mentioned, I wrote to him and the noble Lord, Lord Marks, outlining that, in our view, it would be legally possible for a local authority to set up an entity capable of entering into academy arrangements directly with the Secretary of State, and that this is not prevented by the Academies Act. Therefore, as I set out in that letter, there is no legal bar to what the noble Lord wants to happen. I understand that, as he said, he wants to put the matter “beyond any doubt”, but I have explained in writing that there is no legal doubt on this point at all; indeed, I think I heard him accept this afternoon that it is “clear” there is no legal bar. I therefore say to him and the noble Baroness, Lady Blower, that there is no issue of being debarred here. I suggest that the amendment is therefore unnecessary.
I accept that the Government’s policy remains that academy trusts are not local authority-influenced companies and that our position on secure schools is to mirror academies’ procedures. However, I can confirm that, when considering the market of providers of future secure schools, my department will assess in detail the potential role of local authorities in running this new form of provision. We of course recognise, as the noble Lord, Lord Carlile of Berriew, noted, that local authorities have a long-established role in children’s social care and the provision of secure accommodation for children and young people. In particular, the secure children’s homes legal framework may present a more straightforward route than the 16-19 academies framework for the expansion of local authority involvement in the provision of secure accommodation. However, I reiterate that there is no legal bar here. I therefore suggest that the amendment must necessarily be unnecessary.
I now turn to Amendments 90B to 90F, in the name of the noble Lord, Lord Ponsonby of Shulbrede. Local authorities have a duty, under the Children Act 1989, to ensure sufficient, appropriate accommodation for all the children they look after and to ensure sufficient children’s homes for other children whose welfare requires it, whether or not they are looked-after children. I recognise that some local authorities have sometimes found it difficult to access the most appropriate accommodation, particularly for children with the most complex needs. It is right to say, both from the judgment of Lord Justice Baker, which was mentioned, and indeed from other judgments, that some of these children have extremely challenging and very complex needs. It is also the case that, sometimes, children are placed in locations away from home when they may be better served by a placement in their local area if one were available. We are looking carefully at that, not only in my department but in others as well.
We are taking significant steps to support local authorities to fulfil their statutory duty. We have started a programme of work this year to support local authorities to maintain existing capacity and to expand provision in secure children’s homes to ensure that children can live closer to home and in provision that best meets their needs. In the spending review we announced £259 million to continue this programme to maintain and expand capacity in both secure and open residential children’s homes. We acknowledge, as the noble Lord, Lord Ponsonby, said, that it may take—I will use the same phrase—some time to see all the benefits of that capital investment, particularly when you are talking about new builds, but it is the case that the capital programme will also result in increased capacity in the secure children’s home estate in the shorter term as we seek to create more beds through investment in a range of projects, including extensions of current buildings, refurbishments and rebuilds. I know that in the judgment referred to by the noble Lord, Lord Justice Baker used the phrase “urgent attention”, and that is what we are giving this problem.
Ofsted has also taken steps to support local authorities in this area. It has an amended process to make it easier for local authorities or other providers to apply for registration of children’s homes in emergency situations. It is also now easier to open and run a single-bed children’s home, which can be one of the most commonly needed types of accommodation when the child has very complex needs. It can be almost impossible, sometimes, to have more than one child in that location. Ofsted has now published guidance on these changes, and I hope that will help as well.
Before I sit down, I should also remind the House of two other relevant pieces of work ongoing in this area. First, the independent review of children’s social care, which commenced in March last year, is looking at this whole area in a fundamental way. Secondly, also in March last year, the Competition and Markets Authority launched a market study examining the lack of availability and increasing costs in children’s social care provision, including children’s homes and fostering. It has proposed a number of changes, of which I will not go into detail now, but they are important. We will look at the full reports when they come out. I expect both of those pieces of work to be serious and substantial reports.
I recognise the aims of all noble Lords who have supported these amendments; we all share the same aims here, but I suggest that we have existing statutory requirements and significant, wide-ranging and independent reviews under way, looking at the whole care system, alongside that CMA market study. For those reasons, I hope the noble Lord, Lord German, will withdraw his amendment and the noble Lord, Lord Ponsonby of Shulbrede, will not press his. I urge them to do so.
Lord German (LD)
My Lords, I am deeply grateful to all who have contributed and to the Minister, who has not been able to go beyond the text of the letter that he sent to my noble friend Lord Marks. Although I understand that, it just reinforces the position that I outlined at the beginning.
To reiterate the point made by the noble Lord, Lord Carlile of Berriew, we are seeking the best, and to not leave out a potential bidder who could be one of the best is all that this amendment is about. It is simply to make sure beyond doubt. We understand that there is a legal route through this. I did not read out the exact words that the Minister repeated, but there is a route through—although he does say that it would place burdens on local authorities. Interestingly, and moreover, he said earlier that it also conflicts with the policy of academies.
The one thing the Minister did say, both in replying and in his letter, was that they will keep this issue under review. The problem with keeping something under review is that the process will already have started, and keeping it under review does not mean that there will necessarily be any changes or any scrutiny in this House.
The noble Lord said that there are two routes: the academy route, which local authorities will be excluded from, and secure family accommodation, which they want to encourage local government to do. Charlie Taylor’s review and report seek integration, not silos. It would be sensible to make sure that, at this point, there is absolutely no doubt. For the simple reason that we have to be able to search for the best and get the best, this amendment should be part of the Bill and not part of some future discussion—which may or may not produce a sensible outcome, as far as I am concerned. I am therefore minded to seek the view of the House on this matter.
Lord Paddick
Member’s explanatory statement
This amendment would raise the threshold for the standard of proof required to impose an SVRO, from a civil standard (the balance of probabilities) to the criminal standard (beyond reasonable doubt).
Lord Paddick (LD)
My Lords, I rise to move Amendment 90G in my name, and to speak to some of the other amendments in the group—but, with the leave of the House, I shall not speak to all 23 of them. We now come to what the Government optimistically call “serious violence reduction orders”. These would allow the police to stop and search people without any suspicion that those targeted have anything on them that they should not legally have in their possession.
This is yet another form of stop and search without suspicion, which is notorious for three things. First, understandably, it is notoriously ineffective, even compared with stop and search based on suspicion. Secondly, it is, notoriously, disproportionately focused on black people, even compared with stop and search based on suspicion; and, as a consequence, it is notorious for the damage it causes to the relationship between the police and the communities they are supposed to help.
The Minister cited in Committee the fact that young black people are 24 times more likely to be victims of homicide than young white people. That is exactly why the police need to work together with those communities to build trust and confidence, and to demonstrate that they are on their side, and not using powers disproportionately against them, as these new powers, by the Government’s own admission, will continue to do.
It is not just me saying that disproportionate use of powers against certain communities—the very communities that need to work together with the police to tackle knife crime—is “undermining police legitimacy”. Those are the words of Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services. Serious violence reduction orders are likely to make serious violence worse, as they further alienate the very communities that the police need to co-operate with them to identify the perpetrators.
I was a sergeant in Brixton at the time of the Brixton riots in 1981; I was a chief inspector in Brixton 10 years later; and I was then the police commander in charge of Brixton 20 years later in 2001. In my professional judgment, serious violence reduction orders—in fact, any form of suspicionless stop and search—are counterproductive. That is why Amendment 101 would repeal Section 60 of the Criminal Justice and Public Order Act 1994. Only one in 100 Section 60 searches results in a weapon being found, and black people are 18 times more likely to be targeted by the police than white people—compared with nine times in the case of stop and search, where the police must justify their decision. I remind the House of what I said in Committee: Section 60 is not used at all in Northern Ireland for fear of the damage it would cause to police-community relations. It should not be used anywhere in the UK and should be repealed.
Amendments 90G and 90M follow the well-worn path that we on these Benches have consistently trodden, and where previous Governments have agreed with us. They realise the injustice, as we do, of allowing the breach of an order made on the balance of probabilities to be a criminal offence. When it was realised that ASBOs—the first of this kind of civil order with criminal sanctions—led to large numbers of people being criminalised, the then-Government changed course and replaced them with wholly civil orders and sanctions. The Minister in Committee cynically cited precedent for this approach, but it is an approach that we on these Benches have opposed every single time it has been proposed. Amendment 91C would also apply the higher standard of proof—beyond reasonable doubt—to renewals of SVROs. Amendment 90H, which I have signed, would disallow an SVRO being applied on the grounds that someone simply had a knife on them when an offence was committed.
The Minister’s quite extraordinary letter of 6 January tragically fails to answer my criticism, made in Committee, that someone who was carrying a knife lawfully and who did not use the knife in the commission of any offence could still be made the subject of an SVRO. The letter says:
“Whilst you are correct … this could include… where a person is caught unlawfully carrying a bladed article or offensive weapon.”
If they are caught unlawfully in possession of a bladed article or offensive weapon, they can be charged with that offence and then be made subject to an SVRO. Referring to the examples I gave—of a chef, an electrician or a Sikh in lawful possession of a knife—the letter goes on:
“In the examples outlined in the debate it would be difficult to see how a court might consider that an SVRO is necessary to protect the public.”
Is the Minster not aware of the Metropolitan Police gang matrix, where even innocent bystanders at a shooting were characterised as gang members? Any evidence, whether normally admissible in a criminal court or not—hearsay, gossip or rumour—can be given in support of an SVRO.
As the Minister has recently admitted, public trust in the police has been seriously undermined and distrust is even worse among the communities most seriously affected by knife crime. Allowing the police free rein to say whatever they want in support of an SVRO will make a rapidly deteriorating crisis of confidence in the police service even worse. Hence, Amendments 90N, 90P and 90Q would restore the standard of evidence used in the granting of SVROs to that which would have been admissible in the proceedings for the substantive offence. We also strongly support Amendments 90J, 90K and 90L but I will leave others to speak to them.
We have tabled Amendment 91A for the reasons that my noble friend Lord Marks of Henley-on-Thames gave in Committee. There needs to be a reasonable excuse defence for wrongly telling a police officer that they were not subject to an SVRO—something that the police officer could immediately check in any event. Amendment 91B removes the new offence of obstructing a constable in the execution of his duty in relation to SVROs as this is already covered by existing legislation. Amendment 91D limits the renewal of SVROs to a maximum of four years, allowing those subject to them to move on with their lives rather than being targeted and harassed by the police indefinitely, even if they commit no further offences.
Amendments 95A and 95B, to which I have added my name, would prevent SVROs being introduced beyond the pilot phase until a report on the pilot had been laid before Parliament and both Houses had agreed to its rollout. We need to be sure that these orders will not be counterproductive. Amendment 95C would strengthen the pilot; I am sure that the noble Baroness, Lady Meacher, will explain this further.
If the Government insist on proceeding with this dreadful measure, they should at least limit the damage until they are sure that it will not make matters worse. We support all the amendments in this group.
Baroness Meacher (CB)
My Lords, I will speak to Amendments 90H and 90J, as well as 95A, 95B and 95C, but, before going into the arguments for those amendments, I express my strong support for Amendments 90G and, indeed, all the amendments in this group. I have such considerable concerns about the detrimental impact of these serious violence reduction orders that I believe that any way in which we can limit their detrimental consequence should be supported.
I begin by addressing why I hope the Government will make adjustments to the Bill in view of those considerable concerns—expressed not just by those of us in this House but by many organisations in the community, including Amnesty International—about the severe consequences of SVROs for so many innocent young people and the need to restrict these provisions appropriately.
As Ministers know, SVROs would expand stop and search powers to enable the police to stop and search someone whenever they are in a public place, without any suspicion of current wrongdoing, simply on the basis of a past conviction that may or may not be a knife offence. The purpose of Amendments 90H and 90J is to put right this apparently unintended wrong.
The Minister repeatedly stated in Committee that
“at the point at which … someone is issued with an SVRO, they will have been convicted by the court of a knife or offensive weapon offence”.—[Official Report, 17/11/21; cols. 310-311.]
However, the legislation as it stands makes it clear that an SVRO can be issued to individuals who have not been convicted of a knife or offensive weapon offence. New Clause 324A(3) clearly allows for an SVRO to be issued if the offender had
“a bladed article or offensive weapon with them”
or, under subsection (4)—this is in many ways much worse—if the offender
“knew or ought to have known”
that someone else had a knife. This could include someone convicted of shoplifting who happened to have a penknife in their pocket. It could also—this is really important, and I hope that the Minister will respond—include people in abusive and coercive relationships, who may have known or, according to the Bill, should have known that their abuser had a knife.
Will the Minister say whether she believes that individuals involved in these ways should be regarded as having committed a knife crime and therefore liable to have an SVRO imposed? I feel quite certain—because I know the Minister and know that she has great integrity—that she will not want these people to find themselves caught up with an SVRO.
There are many reasons to amend the Bill as proposed in Amendments 90H and 90J. First, as Agenda has said, the proposed terms of an SVRO render invisible the impact of coercion in relationships experienced by many young women drawn into the criminal justice system or at risk of criminal exploitation. Ministers need to take account of a study by Metropolitan University and JENGbA which examined 109 joint enterprise cases involving women and girls, the majority of whom had convictions for serious violent offences. The study found that none of the women involved had used a deadly weapon and in 90% of cases they did not engage in violence at all. In half the cases, the women were not even present at the scene. Perhaps the Minister can comment on this study and its implications for Amendments 90H and 90J. We are simply asking the Government to adjust the Bill to bring it into line with the Conservative Party manifesto, which makes clear the aim to make
“it easier for officers to stop and search those convicted of knife crime.”
The removal of new Clause 342A (3)(b) and (4) would achieve this alignment, and I hope the Government may be willing to do that. As Minister knows, the College of Policing has expressed its concerns that the use of stop and search without an intelligence-led approach is unlikely to reduce crime.
In addition, there is no evidence to suggest that SVROs will be effective in reducing knife crime. This point brings me on to the other amendments I have tabled in this group—Amendments 95A, 95B and 95C— which focus on the need for the pilot of SVROs to be comprehensive and meaningful. Amendments 95A and 95B require a vote by both Houses. It is crucial to have this democratic control before these SVROs are introduced. This must happen under these amendments before SVROs can be commenced.
Amendment 95C strengthens the pilot to ensure that key issues are examined. A key reason why these amendments are vital is the experience of a pilot into the relaxation of the best use of stop and search safeguards. The rollout of these changes was announced by the May Government prior to the publication of the evidence arising from the pilot. The Government were forced into a U-turn by a legal action, but they have continued to refuse to publish the evidence on the grounds that they need a safe place in which to discuss changes. Are we going to be up against this sort of argument in this context? Amendments 95A and 95B would ensure publication of the evidence and parliamentary scrutiny before SVROs could be rolled out.
We know that the proposed new measures pose significant human rights impacts, as the noble Lord, Lord Paddick, pointed out. Black people are 18 times more likely to be stopped and searched than white people. They do not commit these crimes 18 times more than white people. Also, only 4% of stops find a weapon. The pilot will need to show that SVROs meet their stated aims of breaking the cycle of offending and protecting our communities from harm. The pilot also needs to analyse the effect upon others who will be severely affected by SVROs as the Bill stands—for example, exploited women. It is for them, in particular, that SVROs must not be applicable to people who knew or ought to have known that someone else had a knife. I am sure the Government do not wish to bring these women into the criminal justice system, as others have already said.
Amendments 95A and 95B are hugely important because they ensure that SVROs can be introduced only if Parliament is satisfied on the basis of the evidence from the pilot that they will reduce serious violent crime and that the consequences for the human rights of individuals and communities are proportionate and justified.
Baroness Jones of Moulsecoomb (GP)
As a Green, I am very concerned about the Government undermining the doctrine that police on these islands gain their authority from the consent of the governed. Overuse of stop and search powers has deeply undermined community consent in many areas of the country. We worry all the time about the police being constantly distrusted. That is no wonder, especially with a measure such as this. There are racial and socioeconomic disparities in who gets targeted by the police—we cannot avoid that. These government severe violence reduction orders will create, as the noble Lord, Lord Paddick, has said, a new suspicionless stop and search power, and once a person is issued with one of these orders they could face unlimited interference from police officers. We have to ask: is this the sort of measure that will bring those offenders back into society or will it turn them further away?
The Greens will support any amendments that improve this system of serious violence reduction orders, in particular Amendments 95B or 95A—whichever amendment tabled by the noble Baroness, Lady Meacher, comes up for a vote. That the reports from a pilot project are approved by Parliament before these orders can be deployed more broadly seems to me to be common sense. Why on earth would they be brought in before they have been measured? It is essential that the Government prove the efficacy of these measures and demonstrate that they are not being used in a way that is racially or otherwise discriminatory.
I particularly support Amendment 101 from the noble Lord, Lord Paddick, which would repeal the existing powers of suspicionless stop and search. There should not be a power for the police to search without reasonable suspicion.
The Lord Bishop of Manchester
My Lords, I support Amendments 90H, 90J, 95A, 95B and 95C, to which I have added my name. I also signal my support for other amendments in this group which also seek to control more tightly how serious violence reduction orders will operate. I draw your Lordships’ attention to my work on policing ethics, both for Greater Manchester Police and for the National Police Chiefs’ Council, as set out in the register of interests.
As the noble Baroness, Lady Meacher, has indicated, Amendment 90H seeks to ensure that an SVRO can be applied only when a bladed article or offensive weapon is used to commit an offence, not simply when such an item happens to be present and in the possession of the defendant. As the noble Lord, Lord Paddick, has indicated, as presently drafted, the Bill requires no substantive link between the weapon and the offence. An individual could, for example, commit a road traffic offence while driving home from a church picnic, with their used cutlery on the passenger seat next to them, and the prosecution could ask for an SVRO.
I can see that subsection (5) of the proposed new chapter is intended to mitigate that by requiring the court to consider that imposition of the order is necessary to protect the public or the defendant from possible future offences involving such weapons. However, I do not believe it adequately achieves that objective. Asking a court to conject what might happen in the future can all too easily invite decisions taken on discriminatory or flimsy grounds, especially as no court would wish to face public criticism for having failed to apply an SVRO should later violence occur. To legislate for future conjecture requires a robust link to what has already happened. Subsection (3)(a) gives that; it requires that the weapon was used by the defendant in committing the offence in question. Deleting subsection (3)(b), as this amendment seeks to do, would ensure that any order is based on genuine and evidenced risk. To put it bluntly, it would pass my church picnic test.
Amendment 90J, if I may turn to that, seeks to more closely tie the order to the offence by limiting it to the actual person who used or had possession of the weapon, not some putative third party who
“knew or ought to have known”
that they had it. The de facto joint enterprise element in the current drafting of this clause widens the net substantially for who can be affected, and includes people not convicted of knife crime. As the noble Baroness, Lady Meacher, has just said, this is likely to disproportionately affect women and girls, who may well know or suspect that a partner or family member may be carrying a weapon but are far too vulnerable to be able to extricate themselves from a situation where violence involving such weapons may be committed by others.
I understand that the intention may be to provide such vulnerable adults with an excuse to stay away from both people and situations with which violence may be associated, but when I try to put myself in the position of such a person, I cannot really imagine saying to my partner or brother: “Oh, I must not be near you when you have a knife because I might get an SVRO against me.” I think these people are far too vulnerable. I hope I have persuaded your Lordships that Amendment 90J will address this deficit.
Finally, on Amendment 90J, apart from it being grossly unfair by ignoring the impact on vulnerable people, subsection (4) appears to be unworkable. How will the court determine if someone “ought to have known” that some other person had a knife? The amendments in the name of the noble Baroness, Lady Armstrong, tease out this point specifically. I will leave others to speak to them at greater length, but if our own Amendment 90J does not win your Lordships’ support, I would hope that her amendments are more persuasive.
I now turn to Amendments 95A, 95B and 95C on the pilot scheme. In order to understand how SVROs operate in practice, these are entirely welcome. SVROs present a major innovation. There are significant risks of dangers from unexpected consequences—dangers that may outweigh any good that SVROs achieve. If we are to roll them out across the country, we need to have confidence that they are doing the job intended and making things better and not worse. For all the eloquence of our arguments in this House, there is nothing quite like having real, practical experience on the ground to draw on if we are going to get things right. These three amendments, taken together, simply seek to strengthen the pilot; to make it a genuine gathering of all the most relevant evidence, and one that will feed into a proper decision-making process here in Parliament, ahead of SVROs being rolled out across the nation.
In my early days as Bishop of Manchester, we had an idea of how we might make better and more locally informed decisions on where we deployed our vicars. We set up a two-year pilot across about a fifth of our dioceses. Towards the end of that period, we commissioned an independent evaluation by outside experts. We learned a huge amount from the exercise, and, in consequence, we never rolled out the substantive project. We did something different; we did something better. A pilot has to have the capacity to substantially implement the eventual shape of whatever is the final product, otherwise it is simply window dressing.
It is clear from speeches already made here today that there is considerable uncertainty about SVROs. In particular, noble Lords have drawn attention to the danger that they become associated with disproportionality and hence diminish confidence in policing and the courts. None of us wants that. We noted the risk that, rather than prevent criminalisation, they may draw more vulnerable people—especially young women—into the criminal justice system. We have remarked that extensive use of stop and search powers, especially in the absence of specific evidence of intention to offend, has over and again proved counterproductive. These last three amendments cover both the process and the content of the pilot evaluation. They will make for much better decisions on how and when, and perhaps most crucially if, SVROs are rolled out across the nation. I hope the Minister will be minded to accept them or to meet us to find an agreed way forward.
Baroness Hamwee (LD)
My Lords, I wonder whether I could ask the Minister a question about her amendments to Clause 141. This takes forward to one point of detail the comments made by other noble Lords about targeting particular groups of possible offenders. Amendments 92 and 93 would extend the guidance from the exercise of functions by the police to, as in proposed new subsection 1A(b),
“guidance about identifying offenders in respect of whom it may be appropriate for … serious violence reduction orders to be made”.
To me, this reads very much like profiling. Can the Minister tell the House whether “identifying offenders” is about identifying particular individuals or a cohort, class or demographic in respect of whom the Government may see SVROs as appropriate?
The Lord Bishop of Gloucester
My Lords, I rise to support in particular Amendments 90H, 90J, 90K and 90L. As has been said, they are critical to ensuring that more vulnerable women are not drawn into the criminal justice system through the de facto joint enterprise element of SVROs. Probably like other noble Lords, I was shocked to read the briefing from Agenda, which states that analysis of
“109 joint enterprise cases involving women and girls”
shows that
“there was not a single case in which women and girls had handled a weapon; in 90% of cases they engaged in no violence at all; and in half of the cases they were not even present at the scene of the crime.”
As we have heard, SVROs will mean that women can be given an order based on a single judgment that, on the balance of probability, they “ought to have known” that someone in their company was in possession of a knife. That key phrase, “ought to have known”, is really troubling. Will the Minister consider how this fits in with wider policy, including the female offenders strategy, to limit the number of women serving short sentences and prevent reoffending?
We have a duty to limit unintended consequences. These amendments would do just that.
Lord Sentamu (CB)
My Lords, I rise to support Amendments 90G, 90H and 90J, but I will concentrate on Amendment 90G. I declare an interest: when I was a vicar in Tulse Hill, south London—I was there for 14 years—I was stopped and searched a number of times. I asked the police why, particularly when I did not have my dog collar on because I had gone to B&Q to get some paint to decorate our house. They said that they wanted to make sure that the tins of paint had not been stolen. I had to produce a receipt. I was then let go, but there were other occasions; it was not just a one-off.
I then became the Bishop of Stepney. I had been there for only about 18 months when, one evening, having taken my wife to a selection conference, on my way back, at about 10 pm, on that wonderful hill in London, I was stopped and searched. The man wanted me to open my boot, which I did. As I stood up, he suddenly saw my dog collar and purple shirt and said, “Whoops”.
I was an adviser to the Stephen Lawrence inquiry. By the way, it was not the Macpherson inquiry, as people tend to call it. If you look at the book, you will see that it was the Stephen Lawrence inquiry, chaired by Sir William Macpherson of Cluny, who died last year.
Lord Moylan (Con)
My Lords, I generally support this important legislation, but I expressed at Second Reading and again in Committee my sense of unease about the whole concept of serious violence reduction orders but also about the detail of their implementation. It is clear that my arguments have not borne the fruit I would hope to see, because I have read—since she kindly copied it to me—my noble friend’s letter to the noble Lord, Lord Paddick, in which the Government made it clear that they did not see any scope for budging either on the principle or on the detail of the implementation of these provisions. So, rather than engage in a discussion across a broad front, I shall simply focus my few remarks on Amendments 90K and 90L in the name of the noble Baroness, Lady Armstrong of Hill Top, which deal with what might be the most egregious question on this subject, that of “ought to know” or “ought to have known”, depending on how it is phrased in the Bill.
The Government are proposing that people should be subject to these orders, which are serious constraints on their liberties and which have potentially severe reputational consequences. In some cases, these may be merited, but in the case of “ought to have known” it is extremely difficult to accept that the burden on those who receive these orders is merited, on the basis not of their carrying a knife, not even that they knew a knife was being carried but that they ought to have known a knife was being carried.
There are three essential problems. The first is meaning. The noble and right reverend Lord, Lord Sentamu, pointed to the difficulties that arise from the variability of language. The expression “ought to have known” is one that we can easily use in different ways in ordinary, natural language. But we are dealing here with language that ought to be drafted in a precise fashion and can be applied in a predictable way in a court of law, because we want our laws to be predictable. We want people to know that, if they do this or that, they will be in trouble, but if they do not do so, then that is okay. I do not know what “ought to have known” means in a legal sense.
The second problem is evidence. Even if you had a clear understanding of what the words “ought to have known” mean, how is that to be established in a court of law when, as I have said before to your Lordships, it is difficult enough to establish in a court of law what somebody did or did not know, let alone what they ought to have known. There is an evidential question here.
The third problem arises from the first two. It will be a decision of this Parliament to adopt this language which throws a huge interpretational burden on the courts. We do not know how the courts are going to interpret or implement this language. I do not want to draw unfair parallels, but when we discussed in Committee and on Report the question of prisoners serving indeterminate sentences for public protection, it was clear that the Home Secretary of the day, the noble Lord, Lord Blunkett, did not expect the provision to be applied by the courts with the liberality that the judges felt obliged to apply because of how it had been drafted. I hope I have explained that correctly. In other words, the noble Lord, Lord Blunkett, thought it would be applied only occasionally, but when the judges read what they were expected to do, they felt obliged to apply it more liberally to far more cases, which had never been his intention when he had proposed it. We are potentially in similar circumstances here. We simply have no idea, if we agree this language, how it is going to be applied by the courts in actual cases: with what breadth or how frequently it will be applied to people who were not carrying a knife and did not know that a knife was being carried but it is felt on some basis that they ought to have known.
I am not trying to detract from the other amendments in this group by focusing my remarks on this narrow point, which has been addressed by other noble Lords. I am focusing on these two amendments because I would hope that my noble friend might, after reflecting on it, be willing to come forward at Third Reading with something that rethought this approach. Or at the very least, if it did not rethink it, she would say that she was going to add words or guidance or some other supplement to the Bill which would make the circumstances in which this applied very specific such that we had that level of certainty that we did not impose this burden on the courts. We should have certainty in law but also certainty in our own minds as to how frequently and commonly this penalty would be applied in the event of “ought to have known” cases.
Lord Hogan-Howe (CB)
My Lords, I rise to support the general thrust of what the Government are trying to achieve, although I have some sympathy for one or two points that have been raised by previous speakers. I do not speak as a zealot for stop and search. It has dangers, which I hope I can persuade noble Lords I have taken seriously in the past.
The Government seem to be trying to change the culture of people carrying knives, either in public places or sometimes in private. Far too many people have been carrying knives and clearly still are, leading to minor arguments ending up in fatal events. We know that people who are repeat offenders disproportionately account for a disproportionate amount of crime. As few as 10% of offenders, on some occasions, can account for two-thirds of the crime. That applies to victims as well as to the places that they meet, which are repeat locations. Legislation over the years has tried to do something about that and, I think, has generally been well intended.
I agree with many of the things that the noble and right reverend Lord, Lord Sentamu, has said. He had a worrying experience, but a lot of it has been London based. For historical reasons, there have been three different types of legislation which have caused real problems in this city, but occasionally in others. The sus law of the 1960s allowed unqualified stop and search. That caused a great many problems and was got rid of.
Then along came Section 44 of the Terrorism Act 2000. Section 44 was precisely intended for locations that were likely to be attacked by terrorists—places such as Parliament. It was intended to draw a line around places and, if someone went into this area, they could be searched without cause. In fact, the Metropolitan Police applied that throughout London. Every one of the 32 boroughs was covered by that piece of legislation, so people who live in London have had that experience of stop and search without cause for tens of years. Whether it be people who are now being stopped and searched, or their parents or grandparents, they have that experience. That is the thing that I am afraid has disproportionately affected how they feel about the legislation.
The latest version is Section 60. The noble Lord, Lord Paddick, raised this and I have some empathy with part of what he said, for the reason I will explain. Section 60 was intended, again, to circumscribe certain areas where there was to be stop and search without cause—perhaps a park where many people had been stabbed or a location where gangs had been meeting and attacking each other. In that area, everybody was warned, “If you go in this area and carry a knife, you are likely to be stopped and searched without cause”, because the idea was to disrupt their offending pattern. I agree with the noble Lord, Lord Paddick, that often these areas are not well described. People are not told that they are about to enter one, so, therefore, when an officer stops someone, they can be suspicious and ask whether they are in a Section 60 area or have they been stopped and searched for no good reason at all.
As I said, I am not a zealot for stop and search. In 2011, when I took over the Met, we had just had the London riots. We never had a public inquiry into those events, but one of the conclusions I drew for myself when I looked at the figures was that stop and search had been very high. In the two preceding years, 2.6 million people had been stopped and searched in London. At the time, there were only 8.4 million people living in London. If we discount people who were not on the streets because they were older or younger, this was a very high number and that worried me. Over the succeeding three to four years, we reduced stop and search by 60% and we reduced Section 60s by 90% because, frankly, they were like confetti scattered around London. Ironically, the more there were, the less they could be policed.
There was a disproportionate amount of vague stop and search. Within that, we had disproportionality: there were very high figures for people of Asian appearance after 9/11 and that was certainly true of the black community as well. Over three years, we managed to get the stop and search disproportionality for people of Asian appearance down, from over seven times more likely than the white community, to less than one compared to the white community. We did not have as much success with the black community. We got better but nowhere near what I would call a more representative look.
I am only trying to convince your Lordships of two things. A targeted stop and search, even where there is not a cause, can be really helpful, either geographically or targeted on the offender. That is where the serious crime prevention orders can make an impact. Generally, they are targeted only at people who have been convicted already of carrying a knife, or who have been carrying a knife and have not been convicted but a court has been persuaded that there is a good reason.
Lord Coaker (Lab)
My Lords, all of us in the Chamber are united by our desire to tackle violent crime, target police resources better and see fewer victims of crime. If we look at the Government’s own statistics with respect to this, it is worth reminding ourselves that to be fair to the Government, this is what they are seeking to try to deal with. In the impact assessment we see that offences involving knives increased by 84% between June 2014 and June 2020, homicides increased by 38% and gun crime rose by 28%. In the year ending June 2020, 262 people were stabbed to death, with 4,800 admissions for assault by a sharp object. Just recently, we have seen the horrific figure of 30 young people murdered on the streets of London. You can see why the Government are seeking to do something.
Any Government would want to do something, but what is being said to the Government is: are the serious violence prevention orders and the way in which they are set up the way to deal with that? That is the purpose of many of the amendments, many of which we support. The purpose of the amendments today—again, we have heard many arguments from many noble Lords in this House—is to raise those concerns and air those issues about how the orders will be used and the breadth of who they can be applied to. There is some difference of opinion, as we have just heard from the noble Lord, Lord Hogan-Howe, in his view of stop and search without suspicion and its use, and others have very serious concerns about it.
If the measures—these orders—are to go ahead, the crucial thing for this House is to ensure that the pilot that the Government have said they will carry out with respect to these orders is absolutely right, and to make sure that it is not just a tick-box exercise that the Government can use to say, “There you are—that proves what we said in the first place.” In particular, we need to look at whether the issues that have been raised, quite rightly, actually occur, in which case the orders would be inappropriate. Most important of all: do the orders work? Will they actually bring down those horrific figures that I just mentioned in the way that we would all want? Do they reduce and prevent violent crime, are they successful at diverting people away from crime and the criminal justice system, and are they a good use of police resources?
I pay tribute to my noble friend Lady Armstrong who, for good reason, cannot be with us today, for her Amendments 90K and 90L, and to the right reverend Prelate the Bishop of Gloucester for her support for them. They raise the issue of women and girls who have been exploited in gangs and are likely to be caught up in the provisions of these serious violence prevention orders, in particular where, in the phrase we have heard from many noble Lords, they “ought to have known” that a companion was carrying a knife. Notwithstanding what has been said, my own experience of this is that “ought to have known” ignores the reality of the coercive and abusive nature of many girls’ involvement in those gangs. It is not the “ought to have known” that we would all think about when we talk about the lives we lead. In the chaotic lifestyle of those gang members, “ought to have known” is an unreasonable expectation. It is absolutely vital that the pilot looks at how those provisions impact on violence against women and girls and their impact on vulnerable and exploited women.
Therefore, because of the importance of the pilot, we strongly support the amendments in the names of the noble Baroness, Lady Meacher, the right reverend Prelate the Bishop of Manchester and the noble Lord, Lord Paddick: Amendments 95A, 95B and 95C. Amendment 95B in particular brings all of these debates together in ensuring that Parliament not only gets a report on the pilot but a detailed answer from the Government on any issues that the pilot raises. Not many amendments could be quite as reasonable as that. It would provide simple parliamentary scrutiny and allow Parliament then to make a decision on whether these orders work and should be rolled out and on whether the issues that many noble Lords have raised are right.
Amendment 95C ensures the pilot is a genuine evidence-gathering exercise and considers, as I say, all the important issues raised. I raised the issue of parliamentary scrutiny in Committee, as did others, and I am grateful to the Minister for writing to the noble Lord, Lord Paddick, in response to the points raised and copying it to other noble Lords. At the moment, the Bill would provide that certain details of the orders are provided in regulations that would be subject to the affirmative procedure, which is welcome. The amendment would take this one step further—quite rightly, which is why we support it. It would ensure that the decision over whether to introduce the orders, once we have genuine evidence on how they have worked following the pilot, is taken by Parliament and not just by the Home Office. I respectfully suggest that that would not be too big an ask. The Government have already accepted that these orders need to be piloted, so if the principle of piloting has been accepted, surely Parliament should be able to scrutinise whether the pilot has been a success and whether the issues raised by noble Lords and indeed others in the other place are right.
All of us are united by a desire to tackle serious and violent crime, but that does not mean that we should just take any action that this Parliament considers necessary without considering the consequences. Stop and search without suspicion is probably one action that highlights that more than any other, but there have certainly been other issues related to women and girls as well. I ask the Minister to consider parliamentary scrutiny and whether these orders should go forward. I would suggest that is a perfectly reasonable response for this Chamber and others to make.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, as we have heard, these amendments are about two things: serious violence reduction orders and stop and search powers more broadly. I am grateful to the noble Lord, Lord Paddick, and the noble Baroness, Lady Meacher, for setting out the case for their amendments, and to other noble Lords for promoting the points of the noble Baroness, Lady Armstrong, in her absence. We wish her well.
Amendments 90G, 90M and 91C would raise the threshold for the standard of proof required to impose an SVRO from the civil to the criminal standard. SVROs are civil orders introduced to protect communities and deter offenders from future offending. As such, we think that the civil standard is appropriate to enable a court to consider a wide range of evidence from both the offender and the prosecution when considering whether to make an SVRO.
Amendments 90H, 90J, 90K and 90L all seek to limit the circumstances in which an SVRO may be made. As regards Amendment 90H, it is the Government’s view that an SVRO should be available when an adult has been convicted of an offence where a knife or offensive weapon was present, whether it was used in the commission of the offence or not. But this does not mean that an SVRO will be applied for, or made, in all such cases. The prosecution would first need to consider whether it was appropriate to make an application to the court for an SVRO. The court must consider it necessary to make the SVRO in order to protect the public or prevent reoffending, and it would be very difficult to see how a court might consider an SVRO to be necessary if there was no evidence of risk of harm involving a knife or offensive weapon or risk of knife or offensive weapons offending; the bladed article was not relevant to the offence; or the individual was in possession of a bladed article with a reasonable excuse such as for use at work or for religious purposes—the right reverend Prelate the Bishop of Manchester gave an example of the church picnic.
Amendments 90J, 90K and 90L would remove provisions in the Bill that would allow an order to be made if another person who committed the offence used or had with them a bladed article or offensive weapon in the commission of the offence and the offender knew or ought to have known that this would be the case. I reiterate that, for an SVRO to be made in any circumstances, the individual must have been convicted of an offence where a bladed article or offensive weapon was used in the commission of the offence or was with either the offender or another individual who was also convicted of an offence arising from the same set of facts. This provision would capture a situation where more than one person was convicted of an offence arising from the same set of facts, but not all the individuals used a bladed article or offensive weapon in the commission of the offence, or had such an item with them when the offence was committed.
In these circumstances, an SVRO may still be necessary to protect the public or any particular members of the public, including the offender, from the risk of harm involving a bladed article or offensive weapon, or to prevent the offender from committing an offence involving a bladed article or offensive weapon—for example, a fight or robbery where the offender in possession of a knife and the offender not in possession of the knife are convicted of offences arising from the same facts. In any such case, the prosecution must consider whether to make an application for an SVRO and the court must consider whether to grant that order. I think the noble Lord, Lord Hogan-Howe, made that point. Both the prosecution and the court therefore retain discretion to determine the appropriate course of action on a case-by-case basis. On my noble friend Lord Moylan’s point about “ought to have known”, I will undertake to ensure that we address that point in the statutory guidance; it is a good point. I also add that the phrase is used in other legislation, so it is not a new concept that is unknown to the courts, albeit that it is used in different circumstances. I will take that one back.
Lord Paddick (LD)
My Lords, I thank all noble Lords for their contributions to this important debate. I particularly thank the right reverend Prelates and the noble and right reverend Lord, Lord Sentamu, for their contributions. Unfortunately, I did not hear the Minister adequately address their points or the issues that I raised. I asked specific questions about the Minister’s letter of 6 January, but she appeared just to stand at the Dispatch Box and repeat what was in that letter.
As far as I am concerned, I would not be satisfied about the pilots, but that is a decision for the noble Baroness, Lady Meacher, to take shortly. My understanding is that noble Lords are coalescing around a vote on Amendments 95A, 95B and 95C, so I think we should get on with it. I beg leave to withdraw my amendment.
“(8A) The court may adjourn any proceedings on an application for a serious violence reduction order even after sentencing the offender.(8B) If the offender does not appear for any adjourned proceedings the court may—(a) further adjourn the proceedings,(b) issue a warrant for the offender’s arrest, or(c) hear the proceedings in the offender’s absence.(8C) The court may not act under subsection (8B)(b) unless it is satisfied that the offender has had adequate notice of the time and place of the adjourned proceedings.(8D) The court may not act under subsection (8B)(c) unless it is satisfied that the offender—(a) has had adequate notice of the time and place of the adjourned proceedings, and(b) has been informed that if the offender does not appear for those proceedings the court may hear the proceedings in the offender’s absence.”Member’s explanatory statement
This amendment makes it explicit that, if an application for a serious violence reduction order is made, the court may adjourn proceedings on the application after sentencing the offender.
Member’s explanatory statement
This amendment widens the power to issue guidance in new section 342J of the Sentencing Code so that guidance may be issued on any matter relating to serious violence reduction orders.
“(1A) The guidance may in particular include— (a) guidance about the exercise by constables, chief officers of police and the chief constable of the British Transport Police Force of their functions under this Chapter,(b) guidance about identifying offenders in respect of whom it may be appropriate for applications for serious violence reduction orders to be made, and(c) guidance about providing assistance to prosecutors in connection with applications for serious violence reduction orders.”Member’s explanatory statement
This amendment provides a non-exhaustive list of the matters that may be covered by guidance issued under new section 342J of the Sentencing Code.
Member’s explanatory statement
This amendment is consequential on Baroness Williams of Trafford's second amendment to Clause 141.
<strong>“342JA </strong> Guidance: Parliamentary procedure(1) Before issuing guidance under section 342J, the Secretary of State must lay a draft of the guidance before Parliament.(2) If, within the 40-day period, either House of Parliament resolves not to approve the draft guidance, the guidance may not be issued.(3) If no such resolution is made within that period, the Secretary of State may issue the guidance.(4) In this section “the 40-day period”, in relation to draft guidance, means the period of 40 days beginning with the day on which the draft is laid before Parliament (or, if it is not laid before each House on the same day, the later of the days on which it is laid).(5) In calculating the 40-day period, no account is to be taken of any period during which—(a) Parliament is dissolved or prorogued, or(b) both Houses are adjourned for more than 4 days.”Member’s explanatory statement
This amendment applies a negative resolution procedure to the power to issue guidance under new section 342J of the Sentencing Code.
Baroness Meacher
Baroness Meacher (CB)
My Lords, I hope the House will forgive me if I say a few words in response to the Minister on Amendment 95A. The fact is that Amendments 95A and 95B would require the Government not only to lay the results of a full pilot before Parliament but to enable Parliament to decide whether SVROs should be rolled out across the country. We know that there is no evidence to suggest the wholesale expansion or extension of stop and search where there is no immediate evidence of potential wrongdoing in the situation. Therefore, all we are asking is that Parliament should be satisfied from the pilot that there is evidence that SVROs will reduce severe violence and protect communities—which we want to happen—and that that can be done without disproportionate detriment, particularly to black communities and to very vulnerable women but also to people in general.
We are asking for the pilot to be presented to Parliament and for Parliament to approve that SVROs should be rolled out. Because the Minister was unable to suggest that there should be any such democratic decision-making on this issue, I would like to test the opinion of the House on both Amendments 95A and 95B —but the vote will be on Amendment 95A, with Amendment 95B as the consequential amendment.
The Deputy Speaker (Lord McNicol of West Kilbride) (Lab)
Amendments 95B and 95C are consequential and will therefore be taken en bloc.
Amendments 95B and 95C
Baroness Meacher
“(3A) The condition in this subsection is that the Secretary of State has laid before Parliament a response addressing any issues identified in the report produced under subsection (3).(3B) A statutory instrument containing regulations under section 178(1) for the purposes mentioned in subsection (1) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.”Member’s explanatory statement
This amendment would ensure that the section concerning Serious Violence Reduction Orders can only be commenced once a report on the pilot has been laid before Parliament and both Houses have voted on its commencement.
“(3A) Before making the report under subsection (3), the Secretary of State must obtain, record and publish all reasonably available data, which is relevant to the effect of the operation of Chapter 1A of Part 11 of the Sentencing Code (inserted by section 141) under subsection (2) over a period of no less than 12 months, including—(a) its impact on the extent to which knives or weapons are carried;(b) its impact on the rate of serious violence;(c) the age, race, and sex (within the meaning of section 5, 9 and 11 of the Equality Act 2010) of each person—(i) in respect of whom an application is made under section 342A(1)(b) of the Sentencing Code;(ii) in respect of whom a serious violence reduction order is made by a court;(iii) in respect of whom an application is made under section 342A(1) of the Sentencing Code and the court has adjourned proceedings pursuant to section 342A(8A) or (8B);(iv) in respect of whom action is taken pursuant to section 342C, 342E, 342F, or 342H of the Sentencing Code; and(v) who is convicted of an offence within section 342G of the Sentencing Code;(d) any action which was taken pursuant to sections 342C, 342E, 342F, or 342H of the Sentencing Code, by reference to the age, race and sex of the offender;(e) the nature of, and reasons recorded for, any such action;(f) any complaint arising from the exercise of powers under section 342E of the Sentencing Code, the nature and outcome of that complaint, and the age, race and sex of the person who made it;(g) the offence within section 342G of the Sentencing Code for which any person was convicted and the sentence imposed, by reference to the age, race and sex of that person;(h) for each serious violence reduction order made— (i) the offence identified under section 342A(1)(a) of the Sentencing Code; (ii) whether the order was imposed under subsection 342A(3)(a), (3)(b), (4)(a) or 4(b) of the Sentencing Code; and(iii) if the order was imposed under subsection 342A(4)(a) or (4)(b), whether the order was made on the basis that the offender knew that a bladed article or offensive weapon was used by another person; or whether the offender ought to have known that this would be the case;(i) whether that operation of Chapter 1A of the Sentencing Code had a discriminatory, disproportionate or other adverse impact on people sharing the protected characteristic of age, race or sex;(j) the number of survivors and victims of domestic abuse, including women who have experienced or are experiencing criminal exploitation, coercive control, or other forms of abuse, who are given such orders, broken down by ethnicity, age, and policing borough.(3B) The report under subsection (3) must include—(a) an analysis of the effect described in subsection (3A), by reference to the data identified in subsection (3A);(b) an equality impact assessment of the operation of Chapter 1A of the Sentencing Code as described in subsection (3A);(c) a description of any guidance or codes of practice, to which the operation of Chapter 1A described in subsection (3A) was subject;(d) analysis of data assessing the extent to which the pilot has reduced serious violent crime and reoffending by comparison with other areas;(e) analysis of what evidence is relied on to justify the imposition of serious violence reduction orders, and whether there is any bias in the decision-making process;(f) analysis of information on the reason for each breach of a serious violence reduction order, any defence pleaded, and the result of the breach proceedings;(g) analysis of any impacts, including equalities impacts, of other positive requirements or conditions imposed on individuals pursuant to section 342C(1) of the Sentencing Code;(h) analysis of any impacts, including equalities impacts, of adjournment of proceedings on individuals where the court adjourns proceedings under section 342A(8A) or (8B); and(i) analysis of any impacts of serious violence reduction orders on survivors and victims of domestic abuse, including women who have experienced or are experiencing criminal exploitation, coercive control, or other forms of abuse, who are given such orders.(3C) Statistical information collected for the purposes of section (3B) from different pilot areas must be collected and presented in a form which enables direct comparison between those areas.”Member’s explanatory statement
This amendment strengthens the pilot provided for under Clause 142, with particular attention paid to equalities impacts and impacts on survivors and victims of domestic abuse and criminal exploitation.
“CHAPTER 1AKNIFE CRIME PREVENTION ORDERSKnife crime prevention order on conviction: adjournment of proceedings
(1) In section 19 of the Offensive Weapons Act 2019 (knife crime prevention orders made on conviction), after subsection (9) insert—“(9A) The court may adjourn any proceedings on an application for a knife crime prevention order even after sentencing the defendant.(9B) If the defendant does not appear for any adjourned proceedings the court may—(a) further adjourn the proceedings,(b) issue a warrant for the defendant’s arrest, or(c) hear the proceedings in the defendant’s absence.(9C) The court may not act under subsection (9B)(b) unless it is satisfied that the defendant has had adequate notice of the time and place of the adjourned proceedings.(9D) The court may not act under subsection (9B)(c) unless it is satisfied that the defendant—(a) has had adequate notice of the time and place of the adjourned proceedings, and(b) has been informed that if the defendant does not appear for those proceedings the court may hear the proceedings in the defendant’s absence.”(2) Regulations under section 178(1) which bring subsection (1) into force only for a specified purpose or in relation to a specified area may—(a) provide for that provision to be in force for that purpose or in relation to that area for a specified period;(b) make transitional or saving provision in relation to that provision ceasing to be in force at the end of the specified period.(3) Regulations containing provision by virtue of subsection (2)(a) may be amended by subsequent regulations under section 178(1) so as to continue subsection (1) in force for the specified purpose or in relation to the specified area for a further specified period.(4) In this section “specified” means specified in regulations under section 178(1).”Member’s explanatory statement
This amendment makes it explicit that, if an application for a knife crime prevention order is made following a defendant’s conviction of an offence, the court may adjourn proceedings on the application after sentencing the defendant.
Lord Sharpe of Epsom
“CHAPTER 4FOOTBALL BANNING ORDERSFootball banning orders: relevant offences
(1) The Football Spectators Act 1989 is amended as follows.(2) Schedule 1 (football banning orders: relevant offences) is amended in accordance with subsections (3) to (7).(3) In paragraph 1(c) (certain offences under the Public Order Act 1986 committed at premises)—(a) after “any offence under section” insert “4,”, and(b) before “harassment” insert “fear or provocation of violence, or”.(4) In paragraph 1(k) (certain offences under the Public Order Act 1986 committed on a journey to or from a football match)—(a) after “any offence under section” insert “4,”, and(b) before “harassment” insert “fear or provocation of violence, or”. (5) In paragraph 1(q) (certain offences under the Public Order Act 1986 which the court declares to be related to a football match)—(a) after “any offence under section” insert “4,”,(b) before “harassment” insert “fear or provocation of violence, or”, and(c) omit “or any provision of Part 3 or 3A of that Act (hatred by reference to race etc)”.(6) In paragraph 1, after paragraph (u) insert—“(v) any offence under any provision of Part 3 or 3A of the Public Order Act 1986 (hatred by reference to race etc)—(i) which does not fall within paragraph (c) or (k), and(ii) as respects which the court makes a declaration that the offence related to a football match, to a football organisation or to a person whom the accused knew or believed to have a prescribed connection with a football organisation,(w) any offence under section 31 of the Crime and Disorder Act 1998 (racially or religiously aggravated public order offences) as respects which the court makes a declaration that the offence related to a football match, to a football organisation or to a person whom the accused knew or believed to have a prescribed connection with a football organisation,(x) any offence under section 1 of the Malicious Communications Act 1988 (offence of sending letter, electronic communication or article with intent to cause distress or anxiety)—(i) which does not fall within paragraph (d), (e), (m), (n), (r) or (s),(ii) as respects which the court has stated that the offence is aggravated by hostility of any of the types mentioned in section 66(1) of the Sentencing Code (racial hostility etc), and(iii) as respects which the court makes a declaration that the offence related to a football match, to a football organisation or to a person whom the accused knew or believed to have a prescribed connection with a football organisation,(y) any offence under section 127(1) of the Communications Act 2003 (improper use of public telecommunications network)—(i) which does not fall within paragraph (d), (e), (m), (n), (r) or (s),(ii) as respects which the court has stated that the offence is aggravated by hostility of any of the types mentioned in section 66(1) of the Sentencing Code (racial hostility etc), and(iii) as respects which the court makes a declaration that the offence related to a football match, to a football organisation or to a person whom the accused knew or believed to have a prescribed connection with a football organisation.”(7) In paragraph 4—(a) the words from “In this Schedule” to “Part II of this Act.” become sub-paragraph (1), (b) after sub-paragraph (1) insert—“(1A) In this Schedule “football organisation” means an organisation which is a regulated football organisation for the purposes of Part 2 of this Act.”, and(c) after sub-paragraph (2) insert—“(3) The provision that may be made by an order made by the Secretary of State for the purposes of this Schedule includes provision that a person has a prescribed connection with a football organisation where— (a) the person has had a connection of a prescribed kind with a football organisation in the past, or(b) the person will or may have a connection of a prescribed kind with a football organisation in the future.”(8) In section 14 (main definitions), after subsection (2) insert—“(2A) “Regulated football organisation” means an organisation (whether in the United Kingdom or elsewhere) which—(a) relates to association football, and(b) is a prescribed organisation or an organisation of a prescribed description.”(9) Section 23 (further provision about, and appeals against, declarations of relevance) is amended in accordance with subsections (10) and (11).(10) In subsection (1), for the words from “related to football matches” to the end of the subsection substitute “—(a) related to football matches,(b) related to a particular football match or to particular football matches,(c) related to a football organisation, or(d) related to a person whom the defendant knew or believed to have a prescribed connection with a football organisation,as the case may be.”(11) In subsection (5), for the words from “related to football matches” to the end of the subsection substitute “—(a) related to football matches,(b) related to one or more particular football matches,(c) related to a football organisation, or(d) related to a person whom the defendant knew or believed to have a prescribed connection with a football organisation.”(12) This section does not apply in relation to an offence committed before the day appointed by regulations under section 178(1) for its coming into force (so far as it has not previously been commenced by section 178(4)(ta)).”Member’s explanatory statement
This amendment modifies the list of relevant offences in Schedule 1 to the Football Spectators Act 1989 which trigger the making of a football banning order to include, in particular, certain offences relating to race or religion and certain online hate offences.
Lord Sharpe of Epsom (Con)
My Lords, I beg to move the amendment in the name of my noble friend Lady Williams of Trafford.
These amendments give effect to a commitment made by the Prime Minister in the immediate aftermath of the final of Euro 2020. The whole of England was disappointed by the outcome, and that is understandable. What was not excusable or acceptable was the racist abuse directed at certain England players. Your Lordships will also be aware of the ubiquitous slow drip of hateful online abuse many high-profile footballers are subjected to. In the light of that behaviour, the Prime Minister announced that we would legislate to extend the football banning order regime to cover online abuse, and that is the purpose of these amendments. In Committee, the noble Lord, Lord Bassam, tabled an amendment directed to the same end. In response, I said that the Government would look to legislate as soon as possible, and that is what we are doing. I hope the noble Lord will feel that his objectives have now been met and will welcome these amendments.
Football banning orders were first introduced in 1989. The intention of these new clauses is to amend the operation of the football banning order regime to enable a court to impose a football banning order against persons convicted of online hate offences connected to football. The amendments will also enable a court to impose a football banning order for other race, religious or sexual orientation hate offences against persons with a prescribed connection to a football organisation where the incident would not fall under the existing coverage. This will prevent such offenders propagating their criminal, hateful views at football matches. I sincerely hope that this measure will also deter others from engaging in similar behaviour that is so harmful to the victims and our national game.
Amendment 96B will amend the Football Spectators Act 1989 to enable the list of relevant offences in Schedule 1 to that Act to be amended by regulations subject to the affirmative procedure. A person can receive a football banning order following conviction for a relevant offence. There is no intention to use the new regulation-making power to add to the schedule offences that do not involve violence, disorderly behaviour or harm to others, or a risk or threat of such, nor to add offences which are not football-related. Rather, this will enable the Secretary of State to ensure that the list of relevant offences for the purposes of football banning order proceedings can be kept up to date and relevant in the event of amendment to the Acts listed in the schedule or developing trends of harm or disorder relating to football, such as online hate offences.
Finally, Amendment 96C will amend the consideration that a court undertakes in deciding whether to impose a football banning order against a person convicted of a football-related offence under the 1989 Act. It will remove the requirement that the convicted person must pose an identifiable risk of violence or disorder at or in connection with football matches. I must again reference the vile online racist abuse of England players after the Euro 2020 final. Under the current test, courts may not be convinced that offenders convicted of racist online offences pose an identifiable risk of violence and disorder at matches. However, I believe that it is imperative to ensure that such offenders can be prevented from spreading their hateful words at football matches. Courts will retain their powers of discretion if there are particular circumstances relating to the offence or the offender which would make it unjust to impose a football banning order, with a requirement that they state in open court their reasons for not doing so.
We can all agree that there is no place for racist abuse in football—or more widely—and it is right that we should send a strong signal that those convicted of racist abuse or other unconscionable hatred connected to football should not be allowed to attend football matches to spread their poisonous prejudices. This is a sensible and much-needed change to the legislation governing football and I ask your Lordships to endorse it.
Lord Paddick (LD)
My Lords, can the Minister confirm the impact these amendments will have on homophobic abuse of soccer players? I think he mentioned it once. Tom Daley on Channel 4’s “Alternative Christmas Message” talked about the fact that no professional footballers in the UK have publicly said they are gay: fear of public reaction is probably a big part of the reason why. In fact, globally, it is my understanding that only one professional soccer player has come out as gay, and he plays in Australia.
People have shied away from a hierarchy of diversity, but I have always believed that racism is a bigger problem than homophobia: some people can hide their sexuality, but few people of colour can hide their race. Having said that, people can hide their religious beliefs; there are many white Muslims, for example. These amendments cover religion but not, at least immediately obviously, sexuality. Racism is still a huge problem, and these amendments are welcome, but where is the clear and unambiguous message in these amendments that homophobic abuse directed at football players is just as unacceptable as racism and Islamophobia? It is not clear to me.
Even the Government’s explanatory statement for these amendments refers to
“certain offences relating to race or religion and certain online hate offences.”
If I am having to search the many and various pieces of legislation mentioned in these amendments to satisfy myself that people like me are covered, then these amendments do not send a clear and unambiguous message that homophobic abuse is as unacceptable as racism and Islamophobia. The Law Commission in its recent report on hate crime identifies the need to place sexual and gender diversity hatred on the same footing as race hatred, so what assurances can the Minister give in this case? I do not want perfection to be the enemy of the good, and there will still be an opportunity to provide clarification at Third Reading, but I look forward to the Minister’s response.
Lord Bassam of Brighton (Lab)
My Lords, it would be remiss of me not to thank the Government for bringing forward these amendments. They very much fulfil the objectives that I set out in moving my amendments in Committee. Imagine my slight surprise when I received an email shortly before Christmas from one of the officials telling me about this, though it had been suggested to me, and that the announcement was going to be made on Boxing Day—not a day traditionally used for parliamentary consideration. But I was pleased to hear that the Government were going to bring forward the amendments. I offered at one stage to co-sign them, but that seems to have got lost in the mists.
I am not entirely convinced that we would have seen these amendments if we had not brought them forward in Committee and threatened the Government with, I suspect, the possibility of a defeat on them. It has taken the Government too long to get to this point. Boris Johnson himself mentioned it back in July, but we have been campaigning on this issue for some years, and these amendments are long overdue.
Turning to the points raised by the noble Lord, Lord Paddick, I too would like to see some clarification as to whether these amendments will cover homophobic abuse. It is fair to say that many of the football clubs are well ahead of the Government on this already. I know that my own football club, Brighton & Hove Albion, has long taken the view that homophobic abuse is unacceptable and made that very clear, not just in its programmes and publicity but in its action. That is to be welcomed. Many clubs have adopted that approach and now take pride in supporting gay footballers and ensuring that people do not get abused in that way at games. That is to be welcomed, but we need some legislative clarity.
I have one further point that I wish to pursue with the Government. The Bill is an opportunity to cover online abuse wherever it manifests. Although football understandably is a natural focus for this because, let us face it, that is where a lot of racist abuse has been channelled over the last few years, particularly last summer, I challenge the Government to bring forward a further amendment which covers other sports. We are all very conscious and aware of the racism that is there in other sports and sporting activities, and the abuse that many black and minority-ethnic cricketers, in particular, have suffered.
We should try to deal with the whole package, and it would be a good challenge for the Government to meet to bring forward amendments that we and, I am sure, other Members of your Lordships’ House would support at Third Reading. We would be more than happy to use our drafting talents to make sure it happened. It would clarify once and for all the position for all sports men and women across the UK, and it would send a strong and important message that this is just not acceptable behaviour in any shape or form in any sporting arena or in any sport.
I support the noble Lord, Lord Paddick, in seeking clarity about homophobic abuse; that is really important. I would like the Government to bring forward further amendments to cover other sports at Third Reading. I do not think that it is beyond the wit of the Government they have clever and cunning draftspeople at their beck and call and there are plenty of us in this House who would want to support that and sign up to that agenda.
I place on record my thanks to the Minister and Ministers generally, to the Home Office staff who have supported them, and to our own staff in our Labour Lords team who did the original drafting, because this is an important step forward and we should recognise that.
Lord Sentamu (CB)
My Lords, I too support these amendments and thank the Government for their clarity; there were some other sections about which we were not sure in terms of their language. Again, sorry to sound as though I am stuck in a groove: in the Stephen Lawrence inquiry and its recommendations there is a definition of a racist incident and a homophobic incident. Parliament, in the other place, accepted all 70 recommendations. If you want to find how to phrase what the noble Lord, Lord Paddick, is talking about, it is already there in the Stephen Lawrence inquiry report and the recommendations that we made.
The thing about the law is that it must be predictable, easy to understand and not shrouded in mystery. I support the noble Lord, Lord Paddick. The Government need to be clear about this and the language because the other place accepted all 70 recommendations. It is in there, and it would be a mistake not to be very clear about the whole question of these homophobic incidents and the abuse that some people have suffered. I would support the Government in finding that language. They could put in similar words about what they have actually done about racism.
Lord Pannick (CB)
My Lords, I agree with the noble Lord, Lord Paddick, that it is very important to have clarity that homophobic abuse is here covered. For my part, I understand—I ask the Minister to confirm whether he agrees—that the substance of these amendments does cover homophobic abuse, in particular proposed new subsection (6) of the new clause, which refers to Part 3A of the Public Order Act 1986, which, as I understand it, specifically covers homophobic abuse, as does proposed new subsection (6)(x)(ii), which refers to Section 66(1) of the Sentencing Code, which, again, I understand covers homophobic hostility as well as racial hostility. But clarity is absolutely essential here.
Lord Sharpe of Epsom (Con)
My Lords, I thank noble Lords for their contributions to this debate. In answer to the noble Lords, Lord Paddick, Lord Bassam and Lord Pannick, I can happily clarify that this includes homophobic and misogynistic hate speech, and all other forms of hate speech. The noble Lord, Lord Pannick, is absolutely right: it is under Section 3A of the Public Order Act 1986. I am afraid I do not have the Sentencing Code so I will have to look into that for him.
The core amendments apply to online hate speech where the court has found on sentencing that the offence was aggravated by racial or religious hostility, or hostility related to disability, sexual orientation or transgender identity. This reflects the five types of hate crime recognised by the law, which I think is the Sentencing Code.
I agree with the point made by the noble Lord, Lord Bassam, about other sports. I have heard the DCMS Minister answer questions on this, and there will of course be other opportunities in other Bills coming up, which I suspect will also have something to say on the subject, but I will take it back to both departments.
Lord Paddick (LD)
Before the Minister sits down, could I clarify what he just said? It threw another confusion at me. He said it covers misogynistic hate speech. I am not sure misogyny is a hate crime. Therefore, I am not sure the Minister is correct on that point. Perhaps he could clarify.
Lord Sharpe of Epsom (Con)
I am afraid I will have to write to him to clarify that point.
Lord Bassam of Brighton (Lab)
My Lords, I am grateful to the Minister for his comments and his agreement to take that away. For our part, we would very much welcome a discussion on that with him and his officials, if that is at all possible. We are some way off from the Third Reading, and, clearly, we would be in a position to bring forward an amendment if that would help.
It would be for the good if we could have some cross-party agreement on this, because it is an issue on which we can have a shared view. That shared view adds extra emphasis and import to the progress that we make. We would very much welcome the Minister facilitating that discussion, and obviously we would be delighted if the Government were to concede and bring forward amendments which cover all other sports as well.
Lord Sharpe of Epsom
“Football banning orders: power to amend list of relevant offences
(1) In section 14 of the Football Spectators Act 1989 (main definitions), after subsection (8) insert—“(9) The Secretary of State may by regulations amend paragraph 1 of Schedule 1 so as to add, modify or remove a reference to an offence or a description of offence.(10) Regulations under subsection (9) may make consequential amendments to this Act.(11) A statutory instrument containing regulations under subsection (9) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.”(2) Section 22A of that Act (other interpretation, etc) is amended in accordance with subsections (3) and (4).(3) In subsection (3), after “order” insert “or regulations”.(4) After subsection (3) insert—“(3A) An order or regulations under this Part—(a) may make different provision for different purposes;(b) may make consequential, supplementary, incidental, transitional, transitory or saving provision.””Member’s explanatory statement
This amendment amends the Football Spectators Act 1989 to enable the list of relevant offences in Schedule 1 to that Act to be amended by regulations.
“Football banning orders: requirement to make order on conviction etc
(1) In section 14A of the Football Spectators Act 1989 (banning order made on conviction of an offence), for subsections (2) and (3) substitute—“(2) The court must make a banning order in respect of the offender unless the court considers that there are particular circumstances relating to the offence or to the offender which would make it unjust in all the circumstances to do so.(3) Where the court does not make a banning order it must state in open court the reasons for not doing so.”(2) Section 22 of that Act (banning orders arising out of offences outside England and Wales) is amended in accordance with subsections (3) and (4).(3) In subsection (4), for the words following paragraph (b) substitute—“must make a banning order in relation to the person, unless subsection (5) applies.” (4) For subsections (5) and (5A) substitute—“(5) This subsection applies if—(a) it appears to the court that the conviction of the corresponding offence in a country outside England and Wales is the subject of proceedings in a court of law in that country questioning the conviction, or(b) the court considers that there are particular circumstances relating to the corresponding offence or to the person which would make it unjust in all the circumstances to make a banning order.(5A) Where the court does not make a banning order on the ground mentioned in subsection (5)(b) it must state in open court the reasons for not doing so.”(5) This section does not apply in relation to an offence committed before the day appointed by regulations under section 178(1) for its coming into force.”Member’s explanatory statement
This amendment amends the Football Spectators Act 1989 so that a court is required to make a football banning order on a person’s conviction of a relevant offence unless there are particular circumstances which would make it unjust to do so. It also makes equivalent provision in relation to a person convicted of a corresponding offence overseas.
“Women’s Justice Board
(1) There is to be a body corporate known as the Women’s Justice Board for England and Wales.(2) The Board is not to be regarded as the servant or agent of the Crown or as enjoying any status, immunity or privilege of the Crown; and the Board’s property is not to be regarded as property of, or held on behalf of, the Crown.(3) The Board must consist of 10, 11 or 12 members appointed by the Secretary of State.(4) The members of the Board must include persons who appear to the Secretary of State to have extensive recent experience with women in the criminal justice system.(5) The Board has the following functions, namely—(a) to meet the particular needs of women in the criminal justice system;(b) to monitor the provision of services for women in the criminal justice system;(c) to advise the Secretary of State on—(i) how the aim in subsection (5)(a) might most effectively be pursued;(ii) the provision of services for women in the criminal justice system;(iii) the content of any national standards the Secretary of State may see fit to set with respect to the provision of such services, or the accommodation in which women are kept in custody; and(iv) the steps that might be taken to prevent offending by women;(d) to monitor the extent to which the aim in subsection (5)(a) is being achieved and any standards met;(e) for the purposes of paragraphs (a) to (d) above, to obtain information from relevant authorities;(f) to publish information so obtained;(g) to identify, make known and promote good practice in— (i) meeting the particular needs of women in the criminal justice system;(ii) the provision of services for women in the criminal justice system;(iii) the prevention of offending by women;(iv) working with women who are, or are at risk of becoming, offenders;(h) to commission research in connection with such practice;(i) with the approval of the Secretary of State, to make grants to local authorities and other persons for the purposes of meeting the aim in subsection (5)(a) and the provision of services to women in the criminal justice system, subject to such conditions as the Board considers appropriate, incl uding conditions as to repayment;(j) to provide assistance to local authorities and other persons in connection with information technology systems and equipment used or to be used for the purposes of the aim in subsection (5)(a) and the provision of services to women in the criminal justice system;(k) to enter into agreements for the provision of accommodation for women in the criminal justice system, but no agreement may be made under this paragraph in relation to accommodation for women in the criminal justice system unless it appears to the Board that it is expedient to enter into such an agreement for the purposes of subsection (5)(a);(l) to facilitate agreements between the Secretary of State and any persons providing accommodation for women in the criminal justice system;(m) at the request of the Secretary of State, to assist in carrying out the Secretary of State’s functions in relation to the release of offenders detained in accommodation for women in the criminal justice system; and(n) annually—(i) to assess future demand for accommodation for women in the criminal justice system;(ii) to prepare a plan setting out how they intend to exercise, in the following three years, the functions described in paragraphs (k) to (m) above, and any function for the time being exercisable by the Board concurrently with the Secretary of State by virtue of subsection (6)(b) below which relates to securing the provision of such accommodation, and(iii) to submit the plan to the Secretary of State for approval.(6) The Secretary of State may by regulations made by statutory instrument—(a) amend subsection (5) above so as to add to, subtract from or alter any of the functions of the Board for the time being specified in that subsection; or(b) provide that any function of the Secretary of State which is exercisable in relation to women in the criminal justice system is exercisable concurrently with the Board.(7) The power of the Secretary of State under subsection (6)(b) includes power—(a) to provide that, in relation to any function that is exercisable by the Secretary of State in respect of particular cases, the function is exercisable by the Board only—(i) where it proposes to exercise the function in a particular manner, or(ii) in respect of a class of case specified in the order, and (b) to make any supplementary, incidental or consequential provision (including provision for any enactment to apply subject to modifications).(8) No regulations under subsection (6) may be made unless a draft has been laid before and approved by a resolution of each House of Parliament.(9) In carrying out their functions, the Board must comply with any directions given by the Secretary of State and act in accordance with any guidance given by the Secretary of State.(10) A relevant authority—(a) must furnish the Board with any information required for the purposes of subsection (5)(b), (c) or (d) above; and(b) whenever so required by the Board, must submit to the Board a report on such matters connected with the discharge of their duties as may be specified in the requirement.A requirement under paragraph (b) above may specify the form in which a report is to be given.(11) The Board may arrange, or require the relevant authority to arrange, for a report under subsection (10)(b) above to be published in such a manner as appears to the Board to be appropriate.(12) In this section “relevant authority” means a local authority, a chief officer of police, a local policing body, a local probation board, a provider of probation services, a clinical commissioning group and a local health board.(13) Schedule (Women’s Justice Board: further provisions) has effect.”Member’s explanatory statement
This new Clause makes provision for the establishment of a “Women’s Justice Board”, along the lines of the Youth Justice Board. The drafting closely follows the form of the provisions establishing the YJB in the Crime and Disorder Act 1998.
Lord Marks of Henley-on-Thames (LD)
My Lords, the amendments in this group propose the establishment of a women’s justice board, along the lines of the Youth Justice Board. I am grateful to the noble Lord, Lord Ramsbotham, and the noble Baroness, Lady Bennett of Manor Castle, for adding their names.
The drafting of the two amendments remains as it was in Committee, and closely reflects the wording of the provisions in the Crime and Disorder Act 1998 establishing the Youth Justice Board. When we debated these amendments in Committee, on 17 November, they enjoyed widespread support from everyone, except the Minister. The diversity and unanimity of the support we received, I suggest, speaks volumes. Indeed, the support from the Labour Party was unqualified. The noble and learned Lord, Lord Falconer, said:
“We on this side of the Committee strongly support these excellent amendments”.—[Official Report, 17/11/21; col. 327.]
He spoke of the need to give real drive to the movement to further the needs of women within the criminal justice system.
No one disputes that the Youth Justice Board has been a resounding success. It has concentrated effort on recognising and addressing the special needs of young people within the criminal justice system. It has diverted many away from involvement with the system, and offered help and support to those who have been convicted and sentenced, both with community sentences and in custodial settings. The figures speak for themselves: in the last 15 years, the number of under-18s in custody in this jurisdiction fell by about three-quarters, to well under 800 now.
The establishment of a women’s justice board could, we believe, achieve similar success for women, by concentrating effort and resources on helping women who come into contact with the criminal justice system, diverting them from custody, improving the effectiveness of community sentences for women, increasing their use in consequence, and building ways of offering women offenders specialist support with the special issues and difficulties that they face. In Committee we debated those at length.
We also considered the appalling effect of custody on women and their children. The harsh truth is that 19 out of 20 children whose mothers are imprisoned are forced to leave their homes. All the evidence is that those children are themselves more likely to become involved in crime, more likely to suffer from mental ill health and to fail at school, and less likely to find stable employment as young adults—all to the detriment of society at large. The Minister, replying in Committee, disagreed with the proposition that there is a crisis of confidence in women’s justice. That is not the view of the overwhelming majority of experts and those working in this area, who are all deeply troubled by the lack of specialist support and consideration for women in the system.
It is true that, as the Minister said, we have the female offenders strategy, which started in 2018, and the Advisory Board on Female Offenders. The Ministry of Justice is doing work in this area, but it was working in the area of youth justice before 1998, and that did not obviate the need for the Youth Justice Board.
The Minister said in Committee, and repeated when we met the other day—I am grateful to him for the time and care that he has taken, as he always does, to consider the arguments on this issue—that the key point, from the Government’s point of view, was that we do not have a separate criminal justice system for women and girls, as we do for young offenders. As he put it, there is no separate legal framework; women are dealt with as part of the adult offender population. He drew a distinction, for that reason, between women’s position in the criminal justice system and that of young offenders, whom the law treats differently from adults.
I am afraid I do not follow that logic. It seems to me that it contains a non sequitur. The Government accept that women, like young offenders, have special needs in the criminal justice system. The Minister himself spoke of women having particular needs which we needed to identify. I say we need to do more than to identify them; we need to address them. He spoke of the prevalence of mental health issues, of the number of women survivors of abuse—I took it that he was referring to both sexual and physical abuse—and of the closer link among women offenders between drug and alcohol abuse and reoffending than exists for male offenders.
The Minister did not speak in Committee about the particular family issues faced by women in the system—but the effects of custody on the children and families of women offenders are devastating. We have heard about them, in particular, in the debates on the amendments proposed by the right reverend Prelate the Bishop of Gloucester on primary carers. It is no answer to the need for special attention to women’s needs in the criminal justice system to say that women are subject to the same criminal law as men. That fact, of itself, does nothing to address those special needs.
The Minister raised in Committee the issue of the time needed to establish a women’s justice board, but if we could achieve, in 23 years, anything like the same improvements as the Youth Justice Board has achieved in that time, that would be swift progress indeed. He also spoke of the cost implications of establishing a women’s justice board. That does not allow for the substantial savings that would follow from keeping even a few women out of custody, with the knock-on social costs of taking children into care, and the social costs that follow from women’s involvement in the criminal justice system, particularly when they receive custodial sentences.
There is simply no genuine and convincing answer to this proposal. I urge the Government simply to accept that establishing a women’s justice board would be the most effective, and the most promising, way to achieve all that they themselves say that they wish to do for women who find themselves entangled in a system that lamentably fails to address their particular difficulties. I beg to move.
Baroness Kennedy of The Shaws (Lab)
My Lords, I support the amendment, because there is a real problem at the heart of criminal justice, which leads to the dissatisfaction that women feel about the justice system. We have created our system around a notion of gender equality that followed on from many years of using the male pronoun, “he”, with the person at the heart of the criminal justice system being a male agent. We then decided that we could not have that any longer, and that the way forward was gender neutrality. But of course gender neutrality is to a large extent a fiction. We know that that neutrality—creating some sort of supposed equality in criminal justice—actually creates further inequality. To treat as equal those who are not yet equal creates only further inequality. I want to emphasise that: it creates further inequality to pretend that we now have equality between the sexes. That is why I feel—although I know it is never comfortable for Governments to take ideas from elsewhere—that having such a board is a necessary part of addressing the great public discontent about the system and the way it deals with women.
I support the idea of a board that looks specifically at women in prison. We know that the majority of them have mental health issues and that their dependency on drugs and drink often derives from backgrounds of abuse: having been brought up in families where abuse was prevalent, or having themselves been at the receiving end of abuse. Understanding women in prison, how they themselves almost invariably have been victims of crime, is one of the ways in which we will progress the system. The Government should adopt this idea.
We need to concentrate on addressing what happens when women go to prison, because often they lose their accommodation and their children are taken into care. The disruption of everything that matters to them is so great that it is very difficult to repair. I therefore support the amendment. It is worthy of this House’s consideration and it is regrettable that it has been dismissed out of hand. There is a problem at the heart of this: you cannot move from inequality to equality simply by saying that there is equality now.
Lord Ramsbotham (CB)
My Lords, I strongly support this amendment. Noting the success of the Youth Justice Board, as the noble Lord, Lord Marks, did, I venture to suggest that many of the problems of women in the criminal justice system would disappear if there was such a board, and the establishment of women’s offending teams.
The Lord Bishop of Gloucester
My Lords, I add my wholehearted support to this amendment. I am very grateful to the noble Lords, Lord Marks and Lord Ramsbotham, and the noble Baroness, Lady Bennett, for their continued commitment to women in the criminal justice system. As bishop to prisons and president of the Nelson Trust, I am acutely aware, as I have said so often, of the need for a gendered approach to justice. The noble Baroness, Lady Kennedy, has just put that very powerfully.
While men and women need to be treated with equal justice, equality is not about sameness. Women are caught up in a criminal justice system that has been designed around men, and there needs to be a gendered lens. As we have heard already, many, many women are more likely than men to be primary carers or victims of abuse or exploitation. When they are given a prison sentence, they are more likely to be given a very short one, often far from home. I do not want to repeat things that have been said so many times in Committee and on Report but, having lost the amendment on primary carers earlier on during Report, I am very grateful to noble Lords for bringing forward these amendments, which will go a long way towards ensuring that we get the same outcomes. I am therefore wholeheartedly glad to support these amendments.
Lord Thomas of Cwmgiedd (CB)
I rise briefly to add my voice in support of the amendments. I accept that the Youth Justice Board has been an enormous success, and that is primarily because it addresses two separate problems to deal with youths. One is the causes and reasons why they offend and the other is the need for their rehabilitation into society. Although, for reasons that are necessary for the trial of youths, they need a separate system, the underlying reason for the Youth Justice Board applies equally to women, in that there are specific causes of offending, the particular vulnerability, the particular issues they have with mental capacity in certain areas, the specific crimes to which they have been subjected and, above all, domestic abuse.
Moreover, it is plain that the kind of rehabilitation that women need is different. They need much more support in integrating them into the community, but they also need not to be treated or dealt with at centres. I warmly welcome what the Ministry of Justice has done and set forth in its strategy. The difficulty is that although there have been numerous reports about what is required—the report of the noble Lord, Lord Farmer, for example, and the many reports of the Prison Reform Trust—what is needed is delivery. Delivery is key to this, and that is why I warmly support this amendment.
Lord Macdonald of River Glaven (CB)
My Lords, I too warmly support this amendment. Like most criminal lawyers, I have often visited women’s prisons and I must tell your Lordships that they are shattering and disturbing places. The sheer amount of human damage that one encounters in women’s prisons is very disturbing. My main reason for supporting this amendment as strongly as I do is precisely the delivery aspect to which my noble and learned friend Lord Thomas has just referred. Something has to be done to persuade the Government, and all of us, I suppose, to focus on the processes that are leading women—mostly damaged women, with children, who themselves are victims of serious crime—into these places. Without a way to focus on this as a public policy that can deliver some change, nothing will change. I strongly believe that the proposal in this amendment, if adopted by the Government, could lead to some desperately needed change.
Lord Pannick (CB)
My Lords, I too support this amendment. It seems to me that the case for the amendment is made plain by the functions of the proposed board, as set out in subsection (5). The functions include meeting the particular needs of women in the criminal justice system; monitoring the provision of services for women; obtaining information from relevant authorities; publishing information; identifying, making known and promoting good practice; commissioning research in connection with such practice; and providing assistance to local authorities and other associated purposes. Is the Minister really disputing that there is a vital need for all of that to be done, and by a body dedicated to that purpose?
Baroness Bennett of Manor Castle (GP)
My Lords, I was pleased to attach my name to these two amendments, and I thank the noble Lord, Lord Marks of Henley-on-Thames, for leading on them. The case has already been clearly made and I will not speak for long, given the hour, but it is worth looking back at the history of this. I looked it up and found a House of Lords Library note from 25 January 2008, referring to a debate drawing attention to the case for setting up a women’s justice board. In 2014, there was an amendment to the legal aid and sentencing Bill seeking to do the same thing. We are often accused of proposing novel ideas that, we are told, we need to go away and think about, but that argument simply does not apply in this case.
The noble Baroness, Lady Corston, produced an enormously important report well over a decade ago that made a huge number of recommendations, most of which have not been implemented. This really is another way, as several noble Lords, particularly the noble and learned Lord, Lord Thomas, have said, of getting at the problem of implementation. We have been talking about how the criminal justice system is failing women for a very long time, and it really is now time to take action. I will finish with a quote from Baroness Howe of Idlicote, who has now retired from your Lordships’ House. She said, back in 2008:
“I must say that I have become tired of seeing this matter brought to debate again and again”.—[Official Report, 31/1/08; col. 805.]
Surely it is time for action.
Baroness Chapman of Darlington (Lab)
My Lords, it is a pleasure to speak in this debate because I have been making speeches on this topic for 12 years. I believe, if memory serves, that I was the Front-Bench speaker in the other place who proposed the amendment to the LASPO Bill. It is quite extraordinary. I think it is now 22 years since this was first suggested and, as others have said, we have had the Corston report. We cannot have a debate on women in prison without reference to my noble friend Lady Corston—Jean Corston—and the work that she has done. The idea of a women’s justice board has been around for so long because it is such a good idea. There is so much evidence of the impact, and probably the savings, that it would make, should we take that path.
There is a long-accepted problem—and I know the Minister accepts that there is a problem—with the failure of the criminal justice system properly to address the needs of female offenders. This leads to poor reoffending rates and devastation for families, with children often bearing the brunt. The social and economic cost is enormous. Women make up only 4% of the prison population and are still too easily overlooked in policy, planning and investment decisions for the reasons that my noble friend Lady Kennedy outlined so well. Female offenders are different from male offenders: they have different health needs, including pregnancy, miscarriage, breastfeeding and menopause. We know that these issues are neglected, and we know the failure to tailor provision for women affects reoffending rates.
The frustration is that the Government agree with all this, yet they seem constantly to fail to move the dial. Unfortunately, according to the excellent work done by the Prison Reform Trust, fewer than half, I think, of the commitments made in the Government’s Female Offender Strategy, which was published in 2018, have been met so far. We know that community sentences can be more effective than short prison sentences, yet the use of community sentences is dropping—it has dropped by two-thirds since 2010. Community provision for women needs to be so much better, and the quality everywhere needs to improve. There are many excellent projects, but provision is way too patchy. One of the functions of a women’s justice board, like the Youth Justice Board, would be completely to transform that.
The Government’s Female Offender Strategy is not being delivered quickly enough. This leads many of us to conclude that a new lead organisation for female offenders would make the difference. Since my noble friend Lady Corston’s report, understanding of female offending has improved so much—this is a real positive—and the Government have played their part in this. I believe Ministers want to act and want female offending to improve. I hope the Minister is not just going to stand up and say “We are making progress—bear with us”, because we can all see that it is inadequate. Nothing that has been done so far is making a sufficient difference. Interventions in this space are too often short-term. They leave the fundamentals of substance misuse, mental health, housing, financial literacy and domestic violence unaddressed. We know that self-harm in women’s prisons has reached record levels. The situation is getting worse, not better. More than 20% of self-harm incidents involve women, with 12,000 incidents in 2020 compared to around 7,500 in 2016. A strategy is great, and we need a strategy, but we need leadership to ensure that delivery takes place. A women’s justice board would provide the strategic framework to identify and prioritise the specific needs of women within the criminal justice system.
Having been around this a few times now, the Government have previously argued that this can be achieved through ministerial working groups or strategies, and it could have been done, but the truth is that so far it has not. Many of us will have visited women’s prisons and seen what happens. One of the most upsetting things I have ever seen was when I was present for visits where women were interacting with their preschool children. The response of the women and the children was difficult for prison staff as well. That was an annual thing in that prison—once a year that happened. There is no central co-ordinating body able to identify best practice and make sure it happens everywhere. We fail on that because the Government do not have that central body. Women are going out; they are not making progress—reoffending is as bad as it has ever been. I feel we have come to a point where it is time to bite the bullet and accept the idea of a women’s justice board.
Lord Wolfson of Tredegar (Con)
My Lords, as noble Lords will be aware, we debated these amendments in Committee. At that time, they were withdrawn without a vote, although I acknowledge that, as the noble Lord, Lord Marks of Henley-on-Thames, fairly said, those who spoke in Committee overwhelmingly supported the amendment.
I have of course listened very carefully to the various speeches and points made around the House this evening. I think it is fair to say that the arguments in support can perhaps be distilled in four points. I set them out not to make the case against me stronger but perhaps at least to reassure the House that I have understood it. First, the Youth Justice board model has been a success in reducing the number of children entering the youth justice system or custody and, therefore, it is an appropriate model to follow as the needs of women are distinct. Secondly, sometimes their needs are similar, for different reasons, to the needs of children. Thirdly, women are often victims as well as offenders and largely commit non-violent and low-level crime. Fourthly, a women’s justice board would provide the effective leadership and drive to address the particular needs of women in the criminal justice system and divert them before they come into contact with that system by preventing offending in the first place. The House should therefore be reassured that the Government and I have understood and considered carefully the case. As the noble Lord, Lord Marks, said, we have had a number of very helpful discussions about it.
The Government recognise that women who are in or at risk of contact with the criminal justice system have distinct needs that require a distinct approach, and we have acted in a practical sense on that recognition. We published the Female Offender Strategy, which sets out a comprehensive programme of work to respond to those needs, and we remain committed to its delivery. The Advisory Board on Female Offenders provides external and independent oversight of the strategy, but my ministerial colleague in the other place, Minister Atkins, has also asked officials to review the wider governance arrangements for the strategy to ensure that they are fully fit for purpose to support the work across government which is vital to deliver the strategy.
I explained in Committee why the Government are not persuaded that the Youth Justice Board is the right model for addressing the needs of women. To take up the point made by the noble Lord, Lord Ramsbotham, and others, I again underline that I agree and accept that the Youth Justice Board has done extremely good work in its area. There is a short point here, but I suggest it is very important. We have a separate youth justice system. The Youth Justice Board is a reflection of that different system. It is a specialised justice board for a specialised and separate justice system. That is not just to make the physical point that children are still maturing, so the justice system applies to them differently. It is to make the point that the youth justice system is significantly different from the adult justice system in a number of respects.
Let me set out a number of them. First, with youth justice, there is a statutory aim
“to prevent offending by children and young persons”.
That is from the Crime and Disorder Act 1998. There is a greater focus on prevention and diversion. Custody is used as a last resort, as it is in the adult system, but there is greater focus in the youth justice system because there are separate community services provided by youth offending teams, which are part of local authorities. There is a separate youth court with specially trained magistrates with different sentencing powers. There is a separate sentencing framework for children that does not apply to adults. Of course, there is also an entirely separate custodial estate, which is managed in an entirely different way.
Lord Marks of Henley-on-Thames (LD)
My Lords, I am grateful to the Minister for that response. I am reassured by the fact that he says that he understands the case, of course, but I am not reassured by the logic that drives him still to oppose these amendments.
I did not hear in what he said anything that answers the unanimous speeches around the House, which made two important points. The first is that women’s needs are different and special. As I said in my opening speech, that does not seem to me to be answered by the fact that there are different justice systems applicable to youths and to women. The second point is that this is about delivery. It is not just about a philosophy that says that we recognise those needs, or even that we identify them; it is about addressing those needs and bringing some drive to that effort. Those points were made powerfully by the noble and learned Lord, Lord Thomas of Cwmgiedd, the noble Lord, Lord Macdonald of River Glaven, and many others. The question put to the Minister by the noble Lord, Lord Pannick, as to what it is that the Government do not want delivered, was not answered by the Minister saying that the Government want to see this delivered, unless they are prepared to do something to achieve that delivery.
I am grateful for the support of the noble Baroness, Lady Chapman, whose speech can perhaps be summarised by her question: so far, has it been done? The answer is no. Delivery has not been achieved. We believe—the speeches from around the House show that noble Lords also believe this—that a women’s justice board is needed to achieve that delivery. For that reason, and in the hope that sufficient Members from the noble Baroness’s party will support her and us on this issue, I wish to test the opinion of the House.
Lord Blencathra
“Sex-specific incarceration for offenders
(1) Where a person who has undergone gender reassignment is serving a custodial sentence, that person is to be ordinarily treated with respect to housing on the prison estate by reference to their sex registered at birth.(2) Where a person who has undergone gender reassignment is remanded in custody on suspicion of committing an offence, that person is to be ordinarily treated with respect to housing on the prison estate by reference to their sex registered at birth.(3) Where the case-by-case assessment of a prisoner who has undergone gender reassignment determines that the prisoner should not be accommodated with prisoners of the same sex as registered at birth, separate accommodation must be provided to ensure that there is no access to or association with prisoners of the opposite sex as registered at birth.(4) This section applies whether or not the person has a gender recognition certificate.(5) Within 12 months of the passing of this Act the Secretary of State must ensure accommodation is available for the purposes of this section.”Member’s explanatory statement
This amendment would provide that all prisoners should live in accommodation provided in consideration of both their sex registered at birth and their gender identity. Prisoners with the protected characteristic of gender reassignment will ordinarily be housed according to their sex as registered at birth. On a case-by-case basis, prisoners may be allocated to a specialist transgender unit, with no contact with prisoners whose sex registered at birth was the opposite of their own.
Lord Blencathra (Con)
My Lords, this is my new amendment, Amendment 97ZA. I accept that my original amendment in Committee was unbalanced. I sought to protect female offenders but neglected to account for the small minority of trans women who might face unacceptable risk if housed in male prisons. My new amendment aims to afford appropriate protection to all prisoners, notwithstanding that there can be no guarantee that every prisoner will be entirely protected from risk, even within their own single-sex units. I thank my noble friend Lord Wolfson for our meetings, for the teach-in he organised and for our ongoing discussions.
Your Lordships may ask why I have brought back an amendment. The answer is that this is an important issue in its own right. The needs of women in prison matter, and these needs mandate single-sex provision. Women in prison are acknowledged to be an exceptionally vulnerable group and cannot simply choose to use a different space which remains single-sex. These reasons were discussed in the previous debate and I shall not repeat them. But this is also representative of the wider issue: the ability of legislation to maintain single-sex spaces for women. The female estate is a definitive example of a space that should be single-sex. If women in prison cannot be guaranteed single-sex spaces, no woman or girl can. Hospital wards, changing rooms, rape crisis centres, refuges and toilets in schools—I am talking about anywhere where women and girls, for reasons of dignity, privacy and safety, require single-sex spaces. I simply say this to my noble friend: if legislation is insufficient at the moment to secure single-sex provision for women in prison, all females in this country are left vulnerable.
Since my previous amendment, I have received a great many letters, from both men and women. An amendment to secure the rights of women in prison to single-sex spaces has wide support across a cross-section of the general public. Media coverage continually indicates that the general public support single-sex spaces for women and girls. Most recently, the article in the Times last week by my honourable friend Jackie Doyle-Price MP called for women’s prisons to become single-sex once more. Quite rightly, people see this as an important issue in its own right but they recognise that it is representative of the wider issue. This amendment matters not just to women in prison but for all women and girls.
The strength of evidence indicates that male and female prisoners should be housed separately. This is normal international practice, including in our own prison rules. When the policies that permit some trans women prisoners, who are of course of the male sex, to be housed alongside women in the female estate were put in place few years ago, this was essentially a live experiment. It was not grounded in data: no data demonstrated the acceptability of the impact on women in prison and on the operation of the female estate. In fact, research recently conducted on behalf of the Scottish Prison Service demonstrates that female offenders are negatively impacted when they are housed with trans women prisoners. This is notwithstanding the MoJ assertions that operational staff perceive that the policies are working well. I am pleased that the Ministry of Justice has committed to exploring opportunities for research in this area.
It was also clear from the teach-in that the MoJ believes that the ability to act differently from the current policies is constrained by current legislation. I shall not argue on this point. But if real change is to be affected, legislative change is or may be necessary. The purpose of the Gender Recognition Act was to legally recognise the “acquired gender” of transsexual people in specific sets of circumstances, in line with a judgment of the European Court of Human Rights. The GRA contains supplementary provisions in Sections 23 and 24 that empower the Secretary of State to modify the effect of a gender recognition certificate by order. The Explanatory Notes to the GRA acknowledge the possibility that, at the time of passing the GRA, there were circumstances where its unintended consequences for people might not have been realised. I suggest that the allocation of trans women prisoners with a GRC to the female estate is one such situation, and that legislation to exclude these prisoners from the female prison estate on the basis of their sex—not their gender reassignment—is both possible and warranted.
The intention of the GRA was not to render the provision of separate-sex and single-sex services for females an impossibility, to replace sex with gender or to deny the sex differences between men and women. Neither was the inclusion of gender reassignment protection as a separate protected characteristic in the Equality Act 2010. The undesirability of that should be self-evident.
A variety of concerns in respect of the previous amendment were raised by noble Lords and at the teach-in we had. These related to the vulnerability of trans women and their safety, the ability of trans women to live in their acquired gender, and the undesirability of housing trans women prisoners far from their families.
No one wishes to place any prisoner at unacceptable risk of harm. Vulnerability exists throughout the male estate, and, although female offenders characteristically exhibit particular vulnerabilities, this does not exclude the possibility that the vulnerability of some male prisoners, including trans women, may be equally high. The question for all of us is how to keep trans women safe, and that is very important. However, that is wholly separate to the question: who has the legitimate entitlement to be housed in the female estate? I accept that, for some trans women, allocation to the male estate will not be appropriate and should not happen. My revised amendment means that Her Majesty’s Prison Service will be able to assess trans women on a case-by-case basis and make decisions concerning allocation in consideration of all known risks. The wishes of the individual prisoner can be considered, as in the present policy concerning transgender prisoners.
Where a prisoner cannot be housed safely in either the general population of the male estate or with other males in a vulnerable prisoners unit, the decision can be made to house that prisoner in a specialist transgender unit. This will ensure their safety from male prisoners. Access to or association with female prisoners would not be possible. But access to women in prison is not needed to keep these prisoners safe; it is removing them from the presence of men that is required to keep them safe—not putting them in a women’s prison. I note that the MoJ states that 94% of trans women are housed in the male estate. This means that the safety of the overwhelming majority of trans women can be met in men’s prisons.
At the teach-in, the Ministry of Justice indicated that trans women may obtain a GRC while housed in the male estate. It would seem that this means that they are able to satisfy the requirement of “living as a woman” for a period of two years to the satisfaction of the gender recognition panel. The overwhelming majority of trans women are housed in the male estate, meaning that their needs as women and their rights to live as their acquired gender can be met in men’s prisons. Certainly, specialist transgender units for women, which I advocate, should be run according to the female regime and provide a canteen for female prisons.
A concern was also raised that dedicated transgender units would leave trans women far from their families. This is not an issue that affects only trans women. A 2016 Her Majesty’s Inspectorate of Prisons report found that distance from family was a common barrier to visits throughout the prison estate. Women are particularly affected. There are around 10 times the number of men’s prisons in England and Wales than women’s prisons, and female offenders are more likely to be held at a distance from their families than men. A 2019 report stated that women are typically held at distances over 20% further away from their families than men. Some women are held at considerable distances from their families: as there is no female prison in Wales, women may be held over 150 miles from home.
Prisoner allocation to specialist units may be take place, even though this results in increased distance from family. Allocation of trans women to E Wing at Downview is an example. Trans women prisoners who find themselves housed far from family should be assisted. Financial help is already available from the assisted prison visits unit to facilitate visits from close relatives and partners of prisoners who are on low incomes.
I propose expanding this provision for trans women who are held far from family. The number of trans women prisoners currently held in the female estate is very small, suggesting that the number who may be held on specialist transgender units would also be very small. The additional financial cost would therefore be modest.
The transgender prison population is growing. Data released by the MoJ at the end of last year indicate a 20% increase in the population of transgender prisoners since 2019. Their needs in prison will become more pressing. The commitment to building new estate, as outlined in the prisons White Paper, provides the opportunity to provide that transgender prisoners are properly and appropriately accommodated. New secure units can be tailored to their needs and vulnerabilities. These needs and the operation of specialist transgender units should be a focal point for the so-called future regime design, with outcome frameworks to reflect this.
Lord Cormack (Con)
My Lords, I was very glad to add my name to my noble friend Lord Blencathra’s amendment, which he has moved with a convincing and passionate speech. I agree wholeheartedly with all that he said. My own views were reinforced in the last debate when the noble Lord, Lord Macdonald of River Glaven, talked in rather chilling terms about his visits to women’s prisons; I have heard similar accounts from others, both within your Lordships’ House and outside. It seems to me that we add to the uncertainty, mental tension, fear and all those other things if we house in women’s prisons those who are physically male but proclaim themselves female.
Of course, the safety of a prisoner, no matter their sex, is important to us all—a point that some of us touched on in Committee. I put forward then a suggestion that perhaps these people should be separately treated and looked after. After all, the aim of prison—I had two prisons in my former constituency—is often lost sight of: sending to prison is the punishment and rehabilitation is the aim. You are much more likely to get rehabilitation if the atmosphere is calm and subdued and there is not rampant fear in the prison. I believe very strongly, as does my noble friend Lord Blencathra, that the solution is to treat those who are particularly vulnerable in such a way that we take as many safeguards against their vulnerability as possible. To me, that leads logically to a solution where those who were born as women, and who are women, are in women’s prisons, and those who are still physically male are, if necessary, housed in a separate unit.
I do not buy, any more than does my noble friend Lord Blencathra, the talk of travelling great distances. Of course the aim should always be to try to have prisoners as close as possible to their loved ones and the community that they know, but it is not always possible. My noble friend Lord Blencathra referred to the fact that there is no women’s prison in Wales, and so a woman sentenced to jail there can be sent 150 or more miles away. We also have to remember that people are sent to prison because they have done something detrimental to society. It may be a heinous crime or not such a heinous crime, but having to travel a certain distance may be part of the price one has to pay.
I am a great believer in community restorative justice. I believe that we send far too many people, both male and female, to prison, and that we should be much more adventurous in the way we treat those who are not, by their physical violence, an obvious danger to society; of course, they must be securely housed, wherever and whoever they are.
I am grateful to my noble friend the Minister. I attended the teach-in on Zoom—it would have been much better if only we could all have sat down together, but it was on Zoom. I do not doubt for a moment my noble friend’s passionate commitment, but I had to say to him on the day that I was wholly unconvinced; I think he respected that.
I believe that we have to grasp this problem. Like my noble friend Lord Blencathra, I had dozens of letters and messages from those who had listened to the debate —it is remarkable how many people suffer from insomnia in this country—and who wanted to say thank you for standing up for womanhood and motherhood and for not making women feel disparaged. We went through this last year, when we had the extraordinary maternity Bill to, quite reasonably, give maternity leave to the Attorney-General. As a Bill designed to give maternity leave, it did not mention the words “woman” or “mother” until it had left your Lordships’ House, where we talked a little sense into it.
This is something that we have to grasp as a society. I believe that it is totally wrong to put women in a threatened position by having housed next to them people who are still physically male. Protect them all, yes, but, in particular, let us have regard for the women. I believe that the amendment put before us by my noble friend Lord Blencathra this evening is worthy of your Lordships’ support. If it does not receive that support tonight, this is an issue that will not go away; it is a series of big accidents waiting to happen if we are not careful. I am glad to support my noble friend’s amendment.
Lord Pannick (CB)
My Lords, I am very happy to stand up for womanhood and motherhood, but this amendment is very puzzling indeed. What it would mean is that even if a person born male has lived as a woman for 20 years, even if they have undergone sex reassignment surgery, even if they have a gender recognition certificate, and even if they are assessed as posing no risk whatever to other women, the Home Office would be obliged either to place them in a men’s prison or put them in specially segregated facilities. The former option of putting them in a men’s prison would be a disaster; it would obviously be enormously dangerous to such a person. Placing them in specially segregated facilities would be demeaning; it would fail to recognise what legislation in this country has recognised for the last at least 15 years: that people who happen to be born in the wrong sex deserve our compassion and deserve recognition of their position.
I suggest to the House that these issues are far better addressed, as they are at the moment, by Home Office policy that considers the circumstances of the individual case, rather than by broad amendments of this nature, whatever the good faith of those who put them forward.
Lord Hope of Craighead (CB)
My Lords, I warmly support what my noble friend Lord Pannick has just said. It is a great mistake, certainly at this stage in our affairs, to attempt to legislate in this matter. It may be that the prison estate will be big enough in years to come so that one can segregate by gender reassignment in special prisons of their own, but we are nowhere near that at the moment and the proper way to deal with this is to rely on the discretion that exists at present.
It is quite striking if you look at the wording of the amendment—it makes no distinction between whether we are talking about male or female prisoners, but very different situations arise depending on which of these two characteristics you are considering. It makes no distinction for the time that the person may have lived in that new assignment. It makes no distinction, either, for the extent of the surgery and the appearance of the person over time as the reassignment process takes place.
It is very difficult for those of us who, I assume, have not faced this to appreciate the intense emotional problem that people who believe that they have been born into the wrong sex undergo. It is a very emotional matter, fighting against characteristics you have acquired that you do not believe belong to you. The way you deal with it is to believe that you are actually of the sex—of the gender, I should say—that you think you should have been. That involves not only reconstruction of the body but a mentality designed entirely to live the new life, which you believe is the one you should have been given. It strikes me as very cruel, if I may use that expression, to treat these people as if they had not reassigned themselves. It is not a choice. They are driven by the characteristics they acquired which forced them into their decision.
I make these points just to emphasise that we are dealing here with a very difficult problem. The offender requires as much consideration on the grounds of safety and emotional distress as the people around them in the prison in which they are placed. Legislation is not the way to go, certainly not at the moment. I personally have complete confidence in the way that the prison authorities are dealing with this very difficult problem at the moment.
Baroness Fox of Buckley (Non-Afl)
My Lords, I welcome this amendment and I commend the noble Lord, Lord Blencathra, in particular, for doggedly sticking with this issue. I also thank the noble Lord, Lord Wolfson of Tredegar, for organising the MoJ teach-in, which I found very interesting and useful. I learned a lot and I listened hard.
I thought this amendment was a nuanced and sensitive way of dealing with all the objections raised by the MoJ at that teach-in, so I am rather disappointed that the Government have not accepted the proposal from the noble Lord, Lord Blencathra, which is a bespoke amendment that protects women’s single-sex spaces while sympathetically and practically managing any challenges faced by transwomen prisoners.
The amendment might be a modest proposal—I think it is—but noble Lords may be interested to hear that it has created a huge amount of interest outside this place over the last couple of days. People on Twitter might look at #KeepPrisonsSingleSex. It has been trending for the last 36 hours. Do look because the messages on there are what I am talking about, rather than the fact that it is trending.
I want to read a few tweets that could maybe help us understand why this amendment matters. One woman said:
“I find it quite baffling that this is even up for discussion! How did we get to the point where we need a debate to include legislation to prevent something so damaging to women?”
Another said:
“Women in UK prisons must not be locked in with convicted male criminals. This is an appalling failure of the duty of care the state has for female prisoners. Female prison staff must not be forced to search male prisoners. Let’s hope the House of Lords shows sense.”
I would like to think the House of Lords would as well, but maybe not. The final one I want to read out says:
“I’ve been to prison and I’m telling you now that for some women it’s their only safe space, due to abuse on the outside. Allowing anyone who claims to feel like a woman to be put in that safe space is wrong! Women, criminal or not deserve to feel safe.”
I say hear, hear to that.
Lord Cashman (Non-Afl)
My Lords, I rise to speak against this amendment. We should remind ourselves that when we talk about trans women and trans men, we are talking about men and women who have faced very difficult choices about their identity and whom they believe themselves to be. Once they face that choice and make the decision, the transition is a very lengthy process and, again, it is not undertaken lightly because, as we have heard, so often it leads to gender reassignment.
I occasionally go on Twitter. I have read the tweets and received messages from people who, in relation to what we are discussing tonight, have said that if they thought that they were going to prison as a trans woman or a trans man, they would rather commit suicide than face what they believe would be inhumane treatment within the United Kingdom Prison Service. We have to deal with these fears. We are being asked to deal with fears on both sides of this argument, and I want us to deal with both equally. The balancing of rights always poses for us the greatest problem, but I believe that the Ministry of Justice, in its policy on assessing trans prisoners, has got it absolutely right.
It is late and we have other important work to do, so I will begin to wind up. But I wish to associate myself wholeheartedly with the comments of the noble and learned Lord, Lord Hope, and the noble Lord, Lord Pannick. I could go through the policy section by section stating why I believe it is right. I am not going to do that, but if your Lordships wished to return to it, I would do so.
I will finish with these reflections. This amendment, even though it has been placed in good faith and, as the mover said, with good intention, deeply concerns me because it perpetrates the stereotype of trans women and trans men as sexual predators—as a threat to other women, and trans men as a threat to the wider society. It also, as was said in debate on the previous amendment, creates further inequalities; it does not reduce them.
Baroness Meyer (Con)
My Lords, I support this amendment, and the first thing I want to say is that we are talking only about men who have not transitioned to women, which is quite different.
Although we have come a long way since the 2007 Corston report to improve conditions for women in prisons, we are now failing them. Indeed, something has recently gone badly wrong. Women prisoners have a right to the security of a single-sex space. By definition, women are deprived of this security if men are admitted to their prison, including trans women prisoners of male sex, whether or not they have the benefit of a GRC. By the same token, a women’s prison is no place for vulnerable at-risk males. Prison policy must provide for the protection of everybody, and this amendment makes that clear.
How then have we allowed prison policy to be captured by a concern for the protection of trans prisoners at the cost of imprisoned women’s most fundamental rights? There is no balance or fairness in that. The answer of course is that government departments have allowed themselves to be influenced, even intimidated, by noisy and modish pressure groups, whose wilful ignorance of basic science has all the features of a cult.
I have never visited or been to a prison, but as a woman I can imagine how it must be to be incarcerated and threatened. On this note, I very much support this amendment and thank my noble friends Lord Blencathra, Lord Farmer and Lord Cormack for tabling it.
Lord Faulks (Non-Afl)
My Lords, I have visited a number of prisons, both women’s prisons and male prisons. I have also sat where the noble Lord, Lord Wolfson, sits and answered a number of difficult questions about where you house those who have transitioned, or purport to transition, usually from the male gender to the female gender. It is an incredibly difficult task that the Ministry has to perform, and it requires assessment and nuance. As a young barrister, I had the privilege of representing April Ashley, a pioneer in this field who died about three weeks ago. She changed from a man to a woman after pioneering surgery in north Africa and had lived successfully as a woman for 30 years when she was arrested by the police and thrown into a male jail. She was philosophical about the unfair charge, but less philosophical about the desperately inconsiderate approach that was shown by the police.
Lord Farmer (Con)
My Lords, one of the main reasons I put my name again to this revised amendment in the name of my noble friend Lord Blencathra is that I was not persuaded by the Minister’s assurances in Committee that risks are properly balanced before a trans woman is housed in the female prison estate.
First, I heard no mention of the consideration not just of physical harm coming to female prisoners but of the risks of introducing high levels of fear and anxiety by accepting male-bodied female-identifying persons into the prison. More than half of female prisoners have experienced domestic violence—we have already heard that this evening in the previous debate—the vast majority of which will surely have been at the hands of men. A case board investigating the risk that a trans woman presents will not be looking through the filter of trauma, abuse and male exploitation that many imprisoned women apply to their surroundings. I undertook several prison visits for my MoJ-commissioned review of the female estate. As was typical, I questioned a panel of prisoners. On one visit, the de facto leader, who dominated the proceedings, was obviously male and not attempting to pass as a woman. This transgender prisoner might not have been exerting sexually charged and motivated power, but there was a palpable imbalance all the same.
Secondly, Ministry of Justice policy is not in step, as we have heard this evening, with public opinion. A poll conducted by Women for Women UK found that, when respondents were asked whether intact male-bodied trans women should be housed in a women’s prison, support slumped to net disapproval of minus 20%. Contrary to public perception, the overwhelming majority of male-born transgender people retain their penis and are fully male bodied. Moreover, a 2016 meta-analysis established that less than 3% of the transgender population is undergoing any gender-affirming surgical or hormonal treatment, with the remaining 97% simply self-identifying with no modifications to their natal sex body at all.
The noble Lord, Lord Pannick, made an argument about the trans woman prisoner whom these policies are designed to protect, who may have been living in their acquired gender for many years, have had full reassignment surgery and treatment, pass perfectly as a woman and have been convicted of a minor non-violent offence, and said that to refuse to house this prisoner in the female estate would be wholly unjustified. But the statistics I have just given, and my own understanding and albeit limited experience of transgender prisoners housed in women’s prisons, lead me to ask: is this description really characteristic of the population of trans women prisoners, including those held in the female estate? This example of a transgender prisoner seems divorced from reality and from the prisoners with whom female offenders are forced to contend on a daily basis. It is perplexing why prison policy is formulated to account for a situation that may never transpire, exposing female offenders to prisoners who are very far removed from that hypothetical.
Rhona Hotchkiss, a prison governor from Scotland who, as deputy in a men’s prison, initially pushed for trans women to be housed in the female estate, became deeply concerned at how this practice played out when she became governor of Cornton Vale. A prisoner transferred from the male estate when they identified as a woman then reidentified as a man after a short time in Cornton Vale. Frustrated by the delay while the Scottish Prison Service deliberated, the prisoner threatened to rape other prisoners and staff. Hotchkiss was deeply shaken, thinking: “What woman threatens to rape other people”—a crime for which a penis is required—and “Why should we take people’s word for this? We don’t for anything else”. This to me strikes at the heart of the issue: we are giving the benefit of the doubt to people who identify as women yet have all their male hormones and physicality intact. We are giving them access to female spaces despite the benefits to and rights of women to have sex-specific prisons.
This amendment has broader implications. It speaks to the necessity of upholding the fundamental rights and freedoms of women and girls on the basis of sex, not gender, as recognised in UK and international law. This is not simply a disagreement between the Government and those of us who have spoken to the amendment. It is a difference in point of principle between the Government and large swathes of the electorate, as polling indicates. Gender does not take precedence over sex. Males do not take precedence over females. The protected characteristic of gender reassignment does not take precedence over the protected characteristic of sex.
To summarise: in the prison context, male hormones and a male sex organ surely present considerable risk to vulnerable women, for the varied reasons I have given above, which include perceived threat to mental safety and actual threat of domination and exploitation, not just the objective risk of physical and sexual harm. I support my noble friend’s amendment.
Baroness Falkner of Margravine (CB)
My Lords, I refer to my interests in the register and want to make it clear that I am not expressing any opinion on the merits of this particular amendment. But, because the debate has ranged far and wide beyond the amendment, and because there appears to be some misunderstanding in the House as to what the amendment is, I hope that, when the noble Lord stands to speak to this amendment, he will clarify two important factors.
I wonder whether he would tell the House whether housing a trans woman holding a gender recognition certificate on the male estate would be unlawful, as that woman is legally a woman. That is quite an important distinction, and it has not come out. There is clearly a misunderstanding there. The second point I would like him to clarify is whether housing a trans woman on a male estate, or a trans man on a women’s estate, could be unlawful as it could amount to discrimination.
Lord Berkeley of Knighton (CB)
My Lords, perhaps I might amplify, somewhat more bluntly, the points made by my two noble friends, and indeed the noble Lords, Lord Faulks and Lord Cashman. I have been to prisons as a member of the Koestler Trust, trying to take arts in there, and one of the things that struck me—and in a way the arts were a release for this—was the fevered testosterone. We have heard about it from both sides. I ask noble Lords to imagine, just for one moment, what would happen to somebody incarcerated in a male prison who already appears—if I may use the word—effeminate, and who may moreover have been sexually adapted to being a woman. I cannot even begin to think how that person would be targeted in a male prison. We need to think very carefully about that, whatever the merits of the amendment moved by the noble Lord, Lord Blencathra.
Lord Herbert of South Downs (Con)
My Lords, I draw attention to my interests as declared in the register. I find myself somewhat perplexed by this debate and the amendment. My noble friend Lady Meyer said that we were talking only about men who had not transitioned—but I do not think that the amendment says that. It is clear in referring to
“a person who has undergone gender reassignment”.
So there appears to be some misunderstanding about what the effect of the amendment would be, and I wonder what the problem is that we are trying to fix. After all, my noble friend Lord Blencathra himself said that the number of transgender women in the women-only estate was “very small”.
We know that in practice the vast majority of transgender prisoners are already held in prisons which match their sex registered at birth. The small number who are not held in such places have been risk-assessed. As the noble Lord, Lord Pannick, pointed out, that risk assessment would count for nothing in relation to transgender women because the effect of this amendment would be to say that there are no circumstances, irrespective of risk, in which such women, who may have been women for some time, may be held in the women-only estate.
It does not matter that the authorities believe that they pose no risk whatever. It does not matter that the numbers that we are talking about are actually very low. What matters to those who tabled this amendment is that the law should say that they should never be held in such a wing. That is in principle wrong.
It seems to be the sense of the whole House that people should be held according to the appropriate accommodation after a risk assessment. That might well mean that trans women are not held in the women-only estate. It might well mean that trans men are not held in the male-only estate, but that it is better that there is a risk assessment and they are held in the appropriate place.
The effect of this amendment is to prescribe, because those who tabled it think they know better. That, in the end, is the decision that we are confronted with. It is a decision about whether we are to be guided by ideology or pragmatism and, I would suggest, compassion.
It was said in advancing this amendment that a reason to accept it is that, absent it being passed, no places could be safe for women, not just in prison, but beyond the prison estate. How can that be? How could this amendment, were we to pass it, suddenly make all other places for women safe? It was also said—
Baroness Fox of Buckley (Non-Afl)
I wanted to clarify whether, if the proposal has an impact on prisons, what impact it might have on all women. What is at issue is the protection of single-sex facilities—places that are only single sex. That is a very important principle—no matter how small the numbers are in this instance—about which there is concern. I am clarifying why people say that, and not just in this House—this is a widespread concern.
Lord Herbert of South Downs (Con)
I am grateful to the noble Baroness. I think we can agree that it is important that women should be safe. The Equality Act provides exemptions in a number of scenarios, including in relation to women-only spaces outside the prison estate to ensure that. It allows the prison authorities to make the right judgments about where it is appropriate to place people. The safety of people is put first, and so it should be.
It has been suggested that a reason to pass this amendment is because of the media coverage that this debate has excited, and that outside this place there is a tremendous wave of anger we need to pay attention to. Of course, if people’s fears are provoked and if media campaigns suggest that women cannot be safe, there will be such fervent outrage, but that is not a reason for us to depart from the facts. The facts do not lend support to this approach, which places ideology above pragmatism. I therefore urge the Government not to accept this amendment.
Baroness Jones of Moulsecoomb (GP)
My Lords, I really did not want to speak today, because, whatever I say, I am going to get abuse, but I have been incensed by some of contributions. I point out, in an absolutely non-specific way, that the majority of speakers have been male, and they have spoken against the amendment. Two women have spoken for the amendment, because they perceive there is a problem. My party’s policy is that trans men are men and trans women are women, and I do not have a problem with that, but there are occasions when women in women’s prisons experience sexual predation by men who have falsely self-identified as women. The noble Lord, Lord Cashman, said that we are saying that all trans women are sexual predators. We are not saying that—of course not.
Will the Minister clarify whether trans men go to male prisons? My understanding is that they do not, because they would not be safe. What we are talking about here is keeping people safe. Vulnerable people of all kinds, whatever trans identity or sexual identity they have, should be kept safe. Clearly, prisons are the worst possible places to keep people safe; they are a nightmare. This Government are increasing the number of prisons. They are not trying to reduce the prison population and make our prisons safer; they are adding to the problem. Do trans men go to male prisons? Have there been cases where men have falsely self-identified as women and predated sexually on women? I have had emails and letters from women who have been abused by men who have falsely self-identified as women. What can we say to those women? We cannot say, “This is an ideology and we’re trying to look good”; we have to be serious about people who are abused, whether they are male or female, or trans men or trans women.
I would not vote for this amendment, because it is too hardline. I accept the issue of safe accommodation—that seems very sensible; I do not see it as demeaning at all. Prisons are demeaning; safe accommodation sounds very safe to me.
Only men in this debate have spoken against the amendment. Why do men think that is okay? I do not understand. They are ignoring the fact that some women are predated upon. Sometimes those women may not be telling the truth—I have no idea, but I rather suspect that they are. Please can we just think about the vulnerable people and stop being so ultra-sensitive and supposing that we are all getting at everybody. I am absolutely fed up with this debate, and I hope this is the last speech.
Baroness Barker (LD)
My Lords, it will not be, because this woman disagrees with this amendment. I speak as a woman who cares deeply about the physical safety of women. One of the things I find most objectionable about the campaign which has been run in the media for the past couple of years is the assumption that those of us who are women and who stand as allies with trans people do not care, because I do not believe that is the case at all.
It would be very tempting at this stage to answer some of the wide-ranging points which have been made about, for example, polls with leading questions, misinterpretations and mis-statements of the law, but I shall not do that. I shall simply stick to the facts that this House should look at when it comes to a decision on this matter.
The noble Lord, Lord Blencathra, spoke about an entitlement of prisoners to go to an estate. There is no such entitlement. The noble Baroness, Lady Jones, talked about instances where self-identifying male prisoners had predated on women. That has happened, but my understanding is that it has not happened since the implementation of the policy which has been operational in the Prison Service since 2016 and was updated in 2019.
There are historical cases, which are trotted out all the time by people who wish to disparage trans people. Let us be absolutely clear what the current policy that is operated in our prisons is:
“A proper assessment of risk is paramount in the management of all individuals subject to custodial and community sentences. The management of individuals who are transgender, particularly in custodial and AP settings, must seek to protect both the welfare and rights of the individual, and the welfare and rights of others in custody around them. These two risks must be considered fully and balanced against each other … Decisions must be informed by all available evidence and intelligence in order to achieve an outcome that balances risks and promotes the safety of all individuals in custody”.
My understanding, from talking to prison officials, is that not only is there no entitlement for a prisoner to be held in an estate, but that the risk assessment includes an assessment of whether somebody is attempting to be transferred into an estate in order to perpetrate further crimes. If they are, it is held as a contra-indication.
I agree absolutely with the noble and learned Lord, Lord Hope, and the noble Lord, Lord Pannick. What we have now is a policy, as the noble Baroness, Lady Falkner, said, that does protect to the full the human rights of individuals, but also balances them with the safety of everybody—that includes the staff in prisons as well; let us not forget them. The noble Lord, Lord Blencathra, is therefore putting to us an amendment that is not based on evidence and is a retrograde step. I urge noble Lords to reject it.
Lord Paddick (LD)
My Lords, I do not intend to repeat the arguments that other noble Lords have made and those that I made in Committee; they are in the official record. Existing legislation and procedures, properly applied, are sufficient to ensure the safety and well-being of all prisoners and staff in our prisons in relation to transgender prisoners. I am sure that the noble Lord the Minister will confirm that.
Because I have said, in answer to a suggestion on Twitter, that I felt that the existing risk-based approach was best, I was sent a direct message on Facebook from somebody I have never heard from before saying, “Leave women’s rights alone you nasty little misogynist. We see you loud and clear. Trans rights simply means male rights. Enjoy your irrelevance MRA bigot”. Whatever MRA stands for, I have no idea. Of course, as the noble Baroness, Lady Fox of Buckley, has said, we need to consider the rights of women—of course we do—but transgender people also have rights, and their rights need to be balanced. The best way to do so is on a case-by-case basis.
The noble Baroness, Lady Meyer, and the noble Lords, Lord Cormack and Lord Farmer, talked extensively about transgender people who had not undergone gender reassignment surgery, or transgender women who are still physically men. There is nothing at all in this amendment about the physical state of transgender people; it applies in a blanket manner to every single transgender person. The fact is that every prisoner entering the prison estate is risk-assessed to ensure that they are not a threat to themselves or others, and they are then housed or segregated on that basis. If that assessment has been wrong on rare occasions in the past, the problem was not with the system, let alone with the law; it was a problem with implementation. I understand, however—and I am sure that the Minister will confirm—that that is no longer a problem. This amendment is not necessary and we oppose it.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I too will be relatively brief. This debate is about balancing rights and balancing vulnerabilities, and I have been following it over months if not years. Unfortunately, I did not go to the teach-in organised by the noble Lord, Lord Wolfson. However, I have been to other events on Zoom where I have spoken to prison officers and the people involved in managing the situations discussed here. It is apparent to me that there has been an evolution in the prison officers’ and governors’ approaches. I have spoken to a number of them several times. I spoke to one women’s prison where transgender units operated for a period, and the way they were operated was later changed. I have to say the governors I spoke to seemed—I do not want to use the word “relaxed”—to think that they could manage the situation. That is what I was told, and I have every reason to believe in their professionalism in dealing with an evolving situation—as we have heard from noble Lords, there is an increase in trans prisoners; the figure of 20% since 2019 was mentioned.
I have visited quite a few prisons over the last 10 years and I am always impressed by the quality of the prison staff, the governors and the prison officers. The basis of my view is that I trust them to make the right decisions. I think they are dealing with very difficult circumstances and I think that they can manage risk. As the noble Baroness, Lady Barker, said, they have policies which have evolved over a period, which include the safety of the prisoners and the staff. I was pleased to hear that during the teach-in the Minister said that he is willing to support further research into this matter. It is an evolving situation, but for my part I am content that the current complex case boards that make these difficult decisions should continue to do their work.
Lord Wolfson of Tredegar (Con)
My Lords, this amendment relates to the management of transgender prisoners. The result of the amendment would be that transgender prisoners would “ordinarily”—and that word is used twice in the amendment—be held in a prison matching their sex as registered at birth. I will come back to that word “ordinarily” later on.
I should first record my sincere thanks to the noble Lord, Lord Blencathra, for his time. I am pleased that he found the teach-in with officials from the MoJ and HMPPS to be helpful. I am grateful also that my noble friend Lord Cormack and the noble Baroness, Lady Fox of Buckley, were able to attend the teach-in. I am conscious, from what they said then and this evening, that I did not persuade them at that time. I am not sure that I am going to persuade them in the next few minutes, but I am going to try.
I am not proposing to refer to anything said on Twitter. That is despite the fact that I think I am one of the few ministerial twitterers—or is it tweeters?—around. My tweets have become a lot duller since joining the Front Bench, but I can say that on this subject Twitter exhibits heat and no light whatsoever. I am grateful for the relative safety and sanity of your Lordships’ House.
Under the amendment, transgender prisoners who are not held with prisoners matching their sex as registered at birth would be held in separate accommodation such that they have no contact with people of their acquired gender. That is the inescapable result of the amendment. I suggest that it is unnecessary. Transgender prisoners can already be held in prisons in matching their sex as registered at birth where this is assessed as appropriate. In practice, the vast majority of transgender prisoners are already held in prisons matching their sex as registered at birth. The small number who are held otherwise have been through a rigorous multi-disciplinary risk assessment process. There is already provision, as I will explain in a moment, for transgender prisoners to be held separately from other prisoners of their acquired gender if doing so is deemed necessary.
We take the allocation of transgender prisoners extremely seriously. This is a subject which, as the last hour or so has demonstrated, arouses a lot of controversy and passion. But the approach we have put in place allows us to strike an appropriate balance—the noble Lord, Lord Cashman, put his finger on that as the right word, as it is a balance—between the safety, rights and well-being of transgender prisoners and that of all other prisoners in the estate.
Lord Blencathra (Con)
My Lords, it is normal to say when winding up that it has been an interesting debate. This one has certainly provoked more interest than I had anticipated. I thank my noble friends Lord Cormack, Lord Farmer and Lady Meyer, and the noble Baronesses, Lady Fox and Lady Jones, for their contributions.
I start with the contribution from my noble friend Lord Herbert. I do not do anti-social media—things like Twitter and so on. I am not motivated to move this out of ideology, nor because of what the media say; I am motivated to do it because I have been approached by women in prison who, rightly or wrongly, are afraid for their safety. It is right to say that it is only a small number of trans women in prisons but there are a large number of women who are afraid of them. They may be wrong to be afraid, but it is in their interests that I am working to try to make sure that they no longer have that fear.
The noble Lord, Lord Pannick, said that my amendment would mean that transgender prisoners should either be stuffed into the male estate or put into some ghastly specially segregated facility. He made it sound like something the apartheid regime would invent. That is exactly the current MoJ policy: all transgender prisoners coming into the prison estate start off in the male estate. I am not inventing that; it is the current policy, as my noble friend has said. Some 90% of trans women prisoners stay in the male estate and then some are moved to the women’s estate. They are moved to a specially segregated facility called E wing at Downview. I merely suggest in my amendment that the facilities of E wing at Downview should be extended to house more transgender prisoners.
I think the noble and learned Lord, Lord Hope of Craighead, and the noble Lord, Lord Pannick, are acting under the impression that the vast majority of these prisoners have spent a long part of their life as trans women—that they have had hormone replacement therapy, have had operations and have been living as women for years. That is not the case; as we have seen from Scotland, only one in 12 has. We do not have the figures for England because, understandably, they are confidential, but the anecdotal evidence is that there is no one in our prisons in England with a GRC who has gone through that process, so they are not those who have lived their lives as women for 20 or 30 years.
I say to the noble and learned Lord, Lord Hope, that, if the Government were to go down my route, I perfectly well accept that a system could be built in where someone who has had hormone replacement therapy, has had surgery and has been living as a woman for X number of years may qualify on a risk-assessment basis to classify as a woman, not in biological terms but in terms of being sent to prison.
I say to the noble Lord, Lord Cashman, that it is quite wrong to categorise this amendment as stigmatising trans people as a particularly violent class. That is not the case. I made absolutely clear in my speech that many trans women prisoners could not stay in the male estate because the male prisoners would be violent towards them; they are equally or more capable of violence.
I accept that the court said that what the Prison Service is doing is lawful. On the narrow point of law considered by the court, that is correct, and one would hope that the MoJ would not have a policy that deliberately broke the law. The point of issue here is not ideology but that what is lawful and what is morally right part ways. I urge the MoJ to accept my solution, which lets trans women prisoners live their lives in prison in a safe space, and women theirs. I simply do not understand why the Lib Dems, the Labour Party and some of my own noble friends now dislike women so much that they are resolutely opposed to defending their hard-won rights. I can see how the Government have blundered into this hole, but at least I see signs from them that they have now stopped digging.
I am not going to be successful today, but I say to all my noble friends on the Front Bench, in all departments, that this policy of downgrading the rights of biological sex women is heading for the scrapheap of history. It is not on the side of science, logic, morality or common sense, and everyone outside the political bubble we are in knows that. The battle for common sense and the rights of women will intensify. I conclude by suggesting that all my noble friends and all Ministers should read the excellent article in the Times last week written by my honourable friend Jackie Doyle-Price MP. She said, inter alia:
“Sex is biological and immutable. Gender is social. The two things are distinct. And by conflating sex with gender we have created an inevitable conflict between rights based on sex with those assumed by someone with a transgender identity … We can be inclusive without compromising the rights, dignity and privacy of women.”
Those are wise words. Jackie Doyle-Price is on the side of common sense and history.
I beg leave to withdraw my amendment, not because I am wrong but because I cannot win in the numbers tonight.
Police, Crime, Sentencing and Courts Bill
Monday 10th January 2022
(2 years, 3 months ago)
Lords ChamberRead Full debate Police, Crime, Sentencing and Courts Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 72-V Fifth marshalled list for Report - (10 Jan 2022)
22:22 - Division on Amendment 97CA - Ayes: 50 / Noes: 122 - Amendment 97CA disagreed.
23:37 - Division on Baroness Bennett of Manor Castle’s Motion - Ayes: 36 / Noes: 93 - Baroness Bennett of Manor Castle’s Motion disagreed.
00:18 - Division on Amendment 102 - Ayes: 33 / Noes: 90 - Amendment 102 disagreed.
“PART 11ADISREGARDS AND PARDONS FOR CERTAIN HISTORICAL OFFENCESDisregard of certain convictions or cautions
(1) The Protection of Freedoms Act 2012 is amended in accordance with subsections (2) to (10).(2) Section 92 (power of Secretary of State to disregard convictions or cautions) is amended in accordance with subsections (3) to (5).(3) In subsection (1) for the words from “under” to the end of paragraph (c) substitute “in circumstances where the conduct constituting the offence was sexual activity between persons of the same sex”.(4) In subsection (3)—(a) in paragraph (a)—(i) for the first “the” substitute “any”,(ii) for “conduct constituting the offence consented to it and” substitute “sexual activity”, and(iii) omit the second “and”, and(b) for paragraph (b) substitute—“(b) the offence has been repealed or, in the case of an offence at common law, abolished by enactment (whether or not it has been re-enacted or replaced), and(c) the sexual activity would not, if occurring in the same circumstances at the point of decision, constitute an offence.”(5) After subsection (6) insert—“(7) In this section “sexual activity” includes—(a) any physical or affectionate activity which is of a type characteristic of people involved in an intimate personal relationship, and(b) conduct intended to lead to sexual activity.”(6) In section 93(3) (applications to the Secretary of State), for the words from “the matters” to the end substitute “— (a) whether a conviction or caution is of a kind mentioned in section 92(1);(b) the matters mentioned in condition A in that section.”(7) In section 94 (procedure for decisions by the Secretary of State)—(a) in subsection (1)—(i) after “considering” insert “whether a conviction or caution is of a kind mentioned in section 92(1) or”, and(ii) for “section 92” substitute “that section”,(b) in subsection (2)—(i) after “deciding” insert “whether a conviction or caution is of a kind mentioned in section 92(1) or”, and(ii) for “section 92” substitute “that section”,(c) after subsection (2) insert—“(2A) If the Secretary of State refuses an application on the basis that the caution or conviction is not of a kind mentioned in section 92(1), the Secretary of State must—(a) record the decision in writing, and(b) give notice of it to the applicant.”(8) In section 99 (appeal against refusal to disregard convictions or cautions)—(a) in subsection (1)(a) after “Secretary of State” insert “refuses an application on the basis mentioned in section 94(2A) or”,(b) in subsection (3), for the words from “that it” to the end substitute “—(a) that the conviction or caution is of a kind mentioned in section 92(1), it must make an order to that effect;(b) that it appears as mentioned in condition A of that section, it must make an order to that effect.”, and(c) in subsection (5), after “subsection (3)” insert “(b)”.(9) In section 100(1) (advisers)—(a) for the second “Secretary of State” substitute “Secretary of State—(a) the caution or conviction is of a kind mentioned in section 92(1), or”,(b) the remaining text becomes paragraph (b), and(c) in that paragraph for “section 92” substitute “that section”.(10) In section 101—(a) in subsection (1)—(i) in paragraph (a) of the definition of “conviction”, after “proceedings” insert “(including anything that under section 376(1) and (2) of the Armed Forces Act 2006 is to be treated as a conviction for the purposes of that Act)”,(ii) at the end of the definition of “sentence” insert “(including anything that under section 376(1) and (3) of the Armed Forces Act 2006 is to be treated as a sentence for the purposes of that Act),”,(iii) at the end of paragraph (a) of the definition of “service disciplinary proceedings” omit “or”,(iv) after paragraph (b) of the definition of “service disciplinary proceedings” insert “, or(c) in respect of a service offence (whether or not before a court but excepting proceedings before a civilian court within the meaning of the Armed Forces Act 2006);and for the purposes of paragraph (c) “service offence” means a service offence within the meaning of the Armed Forces Act 2006, or an SDA offence within the meaning of the Armed Forces Act 2006 (Transitional Provisions etc) Order 2009 (SI 2009/1059).”, and(v) in the appropriate place insert—““enactment” includes an enactment contained in subordinate legislation (within the meaning of the Interpretation Act 1978),”,(b) omit subsections (3) and (4),(c) in subsection (5) for paragraphs (a) and (b) substitute “a reference to an inchoate or ancillary offence relating to the offence.”,(d) in subsection (6)—(i) for the first “or incitement” substitute “, incitement, encouraging or assisting”, and(ii) for the second “or incitement” substitute “, incitement, encouraging or assisting”,(e) after subsection (6) insert—“(6A) For the purposes of section 92, an inchoate or ancillary offence is to be treated as repealed or abolished to the extent that the offence to which it relates is repealed or abolished.(6B) A reference to an inchoate or ancillary offence in relation to an offence is a reference to an offence of—(a) attempting, conspiracy or incitement to commit the offence,(b) encouraging or assisting the commission of the offence, or(c) aiding, abetting, counselling or procuring the commission of the offence.(6C) For the purposes of section 92, an offence under an enactment mentioned in subsection (6D) is to be treated as repealed to the extent that the conduct constituting the offence under the enactment—(a) was punishable by reference to an offence under the law of England and Wales which has been repealed or abolished, or(b) if the conduct was not punishable by the law of England and Wales, was punishable by reference to equivalent conduct constituting an offence under the law of England and Wales which has been repealed or abolished.(6D) The enactments are—(a) section 45 of the Naval Discipline Act 1866,(b) section 41 of the Army Act 1881,(c) section 41 of the Air Force Act 1917,(d) section 70 of the Army Act 1955,(e) section 70 of the Air Force Act 1955,(f) section 42 of the Naval Discipline Act 1957, and(g) section 42 of the Armed Forces Act 2006.”, and(f) in subsection (7) for “(5) and (6)” substitute “(5), (6) and (6B)”.(11) Nothing in this section affects the disregard of a conviction or caution that was disregarded before this section comes into force.”Member’s explanatory statement
This new Clause would extend the scheme for disregarding convictions and cautions for historical offences that regulated sexual activity between people of the same sex.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, it really is a pleasure to introduce these government amendments to the House. In Committee, I gave a commitment that the Government would consider carefully the amendment tabled by my noble friend Lord Lexden and the noble Lord, Lord Cashman, on the extension of the disregards and pardons scheme for individuals convicted of same-sex sexual activity. They withdrew their amendment then, and I am delighted today to be able to bring forward these government amendments which, I am pleased to say, have their support. It has only taken six years, but we got here.
Amendments 97ZB and 97ZC draw heavily on the earlier amendments to this Bill and the Armed Forces Bill. I am very confident that they reflect the aim of the noble Lords’ proposals. The removal of cautions and convictions from official records is a serious matter, and Amendment 97ZB will ensure that any disregards will meet the established legal criteria to ensure that the Home Office does not inadvertently disregard cautions or convictions for activity that is still illegal today or that involved other still illegal activity. The purpose of the disregards and pardons scheme is to put right the wrongs of the past in which the actions of those attracted to the same sex were unjustly criminalised and lives were severely and negatively affected by having these cautions and convictions on their criminal records.
The current scheme is too narrow: it is largely focused on convictions for the now repealed offences of buggery and gross indecency between men. We recognise that there were a wider range of now repealed and abolished offences, both civilian and military, that were also used to unfairly caution or convict those attracted to the same sex specifically because of their sexuality. To ensure full coverage, Amendment 97ZB will provide for the extension of the scope of the scheme to cover all repealed statutory offences and all abolished common-law offences of this nature. The scheme is also being extended to all service offences, so general disciplinary offences that were used to prosecute those individuals attracted to the same sex will now be covered.
Amendment 97ZC separately extends the existing arrangements for pardons. Those who are granted a disregard will automatically be pardoned. We recognise that many people have now died, or sadly will die, without the opportunity to seek a disregard. The amendment therefore makes provision for posthumous pardons for those who die before 12 months have elapsed after the provisions come into force. Where an offence is repealed or abolished after the provision comes into force, it will also fall within the scope of the scheme. In those cases, provision is made for posthumous pardons for those who die before 12 months have elapsed after the repeal or abolishment.
I take this opportunity to thank my noble friend Lord Lexden and the noble Lord, Lord Cashman, for their continued hard work on this issue. It has taken, as I have said, six years. I also pay special tribute to Professor Paul Johnson of the University of Leeds, who, in addition to advising their Lordships, has also been unfailingly generous in sharing his expertise with officials. I hope these amendments will be the legislative answer that we have been working towards together. It is only by working together that we can achieve this type of change. I beg to move.
Lord Cashman (Non-Afl)
My Lords, it is a great pleasure to speak in support of these two amendments and to follow the Minister, who has, throughout the six years, made it seem a bit like fun, and so time flew past. Joking aside, her commitment from the very beginning has never been in question.
To put these amendments into context, for nearly 500 years this House routinely passed hateful legislation that damaged, and in many cases destroyed, the lives of gay people. Many of the measures that this House passed, century after century, are well known. The Acts of 1533 and 1855 are now infamous, but a battery of lesser-known laws ensured that gay people were systematically fettered within a vile and oppressive regime of regulation that prevented them living full lives.
Lord Lexden (Con)
My Lords, it is immensely gratifying to reach the end of a long, six-year campaign. At last, more gay people who in the past suffered cruel wrong under unjust military and civilian offences are about to be given the means of securing the redress they so greatly deserve. It has been extremely encouraging to receive so much support from all parts of the House, particularly from the noble Lord, Lord Ponsonby, on the Labour Front Bench and the noble Lord, Lord Paddick, on the Liberal Democrat Front Bench.
May I add briefly to the comments made by my fellow campaigner, the noble Lord, Lord Cashman? It was through amendments to earlier legislation, which I moved in December 2016, that the disregards and pardons scheme, in its existing, incomplete form, was brought into force in Northern Ireland with the consent of its devolved Executive and Assembly. The then Justice Minister in Northern Ireland, Claire Sugden, said at the time it was important to ensure that the criminal law in Northern Ireland offers equality of treatment to gay and bisexual men in Northern Ireland with England and Wales.
There can be no doubt that widespread support exists in Northern Ireland for the redress of past gay injustices, particularly among younger people, on whom the future of that wonderful part of our country depends. I am confident it will be strongly felt in Northern Ireland that its devolved Department of Justice should use the powers it possesses under existing legislation to bring today’s amendments fully into force in the Province when they become law here very shortly. That would be particularly appropriate this year, which marks the 40th anniversary of the initial decriminalisation of homosexuality in Northern Ireland, following the triumph of my friend Jeffrey Dudgeon in the European Court of Human Rights, which forced the Thatcher Government to take action in 1982.
The Minister signed my amendments back in 2016. I hope she will endorse my comments today. It cannot be right to have a border down the Irish Sea in respect of human rights.
Baroness Bennett of Manor Castle (GP)
My Lords, I rise as I did in Committee to speak briefly and humbly on behalf of my noble friend Lady Jones of Moulsecoomb, who signed the matching amendments in Committee. I can only pay very strong tributes to the noble Lords, Lord Cashman and Lord Lexden, for all their long work on these issues. The Green group, of course, welcomes these amendments. I would like to thank the Minister for her helpful letter that addressed the questions I raised in Committee about why it is not possible to automatically get rid of these offences to clear people of them.
In the light of that, I would simply like to prompt the Minister—though I realise it is early—for whatever information she might be able to give us both about what plans there are to publicise this legal change to make sure people are able to easily and simply apply and about what kind of timeframe for the process she sees going forwards. As has been said, many people affected by this may be of an older age group, and it is really important this is available to people as soon as possible.
Lord Paddick (LD)
My Lords, at last, much credit must go to the noble Lords, Lord Lexden and Lord Cashman, and to Professor Paul Johnson, but also to the Minister, who accepted the challenge from the noble Lords and ran with it. I understand the right honourable Priti Patel took little persuasion. Whether that is the Minister being modest or not, I have nothing but thanks and praise for all those involved.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I feel privileged to come in at the tail-end of this six-year campaign. I have to say I found it very moving listening to my noble friend Lord Cashman and the noble Lord, Lord Lexden, who does me the privilege of taking an interest in my family history. I have followed his campaign on this matter as well. I also note the points he made about the position in Northern Ireland. It has been a six-year campaign—to use the words of my noble friend—to wipe away the stain on history. It seems to me these amendments are doing this. I also join in the praises from the noble Lord, Lord Paddick, of the Minister, who appears to me, as a latecomer to this, to have been with the campaigners every step of the way.
Baroness Williams of Trafford (Con)
My Lords, I thank all noble Lords for their kind comments. It is lovely when unity breaks out in this House, particularly when that unity has been hard fought. On the union—I take my noble friend’s points about Northern Ireland—I will certainly relay those comments to the Minister for Justice. I would imagine that the publicity will start on commencement of the Bill and be published on GOV.UK. There has already been some great publicity on social media and elsewhere, so publicity is already under way.
“Pardons for certain convictions or cautions
(1) The Policing and Crime Act 2017 is amended in accordance with subsections (2) to (13).(2) Section 164 (posthumous pardons for convictions etc. of certain abolished offences) is amended in accordance with subsections (3) to (10). (3) Before subsection (1) insert—“(A1) Subsection (1) applies in relation to a person—(a) who was convicted of, or cautioned for, an offence in circumstances where the conduct constituting the offence was sexual activity between persons of the same sex, and(b) who died before the end of the period of twelve months beginning with—(i) the day on which section (Disregard of certain convictions or cautions) of the Police, Crime, Sentencing and Courts Act 2022 comes into force, or(ii) if later, the day on which the offence referred to in paragraph (a) became an abolished offence (see subsection (1A)).”(4) For subsection (1) substitute—“(1) The person is pardoned for the offence if—(a) any other person involved in the sexual activity was aged 16 or over, and(b) the offence has become an abolished offence.(1A) An offence becomes an abolished offence at the point at which conditions A and B are first met.(1B) Condition A is that the offence has been repealed or, in the case of an offence at common law, abolished by enactment (whether or not it was re-enacted or replaced).(1C) Condition B is that the sexual activity referred to in subsection (A1)(a) would not, if occurring in the same circumstances, constitute an offence.”(5) Omit subsections (2) to (6).(6) In subsection (7)—(a) for “subsection (8)” substitute “subsections (8) and (8A)”, and(b) at the end of paragraph (b) insert “(but as if the reference in subsections (6A) and (6C) to section 92 were a reference to this section)”.(7) In subsection (8) (as amended by section 19 of the Armed Forces Act 2021)—(a) omit paragraph (ba),(b) at the end of paragraph (c) omit “or”,(c) after paragraph (c) (but before paragraph (d) inserted by section 19(3)(d) of the Armed Forces Act 2021) insert—“(ca) the Mutiny Act 1878, the Marine Mutiny Act 1878, any Act previously in force corresponding to either of those Acts or any relevant Articles of War, or”.(8) After subsection (8) insert—“(8A) Section 101(6D) of the 2012 Act is to be read, in its application to this section by virtue of subsection (7) of this section, as if the enactments listed in that subsection included—(a) Article 2 of Section 20 of the Articles of War of 1749 (offences triable by courts martial outside Great Britain),(b) section 38 of the Naval Discipline Act 1860,(c) section 38 of the Naval Discipline Act 1861,(d) section 41 of the Naval Discipline Act 1864,(e) Article 93 of Section 2 of the Articles of War of 1876 (offences not specified in Marine Mutiny Act or Articles of War),(f) section 41 of the Army Discipline and Regulation Act 1879, and(g) any provision corresponding to the provision mentioned in paragraphs (a) or (e), contained in other relevant Articles of War.” (9) In subsection (10) (inserted by section 19 of the Armed Forces Act 2021) insert in the appropriate place—““sexual activity” includes—(a) any physical or affectionate activity which is of a type characteristic of people involved in an intimate personal relationship, and(b) conduct intended to lead to sexual activity.”(10) After subsection (10) insert—“(11) Subsection (1) does not apply in relation to an offence for which the person has previously been pardoned under this section or section 165.”(11) In section 165(1) (other pardons for convictions etc. of certain abolished offences) after “offence” insert “in the circumstances”.(12) Omit section 166 (power to provide disregards and pardons for additional abolished offences).(13) In section 167 (sections 164 to 166: supplementary)—(a) in the opening words of subsection (1) omit “, or under regulations under 166,”, and(b) in subsection (2)—(i) for “sections 164 to 166” substitute “section 164 or 165”, and(ii) omit “or regulations under section 166”.(14) Nothing in this section affects a pardon for a conviction or caution which took effect before this section comes into force.(15) In section 19 of the Armed Forces Act 2021 (posthumous pardons in relation to certain abolished offences), omit subsection (2) and paragraphs (b) and (c) of subsection (3).”Member’s explanatory statement
This new Clause would extend the scheme for posthumously pardoning people convicted of or cautioned for historical offences that regulated sexual activity between people of the same sex.
Lord Ponsonby of Shulbrede (Lab)
My Lords, in moving Amendment 97A, I will speak briefly to Amendment 97B. These amendments seek to remove children from the application of Clause 168, providing that remote observation and recording of court proceedings may not occur in cases where a party to the proceedings is a child under the age of 18. Amendment 97C, also in the group, provides that the court may not give directions for live links in criminal proceedings where a party to the proceedings is a child under the age of 18.
I take on board the comments made in Committee that these are blanket amendments which may not necessarily be appropriate in all cases. What has given rise to these amendments is concern about the drift to greater use of video hearings without adequate safeguards. Amendment 97CA in the names of the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Judge, would prevent a criminal trial proceeding with the jury or members of the jury in a different physical location from the judge, witness or counsel. We would support this amendment should the noble Lord decide to move it to a vote, but I will leave him to advocate for his own amendment.
Amendment 97D seeks to require that all defendants who might appear on a video or audio link from a location outside court should be subject to a health needs screening. Screening information must be made available to the judge responsible for listing before the listing is finalised; it is this amendment that I want to concentrate on. As I have said, it seeks to require that all defendants who might appear on video or audio link are subject to health needs screening. I have a quite extensive briefing from various advocacy groups, including Fair Trials, Transform Justice and Just for Kids Law, which are concerned about the greater use of video links that we have all experienced. Certainly, anyone who works in the criminal justice system has experienced this in the last couple of years. The concern is that some of the changes we have seen are not necessarily positive, and there should be a resistance to permanently moving to a greater use of video links.
The central point is that the judiciary should make an informed decision about whether a case should go ahead via some form of video link. The decision should be informed by a mental or physical health assessment of the young or vulnerable person. It seems to me that that is an unanswerable point. I have been in the position of making these decisions in circumstances that were very far from adequate. I have done so because of the expediency of the situation and the urgency of dealing with the cases that have come before me—but this must not be allowed to become the norm.
Video links have a purpose. They can in some cases help to get a case moving forward so that a just decision can be reached, but in most cases they are not appropriate. A judge or magistrate needs to be able to make an informed decision about whether to proceed with video links for whatever bit of process they are dealing with within the court system.
Lord Pannick (CB)
My Lords, Amendment 97CA is in my name and those of the noble and learned Lord, Lord Judge, and the noble Lord, Lord Marks. Unfortunately, the noble and learned Lord, Lord Judge, cannot be in his place this evening because he has been attending a funeral.
Amendment 97CA would remove from the Bill the power in Clause 170 for a court to give a direction that the jury can participate in a criminal trial remotely; that is, in a different location to the judge, counsel and witnesses so long as all members of the jury are in the same place. Jury trial is, of course, one of the cornerstones of our criminal justice system—whether you approve or disapprove of the Bristol jury’s decision to acquit the defendants of criminal damage to the statue of Edward Colston. We need to consider very carefully indeed proposals to amend the way in which the jury performs its functions.
I share the concerns about this proposal that have been expressed by the Bar Council and the Law Society. They say that the success of a jury trial depends in large part on a good working relationship of trust and confidence between judge and jury. The jury needs to be attentive and mindful of its onerous responsibilities; the judge needs to watch the jury to ensure that its interests are protected and it is properly performing its responsibilities. Counsel—both prosecution and defence counsel—need to engage with the jury during the trial. All this is so much harder to achieve through a video screen—indeed, noble Lords will be aware of that from when they have participated in parliamentary proceedings through a video screen over the last two years.
This proposed power requires a strong justification. I listened carefully—I always listen carefully—to what the noble Lord, Lord Wolfson, said in support of this power in Committee and indeed in discussions that I have had with him since, for which I am very grateful. The Minister concedes—indeed, he positively asserts—that this Government have no plan to encourage the use of remote juries. Indeed, they have had no such plans in the nearly two years since Covid-19 began to blight our lives. What the Minister says is that it will be good for Ministers to have this power, just in case it proves useful at some stage in the future. I suggest to noble Lords that it is a very bad legislative practice to confer broad powers on Ministers, particularly powers as controversial as these, just in case they might prove useful at some stage in the future.
The Minister will no doubt give assurances to the House about whether and when these powers might be used. The insuperable difficulty with legislating on such a basis is that the noble Lord, Lord Wolfson, cannot bind his successors in office, who may well have different principles and different policies.
I say to the House that these proposed powers, if ever used, would pose a real threat to the effective administration of justice. There is no current need for them.
Lord Carlile of Berriew (CB)
My Lords, I strongly support the submissions made by the noble Lord, Lord Ponsonby, in relation to Amendment 97C. In doing so, perhaps I can give a small insight as someone who has conducted hundreds of jury trials, some of them involving young people—often very naive young people who are in an enormous amount of trouble.
I feel it necessary to say something to the House about the interaction between counsel and the young client. Typically during the course of such a trial, and in my experience this happens more with children on trial than with adults on trial, either, if one is lucky enough to have one there, one asks one’s instructing solicitor to have a word with the client in the dock on some evidence that has just been given, or—if, as is common now, there is no instructing solicitor there—counsel just walks a couple of rows behind to the front of the dock, takes instructions from his or her client about a factual proposition that has just been made and then continues or commences a cross-examination based on the instructions that have just been taken. In other words, there is a dynamic, living, ongoing 24/7 interaction between the advocate and the advocate’s client.
In the last nearly two years we have all been through the process of conducting virtual meetings. In most respects that has worked very well, but, since we have had the experience of going back into real meetings—on and off, admittedly—we have rediscovered the importance of interaction on the details that occur during a discourse. In my view, it could prove very damaging and delaying in trials to have to have that sort of discourse with a client by asking the judge to turn off the devices so that a private consultation can take place. That could look very odd to a jury, as compared to a quick word two rows behind. I therefore ask the Minister to reflect upon the dynamics of a real trial. I should add that not only have I conducted a lot of trials but for 28 years I was a part-time judge. As a judge I have conducted a lot of jury trials, and the same points arise from the judge’s position.
So far as the amendment from the noble Lord, Lord Pannick, is concerned, I agree with him for a similar but different reason. It is based on a relationship, the relationship between the judge and the jury. It is absolutely commonplace—it happens every hour of every day—for the judge to make some kind of contact with the jury. It may be eye contact; it may be an aside; it may be a little joke. You would not believe how much juries laugh at judges’ jokes; judges make jokes and get far greater laughs than any comedian I have ever seen. All this is part of the process of creating a living instrument through a trial that really works on a human basis. If there are to be any jury trials conducted with the jury in a different place from the judge, that must be most exceptional. If the judge and jury were in the same place, it may be that—and this would still have to be exceptional—the judge might come to a factual decision that a fair trial could be held, but it would be a very rare instance where that would work.
If I may put it as high as this, I advise the Government not to go down this road. In my view, it has the danger of disruption, increasing appeals and actually destroying the very essence of the holy grail, as it were, that is part of our criminal justice system: the jury trial. Part of that essence is the relationship between the judge and the jury, and that really cannot be conducted remotely.
Baroness Bennett of Manor Castle (GP)
My Lords, this group, particularly Amendment 97A, has become pertinent in light of the apparent situation whereby the Attorney-General has displayed something less than a full commitment to the principle of the right to a jury trial. Many commentators are sadly leaping on the Colston four verdict to question the jury system and apparently seek to undermine public confidence in the principle that every person has the right to be tried by their peers. This would be an ideal opportunity for the Minister to reassure your Lordships’ House—I hope he will—that, no matter how politically inconvenient it might be for the Government, trial by jury is fundamental to our justice system and the Government remain committed to it. As the noble Lord, Lord Pannick, said, Amendment 97CA is an important practical step to ensure that that remains a proper, full jury trial, with the kind of interactions that we have heard about.
Briefly, the other amendments in this group are important to protect children and other vulnerable court users. It seems like a basic issue of justice and common sense that the court should ensure that the people who appear by video link are still able to participate fully in the proceedings. I hope that the judiciary would never allow anything contrary to this, although I take the point from the noble Lord, Lord Ponsonby, that the practical sometimes has to override the ideal. None the less, it seems right that the legislation should offer these protections.
Lord Macdonald of River Glaven (CB)
My Lords, I strongly support both of these amendments but will focus on that tabled by the noble Lord, Lord Pannick. Something was said about the judge’s interaction with the jury and, of course, that is true. Judges have a close interaction with juries in the sense described; it is part of the process of building up their confidence to make what is going to be a very important decision at some stage towards the end of the trial.
I would like to say something about the position of a jury which finds itself in a separate place observing the proceedings on a screen. The point of the jury is to make determinations about fact in the case—to decide who is or is not telling the truth and who the jury is or is not persuaded by. Judges often say that one of the things juries should do is judge the demeanour of witnesses and defendants, looking at them giving their evidence, watching closely as they are asked questions, making allowances for inarticulacy, intelligence and so on, but making a judgment about them as human beings in the very human environment of a trial. That would be an impossibly difficult task to discharge adequately over what is, in effect, a Zoom meeting.
Some of us have had the experience during the pandemic of trying to chair meetings over Zoom, sometimes with relatively large numbers of people in the so-called virtual room. It is very difficult to read people over Zoom, judge the feel or mood of the meeting, read what people are thinking and see who is paying attention and who is not. In a criminal trial, these things become dangerous and render a deficiency at the heart of the trial which is to be avoided at all costs.
If there is no need for the power now, it is not a power which Ministers should be given. If it becomes necessary at some future date, then your Lordships’ House can debate it, but I agree very strongly with my noble friend Lord Pannick that such an extensive, broad power as this should not be gifted to Ministers in the absence of absolute need—and perhaps not even then.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, I too support the amendment of the noble Lord, Lord Pannick. Strongly though I support it and absurd though I too think it is to allow for some possibility of a jury trial with the jury sitting otherwise than in the actual courtroom, I had no intention of speaking tonight until I learned that my noble and learned friend Lord Judge could not. As I seem to be the last judge standing this evening and feel so strongly about this, it seems that I should say a word. But I urge all of your Lordships to recognise that if my noble and learned friend had been speaking, he would have said the little I propose to say so much more tellingly and convincingly that the House really ought to add enormous weight to it.
All I say is that the whole value of a jury, sacrosanct in our law of course, is that they are there and part of the atmosphere. They watch the whole thing unfolding, see the witnesses and sense the entire development of the arguments as they emerge. My noble friend Lord Carlile made a number of these points, as the noble Lord, Lord Macdonald, has just done. The whole aura of the process and the fact that the jury recognise in the courtroom that they are, for the first time, having to apply themselves to this critical question—is this man or woman guilty or not guilty?—is lost and dissipated if they are not there. I urge your Lordships not to provide for this suggested possibility, for who knows in what circumstances it would be? They can be only circumstances that do not justify having a separate jury.
Lord Marks of Henley-on-Thames (LD)
My Lords, we agree with the noble Lord, Lord Ponsonby, on the amendments he moved or spoke to on proceedings involving children and health screening, and with the noble Lord, Lord Carlile. We support those amendments, but I will speak to Amendment 97CA from the noble Lord, Lord Pannick, on the use of live links in jury trials, to which I have put my name.
This amendment raises two important questions about the nature of juries and of jury trial. First, how important is it to the trial process that juries see and hear witnesses give their evidence live? Secondly, how important is it to the trial process that the relationship and balance between judge and jury is live rather than remote? On the first issue, the noble Lord, Lord Macdonald, and the noble and learned Lord, Lord Brown, made the point that jury trials depend, more than anything else, upon the ability of jurors to weigh up the evidence of witnesses. They have to assess two things: veracity, or whether the witness is trying to tell the truth, and accuracy, or whether he or she has got it right.
As others, including the noble Lords, Lord Pannick and Lord Carlile, have said, after nearly two years of the pandemic we have all become completely familiar with the process of remote discussion and meetings. None of us, I feel, would now argue that remoteness makes no difference. In this vital area of our national life, as the noble Baroness, Lady Bennett of Manor Castle, pointed out, we entrust decisions about the guilt or innocence of those charged with serious crimes to juries of 12 who listen to and weigh up the evidence of witnesses, and make decisions about truth or falsehood, reliability or inaccuracy, honesty or dishonesty, and intent, accident or misadventure. Those jurors will certainly consider objective evidence that has the same effect when seen or heard remotely as it has when seen or heard directly. But much of the evidence they will hear, and usually the most critical evidence in jury trial cases, has to be subjectively judged, as the noble Lord, Lord Macdonald, said. That is done by references to the witnesses’ demeanour, body language, response to cross-examination and emotional responses.
These are matters on which juries might initially and quite legitimately disagree. Their assessment—the different assessments of all 12 of them—will be the subject of detailed discussion during their deliberations and depend upon impressions. We would be undermining our jury system by depriving jurors of the opportunity, in the case that they decide, to share their experiences of the witnesses and the experiences that they have had live. I do not believe that undermining the jury trial in this way can possibly be justified.
On the second point about the presence of the judge, counsel and jury in the same place, the role of the judge and jury and the relationship between them is a delicate one. I agree with the noble Lord, Lord Pannick, that the judge’s position is to ensure that trials are conducted in a responsible and serious way. I also think there is considerable importance in that relationship that the independence of juries is maintained. A stock sentence that judges quite properly use when summing up is when they tell the jury, “It is a matter for you, members of the jury,” and it is.
However, for juries to make the decisions they are charged with making, they must not feel to be, seem to be or, still less, actually be at a disadvantage compared to the judge who has seen and heard and assessed the witnesses live. When the judge recounts a particular piece of evidence in summing up, juries must not be cowed or persuaded into accepting what they may perceive to be the judge’s view of the evidence. They must be able to say to each other: “He or she may have said that, but I did not believe that witness—did you see how scared they looked?” That is what jury independence means. Jury independence is fundamental to our system and why it is so important. For that reason, I completely support the amendment from the noble Lord, Lord Pannick.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
My Lords, this group contains amendments covering the application of live links to children and vulnerable people as well as to remote juries. I will come to the remote juries point separately later.
First, to make sure that we are all on the same page, I remind the House that Clauses 168 and 169 do not mandate remote or video hearings. How a hearing is to be conducted is a matter for judicial decision on a case-by-case basis. These clauses ensure that, if appropriate, observers can watch a hearing taking place to ensure that the principle of open justice can be maintained.
Amendments 97A and 97B seek to prohibit remote observers from being present in all cases in which a child is among the parties. Amendment 97C similarly seeks to remove children from the application of Clause 170. I suggest both these amendments are unnecessary and would inhibit both the principle of open justice—which is a fundamental principle in this jurisdiction—and the principle of judicial discretion. It would inhibit the ability of courts to use audio and video technology where the court sees fit and when it is in the interests of justice to do so.
I turn first to Amendments 97A and 97B. The effect of these amendments would be that all such remote hearings would effectively have to be held in private, including, for example, any multiparty litigation in our civil courts or tribunals in which a single claimant—perhaps one of a number of claimants—is under 18. That would unnecessarily constrain the transparency of our justice system and impede the principle of open justice.
While I accept the sentiment that underpins the amendments, they are unnecessary because we have sufficient tried-and-tested legislation in place to safeguard the privacy of children in these proceedings. That is set out in Section 47(2) of the Children and Young Persons Act 1933. We also have existing procedure rules under which the court can hold any hearing in private in order
“to protect the interests of any child or protected party”.
Therefore, I suggest to the House that that statutory provision and the procedure rules provide sufficient protection to safeguard the privacy and well-being of young people in the justice system, whether the hearing takes place in-person or remotely.
Amendment 97C would prevent the court making a direction to enable any participant in a hearing to attend by live link where a child is party to proceedings. Again, it is important to protect the interests of children, but we have clear support and guidance in place which mandates the court to consider and have regard to the welfare of the child, to make sure that each child is fairly assessed and represented, is sufficiently supported, can understand what is happening, and is able to engage and participate in proceedings and be kept safe. That is set out in the Criminal Procedure Rules and criminal practice directions.
I recognise, as the noble Lord, Lord Carlile of Berriew, said, that, in the majority of cases, it may well be more appropriate for children to attend a hearing in person, and the Criminal Procedure Rules recognise this. But one must recognise that there may be situations where it is more beneficial for a child, whether as a witness or a defendant, to participate by live link; for example, to protect a child witness from having to be in court with the defendant. Clause 170, as drafted, gives the court that inherent flexibility.
I will come to Amendment 97D in a moment but let me first turn to Amendment 97CA, tabled by the noble Lord, Lord Pannick, which seeks to exclude juries from the provisions in Clause 170 that would otherwise allow a jury assembled together to take part in a trial through a live video link, where appropriate and where the court has decided that it would be in the interests of justice to do so. I will come to the detail of the amendment in a moment, but let us not lose sight of one important point. This amendment is designed to strengthen and support the jury system. It is designed to ensure that we can continue to hold jury trials in circumstances where it might otherwise be impossible, as we experienced for a certain time in this jurisdiction during the pandemic. I am pleased that we were one of the first jurisdictions in the world to get jury trials back up and running, but we could not do as many as we would normally because of the social distancing constraints.
Why are we so keen to maintain jury trials? The answer is simple and perhaps a little topical. The jury is a fundamental part of our criminal justice system. To adopt the words of the noble Lord, Lord Pannick, it is a cornerstone of our liberty. True it is that the cornerstone gets a little defaced with some graffiti from time to time, but it is, none the less, a cornerstone of which we should be proud.
The noble Baroness, Lady Bennett of Manor Castle, threw something of a gauntlet down to me. I am very happy to pick it up, briefly. Juries sometimes return verdicts that raise an eyebrow, but I know from bitter experience that it is not unknown for judicial decisions to trouble the eyebrows too. In a proper case, there is a procedure, once the jury has brought in its verdict, to ask the Court of Appeal to consider and determine specific points of law to assist in future cases without disturbing the actual jury verdict in the instant case.
If the noble Baroness wants to have a crack at my right honourable friend the Attorney-General, she can, but she cannot, I am afraid, stand up and have a crack at her while betraying fundamental ignorance of the underlying legal principles. Counsel in the case himself said that his arguments were “new and complex”. Those are precisely the points which would be suitable for reference under Section 36 of the Criminal Justice Act 1972, a provision with which I am sure the noble Baroness is very familiar. I am also sure that she has read the recent case in the ECHR of Handzhiyski v Bulgaria, decided on 6 April 2021, which discussed in terms whether the provisions of Article 10 of the ECHR did or did not apply to a charge of criminal damage.
I am very happy to respond on the glories of the jury system, but I respectfully suggest that, if the noble Baroness is going to make a point about the conduct of the Attorney-General, she looks at the underlying legal position first. There are certainly points in the Colston case which an Attorney-General might properly decide to, or not to, refer to the Court of Appeal. That is a matter for the Attorney-General.
Lord Pannick
“(2) Subsection (1) does not apply to a jury or to members of a jury.”Member’s explanatory statement
This amendment would prevent a criminal trial proceeding with the jury (or members of the jury) in a different physical location to the judge, witnesses or counsel.
Lord Pannick (CB)
My Lords, I am grateful to all noble Lords who have contributed to this important debate, not least the Minister. In the debate your Lordships have heard that there is, at least, a very substantial risk that the jury being remote from the rest of the trial would damage its ability to perform its functions. The question, then, is whether there is a compelling need for this proposed new power. The Minister very fairly confirmed that there is no current intention to implement the proposed power. I suggest that if and when there is any such intention, that will be the time to determine whether it is appropriate, in such circumstances, to confer such a sensitive and controversial power. Ministers should not be given such powers on a so-called future-proofing basis—to use the Minister’s term. I wish to test the opinion of the House.
Earl Attlee
“Facilitation of potting
(1) A person commits an offence of facilitation of potting if the person—(a) is in custody and causes or permits their own urine or excrement to be intercepted without lawful reason or excuse, or(b) is in custody and causes or permits their own ejaculate to be intercepted without lawful reason or excuse.(2) For the purposes of subsection (1)(a), only in exceptional circumstances may the court accept a defence of “lawful reason or excuse” in the absence of evidence of a prior direction by a clinically qualified person.(3) A person guilty of an offence to which this section applies is liable—(a) on summary conviction, to imprisonment for a term not exceeding 12 months;(b) on conviction on indictment, to imprisonment for a term not exceeding 2 years.”Member’s explanatory statement
This amendment aims to establish a specific offence of “facilitating potting”, potting being the practice of throwing urine, excrement or ejaculate at prison staff.
Earl Attlee (Con)
My Lords, Amendment 99, is in my name and those of the noble Lords, Lord Ponsonby of Shulbrede and Lord Paddick: I am grateful for their support. We return to the issue of potting—that is to say, a disgusting assault using materials mentioned in subparagraph (1) of the new clause and which usually occurs in a custodial setting. In the light of a constructive meeting I had with the Minister last week, I do not propose to detain the House very long on this matter, and I do not believe the House or, indeed, my Chief Whip, is keen to do so either.
Since we debated the matter in Committee, the Government have published a White Paper on the prison system which, inter alia, proposes zero tolerance for bad behaviour in prisons. I have taken on board some of the defects of my original amendment, identified in Committee: the amendment now deals only with the preparatory act of intercepting the relevant substance. It is not necessary to have a new offence for the actual potting, since that is covered by existing offences, and it is not good practice to place a duty to provide spit kits in a clause that seeks to create a new offence.
In Committee, I thought the Minister was a bit optimistic when he said he was not aware of any problems with the issuing of spit kits to prison officers. A subsequent Written Answer revealed that none of the several prisons that I asked about appeared to be issuing spit kits. I accept that spit kits are particularly useful when the offender is not known to the victim—say, a ticket inspector—and when the offender may abscond but probably has a record. However, my underlying concern is to ensure that these disgusting offences do not go unpunished and, as a result, become more frequent and insidious. I hope my noble friend will take this opportunity to flesh out the proposals in the Prisons Strategy White Paper to have zero tolerance of bad behaviour within prison.
We all owe a great debt of gratitude to prison officers and prison governors, who we charge with looking after and protecting us from some of the most dangerous, wicked and obnoxious members of our society. We owe it to them to make sure that, if they are assaulted doing their duty, we will back them up and ensure that perpetrators are brought to justice. If we fail to do so, there will be at least two serious consequences: first, we will experience difficulties in retaining the best possible prison officers; secondly, the remaining prison officers will be demotivated, less willing to ensure full compliance and less willing to ensure that prisons are the safe and humane establishments that we all want them to be. I am pleased to say that I have detected that Ministers have taken all this on board.
Finally, I remind the House that I am not a founder member of the “hang ‘em, flog ‘em and throw away the key brigade”; the House will recall my proposals outlined in my Committee stage Amendment 241, which proposed drastic reform in respect of prolific minor offenders, and I am grateful for the positive response that I received. I beg to move.
Lord Paddick (LD)
My Lords, I am very pleased to support the noble Earl, Lord Attlee, in his amendment, to the extent that I have added my name. We had discussions between Committee and Report; we agreed that the actual assault was covered by existing legislation, but the preparatory acts in preparing these disgusting attacks on prison staff needed to be addressed. That is how we arrived at the revised amendment, and I am very happy to support it.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I pay tribute to the noble Earl: he has been dogged in his pursuance of this and I understand he has had constructive discussions with the Minister. I look forward to what the Minister is going to say to, in the noble’s Earl words, flesh out the proposals in the White Paper, and how these may lead to greater support for prison officers. One specific question for the Minister is how they propose to monitor potting and whether it is done by somebody acting in extreme distress or whether it is part of a planned tactic, if you like, within the prison.
In conclusion, I repeat my tribute to the noble Earl—it appears to me that his time in the TA may have led to his having some empathy with prison officers. I do not know, but nevertheless I support his amendment.
Lord Wolfson of Tredegar (Con)
My Lords, I also thank my noble friend Lord Attlee for tabling this further amendment on potting, which is vile behaviour and undoubtedly a horrific experience for those who become victims of this practice. I say unambiguously that it is therefore right that such incidents are prosecuted where there is sufficient evidence or that they are otherwise dealt with through prison adjudication.
My noble friend was particularly concerned about the availability of spit kits to collect evidence where crimes are committed. I hope that I can reassure him by saying that some prisons already purchase spit kits locally as a matter of course, but we will consider further whether there is a need to make them available to prisons nationally, as part of our focus on reducing crime in prisons.
Earlier discussions with the police and CPS confirmed that the use of body-worn cameras, rather than spit kits, would offer the greatest means of providing evidence to enable prosecution of crimes in prisons. That is why we have concentrated on providing these. Indeed, we are introducing a new generation of body-worn video cameras during this year, with newer, more technologically advanced cameras that will be available to every prison officer who needs one. They include a pre-record facility that effectively records and overwrites footage—so the pre-record footage is saved when you press a button. They are similar to cameras that are available to other people in the criminal justice system and mean that it will be easier to provide evidence of potting and therefore to support a prosecution.
The noble Lord, Lord Paddick, correctly identified that, in the amendment, this is a preparatory offence and tries to capture behaviour even where the act of potting itself may not yet have occurred or have occurred at all. The offence would apply where an individual possesses, provides or allows others to use their bodily fluids, intending them to be used for malicious purpose—and where an individual has assisted, aided or encouraged a crime. Of course, doing those preparatory acts is already a crime under Sections 44 to 46 of the Serious Crime Act 2007 or possibly under the Criminal Attempts Act 1981. The penalties for those preparatory offences are the same as those for the substantive offence.
We are also concerned about a practical difficulty: collecting urine samples may be impeded by the wording of this amendment. We are also concerned that it does not offer, in terms, a defence for those who do not intentionally facilitate this but whose bodily fluids are used by someone else for a malicious purpose. However, I will not say any more about that because my noble friend has recognised that the Government have listened to him on this and are taking the matter seriously. We recognise that more can be done to improve the effective prosecution of crimes in prison. It is a priority, and we will continue to work to ensure that those agencies and organisations prioritise serious crimes, enabling clear criminal consequences when they occur. HMPPS works with the police and CPS to improve rates of prosecutions for crimes committed within prisons.
I know that my noble friend is motivated by his admiration of the work of prison officers—I will not speculate about the genesis of that. But the fact is that they have to deal with some of the most difficult and dangerous members of our society. We in the Ministry of Justice share that view. In the prisons White Paper, published in December last year, we set out a zero-tolerance approach to crime in prisons. We will set up a crime in prisons task force, which will identify and expose any systemic failings that allow continued criminality in prisons, enhancing our capabilities to disrupt crime and ensuring that evidence and investigations lead to more criminal justice outcomes. We will commission the taskforce to look specifically at potting offences.
The White Paper also sets out our commitment to refer the most serious crimes, such as assaults on prison officers, to the police, in accordance with the crime in prisons referral agreement, which exists between Prison Service, the CPS and the National Police Chiefs’ Council. I appreciate that I have dealt with that fairly quickly, but I hope that I have reassured my noble friend that the Government have listened very carefully to what he has said.
I will respond to the point put to me by the noble Lord, Lord Ponsonby. Offences of potting are captured in published statistics—specifically the quarterly Safety in Custody Statistics. But if I can add anything to what I have just said, I will write to him. I hope that, for those reasons, my noble friend will feel able to withdraw his amendment.
Earl Attlee (Con)
My Lords, I am grateful to all three noble Lords who have spoken on this issue and the two who have supported me. I believe my noble friend the Minister has taken this issue on board, and I thank him for that. We know perfectly well that we are limited as to how many presents we can load on the Christmas tree for the Minister to take back to the Commons, and I accept that there are bigger fish to fry. What I cannot accept is that we allow this type of assault to go unpunished. Prosecution and conviction need to be inevitable. That means necessary evidence must be collected, and the police and the CPS must devote sufficient resources to the problem.
It is clear to me that the amendment is not defective and there is a gap to fill, although I accept that there may be minor drafting issues. The issue is whether we want to create a new offence. The White Paper proposes zero tolerance for bad behaviour, and if potting is not bad behaviour, I do not know what is. Ministers and officials should be aware that I will be working very closely with the Prison Officers’ Association to monitor progress and, if necessary, we can bring this amendment, or a similar one, back at a suitable legislative opportunity. In the meantime, I beg leave to withdraw my amendment.
Baroness Chakrabarti
“Duty to establish statutory inquiry into lessons to be learned from the death of Sarah Everard
(1) The inquiry into matters arising from the death of Sarah Everard, announced by the Secretary of State for the Home Department on 22 November 2021, is to be held as an inquiry under the Inquiries Act 2005. (2) The Secretary of State must ensure that the terms of reference of the inquiry include the wider lessons to be learned for the professional culture, funding, vetting and organisation of policing, the prevention of violence against women and the investigation and prosecution of misogynistic crimes.(3) If on the commencement of any provision of this Act, the inquiry does not have a panel of members which includes at least one member with experience in the area of violence against women, the Secretary of State must ensure that such a member is appointed.”Member’s explanatory statement
This amendment converts the existing Home Office inquiry into the matters arising from the death of Sarah Everard into a statutory inquiry under the Inquiries Act 2005. It also ensures that the Inquiry panel includes at least one member with experience in the area of violence against women and girls.
Baroness Chakrabarti (Lab)
My Lords, here we are, quite late into the evening, to discuss the group of amendments refined from amendments tabled in Committee in response to the horrific rape and murder of Sarah Everard and, I am afraid to say, a wholly inadequate response from some of the most senior police leaders in our country.
I do not want to dwell too much on this, but I do not think that it reflects incredibly well on the way we do business in your Lordships’ House that this group has miraculously come to be debated at this particularly late hour, not least given the fact that I have been around all day and have heard some very lengthy, florid, colourful, relaxed speeches on all sorts of subjects all afternoon and evening from all sorts of delightful Members of your Lordships’ House who have been infrequent engagers with this Bill and most of whom, for all sorts of reasons, are no longer here. I do not think that this self-regulating House has done justice to women and girls in this country, nor, indeed, have those who effectively control the agenda and have allowed this group to be opened at approaching 10.50 pm.
I feel the need to put that on the record for Hansard so that the various women’s groups and victims’ groups who have been waiting for this group to come up will be able to understand exactly what has gone on. I was particularly concerned about some of the debates that went on just before the dinner break with no concern for time—and sometimes not much concern for kindness or the dignity of our fellow human beings, but enough of that—no intention of a vote and no real intention of changing the law. I have also noticed the way in which some of us are censored for our length at strategic moments and others are not in this so-called self-regulating House.
This group deals not just with the Sarah Everard outrage but with the public concern about it and the way that women and girls have been treated in our criminal justice system more generally, and what that means for a crisis of confidence, potentially, in our police service, which is so essential to the rule of law.
I am grateful to noble Lords from parties and groups from all across your Lordships’ House for their consistent support for the calls for a full statutory inquiry, particularly into the broader matters arising from the Sarah Everard scandal. It makes the earlier remarks necessary. Of course, for all sorts of completely legitimate reasons—not least that people come from all over the country, have different health conditions and are of different ages—it is not possible for everyone who wanted to be here to be here right now.
Amendments 108 and 109 are in my name. Amendment 108 is supported by the noble Lords, Lord Carlile of Berriew and Lord Paddick, and the noble and learned Lord, Lord Garnier, while Amendment 109 is supported once more by the noble Lord, Lord Carlile, and the noble and learned Lord, Lord Garnier. These two amendments deal with the specific issue of it being lawful at present for arrested people—that is, people who are suspects but have not been charged and are therefore not defendants, or at least believe themselves to be suspects when they are stopped by a police officer, as poor Sarah Everard was—to be taken away in a vehicle by a lone police officer. Noble Lords, particularly those who have engaged with this issue and were here in Committee and at earlier stages of the Bill, will appreciate that that possibility has understandably caused a great deal of concern, in particular since last autumn when Wayne Couzens’s sentencing hearing revealed some of the truly horrific details of that case.
Amendment 108 would prevent a single officer ever lawfully taking suspects away in a vehicle. Amendment 109 takes a slightly gentler approach—helpfully suggested to me by the noble Lord, Lord Carlile, I might add; I am grateful to him—to the same problem. It does not create an absolute legal bar to a lone officer taking a suspect away in a vehicle, with all the dangers that that one on one creates for both the officer and the suspect; instead, Amendment’s 109 approach is to amend PACE—the Police and Criminal Evidence Act—so that the Secretary of State would be required to issue a full-blown PACE code of conduct to deal with the transportation of suspects.
Given who is left at this time of night, I know that the noble Lords here are engaged with these issues and understand the importance of PACE codes in particular. They are required in relation to things like detention and the questioning of suspects in a police station. Since 1984, they have been a really important protection for citizens in the police system. Amendment 109 is a new amendment—I did not table it in Committee—and I am very grateful to the noble Lord, Lord Carlile. I really want to hear any conceivable argument against this mild amendment, which would add “transportation” to the list of activities in relation to suspects for which the Secretary of State should issue full-blown statutory PACE codes of conduct.
When one considers Amendment 108—my previous amendment, unenlightened by the noble Lord, Lord Carlile—with its absolute bar on single officers taking suspects away, or the amendment to PACE, it is worth noble Lords remembering some of the quite bizarre and hubristic public comments that were made. They included, I am afraid to say, comments made by a police and crime commissioner who is no more, as well as by certain retired and serving police leaders, about women being naive in going along with a police officer who stops them late at night. They said that there is something wrong with them—that it is the woman’s fault. Some ridiculous public comments were made.
Equally, however, there were other comments suggesting that this practice should be changed and things should be done. If things can be done by way of police administration, why can they not be somehow reflected in this Bill? This would give greater confidence to the young women and girls in particular—wholly law-abiding people—who have been feeling such anxiety and such a crisis of confidence not just since Sarah Everard’s murder during a lockdown, at a very difficult time for our country, but since the Wayne Couzens sentencing hearing. I hope that I can persuade the Minister to reflect on that particular issue and on how to grapple with what I am proposing in Amendments 108 and 109.
Then, of course, we return to Amendment 102, which calls for a statutory inquiry. It is not only my repeated call: it has been a call from so many people. I am so grateful to my noble friends in the leadership of the Opposition, to the noble Lord, Lord Paddick, and his noble friends and to the noble Baroness, Lady Newlove. She and my noble friend Lady Lawrence are, in my view, two of the greatest champions of victims’ rights, cutting across all vested interests, all party interests and all bureaucracy. The noble Baroness, Lady Newlove, has been with me in relation to this amendment from the very start; it is nearly 11 pm, and she is still sitting there and is with me now. I thank her so much.
This is a call for a full-blown statutory inquiry, not an administrative inquiry, under the Inquiries Act 2005. It follows resistance and hubris, I am sorry to say, from senior police leaders who, as we obviously know by this time, do not want an inquiry of this kind. To put it in context once more—I know that I am taking time, but I feel the need at least to do this argument justice—I mention the relatively recent inquiry and damning report of the noble Baroness, Lady O’Loan. Not much longer than six months ago, she spoke about the obstruction that she faced from the Metropolitan Police—including from the commissioner, I am sorry to say—in reporting on the Daniel Morgan scandal. I need not paraphrase, because noble Lords have heard from the noble Baroness in the past and her report, including the shortened press summary, is there for all to read, along with her speeches in Hansard. She faced obstruction, and said specifically in her findings that she knew that she had been hampered by not having the statutory powers that would have been available under the 2005 Act. I give that as a piece of evidence in my call for a statutory inquiry into the matters arising from Sarah Everard’s murder.
I also give the tin-eared and insensitive—to say the least—policing of the Clapham Common vigil. We know in your Lordships’ House that this was contrary to the original working and decisions of the borough command and the police service on the ground, who were working with women’s and victims’ groups to facilitate a peaceful vigil. Senior leadership and senior officers in the Met decided that was not to be. We can now trace back the timeline, because it is all in the public domain if one takes the time to look at the newspaper reporting. We can tell that those decisions about the disproportionate, tin-eared and counterproductive policing of the Clapham Common vigil would have been made at a time when the senior police leadership knew things that we only now know about Wayne Couzens, what he had done—because he had interviewed at this point—his policing career, and various things that obviously went wrong. I know that that is embarrassing, but that is why we must have a statutory inquiry. All institutions made up of humans feel the need to close ranks when things terribly wrong. That is precisely the moment when outside forces, including your Lordships’ House, need to prevent that closing of ranks.
Lord Carlile of Berriew (CB)
My Lords, I am pleased to follow the noble Baroness, Lady Chakrabarti, in support of her amendments. I want to start by paying tribute to the Minister of State, the noble Baroness, Lady Williams, who has been extremely accessible and helpful. In an attempt to resolve these issues there have been several discussions, some of them initiated by her, and I am sure that those of us involved would like to place our gratitude on the record. I thank her very warmly.
I reassure your Lordships that I do not wish to repeat what I said in Committee. Indeed, the amendment I put down in Committee has not been tabled on this occasion because of things that have occurred since then. Like the noble Baroness, Lady Chakrabarti, I regret very much that we are dealing with this important debate at such a late hour. Speaking at 11.10 pm takes me back to my days in the House of Commons in the 1980s when, routinely, we had debates at this time of night on matters of importance and principle—something that is now avoided because it is known to be poor practice. Furthermore, I must say to the usual channels, particularly the Government Whips, that there must be oblique reasons behind holding this debate at this time of night. If we look at the result of the last Division, which took place a few moments ago, it is clear circumstantial evidence that if you want to get out of the way something you think you would lose a vote on if it took place mid-afternoon, hold that vote—if it is to take place—somewhere around midnight and you will be quite safe. Those tactics do absolutely no credit to the reputation of this House and I regret very much that my representations were rejected a little time ago by the Government Chief Whip.
This is not just about Sarah Everard or Wayne Couzens. Without commenting on any pending case, there are proceedings pending in which it is alleged—it may not be proved, of course, and I do not wish to comment on any individual case—that other police officers have acted in every bit as outrageous a way as Wayne Couzens. I am in the lucky position of being in a family with five daughters. It may well be that our daughters, who would generally, I hope, defer to instructions given to them by police officers, will now feel unsafe on the streets of London, where they live, unless further protection is given.
This is about a broad principle. We know, because it has been proved in other cases—the noble Baroness, Lady O’Loan, for whom I have the greatest admiration, has demonstrated this in a major inquiry that she undertook—that the police will sometimes strain every sinew to avoid being held fully accountable. Unfortunately, the reaction to the Sarah Everard vigil was outrageous, as the noble Baroness, Lady Chakrabarti, said, and it never received the sort of apology it should have from the Metropolitan Police Commissioner, whose position in this leaves one very concerned. Where, in the end, does ultimate accountability for the police lie when people from the diplomatic and parliamentary division are the culprits in the most serious cases, as Wayne Couzens was?
That is a particular reason why I think it pretty outrageous to be asked to debate these important issues at this time of night. That is not a repetition of a Second Reading point; it is a discourse upon the way in which procedure in this House is, in my view, being abused on this Monday evening.
Baroness Newlove (Con)
My Lords, I have listened to everybody speak, and I appreciate that it is late at night, but I ask my colleagues around this Chamber to remember that we are talking about a human life that was horrifically and brutally taken. We have a family broken to bits. I have to say that, as somebody who has been through the criminal justice system, and as a mother of three daughters, my emotions are running high, because it was at this time of night that Sarah went missing and the searches began. Yet here in this Chamber we are arguing over having a statutory inquiry for the soul of Sarah Everard. We have colleagues here waiting to see whether we are going to divide, and saying that we are going on too long and are going round in circles. I feel ashamed to listen to these conversations, when we in this Chamber should be thinking of Sarah Everard and her family.
Let me tell you that it is not easy for the family; every day is hard. We are talking about a family that is traumatised. Any information that has come from any Minister or any government department will not be absorbed, because they are trying to get through every minute of every day. I am not saying this to be emotional—“Oh, calm down, my dear”—and I am not a legal eagle, as my fellow colleagues are who have just spoken articulately, but what I can say is that it is absolutely shameful that this Government are putting this inquiry into two parts.
That is not to say I cannot thank the Minister for taking the time to discuss this. The shame of it is that we are going to go through part 1, which deals with all the things that we already know, and that is why it is quite quick, and then, following advice to the Home Secretary, she or he—I have worked with several Justice Ministers as Victims’ Commissioner, and it is quite right that there is a carousel—will make a decision. It is unfortunate to think that an adequate and eloquent lady will give advice to the Home Secretary only for that person to yet again make a decision with no timeline.
It could be one of your daughters who they find. You could have to go through these media perceptions, asking what she was doing out late at night. Yet we protected an ex-police officer by saying that we do not know what has gone on and will have to find out. We are fighting here to discuss the place of a statutory inquiry. Given the public interest and all the window dressing from politicians across the House—because this Bill does go back to the Commons to be debated once again—I think that is shameful.
This House works best when we work together but tonight, at half past 11, I have been on my feet and travelling for 14 hours. I have health issues; I have taken my painkillers to be here to speak up for Sarah Everard. To walk a mile in the shoes of this family, in this horrific case shows that they are now relying on people giving messages, with no legal intervention. Yet we, as the unelected Chamber, can fight for this important inquiry. It is disgraceful that it is in two parts.
At this time of night, we are playing politics. Maybe the Government will win this Division and maybe we will, but it is shameful. Everyone in this Chamber needs to be aware that this could happen to them and they would go through the same system. It does not matter who you are—at the end of the day, we owe it to the public to make demands. We have asked the Government to order a statutory inquiry. Only then will the police be held accountable, only then will we stop police forces and officers marking their own homework and only then, speaking from my former role as Victims’ Commissioner, will they be truly accountable. In any other role, we would be sacked. We would be going through a civil investigation, a duty of care, vicarious liability—whatever it may be.
We are talking about a human life, a young woman who committed to go into a car with a police officer. For absolute assurance, for the public interest, for public safety, for our young and future generations, for our daughters and our sons, we owe it to help the public gain confidence in a system that is supposed to be there to protect us. Most importantly, what we see as the ethos of the police officers who put that uniform on has disintegrated.
We must have a statutory inquiry for the soul of Sarah Everard and, indeed, for the sake of humanity. If we do not, this will be a shameful decision that we will always regret having made.
Baroness O'Loan (CB)
My Lords, I am pleased to support this amendment in the name of the noble Baroness, Lady Chakrabarti, as well as those of the noble Lord, Lord Carlile, and the noble Baroness, Lady Newlove, who has spoken so eloquently and passionately on this subject. The Government claimed that the inquiry that was established would be quicker as a non-statutory inquiry; from my experience, that is not necessarily the case. The reality is that in phase 2 of this inquiry, if not in phase 1, we need an inquiry under the Inquiries Act 2005, which is not limited to the activities of one officer but embraces the very important issues of recruitment, vetting, funding and resourcing of anti-corruption activity, and the fact that the IPCC is so underfunded for the anti-corruption work that it has to do.
My inquiry and others before it have pointed out the serious deficiencies in the management and funding of those elements of police responsibility that are dedicated to identifying criminals within police ranks and dealing effectively with them. I reported in June last year. Given my experience of investigating matters involving the MPS, the IPCC and the Crown Prosecution Service over some six years, I do not believe that a non-statutory inquiry can act as effectively as one armed with the power to compel witnesses and the discovery of documentation. My panel was to report within 12 months of receiving documentation. We received our first documents in January 2015 and our last in March 2021. We reported three months later, saying:
“It is very important that lessons are learned about planning and preparation before the appointment of panels and similar public scrutiny bodies to avoid unnecessary distress to the families of those affected and unnecessary delays and costs to the public purse.”
I am sure that everybody’s thoughts tonight are with the family of Sarah Everard and with all those women who are listening, as the noble Baroness, Lady Chakrabarti, has said, and who will be affected by the outcome of this inquiry. Earlier, as we sat waiting for this amendment to be called, a number of Members—noble Baronesses—were discussing what it feels like as a sole woman to walk out of your Lordships’ House at this time of night and later, and try to find our way safely to the places that we stay in.
Baroness Bennett of Manor Castle (GP)
My Lords, I started off with a set of notes that said, “The Green group fully backs all these amendments”, and that we would have attached one of our names, had there been space. However, that is not really where we are now, is it? This is now a question of procedure. The noble Baroness, Lady Chakrabarti, was clear but extremely restrained in her tone when addressing how we come to be at this point tonight—it is now 11.34 pm. The noble Lord, Lord Carlile, was very blunt and clear, and we have heard passionately from the noble Baronesses, Lady Newlove and Lady O’Loan, about how inappropriate this is.
This is the service that your Lordships’ House is providing to Sarah Everard’s family, to women’s and girls’ groups, to the people who have campaigned and worked so hard on this amendment: to be here at 11.34 pm. A vast amount of work has gone into this and it is, at our current point, a travesty of democracy. Oddly enough, your Lordships’ House often manages to be quite democratic, but what we are doing at this moment is no way to run a country.
I have a whole lot more notes along those lines but will not deliver them, given the hour. I am simply going to move to the point of my speech: to move a Motion now that debate on Amendment 102 be adjourned to a subsequent day. I am told that this is unusual but possible.
Now, I can count; I can look around and see what your Lordships’ House looks like. But I believe there is a crucial matter of principle here that has to be asked. We are supposed to be the self-governing House. Noble Lords on the other side of the House have, I hope, listened closely to the noble Baroness, Lady Newlove. I am giving them an opportunity to provide a full, democratic chance for the entire House to make a judgment on this group of amendments, rather than doing it tonight at this hour.
Motion
Baroness Bennett of Manor Castle
That the House do adjourn the debate on Amendment 102 until another day.
Lord Paddick (LD)
My Lords, I thank the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Carlile of Berriew, for very effectively introducing the amendments. I also thank the noble Baronesses, Lady Newlove and Lady O’Loan, for their powerful contributions, in their different ways. I will have much more to say about the College of Policing code of ethics and the culture in the police service when we debate the amendments on the duty of candour.
I agree with other noble Lords that debating this issue at this time of night is not appropriate. I do not believe there was a conspiracy to make this debate happen late in the evening, but it was open to the Government Chief Whip not to begin this group at this time of night, but to debate it the next day—and I believe he should have done that.
On the substance of the amendment, the last non-statutory inquiry into the police—by the Daniel Morgan independent panel—took, as the noble Baroness, Lady O’Loan, said, more than eight years to complete, because it did not have the powers of a statutory inquiry under the Inquiries Act, and because, as we have heard, it faced obstruction by the police, leaving important questions still unanswered. The Macpherson report—the inquiry into the tragic death of Stephen Lawrence—took less than two years, and had a fundamental impact on policing. If the Government do not accept Amendment 102, we must assume that they want an inquiry that drags on for years and does not answer the fundamental questions. It is as simple as that.
For the protection of police officers and members of the public, those arrested should not be placed into a vehicle or taken into premises unless there are at least two officers present. Not only would Amendment 108 reassure women and girls, but it is also basic common sense. Similarly, Amendment 109, requiring the Secretary of State to issue codes of practice in relation to the transportation, as well as the detention, of people by the police under the Police and Criminal Evidence Act, is necessary. What could the Government’s objections possibly be? Perhaps we are about to find out.
Lord Coaker (Lab)
My Lords, I congratulate all noble Lords and noble Baronesses who have spoken so far in the debate. I shall focus on Amendment 102, which is incredibly important. The speeches by my noble friend Lady Chakrabarti, the noble Lord, Lord Carlile, the noble Baronesses, Lady Newlove, Lady O’Loan and Lady Bennett, and the noble Lord, Lord Paddick, have all, in their own ways, made important points to the Government.
The question for the Government is whether they will listen and respond to that, or whether they will just say, “This is the decision we have made, and whatever arguments are put to us, we’re not going to change”. This is one of those moments when they do need to respond. They need to change, and to listen to the arguments that have been made right across this Chamber and beyond—and, no doubt, by many of the people who will be listening. The reason I say that is that the statutory inquiry called for in Amendment 102, moved by my noble friend Lady Chakrabarti, has at its heart the need for the restoration of public confidence and trust.
There are seismic moments in our country: events that demand a response that goes beyond normal politics, beyond the normal debate between parties—events that demand a response from this country’s Parliament, its representatives both in this Chamber and in the other place, that meets the significance of what has happened. It cannot be that we simply say that we will have a Home Office-led inquiry, and that is okay. How will the public see that? How will individuals see that? How will the people who have responded to the horror, as we all have, of what happened to Sarah Everard, see it? This touched the nation’s conscience, the nation’s inner being. It wants us to respond to that and surely, at the very least, we should say that we will undertake a statutory inquiry, because that is the way the confidence of the public can be restored. It is the way we can ensure that, as we move forward, the public can be reassured that that confidence and trust can be restored in the state, in its broadest sense—not just Parliament but the organs of the state: the justice system, the police, and all those who have responsibility because of what we legislate for here.
The noble Lord, Lord Carlile, made what I thought was the crucial point—the one that an ordinary member of the public, frankly, from whatever part of the country, whatever their occupation, would make. What happens to that inquiry if a witness says, “I am not coming” and that inquiry is obstructed? What happens if the Home Secretary says, “It is a very important document but we cannot release it because it is sensitive”? What would the Government’s Home Office-led review be able to do if a witness refuses to attend, if the release of a document is refused, if the police, for example, refuse to co-operate? Answer from the Government there is none, other than a vague platitude: “We expect that co-operation to happen; we expect that to take place; we expect all the documents to be released.” A statutory inquiry, however, would have no such problem. There could be no obstruction, no documents withheld, because that is the point of a statutory inquiry. In the court of public opinion, let alone any other court, people will say, “Why are they not doing that? What possible reason is there for the Government not to respond in that way?” I do not understand it.
I am a Labour Peer, a Labour politician. That does not mean that I think everything the Conservative Government do is terrible; but sometimes, it does not matter where you are on the political spectrum—you have this sense of incredulity, of disbelief. Why is the system refusing to do the obvious? Why is the system not responding in the way that anybody would expect it to, in the face of the horror of what happened to Sarah Everard? We cannot undo the past, but we can make the future. I think that people would expect nothing less from us, nothing less from this Chamber, than that we say in response to the horror of what happened that the public demand a statutory inquiry that compels co-operation, documents and witnesses. There are all the other arguments that go round and round, all the other arguments that can be made, but that is the nub of it.
I say to my noble friend Lady Chakrabarti that this is one of the most fundamentally important amendments we have discussed on this Bill. Of course, there will be women—daughters, young women, girls—who want this, but there will also be a lot of men, if not the vast majority, who will be demanding that statutory inquiry for the women and the girls of this country. We all want it.
Lord Coaker (Lab)
I think the public would expect a statutory inquiry. I expect a statutory inquiry and I believe the vast majority of Peers would as well. The Government may set their face against it, but I hope my noble friend will put it to a vote. We can test the opinion of the House and see where that takes us if the other place is caused to think about it again. The women and girls of this country, as well as the country itself, deserve a statutory inquiry, and we should vote for it tonight.
Baroness Williams of Trafford (Con)
My Lords, I share noble Lords’ frustration that at a minute past midnight I am standing up to respond. I do not think anyone could accuse me of filibustering or frustrating any processes today. It was very unfortunate that we did not start this Report stage until nearly 4 pm because Members were discussing procedure. It is very frustrating that we are discussing such an important topic so late at night.
That said, I thank the noble Baroness, Lady Chakrabarti, for raising this incredibly important issue, and the noble Lord, Lord Carlile. I thank the noble Baroness, Lady O’Loan, for sharing the experiences of her time as chair of the Daniel Morgan inquiry. I again thank the noble Lord, Lord Carlile, my noble friend Lady Newlove, and the noble Baroness, Lady Chakrabarti, for the opportunity that I have had to discuss this issue with them. It is so important that Sarah’s family and the public understand how a serving police officer was able to commit such a senseless crime so that we can stop it ever happening again and restore confidence in our police forces. I think all noble Lords want that.
On 5 October, the Home Secretary announced her intention to launch a two-part inquiry into the circumstances surrounding Sarah’s murder. The first part of the inquiry will look at Sarah’s murderer and his tenure at the Metropolitan Police leading up to his conviction, as well as assessing any missed opportunities to hold him to account for his conduct. The second part of the inquiry will look at any specific issues raised by the first part, which is likely to include wider issues across policing, including, but not limited to, vetting practices, professional standards and discipline, and workforce behaviour.
This is the opportunity to look at any systemic flaws in vetting or issues around policing culture that were highlighted in the amendment. We expect that the separate inquiry established by the Metropolitan Police Commissioner, being led by the noble Baroness, Lady Casey, into the culture and standards of the force will feed into part two of the Home Office-established inquiry.
On the point raised by the noble Lord, Lord Coaker, about witnesses giving evidence, the police forces for which Sarah’s murderer worked will be witnesses to this inquiry, and we expect them all to comply with it. Since February 2020, when we amended the law, police officers have been under a duty to co-operate as witnesses with investigations, inquiries and formal proceedings under the revised standards of professional behaviour. Failure to do so could amount to misconduct and lead to disciplinary action—something which, during the Daniel Morgan inquiry, was unfortunately not available.
On 22 November, the Home Secretary announced that the chair of the inquiry would be the former Lord Advocate, the right honourable Dame Elish Angiolini QC. Following her appointment, the terms of reference of part 1 of the inquiry have been agreed with her, and they were published on GOV.UK this morning, as noble Lords have said.
The form of part 1 of the inquiry has been discussed with Dame Elish at length, and she agrees that a non-statutory inquiry is the best option to enable her to operate swiftly, allowing greater flexibility to gather evidence relating to Sarah’s killer’s policing career, without formal set-piece hearings. It is imperative for Sarah’s family and the public that we get answers as quickly as possible—I do not think that anyone demurs from that. This will enable Dame Elish to start part 2, looking at policing more broadly, in short order after the conclusion of part 1, which I know the amendment of the noble Baroness, Lady Chakrabarti, seeks to achieve.
Also agreed with Dame Elish is that, should she feel that she cannot fulfil the terms of reference operating on a non-statutory basis, and should official advice concur, it can be converted. I am not sure that the Sky News quote entirely reflects the Home Secretary’s words. That point about the conversion is set out in the terms of reference, and it is not only that: I can advise the House that, in coming to a decision on whether to convert the inquiry into a statutory inquiry under the Inquiries Act, the Home Secretary will be strongly guided by the views of Dame Elish. So, to quote the noble Lord, Lord Coaker, we are not saying, “No, we have already decided”. We have not. Under the Inquiries Act, the Home Secretary is required to consult the chair on any decision to convert the inquiry, and the chair’s views would be expected to hold considerable weight. I hope I have been able to satisfy noble Lords on that point.
I understand the noble Baroness’s point that confidence in the police among women, particularly younger women, has been rocked by Sarah’s murder and other cases that are coming to light—I share those views. This is analogous to the impact that the failings in relation to Stephen Lawrence’s tragic murder had on black communities. I understand how powerful it was for Sir William Macpherson to hold the Metropolitan Police to account in public over 20 years ago and I agree entirely that women deserve answers and, moreover, assurance that they are safe in the hands of the police.
I do not think, however, that we should be tying the hands of Dame Elish and the Home Secretary on the scope or nature of part 2 before part 1 has even started in earnest. It is important that these considerations can be informed by Dame Elish’s emerging findings from part 1; the work of the noble Baroness, Lady Casey; and the policing inspectorate’s thematic inspection of vetting and countercorruption. Only then can we ensure that part 2 looks at the critical issues for policing and does so in a way that allows those affected, including victims, to have their voices heard.
I reassure this House that the Home Secretary will consult Dame Elish on the scope of part 2 and the form that it should take to proceed efficiently, effectively and with the confidence of those whose trust in policing has been eroded. Specifically, Dame Elish’s view and official advice will form the basis of whether the Home Secretary will put part 2 on a statutory footing.
The noble Baroness, Lady Chakrabarti, has prayed in aid the experience of the noble Baroness, Lady O’Loan, with the Daniel Morgan inquiry but, since the evidence-gathering phase of that inquiry, we have—as I said earlier—introduced a duty of co-operation on police officers, which means that failure to co-operate with an inquiry or similar could now be a disciplinary matter, with dismissal being the ultimate sanction possible. There are now sanctions that were not available before.
Amendment 108 seeks to address legitimate concerns that individuals, particularly women and girls, may have at the prospect of being arrested or transported in a police vehicle by a lone officer. The noble Baroness is absolutely right to highlight how important it is that police officers use their powers of arrest legitimately and in line with statutory guidance, and to recognise how public confidence in the police has been shaken by the appalling circumstances of Sarah Everard’s murder. I understand the concerns raised by this case, and the Government have been very clear that they intend to take action as a result. However, the law does not take a detailed view on the way officers use their powers, as long as they are doing so lawfully and legitimately. I do not want to see officers’ discretion over the legitimate use of their powers restrained in ways that could lead to individuals escaping justice or evidence being lost, as could be the case if officers were legally prohibited from transporting arrested individuals alone.
As for Amendment 109 and the noble Baroness’s proposed addition to the PACE codes—which she now attributes to the noble Lord, Lord Carlile—to cover transportation of arrested persons, I will commit to keep this suggestion under consideration when we next undertake amendments to the code. I am aware that some forces, including the Met, have issued guidance to their officers for situations where they may need to approach a member of the public while operating alone. This is only the beginning of this conversation, and there will be more for all forces to do to ensure that the public, and women and girls in particular, have confidence in the way officers use their powers as they carry out their vital—
Lord Carlile of Berriew (CB)
I apologise for interrupting the noble Baroness, and I am grateful for what she has just said, but I want to go back to a previous point, if I may, because I think we would like an answer to the question I am going to pose at some point in her speech.
During the course of her comments earlier, the Minister said—and I think this was a little bit of movement—that the Home Secretary would be “strongly guided” by the views of Dame Elish Angiolini on whether the second part should be converted to a statutory inquiry. My question, and it is really a legal question for which I apologise, is this: if Dame Elish makes a reasonable request for conversion to a statutory inquiry and unreasonably the Home Secretary refuses that reasonable request, would that refusal then be subject to judicial review, and do the Government recognise that to be the case? I am sure that the question I have posed is a typical barrister’s question, in that I know the answer to it, but it would be nice to hear from the Minister that that answer is recognised because it may make a difference to the attitude of some noble Lords, as to how they view this issue, if it comes to a Division of the House.
Baroness Williams of Trafford (Con)
In my limited legal knowledge, a judicial review questions the process rather than the decision, so I am sure a judicial review could be sought on the process by which the Home Secretary refused, despite the advice of the inquiry chair. I think it is important to bear in mind that the Home Secretary has chosen Dame Elish because she has confidence in her, and the way in which they work together through this inquiry process will be absolutely crucial, not only to its outcome but to the confidence of both women and the public in general. That is, I think, the answer that I could give at this point. The noble Lord is looking a little bit doubtful.
Lord Carlile of Berriew
I apologise for intervening again. I have got my second wind; it is now tomorrow, which is not commendable. It is a simple question: is it recognised by the Government—and it may be that the Minister would have to take advice on this, which I recognise she might get from the noble Lord sitting next to her—that an unreasonable refusal by the Home Secretary would be, potentially at least, judicially reviewable?
Baroness Williams of Trafford (Con)
The noble Lord is talking in theory. Anything is possible. I cannot say whether, in the circumstances of the Home Secretary’s refusal and Dame Elish’s advice, the outcome would be reasonable or unreasonable, but it is important that we go into this with the Home Secretary very clear that she will be guided by Dame Elish. That is the thing to take away from this.
Baroness Chakrabarti (Lab)
My Lords, I am grateful to all noble Lords who stayed, even those who may have stayed under sufferance—I hope they will forgive me and understand how important this issue is to so many people beyond SW1.
Of course I have been in two, three and 15 minds about how to handle this, not least in the light of the previous vote on the adjournment, but I have to go back to the substance. I have to pay due respect to the speeches of the noble Baronesses, Lady Newlove and Lady O’Loan. I am not sure, in the light of their testimony, that I could suddenly pretend to be the grand old Duke of York—it is one thing to take your Whip on an adjournment vote. I believe in my heart that there will one day be a full-blown statutory inquiry into the wider issues that have just been highlighted by this horrific case. Noble Lords will have to tell their colleagues, friends and family how they voted when they first had the opportunity to do this. I have seen this time and again in my adult lifetime, with Governments and politicians resisting and resisting, and eventually, maybe years later, the argument for justice and the rule of law becomes irresistible.
On two points that the Minister made by way of reassurance, I am glad that there is now the new ethical duty for police officers to co-operate, but it is a disciplinary matter that would ultimately be in the hands of the police to deal with. If the police officer who does not want to co-operate, as is often the case, decides to retire, the ultimate sanction of dismissal will hardly give comfort. What if they are at the senior-most levels of policing in their non-co-operation? That cannot be equated with the power that statutory inquiries and judges have to compel witnesses or they are committed for contempt.
As for being “strongly guided” and “taking into account”, it is not the Minister’s fault, but there was an opportunity for the Home Secretary to announce that Dame Elish would have the final word on this, and we have not even gone that far. We are “strongly guided”, but we are not going to give this decision to Dame Elish, for whatever reason.
With respect, I do not think that we have gone far enough. I know that I may go down in flames, but I have to speak clearly to people outside this House. I have to do this out of respect for the noble Baronesses, Lady Newlove and Lady O’Loan. I want people to know that we stood for them, for the rights of women and girls in this country, and indeed for the reputation of the many decent police officers, including those whom we see here every morning and night when we come and go. We owe it to their honour. The right thing to do is to have a statutory inquiry, and I would like to test the opinion of the House.
Police, Crime, Sentencing and Courts Bill
Wednesday 12th January 2022
(2 years, 3 months ago)
Lords ChamberRead Full debate Police, Crime, Sentencing and Courts Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 72-V Fifth marshalled list for Report - (10 Jan 2022)
18:37 - Division on Amendment 104E - Ayes: 206 / Noes: 176 - Amendment 104E agreed.
20:26 - Division on Amendment 104FE - Ayes: 157 / Noes: 145 - Amendment 104FE agreed.
22:15 - Division on Amendment 109A - Ayes: 32 / Noes: 20 - Amendment 109A agreed.
Baroness Meacher
“Restorative justice
The Secretary of State must, every five years— (a) prepare an action plan on restorative justice for the purpose of improving access, awareness and capacity of restorative justice within the criminal justice system,(b) publish a copy of the action plan, and(c) publish a report on progress in implementing the previous action plan.”
Baroness Meacher (CB)
My Lords, Amendment 103 seeks to ensure that the regular action plans on restorative justice provided by the Ministry of Justice until 2008 be restored and also that they should be published and a report produced on progress on the previous action plan as well. It is a more modest amendment than the one I moved in Committee. At that point, we wanted the Government to produce action plans every three years; we are now talking about every five years, which at least reduces the pressure on the department. The amendment would be an enormous improvement on the complete absence of national leadership on this issue since 2018.
But, first, what is restorative justice? It is an interpersonal approach that enables people who have been a victim of criminal or other harmful behaviour to meet the perpetrator, generally face to face, and others closely involved in the case to ask questions of that perpetrator and express how the incident affected them personally. It also enables perpetrators to express what was going on for them when they committed their crime or whatever they did and also to listen and understand the personal impact of that action, so that something that was a very impersonal action turns into something very personal. That is in fact a very important point.
Restorative justice is very much a voluntary process. No one is forced into it—both the victim and the perpetrator have to want to go through it. It can also go alongside other criminal justice activities or procedures. It is highly cost effective; for every pound spent on it, £8 are saved for the criminal justice system. That seems a very good reason for the Minister to take this amendment very seriously, as I hope he will, albeit I will not press it to a vote.
Why do we need the amendment included in this legislation? Every PCC area in England and Wales has a local restorative justice provider which takes referrals for restorative justice. Youth offending teams have a member of staff who leads on it. The victims’ code of practice from 2020 entitles every victim of crime to be informed about restorative justice and have access to it. However, this is simply not happening. The Office for National Statistics data showed, I think in 2020, that only 5% of victims are aware of being told anything about restorative justice at all. I hope the Minister will agree that that really is not satisfactory when these victims have a right to that information.
This problem seems to be driven by a lack of strategic direction from the centre. That is the whole point of this amendment. Also, the Ministry of Justice ceased to provide any funding to PCCs to support these important services. Before introducing the PCSC Bill, the Government published a White Paper highlighting the importance of restorative justice:
“We believe restorative justice is an important part of the justice system and has significant benefits both for the victim and for the rehabilitation of offenders.”
That is absolutely right. We know that reoffending drops by 14% if people have been involved in restorative justice. That is where the £8 saving for every £1 spent comes from. The White Paper went on to refer to opportunities to increase the use of restorative justice by using deferred sentencing and setting restorative conditions as part of out-of-court disposals.
Despite all this, restorative justice has been absent from the Bill. Can the Minister explain why it was promoted in the White Paper but does not feature in the Bill? I hope he will want to put this right. The amendment is relatively minor in its impact on the Ministry of Justice, yet it could have really far-reaching impacts, both for victims and for perpetrators. I hope the Minister will look favourably on Amendment 103.
Lord Cormack (Con)
My Lords, I made a very brief reference to restorative justice in one of our debates on Monday. I am glad to have an opportunity to comment briefly on the amendment just moved by the noble Baroness, Lady Meacher. I agree with her wholeheartedly. We should always do everything we can to keep people out of prison; to repeat myself from Monday, although sending people to prison is the punishment and the aim is rehabilitation, it does not always work like that. I know that from experience in my former constituency, which had a very large prison—Featherstone—and a young offender institution at Brinsford just a mile or so away. I believe a lot of the young people in Brinsford would have benefited enormously by not going to prison and would have benefited from restorative justice.
I became totally convinced in this view when I had the privilege to be the chairman of the Northern Ireland Affairs Committee for the last of my Parliaments in the other place, 2005 to 2010. I saw at first hand the effect of restorative justice in Northern Ireland, and a lot of young people who would perhaps have gone on to a long life of crime were rehabilitated and came to terms with their victims. As the noble Baroness said, there has to be agreement from both sides, as it were, but it was wholly beneficial in a vast number of cases.
Following the White Paper to which the noble Baroness, Lady Meacher, referred, it seems very strange indeed that there is no provision or recognition in the fairly massive Bill before us. One of my criticisms of the Bill is that it is too long. It should be three Bills rather than one—but that is another story and we have touched on that in the past. But although the noble Baroness, Lady Meacher, said that she will not press this to a Division—I do not dissent from her on that—I hope nevertheless that my noble friend the Minister will be able to make some favourable and encouraging comments about the importance of restorative justice and its place in the criminal justice system.
Lord Hodgson of Astley Abbotts (Con)
My Lords, I intervene to express my support for this modest but worthwhile amendment and, like my noble friend Lord Cormack, to urge my noble friend the Minister to give a sympathetic response when he winds up in a moment or two.
I have had an interest in RJ—restorative justice—for a number of years. In particular, I have followed the work of Why Me?, which has briefed us on the debate this afternoon. My noble friend the Minister will be aware of my concern, which I know is shared across the House, about the levels of reoffending, which seem a reproach to us all: a moral reproach, a societal reproach, a financial reproach—you name it. This high rate of reoffending is not a new problem; it has bedevilled our society and our prison system for many years.
It is said that the definition of stupidity is doing the same thing over and over again and expecting different results. That seems to be one of the positions we have got to with regard to trying new ideas which may—maybe at the margin—help cut the underlying reoffending rate. I am sure we need to try a new approach, or new approaches. To use the cricketing analogy, if I may, in light of the results of the test match in Australia, we need to change the bowling—
Lord Hodgson of Astley Abbotts (Con)
Well, shall we change them both? I think changing the batting is a fair comment.
My noble friend and I have had one go round on reoffending over the bunching of Friday prisoners, and we now have a situation where three-sevenths of all prisoners released come out on a Friday, with all the problems of the weekend. We discussed this at some length. It was a cost-free option being put forward from across the House, but my noble friend could not accept it—though he has offered us, and has committed to, a consultation process as part of the prisons White Paper. But we are therefore in a holding pattern now for two or three years, doing the same thing over and over again and expecting different results, because it will be two or three years before we can find a place in a Bill for that measure.
With Amendment 103 on RJ, we have a chance to change the batting and try a different approach. I absolutely accept and I agree with the noble Baroness, Lady Meacher, that it is not a silver bullet. It is not, by any manner of means, cost-free, because it requires very careful handling by trained staff and, as she said, it works only where both parties, particularly the perpetrator, have a moral commitment to making it work. Obviously, there are also touchy-feely aspects, which can be ridiculed in the media.
However, as the noble Baroness said, where it works, its results are remarkable, and remarkable in one unique sense. The victim can begin to understand how they found themselves in this difficult position when they see how the life chances of the perpetrator were so badly damaged. One of the problems in crime is that the victim finds that their life is ruined, but this can enable them to mend their life because they see that the perpetrator has had poor life chances and is now wishing to make amends.
Baroness Jones of Moulsecoomb (GP)
My Lords, it is a pleasure to follow the noble Lords, Lord Cormack and Lord Hodgson, and to agree with what they say. I support this amendment very strongly and I regret that we will not vote on it, because this is so important for justice. At the moment, justice just means taking something away from everyone instead of trying to add things back, both to all the people involved but also to society. Crime has to be seen partly as the result of a broken society; this is what it indicates. It cannot only be addressed—and it certainly cannot be fixed—by policing and punishment. There has to be something more that adds back and enriches us.
Effective restorative justice deals constructively with both the victim and the offender. The primary aim has to be to restore and improve the position of the victim and the community by the offender making amends. It recognises that a person convicted of a crime has the ability to improve the community. We do not at the moment employ restorative justice; we focus instead on punishing the offender, which means more prisons, more stress and more degradation in our society. Therefore, I regret that we will not vote on this, because it is a very important move.
Lord Ramsbotham (CB)
My Lords, I rise to strongly support this amendment, which was so ably introduced by my noble friend Lady Meacher, particularly if it is matched by a strong commitment to restorative justice among all sections of Her Majesty’s Prison and Probation Service, particularly prison governors. I have witnessed an unfortunate case in which a governor admitted to me that none of the recommendations of the very good police officer who was chairing the conference could be provided by the prison concerned, to the detriment of the whole process.
Lord Sentamu (CB)
My Lords, I too support this amendment. It asks the Secretary of State to prepare an action plan and to show how it is being implemented or otherwise, so it is not asking that which is beyond common sense.
I take your Lordships back to the Truth and Reconciliation Commission in South Africa, chaired by Archbishop Desmond Tutu. In front of him is a police officer who was responsible for setting alight a young man. The young man dies and the mother comes, and all that is left is just ash—the body is gone. Desmond Tutu asks, not the person who committed the crime but the mother: “What do you want to say to him?” The mother says, “I lost my son. In the light of what you have been saying to us about the need to address the maladies that have happened and to reconcile people, I say this. I have a broken heart; I lost my son. I want to take this police officer to the place where my son was burnt alive. When we have gone there and have actually touched the earth, I will adopt him as my son, because I no longer have a son.” Desmond Tutu broke down in tears. They go to the place where this had happened, and the mother takes in that police officer as her own son. That is the effect of restorative justice. It never asks the question: “Who has done this? What punishment do they deserve?” It asks the question: “Now that this rather unhappy fact has happened, what are we going to do about it?”
For nearly 20 years I have been lecturing all over the world on restorative justice. In this country, at an international conference gathered by the Bar Council, we had a great debate and discussion; but unfortunately, although we talk about restorative justice, in the light of our criminal justice system we really do not give a major role to what Desmond Tutu’s Truth and Reconciliation Commission did. Had it not been for restorative justice, a lot of people would have been revenging for what had happened. They were very angry and wanted to lock people away and throw away the key, but because of that mission and Desmond Tutu believing that, without forgiveness, there can be no peace—and that forgiveness is a consequence of restoration; it does not come out of nowhere—South Africa, where many people committed terrible, awful crimes, continued to live in peace.
I know that we will not be voting on this amendment, but somewhere, we must find words that express what the noble Baroness has put before us, because if there is no restoration of the relationships that have been fractured by a crime, you just think that that is it. After a big victory in a battle, George Washington started befriending the people fighting on the other side. Those on his side said to him, “Why do you want them to be your friends?” He said, “Well, if they don’t become my friends, they will still be protesting. The only way to overcome an enemy is to make them your friend; then, they stop protesting.”
There are so many people in our country for whom crimes have caused untold difficulty—take the Stephen Lawrence murder. It would have been good if some kind of restorative justice had happened. Neville Lawrence says, “Those five young men did a terrible thing to my son, but I have now realised that if I continue to be angry, it is me who is being destroyed.” Unfortunately, he is not being given the opportunity to go through the restorative justice process. I support the amendment.
Lord Laming (CB)
My Lords, perhaps I may make three quick points in support of this important amendment. First, we all accept that short sentences are extremely expensive to manage and expensive to our society, and we ought to do our best to provide alternatives to them. They are also expensive in other ways because they introduce often naive offenders to much more serious crime. Secondly, short sentences are extremely disruptive to the individual concerned. They often lose whatever jobs they have and a whole range of things that are important in their life. Thirdly, restorative justice is a learning experience. Would that there were other parts of the criminal justice system that I could say with confidence were a learning experience.
Restorative justice is the opportunity for an offender to reflect carefully on what has happened as a result of their behaviour and on why it is important that they learn from that experience and change their way of life. This is an important amendment that I hope the Government will take seriously.
Lord Paddick (LD)
My Lords, I remind the House that at one stage in my police career I was the lead for the Metropolitan Police on restorative justice, working with Professor Larry Sherman. The evidence from that experience and other academic studies shows that the benefits to victims, in terms of allaying fear and victim satisfaction, and to perpetrators, in terms of engagement with the criminal justice process, and by being confronted, as the noble Lord, Lord Laming, has just said, by their offending behaviour, and in terms of reducing recidivism, are unequivocal.
The only objection to the amendment would be political, because restorative justice is wrongly perceived by those who do not understand the process as going soft on offenders; it is the opposite. I agree with the noble Lord, Lord Laming, about short sentences. However, on the point made by the noble Lord, Lord Cormack, it does not necessarily have to be an alternative to prison in very serious cases. The important outcomes are victim satisfaction and the offender having to confront their offending behaviour.
The Minister may argue that people get a long time in prison in which to reflect on their wrongdoing. However, a colleague of mine did some research on street robbery and went to a young offenders’ institution to interview those who had been convicted and incarcerated for that offence. Many of those he spoke to did not understand why they were in the young offenders’ institution. The process was so detached from them—they just sat at the back of the court while other people spoke and dealt with the case, without their involvement at all. They genuinely did not understand why they were in prison. That is why restorative justice is important.
The question is: are the Government going to be led by the evidence and support this amendment, or are they going to object to it, based on misconceptions?
Lord Ponsonby of Shulbrede (Lab)
My Lords, I, too, support the amendment. It is modest and worth while, and is another step down the road.
I remember that the noble Lord, Lord McNally, introduced the phrase restorative justice into the statute book. I cannot remember which piece of legislation it was but at that point he spoke perceptively when he said that it was going to be a long road to get restorative justice embedded within the criminal justice system, whether in terms of probation, YOTs or prison. He was right and the necessity for the amendment proves that because the noble Baroness, Lady Meacher, gave a number of examples, including where the funding or initiatives have stalled and the momentum with restorative justice has been lost. From memory, the initial introduction of restorative justice was through a separate funding stream for YOTs to use these programmes. So I very much support the amendment. It needs constant activity and oversight by a Minister to get the restorative justice programmes embedded in the system as a whole.
One reason why what I am saying is perhaps more relevant than what some noble Lords have said is that I have some scepticism on the issue. I am happy to have a cup of tea with the noble Baroness, Lady Meacher, to express my scepticism. While I support the amendment, it requires a long-term programme, and it is for the Government to make sure that that programme is implemented.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
My Lords, I am pleased that the noble Baroness, Lady Meacher, is able to be with us this afternoon—and in good health, I hope—having been unavoidably detained during the debate in Committee. It is good to have been able to hear from her directly on an issue that is of evident interest to a number of Members of your Lordships’ House. I have listened carefully to the points made by everyone, including the noble Baroness, Lady Jones of Moulsecoomb, the noble Lords, Lord Ramsbotham and Lord Laming, the noble and right reverend Lord, Lord Sentamu, my Front Bench colleagues and others to whom I will come.
I hear and feel the mood of the House and the noble Lords who spoke in support of the amendment. I also heard my noble friends Lord Cormack and Lord Hodgson of Astley Abbotts ask for some favourable and encouraging comments from me. The truth is that I do not really need any persuading on the importance and use of restorative justice. I agree that, in the right circumstances, it can certainly have far-reaching benefits.
Indeed, since we discussed this in Committee, I have spoken at the Council of Europe Justice Ministers meeting, which was specifically about restorative justice. On the upside, the meeting was held in Venice; on the downside, I had to appear virtually. Despite that, I was pleased to welcome the declaration on restorative justice made by that meeting. I talked about our history in the UK of exploring and embedding the appropriate use of restorative justice across the criminal justice system. The Venice declaration calls for the sharing of knowledge, best practice and scientific research on restorative justice. We are committed to playing our full part in this.
Turning to the amendment, it seems to be intended to address a concern that the Bill does not include provision for restorative justice by requiring the Secretary of State to publish an action plan every five years. As I explained in Committee, restorative justice is not just communication between victim and perpetrator. We consider that the concept of restorative justice extends to other parts of the Bill in the sense that we now have a new system for out-of-court disposals because the conditions attached to those disposals again provide an opportunity for intervention and support for offenders and appropriate input from the victim of the crime.
The new statutory two-tier framework replaces the current adult out-of-court disposal options. There must be conditions attached to both of the new proposed cautions, fulfilling one of three objectives: rehabilitation, reparation or punishment. These provide an opportunity for intervention and support for offenders. A restorative justice referral could also be an appropriate condition of a caution where the victim and offender agree to this.
I agree with my noble friend Lord Cormack that we should divert people from prison where we can; indeed, that is part of the Sentencing Code. I also agree with the noble Lord, Lord Paddick, that prison and restorative justice are not necessarily—I emphasise “necessarily”—alternatives. I remind the noble Baroness, Lady Meacher, that, so far as the sentencing White Paper is concerned, the Bill provides for the greater use of deferred sentencing; this also provides opportunities for restorative justice in the deferred sentencing process.
Over and above that, we are concerned that victims know about restorative justice. Under the victims’ code, they now have the right to be provided with information about restorative justice and how to access restorative justice services in their local area. We continue to provide funding to PCCs to provide support services for victims of crime, which include restorative justice as well.
On 9 December, we launched a consultation, “Delivering Justice for Victims”, the first step towards what we hope will be a landmark victims’ law—a Bill which will build on the foundations of the victims’ code to substantially improve the victim’s experience of the criminal justice system. We propose to place the key principles of the code in primary legislation and are considering the roles and duties of PCCs in relation to victims. However, to repeat a point that I made in Committee—I think that it was also the point that the noble Lord, Lord Ponsonby of Shulbrede, was reaching for—restorative justice is not always appropriate. For some more serious types of offending, it may not be appropriate. The welfare of the victim must always be paramount. I am thinking of some sexual violence and rape cases. We should not have an exhaustive list—even for those cases it is a case-by-case basis—but there will be cases where restorative justice would be unfair on the victim. The victim must always consent but should never feel forced into a process that they are not 100% comfortable with.
The probation service is also working on a new framework for restorative justice, to ensure a more consistent approach, focusing on the people for whom it will make the biggest difference. Having said that, the broad policy aim is that all victims can, if they wish, take part in restorative justice at a time that is right for them. Again, restorative justice does not have to be immediately at the sentencing date. It could be months or even years in the future. It is not a one-time-only option.
It remains the case that we are working very hard in this area. We share the aims and ambitions of the noble Baroness. The evidence base for restorative justice exists. Services are available. Victims should and will be made aware more clearly of their availability. However, requiring rolling action plans will simply create an unnecessary and overly bureaucratic burden. It will cost a lot more without any concrete benefit.
I support restorative justice in principle. I hope that is crystal clear. I cannot promise my noble friend Lord Hodgson of Astley Abbotts that we will see restorative justice, or any other form of justice tempered with mercy, from the Australian cricket team, but that lies well outside my capabilities. So far as the amendment is concerned, with a strong endorsement of the principles of restorative justice, I invite the noble Baroness to withdraw it.
Lord Paddick (LD)
My Lords, the Minister seemed to suggest that, in any form of restorative justice, a victim might be compelled or forced to engage in the process. I think that is what he said. Can he reassure me that it was not?
Lord Wolfson of Tredegar (Con)
I was saying absolutely the opposite and, if it came out wrong, it came out wrong. The whole point of restorative justice is that the offender and the victim have to consent. That is the point which I was making about crimes of sexual violence. The victim there should not feel under any compulsion or pressure to engage in restorative justice if they do not want to. Victim choice and free-will participation is at the heart of restorative justice. I hope that I have made that very clear.
Baroness Meacher (CB)
My Lords, I thank the Minister for the warm and encouraging words that we were asking for. Unfortunately, they do not give us any reassurance that there will be a restoration of some sort of national leadership on this issue. As I explained in my brief comments, this is what is missing and why restorative justice is languishing. He said that victims should have access to restorative justice, which is very difficult when only 5% of them are aware of being told about it. There is a major issue of lack of information, lack of understanding and lack of national leadership. This was a small suggestion to put these things right and I very much regret that the Government will not take it on. Having said that, of course I will withdraw my amendment.
“Royal Commission on criminal sentencing
(1) Within six months of the passing of this Act, the Secretary of State must establish a Royal Commission to carry out a full review of criminal sentencing.(2) In particular the Commission must make recommendations on—(a) how to reduce the prison population;(b) how to reduce violence and overcrowding in prisons;(c) addressing the particular needs of young people in custody;(d) addressing the particular needs of women in custody;(e) how to ensure that sentencing for offences is focussed upon reform and rehabilitation of offenders and reducing reoffending;(f) how to reduce the over-representation of people from Black, Asian and minority ethnic backgrounds in prison;(g) the imposition and management of non-custodial sentences; and(h) the abolition of some mandatory or minimum prison sentences.”Member’s explanatory statement
This amendment would establish a Royal Commission to review criminal sentencing.
Lord Marks of Henley-on-Thames (LD)
My Lords, this amendment seeks the establishment of a royal commission to carry out a full review of criminal sentencing. The urgent need for such a review arises in particular because this Bill continues and worsens an alarming trend towards sending offenders to prison for ever-longer periods. These Benches have consistently argued that we need to reduce the prison population, not increase it. This country imprisons more people than any other in western Europe, without any evidence that there is more criminality here than elsewhere or that prison works.
As has been said repeatedly in our debates, we have seen our prison estate fall into disgraceful disrepair. Gross overcrowding is standard and, although the Government are committed to providing more new prison places, the increase in prisoner numbers to be expected from longer prison sentences threatens to use up all that extra space. In any case, the new space will not become available for some time. Meanwhile, the overcrowding and squalor get worse.
Understaffing means that prisoners are stuck in their overcrowded cells for very long periods, bored, fractious and angry without relief. Even though recruitment levels aim to increase staffing, it is by nowhere near enough to do more than relieve a little of the pressure, without improving the overall standards of welfare in our prisons. All this breeds violence, of which we have seen appalling levels over recent years. Lack of opportunities for education, work and recreation, attributable at least in part to the lack of staff to deliver them, has made all this worse, so there has been little progress on rehabilitation.
Against this background, the Bill will introduce minimum sentences, longer sentences and later release dates. All this will fuel sentence inflation because, unsurprisingly, sentences will seek to ensure some kind of fairness in comparisons between them across the board, causing them to rise generally. The Bill will have a far more far-reaching effect on sentences than even its draconian provisions suggest. Yet, in our consideration of the Bill to date, we have been unable to deflect the Government from this unswerving and one-sided course. There is little in the Bill about community sentences, rehabilitation, the role of the probation services, or keeping people out of the criminal justice system or altogether out of custody. That is why we need an overall review of sentencing: to consider the topics mentioned in proposed new subsection (2) in the amendment.
So far, I have concentrated on reducing the prison population and reducing violence and overcrowding in prisons, but the other topics crying out for review include: addressing the needs of young people and women in custody; reducing the effect of what is undoubtedly an in-built discrimination against people of minority-ethnic backgrounds within the criminal justice system; keeping people generally out of custody where possible; and refocusing custodial sentences on rehabilitation and reform, not just keeping prisoners locked away from the public to address the perceived threat they present. This is not least because, in fact, the threat they present on release is exacerbated by the appalling conditions in which we incarcerate them. In short, we need to redress the manifest and politically driven imbalance inherent in this legislation.
The Government’s position and their answer to our criticisms were expressed in Committee. I am grateful to the Minister for meeting me last Friday and for his comprehensive email to me last weekend, setting out the Government’s perspective on this and other matters. The Government maintain that their intention in the Bill is to introduce a range of measures aimed at the most serious and dangerous offenders. However, they maintain that this is offset by an intention to focus, at the other end of the spectrum, on community sentencing measures aimed at diverting low-level offenders away from crime, addressing issues of mental health, drug and alcohol abuse, and making more use of electronic monitoring or problem-solving approaches.
Lord Thomas of Cwmgiedd (CB)
I will speak briefly in support of this amendment. There are five reasons for my support.
First, the debates on this Bill have shown the enormous disparity of views that can be expressed about sentencing. We have ranged from restorative justice, which I warmly support, to long prison sentences. We need to look at it in whole and strategically.
Secondly, the Sentencing Code shows how complicated the system we have devised is. It needs simplification so that people can understand the system better.
Thirdly—and this is a point on which I have found Her Majesty’s Treasury more enlightened than many—are we getting value for money? I doubt whether the present system is delivering value for money.
Fourthly, a royal commission in itself is value for money. It is certainly far better value for money than management consultants, who are often deployed to look at these issues.
Finally, the time is right. I see no reason why we cannot take a comprehensive and strategic view of where we are going. I have expressed no views on what the outcome should be; I am interested solely in the mechanism of getting a strategic approach that simplifies sentencing and delivers value for money.
Lord Beith (LD)
My Lords, I agree with all the arguments my noble friend brought forward for having an overall look at sentencing and how it operates, and how that needs to be done at arm’s length from government. I will simply add two questions to the list he created, which the noble and learned Lord just very helpfully added to.
The first question is: can we find a way in which society can assert its abhorrence at various kinds and levels of criminality that does not automatically increase the amount of time people spend in prison, or the amount of money we as a society spend on prison? Sentences are often used as ways of indicating, quite necessarily, that society will not stand for crimes of various kinds, but simply spending a lot of money keeping someone in prison, feeding them for the next decade or two, is not necessarily a cost-effective way to achieve that.
That leads me to my second point. Prison commands resources. It does so automatically. The impact statement for this Bill indicates that the Government anticipate that 300 more prison places will be required by the measures in the Bill, quite apart from all the other factors, leading us to spend more money on prisons. We have to ask: is that a good use of money for the purpose of preventing further crime?
Very interesting discussions took place in the US, particularly in Texas, in which the lead in changing the approach was taken by some of those on the Republican side, who said, “This is the taxpayer’s dollar, and it’s our responsibility to spend it efficiently and effectively.” In our country, it is our responsibility to spend the taxpayer’s pound efficiently and effectively to achieve the reductions in crime that taxpayers would like to see. Pouring money into more and more prison places is not demonstrably a way of achieving that objective, and we ought at least to look at how it might be done differently.
The Lord Bishop of Gloucester
My Lords, I fully support the amendment. Sometimes I feel a bit as if I am in “Groundhog Day” as we listen to things that are said again and again. When we first discussed the Bill in this House, many people far more learned than me commented on all the issues with the Bill and the fact that so much of it is piecemeal—that we are trying to put sticking plasters over things without looking at the issues holistically and without looking at evidence. So much of it seems to be a reaction—often to populist headlines, let us be honest. There is so much evidence that we are not looking at, and so much of what we are discussing is not backed up by the evidence.
For that reason, I warmly recommend taking a holistic look at what we are doing, why people end up in prison in the first place, what we are doing when we sentence people, what is going on in our prisons and what it means for when people come out through the gate. As has been said, even if people are utterly callous and care only about finance, what we are doing at the moment makes no financial sense whatsoever. I wholeheartedly applaud this amendment.
Baroness Jones of Moulsecoomb (GP)
My Lords, I also support the amendment. The noble Lord, Lord Marks of Henley-on-Thames, has given us an opportunity to make things a lot better. During that quite irritable debate two days ago—I was irritable, anyway, and I think people got irritable with me—on this policing Bill, it struck me that we just should not have as many women in prison. Some of the things that women go to prison for are ridiculous. It costs a lot of money; it disrupts lives, especially for the women, their children and their support networks; and there is an opportunity cost when compared to the opportunities that we should be providing via rehabilitation and reintegration. Women go to prison for things like not paying their TV licence or their council tax, and that really should not happen. It is hugely disruptive, the cost of doing so exceeds the unpaid debt many times over, and lives are ruined.
For the vast majority of women in the criminal justice system, solutions within the community are much more appropriate. Community sentences could be designed to take account of women’s particular vulnerabilities and their domestic and childcare commitments. Existing women’s prisons should be replaced by suitable, geographically-dispersed, small multifunctional custodial centres. More supported accommodation should be provided for women on release in order to break the cycle of offending and custody. Prisoners should have improved access to meaningful activities, particularly real work, education and artistic and creative facilities. And, of course, all prisoners should be able to attain levels of literacy sufficient to allow them to function effectively in modern society.
That all seems so obvious, but it does not happen at the moment because this Government are obsessed with being “tough on crime”. What does that mean? If it means sending more and more people to prison then it is a very disruptive and damaging way of handling the problem of crime. A royal commission seems an incredibly sensible way forward just to rethink the way in which we handle prisons, prisoners, crime and, in particular, women in prison who really ought not to be there.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, I too support this proposal. The objectives set out in each of the paragraphs (a) to (h) of proposed subsection (2) of the amendment are plainly and urgently needed. It should not be necessary to establish a royal commission to focus on, pursue and achieve these objectives, but plainly it is necessary. These deficiencies have been identified, recognised and discussed for years but, as for getting anywhere in terms of achievement—on the contrary.
The main parties on both sides of the House, not least this Government, seem ever more intent on winning the law and order vote. Sentences are being increased; minimum and mandatory terms are being imposed. We now need the impetus, the force, of no less than a royal commission to start to recognise the intense problems of our whole penal system and to start to set the matter right.
Lord Macdonald of River Glaven (CB)
My Lords, I do not regard the United Kingdom’s place at the top of the incarceration league table for western European countries as a badge of honour. It seems to me that this fact in itself calls for a broad strategic view of how sentencing is working in this country and why it is that we send so many more people to prison than other countries do.
One of the issues seems to be that criminal justice, particularly sentencing, has become a political football. A sort of auction has been going on between the main political parties over the last 20 years or so to discover who can present themselves as the toughest on this issue. I do not mean to minimise the effect of crime on victims or on society as a whole, but short sentences in particular are surely counterproductive. The best way to school a young man in crime and anti-social behaviour is to send him to prison for three or six months.
It seems to me that one of the great possible achievements of a royal commission would be to take some of the political sting out of this issue and to inject some rationality and even some science into it. I strongly support the amendment.
Lord Bach (Lab)
My Lords, may I ask the Minister a question? A few years ago, when I was a police and crime commissioner, it came across our desk a lot that it was government policy to have a royal commission on the criminal justice system. What has happened to that proposal? Is it still there? Is it still the Government’s hope to do that? If it was, I would be very much in support of it. If it is not, I very much support the amendment that the noble Lord, Lord Marks, has moved.
Baroness Fox of Buckley (Non-Afl)
My Lords, I have thought long and hard about this amendment, and I am still torn about it. The other evening, in that rather fractious discussion about trans prisoners in women’s prisons, the Minister rather took me up on my quotes from Twitter, as though I was using Twitter as hardcore evidence, which I was not. He made a valuable point, because he said that putting management and protection first was what was done, rather than following public opinion or what was on Twitter or anywhere else. I have some regard for that. In fact, I had made the same point to the Minister in relation to Harper’s law at the beginning of this Report stage, when I said that sentencing should not be a consequence of an outraged public reaction to something, a campaign or what have you. I would rather feel that sentencing was decided in the cold light of day, much more rationally, and so on. I worry about knee-jerk legislation.
I suppose I want to ask a couple of questions, of both the Minister and the mover of the amendment. Sentencing often seems subject to caricature on both sides. People are caricatured as bleeding-heart liberals who want everybody to be let out of prison, and anyone who is concerned about increasing sentencing is caricatured as “lock them up and throw away the key”. It seems to me that there needs to be some relationship between sentencing and the public and their views about it, but we do not want it to be arbitrary and reactive.
So, in that sense, I was very positive about the notion of a royal commission that could look at this in the round, take it away from the political world in some ways and allow, if you want, a more rational and considered public debate, as well as a commission looking at it in detail. That seemed to me to be a way forward.
Baroness Fox of Buckley (Non-Afl)
I know that some may be shocked. I actually worry a lot about prison reform, authoritarian tendencies and prison being used as an answer to all problems. There are a lot of draconian aspects of the Bill—the threat of jail for protesters, for example, which we are about to discuss—and all these things concern me.
However, I would not want a royal commission to be there to endorse what I or the movers of the amendment want. Therefore, a long list of things that are wrong with long sentences does not seem to be the basis of a royal commission—I would want it to look at sentencing without prejudice and bearing in mind public concerns about safety. It is absolutely the case that, despite my liberal qualms, there are times when people should probably be locked up for longer—but the prisons should then be reformed to make them more humane while you are in them for longer.
Lord Cormack (Con)
Well, my Lords, I had never really thought of the noble Baroness as a bleeding-heart liberal, but we all come in different guises, depending upon the subject. I find myself very taken by many of the points made by the noble Lord, Lord Marks of Henley-on-Thames, and by many others who have long been learned in the law.
I spoke to my noble friend the Minister after what the noble Baroness referred to as the slightly fractious debate on Monday. Funnily enough, I said to him that I thought that a royal commission would be a good way—better than an amendment to a Bill—to look at the issue that we were discussing: women in prison. Of course, this provision in the amendment moved by the noble Lord, Lord Marks of Henley-on-Thames, could be incorporated.
On balance, I would favour a royal commission on the criminal justice system. I do not suppose that the noble Lord would be particularly opposed to that, rather than the specific amendment that he is moving today. But we need to look at these things because—coming back to a point made on Monday and today—we are failing in our criminal justice system because there is far too much recidivism and far too many lives are not amended and rehabilitated but further broken and eroded by spending time in prison. We have not got the balance right.
I have always been opposed to the simplistic view sometimes expressed, not by bleeding-heart liberals like the noble Baroness but by some on my own side: “Lock them up and keep them in.” That is no way to tackle things. So, although I would understand if, in responding to this debate, my noble friend the Minister said that he could not accept this amendment, I nevertheless strongly appeal to him on the Floor of the House, as I have privately, to consider very carefully the merits of a royal commission on the criminal justice system.
It can do no harm. We all remember Harold Wilson on royal commissions—they sit for years and take minutes—but that is not necessarily what royal commissions do. They can be given a timeframe or asked to report back within a certain period. If, by chance, my noble friend is not able to give the positive response I hope he might, we have many in your Lordships’ House who are indeed learned in the law, and this might be an ideal subject for one of the special committees that we set up each year in your Lordships’ House. It would have perhaps the most distinguished membership of any such committee ever established and I am sure it could make a powerful report, but I would still favour the royal commission approach. I hope that when my noble friend comes to respond, he will be able to give us some encouragement.
Lord Faulks (Non-Afl)
Before we hear from the Minister and the noble Lord for the Opposition, I shall simply add that of course the aims identified in this amendment are probably shared by everybody in your Lordships’ House but, ultimately, is it not for the Government of the day to decide on these things? I think we can probably predict what most royal commissions would recommend following the terms of reference reflecting this amendment. Ultimately, a Government have to decide whether in certain circumstances, as was the case in the Bill, there need to be mandatory sentences or the prison estate needs more money spent on it. These are matters for government. I will be interested to hear what the noble Lord for the Opposition says about this; during the course of the Bill, I do not think the Labour Party has opposed the increased mandatory sentences in various areas. That is a position it is entitled to take. A royal commission can recommend; a Government have to decide.
Lord Ponsonby of Shulbrede (Lab)
My Lords, we support this amendment and every element of what the noble Lord, Lord Marks, said when he was introducing it. It is about criminal sentencing. My noble friend Lord Bach raised the question of a royal commission on the criminal justice system as a whole, and I will be interested to hear the Minister’s response on that.
The noble Lord, Lord Faulks, correctly identified that in this Bill the Opposition have supported some measures that have led to increased sentences. In a sense, the heart of the problem is that the constant inflation of sentences is leading to the overarching problem we have now with overcrowding and squalor in our prisons and a lack of effectiveness in our out-of-court sentences. I understood that to be the main purpose of the royal commission.
I want to give a very simple example of my role as a magistrate sentencing, as I was yesterday, in a magistrates’ court in London. As a magistrate, I have powers to sentence up to six months’ custody for a single offence. When, on occasion, I do that, I simply do not know how long that person will spend in custody. When I first became a magistrate about 14 years ago, I used to say to the offender, “You will spend half your time in custody and then, at the discretion of the prison governor, you will get out”. I do not say that any more because I do not know whether it is true. Sometimes the offender will get out after one-quarter of their sentence, if there are particular reasons and it is a non-violent offence, and sometimes, if they commit relatively less serious offences while they are in prison, they may serve their whole term, so I simply do not say that any more when I am sentencing.
That is a very particular example; there are many examples within sentencing as a whole where any sentencer, including a magistrate, is asked to use fairly obscure phrases which are not simple to understand for the person being sentenced. There is a role for an overall look at this to try to have consistency in sentencing and the words used while sentencing. The noble Lord’s amendment goes further than that as it is looking at community sentences as well. There really is a strong need for an overarching view of criminal sentencing.
Lord Wolfson of Tredegar (Con)
My Lords, this amendment, tabled by the noble Lord, Lord Marks of Henley-on-Thames, would require the Secretary of State to establish a royal commission to review and report on criminal sentencing. The amendment was tabled in Committee and I am glad to have the opportunity to further clarify the Government’s position on this matter.
First, let me pick up the direct question put to me by the noble Lord, Lord Bach, which I think was echoed by my noble friend Lord Cormack and mentioned by the noble Lord, Lord Ponsonby of Shulbrede. The 2019 Conservative manifesto did commit, as noted in Committee, to set up a royal commission on the criminal justice system. Work to set up that royal commission was slowed at the onset of the pandemic to focus on the very practical matter of ensuring that the criminal justice system could continue to operate—as it did, thanks to a lot of hard work by staff up and down the country—in a Covid-safe environment. As work on the commission was paused, officials were redeployed to other work and other roles in government.
Significant new programmes of work have now been stood up to support recovery and build back a better criminal justice system. That means that many of the areas the royal commission was due to look at are now being progressed more quickly, for example on efficiency and effectiveness of the system. That includes ensuring that all component parts of the extremely complex system—which we call the criminal justice system but is an amalgam of all sorts of systems—work together to deliver swifter justice for victims. As I said on the last group, on 9 December we announced our consultation on a new victims’ Bill to improve the level of service victims can expect from the criminal justice system. We remain committed to delivering our manifesto commitments. However, we think it is right to continue to pause the work on the royal commission on the criminal justice system while we focus on delivering these priorities over the coming months. We will then revisit what further role there is for the royal commission.
At the same time, let me clarify a point of confusion, which may have been behind the noble Lord’s question— I do not know. To be very clear, the amendment, as drafted, calls for a royal commission on criminal sentencing, not a royal commission on the criminal justice system. For the record and to make it very clear, when my noble and learned friend Lord Stewart of Dirleton previously responded and assured the Committee that a royal commission of this nature was unnecessary, it was the royal commission on criminal sentencing in the amendment that he was referring to. I see the noble Lord nodding and I am grateful; I did not want there to be any confusion on the point.
The sentencing White Paper published last year set out the Government’s proposals for reform to the sentencing and release framework. Work is under way on the non-legislative commitments made there; the legislative measures are being delivered by the Bill. I can assure the noble and learned Lord, Lord Thomas of Cwmgiedd, that we want to adopt a strategic approach here. We believe that the White Paper delivers that, but I am sure that the conversations on these points will continue. I agree with the noble Lord, Lord Beith, that the taxpayer’s pound is an important factor here. We want value for money in this and other areas of government. The rationale of the White Paper is to deliver a smarter, more targeted approach to sentencing. The most serious violent and sexual offenders should serve sentences that reflect the severity of their offending behaviour.
I say to the House in general, responding in particular to the point made by the noble Baroness, Lady Fox of Buckley, that it is crucial that the Government listen when there are issues on which the public feels strongly, and there are some offences that society finds particularly concerning and, indeed, offensive. At the same time, for lower-level crimes, we are making community sentences more effective, so they can offer an appropriate level of punishment and address the underlying drivers of offending. As part of that—to pick up the point made by the noble Baroness, Lady Jones of Moulsecoomb—we do of course look at the particular issues facing women in prison. We have discussed that on a number of occasions, and I intend no discourtesy by not repeating now what I have said before. We have spoken, and we have focused as a Government, on the needs of women in prison and sentencing women to prison, particularly the primary carers issue, which we have discussed and debated.
Lord Davies of Stamford (Lab)
My Lords, I have listened to the debate this afternoon with great pleasure, and I must say with growing agreement with what was said—until I heard the contribution of the noble Lord, Lord Faulks, who said that sentencing should be a matter for the Government of the day. That is a very dangerous approach, because it means that sentencing becomes a reflection of the political pressures on the Government of the day. Somebody used the term “auction”. You would get competition between people who were seeking votes from the public in projecting themselves as being tough on crime, and the resulting sentencing guidelines—
Baroness Scott of Bybrook (Con)
I am sorry, but the Minister had already sat down. We can only take a question if it is very short.
Lord Marks of Henley-on-Thames (LD)
My Lords, in those circumstances I think that it is for me to respond. I do not know whether the Minister wishes to respond to any question—although there has not really been a question.
Lord Faulks (Non-Afl)
My Lords, I believe this is in order, because I did not suggest for a moment that it was for the Government to send people to prison or to make up their mind. Ultimately, the policy that is reflected in this amendment is something that a Government would have to decide upon.
Lord Marks of Henley-on-Thames (LD)
My Lords, at the end of this interesting debate, I say first that I am very grateful to all who have spoken and to the noble Lord the Minister for his careful response. Two things strike me: first, this amendment enjoys overwhelming support and, secondly, there has been a distinct theme to the contributions to the debate from noble Lords from all around the House, expressed perhaps by the noble and learned Lord, Lord Thomas of Cwmgiedd, when he talked about a comprehensive and strategic approach. Others have talked about a holistic approach.
The aim has been to address the failures of the criminal sentencing system, as part of the criminal justice system, identified by, among others, the noble Lords, Lord Cormack and Lord Ponsonby. It is a rethink that is required—to use the expression of the noble Baroness, Lady Jones. Another important matter was identified by two dissimilar figures in general approach. The noble Lord, Lord Macdonald of River Glaven, talked about taking the political sting out of issues arising on sentencing. This was put in a similar way by the noble Baroness, Lady Fox of Buckley. I share the slight surprise of the noble Lord, Lord Cormack, at being told that she was a bleeding-heart liberal, but I take the point.
I do not intend the royal commission that we have described in this amendment to prejudge the issues. What we are calling for overwhelmingly is an evidence-based approach to sentencing, rather than a politically based approach or one that simply responds to public opinion or the perception of public opinion. I completely agree with the noble Lord, Lord Faulks, that the question is not one where the Government are excluded from making decisions. The point about the royal commission is, as he put it, that the royal commission recommends and the Government then act on those recommendations. What distinguishes a royal commission, I suggest, is that its recommendations are widely seen by the public, the Government and the Opposition as authoritative. It is that quality of being authoritative that I believe gives the royal commission its weight.
It is a question not of outsourcing the decision-making process but of setting up a process to advise and direct the future. This Bill does none of that. It contains sentencing in its Short Title, yet it is piecemeal and bitty and lacks a philosophy. The Minister set out a philosophy that is two-sided, but only one of those sides is reflected in the Bill. We believe that a royal commission would address that, which is why I would like to see this amendment agreed. That said, however, what the noble Lord has said about the Royal Commission on Criminal Justice as a whole is of some encouragement, because I take criminal justice to include criminal sentencing. I hope I see him nod in agreement with that. I am waiting—he is not going to commit to the terms of reference, but it seems to me that that offers some hope for the future.
I am concerned about the use of the word “paused”. It should not be paused; it is urgent. If the Government take anything from this debate, I hope they will take the feeling around the House that this is an urgent matter requiring urgent attention and will revisit it. That said, and in the confidence that they will approach it in that way and that the royal commission will proceed, I beg leave to withdraw the amendment.
Lord Rosser
“Child criminal exploitation
In section 3 of the Modern Slavery Act 2015 (meaning of exploitation), at the end insert—“Child criminal exploitation(7) Another person manipulates, deceives, coerces or controls the person to undertake activity which constitutes a criminal offence and the person is under the age of 18.””Member’s explanatory statement
This new Clause would introduce a statutory definition of child criminal exploitation.
Lord Rosser (Lab)
My Lords, a similar amendment was debated in Committee as part of a series of amendments relating to ensuring that safeguarding and tackling the criminal exploitation of children are a central part of the duty to reduce serious violence as set out in Part 2, with its duties on specified authorities to collaborate and plan to prevent and reduce serious violence. Children who are groomed and exploited by criminal gangs are the victims and not the criminals. A statutory duty to reduce violence cannot be effective on its own without a statutory duty to safeguard children. This amendment would provide a statutory definition of child criminal exploitation, putting a recognised definition in law for the first time.
The present lack of a single clear statutory definition has contributed to local authorities responding differently to this form of exploitation across the country. The Children’s Society says that just one-third of local authorities have a policy in place for responding to it, yet child criminal exploitation does not stop at local authority boundaries and requires a shared understanding and approach nationally. Barnardo’s has said that it has found that agencies, including police forces, do not routinely collect or record information on this type of exploitation. It reports that a number of reviews have found that children at risk are passed between agencies without meaningful engagement. Indeed, many children are not seen as victims of exploitation and abuse but instead receive punitive criminal justice responses.
A statutory definition, as we now have for domestic abuse, would improve awareness and understanding of child exploitation and its signs, and encourage joined-up working not only across the justice system but across all partners included in the serious violence reduction duty. It would give a common definition of what we are seeking to tackle in response to the abhorrent coercion and manipulation of children and vulnerable young people. This is not a minor issue. More than 25,000 children in the United Kingdom are presently at risk of gang exploitation, according to the Children’s Commissioner.
The response of the Government in Committee to establishing a statutory definition of child criminal exploitation was that they had considered it with a range of operational partners and had concluded that the definitions of exploitation within the Modern Slavery Act were sufficient to respond to a range of child criminal exploitation scenarios. However, the operational partners with whom presumably the Government considered a statutory definition will include the local authorities which according to the Children’s Society do not have a policy in place for responding to child criminal exploitation, the police forces and other agencies which Barnardo’s found are not routinely collecting or recording information on this type of exploitation, and the agencies which pass children at risk between each other without meaningful engagement. The evidence indicates that there is no consistency of approach across the agencies on child criminal exploitation, so it is clear that the existing definitions on which the Government relied when rejecting this amendment in Committee are not assisting in the way they should in responding to abhorrent child criminal exploitation scenarios.
I hope that the Government will be prepared to reflect further on this issue of a much-needed definition of child criminal exploitation as provided for in this amendment, which I move.
Baroness Jones of Moulsecoomb (GP)
I would be remiss if I did not point out to the Benches opposite that this is an issue that I have talked about quite a lot, in the context not of county lines and gangs but of the Met Police. I did not even realise that there was not a statutory definition, so I welcome this amendment. The definition talks about another person who manipulates and so on, and, of course, the Met Police manipulates children. We are assured constantly that it is a very small number, but it happens and does so apparently lawfully because the Government have not stopped it, so the Government are complicit in a crime.
The Lord Bishop of Gloucester
My Lords, I speak in place of my right reverend friend the Bishop of Derby, who sadly cannot be here today. She and I support this amendment, to which she has added her name. I declare her interest as vice-chair of the Children’s Society. These are her words.
In Committee, my right reverend friend the Bishop of Durham spoke in the place of my right reverend friend the Bishop of Manchester. I will not repeat all that was said, but I will reiterate a few fundamental points as we consider this amendment. As a Church living and working in every corner of this nation, we support families and children, often in the most vulnerable of contexts. We have seen the devastating consequences when children are coerced and exploited, including through serious violence. Those consequences have ripple effects through not only the life of that child but the wider community. Visiting young offender institutions, I am struck by how many of these children and young people are victims first. Their stories could have been very different if intervention had occurred earlier. They have been groomed and coerced in the same way as children groomed for sexual exploitation; as such, they should be treated as victims. They need support rather than the further trauma of being charged and prosecuted.
I share with noble Lords the story of a young person supported by the Children’s Society which illustrates how many victims of child criminal exploitation are not recognised as such. Bobby—not his real name—aged 15, was picked up with class A drugs in a trap-house raid by the police. Bobby had been groomed, exploited and trafficked across the country to sell drugs. After his arrest, he was driven back to his home by police officers, who had questioned him alone in the car and used that information to submit a referral through the national referral mechanism, which did not highlight Bobby’s vulnerability—instead, it read like a crime report. Bobby had subsequently been to court in Wales and, because his referral to the NRM failed and his barrister did not understand the process, he was advised to plead guilty, which he did.
At this time, he was referred to the Children’s Society’s “Disrupting Exploitation” programme. With its help, Bobby challenged the NRM decision and worked to ensure that he was recognised as a victim instead of an offender, enabling him to retract his plea of guilty. The Children’s Society was able to work with Bobby, his family and the professionals around him to ensure that they recognised the signs of exploitation and how it can manifest.
But for many young people who are criminally exploited, that is not the case. Many will be prosecuted and convicted as offenders, while those who groomed and exploited them walk free. Agencies that come into contact with these children are not working to the same statutory definition of what constitutes child criminal exploitation.
What this amendment hopes to achieve is for statutory services to recognise that these children have not made a choice to get involved in criminal activity. I whole- heartedly agree that local multiagency safeguarding arrangements are key to responding to child exploitation. However, we need a clear, national definition and understanding of the types of child exploitation that they must safeguard against. Front-line agencies all agree: there is no evidence that the system as it stands is working consistently to protect these children from exploitation.
We are committed to the flourishing of all people. That includes children and young people from the most marginalised and disadvantaged circumstances—those for whom real choice is out of their grasp. We must do all within our power to give hope to victims and dare to dream of a different future for these children.
Lord Paddick (LD)
My Lords, in Committee I recalled my own experience of visiting the only young offender institution in Scotland, where the governor told us that every young person in her institution had suffered multiple adverse childhood experiences, or ACEs. These are potentially traumatic events that occur in childhood and include experiencing violence, abuse or neglect, particularly head trauma; witnessing violence in the home or community, something that is becoming all too common; and having a family member attempt or die by suicide. Also included are aspects of the child’s environment that can undermine their sense of safety, stability and bonding, such as growing up in a household with substance use problems, mental health problems or instability due to parental separation or household members being in prison.
ACEs also make children particularly vulnerable to criminal exploitation and it is important that this is recognised in statute to ensure that a trauma-informed approach is taken to child victims of criminal exploitation, rather than a criminalising, punitive approach. This amendment provides that statutory definition and we strongly support it.
Lord Sharpe of Epsom (Con)
My Lords, I am grateful to the noble Lord, Lord Rosser, for setting out the case for the amendment and to all noble Lords who took part in this short debate. I wholly agree that the targeting, grooming and exploitation of children who are often the most vulnerable in our society for criminal purposes is deplorable. This Government are committed to tackling it.
Before I start, I say to the noble Baroness, Lady Jones of Moulsecoomb, that the Government are not complicit in crime. I remember CHIS being debated quite extensively in your Lordships’ House. They are subject to significant and stringent safeguards, so I think that we can leave that there.
This amendment seeks to establish a statutory definition of child criminal exploitation. As I indicated in Committee, the noble Lord, Lord Field of Birkenhead, the noble and learned Baroness, Lady Butler-Sloss, and Maria Miller MP undertook an independent review into the Modern Slavery Act 2015, the findings of which were published in May 2019. The definition of exploitation in Section 3 of the Act was explored as part of this review in response to calls that it should be amended to explicitly reflect new and emerging forms of exploitation, such as county lines.
The review heard evidence from the CPS, which warned against expanding the scope of the meaning of exploitation or defining exploitation so precisely that it would lack flexibility when applying the legislation to a changing profile of criminal conduct. The authors of the review agreed and recommended that the definition should not be amended, as it is sufficiently flexible to cover a range of circumstances, including new and emerging forms of modern slavery.
We agree that front-line practitioners need to have a clear understanding of child exploitation; the noble Lord, Lord Rosser, made these points very well. That is why child exploitation is already defined in statutory guidance, including the Keeping Children Safe in Education and Working Together to Safeguard Children statutory guidance. It is also set out in non-statutory practice documents for those working with young people, such as the Home Office Child Exploitation Disruption Toolkit and the county lines guidance.
We recognise that the vast majority of child criminal exploitation cases occur in the context of county lines. That is why the Home Office is providing up to £1 million this financial year to the St Giles Trust to provide specialist support for under-25s and their families who are affected by county lines exploitation. The project is operating in London, the West Midlands and Merseyside, which are the three largest exporting county lines areas. We also continue to fund the Missing People’s SafeCall service. This is a national confidential helpline service for young people, families and carers who are experiencing county lines exploitation.
I listened carefully to the right reverend Prelate the Bishop of Gloucester, who made some powerful points. She mentioned the Children’s Society. I should point out that the Home Office is funding the Children’s Society’s prevention programme, which works to tackle and prevent child criminal exploitation, child sexual abuse and exploitation, modern-day slavery and human trafficking on a regional and national basis. This has included a public awareness campaign called “Look Closer”, which started in September. It focuses on increasing awareness of the signs and indicators of child exploitation and encourages the public and service, retail and transport sector workers to report concerns to the police quickly.
Back to county lines and drugs. They devastate lives, ruin families and damage communities. That is why this Government have recently introduced a 10-year strategy to combat illicit drugs using a whole-system approach to cut off the supply of drugs by criminal gangs and give people with a drug addiction a route to a productive and drug-free life. Through the strategy, we will bolster our flagship county lines programme, investing up to £145 million to tackle the most violent and exploitative distribution model yet seen.
Clearly, we are all in agreement that tackling child criminal exploitation must be a priority. I have set out some of the steps that the Government are taking to do just that. However, the Government remain unpersuaded that defining child criminal exploitation in statute would aid understanding of the issue or help such exploitation. As I have indicated, we should pay heed to the conclusions of the independent review of the Modern Slavery Act, which commended the flexibility afforded by the current definition of exploitation. For these reasons, I ask the noble Lord to withdraw his amendment.
Lord Rosser (Lab)
First, I thank the right reverend Prelate the Bishop of Derby and the noble Lord, Lord Paddick, for adding their names to this amendment. Indeed, I thank all noble Lords who spoke in this debate.
Basically, the Government have repeated what they said in Committee. There is nothing new and no response to the point that a statutory duty to reduce violence cannot be effective without a statutory duty to safeguard children, which is what this amendment would provide by putting a recognised definition in law for the first time. There has not really been a response to that.
I made the point that the evidence indicates that there is no consistency of approach across the agencies on child criminal exploitation. Clearly, the definitions on which the Government relied in Committee, which they have now repeated on Report, are not assisting in the way that they should in responding to child criminal exploitation scenarios. It is a bit depressing to find no movement at all on the Government’s stance and, if I may say so, no attempt to respond to my point that, bearing in mind the inconsistencies, the existing definitions are clearly not doing the job that the Government claim they should be doing and, indeed, claim they are doing. That clearly is not the case.
I do not intend to test the opinion of the House on this. I say only that the issue is not going to going away. If we continue, as I suspect we will, with the inconsistencies of approach that have been identified by Barnardo’s and the Children’s Society and referred to during this debate—that is, if the Government do not address them, which is what this amendment in effect invites them to do—this matter will not go away. I am quite sure that it will be the subject of further discussion and debate if the present highly unsatisfactory situation continues in respect of child criminal exploitation. I beg leave to withdraw the amendment.
“Video recorded cross-examination or re-examination of complainants in respect of sexual offences and modern slavery offences
(1) Section 28 of the Youth Justice and Criminal Evidence Act 1999 comes into force in relation to proceedings to which subsection (2) applies on the day on which this Act is passed.(2) This subsection applies where a witness is eligible for assistance by virtue of section 17(4) of the Youth Justice and Criminal Evidence Act 1999 (complainants in respect of a sexual offence or modern slavery offence who are witnesses in proceedings relating to that offence, or that offence and any other offences).(3) This section has effect notwithstanding section 68(3) of the Youth Justice and Criminal Evidence Act 1999.”
Lord Ponsonby of Shulbrede (Lab)
My Lords, the proposed new clause in Amendment 104B would bring Section 28 of the Youth Justice and Criminal Evidence Act 1999, which provides for the cross-examination of vulnerable witnesses to be recorded rather than undertaken in court, fully into force for victims of sexual offences and modern slavery offences. When we debated this in Committee, the point was made that there have been a number of pilots of this approach in, I believe, three Crown Courts in England and Wales. A further point was made in the response by the noble and learned Lord, the Advocate-General for Scotland, that it would be judge-intensive to have judges present when recording the evidence. For those reasons, we were invited to reject the amendment.
In response to those points, I ask the Minister when the results of the pilot will come forward, so we can have an informed decision about whether to roll out this approach. I also question the assertion that this is a very judge-intensive process because judges have to be present when the recordings are made. I made this point to the Minister when we met in private a few days ago. I have done this procedure several times within youth court and, as far as I am aware, there was never a judge or magistrate present then. I have also done this process in Crown Court and for an appeal. On that instance, I was sitting as a winger and there was a Crown Court judge in the middle. We heard the evidence by videolink and, again, as far as I was aware, there was no judge present. So I question the assertion that it would be very judge-intensive to use this approach in the adult court for victims of sexual offences and modern slavery offences.
The proposed new clause in Amendment 104C would give the complainant a right of representation with legal aid, if they are financially eligible, to oppose any application to admit Section 41 material about them. It would also give complainants the right to appeal to the Court of Appeal if the application is allowed, in whole or in part. The proposed new clause also provides that the complainant is not compellable as a witness at the application. I am grateful to the noble Baroness, Lady Jones of Moulsecoomb, for putting her name to this amendment.
This issue was again explored at some length in Committee. My noble and learned friend Lord Falconer made the point that it is very sensitive. If there is the possibility of somebody’s sexual history becoming known in a wider context within court, it acts as a cooling method for people making allegations. This is a way around that problem to try to give people the confidence to come forward and make complaints of sexual assaults.
Amendment 107C is in the name of my noble friend Lord Coaker. It would require police forces to have a specialist rape and serious sexual offences, or RASSO, unit. As background, I have three facts to share with the House. First, two-fifths of police forces currently do not have one of these units, which specialise in the prosecution of rape and serious sexual offences and supporting victims of these offences. Secondly, the current prosecution rate for reported rapes is about 1.4%. No matter how many times we hear this statistic, it remains deeply shocking. Finally, Home Office figures show that the number of victims dropping out of prosecutions has increased to a record 41%. In each of these cases, we are failing to deliver justice for a victim and to tackle a dangerous predator.
MPs and noble Lords from across this House have worked, with limited success, to make tackling violence against women and girls a part of this Bill, including explicitly recognising violence against women and girls as serious violence under the serious violence reduction duty. We are in a situation where this Government may pass a flagship piece of criminal justice legislation without including any specific plans to improve the investigation and prosecution of rape and serious assaults. This issue needs to be taken forward in partnership with the police and finally recognised as a priority. I look forward to what I hope will be a positive response from the Minister and beg to move.
Baroness Jones of Moulsecoomb (GP)
I reassure noble Lords that I will not be speaking on every amendment today, but I regret that all those that we have discussed so far, including this one, will not go to a vote. That is a real shame, because they are so sensible.
I congratulate the noble Lord, Lord Ponsonby, on tabling the amendment to which I have put my name. I support all the amendments in this group, not just Amendment 104C. The criminal justice system is hugely distrusted by survivors of sexual violence, based on the way they are treated when they come forward to make a complaint. There have been some important steps forward over the years, but trust is still far lower than it needs to be for survivors to come forward, go through the whole criminal justice system and have their lives pored over. Granting the right to complainants to be represented by a lawyer in an appeal to adduce evidence on questions of sexual conduct would be an important leap forward. The complainant is seen as a neutral third party with no particular legal rights, rather than someone deserving legal protection and representation, and this really has to change.
Lord Paddick (LD)
My Lords, my noble friend Lord Marks of Henley-on-Thames is leading for us on this group, but I want to speak on Amendment 107C. I was commissioned by the then Commissioner of the Metropolitan Police, now the noble Lord, Lord Blair of Boughton, to conduct a review of rape investigation in the Metropolitan Police, working together with Professor Betsy Stanko OBE.
At that time, the Metropolitan Police had specialist rape investigation units. Their performance was mixed, but they were considerably better than the experiment in community policing that was being conducted in one part of London. Small teams of detectives were allocated to each part of the borough to investigate all crime there, including rape and serious sexual offences. In addition to being overwhelmed by large numbers of more minor criminal investigations, they lacked the experience and expertise of officers who specialise in rape and other sexual offences.
I know from practical experience on the ground within the police service that specialist rape and serious sexual offences units provide much better outcomes for the victims and survivors of these types of crime. I doubt that legislation such as this amendment can override the operational independence of chief constables, but the principle is right and the Home Secretary, the College of Policing Limited—we will come to that in an upcoming group—HMICFRS and police and crime commissioners should all exert pressure on chief constables to ensure that they are established.
Lord Marks of Henley-on-Thames (LD)
My Lords, we support all the amendments in this group. First, I will consider Amendment 104B. As explained by the noble Lord, Lord Ponsonby, this amendment would authorise a special measures direction to enable videorecording of cross-examination of complainants in criminal proceedings for sexual offences or modern slavery offences, in order to enable their evidence to be given remotely.
This is a sensible measure for the protection of witnesses not only from alleged perpetrators but from the trauma of giving evidence in these difficult and painful cases. We have heard many times in debates on this Bill and on the Domestic Abuse Act how painful an ordeal giving evidence is likely to be. In the absence of a special measures direction, complainants who are witnesses have to give evidence before strangers, often in the presence of their assailants or exploiters and often under hostile questioning, to relive some of the most painful experiences of their lives. Nor should we forget how, in these cases, recording the evidence of complainants might well be the very best way of securing truthful and accurate evidence so that courts might be better placed to do justice than if they had to rely on the live oral evidence of very frightened and intimidated witnesses.
We also support Amendment 104C in the names of the noble Lord, Lord Ponsonby, and the noble Baroness, Lady Jones of Moulsecoomb, because we have heard that Section 41 applications, if granted, permit the most intrusive and personal questioning of complainants about their previous sexual history. Such questioning might sometimes legitimately be regarded by a court as necessary in the interests of justice, but even when that is the case it nevertheless involves a gross invasion of the privacy, the sense of decency and the perceived rights of the complainant. The noble Lord and the noble Baroness are entirely right to seek the protections for the complainant that the amendment involves: the right to take part in the application or not at her choice, because it is generally a woman’s choice; to be legally represented; and to have a right of appeal against a direction admitting questioning or evidence of previous sexual conduct.
These Section 41 applications and the fear of the questioning they involve have been a reason for the large numbers of sexual offences going unreported or unprosecuted, as complainants are not prepared to go through the hell of facing such cross-examination and they pull out of cases for fear of it. They should be entitled to significant legal protection, just as if they were parties, when such an important issue for their personal integrity is considered by the courts. The protections proposed in the amendment are fully justified.
Finally, we support Amendment 107C on rape and serious sexual offences units—the so-called RASSO units—for the reasons given by the noble Lord, Lord Ponsonby, on behalf of the noble Lord, Lord Coaker, and by my noble friend Lord Paddick. I will try not to repeat the points he made.
Historically, there has been a problem, which we should not seek to deny, in ensuring that police forces treat rape and serious sexual assault with the importance these offences merit. It might be that the situation has improved, and I have no doubt it has. In most forces, victims are treated sympathetically, with tact and care, and derive support from the officers handling their case. However, the public, and women in particular, still lack confidence in the treatment they are likely to and do receive from the police if they are victims of sexual assault. This is one of the factors again driving the low rate of reporting and prosecutions, and the high rate of the withdrawal of complaints. The noble Lord, Lord Ponsonby, gave us the figures, with which we have become familiar.
Specialist units are likely to concentrate expertise and experience of dealing with rape and serious sexual offences in the hands of those who really know about them. This amendment concentrates on the specialist training of the staff in such units. That is critical. Such units have the potential to improve the evidence-gathering process and ultimately, one would hope, the reporting and the prosecutions of offences and the conviction rates, which, as we know, are appallingly low.
All the amendments in this group identify serious issues and propose practical, worthwhile and achievable solutions. In respect of each of them, I suggest it would be helpful for the Government simply to accept them or to come back with alternatives to similar effect at Third Reading.
Lord Wolfson of Tredegar (Con)
My Lords, I recognise that behind all these amendments is a dedication to improving the way in which the criminal justice system handles sexual offences cases and supports victims. On both those points, that dedication is shared by the Government. It is absolutely right that we do as much as we can to support all victims, including those of sexual offences, and help bring to justice those guilty of those very serious crimes. I know that there is no disagreement between us on the need to continue to improve the victims’ experience of the criminal justice system, and of the important role that special measures, such as Section 28, can play in supporting victims and witnesses to provide their best evidence.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I thank the noble Lord for his assurances, and I beg leave to withdraw my amendment.
“Offence of destroying or damaging life-saving equipment
(1) The Criminal Damage Act 1971 is amended as follows. (2) In section 1(2), at the end of paragraph (b), insert “or(c) intending to destroy or damage any property which is considered life-saving equipment, including life-belts, life jackets and defibrillators.””
Baroness Chapman of Darlington (Lab)
My Lords, I rise to move the amendment tabled by my noble friend Lord Ponsonby on life-saving equipment. It deals with a specific issue in relation to criminal damage: the effect of vandalism on safety equipment.
Noble Lords who were present in Committee will have heard my noble and learned friend Lord Falconer of Thoroton speak about the death a young man from Rotherham, Sam Haycock. His parents, Simon and Gaynor Haycock, went to see their MP, Sarah Champion, who moved an amendment in the other place. Sam went swimming in Ulley reservoir in Rotherham in May 2021. He was leaving school that day and was just 16 years old. He was helping a friend who was in trouble in the water. At this reservoir in Rotherham—I believe that this is not unique to it—there was a throw line with a lifebelt attached to it that you can throw into the water to help someone in trouble. The problem was that it was kept in a locked cupboard and, to access it, you need to phone 999 and get a PIN from the police. Obviously, this takes time, and when someone is in distress in the water, you do not have time. The delay in getting the throw line might well, and in this case did, have tragic consequences. It is behind a locked door with a PIN to prevent vandalism of the safety equipment.
In regional media, I have found several similar instances where life-saving equipment has been vandalised. One was at Salford Quays. Manchester Council felt it lacked the ability to prevent and deal with this, so it has taken to using public space protection orders to try to deal with the issue. There was also a case in Uckfield in Sussex where a defibrillator was rendered unusable by vandals. These acts clearly cause costly damage but, most importantly, they also pose a very clear risk to life and can be shown to have cost lives in some instances.
The amendment is very straightforward: it proposes that it is made a specific offence to intend
“to destroy or damage any property which is considered life-saving equipment, including life-belts, life jackets and defibrillators.”
In terms of criminal damage, the value of what is damaged may be relatively minimal in the case of a lifebelt and a throw line, compared to other criminal damage offences. As my noble and learned friend Lord Falconer said in Committee, it would already be an offence to vandalise such equipment, but it matters a great deal that the law should indicate that this is something regarded with particular hostility because of the cost to life, including that of Simon and Gaynor’s precious son, Sam.
Earl Attlee (Con)
My Lords, I rise briefly to support the noble Baroness in moving her amendment. This might not be something that we want to send back to the Commons today, but I hope that my noble friend the Minister will tell us what he will do about this problem, because of the effects so ably described by the noble Baroness.
Baroness Jones of Moulsecoomb (GP)
I promise that this is the last time that I will speak—this evening; there will be other times. I rise to support this amendment, obviously, and also to troll the Government. Amendment 104D, which they obviously do not support, shows the huge inconsistency that the new statues statute will create. If the Government do not accept this amendment, it is hard to justify the whole plan to bring in a severe criminal penalty for toppling the statue of a slaver. To penalise that but not the destroying of life-saving equipment seems to me very strange, so I would like the Minister to explain that discrepancy to me.
It just shows me that the Government are still in the coloniser mindset. Between 2 million and 4 million enslaved African people died being shipped to America, with no criminal punishment to the slavers. It was just money—they had lots of money—and that is why the Colston statue was standing where it was standing. Somehow, toppling the statue of a slaver is what gets the harsher penalty. The Minister has got to make that make sense.
Lord Marks of Henley-on-Thames (LD)
My Lords, the effect of Amendment 104D would be to increase the maximum sentence for criminal damage with intent to destroy life-saving equipment from 10 years’ imprisonment to life imprisonment. I listened very carefully to the noble Baroness, Lady Chapman of Darlington, and her harrowing accounts of the vandalising of life-saving equipment and the damage and consequences of that. I also listened to the noble Earl, Lord Attlee, and the noble Baroness, Lady Jones of Moulsecoomb, and it is very clearly necessary that the Government make it clear how they will respond to the issue of vandalising life-saving equipment.
The behaviour comprising the offence is extremely serious because it carries the risk that life will be endangered by the damage caused. However, if I may adopt a slightly lawyerly approach to the amendment, I question whether it is necessary. The scheme of the Criminal Damage Act, as amended, is that under Section 4 an offence of criminal damage generally carries a maximum sentence of 10 years. However, Section 1(2)(b) of that legislation states that where the offence is arson or, as stated, is committed by a person
“intending by the destruction or damage to endanger the life of another or being reckless as to whether the life of another would be thereby endangered”,
the maximum sentence is increased to life imprisonment. That is the combined effect of that subsection and subsection (4).
I understand that the intention of the noble Baroness in moving the amendment on behalf of the noble Lord, Lord Ponsonby, would be to cover criminal damage to life-saving equipment with the intention of endangering life. However, given that by Section 1(2)(b) the offence is committed where a person commits criminal damage recklessly as well as intentionally in relation to endangering life—which means where the offender deliberately takes a risk that the damage he causes may endanger the life of another—I cannot at the moment see that such behaviour does not cover intentionally destroying or damaging life-saving equipment without lawful excuse. Nor can I at the moment see how, in the absence of such an intention or recklessness as to life being endangered, a maximum sentence in excess of 10 years would be justified on normal principles.
Consequently, I await hearing from the Minister with interest. He may or may not accept the slightly lawyerly approach that I put, but I hope that he will give some reassurance about how the Government propose to respond to the problem of vandalising life-saving equipment.
Lord Wolfson of Tredegar (Con)
My Lords, this amendment was debated just a few weeks ago when the Government set out why we believed it was unnecessary, given the scope of the Criminal Damage Act 1971. I will come back in a moment to what the noble Lord, Lord Marks, called a lawyerly point.
However, it is right first to remind ourselves, as the noble Baroness, Lady Chapman, did, of the very real consequences of this sort of behaviour. On the death of Sam Haycock in Ulley reservoir, can one begin to imagine what his parents Simon and Gaynor went through and are, no doubt, continuing to go through? One only has to say it to try to grasp to enormity of that. The noble Lord, Lord Marks, used the word “harrowing”. That is spot on. This relates to the appalling behaviour of the people vandalise equipment, which results in the requirement of having to make a telephone call to get hold of a life ring, defibrillator or whatever life-saving equipment it happens to be.
I turn to the legal position, as I am afraid we have to, given that we are considering an amendment to a Bill. The noble Lord, Lord Marks, is correct. I explained that it is already an offence intentionally or recklessly to damage or destroy property, including life-saving equipment. Section 1(2) of the Criminal Damage Act 1971 makes a specific provision for an aggravated offence of criminal damage where the defendant intends to endanger life or is reckless about such endangerment. To that extent, it goes beyond the scope of the amendment, which relates only to intention and does not include recklessness. As the noble Lord said, that offence already attracts the possibility of life imprisonment.
Of course, I understand that part of the reason why it is proposed to add a specific offence is to put beyond doubt that the law will punish those who damage and destroy vital life-saving equipment, whether they intend to do so or are reckless as to the risk. The concern was raised in Committee that it is not well known that causing damage to life-saving equipment means that Section 1(2) of the Criminal Damage Act 1971 could be in play and therefore carry a potential life sentence. However, if the concern is that that is not well known, I would question whether it would make a real difference if this Bill were amended essentially to repeat that point of law. The ordinary citizen, particularly the people who carry out this appalling behaviour, is still as unlikely to understand or perhaps care about the consequences and penalties associated with the crime. Therefore, I suggest that the ultimate problem here is not a question of a gap in legislation or a lacuna in the criminal law but people knowing what the law is and bringing home to people the likely criminal consequences of their actions.
In response to my noble friend Lord Attlee, as I suggested in Committee, if the law is not enough of a deterrent, we must focus on those responsible for water safety, health and safety, and law enforcement to come together to find out what is not working and identify workable solutions that might include sign- posting more clearly on the equipment the consequences of damaging that equipment. That might be a way forward. However, I share with the noble Baroness, Lady Chapmen, that these are abhorrent acts of criminal damage that should be prosecuted. The sentence must fit the crime. There is a potential maximum sentence of life imprisonment.
The noble Baroness, Lady Jones, put the question: why are the Government making destroying statues a criminal offence if destroying life-saving equipment is not a criminal offence? The problem with that question is that destroying life-saving equipment is a criminal offence. So far as statues are concerned, the next instalment is due on Monday, so I will leave the matter for then.
However, so far as today is concerned, while sharing very much the sympathies behind the amendment, I invite the noble Baroness to withdraw it.
Baroness Chapman of Darlington (Lab)
I am grateful to the Minister for what he had to say and I do understand that creating a new offence or separate provision may not have the desired effect of reducing these horrendous instances. It is right that we want to stop that happening and I welcome his comments about working together, perhaps with local authorities and police forces, to do more creative things to try to prevent this. I beg leave to withdraw the amendment.
“Offence of requiring or accepting sexual relations as a condition of accommodation
(1) It is an offence for a person (A) to require or accept from a person (B) sexual relations as a condition of access to or retention of accommodation or related services or transactions.(2) For the purposes of this section, A is—(a) a provider of accommodation,(b) an employee of a provider of accommodation,(c) an agent of a provider of accommodation, or(d) a contractor of a provider of accommodation.(3) A person guilty of an offence under this section is liable on conviction on indictment to imprisonment for a maximum of 7 years.”
Lord Ponsonby of Shulbrede (Lab)
My Lords, this group of amendments seeks to introduce new offences to make it illegal to have sex-for-rental accommodation. Currently, sex for rent was affirmed as a sexual offence in 2017 by the Ministry of Justice. Under the current legislation, an individual can be prosecuted for such a crime only under Section 52 of the Sexual Offences Act 2003—causing or inciting prostitution for gain. Only one person has been charged in a sex-for-rent case, and only as recently as a year ago.
The law itself has made it extremely difficult for sex-for-rent victims to seek justice. According to the law, victims must be legally defined as prostitutes, which is a huge deterrent in their access to justice. Another reason why this scandal continues virtually unchecked is that landlords are able to advertise sex for rent in their properties very easily. Landlords still post on sites such as Craigslist, where they talk about free house shares, room shares or even bed shares, and even some of the postings are extremely explicit about the requirement of sex for rent.
Amendment 104E would create a new offence of requiring or accepting sexual relations as a condition of rental accommodation, with a maximum sentence if convicted of seven years. Amendment 104F would create a new offence of arranging or facilitating the requirement or acceptance of sexual relations as a condition of rental accommodation, with a maximum fine of £50,000. That would of course be for those who allow the advertisements on their websites or allow any other form of this type of advertising.
Amendment 114A would put a requirement on the Secretary of State to establish a review into the prevalence of, and the response of the criminal justice system to, the offence of administering a substance with intent under Section 61 of the Sexual Offences Act 2003. This is a separate point, and it is something that has had a lot of publicity recently. What is not known is how much of that has been drummed up by the press, if I can put it like that, and how much is real. Nevertheless, the concern that has been raised is certainly real, and this amendment would put an obligation on the Government to get to the bottom of the matter and see whether it is a real problem that nightclubs and other people need to take action to stamp out.
Amendment 114B would put a requirement on the Secretary of State to establish a review of the offence of exposure under Section 66 of the Sexual Offences Act. Again, this is a separate and wider issue, which has ramifications regarding violence against women and girls and the question of whether it is a step along that road. It is right that it should be viewed in its wider context. As a sitting magistrate I see these cases fairly often; they are highly variable and the perpetrators range completely across the social spectrum. Nevertheless, the impact on the women and girls who are subject to these exposures is real, and I am sure there is sufficient data to see whether people who expose themselves progress to much more serious offences.
However, it is fair to say that the main purpose of this group of amendments is to put in new offences of illegalising sex for rent. I beg to move.
Earl Attlee (Con)
My Lords, I am grateful to the noble Lord, Lord Ponsonby of Shulbrede, for tabling Amendments 104E and 104F, because this gives me an opportunity to speak to them as I was not available at an earlier stage.
My first point is that sex for rent is invariably immoral and abhorrent and frequently evil, so I agree with the sentiments expressed by the noble Lord today and by noble Lords the last time we debated it. Unfortunately, I share the concerns expressed by the noble Lord, Lord Marks, in Committee on 22 November last year. Like the noble Lord, I am worried about the unintended consequences. He asked:
“What about the landlady of the bed and breakfast who seduces the potential paying guest and offers him or her a free room in return?”—[Official Report, 22/11/21; col. 684.]
The problem is not so much in the drafting but in the way that the amendment works. For instance, I worry about the use of the word “provider”. Does the proposed offence catch a young, affluent male student who has a spare bed or room to offer a female student, partially or wholly in exchange for sex or an intimate relationship?
Lord Pannick (CB)
My Lords, I do not share the concerns that have just been expressed. It seems to me that Amendment 104E makes it very clear what the mischief is; it is making it a condition of access to accommodation that sexual services are provided. We all know what that means, and juries will know what it means. It is a real mischief and it needs to be addressed. If the noble Lord, Lord Ponsonby, divides the House on Amendments 104E and 104F, he will certainly have my support.
However, I have concerns about the drafting of Amendment 104F. My concern is that in several places it uses the concept of “arranging” an offence—not simply facilitating the offence but arranging or facilitating it. I do not really understand what the difference is and what is added by “arranging an offence”. I am not myself aware of other contexts where that concept has been used. It is a very vague concept and, I think, a rather undesirable one.
I am also troubled by proposed new subsection (3)(c) of Amendment 104F, which makes it an offence if a publisher is informed that its actions
“had enabled the arrangement of or facilitated an offence”
and it then
“failed to take remedial action within a reasonable time.”
All that is extremely unclear and uncertain as to the ingredients of the offence. No doubt that can be dealt with at Third Reading if others share my view. I emphasise that I support the amendments, but I draw attention to those matters that cause me concern.
Lord Hope of Craighead (CB)
My Lords, I have one point to add to what has been said by my noble friend Lord Pannick. The word “publisher” troubles me a bit. It is not defined in the amendment, and I am not quite sure what that word is directed to. Is it somebody in business as a publisher or somebody who simply publishes something, describing the activity rather than the trade? The amendment would be improved if something was said in it as to what exactly is meant by the word “publisher”.
Baroness Kennedy of Cradley (Non-Afl)
My Lords, I speak briefly in support of Amendments 104E and 104F, in the name of my noble friend Lord Ponsonby of Shulbrede. In doing so, I declare my interest as director of Generation Rent.
Predators online attempt to coerce men and women to exchange sex for a home by exploiting their financial vulnerabilities. They have used the economic effects of the pandemic as a marketing technique. This is already a crime, and it is not a new crime, but there has only ever been one charge for this offence, and that was in January last year. However, back in 2016, Shelter found that 8% of women had been offered a sexual arrangement. Two years later, its polling estimated that 250,000 women had been asked for sexual favours in exchange for free or discounted rent, and its more recent research showed that 30,000 women in the UK were propositioned with such an arrangement between the start of the pandemic in March 2020 and January 2021.
This is a crime that goes on, openly and explicitly, through adverts on online platforms. Despite the adverts being clear in their intention, they go unchecked, are placed without consequence and are largely ignored by law enforcement and the online platform providers. The fact that there has only ever been one charge for this crime shows how inadequate the law and CPS guidance are in this area.
The victims of this exploitation have been failed. As my noble friend said, for a victim to get justice, they need to be defined as a prostitute for a criminal case to progress, which is a huge deterrent that has to be changed. The online platforms—that is what I believe is meant by “publisher”—allow this crime to be facilitated, and they must have action taken against them. That is why I very much support the amendments tabled by my noble friend.
In closing, I pay tribute to the honourable Member for Hove in the other place for his campaigning on this issue, and the many journalists who have kept this issue on the agenda, including the team at ITV, whose research I understand helped to lead to the one charge for this crime that there has ever been. No one should ever be forced by coercion or circumstance to exchange sex for her home. There is a housing emergency in this country. It continues to hit new lows—so low that sexual predators can deliberately take advantage of people’s desperation to find a home. For me, Amendments 104E and 104F are an opportunity to protect some of the country’s most vulnerable renters.
Lord Marks of Henley-on-Thames (LD)
My Lords, I shall be brief because we have a lot to get through. I should have preferred Amendments 140E and 104F, the sex-for-rent amendments and the facilitating amendments, to be rather more tightly drawn. I note that the points I made in Committee were taken by the noble Earl, Lord Attlee. However, I have been persuaded by re-reading the speech made in Committee by the noble Baroness, Lady Kennedy of Cradley, and what she said today, with her extensive experience as director of Generation Rent—that there is a serious need for criminal legislation to stop what is a particularly nasty form of predatory behaviour. I also took the points made by the noble Lord, Lord Pannick, on the interpretation of Amendment 140E, implicitly supported by the noble and learned Lord, Lord Hope, so we will support those amendments. We will also of course support the amendment calling for a review of the criminal law relating to exposure offences and spiking offences, for the reasons given by the noble Lord, Lord Ponsonby, and which we supported in Committee.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, as the noble Lord, Lord Ponsonby, explained, these amendments relate to three matters we debated in Committee: namely, whether there should be a bespoke offence to tackle so-called sex for rent and whether the police, prosecutors and courts are doing enough to tackle offences relating to spiking and exposure. If I may, I shall take each issue in turn.
Amendments 104E and 104F are intended to address the so-called sex-for-rent issue, whereby exploitative landlords, and others, require sexual relations in return for housing or accommodation. This is an abhorrent phenomenon, which takes advantage of very vulnerable people, as noble Lords have said, and it has no place in our society.
Under the Sexual Offences Act 2003, there are existing offences which may be used to prosecute this practice, including the Section 52 offence of causing or inciting prostitution for gain and the Section 53 offence of controlling prostitution for gain. Both offences carry a maximum penalty of seven years’ imprisonment. They can capture instances of sex for rent, depending on the circumstances of the individual case.
In 2019, the Crown Prosecution Service amended its guidance on prostitution and exploitation of prostitution to include specific reference to the availability of charges for offences under Sections 52 and 53, where there is evidence to support the existence of sex-for-rent arrangements. In January of last year, the CPS authorised the first charge for sex-for-rent allegations under Section 52. The individual against whom these allegations were made has pleaded guilty to two counts of inciting prostitution for gain. To better protect tenants from rogue landlords convicted of certain criminal offences, banning orders were introduced through the Housing and Planning Act 2016. A banning order prohibits named individuals engaging in letting and property management work. The Government have been clear that housing associations and local authorities should use these orders if needed. Action will be taken against landlords who exploit vulnerable people. This behaviour simply is not tolerated.
I thought I might say something about a victim having to identify as a prostitute for the Section 52 and 53 offences to be used. I must stress that anyone making a report to the police would benefit from the anonymity provisions in the Sexual Offences (Amendment) Act 1992. The Section 52 offence applies when an identified victim has been caused to engage in prostitution or incited to do so, whether the prostitution takes place or not. The Section 53 offence applies whether the victim has, on one or more occasions, provided sexual services to another person in return for financial gain.
Moving on to Amendment 104F, I definitely agree with the noble Lord, Lord Pannick, about the woolly terminology of “arranging an offence”, and the point made by the noble and learned Lord, Lord Hope of Craighead, about “publisher”, but on the amendment itself, the forthcoming online safety Bill will require companies to put in place systems and processes to remove certain types of illegal content as soon as they become aware of it.
I move on now to spiking, the subject of Amendment 114A. This would require the Secretary of State to review
“the prevalence of, and the response of the criminal justice system to, the offence of administering a substance with intent under section 61 of the Sexual Offences Act 2003”.
I share the concerns expressed by the noble Lord about this offence, particularly the recently reported phenomenon of spiking by needles. This is understandably causing considerable anxiety among young people, especially in our university towns and cities, but there is no need to create a statutory obligation on the Government to review the operation of Section 61 as this issue is already very much on the Government’s radar. Indeed, a statutory requirement setting out a specific agenda risks hindering the Government’s ability to respond flexibly to the problem.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I thank all noble Lords who have taken part in this debate. It has been quite quick but focused on the issues raised in this group of amendments.
The noble Earl, Lord Attlee, raised some reservations and talked about the nature of the victims. I advise the noble Earl to read very carefully what my noble friend Lady Kennedy said when she itemised the victims of this offence. It is overwhelmingly women who are victims of this offence. The numbers are very large and it has been going on for years. My noble friend is an expert on this matter and I think his remarks were misplaced, if I can put it like that.
Earl Attlee (Con)
My Lords, I have no issue with what the noble Lord said, nor with what the noble Baroness said. This problem has been going on for a very long time and large numbers are involved; I do not disagree with that.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I move on to the comments of the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Hope. I am grateful for their support. They raised drafting issues, if I can put it like that, around the word “arranging” in Amendment 104F, and the noble and learned Lord, Lord Hope, questioned the use of the word “publisher”—although my noble friend Lady Kennedy said that she regards “publisher” as including online platforms. Nevertheless, I am not stuck with the specific wording in front of us. I think the purpose of the amendments is perfectly clear, and I am glad that both the noble Lord and the noble and learned Lord are nodding their heads.
I was disappointed with the answer given by the Minister. She made it clear that the Government take these issues seriously and said that they are constantly reviewing the law on these matters, but here is an opportunity to change it right now. There has been a very effective campaign on this issue, and it would have been an opportunity for the Government to change their approach. So I think that we on this side of the House should force the issue and test the opinion of the House, just to see the strength of opinion on this long-standing problem.
“Offence of arranging or facilitating the requirement or acceptance of sexual relations as a condition of accommodation
(1) It is an offence for a person, who may in particular be a publisher, to arrange or facilitate an offence under section (Offence of requiring or accepting sexual relations as a condition of accommodation).(2) A person commits an offence if they intend to arrange or know that their actions would facilitate an offence under section (Offence of requiring or accepting sexual relations as a condition of accommodation).(3) A publisher commits an offence if they—(a) know they are arranging or facilitating an offence under section (Offence of requiring or accepting sexual relations as a condition of accommodation),(b) reasonably should know their actions would enable the arrangement of or facilitate an offence under section (Offence of requiring or accepting sexual relations as a condition of accommodation), or(c) were informed that their actions had enabled the arrangement of or facilitated an offence under section (Offence of requiring or accepting sexual relations as a condition of accommodation) and failed to take remedial action within a reasonable time.(4) A person found guilty of an offence under this section is liable on conviction on indictment to a fine of £50,000.”
“Police and crime commissioners: limit on age of disqualification for conviction
In section 66(3)(c) of the Police Reform and Social Responsibility Act 2011, after the first “offence” insert “committed after the age of 21”.”
Lord Bach (Lab)
My Lords, Amendment 104FA stands in my name of those of the noble Lord, Lord Pannick, and my noble friend Lord Hunt of Kings Heath. It is hard to think of two more respected, valued and experienced Members of the House, and I know that other noble Lords would be happy to have supported this amendment. I am very grateful to them. I thank the Minister for suggesting a meeting, which we had online yesterday; I am very grateful to him for it. I enjoyed our discussion, and it was particularly good that part of that discussion was with a senior civil servant who is advising him and who, many, many moons ago, advised me when I sat in his place.
In Committee, my amendment was slightly differently drafted, but the point remains a simple matter of principle. It is not of world-shattering interest, but it is still a matter of principle that all people of good will, including the Government, should support. The Bill in the House tonight is a legitimate and timely moment to put right a minor wrong. We should not waste that opportunity. Section 66 of the Police Reform and Social Responsibility Act 2011 makes it clear that if a person has at any stage in their life a conviction for any offence which, if they were over 18 at the time, could carry a sentence of imprisonment —whether or not it did carry one is irrelevant—that person will remain ineligible for the rest of their lives to stand as a police and crime commissioner: not just until the Rehabilitation of Offenders Act applies, or for five, 10, 15 or 20 years, but for their whole life.
In Committee, three case histories were given which I hope helped the Committee to feel that the present position is a nonsense. Two of those cases were given by me and one by the noble Lord, Lord Carlile of Berriew, to whom I was grateful. They showed how ridiculous, absurd and unique Section 66 is. There will be other cases that the House will not have heard of. Let me briefly repeat one of those examples. It concerns a boy aged 16 in 1972, and an old scooter. He and his friends visited a hospital. His mate handed him an old scooter helmet, which was apparently completely useless. He foolishly placed it in his family garage. He was charged with handling and fined £5. Since then, it goes without saying that he has never been in trouble. He has had a highly successful career in journalism. He has been head of a regional media outfit and worked for the NSPCC as a communications officer. In addition, he has been a TA soldier for many years and, indeed, was the company sergeant-major. He is a county councillor in his local area and is in his fourth term. He is also an ex-member of the local police authority that existed until the creation of police and crime commissioners. Now that there are PCCs, he is on the police and crime panel, which has authority to hold to account the local police and crime commissioner. One can imagine his surprise when, 40 years on, in 2012, the year of the first police and crime commissioner elections, he was told that he could not stand because of an offence he committed and a conviction he got when he was 16, in 1972. I suggest to the House that that is absurd.
I suppose it could be understood if anyone who had been convicted of such an offence at any stage in their life was considered ineligible to apply for the following jobs: Member of Parliament, councillor, lawyer, judge, Home Secretary, Prime Minister, archbishop—if the noble and right reverend Lord, Lord Sentamu, whom I warned that might mention in passing, will forgive me—or, even more extraordinarily, police officer. If people were prevented from doing those jobs throughout their lives merely because they had a conviction when they were 15 or 16, it would have at least some logic and sense to it, but that is not the position. Each of those important and responsible jobs is open to someone like the example I have given, who may have offended when they were a youngster but have since lived sensible, law-abiding lives. The position is quite rightly much more flexible for those others, so why on earth is it so strict for those who want to be a police and crime commissioner? There is no automatic bar for anybody else, so why should there be for this post? Is there something in the position of police and crime commissioner that is so remarkable —so close to heaven, perhaps I could say—that people must pass this incredible test and, if they fail it when they are 16, they fail it for life? The rigidity is absurd.
Lord Pannick (CB)
My Lords, I respectfully agree with everything the noble Lord, Lord Bach, said. I will add just one point. The problem is not simply the unfairness to the individuals concerned, although that is bad enough, but the damage to the public interest that otherwise eligible and fine candidates are prevented from serving. It is a basic principle of our constitutional law that Parliament can do anything it likes, but there are limits, and we ought to get rid of this manifest absurdity.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, I too support this amendment; I did at Second Reading. Indeed, I have added my name to the amendment but too late for it to appear on the fifth Marshalled List. The case for it could hardly be simpler or more compelling. Frankly, the illustration of the scooter helmet from the noble Lord, Lord Bach, ought of itself to be enough to carry this. I am against absolutism and total purity and inflexibility routinely, but flexibility and discretion are almost invariably required to be welcomed and valued, and they are here. It is nothing short of bizarre, absurd and conspicuously unfair to single out this one public office as one from which people are uniquely disqualified in the circumstances already sufficiently indicated. I need not waste another word. My only regret is that the amendment is not being put to the vote.
Earl Attlee (Con)
My Lords, I have worked with the noble Lord, Lord Bach, for many years in this House —sadly, on opposite sides of it—but I have never heard him make a stronger argument for anything. The only reason why I cannot say that I will support him is because I have not written a little note to my noble friend the Chief Whip.
Baroness Fox of Buckley (Non-Afl)
My Lords, I cannot say that I know many teenagers who, growing up, aspire to be police crime and commissioners. However, I was convinced by the arguments made in Committee and I wanted to just make a couple of additional small points. For me it is not just about unfairness; there is a principle here. If you work with teenagers and one of them has made a mistake and has been fined or has broken the law in some way, you say to them, “Now we want you to rehabilitate and become a fine upstanding citizen”, and, “The world is your oyster and you can do anything.” I cannot imagine anything that is more proof of being fine and upstanding than growing up and then saying, “I want to be a police and crime commissioner.” I do not even know whether I agree with the idea of police and crime commissioners, but that is not my point.
The other thing, on a kind of principle, is that increasingly I would like public servants and people taking on roles such as police and crime commissioners to have some real-life experience—and that might involve youthful indiscretions.
I completely support the amendment. There are principles here that could easily be upheld by the Government simply accepting it; it makes perfect sense. I think even the public would cheer.
Lord Sentamu (CB)
My Lords, since I have been gratuitously referred to, I ought to say some words. Archbishop Robert Runcie said, “A saint is a person whose life has never been fully examined.” All our lives have never been fully examined, but I confirm that I never committed any crime at the age of 15 or 16, and have not done even now. Even if I committed one, I am already excluded from becoming an archbishop again because I am now 72. Age would discriminate against me and push me out.
What I do not get is why being a police commissioner is the only calling where there is discrimination if something was done at the age of 16. I would have thought that, 40 years on, the person has done their time. Yes, there is a record but it does not have to be the only thing over which you exclude them, because they have come on in age. In wanting to remove this for police commissioners, we are not sending out a message that it does not matter whether you commit a crime at the age of 16. We are saying: why is there this hindrance to this profession? Because one day I may become a saint and my life will never be fully examined, I want to vote for this amendment. I hope that the Minister will just accept it and it will be put into statute without more debates, because this just does not make sense. But I speak like a fool.
Baroness Jolly (LD)
My Lords, as we said in Committee, we are in principle supportive of this amendment. However, we would want in an ideal world a balancing amendment to ensure the possibility of recall and by-election should a police and crime commissioner be found guilty of misconduct, along the lines of the Recall of MPs Act 2015. I agree with the noble Lord, Lord Bach, about the discrimination of early offences. Currently, because police and crime commissioners are democratically elected, they can be replaced only by means of another election, and as things stand there is no mechanism to force such a by-election. It is hoped that a disgraced PCC would resign but this should not be at the sole discussion of the PCC concerned. Therefore, we are reluctant to support the amendment without another along the lines of the one described earlier. My noble friend Lord Paddick says that he thinks it is unfortunate that the noble Lord, Lord Bach, did not take the hint that he gave him in Committee.
Lord Rosser (Lab)
My Lords, I will be brief. I recall that the Minister said in Committee on this amendment
“I fear that my ice thins a little here”.
One can only say that I think it has got even warmer since then. The Government said in Committee:
“Having said all that, I have heard everything that has been said around the Chamber this evening, across party, and I will make sure that those arguments are reflected back to the Home Office.”
What happened when those arguments were then reflected back to the Home Office, to whom in the Home Office were they reflected back to, and what was the response?
The rules on previous convictions, which the Government said in Committee were necessary to ensure
“the highest levels of integrity on the part of the person holding office and to protect the public’s trust in policing”
do not seem to have been very effective or relevant in North Yorkshire on two occasions already where two different PCCs have already departed the scene in interesting circumstances.
I conclude, in indicating our support for this amendment and thanking noble Lords for all the arguments and points made, that in Committee the Government referred to part 2 of the review of police and crime commissioners. They said that it is “currently under way” and that
“this review will also assess the benefits and demerits of a trigger mechanism for the recall of PCCs; it is being debated.”—[Official Report, 22/11/21; cols. 649-50.]
Will this part of the review of PCCs also now look at the issue of the current bar, in its present form, on a potential candidate being able to stand for the position of police and crime commissioner, which is the issue we are debating tonight? If the Government cannot even say that this will now be included in part 2 of the review, what is the reason for that stance?
I very much hope, like my noble friend Lord Bach, that the Government will accept this amendment, or at the very least agree to reflect on it further prior to Third Reading so that it can be brought back again if the Government’s reflections are not very satisfactory.
Lord Sharpe of Epsom (Con)
My Lords, first, I thank the noble Lord, Lord Bach, for giving us a further opportunity to discuss the disqualification criteria for those wishing to be elected as police and crime commissioners and for joining the meeting yesterday when we discussed this issue online. I thank all noble Lords who have participated in this debate and, to the point made by the noble Lord, Lord Rosser, I do fear my ice is rather thinner.
However, this latest amendment would allow anyone convicted of an imprisonable offence before the age of 21 to stand as a police and crime commissioner. I commend the noble Lord for seeking some middle ground to address this issue, but the amendment would still dilute the current high standard of integrity we expect of PCCs—namely, preventing anyone convicted of an imprisonable offence to stand for or hold the office of PCC.
As I said on this matter in Committee, the rules governing who can stand as a PCC are the strictest of all elected roles in England and Wales. We believe that this is necessary to ensure the highest levels of integrity of the person holding office and thus protect the public’s trust in policing. Any dilution of that high standard, as proposed by the noble Lord, could still undermine public confidence in a PCC.
Under the noble Lord’s amendment, it would be open to a person convicted of and imprisoned for a very serious violent offence at the age of 20, for example, to stand for election as a police and crime commissioner. That is inappropriate, given the nature of the role the PCC plays in holding the chief constable and the force to account. I suggest that were a PCC to hold office with a previous conviction for an imprisonable offence, both the PCC and the chief constable may find it untenable to maintain a professional and respectful relationship.
The current standard was set with cross-party agreement and the support of senior police officers. If the current standard is lowered, the Government maintain that it would be a very serious risk to public confidence and the integrity of the PCC model at a time when we should be doing all we can to protect and increase public confidence in the police.
Lord Pannick (CB)
Before the noble Lord sits down, may I ask him this question? Why is it that public confidence requires, in his view, this absolute rule, when I can serve as a Supreme Court Justice even if I was convicted of an imprisonable offence at the age of 17 or 18?
Lord Sharpe of Epsom (Con)
With regard to public confidence, I go back to what I said earlier: this was originally designed with cross-party support and with the assistance and advice of police chiefs.
Lord Rosser (Lab)
My Lords, before the noble Lord sits down, may I have a response to my question? Bearing in mind that in Committee the Government were prepared to tell us that part 2 of the review will
“also assess the benefits and demerits of a trigger mechanism for the recall of PCCs; it is being debated,”—[Official Report, 22/11/21; col. 649.]
may I ask for an assurance that part 2 of the review will also look at the issue raised by my noble friend Lord Bach in this amendment about the bar on being able to seek office as a PCC? May I have that assurance?
Lord Sharpe of Epsom (Con)
I am sorry I forgot to answer the noble Lord’s specific question. The problem is that I do not have the terms of reference to hand so I cannot give him the assurance he seeks, but I will write to him.
Earl Attlee (Con)
The noble Lord told the House that we agreed on a cross-party basis that these arrangements were appropriate. Was that by means of a vote or did we just acquiesce to it?
Lord Sharpe of Epsom (Con)
I am afraid I do not know. It predates me, sorry.
Lord Lexden (Con)
Is it the Government’s view that, by retaining the ban—as it is at the moment—for PCCs, there would be a case for extending it so that, if it should emerge that the noble Lord, Lord Pannick, committed an imprisonable offence before the age of 21, he should be barred from becoming a Supreme Court judge? Does one thing not follow the other?
Lord Sharpe of Epsom (Con)
The noble Lord will forgive me for not venturing an opinion on that.
Lord Bach (Lab)
I forgive the Minister anything. I was in his position many years ago when I had to defend the completely indefensible. All Governments do it; it is not an attack on this Government. Somehow there is a collective—I am going to use the word “idiocy”, which is perhaps too high, but collective mistakes are made. Individual Ministers know very well that something such as this should be got through easily and the matter of principle—the noble Baroness, Lady Fox, is right—can be put right and we can move on. But somehow, “The Government say no”.
I do not think any of the reasons so articulately put by the Minister really hold water at all to be honest, particularly the argument on the public being really offended by something such as this and losing what confidence they have—which I hope is high but may not always be—in police and crime commissioners. I do not honestly think the public would care a jot and, if they did, they would be surprised by how the law stood. I have to say that I do not find placing reliance on part 2 of the inquiry, and particularly on when legislation might come to this House again on this matter, very convincing.
We have a lot of important business to do tonight—I understand that. I am reluctant to withdraw, given the strength of feeling—and I want to thank everybody who has spoken in this debate; very distinguished Members of this House have spoken, and I am really very grateful to them. However, in the circumstances, while inviting the Minister to take this issue back to the Home Office again and to show other Ministers and officials what was said tonight in Hansard, I hope that it may move the Government to do the right thing on this before very long. I beg leave to withdraw my amendment.
“Section 6 of the Sexual Offences Act 1956: removal of time limitation
(1) Proceedings for the offence under section 6 of the Sexual Offences Act 1956 (intercourse with a girl between thirteen and sixteen) are not barred only by virtue of the passage of time since the date of the alleged offence.(2) Nothing in this section permits the trial of a person who has already been convicted of an offence relating to the sexual intercourse in question.”
Baroness Kennedy of Cradley (Non-Afl)
My Lords, men who seduced girls between the ages of 13 and 16 before 1 May 2004 are effectively immune from prosecution because of a procedural time limit. The law therefore stops historic child abusers from being held accountable for their actions; the law denies justice to women in England and Wales who were groomed for sex as teenage girls before 1 May 2004 as they cannot bring charges against the people who took advantage of them. Let me take a minute to explain why.
Abusers are immune from prosecution because sexual offences committed before 1 May 2004 must be prosecuted under the Sexual Offences Act 1956. Under that Act, the applicable offence is unlawful sexual intercourse, as outlined in Section 6. In the 1956 Act, and there is a time limit of one year from the alleged commission of the offence under Section 6. Proceedings must therefore be instituted within a year from then. This time limit is clear and unambiguous and can be found in paragraph 10 of Schedule 2 to the Act.
Amendment 104FC would remove the time limit and therefore remove the legal barrier which protects abusers of underage girls from prosecution. Some may read this speech and question why I am using the phraseology “girl” and not “child”. This is because, remarkably, the time limit applies only to girls; if the victim were a boy, it would be different, as historical cases of sexual intercourse between men and boys under 16 can still be prosecuted. How can the law deny justice and discriminate in this way, and this House not seek to put it right?
The time limit has to be removed, especially as no such time limit applies to offences of this nature committed after 1 May 2004. If a man had sexual intercourse with a girl aged between 13 and 16 after 1 May 2004, he can be prosecuted for the new offence of sexual activity with a child. That was created by the Sexual Offences Act 2003, where no equivalent time limit is applied. This time limit is therefore a procedural anomaly that clearly stands in the way of justice.
This problem had been going on for some time, since before May 2004, but prosecutors were for a long time able to evade the time limit. Instead of charging for underage sexual intercourse, which could not be done if the offence was discovered or prosecuted too late, they would charge for indecent assault in relation to the same underage sexual intercourse. But in 2004, when this House also acted in its judicial capacity, it considered an appeal by a Mr J, who argued that his charge of indecent assault was a device to circumvent the time limit and was an abuse of the court—and the House accepted his argument. Since that time, therefore, men who procured sexual intercourse from vulnerable and impressionable girls before 1 May 2004 have been immune from prosecution.
Some may say that this may be an unnecessary change and ask how many people it would actually affect—but, as the CPS does not keep a record of how many cases are discounted at an early stage because of issues like time limits, there is no data for us to know whether this is affecting one woman, 1,000 women or more. What we do know is that, sadly, historic sexual abuse comes to light all too frequently. We know that girls can be threatened into silence for long periods of time. It is well known that very many girls, victimised in these ways, only recognise themselves as victims, or only have the confidence to go to the police much later than one year afterwards, or something else comes to light that encourages them to bravely break their silence. There must be hundreds of thousands of cases where men seduced a girl aged between 13 and 16 before 1 May 2004, but those victims for various reasons never told the police during the year.
I do not believe that we should need much evidence of the extent of the problem to justify the removal of this arbitrary time limit and allow justice to be done. Some may argue that you cannot retrospectively make law in this way, but applying that argument to this amendment I believe is incorrect. It is true that you cannot retrospectively create new offences and punish people for them—but here, the relevant offence always existed. This amendment would just change the rules relating to trial for those offences. It has always been understood that rules of evidence and procedure can be amended and have immediate effect in subsequent trials, regardless of when the acts complained of actually happened. Article 7 of the European Convention on Human Rights, as I understand it, applies to the definition of offences and defences; it does not apply to matters of procedure, including time limits.
Finally, some may argue that this amendment risks exposing those who were prosecuted and successfully used the time limit to avoid prosecution to further conviction. That is not my intention with this amendment, which is why subsection (2) of my proposed new clause states:
“Nothing in this section permits the trial of a person who has already been convicted of an offence relating to the sexual intercourse in question.”
I am aware that that this is a complex matter, and I thank Dr Jonathan Rogers, assistant professor in criminal justice at Cambridge University, who has been arguing for a change in the law to address this issue for many years. I thank him for all his advice and support on this issue. I also thank the noble Lord, Lord Wolfson of Tredegar, for meeting Dr Rogers and me last week to discuss this matter. We are conscious that our meeting lasted twice as long as expected, so I thank him for the time that he gave and for the further discussions that were facilitated between Dr Rogers and the Civil Service team. However, my view remains that this issue needs resolving; there are still women who are denied justice for what happened to them in their early teenage years and men who can be fairly tried. This time limit is wrong —the amendment would remove it and, in doing so, close a loophole which protects sex offenders. I beg to move.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I support my noble friend, who is quite right in everything she has said. Sexual abuse and rape can quite often take decades to come to light. The anomaly, which she has outlined very clearly, is within the power of the Government to put right, and I urge the Minister to do so.
Lord Wolfson of Tredegar (Con)
My Lords, before I turn to this amendment, I begin with an apology. I made an incorrect statement in an earlier group. On Amendment 104B, I said that in September 2019, we rolled Section 28 out to a further four courts” and then I identified them. I should have said “September 2021”, not “September 2019”. I have already sent a written note to the noble Lord, Lord Ponsonby of Shulbrede, correcting the point, but I take this opportunity to correct the record and apologise to the House for that error.
I thank the noble Baroness, Lady Kennedy of Cradley, for tabling the amendment, which is aimed at a narrow but important category of cases that remain subject to a highly unusual time limit—we do not usually have time limits in our criminal law—and I thank her for the very useful discussions that we have been able to have on this topic. The amendment affects offences under Section 6 of the Sexual Offences Act 1956 of unlawful but consensual sexual intercourse with a girl aged 13 to 15 that were committed before 1 May 2004, when the Sexual Offences Act 2003 came into force and replaced the 1956 Act. It was a requirement under the earlier statute that a prosecution for this under Section 6 had to be commenced within 12 months of the offence. There is no time limit for the offences under the 2003 Act that have been chargeable since 1 May 2004, but when the offence was committed before that date, the 12-month limit for commencing a prosecution continued to apply. That, of course, has long since expired.
As my noble and learned friend Lord Stewart of Dirleton explained in Committee, Parliament usually acts on the principle of non-retroactivity. Although removing the time limit in circumstances where a prosecution was already time-barred would not have amounted to substantive retroactivity in the sense of criminalising conduct that was not previously unlawful, it still would have exposed a person to criminal liability where there had not been any before.
Baroness Kennedy of Cradley (Non-Afl)
My Lords, I am grateful to the Minister for his response and for the large amount of time last week that he and his advisers gave me and Dr Rogers from Cambridge University, whose writing, as the Minister said, has rightly put this issue into the public arena.
I note the Government’s concerns about Article 7, but I also note that Governments have taken greater risks with Article 7 before when the political will has been there. I believe that there is cross-party consensus that men who continually seduced underage girls, in many cases ruining their young lives for their own amusement, in the 1980s and 1990s still deserve to be punished.
There is also Strasbourg case law, which condemns states for relying on arbitrary procedural rules that act as barriers to effective justice in cases of sexual offences against the young. My noble friend Lady Chakrabarti referred to one such case in Committee. However, as the Minister suggests, we should pause to consider whether Article 7 might protect a man who would be prosecuted after the original time limit expired. The European Court of Human Rights in Strasbourg has expressly said that the propriety of this is yet to be decided; on that basis, I accept that there is a risk that merits further consideration. I appreciate that this needs more time to resolve than the timing of the Bill allows. I therefore very much welcome the Minister’s offer to keep the discussions on this issue going with the Minister who is directly responsible for this area of policy. Today is only the start of the discussion on this issue.
I remain hopeful that, through discussion with the Government, more can be done to quantify the exact risk of losing a case under Article 7. If it is low, I hope that we will have the courage of our convictions and change the law for the better, as we did with the double jeopardy rules in 2003. I am grateful to the Minister for his offer to facilitate further deliberations on this issue; I look forward to future discussions with him and other Ministers.
I beg leave to withdraw my amendment.
Baroness Coussins
“Spoken word interpreters: minimum standards
Within six months of commencement of this section, spoken word interpreters appointed to a court or tribunal must—(a) be registered on the National Register of Public Service Interpreters (“NRPSI”),(b) possess a Level 6 Diploma in Public Service Interpreting, or comply with NRPSI Rare Language Status protocols, and(c) have completed the requisite number of hours’ experience of court interpreting commensurate with the category of case complexity, as agreed by the Secretary of State in conjunction with relevant professional bodies.”Member’s explanatory statement
This amendment would establish minimum standards for qualifications and experience for interpreters in courts and tribunals, along the lines of the Police Approved Interpreters Scheme.
Baroness Coussins (CB)
My Lords, I remind the House of my interests as vice-president of the Chartered Institute of Linguists and co-chair of the All-Party Parliamentary Group on Modern Languages.
I am very grateful indeed to the Minister for the interest he has taken in the issue of court interpreters and my concerns about the weaknesses of the present system, as well as for his willingness to meet several times and discuss candidly the detail of my amendment. This dialogue has been very constructive and leads me to be hopeful that we can reach a positive outcome.
My amendment seeks to establish minimum standards for court interpreters based on their qualifications, experience and registration with the National Register of Public Service Interpreters—NRPSI. Obviously, I am not going to repeat the detail of the case I set out in Committee, but perhaps I could just comment on the response I had at that stage from the noble and learned Lord, Lord Stewart of Dirleton.
There seemed to be three main reasons for rejecting my amendment. The first was that the MoJ system is already fit for purpose. For example, the noble and learned Lord said:
“All interpreters are required to complete a justice system-specific training course before they are permitted to join the register.”—[Official Report, 22/11/21; col. 659.]
This refers to the MoJ’s register. My understanding, however, is that that course takes four hours to complete, which does not strike me as remotely adequate for such potentially demanding and specialist work. It remains the case that the current MoJ register will admit people who would not be considered sufficiently qualified or experienced to be on the NRPSI—nor, indeed, on the Police Approved Interpreters and Translators scheme. The DPSI at level 6 is considered by all the specialist professional bodies in the field to be the correct minimum qualification for any court interpreting work.
The noble and learned Lord, Lord Stewart, also claimed that the MoJ system is fit for purpose because the complaint rate is less than 1%. I had claimed that the failure rate following spot checks was 50% but, in our subsequent meetings and correspondence, the noble Lord, Lord Wolfson, has clarified that the 50% figure I quoted in Committee applied only to referrals of quality-based complaints, and that the overall failure rate is actually 5% of all assessments. I still think that a failure rate of 50% after a referral from a court or mystery shop is unacceptably high. I would also contend that even an overall rate of 5% out of hundreds of thousands of assignments each year could potentially lead to a significant drain on the public purse through the costs of rescheduling adjourned hearings or keeping defendants in custody for longer—not to mention the avoidable stress and confusion for victims, defendants and witnesses.
Secondly, the noble and learned Lord, Lord Stewart, thought that my amendment fell short because it would not be right to take a one-size-fits-all approach, given that there are various levels of case complexity. But I agree with that: the point is explicitly acknowledged in my amendment, which specifies that the number of hours’ experience required should reflect case complexity and, crucially, should be agreed between the department and “relevant professional bodies”. In discussions with the noble Lord, Lord Wolfson, over the past few weeks, it has been repeatedly pointed out to those of us supporting this amendment that there are no fewer than 1,000 different types of assignment. The mind boggles—well, mine does anyway. I would certainly love to see a list spelling out exactly what those 1,000 different categories are.
Thirdly, the obstacle of the rules on public procurement was raised as a reason why my amendment’s provision for the NRPSI registration was unacceptable. I still find this a bit odd and confusing as an argument, as the NRPSI is not a membership organisation, nor a supplier. It is worth remembering that it was established at the request of the judiciary in the first place after the interpreting calamity of the Begum case. It is surely just akin to the professional registers in many other fields, such as teaching, medicine or law, from which we would always expect and require practitioners to be drawn. There appears to be at least one significant precedent in that the Metropolitan Police Service mandates that all its listed interpreters must have continuous NRPSI registration. Of its annual 25,000 face-to-face assigned interpreters, only 2.5% are not NRPSI registered, and then for a very good reason—for example, to do with the need for a rare language speaker or the need for a super-speedy appointment in highly urgent or dangerous situations.
I accept, of course, that this whole system is complex and that there are inherent challenges to any solution that I have not touched on today, such as the supply chain of interpreters. I also acknowledge that the wording of my amendment may not be perfect, although I have tweaked it since Committee to try to build in a transition period, as suggested in Committee by the noble Lord, Lord Marks. But I have been encouraged by the approach of the noble Lord, Lord Wolfson, in our discussions in that he acknowledges that if there are improvements that could or should be made, it would be sensible for them to be made before the current contract is due to be retendered in 2023. The challenge, of course, is to get to the bottom of precisely what those improvements are, and I am extremely concerned that there should be no more delay in establishing and achieving them than absolutely necessary. The current contract expires in October 2023, so presumably a revised tender will need to be issued some months before that in order to achieve a seamless transition.
With this in mind, we raised with the Minister the possible option of conducting a detailed and independent inquiry into exactly what the standards of qualifications and experience and other matters should be. I am hopeful that the Minister might be able to say something about that proposal when he comes to reply today. Such an inquiry would need to be conducted on a genuinely independent basis and cover all aspects of the MoJ’s responsibility for interpreting services, with a commitment to apply its findings to the next contract. I believe that such an independent inquiry would also have the credibility to help attract back into public service the many hundreds of professional interpreters who have left because of low pay, bad conditions or a lack of acknowledgement of their professional status. This exercise would have the potential to make a long-term strategic impact on the service, as well as knocking into shape the terms of the next contract. I look forward to the Minister’s response and beg to move.
Lord Pannick (CB)
My Lords, I pay tribute to the noble Baroness, Lady Coussins, for pursuing this important matter, and to the Minister for his engagement on a number of occasions with those of us who support the noble Baroness and are concerned about this. During those discussions, I expressed the view that it is striking that there is such a radical difference of view between the noble Baroness, Lady Coussins, with her enormous expertise in this area, and civil servants as to how the system is working in practice. I therefore suggested to the Minister that one way forward in this important area would be for him to agree that there should be an independent assessment—an independent inquiry—of an outfacing nature that can rely on the expertise of the noble Baroness, Lady Coussins, and others in order to inform the department as to the way forward. That seems to be a constructive way forward, and I very much hope that the Minister will be able to say that the department is prepared to do that.
Lord Hope of Craighead (CB)
My Lords, I too pay tribute to my noble friend Lady Coussins for the determination with which she has pursued this argument. As a user of the court, it is crucial to have complete confidence in the interpreter. Most of us do not have the complete gift of language—which perhaps my noble friend has—over a wide range of languages. You have to rely on the interpreter; confidence in what the interpreter is doing is crucial to the way the proceedings are conducted, so the highest standards should be aimed for. I must say, I am surprised that it is taking so long for the advice my noble friend has offered to be accepted and put into practice.
Lord Hogan-Howe (CB)
My Lords, I support the noble Baroness, Lady Coussins, as I have from the beginning, as a layman who does not understand an awful lot about interpreting standards but does understand the importance of evidential matters going through tribunals needing to be of a high standard.
What has confused me from the beginning—as I think the noble and learned Lord, Lord Hope, suggested —is that the Government’s response is that they do not prefer the standard that the noble Baroness, Lady Coussins, offers and that they therefore want to rely on the standards that are in the contract. However, it is not at all clear what that standard is, because the easiest response would be that the standard in the contract is far better than the standard she offers, but no one is saying that. There is clearly a differential standard for different acts; the Minister mentioned something of the order of a thousand different scenarios leading to different qualities of interpretation, but I am not sure that that would lead to a thousand different standards.
It is clear from the Metropolitan Police’s experience that, broadly, there is a split between face-to-face contact and other types, but the real split is whether the material interpreted is going to be evidential. Often, a person who is arrested needs to have a conversation with the charging sergeant about who they are and whether they need medical attention—all the common tactical things that people need to talk about—or the police may need to talk with a victim at the scene of a crime. That can be achieved by telephone. That immediate conversation has some value, of course, but not in the context of an evidential test. When it comes to an interview, a prosecution decision and, obviously, attendance in court, it is vital that that standard is of the highest level.
Therefore, I support the amendment of the noble Baroness, Lady Coussins, but if it cannot be achieved in this Bill, I think the proposal for an independent inquiry is a reasonable next step.
Lord Marks of Henley-on-Thames (LD)
My Lords, I spoke at length on this amendment in Committee and attended the meeting with the noble Lord, Lord Pannick, the noble Baroness, Lady Coussins, and the right reverend Prelate the Bishop of Leeds, who also signed the amendment. It has led to a full and thorough response from the Minister, and we expect him to announce a full and independent review. If that is right, that is extremely welcome news. I join the noble Baroness, Lady Coussins, in saying that it would be extremely helpful to have an indication of the timescale of such a review—if that is to be announced—because of the imminence of the renewal of the contracts. It would also be extremely helpful for us to have an indication of how the independence of the review will be assured, because independence is a relatively flexible word, and it is an extremely important part of this.
For all the reasons given by the noble Lord, Lord Hogan-Howe, the standard of interpretation is incredibly important to the maintenance of justice where there are litigants, parties or witnesses for whom English is not their first language. We talked about the importance of having the undisguised and unchanged evidence of the witness before the court in an evidential case without the interpreter’s view of matters intervening. That calls for the very highest standards of quality and for any review to be completely independent.
Lord Berkeley of Knighton (CB)
My Lords, I too spoke in Committee, and I have been copied in on the very helpful response from the noble Lord, Lord Wolfson. I felt he was trying to embrace this important subject. To extend the point made by the noble and learned Lord, Lord Hope, a little, one has to understand that when people are in court, it is not just a question of interpretation; quite often, it is case of compassion and being able to communicate with a witness or a defendant. If there is a language barrier, those are the first things that tend to go out of the window.
Just to lower the conversation slightly, I mentioned in Committee an occasion on which the word “cow” was confused with the word “car”—a cow was observed travelling at 90 miles an hour.
I think it would be good to finish my brief contribution to this debate by repeating the explanatory statement of the noble Baroness:
“This amendment would establish minimum standards for qualifications and experience for interpreters in courts and tribunals, along the lines of the Police Approved Interpreters Scheme.”
I find it very hard to see why the Government would not want to embrace that.
Baroness Chapman of Darlington (Lab)
Clearly, we agree with everything that has been said. Rather than repeat it all, I will just compliment the noble Baroness, Lady Coussins, on her amendment. We will listen carefully to what the Minister has to say.
Lord Wolfson of Tredegar (Con)
My Lords, having begun my response to the previous group with an apology for getting a date wrong, I then went on to get another date wrong. The case of Antia is, for those noble Lords keen to read it, 2020 and not 2000. The rest of the legal analysis, I hope, remains unchanged. I will seek to avoid any reference to dates in what I am about to say.
This amendment would restrict the Ministry of Justice to appointing in our courts and tribunals only interpreters who are registered on the National Register of Public Service Interpreters and who possess a level 6 diploma in public service interpreting or comply with the national register’s rare language status protocols. I place on record at the outset my thanks to the noble Baroness, Lady Coussins, the noble Lords, Lord Pannick and Lord Hogan-Howe, and others for their time engaging with me.
This is a very important issue. The noble Lord, Lord Berkeley of Knighton, noted that it goes to compassion, which is correct. As the noble and learned Lord, Lord Hope of Craighead, said, it also goes to the heart of the justice process. Anyone who has done a case with interpreters knows how important their role is. Indeed, I remember one case where, when the witness answered a question of mine, it was interpreted through a language I knew, and I knew that it had been interpreted wrongly. The judge also picked up that the interpretation was wrong and the witness himself criticised the interpretation, thus illustrating that the presence of the interpreter was unnecessary, and they were dispensed with.
We currently commission the service of interpreters for our courts and tribunals through our contracted service providers, thebigword and Clarion interpreting. The contract has a clearly defined list of qualifications, skills, experience and vetting requirements interpreters must meet, which have been designed to meet the particular needs of the justice system. The highest complexity level has qualification criteria comparable to those set by the NRPSI. They are sourced from the MoJ register, which is audited by an independent language service provider, The Language Shop. All interpreters must have 100 hours of experience and complete a justice system-specific training course before they can join the register.
As the noble Baroness said, the overall failure rate of all quality assurance assessments remains low, at 5%. We believe that illustrates the effectiveness of the auditing measures. Complaints about quality are also carefully monitored and independently assessed by The Language Shop. The complaint rate remains low, at less than 1%.
I am confident that there are no systemic quality issues with the current arrangements. None the less, I discussed this in some detail with the noble Baroness and others and we want to improve the quality of the service we provide, if that is possible, right across the justice system. That is why I am commissioning a full independent review of our existing qualifications and standards and the requirements for each type of assignment our contract covers. There are over 1,000 of these—I do not have a list to hand. This will also consider experience levels and rare language requirements. The review will be completed in time to inform the retendering of our contracts in 2023. It will establish a detailed framework of the standards and qualifications required for all assignments covered by the contracts, with clear explanations and justifications for each. The aim is to ensure that our contracts continue to meet the demands of all our court users.
We will continue to consult external stakeholders, including the NRPSI—its input is highly valued. We will learn from other schemes, including the police-approved interpreter and translation scheme, which adopts a level 6 diploma in public service interpreting as a minimum qualification standard, but with safeguards to allow for exceptions as needed to ensure timeliness in progressing a case.
We understand that there are issues about the availability of NRPSI-registered interpreters in some parts of the country—40% of them are based in London. Under our current arrangements, we can control and direct recruitment for our register based on geographical and language needs. This is tied in to the supplier’s obligation to fulfil bookings and ensures that we can dictate recruitment trends to meet our requirements.
I cannot say at this stage whether the police-approved interpreter and translation scheme would be suitable for the Ministry of Justice. We are concerned not to have a one-size-fits-all approach; even within a court setting, interpreting in a criminal court is quite different from interpreting, for example, in the family jurisdiction. It is not only court settings; there is telephone interpreting for court custody officers, and service centres require interpreting assistance to support court users paying fines or responding to general inquiries. However, we will look at the outcome of the review. All the options we consider will need to be fully costed in accordance with government policy for large government procurements to ensure value for money for the taxpayer.
The review will be undertaken. We have already started some work; we want to establish the most appropriate and cost-effective solution, one which meets the current and future needs of the justice system and promotes the continued development and progression of new entrants into the interpreting profession. With renewed thanks to the noble Baroness for her time and the discussions we have had, including on the option of a full independent review, which I hope I have set out clearly, I respectfully urge her to withdraw the amendment.
Baroness Coussins (CB)
I thank all noble Lords who have contributed to this debate. I especially offer my thanks to the Minister and warmly welcome his decision to commission a full independent inquiry into the qualifications, experience and overall standards of all the different types of interpreters for court work. I look forward to seeing the terms of reference, the timetable and other details of this inquiry. I feel optimistic that professional bodies in the field will also feel encouraged by this development and welcome the decision. With that in mind, I beg leave to withdraw my amendment.
Lord Coaker
“Fast-track public space protection orders
In the Anti-social Behaviour, Crime and Policing Act 2014, after section 61 (variation and discharge of orders) insert—“61A Fast-track public spaces protection orders(1) A local authority may make a fast-track public spaces protection order where the conditions under subsections (2) or (3) are met.(2) The conditions under this subsection are—(a) the public space to which the order will apply is a school within the local authority area;(b) activities carried on, or likely to be carried on, in the vicinity of the school have had, or are likely to have, a detrimental effect on the quality of life for pupils and staff; and(c) consent for the order to be applied has been granted by—(i) the leadership of the school to which the order will apply,(ii) a chief officer of police of the police area in which the school to which the order will apply is located, and(iii) the leader of the local authority which will make the order.(3) The conditions under this subsection are—(a) the public space to which the order will be applied is a venue providing NHS vaccination services to the public;(b) activities have been carried on, or are likely to be carried on, in the vicinity of the venue with the intent of—(i) harassing or intimidating members of the public using the service, or staff or volunteers providing the service, or(ii) impeding members of the public from accessing the service, or staff or volunteers from providing the service; and(c) consent for the order to be applied has been granted by—(i) the NHS body with responsibility for provision of the service to which the order will apply, (ii) a chief officer of police of the police area in which the venue to which the order will apply is located, and(iii) the leader of the local authority which will make the order.(4) A public spaces protection order granted under this section may come into effect immediately on the fulfilment of the requirements in subsection (2) or (3).(5) Restrictions in section 72(3), that consultation must take place before an order is made, do not apply to public spaces protection orders made under this section.(6) The local authority must carry out the necessary consultation, as defined in section 72, following the making of an order under this section.(7) A fast-track public spaces protection order may not have effect for a period of more than 6 months unless extended under this section.(8) Before the time when a fast-track public spaces protection order is due to expire, the local authority that made the order may extend the period for which it has effect if satisfied on reasonable grounds that doing so is necessary to prevent—(a) occurrence or recurrence after that time of the activities identified in the order, or(b) an increase in the frequency or seriousness of those activities after that time.(9) A fast-track public spaces protection order under this section may not be extended for a period of more than 6 months.””Member’s explanatory statement
This would allow fast-track public spaces protection orders, which can come into effect immediately, to be made for schools and vaccination centres. Usual statutory consultation on the order would still be held, but would not delay the start date of the order.
Lord Coaker (Lab)
My Lords, I start this debate by deploring—I hope the Minister will pass this on—the anti-vaxxers who targeted the home of Sajid Javid MP, the Health Secretary, in early January when his children were there. We all deplore that.
Amendment 104FE fast-tracks public spaces protection orders. It would provide for fast-track public spaces protection orders—what we know as buffer zones—around schools and vaccination centres. It builds on existing powers in the Anti-social Behaviour, Crime and Policing Act 2014. It does not create new powers. The Government have already accepted the need for and use of these buffer zones. The amendment simply provides that, in specified circumstances, a buffer zone around a school or vaccination centre can be put in place immediately, without being delayed by a lengthy consultation process. The required consultation process would still take place, but it would do so alongside the operation of the order—community views would still be taken account of and changes would be made to the order as necessary.
Baroness Fox of Buckley (Non-Afl)
My Lords, as has already been noted, I raised concerns about an earlier version of this amendment in Committee, when I argued that, ultimately, it felt like it was legitimising a climate of demonising protests based on a subjective assessment of whether those protests were politically approved of or not.
Specifically, this new amendment relates to attitudes to Covid vaccines, which I want to look at. To put it beyond any doubt, I support the use of vaccines, although not vaccine passports or mandated vaccines—I say that too—but I do not believe that those who are opposed to vaccines, whether they are tennis players, NHS anaesthetists, fearful pregnant women or even conspiratorial cranks, should be criminalised or discriminated against because of their views, and I am concerned that aspects of that would happen from this amendment.
This new amendment would expand the use of the proposed fast-track public space protection orders beyond activities outside schools to venues providing NHS vaccination services to the public. We all have in mind those scenes—they have already been described—of vaccination centres being invaded, with equipment trashed and abuse shouted and so on. As it happens, like everyone else, I condemn that activity. However, if, as the amendment notes, such activities involve harassment, intimidation or impeding members of the public accessing a service that they want to access or impeding the staff or volunteers providing that service, surely we have laws on the statute book to deal with this, and those laws should be applied.
My question really is: why do we need to use PSPOs, and why are they proposed for non-specified activities outside schools, which could obviously be used, for example, to prohibit anything from leafleting to collecting names on a petition for any cause? In relation to the schools part of the amendment, anti-vaccine issues are not mentioned. I confess that I have long been an opponent of PSPOs. Sadly, I feel, they are used as arbitrary powers, issued by councils acting as though they run fiefdoms. I have written about the issue regularly in council publications such as the Municipal Journal since 2014 when they were brought in.
PSPOs do not ban any particular activities, which is why they are so broadly interpreted, often depending on the pet hates of local councils. Their name is something of a misnomer because, rather than protecting the public, they are used mainly to eject the public from public space, effectively privatising public space. Indeed, they are regularly used as dispersal orders for, for example, groups of individuals “hanging around”, often young people, or for political vigils or leafleters. Often, they are dispersed by authorised private security guards with the power to issue on-the-spot fines—one has to consider who would police the PSPOs in this amendment.
No wonder the civil liberties group the Manifesto Club has warned that PSPOs fundamentally undermine rights of free association and free expression in the public square. Indeed, in 2017, the Home Office recognised the overuse and overreach of PSPO powers and produced amended statutory guidance—but to no discernible effect as they are now being issued at an increased, and rising, rate.
The fast-track PSPOs proposed in this amendment have conditions, but those conditions simply use the phraseology usually associated with the orders in terms of activities that various individuals consider have
“a detrimental effect on the quality of life for pupils and staff”,
or whoever is being discussed. The phrase “detrimental effect on the quality of life” has been critiqued by many opponents of PSPOs as very vague and elastic. It has led councils in recent years to use PSPOs to restrict everything from cycling, charity collecting, rough sleeping, walking dogs without leads, begging and busking. A couple of dozen councils have used that phrase and PSPOs to ban—two of my favourites—swearing and loitering. I do not know whether any noble Lords have ever dropped their kids off at the school gates, but loitering in groups—often involving a little swearing, I confess—is almost a compulsory activity for parents.
More seriously, as the Manifesto Club has regularly noted, the test of “detrimental effect” is an unprecedentedly low legal test for criminal intervention, but there is also no requirement to show any substantial evidence of such detrimental effect. There is no proper democratic oversight locally, with no requirement for PSPOs to be passed through internal scrutiny procedures within a council.
Normally there is a requirement for consultation, but, as has been explained, this amendment would dispense with that. The consultations are usually fairly procedural, and many PSPOs have been passed with as few as 10 respondents. Anyway, in this instance we would remove even the formal need for consultation. Therefore, the PSPO would be issued. It would be signed off, as we have been told, by three people—the police chief officer, the school leadership and the local authority leader—and the public would be consulted only after the order is issued, which is laughable and contemptuous.
Also, there is no workable system for appealing PSPOs locally beyond an appeal to the High Court. Finally, to note the wording of the amendment, these fast-track PSPOs can be issued for activities not just carried on but
“likely to be carried on”,
and that not just have had a detrimental effect but are “likely to have” a detrimental effect. These are weasel words, wholly open to speculation and a pre-crime-like interpretation.
I hope those noble Lords who, on Monday, will oppose the swathe of legislative proposals that threaten to close down protests and chill the rights of free assembly will also oppose this amendment. I find the views of hardcore anti-vax protesters distasteful, nihilistic and absolutely things I would argue against. I actually feel the same about Extinction Rebellion, but that misses the point. We need to be very careful about picking and choosing which protesters we support. If there is a problem of obstruction or any kind of unlawful activity outside schools or vaccine centres it should be dealt with, but I fear this amendment would give succour to the Government ahead of Monday’s battles. I will therefore oppose it.
Lord Walney (CB)
My Lords, surprisingly, my remarks will overlap substantially with the noble Baroness’s speech, although they come from a somewhat different perspective.
I thought that the opening speech from the noble Lord, Lord Coaker, was convincing and I look forward to hearing the Minister’s reply before I make my mind up on how to vote. But it left me wondering whether this approach ought not to be actively considered for extension around not simply schools and vaccination centres but seats of democracy such as Parliament and potentially local councils, where we have seen pretty disgraceful activities that are clearly designed to intimidate elected members—anti-vaccine activists have pursued a highly aggressive strategy. It is notable that that is off the table in the amendment.
There is no reason why this issue should necessarily be covered, but—this is my point of overlap with the noble Baroness—I raise it because I will be listening with interest to what Members of the Opposition and from all sides of the House say about the very controversial measures that are due to come on Monday. I share the concern that we have a real tendency as a House and a legislature to find ourselves in instinctive agreement with measures designed to avoid intimidation from groups whose causes we do not agree with; yet we find ourselves, often subconsciously, contemplating what can be equally intimidatory methods of protest deployed in the name of a cause whose broader case we do agree with. It is really important that we guard against doing that.
Lord Paddick (LD)
My Lords, the noble Baroness, Lady Fox of Buckley, talked about demonising protest—I bet she is looking forward to Monday. The noble Lord, Lord Walney, talked about exclusion zones around Parliament; there are significant powers to protect Parliament from this sort of thing.
As the noble Lord, Lord Coaker, has explained, this amendment is a significantly improved version of the one considered in Committee, with numerous safeguards. Unlike the noble Baroness, Lady Fox of Buckley, I am “glass half full” man: I think that the safeguards here are actually quite significant, in that it requires the consent of the leadership of any school affected or of the NHS body responsible for any vaccination centre affected and, in addition, of the local police chief. Generally speaking, the police are very averse to making political decisions and siding with one particular protest group against another, so that is a significant safeguard. It also requires the consent of the local authority leader, which is another significant safeguard. The potential for selective protection orders based on the issue being protested about—the one the noble Baroness raised in Committee—is therefore significantly reduced.
In addition, contrary to what the noble Baroness said, the statutory duty to consult the public on the order is not waived at all but can take place concurrently with the order taking effect, if the matter is urgent. It also cannot last more than 12 months; the initial grant is for six months, and it can be extended only once. If only the Government were to take such a reasonable approach to the renewal of orders in other aspect of the Bill.
In the light of recent events such as the invasion of the test and trace centre in Milton Keynes last month, we have seen the importance of such orders and the need for the police to secure intelligence and take action to prevent such interference with the vaccination effort, which does not seem to be going away any time soon. There is ample recent evidence of the need for this amendment, and we support it.
Baroness Williams of Trafford (Con)
My Lords, I start by joining the noble Lord, Lord Coaker, in deploring the anti-vaxxers who stood outside my right honourable friend Sajid Javid’s house. I deplore it every time they disrupt our public services such as schools and hospitals. More recently, they have taken part in some very disruptive and abusive activity. On the point about Parliament made by the noble Lord, Lord Walney, we will of course debate that on Monday.
I actually share the aims of this amendment, and I am grateful for the further opportunity to debate the policing of anti-vax protests and consider the merits of fast-track public space protection orders, or PSPOs. The amendment is very similar to one debated in Committee that sought to provide the fast-track PSPOs to protect schools from harmful protests, but it goes further, also allowing for fast-track PSPOs outside premises providing NHS vaccination services. It also removes the need for a consultation in advance of a PSPO outside these premises being implemented.
As the noble Baroness, Lady Fox, pointed out, I set out in Committee the powers of the police to protect pupils, teachers and staff from disruptive protest activity outside schools, as well as the benefits that some of the new measures in the Bill will bring. Many of these existing or new powers apply also to disruptive protests at vaccination sites. I sympathise with the noble Lord’s intention to protect schools and vaccination sites from harmful protests, but this amendment will not help to achieve that aim. It removes the need for a consultation prior to a PSPO being put in place, instead requiring consent from the relevant school or NHS body, the chief of police, and the leader of the local authority. This is unlikely to materially speed up the process in which a PSPO can be implemented as there is currently no minimum consultation period required before a PSPO can be put in place. I struggle to understand how we can implement the PSPO and run a consultation concurrently.
It is also important to note that in making a PSPO under this amendment a local authority would still be accountable, potentially in legal proceedings, for demonstrating that the order is compliant with Articles 10 and 11 of the ECHR. Consultations can provide supporting evidence to demonstrate this compliance, meaning that a local authority could find itself subject to increased legal risks if it does not perform a consultation prior to implementing a PSPO, even if legislation states that it is not necessary. I share the unease of the noble Lord, Lord Walney, and the noble Baroness, Lady Fox, that it would, at the hands of a very few people, allow local areas to pick and choose which protests were politically acceptable.
Although I support the underlying aims of the amendment, in the sense that no one working at a school, hospital or other vaccination site should be subject to abusive or highly disruptive protests, powers are in place, which we are strengthening through the Bill, to assist the police and others to tackle such protests. We will be discussing many of them on Monday. The powers already include the ability for local authorities to make, at speed, a PSPO. Given this, I hope that the noble Lord, Lord Coaker, is happy to withdraw his amendment.
Lord Coaker (Lab)
My Lords, I thank the Minister for her reply and for the courteous way in which she always tries to engage with the issues. I also thank all noble Lords who joined the debate. The noble Baroness, Lady Fox, can call me naive, but I was, though the amendment and the changed amendment, trying to address some of the concerns that she raised, particularly in trying to make it clear that it was not a blanket ban but was dealing with a very specific problem that has resulted in and around some schools—
Baroness Fox of Buckley (Non-Afl)
My Lords, I was reading my speech, but I acknowledge that the noble Lord said that in his opening. It is perhaps an unintended consequence, but can he see from the Minister’s response that it fuels arguments that they will be using on Monday? That was always my concern.
Lord Coaker (Lab)
That is a different point. I accept some of that. It was not what the Minister was saying, but I take the point. The noble Baroness raises legitimate points. I do not agree with her on many of them, which is fine. It is not a problem. It is the whole point of debate and discussion. The fundamental point is that the amendment seeks to do what the public space protection orders do not do. They are not a blanket ban on protests. They do not allow people to pick and choose in the way that some people, including the Minister, have highlighted.
I agree with the noble Lord, Lord Paddick, and do not believe that school leaders, local authority leaders, NHS vaccine providers and the chiefs of police for an area would pick and choose protests. I do not believe it. The school leaders in our country know and understand what causes alarm and distress to parents and pupils in their area and they would not abuse that power—nor, in 99.9% of cases, would local chiefs of police, NHS vaccine providers or local authority leaders of whatever political party. They are upstanding public servants who understand the responsibility that comes with their post and would not seek to use one of these orders inappropriately, just because there happened to be a protest outside a school.
I was a deputy head teacher. There were numerous protests at different times, about different things. We did not seek to ban or stop them. One occasion was when I reintroduced school uniform. There were people saying how ridiculous it was that Coaker was reintroducing school uniform, but I did not stop them doing that; nor do I believe that school leaders, police chiefs or others in an area would do that.
The amendment seeks, for particular circumstances that we have all seen on our televisions and read about in our newspapers, to give an immediate power for people to act reasonably, not to prevent any protests but to deal with a specific situation where alarm or distress is being caused. Whatever the current law says, it is not dealing with people in that situation. All we seek, in a reasonable way, is to give those people the power, in situations where there is consensus and agreement, to take immediate action to protect those going for a vaccine, or children, staff or parents going to school. It is perfectly reasonable to ask the law to provide that and, because of that, I ask to test the opinion of the House on my amendment.
Lord Blencathra
“(4) Part 6 of Schedule 4 does not have effect unless the College of Policing is re-established under an Act of Parliament.”
Lord Blencathra (Con)
My Lords, this amendment is in my name and those of the noble and learned Lord, Lord Judge, and my noble friend Lord Hodgson of Astley Abbotts. I say to my noble friend Lord Sharpe that I am sorry that Ministers in this House once again have to take the brunt of my ire over Home Office matters for which they are not responsible and entirely blameless. I also say to the Government that I am not a natural rebel. I made the mistake of sitting in on the last debate and was utterly convinced by the arguments of the noble Lord, Lord Coaker, but nevertheless as a former Chief Whip felt that I had better support the Government, only because I had not told them in advance that I would rebel.
The College of Policing employs more than 700 people, and last year spent more than £47 million. The Bill, like others before it over the last seven years, gives the college the right to prepare guidelines to be implemented by the police, which will affect the public. In this case, it is pre-trial bail. Your Lordships may have assumed that a body called the College of Policing to which the Home Office has been granting regulatory authority is a statutory body set up by Parliament, and that perhaps you had missed the Bill setting it up when it went through this House. That is what I thought until recently, when I discovered that it has no statutory authority whatever but is a private limited company, limited by guarantee. Not many people know that, as the great Sir Michael Caine denies he ever said. It was announced by the then Home Secretary, Theresa May, on 24 October 2012, and this is what she said—sorry, this is not what she said; it was merely a Written Statement, with no questions asked:
“My Department has now legally incorporated a company limited by guarantee under the name ‘College of Policing Limited’. The college will become operational in December 2012. The college will be established on a statutory basis as soon as parliamentary time allows.”—[Official Report, Commons, 24/10/12; col. 62WS.]
Nine years and 20 Home Office Bills later, there has apparently been no time to put this powerful arm’s-length body on a statutory footing. Do your Lordships believe that this is simply an oversight? I am afraid that I am a cynical person, and I do not. I suggest that it is a deliberate attempt by the Home Office to avoid parliamentary scrutiny for this organisation.
I serve on two arm’s-length bodies and they, like dozens of others, were created by statute. It is not rocket science for the Home Office to simply copy the usual format of 10 to 15 clauses setting out the general powers of the organisation and a schedule with the technical stuff about salaries, appointments and all that sort of thing. Our statute book is full of such creations of statutory arm’s-length bodies. Indeed, the Home Office has done all the homework already; this private company, of course, has a memorandum and articles of association, which Companies House requires. It is not rocket science for the Home Office simply to lift all that from the memorandum and articles of association and add it to a Home Office Bill such as this Christmas tree one, or introduce a new one. I can conclude only that the Home Office has deliberately not done it, and it cannot say that it has had no time to do that after nine years of this limited company operating.
Let me make it clear that I do not challenge the honesty, integrity or desire of the police officers and civilians running this organisation to try to do good and reduce crime. Indeed, in my time as a Police Minister I never met a policeman who did not believe that if he or she had that little bit of extra power—to be able to take the fingerprints and DNA of everyone and keep them on file in case they are needed—they would make a huge difference in cracking down on crime. They are right, of course, but if one were to grant those powers it should be done by Parliament. I do not challenge its honesty and integrity, but I challenge its right to exist as a powerful arm’s-length body without a single minute of parliamentary time, either in the other place or in this House, devoted to considering its establishment, powers, rights and duties.
If I may say so, it gets worse. In a recent Parliamentary Answer, the Home Office confirmed that the college has put in a bid for a royal charter. Can your Lordships imagine that—a private limited company, already exempt from parliamentary creation, getting a royal charter? Who do they think they are? Of course, if it got it and if MPs or Peers—someone like me—then began to question its activity, it would say that it had a royal charter and was above repute, and how dare I question them and to mind my own business. My instinct tells me that this is simply not right.
Lord Judge (CB)
My Lords, I put my name to this amendment because it raises some important and delicate issues. I follow the noble Lord in asking: can we please have a date? Can we at least be told that somebody is considering the position of the College of Policing? As he said, it is a company under the control of the Secretary of State with no statutory basis.
There is no problem with the College of Policing issuing guidance to police officers about how police officers should go about their responsibilities, as that is what it is there for. However, the college, a non-statutory body, is being required or invited by the schedule to this Bill—we are not going to look at that now, because it is too late and we all want to go home and there is a lot more business to come—to issue guidance which will impact on bail decisions. Bail is a question of liberty; it will impact on that. We are told not to worry because there is no liability one way or the other for not following the guidance, but we are also told that a court considering an issue such as this may take into account whether the guidance issued by the College of Policing on this issue has been followed. My point is very simple and very small compared to the major issue raised by the noble Lord, Lord Blencathra. It is: should instructions or guidance issued by the College of Policing have any impact whatever on a decision made by a court that a citizen should or should not be granted bail?
Lord Hodgson of Astley Abbotts (Con)
My Lords, I support my noble friend Lord Blencathra. He and I have been chasing down issues with secondary and, tonight, tertiary legislation for some months and have produced reports to that effect that I think have found favour in your Lordships’ House, bearing mind the number of noble Lords who wished to speak in the debate tabled by the noble Baroness, Lady Cavendish, last Thursday.
Government by Diktat, the title of a report by the Secondary Legislation Scrutiny Committee, which I chair, is alive and well and living with the situation that my noble friend wishes to remedy. The issues of regulation and guidance, of who provides the guidance and of how enforceable it is are questions with which the SLSC has been struggling. However, if we have been struggling with that, when it comes to this latest idea the guidance will not even touch the sides of the regulatory process of your Lordships’ House. We as a House will be presented with a series of faits accomplish, and unless somebody is able to persuade the usual channels to find time to debate something, we will just be told, “There it is and off we go”.
That is not a satisfactory situation. It is part of a much wider issue of how we deal with secondary and, in this case, tertiary legislation, but my noble friend Lord Blencathra has done a valuable service by bringing this case to the surface. We will make progress in this area only if every time we see this sort of thing emerging we raise it, talk about it and try to deal with it. That is why I support the amendment and put my name to it.
Lord Paddick (LD)
My Lords, as the noble Lord, Lord Blencathra, said, in December 2011 the then Home Secretary announced the establishment of the College of Policing and the Government said that as soon as parliamentary time allowed, the College of Policing would be established as a statutory body, independent of government.
Now it is 10 years later. In addition to supporting what other noble Lords have said, I say that the College of Policing being a limited company undermines its credibility, which is not strong among operational police officers in any event. There is an anti-intellectual culture in the police service and the very name gets operational cops’ backs up. To then see documentation that the college produces marked as copyright of the College of Policing Ltd, an organisation headed by someone called a chief executive rather than a chief constable, further undermines its status and credibility in the eyes of operational police officers.
For these reasons, we support bringing forward legislation this calendar year that would go further than re-establishing the professional body for policing under an Act of Parliament. The college should be renamed and the head of the organisation should have the title “Chief Constable”.
Lord Coaker (Lab)
My Lords, I have listened carefully to this short debate and the points made by the noble Lords, Lord Blencathra and Lord Paddick, and the noble and learned Lord, Lord Judge. It will be interesting to hear what the Minister has to say about placing the College of Policing on a statutory basis. I also listened to the point made by the noble and learned Lord, Lord Judge, and it would be interesting if there were a long debate about pre-charge bail.
However, it is important to say something about the schedule that is mentioned in the amendment. We strongly support the provisions in the Bill on pre-charge bail. The House is aware that the changes that have been brought forward are known as Kay’s law, after Kay Richardson, who was murdered by an abusive ex-partner after he was released when he was under investigation, rather than placed on pre-charge bail. Our concern, picking up the point rightly made by the noble and learned Lord, Lord Judge, is that the guidance under Part 6 of Schedule 4 should be clear and effective and should accurately reflect the necessary changes made to the use of pre-charge bail under the Bill.
We understand that this was brought forward as Kay’s law, and all of us will have abhorred the horror of what happened. Notwithstanding that, it will be interesting to hear the Minister’s response to all of that.
Lord Sharpe of Epsom (Con)
My Lords, I thank my noble friend Lord Blencathra for explaining the amendment, which in substance relates to the power conferred on the College of Policing to issue guidance about pre-charge bail. I recognise that my noble friend has made a wider point about the appropriateness of the College of Policing in its current guise issuing any operational guidance to the police.
The set of reforms in Schedule 4 to the Bill, known collectively—as the noble Lord, Lord Coaker, mentioned —as Kay’s law, aims to establish a pre-charge bail system which is fairer and more efficient, with the removal of the presumption against bail and changes to pre-charge bail timescales. My noble friend’s amendment would require the College of Policing to be placed on a statutory footing before it can issue guidance on pre-charge bail. In practical terms, this would mean that the guidance, and therefore the whole pre-charge bail reform package, would need to be delayed while an appropriate legislative vehicle was found for this fundamental change to the college’s status.
Guidance to underpin these changes is essential to secure the effective implementation of the reforms, and I think I should stress again that the guidance is about pre-charge bail, not court-ordered post-charge bail. Policing partners have made it clear throughout the drafting of the provisions that clear statutory guidance aimed at operational experts is required to build a system which is consistently applied across all forces.
I understand that my noble friend’s amendment probes the issue of the College of Policing’s status, but it is important to note that a number of the college’s functions have statutory underpinning. Among other things, Sections 123 to 130 of the Anti-social Behaviour, Crime and Policing Act 2014 enable the college to issue codes of practice for chief officers and guidance about the experience, qualification and training of police staff. The provisions in Schedule 4 to the Bill enabling the college to issue guidance about pre-charge bail would thus be an extension of these existing powers.
As the college is the professional body for policing, the Government consider it entirely appropriate that it should be able to issue guidance which police officers are required to have regard to when exercising functions to which the guidance relates. The Government do not believe that the fact that the college is not a body established by statute alters that fact. It is relevant, however, that the guidance to be issued under Part 6 of Schedule 4 is subject to the approval of the Home Secretary, who is, as my noble friend Lord Blencathra said, accountable to Parliament, and must be laid before Parliament. It is therefore open to either House to scrutinise the guidance at any time.
The college does hold the long-term aim of achieving royal charter status, as my noble friend noted, but the noble and learned Lord, Lord Judge, asked whether its status was being considered in any other ways. It is. The college chair, my noble friend Lord Herbert of South Downs, is currently undertaking a fundamental review of the college, which may include recommendations about its status. Obviously, the Government will consider the recommendations flowing from the review when it is published, but I am afraid I do not know when that will be, to pre-empt any questions.
As I indicated, regardless of the college’s legal status, we believe it is entirely proper that it should be able to issue guidance of this kind to which police officers must have regard. I should reiterate that the practical effect of this amendment would be unacceptably to delay the implementation of these necessary reforms, which, as the noble Lord, Lord Coaker, noted, have wide support and would better help protect the victims of crime. It is crucial that Kay’s law is delivered in a timely way, supported by robust guidance issued by the professional body for policing, and the current provisions do exactly that.
I am afraid that I cannot answer my noble friend Lord Blencathra’s specific question about when space may be found to alter that. I would be surprised if that answer surprised him, but I hope that, having had this opportunity to debate the role and status of the College of Policing, he will be content to withdraw his amendment.
Lord Blencathra (Con)
My Lords, I think that my noble friend has inadvertently answered the question of when it will be done. It is quite clear, reading between the lines, that the Home Office does not intend to do it ever. So do the Home Office, he and the Home Secretary still stand by the promise of the then Home Secretary in 2012 that this would be put on a statutory footing?
If I may say so, the Home Office, in drafting my noble friend’s speech, has been a bit disingenuous. It knows fine I am not opposed to the schedule. The schedule was the mechanism by which we could debate the principle of the college not being on a statutory footing. I discussed this with the Public Bill Office. I looked at various ALBs, including the two of which I am a member, and asked the staff whether I could lift 12 clauses from one of them, change the name to the College of Policing and lift the schedule. They said, “That would be 12 clauses to debate. It would be easier, Lord Blencathra, just to find a mechanism to say that the college must be put on a statutory footing before this schedule is approved.”
I am not opposed to the schedule—no one is. It was a mechanism in order that we could debate the principle. I must say that I am rather concerned by my noble friend’s reply—but also how delighted I am that, on this occasion, the noble Lord, Lord Paddick, and I are on the same side, despite some strenuous disagreements in the past few weeks. I must say to my noble friend that, if I had realised, and had had the nous and wit beforehand to discuss with the Lib Dems and possibly the Labour Party what this amendment was about, we could have had agreement tonight and I could have forced it to the vote and won it. Of course, I am not going to do that tonight, but I can tell the Home Office that this issue will not go away. I detect the mood among other parties here, and I hope among my noble friends as well, that we must honour the Home Secretary’s promise to have this body put on a statutory footing.
Lord Beith
Member’s explanatory statement
This is intended to address a potential gap in the law related to other teaching or supervisory positions/ of trust.
Lord Beith (LD)
My Lords, in moving this amendment, I seek to bring music, drama and dance within provisions that the Government have included in the Bill in respect of sport and religion. The Bill takes the Sexual Offences Act 2003 and imports the position of trust of someone who is training in sport or religion into the mechanism of the Sexual Offences Act. That makes the concept of positions of trust apply not simply in institutions such as schools but to individuals carrying out training on a private basis or as part of a community organisation and in any number of other ways.
It has puzzled me from the beginning how the Government have identified sport and religion alone as fields in which abuse can take place—when people who have close personal charge in a training role of a young individual can have undue influence that could be put to the wrong use, as a means of sexual abuse or a route into sexual abuse. I do not know anybody who believes that this problem exists only in the areas of religion and sport and not in other areas where very close contact is involved in training, instruction and development. The Government concede one small part of my amendment by taking the view that dance is already included, which must be true, in the wording of the legislation, if the dance is preparation for “competition or display”. I can imagine that an Irish or Scottish dancing group for which individual training was taking place might well be covered. I am less convinced that professional ballet might be covered; that is an area in which we have seen very serious abuse of people undergoing training by a professional ballet instructor.
It is very difficult to understand why the Government have alighted on those two areas alone and not others, because the characteristics of the situation are very similar in all these different areas of activity. There are some distinctive features but so many similar characteristics: being alone with someone quite a lot; a competitive situation in which the person being trained is desperate to be included in the display or team; a desire to please; and the developing of a close personal relationship. They are all elements that we find in a number of other areas, so I wonder what the Government’s argument is.
I have had very helpful discussions with the Minister, who has been generous with his time and his staff’s attention to this matter. However, despite all his efforts, he has not succeeded in convincing me that the Government have a logical case at all. The argument that the Government resort to is that extending these provisions to music and drama would have the effect of raising the age of consent, so relationships that would not be unlawful at present would become unlawful if we extended them into music and drama. That is a very odd argument because that is precisely what the Government are doing for sport and religion: they say that the danger of predatory sexual activity is so serious that we must protect people aged 16 to 18 from this being done in a training situation, but only if their training is in sport or religion.
I simply do not understand that argument or why, if the Government think it is such a serious objection, they are prepared to do exactly that for sport and religion but not in other areas. If it is because of abuse by sexual predators that such provisions are being considered and provided for those two areas, it makes no sense that these other areas are excluded. However, they can be included subsequently because the Government have given themselves the power by affirmative order in this legislation to add other activities, or indeed to remove either of the two activities currently included.
As I thought about this, I wondered what the circumstances were in which the Government would decide to add one of the areas that I have identified—music teaching or drama teaching—to the condition where people are regarded as having a position of trust when they are engaging in training. What would lead the Government to make that change? It would probably be cases coming to light. Such cases will come to light, because in all these areas we know that, despite many thousands of people conscientiously providing this kind of training, there are those who get into these roles with predatory intent, and others who might be regarded as having done so where perhaps it has arisen more innocently between two relatively young people but in a situation that we cannot simply ignore.
When those cases arise, the question will be asked: why is the perpetrator not being charged as someone in a position of trust would be? The answer will be that the Government decided that we did not need this provision in respect of music or drama, even though we need it for sport and religion. I think future Ministers will find that a very uncomfortable question to deal with from the Dispatch Box when we then point out that cases have arisen that could have been pursued under the kind of provisions that they see as necessary for sport and religion.
The Government are in an illogical position, and their only way out of it is at some point to decide to add other areas to the list. That may come at a time when more bad cases have arisen, and then they will have a difficult case to answer. I invite the Minister to think further about this matter, but for the time being I beg to move.
Lord Paddick (LD)
My Lords, as my noble friend Lord Beith explained, the amendment would extend the position of trust to include people who coach, teach, train or instruct on a regular basis in dance, drama and music.
I am sure the Minister will correct me if I am wrong, but I seem to remember him saying in Committee that the Government wanted evidence that these amendments were necessary before they were able to accept them. On 20 October 2021, the Guardian reported that a former ballet teacher and principal dancer at the English National Ballet had been sentenced to nine years in prison for more than a dozen counts of sexual assault against his students—I think that is dance. On 30 September last year the Sun reported that a drama teacher had been convicted of sexually abusing girls as young as 15 over five years, abusing his position of power and targeting teens who wanted to become actresses by sexually assaulting them at the theatre group he had set up in Northamptonshire—I think that is drama. The Edinburgh Evening News reported on 22 December, just last month, that a retired music teacher in Scotland had been sentenced to eight years’ imprisonment for raping and sexually abusing former pupils—I think that is music.
There is the evidence. What is stopping the Government now? We strongly support my noble friend’s amendments.
Lord Pannick (CB)
My Lords, the noble Lords, Lord Beith and Lord Paddick, make a very strong case. Clause 46 addresses a serious mischief: abuse of trust to gain sexual advantage. Like them, I cannot understand why this is to be addressed only in the context of sport and religion and not in the context of dance, drama and music.
I have one other question for the Minister. I also cannot understand why sport is only to be covered in relation to games in which physical skill is the predominant factor. What if there is an abuse of trust by someone who is training young people in chess or bridge? Why is it not equally objectionable if they take sexual advantage of those young people? Why should that not be included within the scope of the offence?
Lord Ponsonby of Shulbrede (Lab)
My Lords, I thank the noble Lord, Lord Paddick, for giving those very good and relevant examples of abuses of trust in dance, music and drama. I remember the points that the Minister made when we had this debate in Committee: he did indeed ask for examples, and I thank the noble Lord for providing them.
Surely, the similarity in everything that we are talking about is the nature of the relationship. It is a trusting relationship where a lot of time may well be spent alone with the young person, and it is open to abuse. The Minister had other arguments about why dance, music and drama should not be included, and I would be interested to hear how he rehearses them, given that there is unanimity in the views expressed in today’s debate. I do not know whether the noble Lord will press his amendment to a vote—I think probably not—nevertheless, I will listen to the Minister’s answer.
Lord Wolfson of Tredegar (Con)
My Lords, I am very grateful to the noble Lord, Lord Beith, for again raising this matter for debate. I am also grateful to the noble Baroness, Lady Jones of Moulsecoomb, who is not in her place but who gave up a lot of time last week to discuss this with me and the noble Lord.
I start by clarifying what we mean by a “position of trust” in this context—there may have been some confusion in Committee. The position of trust offences that we are discussing are set out in Sections 16 to 19 of the Sexual Offences Act 2003. They are necessarily narrow in scope and were never intended to apply in all scenarios in which a person might have contact with, authority over or a supervisory role over another person, even those aged under 18. Rather, these offences were created to tackle potentially abusive relationships between those under 18 and adults who were in specific positions of trust.
The existing positions of trust, as set out in Section 21 of the 2003 Act, were so drafted in an attempt to capture situations where the young person had a high level of dependency on the adult involved, often combined with some vulnerability. These included those caring for a young person in a residential care home, hospital, school or educational institution. In these contexts, the power dynamic is such that Parliament considered that any sexual activity should be criminalised.
The law was created, therefore, in recognition of the risk inherent in these types of position and the power the individual could have over the young person, which could impact on and affect the young person’s ability to consent. As such, the offences are committed as soon as the adult in one of these specified positions engages in sexual activity with the young person they are caring for; there is no need to prove any abuse or actual manipulation.
Lord Beith (LD)
To clarify, is the noble Lord saying that when the department looked into this matter it discovered more evidence in respect of sport and religion than in other fields, or some specific evidence that made it clear that this was much more likely to occur in sport or religion?
Lord Wolfson of Tredegar (Con)
As I say, we discussed this with a wide range of people, and it seemed to us from looking at all the material that sport and religion are the particular areas where law at the moment should intervene. I was coming to this point. The noble Lord presented the amendment saying, “Abuse can take place in other relationships too”, and of course he is absolutely right. However, abuse can take place where there is no relationship at all, and I am afraid it can take place in lots of different relationships. The question here is when the law should intervene to prohibit automatically, regardless of the particular 17 or 19 year-old and whether any abuse is taking place, to prevent any sexual contact. For those reasons, we consider that at the moment, we should intervene—I will come to the delegated power—in sport and religion only. Those settings involve high levels of trust, influence, community recognition, power and authority, and these figures are often well-established, trusted and respected in the community.
The report of the Independent Inquiry into Child Sexual Abuse found that religious organisations
“may have a significant or even dominant influence on the lives of millions of children”
and that
“what marks religious organisations out from other institutions is the explicit purpose they have in teaching right from wrong.”
Also, both sport and religion can provide a young person with a strong sense of belonging, whether in a team, a squad, a community or a faith. Such deep feelings held by the young can provide unique opportunities for predators to exploit or manipulate and can make it more difficult for the young person or concerned relatives to report abuse.
With respect to sport specifically, the physical nature of the activities means that coaches often ostensibly have legitimate reason physically to touch the children and young persons they are coaching. A sports coach will often have opportunities for closer and more prolonged physical contact compared with other roles, and this can be manipulated by abusers. That is why, to respond to the point made by the noble Lord, Lord Pannick, the 18 and a half year-old tennis coach would be prohibited from having a relationship with a 17 and a half year-old tennis student, but the 18 and a half year-old chess coach could have such a relationship —assuming for these purposes that chess is not a sport; I do not need to decide that because it is a physical definition that is in the Act—because there is not that scope, ostensibly, for a physical relationship.
The noble Lord’s amendment addresses dance specifically. Again, let me reassure him that the definition of “sport” in Clause 46 includes types of physical recreation engaged in
“for purposes of competition or display”.
We consider that this includes dance.
On the delegated power for the Secretary of State to amend new Section 22A, we accept that new evidence may emerge that may justify legislating further. Let me reassure the House and put it on record that this power will not be used lightly, but nor will we wait until instances of abuse are brought to our attention. We will proactively monitor data on child sexual abuse to ensure that we have the evidence needed to inform policy and act decisively where required, including evidence relating to the nature of roles and the institutional or organisational context, the level of power and control, other factors which we have seen contribute to abuse including opportunities for extensive unsupervised contact, and any inherent risks posed to young people as well as any data on incidents of concern. We are establishing channels through which partners such as the police, the CPS and local authorities can share emerging evidence and highlight patterns of behaviour.
Some of the behaviour that has been mentioned this evening and in Committee is already covered under other offences within the Sexual Offences Act 2003. Let us be clear: sexual activity with someone under the age of 16 is a crime. Non-consensual sexual activity such as rape is obviously a crime. I certainly heard the word “rape” in at least one example mentioned by the noble Lord, Lord Paddick. We are not talking about that—that is the point—because rape is already a crime. We are talking about sexual activity which would otherwise be lawful and consensual. I did not quite catch all the examples, but one cited was from a newspaper in Scotland where somebody had done something. How old was the person? If they were under 16, it is already caught. Was there consent? If there was not, it is already caught. One has to be careful when one is talking about evidence. We will be proactive in looking for that evidence and, for the avoidance of any doubt, we will of course re-read the examples that he gave us.
I accept that Clause 46 does not represent everybody’s preferred approach, but we believe that, on the material that we have at the moment, our approach strikes the appropriate balance between the protection of young people and the sexual freedoms and rights otherwise granted to 16 and 17 year-olds, while still allowing for rapid responses to emerging patterns of abuse in the future. For those reasons, I respectfully invite the noble Lord to withdraw the amendment.
Lord Paddick (LD)
Before the Minister sits down, can he clarify two points? First, is he saying that those people who teach drama, music and dance should be allowed to exploit their positions up until the point that they rape or indecently assault somebody, or does he agree with my noble friend that action should be taken to prevent that in the first place? Secondly, what is to stop a teacher of a young person who wants to engage in sexual activity with them distancing themselves from their teaching role to enable that to take place? How on earth does this amendment change the age of consent?
Lord Wolfson of Tredegar (Con)
I am struggling with that second point, but let me try to answer the first. On whether I am saying that anybody should be allowed to exploit a young person, the answer is no. Frankly, I do not understand how the noble Lord has reached that conclusion. There is nothing in the provisions about justifying exploitation or abuse up to the point of rape and assault. Maybe this is the confusion that he is under in relation to the second question. At the moment, if someone is caught in a position of trust—let us say, for example, a minister of religion who is 18 and a half—that person is prevented from having any sexual contact with, say, a 17 and a half year-old congregant. Before that person was ordained or appointed to the position as a minister of religion, that person could have had a sexual relationship with a 17 and a half year-old. That is why I am talking about changing the age of consent, because that 17 and a half year-old is able to sleep with an 18 and a half year-old but not if that 18 and a half year-old is, for example, her minister of religion. I hope that answers the noble Lord’s second question, although I confess I did not quite understand it because, if I may say so, it seemed to proceed from a fundamental misapprehension of what we are talking about.
Lord Beith (LD)
My Lords, one thing I want to say in response to the Minister is that, as I said earlier, there are many thousands of people engaged in the training of young people in many contexts, but particularly in some of these fields very close contact and continuous interchange is involved, including activities in which the contact is physical. That applies not just to sport but to teaching someone how to hold their violin and their violin bow; it applies to all sorts of activities. There are spheres too in which the relationship is affected by the authority of the training person, the desire to please that person and to be successful in the activity. The more the Minister described those activities, the more it seemed that what he described happens not just in sport and religion but in many other areas as well.
It is important that we remind society that vast numbers of people are engaged in this kind of training work entirely selflessly and giving great service to young people. They are people we recognise and support. A very small number of people do everybody else so much damage by the kind of abuse referred to in the course of the debate. Unfortunately, we still have to deal with it, which means we have to talk about it, debate it and devise laws that work for that purpose.
I would much have preferred to see a wider clause that used the concept of a position of trust in a series of places in which it is clearly relevant. The Government have preferred to retain power by statutory instrument to make extensions to the list, and the Minister, in response to my request, tried to give a bit more indication of the sort of circumstances involved. He has said that they are not just waiting for cases; they will look to the views and experience of organisations in the field. That could usefully be done. If organisations in any of the fields I have talked about respond to the Government by saying, “Yes, it would help us in our disciplinary and regulatory arrangements if this power was extended”, then I hope that is the kind of information that might lead Ministers to come before the House to make use of those powers. I certainly do not want them to be waiting for cases. I am serious in my concern that some cases will arise where abuse has taken place that otherwise falls within the definitions in this clause but where the position of trust appellation has not been applied because it is in one of the other groups—it is not sport or religion.
This is a serious problem that undermines the wonderful work that so many people do with young people, and the wonderful achievements of those young people in sport, drama, music and the arts. We have to keep it under continuous review but, at this stage, I beg leave to withdraw the amendment.
Lord Wolfson of Tredegar
“Voyeurism: breast-feeding
(1) Section 67A of the Sexual Offences Act 2003 (voyeurism: additional offences) is amended as follows.(2) After subsection (2) insert—“(2A) A person (A) commits an offence if—(a) A operates equipment,(b) A does so with the intention of enabling A or another person (C), for a purpose mentioned in subsection (3), to observe another (B) while B is breast-feeding a child, and(c) A does so—(i) without B’s consent, and(ii) without reasonably believing that B consents.(2B) A person (A) commits an offence if—(a) A records an image of another (B) while B is breast-feeding a child,(b) A does so with the intention that A or another person (C) will look at the image for a purpose mentioned in subsection (3), and(c) A does so—(i) without B’s consent, and(ii) without reasonably believing that B consents.”(3) In subsection (3), for “and (2)” substitute “to (2B)”. (4) After subsection (3) insert—“(3A) In this section a reference to B breast-feeding a child includes B re-arranging B’s clothing—(a) in the course of preparing to breast-feed the child, or(b) having just finished breast-feeding the child.(3B) It is irrelevant for the purposes of subsections (2A) and (2B)—(a) whether or not B is in a public place while B is breast-feeding the child,(b) whether or not B’s breasts are exposed while B is breast-feeding the child, and(c) what part of B’s body—(i) is, or is intended by A to be, visible in the recorded image, or(ii) is intended by A to be observed.””Member’s explanatory statement
This new Clause creates new offences of recording images of, or otherwise observing, breast-feeding without consent or a reasonable belief as to consent. To be guilty of the offence the perpetrator must be acting for the purpose of obtaining sexual gratification or of humiliating, alarming or distressing the victim.
Lord Wolfson of Tredegar (Con)
My Lords, in moving government Amendment 107A, I first thank sincerely all those in both Houses who have campaigned on this important issue, particularly the noble Baroness, Lady Hayman, and all those who spoke in the debate in Committee in this House. I know that she wanted to be here this evening, but I am afraid the hour has prevented her doing so. It is right to put on record my thanks for the tireless work she has done in this area, and for the time she gave on a number of occasions to discuss this issue with me. The noble Lord, Lord Pannick, has also been extremely helpful on this point, and I thank them for joining me in putting their names to the amendment.
I made it clear in Committee that the Government supported the aims of the original amendment put down by the noble Baroness but considered that it was too broadly drawn and would capture conduct that ought not to be criminalised. In particular, I explained in a series of to-and-fro discussions with the noble Lord, Lord Pannick, that the issue of intention needed to be more carefully addressed.
Lord Pannick (CB)
As the Minister said, the noble Baroness, Lady Hayman, is unable to be in her place tonight. She has asked me to say that she joins me in thanking the Minister, who has engaged with us sympathetically on this topic and secured this welcome change in the law. That is a tribute to his persuasive powers not just in this House but in government.
I hope that the Minister’s remarks tonight will receive as much publicity as his speech in Committee, which, as he said, featured not just in Hansard but elsewhere. He mentioned his appearance—or his remarks’ appearance—on “Have I Got News for You”; well, the news tonight is that this amendment has achieved a welcome change in the law that will be appreciated not just by breastfeeding women but by their partners and relatives.
Lord Blencathra (Con)
My Lords, I intervene to ask my noble friend a question. I listened carefully to what he said and I completely support the amendment, but does it go far enough? I cannot find any excuse or justification for anyone who is not a family member to take any photographs of a woman breastfeeding. It would seem from what my noble friend said on the amendment that mens rea has to be proved—there has to be a proven intent to get sexual gratification from it—but why should that be the case? In my view, there can be no justification for anyone outside the family—a stranger—to want to photograph a woman doing this. This is a simple question from my simple little mind.
Lord Marks of Henley-on-Thames (LD)
My Lords, we welcome the Government’s decision to accept the force of the amendment pursued by the noble Baroness, Lady Hayman, and supported by the noble Lord, Lord Pannick, to outlaw this unpleasant practice and introduce this amendment.
Over recent years, we have achieved considerable progress in the area of taking, procuring or disclosing what I would generically call voyeuristic images. Revenge porn was outlawed under the Criminal Justice and Courts Act 2015, and this was finally extended to threats to disclose intimate images in the Domestic Abuse Act last year. The unpleasant practice of upskirting was outlawed by the Voyeurism (Offences) Act in 2019.
Recording images of breastfeeding mothers is another example of voyeurism. It is easy to forget, certainly when the practice is made light of, that this is demeaning, embarrassing and humiliating for a breastfeeding mother. It is also frightening, because the mother is in a uniquely vulnerable position. A mother who is breastfeeding, if she is being photographed, is left in the entirely invidious position that she can either stop, in which case she has to close or adjust her clothing, giving more subjects to the photographer and depriving her infant of food, or go on and continue the agony of being photographed. That is a horrible position for a mother to be in.
We agree that this is a serious issue. These amendments are directed at an arrogant and frankly misogynistic practice. It is right to criminalise it for the protection of the women affected and we fully support the two amendments.
Baroness Chapman of Darlington (Lab)
We wholeheartedly welcome this, and we welcome how the Minister can laugh at himself and bring good humour to this. I think it is okay to have a sense of humour about this issue; what matters is that we are finally dealing with it. This really is important. Encouragingly, breastfeeding rates are improving in this country; over 80% of women start to breastfeed their baby when they are born, but the rates fall quite dramatically, with around 25% continuing at six weeks. There are lots of reasons for that, but one of them is about feeling uncomfortable breastfeeding in public. We should be doing everything we can to normalise breastfeeding and make breastfeeding mothers feel welcome and supported, wherever and however they choose to feed their babies.
There are two amendments in this grouping: one is the government amendment, which we completely support, and there is also the issue about needing to show intent for sexual gratification or humiliation. It was thoughtful of the Government to include that word, and I just want assurance that the perception of humiliation that ought to matter is that of the woman breastfeeding and being photographed. That ought to be sufficient to prove that there was an intent to humiliate. I would welcome some clarification from the Minister on that point.
We warmly welcome this measure. Breastfeeding women will be very pleased that the Government have come to a place where they see things in the way that they do.
Lord Wolfson of Tredegar (Con)
My Lords, I am very grateful for the warm words from across the House and for the support this amendment has received. I will pick up a couple of the points made. First, I respectfully agree with the noble Baroness, Lady Chapman, that we want to normalise and support—to use her verbs—women who are breastfeeding; that is very important. It is a matter for my department in this legislation and for other government departments in other areas. That is certainly our aim.
I will try to answer the question put by my noble friend Lord Blencathra. This amendment is modelled on the upskirting offence in the Voyeurism (Offences) Act 2019. We want—without getting myself on “Have I Got News for You” for a second time—to avoid capturing people within the offence who ought not to be captured. Let me try to give a different example. The point made by my noble friend was about forgetting intention and purpose. The problem there, for example, could be that if you were running CCTV in a children’s play area and a mother was breastfeeding, you would be taking images of her; you would not have her consent, nor any reasonable basis to think that she was consenting to being filmed. Therefore, you could be committing a criminal offence. That is why here, just like the upskirting offence, there has to be a purpose of sexual gratification or humiliating, alarming or distressing the person photographed.
The noble Baroness asked me about “humiliating”. I again thank her for spotting that word, which comes from the other Act. It is a really important word. I will put it this way: the fact that the person subjectively feels humiliated does not necessarily mean that it is done for the purpose of humiliation. There is not a one-for-one correlation. However, any court will have to ask the question: was this for the purpose of humiliation? That is a question for the court to decide. You look at the circumstances objectively. The fact that the person feels very humiliated is a very important part of answering that question. But I cannot go so far as to say that the subjective feeling of humiliation necessarily answers the legal question. I hope that has answered the noble Baroness’s question. This is an issue that arises in other areas of criminal law as well. Without delaying the House, I hope that that is a sufficient answer for this evening. I am very happy to engage with the noble Baroness further on this.
Baroness Chapman of Darlington (Lab)
I appreciate that and understand what the Minister is saying. Is he saying that, if it could be reasonably expected that a breastfeeding woman would feel humiliated in the particular circumstances, that would be interpreted as humiliation? On the point about the CCTV, I think most breastfeeding women would not feel humiliated in that circumstance.
Lord Wolfson of Tredegar (Con)
The question which has to be asked is: was this done for the purpose of humiliating the woman breastfeeding? To answer that you would look at all the relevant circumstances. I would suspect that, rather like the upskirting offence, in the vast majority of cases the question almost answers itself, given our experience from upskirting.
In this area, as in all areas, if, once the offence has gone into the law, it turns out that there is a problem in prosecuting—for this reason or any other—we will keep it under review, because our intention is to stop the conduct, to make it criminal and thereby punish people who engage in it—but, I hope, to stop it. If there are problems, we will keep it under review, and I am very happy to continue the conversation on that. I will draw my remarks to a close and invite the House to support the amendment.
Lord Wolfson of Tredegar
“Time limit for prosecution of common assault or battery in domestic abuse cases
After section 39 of the Criminal Justice Act 1988 insert—
“39A Time limit for prosecution of common assault or battery in domestic abuse cases(1) This section applies to proceedings for an offence of common assault or battery where—(a) the alleged behaviour of the accused amounts to domestic abuse, and(b) the condition in subsection (2) or (3) is met.(2) The condition in this subsection is that—(a) the complainant has made a witness statement with a view to its possible admission as evidence in the proceedings, and(b) the complainant has provided the statement to—(i) a constable of a police force, or(ii) a person authorised by a constable of a police force to receive the statement.(3) The condition in this subsection is that—(a) the complainant has been interviewed by—(i) a constable of a police force, or(ii) a person authorised by a constable of a police force to interview the complainant, and(b) a video recording of the interview has been made with a view to its possible admission as the complainant’s evidence in chief in the proceedings.(4) Proceedings to which this section applies may be commenced at any time which is both—(a) within two years from the date of the offence to which the proceedings relate, and(b) within six months from the first date on which either of the conditions in subsection (2) or (3) was met.(5) This section has effect despite section 127(1) of the Magistrates’ Court Act 1980 (limitation of time).(6) In this section—“domestic abuse” has the meaning given by section 1 of the Domestic Abuse Act 2021;“police force” has the meaning given by section 3(3) of the Prosecution of Offences Act 1985;“video recording” has the meaning given by section 63(1) of the Youth Justice and Criminal Evidence Act 1999;“witness statement” means a written statement that satisfies the conditions in section 9(2)(a) and (b) of the Criminal Justice Act 1967.(7) This section does not apply in relation to an offence committed before the coming into force of section (Time limit for prosecution of common assault or battery in domestic abuse cases) of the Police, Crime, Sentencing and Courts Act 2022.””Member’s explanatory statement
This amendment extends the time limit for commencing proceedings for an offence of common assault or battery in certain cases where the alleged behaviour of the accused amounts to domestic abuse.
Lord Wolfson of Tredegar (Con)
My Lords, this government amendment meets a commitment to bring forward proposals on Report to address concerns that the time limit for bringing prosecutions for common assault or battery involving domestic abuse is unfairly short. I am very grateful that, joining my name on this amendment are the names of the noble Lord, Lord Russell of Liverpool, and the noble Baroness, Lady Greengross.
In response to the amendment tabled by my noble friend Lady Newlove in Committee, we acknowledged that such cases are disproportionately likely to time out. I am pleased now to present our solution to this problem—in the form of government Amendment 107B —to the House.
Lord Russell of Liverpool (CB)
My Lords, I thank the Minister for what he has just said and for the actions he has taken. I thank his colleague in the other place, Victoria Atkins, for having given the original commitment, and I thank the noble and learned Lord, Lord Stewart, who responded in a very positive way to the amendment from the noble Baroness, Lady Newlove, in Committee.
I also particularly thank Yvette Cooper in another place because the beginning of this was when one of her constituents came to her who had suffered an assault and had been timed out. That was really the first time that Yvette Cooper had come across this; it was one of those problems that was hidden in plain sight. It took a series of freedom of information requests to try to get the necessary information to understand the nature of the problem and, indeed, the scale of it. If this was not a government amendment and we were still trying to persuade the Government, I would have stood up to say, “I do not rise to speak briefly, because I am going to make 12,982 different points”, as that is the number of cases of alleged common assault that were timed out within a five-year period. That was revealed by the freedom of information requests, albeit only 70% of the police forces that received the FoI requests actually bothered to respond, so that number is probably an underestimate.
I am extremely grateful for this. The noble Baroness, Lady Newlove, would have been here, but she was sitting at the back earlier, doing her impression of the young noble Lord, Lord Young of Graffham, in his usual place, with a large cushion behind her, because her back has been giving her a lot of problems, so she has gone back to her hotel to rest it. On her behalf, I pay tribute to the work that she has done and thank her for having put it forward in Committee.
In a very helpful online call with the Minister, in which he explained what the Government were intending to do, we discussed how it is one thing to have laws, and laws which are well intended, but laws which are well intended, even forensic, are of little use if they are not applied properly and understood effectively. The issue we must focus on is when the police start responding in a different way to some of these allegations of assault. The ability to understand the exact nature of what is required and the ability to move very quickly to get it into a form where it is prosecutable within the six-month time limit is extremely important. I thank the Minister and the Government for this amendment, but can the Minister ensure that the combination of the Ministry of Justice, the Home Office, the College of Policing and the National Police Chiefs’ Council will keep a really close eye on the enactment of this new legislation, to ensure that what we hope and intend should happen is happening, and that if it is not proceeding as we hoped and intended, to keep that under review and, if necessary, adjust it? Again, I thank the Government very much for bringing this amendment forward.
Lord Marks of Henley-on-Thames (LD)
My Lords, we add our thanks to the Minister to those of the noble Lord, Lord Russell of Liverpool, for his approach to changing the time limit for common assault prosecutions in the context of domestic abuse, and for engaging with us on this and other issues over the last few weeks.
It is clearly a sensible compromise for the six-month time limit to start from the first formal step in criminal proceedings of taking a witness statement or a formal recorded interview. We understand the reason for retaining the overall time limit of two years. It is a compromise in these cases between the need for finality and recognition that it frequently takes some time for victims—generally women in these cases—to report assaults formally, even though, as the noble Lord said, they may have some sort of informal interaction with the police at an earlier stage. We warmly support this amendment and thank the Government for coming to this view.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I was sitting in the City of Westminster magistrates’ court yesterday with our Bench chairman, Jane Smith, who was aware of this government concession. We had a very constructive discussion about how welcome it was. In Westminster magistrates’ court we have a specialist DA court, which is not that common among magistrates’ courts. While the noble Lord, Lord Russell, described the problem cleverly—in the best sense; I mean that as I say it—as being hidden in plain sight, it is a problem that we see regularly in that court. It shows that when the Government listen and move quickly, that does get wider recognition. This was certainly recognised and appreciated by my Bench chairman.
Lord Wolfson of Tredegar (Con)
My Lords, I am very grateful for the support that the amendment has received across the House. This ought to be a cross-party issue and I am very pleased that it has been. I repeat my thanks to all those who worked with me and my ministerial colleagues to get this amendment before the House this evening. As it is a cross-party matter, it is quite right for me also to thank Yvette Cooper in the other place, who did a lot of work on this issue. Sometimes parties do not matter; it is about the work that we do. I thank her for getting the ball rolling on this very important issue.
We will keep the matter under review, as we do with all legislation, and certainly for something such as this. Again, I do not want to take the House’s time, although this is an important topic. I instead invite the House to join me in supporting the amendment.
Lord Rooker
“Application of Police and Criminal Evidence Act 1984 to National Food Crime Unit of Food Standards Agency
In the Police and Criminal Evidence Act 1984, after section 114B, insert—“114C Application to National Food Crime Unit of Food Standards AgencyThe Secretary of State may by regulations apply any provisions of this Act to investigation of offences conducted by officers of the National Food Crime Unit in respect of search and seizure.”” Member’s explanatory statement
This amendment is intended to avoid the police having to obtain these powers from a court on behalf of NFCU. The officers dealing with offences could present the case.
Lord Rooker (Lab)
My Lords, I beg to move Amendment 109A, which proposes a new clause. I freely admit that the content of what I am about to say is really nothing to do with the Bill; the Bill is a vehicle for a change quite unconnected with its main thrust. Oh! You can forget to take your mask off.
During Oral Questions on 22 February, I raised the issue of food-related crime and the resources devoted to it. The then Minister, the noble Lord, Lord Bethell, pointed out that the Food Standards Agency constituted the National Food Crime Unit in 2014 and that Ministers were in dialogue about increasing its powers. Indeed, in his supplementary answer later he went further and said that
“its investigatory powers could be enhanced and its impact improved. That is the view of the Government, industry and the police, and that is why we are committed to the dialogue, first suggested by the Kenworthy review”.—[Official Report, 22/2/21; col. 614.]
The food crime unit’s work is about tackling serious organised or complex cases of food crime. The unit, and indeed the Food Standards Agency—which, of course, is a non-ministerial department—can use the powers of RIPA and CHIS, and the unit can access the police national computer and the automatic number plate recognition system. But in key aspects, the unit cannot get into the serious complex cases without the support of hard-pressed partners in policing and local government.
The police have never taken food crime seriously and admit that it is not a high priority. I first came across food crime when I went into MAFF in 1997. I had the same issue when I arrived at Defra a dozen years later. I am not criticising; this is the reality. It is not counted as proper crime, yet billions of pounds are involved—and what is more, there is the risk to public health. There is an issue there.
Delays owing to competing higher-risk police priorities have proven detrimental to a number of food crime unit investigations. The unit needs the powers to be able to go to the courts rather than have the police doing it once removed. In fact, all the unit needs is access to the powers in the Police and Criminal Evidence Act. There have been some cases in the recent past where the police have been unable, unavailable or reluctant to apply for warrants on behalf of the unit. There have been delays when the food crime unit has had to wait for police officers to become available or when police withdrew support because of other priorities.
The gangmasters authority, among others, has secured these powers. In fact, my amendment is a straight copy of the amendment put into the Police and Criminal Evidence Act on its behalf, so I did not have any trouble drafting anything. Of course, the Public Bill Office was incredibly helpful, but I am just following a process that has happened before.
The lack of these powers is affecting staff in the unit due to it being a real constraint. The officers of the unit, none of whom I have spoken to, are well qualified to present cases directly. They consist of ex-police officers of very senior rank, ex-National Crime Agency officers and ex-police intelligence officers, so they are fully qualified in other circumstances to go to court to get the warrants. We are talking about seizure and search; that is the limit of what is in the amendment. The former chair of the Food Standards Agency, Heather Hancock, has said that the National Food Crime Unit cannot do its job relying on the kindness of the police to lend their powers in important cases.
Baroness Bakewell of Hardington Mandeville (LD)
My Lords, I am delighted to be able to support this amendment from the noble Lord, Lord Rooker, whose knowledge on this subject is extensive. He has set out his case, and I agree with his arguments.
As has been demonstrated throughout the passage of the Bill, the police are overworked and stretched to their limit. Food crime is not at the top of their list of priorities. A couple of years ago, I went out with the district council’s environmental health officer. Although most of the premises that we visited were providing good-quality catering facilities to both residents in homes and the general public, we visited one that had been closed due to the intervention of the police and the council, in a successful prosecution, for providing food that was unfit for human consumption. This was a very minor case, but it took several attempts before the police were eventually brought on board.
Given the increase in serious crime that the police are now facing, it is not surprising that they are unable to support the National Food Crime Unit in the way that the FSA would like. As the noble Lord, Lord Rooker, indicated, the available information shows that, in 2020, more than 30 operations were opened, while 40 were already running. This is clearly more than the police can deal with, given their current resources.
Organised crime has long tentacles, and that includes food crime. Surely it is better for the FCU to be able to apply directly to the courts than for the public to be put at risk by food crime. The FCU has to wait for the police to support it. Delays will occur, and some crimes will go unpunished. The Food Standards Agency supports this amendment. I hope that the Minister will be able to offer his support to it and allow the National Food Crime Unit to get on with its job unhindered.
Lord Paddick (LD)
My Lords, as other noble Lords have just said, serious and organised food crime can have very serious consequences. To free up scarce police resources by giving the National Food Crime Unit the powers that it needs seems sensible. According to the noble Lord, Lord Rooker, the National Police Chiefs’ Council supports this change, so I am looking forward to hearing from the Minister what I am missing, because I cannot immediately see any reason why this amendment should not be accepted.
Lord Rosser (Lab)
As has been said, this amendment raises the issue of food-related crime and the powers and resources available to tackle it. I will make just one or two comments that may seem almost irrelevant, in view of the very strong case that my noble friend Lord Rooker has already made, as we anticipated he would.
As my noble friend said, the National Food Crime Unit, which is part of the Food Standards Agency, works to tackle serious organised cases of food-related crime. My noble friend Lord Rooker powerfully and persuasively made the case that there are blocks on the powers that the unit can access and that it is often reliant on the police, who are overstretched across competing priorities, to be able to use certain powers or apply for warrants, for example. The amendment that my noble friend has moved would allow the unit to access powers directly, under the Police and Criminal Evidence Act, rather than waiting for police support to become available.
I will spell out exactly the Oral Question that my noble friend asked in February last year:
“My Lords, does the Minister accept that the National Food Crime Unit is operating against organised crime with its hands tied? Investigations are being hampered. Does the Minister agree that investigation powers should be strengthened to include powers to collect the necessary evidence to a higher standard? In other words, will the Government agree that the Police and Criminal Evidence Act powers should be granted to the National Food Crime Unit? The National Police Chiefs’ Council agrees to this to remove the burden from local police forces, which actually agree that food crime is not a high priority.”
As my noble friend said, the Minister replied:
“The noble Lord entirely has a point. I completely agree with him that the National Food Crime Unit has a formidable task ahead of it and that its investigatory powers could be enhanced and its impact improved. That is the view of the Government, industry and the police, and that is why we are committed to the dialogue”.—[Official Report, 22/2/21; col. 614.]
That is what the Government said in reply.
We welcome this commitment and would have given appropriate support to a resulting legislative process, which is why we are supportive of what my noble friend Lord Rooker seeks to achieve with this amendment. The Government have thus previously recognised that this is a problem, but what action has been taken so far since that clear recognition, which was repeated last February? Will the Government now accept the amendment my noble friend has moved? If not, why not?
Lord Sharpe of Epsom (Con)
My Lords, I am grateful to the noble Lord, Lord Rooker, for raising this important matter. I acknowledge that there is considerable experience of the Food Standards Agency in your Lordships’ House. We support, in principle, the proposal to increase the investigative powers available to the National Food Crime Unit. The fraud cases of which we have been made aware by the chair of the Food Standards Agency, Professor Susan Jebb—as referred to by the noble Lord—are truly shocking.
Food crime is a very serious issue, with fraud in our food supply chains costing billions of pounds each year. The National Food Crime Unit, which was established to investigate these crimes, should be empowered to tackle them, to improve the response to these cases and to reduce the burden on its colleagues in law enforcement. As such, we are still committed to working with the Food Standards Agency and DHSC, its sponsoring department, on extending certain Police and Criminal Evidence Act powers to the National Food Crime Unit. However, in doing so, we need to work through the implications of this. It may assist the noble Lord if I briefly set out some of the issues we think we would need to explore further.
First, the exercise of any PACE powers by the National Food Crime Unit must be necessary, proportionate and legitimate. As such, it is important that there are suitable governance, accountability, oversight, investigations and complaints arrangements in place, as there are for the police. The National Food Crime Unit is not a statutory body, nor does it have a separate legal identity. Oversight, governance and the complaints processes sit with the Food Standards Agency board, which commissions independent reviews and facilitates a complaints process which ultimately reports to the Parliamentary and Health Service Ombudsman. There is therefore no formal independent oversight.
There is also a lack of clarity on the necessary protocols when PACE powers would be exercised, including in relation to post-incident procedures on seizure, retention and evaluation of evidence, and the treatment of arrested persons without police presence. These are all issues which, I have no doubt, can be resolved but I am sure noble Lords would agree on the necessity of ensuring that the appropriate accountability and governance arrangements are in place, given that we are dealing with intrusive powers of the state. As such, we do not believe that it would be appropriate to extend the search and seizure powers in PACE to the National Food Crime Unit without further consultation on the issues I have described. I do not think the noble Lord, Lord Paddick, misses very much, but that is the answer to his question.
I reassure the noble Lord, Lord Rooker, that we are committed to taking this work forward with the Food Standards Agency. I do not have a specific answer to the question of the noble Lord, Lord Rosser, on where the dialogue is at the moment. On that basis, I hope that the noble Lord will be content to withdraw his amendment.
Lord Rooker (Lab)
I remind the House that I said that the Food Standards Agency, and therefore the unit, can use the powers of RIPA and the CHIS Act that we passed last year. We are not dealing with some little quango here; this is a government department. If the Government were serious, between February last year and today they would have sorted this out.
I have not campaigned on this. I left it in February and thought, “All I have to do is wait until a vehicle comes along and check if it has been dealt with or not.” The fact is that I am not going to let the Minister get away with it. Someone is going to have to go to the members of the FSA board, and therefore the unit, and say to them, “The Government stopped this change.” When the next big scandal comes along—there are scandals of different scales, and it is nine years since horsemeat so we are due another any time now—no one over there will be able to say, “We were going to do this but Lord Rooker withdrew the amendment.” As such, I am going to test the opinion of the House.
Police, Crime, Sentencing and Courts Bill
Monday 17th January 2022
(2 years, 3 months ago)
Lords ChamberRead Full debate Police, Crime, Sentencing and Courts Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 72-VI(a) Amendment for Report (Supplementary to the Sixth Marshalled List) - (14 Jan 2022)
16:26 - Division on Amendment 114A. - Ayes: 237 / Noes: 190 - Amendment 114A agreed.
17:01 - Division on Amendment 114C - Ayes: 252 / Noes: 179 - Amendment 114C agreed.
19:08 - Division on Amendment 114F - Ayes: 242 / Noes: 185 - Amendment 114F agreed.
20:23 - Division on Amendment 115 - Ayes: 261 / Noes: 166 - Amendment 115 agreed.
20:37 - Division on Amendment 132 - Ayes: 238 / Noes: 171 - Amendment 132 agreed.
21:35 - Division on Amendment 133A - Ayes: 236 / Noes: 158 - Amendment 133A agreed.
22:35 - Division on Amendment 148 - Ayes: 163 / Noes: 216 - Amendment 148 disagreed.
22:53 - Division on Amendment 150A (to Amendment 150) - Ayes: 216 / Noes: 160 - Amendment 150A (to Amendment 150) agreed.
23:07 - Division on Amendment 151 - Ayes: 154 / Noes: 208 - Amendment 151 disagreed.
23:20 - Division on Amendment 152 - Ayes: 153 / Noes: 198 - Amendment 152 disagreed.
23:33 - Division on Amendment 154 - Ayes: 141 / Noes: 205 - Amendment 154 disagreed.
23:47 - Division on Amendment 155 - Ayes: 128 / Noes: 212 - Amendment 155 disagreed.
00:00 - Division on Amendment 159 - Ayes: 124 / Noes: 199 - Amendment 159 disagreed.
00:28 - Division on Amendment 160 - Ayes: 144 / Noes: 101 - Amendment 160 agreed.
“Code of practice relating to non-criminal hate incidents
(1) The Secretary of State may issue a code of practice about the processing by a relevant person of personal data relating to a hate incident.(2) In this section “hate incident” means an incident or alleged incident which involves or is alleged to involve an act by a person (“the alleged perpetrator”) which is perceived by a person other than the alleged perpetrator to be motivated (wholly or partly) by hostility or prejudice towards persons with a particular characteristic.(3) The provision that may be made by a code of practice under this section includes, in particular, provision about—(a) whether and how personal data relating to a hate incident should be recorded;(b) the persons who are to process such personal data;(c) the circumstances in which a data subject should be notified of the processing of such personal data;(d) the retention of such personal data, including the period for which it should be retained and the circumstances in which and the procedures by which that period might be changed;(e) the consideration by a relevant person of requests by the data subject relating to such personal data.(4) But a code of practice under this section must not make provision about—(a) the processing of personal data for the purposes of a criminal investigation, or (b) the processing of personal data relating to the alleged perpetrator of a hate incident at any time after they have been charged with an offence relating to the hate incident.(5) A code of practice under this section may make different provision for different purposes.(6) A relevant person must have regard to the code of practice that is for the time being in force under this section in processing personal data relating to a hate incident.(7) In this section—“data subject” has the meaning given by section 3(5) of the Data Protection Act 2018;“personal data” has the meaning given by section 3(2) of that Act;“processing” has the meaning given by section 3(4) of that Act.(8) In this section “relevant person” means—(a) a member of a police force in England and Wales,(b) a special constable appointed under section 27 of the Police Act 1996,(c) a member of staff appointed by the chief officer of police of a police force in England and Wales,(d) a person designated as a community support volunteer or a policing support volunteer under section 38 of the Police Reform Act 2002,(e) an employee of the Common Council of the City of London who is under the direction and control of a chief officer of police,(f) a constable of the British Transport Police Force,(g) a special constable of the British Transport Police Force appointed under section 25 of the Railways and Transport Safety Act 2003,(h) an employee of the British Transport Police Authority appointed under section 27 of that Act,(i) a person designated as a community support volunteer or a policing support volunteer under section 38 of the Police Reform Act 2002 as applied by section 28 of the Railways and Transport Safety Act 2003, or(j) a National Crime Agency officer.”Member’s explanatory statement
This amendment confers power on the Secretary of State to issue a code of practice about the processing by the police of personal data relating to a hate incident other than for the purposes of a criminal investigation.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, Amendment 109B standing in my name is on the topic of non-crime hate incidents. In my opening remarks, I will also speak to the related government Amendment 109F. I am grateful to my noble friend Lord Moylan for tabling amendments in Committee that related to ensuring that guidance on the recording of non-crime hate incidents, and the retention of personal data in relation to these incidents, was subject to parliamentary oversight.
The Government understand the strength of feeling of many noble Lords on this matter, and I am grateful to all who expressed their views during the debate on this topic on 1 November. Having listened to the compelling arguments, we have tabled Amendments 109B and 109F, which draw strongly from my noble friend’s amendment in Committee. I am very confident that the government amendments reflect the spirit of his proposals in his original amendment and address the House’s concerns in relation to this matter.
I reiterate that the collection of non-crime hate incident data is a key legacy of the Macpherson inquiry into the murder of Stephen Lawrence, and is intended to give the police the means to understand tensions within communities before they escalate into serious harm. This data pertains to incidents which are not crimes. It can include location data, to know where repeat incidents of apparent tension and hostility may occur. In this respect, the data is vital for helping the police to build intelligence to understand where they must target resources to prevent serious crimes which may later occur.
The importance of such intelligence has been illustrated where it could have prevented real harm. The tragic case of Fiona Pilkington and her daughter, subjected to persistent abuse and in which the police failed to draw the links to repeated incidents of harassment until she felt forced to take her own life and the life of her daughter, is one such example. Of course, non-crime hate incidents may also include the collection of personal data. Some of these records will include an accusation of hate crime which has been made against a person but was not proven.
To address concerns relating to the collection of this data, the government amendments will ensure that the police’s processing of personal data in non-crime hate incident records is subject to a code of practice issued by the Home Secretary. The code will be subject to parliamentary scrutiny, with its first iteration being subject to the affirmative procedure, with the negative procedure applying thereafter.
The College of Policing is currently responsible for producing non-statutory hate crime operational guidance for the police to follow when processing data on hate crimes and non-crime hate incidents. The statutory code of practice, once in effect, will replace the relevant section of this guidance on non-crime hate incidents. The college’s guidance will remain in place until the new code enters into effect.
The code will apply only to incidents which the police have designated to be non-crime hate incidents. Where the police are carrying out investigations with a view to there being a prosecution, or where they assess that a prosecution is likely, the code will not apply. It is vital to ensure that the code will not inhibit the police’s abilities to gather evidence that is fundamental to the role of policing. My noble friend’s original amendment included a similar exception. The code will also not apply to data which contains no personal data at all; for instance, location data would not be in scope.
Amendment 109B provides the Secretary of State with the power to issue the code and prescribes some of the key provisions that will be addressed in it. The amendment provides that the code may cover whether personal data relating to a hate incident should be recorded; the persons who are to process such personal data; the circumstances in which a data subject should be notified of the processing of such personal data; the retention of such personal data, including the period for which it should be retained; the circumstances in which, and the procedures by which, that period might be changed; and the consideration by a relevant person of requests by the data subject relating to such personal data. This is not an exhaustive list and it might be expanded or amended during the formulation of the code of practice or in the future.
The precise content of the code of practice will be decided at a later stage. The Government will work closely with policing partners, including the College of Policing and the National Police Chiefs’ Council, when drafting the code to ensure that it meets operational requirements. Decisions relating to existing non-crime hate incident data will also be decided in due course as the process of drafting the new code begins.
We will also ensure that the content of the code fully reflects the recent Court of Appeal judgment in the Harry Miller v College of Policing case that was handed down on 20 December. The court found that the recording of NCHIs is lawful provided there are robust safeguards in place so that the interference with freedom of expression is proportionate. This is a very important point. The court did not consider that the recording of NCHI data was of itself unlawful; rather, it concluded that extra safeguards were necessary to ensure the protection of rights. The approach that the Government are adopting is absolutely in line with that. I can assure the House that this judgment will be reflected in the code.
As I said at the beginning, I am grateful to my noble friend Lord Moylan for bringing this important issue to the Government’s attention. I hope that he will see that the Government have taken these issues very seriously. The government amendments will address a significant number of the concerns raised by bringing parliamentary oversight to this process and enabling the production of a code of practice that will respect the operational importance of the police recording non-crime hate incidents to help keep vulnerable people and communities safe, while balancing this with the need to protect freedom of expression.
My noble friends Lord Moylan and Lord Blencathra have various amendments in this group, including to government Amendment 109B. It would be helpful to hear from them and other noble Lords before I respond. For now, I beg to move.
Amendment 109C
Lord Moylan
Lord Moylan (Con)
My Lords, I thank my noble friend for being a listening Minister and for the hard work she has put into bringing forward this amendment. She has explained what government Amendment 109B does. Essentially, it brings the guidance under which non-crime hate incident records are made by the police under statutory guidance to be issued by the Secretary of State. That is very welcome, but I have some questions to ask about the amendment and some points to make that appeared in my original amendment but do not figure in Amendment 109B.
The first is my Amendment 109C, which would make it mandatory for the Secretary of State to issue this guidance. That was the sense of the Committee when we debated it: that the Secretary of State should do this, not that the Secretary of State should have the option of doing it. But in the very first line of proposed new subsection (1) “may” appears, which I think should be “must”.
I will make it clear at this point that it is not my intention to press any of my amendments to a Division or to seek the opinion of the House, but I would like to hear my noble friend’s explanation of why “may” is, in her view, an appropriate word here when the sense of the Committee was that it should be “must”. The anxiety is not that the current Secretary of State will fail to issue the code of practice because, quite clearly, having brought forward the amendment it would be very strange if she did not act. The anxiety is that a future Secretary of State could, using “may”, revert to the status quo if they wished because there would be no obligation on them to maintain the code of practice. I would like to hear some assurance from my noble friend, and possibly even a word that she might bring forward this modest change at Third Reading.
My Amendment 109E affirms the importance of freedom of expression, especially in the light of the recent Court of Appeal decision in the Miller case. In the interests of brevity, I will not comment on this amendment further but leave it to more qualified noble Lords who might wish to comment on it after me, because I know that we have a very heavy day.
Lord Macdonald of River Glaven (CB)
My Lords, it is a pleasure to follow the noble Lord, Lord Moylan, and to have put my name to his amendments both in Committee and here.
Those of us who put our names to these amendments, discussing the matter before Committee, had a number of concerns: first, the lack of any parliamentary oversight over a system in which the police were creating hate records against the names of people who had committed, it was agreed, no crime; secondly, that these records were categorised as hate incidents purely according to the perception of the complainant and that no other evidence or real inquiry was required; thirdly, that these records were disclosable in some circumstances, for example to potential employers, with all the damage that could imply for the subject of the record; and fourthly, and perhaps most importantly for some of us, that the creation of such records in such large numbers—some 120,000 over four years—without any effective oversight, and flowing from entirely lawful speech, would surely have a chilling effect on the exercise of free speech and therefore on public debate generally.
This is surely one of the most egregious potential consequences of such a process if it is not properly controlled. The case of Harry Miller demonstrates that, but there are many others, including that of a social worker called Rachel Meade who, the Times reported only last week, was facing disciplinary action and the sack for Facebook posts expressing gender-critical views. I observe that these have clearly been stated by the Court of Appeal to be protected beliefs under the Equality Act—so this is not a problem that has gone away.
The Minister mentioned the Harry Miller Court of Appeal judgment. I will quote from it briefly. The court said that
“the recording of non-crime hate incidents is plainly an interference with freedom of expression and knowledge that such matters are being recorded and stored in a police database is likely to have a serious ‘chilling effect’ on public debate.”
The court went on:
“The concept of a chilling effect in the context of freedom of expression is an extremely important one. It often arises in discussions about what if any restrictions on journalistic activity are lawful; but … it is equally important when considering the rights of private citizens to express their views within the limits of the law, including and one might say in particular, on controversial matters of public interest.”
This is why Amendment 109E is before your Lordships’ House. It is to assert the primary importance of the Home Secretary’s code of conduct when it is drafted, stressing—and, indeed, insisting on—a proper respect for the fundamentals of free expression whenever the police are considering recording a non-crime hate incident. Those of us who support this amendment do so because we believe it is so important in the protection of public debate and free expression rights generally that your Lordships should insist that the principle is enshrined in terms in the legislation. The Minister may argue that this is taken as read and that this amendment is in some way otiose. I say in response that experience to date demonstrates the exact opposite.
Lord Blencathra (Con)
My Lords, I will speak to Amendment 109D to remove the negative procedure for all subsequent revisions of this guidance. I shall do that in my capacity as chair of the Delegated Powers Committee, but first I want to make some brief comments in a personal capacity on this whole, in my view, iniquitous concept of innocent people being put on a criminal records database.
As other noble Lords have said, it seems that there are 120,000 people who have not committed any crime, have not been found guilty by a court of any description and yet are held on a database with other people who have been convicted of terrorism, paedophilia, rape, murder, armed robbery and every crime on our statute book. Some may argue that it is not really a criminal record, but if an employer asks for an enhanced criminal record check, the police hand over the names of innocent people whom the police have tried and convicted. I am not convinced that their system of control is as accurate as they claim it is.
If someone complains that they have encountered a hate incident—and we see a growing mountain of these bogus claims—the police investigate. Even when no crime has been committed, the police may decide that the person should be convicted of having done a non-crime hate incident—no magistrate, no proper judge, no jury, just the police.
I will now return to the amendment in front of us in my capacity as chair of the Delegated Powers Committee —your Lordships will be relieved to know that I am being relieved of that position on Wednesday of this week when a new chair is appointed. I welcome the Home Office taking responsibility for these guidelines. If we are going to put innocent people on a criminal records list, it must be done under regulations which have proper parliamentary scrutiny every time—as these will have, at least the first time they are made.
When the Court of Appeal in the Miller case announced that the College of Policing—not a statutory body but a private limited company, as we discussed last week—had produced and implemented partly unlawful guidance, the comment from an assistant chief constable at the college was:
“We will listen to, reflect on, and review this judgment carefully and make any changes that are necessary.”
That is all right then. There is no need to bother 650 MPs or 800 Peers; this assistant chief constable will write our laws. Thank goodness the Home Office realised that it is completely wrong for the liberty and reputation of the individual to be subject to rules written by a private limited company. Thus, I partly welcome—no, largely welcome—the Home Office amendment before us today, but I am afraid it adopts the usual ploy that the Delegated Powers Committee sees in so many Bills, namely the first-time affirmative ploy. This means that the Bill says that the first set of regulations will be made by the affirmative procedure but subsequent revisions will inevitably be minor and technical. Therefore, we need not worry our pretty little parliamentary heads about them and the negative procedure will suffice.
We have seen no evidence to suggest that any subsequent revisions to this guidance will be minor or technical. Indeed, they could be substantial. Suppose, in a hypothetical instance, that the first set of regulations stipulates that these records for non-crime shall be retained for two years. A year later the Home Office issues a revised set with just one word changed: delete “two years” and substitute “10 years” or “25 years”.
The Minister may say—we get this a lot from all departments—that Ministers have no intention whatever of doing that and in the Delegated Powers Committee we always say that the intention of the current Minister is irrelevant and what the law permits them to do is the only thing that matters.
This business of recording non-crimes is such a contentious matter that we suggest that the affirmative procedure must be used on every occasion. The net result of that will be that any time the guidance is revised a Minister—usually a Lords Minister as the Commons will probably bounce it through on the nod—may have to do a 90-minute debate in your Lordships’ House. It is not a very heavy burden to impose on the Government.
The Court of Appeal said:
“The net for ‘non-crime hate speech’ is an exceptionally wide one which is designed to capture speech which is perceived to be motivated by hostility ... regardless of whether there is evidence that the speech is motivated by such hostility … There is nothing in the guidance about excluding irrational complaints, including those where there is no evidence of hostility and little, if anything, to address the chilling effect which this may have on the legitimate exercise of freedom of expression.”
I simply say that so long as these rules remain, Parliament must approve all regulations on this matter, whether it is the first set of regulations, the second, the 10th or the 50th iteration of them.
Lord Paddick (LD)
My Lords, as other noble Lords have said, this is a contentious issue. The noble Lord, Lord Macdonald of River Glaven, may recall from his time in a previous role a report from the probation service called From Murmur to Murder—the noble Lord is nodding—when those in the probation service decided that they would engage with racist clients to challenge their abhorrent views, because of where it might lead.
From stalking to domestic violence, to murder motivated by hatred, including terrorism, we know that non-crime activity can provide indications of individuals’ journeys towards serious violence, but the recording of such intelligence must be subject to a statutory code of practice. I have sympathy with the noble Lord, Lord Blencathra, in insisting on the affirmative procedure for any changes once the original guidance is issued. We welcome the government amendments and thank the noble Lord, Lord Moylan, for raising the issue.
Lord Sandhurst (Con)
My Lords, I begin by saying how grateful I am to my noble friend Lady Williams of Trafford for the time that she has given me, and others, since the debate in Committee on 1 November and for bringing forward these amendments. Having said that, I have some observations to make, in particular about freedom of expression.
Events since the debate in November have made the need for proper regulation even more pressing. Since that debate, as we have heard, the Court of Appeal in Miller has stressed the danger of the chilling effect of police intervention on individuals minded to speak on controversial public topics. The president of the Queen’s Bench Division, in her very powerful judgment, said that the revised guidance published by the College of Policing, which was then before the court, did not
“go very far, or not nearly far enough to address the chilling effect of perception-based recording more generally.”
She emphasised that
“additional safeguards should be put in place so that the incursion into freedom of expression is no more than strictly necessary.”
Finally, she said:
“Guidance should truly reflect what the police are expected to do and should not mislead by omission either the police who have to use it or the public.”
At much the same time as that judgment was being written, a similar matter came before the court in Strasbourg—the case of Dr Pal. It was decided against the United Kingdom on 30 November 2021—just two months ago. Dr Pal, a journalist, was arrested, detained and charged with hate speech in respect of a person called AB. Only when it came to the magistrates’ court did the CPS abandon the prosecution. Dr Pal then brought proceedings for wrongful arrest, or false imprisonment. The Strasbourg court observed that the arresting officer’s decision to arrest
“appears to have been based on the subjective viewpoint of AB”—
that is, the complainant himself —
“without any acknowledgement of the fact that the right to freedom of expression extends to information or ideas that defend, shock or disturb.”
The court said that
“there is no evidence that the criteria … relevant to the balancing of the rights to freedom of expression and the right to respect for private life … were taken into account prior to the applicant’s arrest. In particular, no consideration appears to have been given to the subject matter … and whether they could be said to have contributed to a debate of general interest.”
In short, there have been two important decisions from very senior courts which have stressed the vital importance of paying proper regard to freedom expression and to the need for those in authority to understand and reflect that the right to freedom of expression extends to ideas that may shock or disturb others. There must be fresh guidance, it must reflect those observations, it must be clear and decisive—and it must be soon.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I thank the Minister for introducing her two amendments, which we welcome. It was fair of her to point out the legacy of the recording of non-crime hate incidents and the legacy of the Macpherson report on Stephen Lawrence’s murder. We welcome that the existing guidance will be turned into statutory guidance. I have one question for the Minister: what is the likely timetable for that statutory guidance to be available to be reviewed by Parliament?
On Amendment 114E in the name of the noble Lord, Lord Moylan, I have a genuine question, and this is not a party-political point: how would his amendment have an impact on domestic abuse cases? As I have said before to the House, I sit as a magistrate in both family court and the criminal court, and I deal with a lot of cases related to domestic abuse. While non-hate crime incidents are not recorded on the police national computer, we see information on call-outs and it is common to see information on text records between the parties, usually a man and a woman. Sometimes those text records go on for pages and are relentlessly abusive. How would that information be affected by his amendment?
Lord Moylan (Con)
Without having myself looked at the wording of the amendment, the original wording, which I think is preserved in the current amendment, would have excluded disclosure in relation to individuals but not in relation to groups. In the context of the original amendment, therefore, I think that point would have been covered. The noble Lord makes a very good point, and if I were pressing the amendment or the Government were intending to take it forward in any way, of course it would need to be reviewed to ensure that his point was properly addressed.
Baroness Williams of Trafford (Con)
My Lords, I am grateful to my noble friends for setting out their amendments. I shall respond to them in turn. Amendment 109C seeks to impose a duty on the Home Secretary to issue a code of practice, while our amendment provides her with the power to do so. My noble friend Lord Moylan has pressed me on this issue. I assure the House that we certainly will issue such a code of practice; indeed, Home Office officials will shortly begin the process of drafting the aforementioned code. The permissible language in Amendment 109C is a common drafting approach but, as I have said, it is our firm intention to prepare and issue a code relating to non-crime hate incidents. As I said earlier, I can assure the House that decisions relating to existing non-crime hate incident data will also be made in due course as the process of drafting the new code begins.
My noble friend asked me if the College of Policing would pause the recording of NCHIs, as they are called, while the guidance was being formulated. The current non-statutory guidance on NCHIs will remain in place until the new code of practice enters into effect.
The noble Lord, Lord Ponsonby, asked about the timing of the amendment and when it would come into force. The reason why we have not issued a timescale is that the code will require careful drafting to ensure that it both meets the needs of the police and protects the public. Furthermore, as noble Lords will know, the Court of Appeal has only recently handed down its judgment in the Miller case and the code will have to account for that ruling. We do not wish to impose unduly restrictive timeframes on the process of drafting and publishing a code that will fully align with these objectives.
My noble friend has suggested, previously and again today, that a unit of some description could be set up to provide advice to police forces on whether specific incidents should be investigated by the police force as non-crime hate incidents. That suggestion requires further consideration, and I will try to give it my full consideration in due course.
My noble friend Lord Blencathra raised concerns that the amendments provide that the first iteration of the code is subject to the affirmative procedure, with the negative procedure applying thereafter. This point has been raised by the Delegated Powers and Regulatory Reform Committee, which he chairs so ably; I am sorry that he will be stepping down. We take the committee’s views very seriously. I will set out why we have adopted this approach.
As I have already indicated, in framing the code, we need to ensure that we have given effect to the ruling by the Court of Appeal in the Miller case. By ensuring that the first iteration is subject to the affirmative procedure, we are enabling both Houses expressly to approve the code, thus ensuring that this House can confirm that it is content that the code reflects that judgment.
It is appropriate that further iterations of the code are then subject to the negative procedure. We do not think there will be any further major rulings on the topic of non-crime hate incidents. Any further changes will thus simply reflect the routine need periodically to review such guidance. It would be disproportionate to require the affirmative procedure for every dot and comma change in further future iterations; indeed, the fundamental premise of the code will already have been expressly agreed by Parliament. We therefore do not believe that the affirmative procedure for future iterations would be an effective or necessary use of parliamentary time. I also confirm to my noble friend that we will respond to the DPRRC shortly.
Amendment 109E seeks to incorporate a specific reference to the importance of the right to freedom of expression within the list of matters that may be addressed in the code. When discharging her functions, including preparing this new code of practice, the Home Secretary must already act in compatibility with convention rights; a number of noble Lords rightly asked about this. That includes Article 10, which ensures a right to freedom of expression. It is therefore not necessary to include a reference to the importance of the right to freedom of expression, because this is already a given under the Human Rights Act. None the less, I assure noble Lords that the code will address issues around freedom of expression. Indeed, in my opening remarks, I noted that we will ensure that the content of the code fully reflects the recent Court of Appeal judgment in the Miller case.
Finally, Amendment 114E would prohibit the disclosure of non-crime hate incident personal data on an enhanced criminal record certificate. I cannot support such a blanket prohibition. The noble Lord, Lord Ponsonby, illustrated one of the reasons why. First, non-crime hate incidents are simply one form of police intelligence that sit alongside many others—missing persons data, evidence of anti-social behaviour, unproven allegations of sexual assault and perhaps domestic abuse. They exist in line with the police’s common-law powers to prevent crime and keep the Queen’s peace. There are rightfully circumstances in which police non-conviction information of various kinds will be considered for disclosure in enhanced checks which are used in relation to roles involving close working with vulnerable adults or children. Maintaining this regime is essential for safeguarding purposes.
Secondly, the rules surrounding disclosure of this type of data are already governed by the statutory disclosure guidance produced by the Home Office. The third edition of this guidance came into force on 16 November last year. Non-crime hate incident intelligence is not an exceptional form of police intelligence; it is simply a type of non-crime incident data collected by the police to prevent crime. That is why it is covered in the same statutory guidance. The statutory disclosure guidance has been tested by the courts and assists chief officers of police in making fair, proportionate and consistent decisions in determining when local police information should be included in enhanced criminal record certificates. Singling out this category of police data for non-disclosure would be inconsistent with the principles set out in the statutory guidance and, as such, unnecessary and disproportionate.
Lord Moylan (Con)
My Lords, does my noble friend agree that, since the guidance was published before the Court of Appeal decision, the guidance on disclosure should at least be reviewed in the light of the court decision and the reference to “chilling effect”, to ensure that it is fully compatible? Since that was so much part of the debate in the Court of Appeal—not simply recording but also disclosure—would it not make sense to review it?
Baroness Williams of Trafford (Con)
My noble friend has jumped the gun on what I was going to say. We are confident that the statutory disclosure guidance, the latest version of which was published on 16 November, sets out clearly the criteria and principles which chief officers must have regard to in making decisions to disclose non-conviction information.
The safeguards in the statutory disclosure guidance are very robust. Should a chief officer consider that information ought to be disclosed in line with the guidance, the applicant is invited to make representations. Should the decision to disclose be confirmed following any representations given, that information will be included on the certificate that is sent to the applicant only. Importantly, the applicant also has a right to appeal that disclosure through the independent monitor, who considers cases where an individual believes that the information disclosed within an enhanced criminal records certificate is either not relevant to the workforce they are applying for or that it ought not to be disclosed.
Baroness Fox of Buckley (Non-Afl)
A question was asked earlier about what will happen to people who already have their information—what can we do about that? It is important that drafting takes time; in Committee I spoke about the problem of the drafting of these guidelines and said I wanted good drafting. But I was a bit concerned, as the Minister said that free speech is already protected by the Human Rights Act, but that does not console me because free speech is under attack. We have heard of many instances of where non-crime hate incidents are being used to chill free speech and this—
Baroness Scott of Bybrook (Con)
I remind the noble Baroness that she should not be speaking if she did not speak before the Minister.
Baroness Fox of Buckley (Non-Afl)
I did not understand that, and I apologise. The guidelines are reputation destroying and they need to be reviewed.
Baroness Williams of Trafford (Con)
On Report, questions and interventions are generally for points of elucidation and the Back-Bencher will have spoken before the Minister. That aside, in terms of what happens to historic cases, I think that will be determined upon the updating of the guidance. I will write to noble Lords as I think it is an important point as there may be many examples of it. I will write to the noble Baroness and put a copy in the Library because it is an important point of clarification.
Getting back to what I was saying about the safeguards, it is important that they balance the rights of job applicants with those of the vulnerable people they might have contact with. This goes back again to the point made by the noble Lord, Lord Ponsonby. Alongside the existence of this strict statutory disclosure guidance, I can reassure noble Lords further. As I mentioned in the previous debate, DBS records suggest that, in any event, it is rare for non-crime police information of any sort to appear on an enhanced criminal records certificate supplied to a potential employer. This type of information featured in only 0.1% of the 3.9 million enhanced checks issued by the DBS between April 2019 and March 2020.
My noble friend has also, helpfully, raised with me before today whether the government amendment may encompass disclosure within its remit by referring to the processing of data. While the Home Secretary’s code will set out the rules for those who process NCHI data, there is no obligation for the code to address every conceivable act of processing. We have been clear that the Government’s intention is to not include disclosure within the code of practice; as such, the issue of disclosure will not be covered or referenced in any way in the code of practice.
It is imperative that we do not set an unhelpful precedent by legislating in such a way as to undermine the police’s ability to build intelligence on possible offending and risk to life more broadly. I stress again the often vital role that this data plays in helping to safeguard the vulnerable. It is not there to enforce correct opinions—referred to by the noble Baroness, Lady Fox—nor is it there to serve a purpose unconnected with policing; rather, it is part of the police’s function to prevent crime.
In conclusion, again, I am most grateful to my noble friend Lord Moylan for raising these important issues. I hope that he can see that the Government have taken him very seriously; the government amendments, together with the assurances that I have given in response to Amendments 109C and 109E, will, I think, address the concerns raised, by bringing parliamentary oversight to this process while protecting fundamental police functions that are already subject to strong safeguards. I hope, therefore, that he will see fit not to press his amendment—he has indicated that he will not—and that he will support the government amendments as drafted. I beg to move.
Lord Moylan (Con)
I am grateful to my noble friend, and for her reassurances, and I look forward to seeing the letter that she is going to write to the noble Baroness, Lady Fox of Buckley. I beg leave to withdraw the amendment.
“Further provision about a code of practice under section (Code of practice relating to non-criminal hate incidents)
(1) The Secretary of State may not issue a code of practice under section (Code of practice relating to non-criminal hate incidents) unless a draft of the code has been laid before and approved by a resolution of each House of Parliament.(2) The Secretary of State may from time to time revise and reissue a code of practice under section (Code of practice relating to non-criminal hate incidents).(3) Before reissuing a code of practice the Secretary of State must lay a draft of the code as proposed to be reissued before Parliament.(4) If, within the 40-day period, either House of Parliament resolves not to approve the code of practice laid under subsection (3)—(a) the code is not to be reissued, and(b) the Secretary of State may prepare another code.(5) If no such resolution is passed within the 40-day period, the Secretary of State may reissue the code of practice.(6) In this section “the 40-day period” means—(a) the period of 40 days beginning with the day on which the draft is laid before Parliament, or (b) if the draft is not laid before each House on the same day, the period of 40 days beginning with the later of the days on which it is laid before Parliament.(7) In calculating the 40-day period no account is to be taken of any period during which Parliament is dissolved or prorogued or during which both Houses of Parliament are adjourned for more than 4 days.”Member’s explanatory statement
This amendment makes provision about the Parliamentary procedure applying to a code of practice issued by the Secretary of State under the new Clause in the name of Baroness Williams of Trafford to be inserted after Clause 55 and dealing with codes of practice relating to non-criminal hate incidents.
Lord Sharpe of Epsom
“Increase in penalty for offences related to game etc
(1) Section 1 of the Night Poaching Act 1828 (taking or destroying game or rabbits by night or entering land for that purpose) is amended in accordance with subsections (2) to (4).(2) The existing text becomes subsection (1).(3) In that subsection—(a) after “conviction” insert “to imprisonment for a term not exceeding 51 weeks,”, and(b) for “not exceeding level 3 on the standard scale” substitute “or to both”.(4) After that subsection insert—“(2) In relation to an offence committed before the coming into force of section 281(5) of the Criminal Justice Act 2003 (alteration of penalties for certain summary offences: England and Wales), the reference in subsection (1) to 51 weeks is to be read as a reference to 6 months.”(5) Section 30 of the Game Act 1831 (trespass in daytime in search of game etc) is amended in accordance with subsections (6) to (8).(6) The existing text becomes subsection (1).(7) In that subsection—(a) for the words from “conviction”, in the first place it occurs, to “seem meet”, in the second place it occurs, substitute “summary conviction, be liable to imprisonment for a term not exceeding 51 weeks, to a fine or to both”, and(b) for “each of the two offences” substitute “the offence”.(8) After that subsection insert—“(2) In relation to an offence committed before the coming into force of section 281(5) of the Criminal Justice Act 2003 (alteration of penalties for certain summary offences: England and Wales), the reference in subsection (1) to 51 weeks is to be read as a reference to 6 months.”(9) In section 4A of the Game Laws (Amendment) Act 1960 (forfeiture of vehicles), in subsection (1), omit “as one of five or more persons liable under that section”.(10) The amendments made by this section have effect only in relation to offences committed on or after the day on which this section comes into force.”Member’s explanatory statement
This amendment increases the penalty for committing an offence under section 1 of the Night Poaching Act 1828 (taking or destroying game or rabbits by night or entering land for that purpose) or under section 30 of the Game Act 1831 (trespass in daytime in search of game etc).
Lord Sharpe of Epsom (Con)
My Lords, I thank the right reverend Prelate the Bishop of St Albans for bringing these important matters to the attention of the House. I declare an interest here, as I am a member of the British Association for Shooting and Conservation, which is a member of the hare-coursing coalition.
In Committee, many noble Lords emphasised the need for early action to crack down further on illegal hare coursing. We have heard eloquent testimony to the cruelty involved and the harm and distress which this activity can cause to rural communities. As we have made clear, the Government are determined to take action. That is why we are taking an early opportunity to act by tabling these government amendments, which, I trust, following on from the debate in Committee, will be widely welcomed. They address most of the issues raised by the right reverend Prelate and, indeed, go further by introducing additional measures besides. It may be helpful to the House if I briefly outline them.
The purpose of our amendments is to broaden the circumstances in which the police can investigate and bring charges for activity related to hare coursing and to increase the powers of the courts for dealing with this activity on conviction. They do this by increasing the severity of the penalties for the relevant offences under the game Acts; introducing new criminal offences relating to trespassing on land with the intention of searching for or pursuing a hare with a dog; and giving the courts new powers to make orders on conviction in relation to the reimbursement of the costs of kennelling seized and detained dogs and the disqualification of offenders from owning or keeping a dog.
Let me set out the effect of the government amendments in a little more detail. First, Amendment 109G will increase the maximum penalties for committing an offence under Section 1 of the Night Poaching Act 1828 or under Section 30 of the Game Act 1831, and will remove the current difference in the maximum penalty that can apply, based on the number of people involved in committing the offence. These are offences most often used to prosecute hare-coursing-related activity, and it is therefore important that the courts should have available to them sentences appropriate to the severity of the harms which can be caused by such activity. In all cases, therefore, the maximum penalty will be increased to an unlimited fine and/or—for the first time—a custodial sentence of up to six months’ imprisonment.
Connected to this, we will also amend Section 4A of the Game Laws (Amendment) Act 1960 to give the court powers to order the forfeiture of a vehicle used in cases where fewer than five people are involved in committing an offence. That is important because of the essential role of vehicles in hare-coursing-related activity.
Turning now from existing to new law, Amendment 109H creates new offences relating to trespassing on land: specifically, trespass with the intention of using a dog to search for or to pursue a hare; facilitating or encouraging the use of a dog to search for or to pursue a hare; or enabling another person to observe the use of a dog to search for or to pursue a hare.
Amendment 109J provides for a further new offence of “being equipped” to commit one of these new trespass- related offences that I have just described. It will therefore be an offence for a person to have an article with them, when not at a dwelling, with the intention that it will be used in the course of, or in connection with, the commission by any person of the new trespass-related offence. These new offences will be punishable by an unlimited fine and/or up to six months’ imprisonment. The purpose of this new “being equipped” offence is to provide a basis for bringing charges in circumstances where someone possesses articles that are associated with hare-coursing and there is clear intention to engage in that activity but there is no element of trespass, because, for example, they are on the public highway. Together, these new offences are designed to increase the circumstances in which hare-coursing-related activity can be investigated and prosecuted. They have been developed in consultation with the police and the Crown Prosecution Service, and welcomed by them as a useful supplement to the legislation currently available.
I turn next to measures relating to the dogs used in hare-coursing. Amendments 109KA, 109L, 109M, 109N, 109PA and 109R strengthen the powers of the courts to make orders in relation to those convicted of certain hare-coursing-related offences. Dogs are a key element in hare-coursing-related activity, and these orders play an important part in addressing the availability of dogs for such activity.
First, Amendment 109KA provides for the court to order the recovery of kennelling costs incurred where a dog has been lawfully seized and detained in connection with certain hare-coursing-related offences. Kennelling costs can be very high. By providing for their reimbursement, we are seeking to reduce obstacles to the lawful seizure and detention of dogs used in connection with hare-coursing-related activity by the police. Such a recovery order can be made by the court whether or not it deals with the offender in any other way, such as through a fine or custodial sentence.
Secondly, Amendments 109L, 109M, 109N, 109PA and 109R provide new powers for the court relating to owning and keeping a dog. The court will be able to make a disqualification order on conviction, for such period of time as it thinks fit, preventing an offender owning and/or keeping a dog where they have been convicted of certain hare-coursing-related offences involving dogs. The amendments relating to dog disqualification orders contain provisions that aim to ensure their fair and effective operation. These include requirements and powers relating to the disposal of dogs, to termination of the orders and to safeguarding the rights of owners who are not the offender.
As many have noted, dogs are central to hare-coursing-related activity. The introduction of orders relating to dog disqualification therefore goes to the heart of the problem by making it possible to remove from convicted offenders access to a means of further offending. I hope that the right reverend Prelate will feel content that the government amendments substantially deliver his ambitions in relation to hare-coursing and that, on this basis, he and other noble Lords would be content to support the government amendments. I beg to move.
The Lord Bishop of St Albans
My Lords, I declare my interest as president of the Rural Coalition. It is a great delight to stand in the House and congratulate the Government on tabling these amendments to address this very serious rural problem of hare-coursing, which has affected so many landowners and farmers across these islands. In particular, I pay tribute to the noble Lord, Lord Sharpe of Epsom, who really listened to the debate, when people from every part of the Chamber spoke. I know that he has taken that back to others. I am hugely grateful to him for doing that.
I know that this is something that the Government were keen to do and that the consultations with Defra and others were ongoing during the passage of the Bill, so I am grateful that we will not see the delay we thought we would face and that we can offer protection to rural communities and, indeed, hares. I will not say much about the actual amendments—they have been laid out already before us—but I note that the changes the Government are bringing forward are the result of a long-running campaign. I pay tribute to organisations such as the NFU, the CLA and others, which have continually raised this issue and campaigned for a change in the law.
I also pay tribute to our rural police forces and our rural police and crime commissioners. I have been speaking to those in my area who work in my diocese, and this has been a real issue for them. It has been very helpful that they have provided input and feedback on the sort of legislative changes that would be most useful to assist them to be more assiduous in combating hare-coursing. I hope these amendments will go a long way to assist the police to do this.
Of course, there will be some other problems beyond the legislative changes, such as with local police resources and their ability to arrive on time and in sufficient numbers to deal with it. That being said, this is a victory for rural communities, rural police forces, hares and, I believe, Her Majesty’s Government; I strongly welcome it.
Baroness Bennett of Manor Castle (GP)
My Lords, I commend the government amendments, and congratulate the right reverend Prelate on his successful campaigning and all those behind it. It is great that we are seeing an awareness of the huge issues around wildlife crime, but this is very much a piecemeal approach, addressing one small element of wildlife crime, as important as it is. As the right reverend Prelate said, this is about the welfare of hares, as well as what is happening to people living in the countryside.
I ask the Minister—if he cannot respond now, I would appreciate a response by letter—whether the Government are considering doing something about the welfare of hares, particularly those being caught in spring and snare traps. There is a particular issue around Fenn traps approached by tunnels. There is guidance that says they should be restricted in size to the target species, but there is no legal provision on that. I am afraid there is some very disturbing documentation of hares, and pieces of hares, being found in such traps, and in Perdix traps. Think about what happens to an animal trapped by a paw and left to die, possibly for days, in terror and pain; I hope that that is something the Government are thinking about dealing with.
Briefly, on the wider issue of wildlife crime, I point any noble Lords interested in this to the Wildlife and Countryside Link’s annual report—there have been four of them now—on wildlife crime. It is the only summary available on the scale of the problem. As pointed out by that organisation, which is a coalition of 64 groups around the country, there is currently no recording of wildlife crime as a special category by the Home Office. That group is campaigning for that to happen. I hope the Minister might think about taking action on that.
Finally, we have a very solid law against the persecution of raptors, but we have to think about the use and application of that law, given that 60 hen harriers have been killed illegally or disappeared under suspicious circumstances on and around grouse moors since 2018.
The Earl of Caithness (Con)
My Lords, I congratulate the right reverend Prelate on his success in persuading the Government to change the rather difficult attitude they had in Committee towards his amendment. I also congratulate my noble friend on the Front Bench on his work in getting these amendments on the Order Paper. Amendment 109H refers to hares, but if somebody is accused of searching for or pursuing a hare and defends himself by saying, “Actually, it was a rabbit I was after”, what action can be taken? Does the word “etc” in the title of the new clause,
“pursue hares with dogs, etc”
cover the case of hares, squirrels or any other excuse that somebody might have?
I also follow the right reverend Prelate in congratulating and paying tribute to our police forces, who have a very difficult time. They will be at the sharp end of seizing and detaining dogs. Can my noble friend assure me that those who go in to seize and detain dogs will be given adequate protection? The people they are dealing with are some very nasty criminals, where high-money stakes are being played for, and in many cases they will stop at virtually nothing in order to get the dogs back, so the protection of those who go in to do that work is very important.
Baroness Hayman of Ullock (Lab)
My Lords, we welcome these amendments, although, considering that the Government’s Action Plan for Animal Welfare, published early last year, said that the Government would bring in legislation to crack down on the illegal practice of hare coursing, it was a little disappointing that this was not included in the Bill from the very start. We too offer our congratulations to the right reverend Prelate the Bishop of St Albans on his sterling work in bringing forward amendments and continuing to press the Government on this issue. Also, as he and others have done, we praise organisations such as the NFU and CLA for their campaigning over many years on this issue. Also, the police: alongside the other issues noble Lords have spoken about, can the Minister confirm that the police will have the resources they need, not just financial but with numbers of wildlife officers, which is a problem? But, as I say, we welcome these amendments; it is good that our brown hare populations and our rural communities can now be better protected from this really barbaric practice.
Lord Sharpe of Epsom (Con)
I thank all noble Lords for their warm words, and in particular the right reverend Prelate for his—they are much appreciated. I also join in the general congratulations from around the House on the operations and the work of police forces, in particular—although it is always invidious to single anybody out—Lincolnshire police, who have been leading on Operation Galileo. In answer to the specific question from the noble Baroness, Lady Hayman, I cannot comment on police staffing, but I am sure that rural police forces will warmly welcome these amendments and take the appropriate measures.
In answer to my noble friend Lord Caithness, the decision to prosecute is a matter for the Crown Prosecution Service. In line with the Code for Crown Prosecutors, prosecutors considering whether to prosecute for any offence must consider whether the evidence can be used and is reliable and must be satisfied that there is enough evidence to provide a realistic prospect of conviction.
In the circumstances my noble friend outlines, and depending on the available evidence, if the CPS is not satisfied that there is a realistic prospect of conviction for the offence of trespassing on land with the intention of using a dog to search for or pursue a hare, it could still make a decision to prosecute for an offence under Section 30 of the Game Act 1831 or Section 1 of the Night Poaching Act 1828. These are not specific to hares but apply to any game and, in most circumstances, rabbits. Through these amendments these offences would carry the same penalties as the new trespass offence.
My noble friend’s second question was about who will keep the dogs under the offences outlined in Amendment 109. Again, it will be the court to decide, in making an order under Amendment 109M, who should keep the dogs. We would expect this usually to be the police or an animal welfare organisation. They do work closely together on such matters. The welfare of the dogs is obviously paramount. The police have made it clear that it will be a priority to ensure that dogs remain secure and protected at all times.
I cannot, I am afraid, answer the specific question from the noble Baroness, Lady Bennett, about traps. I am sure she is not particularly surprised about that. But I do warmly welcome her contribution to this wildlife-related debate.
Lord Sharpe of Epsom
“Trespass with intent to search for or to pursue hares with dogs etc
(1) A person commits an offence if they trespass on land with the intention of—(a) using a dog to search for or to pursue a hare,(b) facilitating or encouraging the use of a dog to search for or to pursue a hare, or (c) enabling another person to observe the use of a dog to search for or to pursue a hare.(2) It is a defence for a person charged with an offence under subsection (1) to prove that they had a reasonable excuse for the trespass mentioned in that subsection.(3) A person guilty of an offence under subsection (1) is liable on summary conviction to imprisonment for a term not exceeding 51 weeks, to a fine or to both.(4) In relation to an offence committed before the coming into force of section 281(5) of the Criminal Justice Act 2003 (alteration of penalties for certain summary offences: England and Wales), the reference in subsection (3) to 51 weeks is to be read as a reference to 6 months.”Member’s explanatory statement
This amendment creates a new offence of trespassing on land with the intention of using a dog to search for or to pursue a hare or with the intention of facilitating, encouraging or enabling another person to observe the use of a dog to search for or to pursue a hare.
“Being equipped for searching for or pursuing hares with dogs etc
(1) A person commits an offence if they have an article with them in a place other than a dwelling with the intention that it will be used in the course of or in connection with the commission by any person of an offence under section (Trespass with intent to search for or to pursue hares with dogs etc) (trespass with intent to search for or to pursue hares with dogs etc).(2) Where a person is charged with an offence under subsection (1), proof that the person had with them any article made or adapted for use in committing an offence under section (Trespass with intent to search for or to pursue hares with dogs etc) is evidence that the person had it with them with the intention that it would be used in the course of or in connection with the commission by any person of an offence under that section.(3) A person guilty of an offence under subsection (1) is liable on summary conviction to imprisonment for a term not exceeding 51 weeks, to a fine or to both.(4) In relation to an offence committed before the coming into force of section 281(5) of the Criminal Justice Act 2003 (alteration of penalties for certain summary offences: England and Wales), the reference in subsection (3) to 51 weeks is to be read as a reference to 6 months.(5) In this section—“article” includes a vehicle and, except in subsection (2), an animal;“dwelling” means—(a) a building or structure which is used as a dwelling, or(b) a part of a building or structure, if the part is used as a dwelling,and includes any yard, garden, garage or outhouse belonging to and used with a dwelling.”Member’s explanatory statement
This amendment creates a new offence where a person has an article with them in a place other than a dwelling with the intention that it will be used in the course of or in connection with the commission by any person of an offence under the new Clause in the name of Baroness Williams of Trafford to be inserted after Clause 55 and relating to trespass with intent to search for or to pursue hares with dogs etc.
Lord Sharpe of Epsom
“Recovery order on conviction for certain offences involving dogs
(1) This section applies where—(a) a person is convicted of an offence within subsection (5) which was committed on or after the day on which this section comes into force,(b) a dog was used in or was present at the commission of the offence, and(c) the dog was lawfully seized and detained in connection with the offence.(2) The court may make an order (a “recovery order”) requiring the offender to pay all the expenses incurred by reason of the dog’s seizure and detention.(3) Any sum required to be paid under subsection (2) is to be treated for the purposes of enforcement as if it were a fine imposed on conviction.(4) Where a recovery order is available for an offence, the court may make such an order whether or not it deals with the offender in any other way for the offence.(5) The following offences are within this subsection—(a) an offence under section 1 of the Night Poaching Act 1828 (taking or destroying game or rabbits by night or entering land for that purpose);(b) an offence under section 30 of the Game Act 1831 (trespass in daytime in search of game etc);(c) an offence under section (Trespass with intent to search for or to pursue hares with dogs etc) (trespass with intent to search for or to pursue hares with dogs etc);(d) an offence under section (Being equipped for searching for or pursuing hares with dogs etc) (being equipped for searching for or pursuing hares with dogs etc).”Member’s explanatory statement
This amendment provides for a court to order an offender to pay for the costs of seizing and detaining a dog where the dog has been lawfully seized and detained in connection with certain offences involving dogs.
“Disqualification order on conviction for certain offences involving dogs
(1) This section applies where—(a) a person is convicted of an offence within subsection (9) which was committed on or after the day on which this section comes into force, and(b) a dog was used in or was present at the commission of the offence.(2) The court may make an order (a “disqualification order”) disqualifying the offender, for such period as the court thinks fit, from—(a) owning dogs,(b) keeping dogs, or(c) both.(3) The disqualification order may specify a period during which the offender may not make an application under section (Termination of disqualification order) to terminate the order.(4) The court may, where it appears to the court that the offender owns or keeps a dog, suspend the operation of the disqualification order for such period as it thinks necessary for enabling alternative arrangements to be made in respect of the dog. (5) Where a court makes a disqualification order, it must—(a) give its reasons for making the order in open court, and(b) cause them to be entered in the register of its proceedings.(6) A person who breaches a disqualification order commits an offence.(7) A person guilty of an offence under subsection (6) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.(8) Where a disqualification order is available for an offence, the court may make such an order whether or not it deals with the offender in any other way for the offence.(9) The following offences are within this subsection—(a) an offence under section 1 of the Night Poaching Act 1828 (taking or destroying game or rabbits by night or entering land for that purpose);(b) an offence under section 30 of the Game Act 1831 (trespass in daytime in search of game etc);(c) an offence under section (Trespass with intent to search for or to pursue hares with dogs etc) (trespass with intent to search for or to pursue hares with dogs etc);(d) an offence under section (Being equipped for searching for or pursuing hares with dogs etc) (being equipped for searching for or pursuing hares with dogs etc).(10) In section 171 of the Sentencing Code (offences relating to animals), after subsection (2) insert—“(3) See section (Disqualification order on conviction for certain offences involving dogs) of the Police, Crime, Sentencing and Courts Act 2022 (disqualification order on conviction for certain offences involving dogs) for orders relating to disqualification in the case of offences involving dogs under that Act, the Night Poaching Act 1828 and the Game Act 1831.””Member’s explanatory statement
This amendment provides for a court to make a disqualification order preventing an offender from owning or keeping a dog where the offender is convicted of certain offences involving dogs.
“Seizure and disposal of dogs in connection with disqualification order
(1) Where, on a court making a disqualification order, it appears to the court that the person to whom the order applies owns or keeps a dog contrary to the order, the court may order that the dog be taken into possession.(2) Where a person is convicted of an offence under section (Disqualification order on conviction for certain offences involving dogs) (6) by reason of owning or keeping a dog in breach of a disqualification order, the court by which the person is convicted may order that all dogs owned or kept in breach of the order be taken into possession.(3) An order under subsection (1) or (2), so far as relating to any dog owned by the person to whom the disqualification order applies, must make provision for disposal of the dog.(4) Any dog taken into possession in pursuance of an order under subsection (1) or (2) that is not owned by the person subject to the disqualification order is to be dealt with in such manner as an appropriate court may order.(5) But an order under subsection (4) may not provide for the dog to be—(a) destroyed, or(b) disposed of for the purposes of vivisection.(6) A court may not make an order for disposal of the dog under subsection (4) unless— (a) it has given the owner of the dog an opportunity to be heard, or(b) it is satisfied that it is not reasonably practicable to communicate with the owner.(7) Where a court makes an order under subsection (4) for the disposal of the dog, the owner of the dog may appeal against the order to the Crown Court.(8) In this section—“appropriate court” means—(a) the magistrates’ court which made the order under subsection (1) or (2), or(b) another magistrates’ court acting for the same local justice area as that court;“disqualification order” has the same meaning as in section (Disqualification order on conviction for certain offences involving dogs).(9) In this section references to disposing of a dog do not include—(a) destroying it, or(b) disposing of it for the purposes of vivisection.”Member’s explanatory statement
This amendment provides for a court to make an order for a dog to be taken into possession where a person owns or keeps the dog in contravention of a disqualification order made under the new Clause in the name of Baroness Williams of Trafford to be inserted after Clause 55 and relating to disqualification orders on conviction for certain offences involving dogs.
“Termination of disqualification order
(1) A person who is subject to a disqualification order may apply to an appropriate court for the order to be terminated.(2) No application under subsection (1) may be made—(a) before the end of the period of one year beginning with the date on which the disqualification order was made,(b) where a previous application under that subsection has been made in relation to the same order, before the end of the period of one year beginning with the date on which the previous application was determined, or(c) before the end of any period specified under section (Disqualification order on conviction for certain offences involving dogs) (3), or subsection (5), in relation to the order.(3) On an application under subsection (1), the court may—(a) terminate the disqualification order,(b) vary the order so as to make it less onerous, or(c) refuse the application.(4) When determining an application under subsection (1), the court is to have regard to—(a) the character of the applicant,(b) the applicant’s conduct since the disqualification order was made, and(c) any other relevant circumstances.(5) Where the court refuses an application under subsection (1) or varies a disqualification order on such an application, it may specify a period during which the applicant may not make a further application under that subsection in relation to the order concerned.(6) The court may order an applicant to pay all or part of the costs of an application.(7) In this section—“appropriate court” means—(a) the magistrates’ court which made the disqualification order, or (b) another magistrates’ court acting for the same local justice area as that court;“disqualification order” has the same meaning as in section (Disqualification order on conviction for certain offences involving dogs).”Member’s explanatory statement
This amendment makes provision in relation to the termination or variation of a disqualification order made under the new Clause in the name of Baroness Williams of Trafford to be inserted after Clause 55 and relating to disqualification orders on conviction for certain offences involving dogs.
Lord Sharpe of Epsom
“Section (Seizure and disposal of dogs in connection with disqualification order): supplementary
(1) The court by which an order under section (Seizure and disposal of dogs in connection with disqualification order) is made may—(a) appoint a person to carry out, or arrange for the carrying out of, the order;(b) require any person who has possession of a dog to which the order applies to deliver it up to enable the order to be carried out;(c) give directions with respect to the carrying out of the order;(d) confer additional powers (including power to enter premises where a dog to which the order applies is being kept) for the purpose of, or in connection with, the carrying out of the order;(e) order the person who committed the offence in relation to which the order was made, or another person, to reimburse the expenses of carrying out the order.(2) A person who fails to comply with a requirement imposed under subsection (1)(b) commits an offence.(3) A person guilty of an offence under subsection (2) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.(4) Directions under subsection (1)(c) may—(a) specify the manner in which a dog is to be disposed of, or(b) delegate the decision about the manner in which a dog is to be disposed of to a person appointed under subsection (1)(a).(5) In determining how to exercise its powers under section (Seizure and disposal of dogs in connection with disqualification order) and this section the court is to have regard (amongst other things) to—(a) the desirability of protecting the value of any dog to which the order under section (Seizure and disposal of dogs in connection with disqualification order) applies, and(b) the desirability of avoiding increasing any expenses which a person may be ordered to reimburse.(6) In determining how to exercise a power delegated under subsection (4)(b), a person is to have regard, amongst other things, to the things mentioned in subsection (5)(a) and (b).(7) If the owner of a dog ordered to be disposed of under section (Seizure and disposal of dogs in connection with disqualification order) is subject to a liability by virtue of subsection (1)(e), any amount to which the owner is entitled as a result of sale of the dog may be reduced by an amount equal to that liability.(8) Any sum ordered to be paid under subsection (1)(e) is to be treated for the purposes of enforcement as if it were a fine imposed on conviction.(9) In this section references to disposing of a dog do not include—(a) destroying it, or(b) disposing of it for the purposes of vivisection.”Member’s explanatory statement
This amendment contains supplementary provisions in relation to a court making an order under the new clause in the name of Baroness Williams of Trafford to be inserted after Clause 55 and relating to seizure and disposal of dogs in connection with disqualification orders.
Lord Sharpe of Epsom
“Disqualification orders: appeals
(1) Nothing may be done under an order under section (Disqualification order on conviction for certain offences involving dogs) or (Seizure and disposal of dogs in connection with disqualification order) with respect to a dog unless—(a) the period for giving notice of appeal against the order has expired,(b) the period for giving notice of appeal against the conviction on which the order was made has expired, and(c) if the order or conviction is the subject of an appeal, the appeal has been determined or withdrawn.(2) Where the effect of an order is suspended under subsection (1)—(a) no requirement imposed or directions given in connection with the order have effect, but(b) the court may give directions about how any dog to which the order applies is to be dealt with during the suspension.(3) Directions under subsection (2)(b) may, in particular—(a) authorise the dog to be taken into possession;(b) authorise the dog to be cared for either on the premises where it was being kept when it was taken into possession or at some other place;(c) appoint a person to carry out, or arrange for the carrying out of, the directions;(d) require any person who has possession of the dog to deliver it up for the purposes of the directions;(e) confer additional powers (including power to enter premises where the dog is being kept) for the purpose of, or in connection with, the carrying out of the directions;(f) provide for the recovery of any expenses in relation to the removal or care of the dog which are incurred in carrying out the directions.(4) A person who fails to comply with a requirement imposed under subsection (3)(d) commits an offence.(5) A person guilty an offence under subsection (4) is liable on summary conviction to a fine not exceeding level 3 on the standard scale. (6) Any sum directed to be paid under subsection (3)(f) is to be treated for the purposes of enforcement as if it were a fine imposed on conviction.”Member’s explanatory statement
This amendment makes provision in connection with appeals in relation to orders made under the new clauses in the name of Baroness Williams of Trafford to be inserted after Clause 55 and relating to disqualification orders on conviction for certain offences involving dogs and seizure and disposal of dogs in connection with disqualification orders.
“Urgent review of offences under section 61 of the Sexual Offences Act 2003
(1) The Secretary of State must establish a review into the prevalence of, and the response of the criminal justice system to, the offence of administering a substance with intent under section 61 of the Sexual Offences Act 2003, within one month of the day on which this Act is passed.(2) A review under this section must consider—(a) incidence rates and rates of reporting by victims;(b) charging and prosecution rates for the offence;(c) the adequacy of sentencing guidelines for the offence;(d) the adequacy of police investigations into reports of the offence;(e) reoffending rates, and rates of offenders who commit one or more other sexual offences following a charge or sentence for administering a substance with intent;(f) the impact of the offence on victims.(3) A report on the findings of the review under this section, and any associated recommendations, must be published within six months of the day on which this Act is passed.(4) Where a report is published under subsection (3) a Minister of the Crown must make a statement to each House of Parliament on the contents of the report and associated recommendations.(5) Within three months of a report being published under subsection (3) a Minister of the Crown must make a statement to each House of Parliament on action that has been taken in response to recommendations made.”
Lord Ponsonby of Shulbrede (Lab)
My Lords, this amendment was debated on Wednesday, so I intend to speak very briefly to it. The purpose of the amendment is to ask the Government to set up a review of drinks spiking and needle spiking in pubs and clubs. In her response, the Minister said that the Home Secretary has asked the National Police Chiefs’ Council to review the scale of needle spiking. My amendment is very modest; all it does is require the Government to go one step further and set up a review of this practice, about which there is much public concern. I wish to test the opinion of the House.
Lord Rosser
“Accountability of public authorities: duties on police workforce
(1) Members of the police workforce have a duty at all times to act within their powers—(a) in the public interest, and(b) with transparency, candour and frankness.(2) Members of the police workforce have a duty to assist court proceedings, official inquiries and investigations—(a) relating to their own activities, or(b) where their acts or omissions are or may be relevant.(3) In discharging the duty under subsection (2), members of the police workforce must—(a) act with proper expedition,(b) act with transparency, candour and frankness,(c) act without favour to their own position,(d) make full disclosure of relevant documents, material and facts,(e) set out their position on the relevant matters at the outset of the proceedings, inquiry or investigation, and(f) provide further information and clarification as ordered by a court or inquiry.(4) In discharging their duty under subsection (2), members of the police workforce must have regard to the pleadings, allegations, terms of reference and parameters of the relevant proceedings, inquiry or investigation, but are not limited by them, in particular where they hold information which might change the ambit of the proceedings, inquiry or investigation.(5) The duties in subsections (1) and (2) are subject to existing laws relating to privacy, data protection and national security.(6) The duties in subsections (1) and (2) are enforceable—(a) by application to the relevant court or inquiry chairperson by any person affected by the alleged breach, or(b) by the court or inquiry of its own motion, or(c) where there are no extant court or inquiry proceedings, by judicial review proceedings in the High Court.”Member’s explanatory statement
This would establish a duty of candour on members of the police workforce.
Lord Rosser (Lab)
Amendment 114C would place a statutory duty of candour on members of the police workforce. It would create a duty on law enforcement to act at all times in the public interest and with transparency, candour and frankness, and to assist in court proceedings, official inquiries and investigations where the activities of members of the police workforce, including omissions, may be relevant. The issue was discussed at some length in Committee and I certainly do not intend to repeat all that was said then.
In his 2017 report on the pain and suffering of the Hillsborough families, Bishop James Jones proposed a duty of candour to address
“the unacceptable behaviour of police officers—serving or retired—who fail to cooperate fully with investigations into alleged criminal offences or misconduct.”
In June 2021, the Daniel Morgan Independent Panel, which I believe took eight years to report, found:
“There was not insignificant obstruction to the Panel’s work … the Metropolitan Police did not approach the Panel’s scrutiny with candour, in an open, honest and transparent way”.
The panel recommended
“the creation of a statutory duty of candour, to be owed by all law enforcement agencies to those whom they serve”.
The chair of the panel, the noble Baroness, Lady O’Loan, said in this House that
“the creation of the duty of candour in matters such as this is vital for the integrity and effectiveness of policing”.—[Official Report, 22/6/21; col. 134.]
Last June, the Government told us in this House that they were still considering the duty of candour in response to Bishop James Jones’s report four years earlier. We now have before us a flagship home affairs and justice Bill from this Government, which prioritises new offences against those who protest but is silent on the failures of justice highlighted in the Bishop Jones report and by the Daniel Morgan Independent Panel and the resulting call, both in the report and by the panel, for the statutory duty of candour provided for in this amendment. It is time for action and a decision, and an end to this seemingly never-ending continuing government consideration of this issue. I beg to move.
Lord Thomas of Cwmgiedd (CB)
I have added my name to this amendment for four reasons. First, the need is clear: we need complete protection of victims and the public interest, and to make certain that recalcitrant are no longer able to delay. Secondly, the duty of candour is clear: there is no doubt about what it entails. Thirdly, the remedies provided in the proposed new clause are extensive and proportionate. Finally, there can be no reason for delay. Why does it need consultation? It does not. The proposed new clause and the need are clear; we should pass this amendment.
Baroness O’Loan (CB)
My Lords, I thank the noble Lords, Lord Rosser and Lord Paddick, and the noble and learned Lord, Lord Thomas, for tabling this amendment.
Briefly, a duty of candour would bring about a change of mindset and culture by requiring openness and transparency about what has happened in investigations. It would lead to a more efficient deployment of resources, which would have a beneficial impact on the public purse. It could very much help to contradict allegations of police corruption and will grow confidence in the leadership of the police service because there would be a statutory obligation of openness and transparency, and therefore an assumption there would be compliance with the law rather than a suspicion of cover-up or, even worse, corruption. The amendment is framed to protect all necessary matters but to enable a different positive approach to the delivery of policing. I support the amendment.
Baroness Jones of Moulsecoomb (GP)
My Lords, I welcome that the opposition is united in support of this amendment.
The police have failed to own up to many of their mistakes. I personally have experienced police evasion, police spying and police deceit. It beggars belief that there is no duty of candour on our police force already. It actually imposes their own idea of what the law says and this is completely wrong, so I very much support this amendment.
Lord Paddick (LD)
My Lords, as a former police officer, I must tell the House that leaving the failure to abide by such a duty of candour to the police misconduct process, as the Government are asking us to do, is inadequate, as the decision on whether to investigate or take misconduct proceedings will be left in the hands of the police themselves.
If it is in the interest of the police that something is covered up, they will not investigate and they will not take action against the officers responsible. As the noble Baroness, Lady O’Loan, has just explained, her experience of the inquiry into the Daniel Morgan murder demonstrates beyond reasonable doubt the need for this amendment, and we support it.
Lord Hogan-Howe (CB)
My Lords, I have not thought an awful lot about this, but the principle, which seems unarguable, is that police officers should have a duty of candour. They are not the only ones who should; many other groups might want to adopt a similar approach, but so far as the police service is concerned, which is what this amendment is about, it is rather unarguable. How it works ought to be clearly thought through, which I guess is why the Government are consulting on it. The only question I had, which I have just discussed briefly with the noble and learned Lord, Lord Thomas, is how this would work with the criminal disclosure process and how that would impact on any ongoing prosecution or, obviously, any separate public inquiry. However, that is a matter of implementation rather than of principle. In general terms, I see no reason why it should not be implemented for the police; perhaps others may consider it too.
Lord Sentamu (CB)
My Lords, in the Stephen Lawrence inquiry, one of the challenges we faced was that the police were investigating the police—they were marking their own homework. Although Kent Police did a fantastic job, nevertheless there were areas where they could not quite press hard enough. They were very good in what they did, but it was not adequate, and therefore we proposed in the Stephen Lawrence inquiry that, whenever there is an incident, it should be investigated by an independent body.
This amendment would enhance that on the whole question of duty of candour. Again, during that inquiry we were given all the papers. There was no hidden stuff, so for that I must again congratulate the Met. However, this amendment is vital in order to support independent police inquiries, whenever there are areas of great concern. I hope nobody sees this as either intrusive or doubting that most of our police forces really want to do the best for their communities and places. Nevertheless, a duty of candour would impose a very good way of saying what concerns some people about the police, so I support the amendment.
Baroness Williams of Trafford (Con)
My Lords, I thank the noble Lords, Lord Rosser and Lord Paddick, for affording us this further opportunity to debate the case for a statutory duty of candour. They have rightly highlighted the importance of the police’s openness and transparency, which is a very serious matter. It is at the heart of public confidence in policing and ensures that the police are held to the highest standards; this is crucial to maintaining that confidence.
As I did in Committee, I start by highlighting the extensive work that has already been done and is ongoing to improve integrity and openness in policing. Back in February 2020, we introduced a statutory duty of co-operation for serving police officers as part of wider integrity reforms. This duty forms part of the standards of professional behaviour set out in Schedule 2 to the Police (Conduct) Regulations 2020 and, in so doing, has the force of law. It is worth quoting in full the relevant paragraph:
“Police officers have a responsibility to give appropriate cooperation during investigations, inquiries and formal proceedings, participating openly and professionally in line with the expectations of a police officer when identified as a witness.”
A failure to co-operate in this way constitutes a breach of the statutory standards of professional behaviour, by which all officers must abide, and could therefore result in a formal disciplinary sanction. I put it to the House at this point that this duty to co-operate puts a greater onus on officers than the duty of candour provided for in this amendment, as they could ultimately be dismissed for a breach.
The duty to co-operate has been introduced since the issues that were highlighted in the Bishop James Jones report concerning the bereaved Hillsborough families’ experiences, and the issues relating to the work of the Daniel Morgan Independent Panel, which were later highlighted in its report. We are keen that this duty becomes fully embedded within the police workforce. The recently announced inquiry, chaired by the right honourable Dame Elish Angiolini QC, will provide a further test of this duty.
In addition to the standards of professional behaviour, the College of Policing’s code of ethics delivers a set of policing principles and ensures that ethics are at the centre of all policing decisions. The college is currently reviewing the code and intends to further promote a policing culture of openness and accountability. The Government are confident that the work of the college will ensure that candour is directly addressed through this review.
Noble Lords will be aware that a response to the Daniel Morgan Independent Panel and Bishop James Jones report concerning the bereaved Hillsborough families’ experiences will provide a government view on a wider duty of candour for all public authorities. Before the Government respond to these reports, it is clearly imperative that the Hillsborough families are given the opportunity to share their views. We hope that this happens as soon as is practicable.
Bishop James’s report also encouraged public bodies to sign the proposed charter for bereaved families. This has now been signed by the NPCC, on behalf of police forces, so that the perspective of the bereaved families is never lost. The charter commits forces to acting with candour, and in an open, honest, and transparent way, when facing public scrutiny, for example through public inquiries.
Regarding the point made by the noble Lord, Lord Paddick, the decision on disciplinary action is not just for forces. Of course, the IOPC can also call it in.
In conclusion, we believe that the existing legislation requiring officers to co-operate already amounts to a duty of candour, and this is complemented by the further commitments that policing has made to transparency and openness. That being the case—
Baroness O'Loan (CB)
The Minister has described a duty of co-operation, which is not the same as the duty described by the noble Lord, Lord Paddick, and others, in the amendment. It is not fair to explain that they are the same and that a duty of co-operation goes further than a duty of candour. They are two different duties and the obligation to comply with charters and standards is very different from the obligation to comply with the statutory duty.
Baroness Williams of Trafford (Con)
I was making the point that, in some ways, the duty of co-operation goes further because of the sanctions afforded to it, though I know that the noble Baroness, Lady O’Loan, for whom I have the greatest respect, disagrees with me.
Regarding an officer resigning or retiring, if he or she is found to have committed gross misconduct, the chair of proceedings can decide that they would have been dismissed if they had not already left the force, so leaving the force is no longer a way out, since this automatically places the officer on the College of Policing’s barred list, preventing them from working in policing again.
I know that the noble Baroness does not agree, but I hope that the noble Lord will withdraw the amendment, although I am not sure that he will.
Lord Rosser (Lab)
I thank all noble Lords who have spoken in the debate, particularly the noble Lord, Lord Paddick, and the noble and learned Lord, Lord Thomas of Cwmgiedd, for adding their names to the amendment. I also thank the Minister, speaking on behalf of the Government, for the Government’s response.
The fact that we are now four years on from Bishop James Jones’s report and the Government are still considering their response to the call for a duty of candour simply indicates what a relatively low priority this issue must be for the Government. The Government said in Committee, and indeed the Minister repeated it today, that:
“The Government have already made significant changes to ensure that officers can be disciplined if they mislead the public, and we are committed to properly consider and respond to the recommendations for a duty of candour, as highlighted in Bishop James Jones’s report.”—[Official Report, 3/11/21; col. 1255.]
In the light of what the Government have just had to say, which appears to be that they think that the steps they have taken are more significant than a duty of candour, there must surely now be a real likelihood that the Government will eventually decide against a statutory duty of candour, deciding that internal disciplinary codes and practices are sufficient, when, as the noble Baroness, Lady O’Loan, and others have said, they clearly are not. We now have a statutory duty of candour in the National Health Service.
I conclude by quoting the words of the noble Lord, Lord Pannick, in Committee, on 3 November 2021, which can be read in Hansard:
“The statutory duty of candour is vital not just to affect the culture of the police and enhance public confidence in policing but to give confidence to those police officers who face enormous internal pressures from their colleagues not to be candid. They need support; they need a statutory regime they can point to in order to justify to their colleagues what is required.”—[Official Report, 3/11/21; col. 1253.]
I wish to test the opinion of the House.
Lord Russell of Liverpool
“Training on stalking
The Secretary of State must seek to ensure that every professional in the criminal justice system, including staff of the Crown Prosecution Service, probation officers, police officers, and other relevant public officials involved in any investigation or legal proceedings involving stalking, has attended and completed relevant specialist training.”Member’s explanatory statement
This amendment aims to promote the early identification of stalking, and better investigation and prosecution of the crime, by requiring the Government to implement the adoption of specialised stalking training for relevant public officials which is currently not mandated.
Lord Russell of Liverpool (CB)
My Lords, I start by thanking several noble Baronesses who, for many years, have been trying to persuade Her Majesty’s Government to address stalking and understand it rather better than we have done hitherto. In no particular order, I thank the noble Baronesses, Lady Royall, Lady Brinton—who we will be hearing from in a minute—and Lady Newlove, and pay tribute to them for their persistence.
This is a simple and brief amendment, designed to ensure that the many agencies and individuals that encounter different forms of stalking know better what it is they are dealing with. There are two key messages that we need to take on board. The first is that stalking is carried out in England and Wales on an industrial scale. There were 1.5 million victims of stalking in 2019-20 in England and Wales. Only 0.1% of those instances resulted in a conviction. Around 77% of that 1.5 million experienced an average of over 100 stalking incidents before they actually plucked up the courage to report it to the police. For those noble Lords of a mathematical bent, 77% of 1.5 million is not a million miles away from 1 million, and if you multiply that by 100, you start to get some sense of the scale of what we are talking about. It is staggering.
The second point that it would be helpful to take on board is the complexity of stalking. Forensic psychologists and psychiatrists have developed the “stalking risk profile”, the authoritative tool used to understand and codify the different types of stalking. It outlines five different stalker types, and I shall briefly take noble Lords through them and explain why as I do it.
The five types are broken down by the prevalence of each in a clinical setting. What is relevant for today’s amendment is not the first and predominant stalker type, known as the rejected stalker, which has the highest prevalence of violence and will pursue the victim, often a former partner, for either reconciliation or revenge. The rejected stalker type is responsible for 54% of stalking incidents—by a strange coincidence, almost exactly the estimated amount of stalking incidents that are domestic-abuse related.
How about the other 46%? Before I go on to that, I pay tribute to the Government, the NPCC and College of Policing for the new national framework for delivery for policing violence against women and girls announced by Maggie Blyth last month. It is genuinely a very positive leap forward for dealing with stalking, primarily domestic stalking. However, even domestic abuse stalking is complex. Alongside the framework, as you can see on the College of Policing website, is a document called the “framework toolkit”, which breaks down by type of incident all the different types of stalking and harassment that are likely to take place; it then subdivides them into the myriad different laws and types of guidance that the police should consider when trying to work out what type of stalking incident this is. I am a lay man and I know a certain amount about it, but my observation would be that, in many cases, one would require a PhD in criminology to follow the decision tree of all the ways in which one might respond to an incident, and how best to deal with it.
What about the other four stalker types? We have the resentful stalker, which is about 15% of that 1.5 million. They often have a deliberate intent to cause fear or distress to a victim in response to perceived mistreatment. Legal sanctions often exacerbate their behaviour, and they frequently require psychiatric treatment. I would venture to guess that the resentful stalker is in many cases responsible for the shameful incidents that we hear about, whereby leading politicians, particularly female politicians in this country, from the other end of the Palace of Westminster, receive frequently hateful and disturbing threats to themselves and their safety, as well as that of their families and staff. Some 15% of stalkers are doing that.
The next category is the intimacy-seeking stalker. This is somebody who is quite frequently mentally unstable and wants to have an intimate relationship with the person they are stalking. You may recall one or two quite well-known women, usually, in the public eye, perhaps well-known journalists—in one instance, somebody who not infrequently appears on “Newsnight”, who has had the experience of being stalked by somebody in this category since they met briefly many years ago at university. I suspect that that individual has received not just 100 instances of stalking by this individual— I imagine it probably goes into the thousands.
The next category is the wonderfully named incompetent stalker, which represents about 11% of the 1.5 million. This individual tries to forge a relationship with the victim in socially inappropriate ways. Again, frequently, psychiatric help is required to try to make them understand what it is that they are doing.
In the fifth and last category is the predatory stalker. They stalk victims for sexual gratification, often in preparation for an assault, and sex offender treatment may be required. I suspect that in that category goes a certain rather infamous gentleman who until recently was in the police force but is now a guest at Her Majesty’s pleasure for a very long time indeed.
So how can the Ministry of Justice and the Home Office help those charged with protecting these 1.5 million victims, particularly the substantial number—46%—who are not being targeted by the rejected, domestic abuse-type stalker? The new framework makes a good start, but it does not make use of some of the very effective initiatives that are out there, such as MASIP, which I discussed briefly with the Minister this morning, or Lifeline, a specialist training course for individuals who have to look at stalking developed by the Suzy Lamplugh Trust. It is extraordinarily effective, and dovetails very effectively into Domestic Abuse Matters, which is the predominant domestic abuse training that police and other agencies are receiving.
I do not expect the Minister to stand up at the end of this and say, “Lord Russell and all the rest of you, you’re completely right, we’ve totally taken it on board and we’re going to do exactly what you ask”. I would be rather alarmed if she did. But what I would ask her and her colleagues and advisers to do is to carefully consider this problem—the scale and the sheer complexity of stalking, particularly non-domestic abuse stalking—because it not going to go away.
The reaction of the Government and statutory agencies to the incidence of violence against women and girls over the last three or four years strongly reminds me of the fable about the frog who was burned alive sitting in water that was gradually heating up, as incident after incident, story after story, heats up in this case the political temperature, until the politician in the bath suddenly finds that they are soon going to be in need of medical help, because they have allowed this situation to develop. Stalking has similar characteristics; it is not going to go away.
Many people in public life, especially the lady politicians we were referring to earlier, know exactly what it feels like to be stalked. Based on the law of averages, I would be astonished if some of the Ministers dealing with this, their advisers and extended teams, have not themselves personally experienced stalking in some form or another. Stalking is not selective when it chooses its victims.
This amendment is designed to strongly suggest to Her Majesty’s Government that, in order to avoid the equivalent of a dreadful Sarah Everard moment that is very specifically related to stalking, they should voluntarily choose to act proactively and put in place an effective and comprehensive approach to enable the sheer complexity and scale of stalking to be understood better—and they should do that now. I beg to move.
The Deputy Speaker (Lord Haskel) (Lab)
My Lords, the noble Baroness, Lady Brinton, is taking part remotely. I invite the noble Baroness to speak.
Baroness Brinton (LD) [V]
My Lords, I thank the noble Lord, Lord Russell, for his comprehensive introduction to this amendment and his explanation of the different types of stalking.
When Gracie Spinks was stalked and then murdered in June by a non-partner, her case was made infinitely worse by the behaviour of the police both before and after she died. In February, she had reported the worrying behaviour of Michael Sellers to her local police. Despite his behaviour escalating, she had no support from them. There are also issues about the behaviour of officers after her murder, and five have now been issued with IOPC disciplinary notices.
Baroness Royall of Blaisdon (Lab)
My Lords, I am proud to have added my name to this amendment, which I believe is vital. I thank the noble Lord, Lord Russell, for his kind words but, most importantly, for giving the stalking facts and figures, which are truly startling. The scale is huge and the complexity daunting, and he gave a brilliant and well-informed exposé of the problem.
It is true, as noble Lords have said, that great progress has been made in the last 10 years since stalking was first recognised as an offence. I am grateful to the Minister for her work and to noble Lords on all sides of the Chamber who have pursued this issue. I must also mention the indefatigable work and campaigning of Laura Richards, our mutual friend John Clough, the families of victims, and courageous survivors. My work at Oxford, for which I refer noble Lords to my interests as set out in the register, brings me into contact daily with staff and students who suffer from the insidious crime of non-domestic violence-related stalking. They live in constant fear alongside the 1.5 million other victims.
Among the progress that has been made, I am of course delighted that there is now a national strategy for the policing of violence against women and girls but, as has been said, that does not cover the vast number of people who are being stalked where the stalking does not relate to domestic violence. However, it is brilliant that violence against women and girls must now be a strategic priority for all police forces and that they will be assisted by a new local duty to tackle it as part of any work in partnership with other parts of the criminal justice system and all parts of the policing landscape. I celebrate that at last there is a truly national approach that should lead to the identification of the most dangerous and serial perpetrators of violence, more focused investigations, an increase in prosecutions and a reduction in the murder of women, serious harm and repeat victimisation.
Of course, there is a “but”, hence the amendment. We desperately need a strategy for all categories of stalking, and I endorse the comments made by the noble Baroness, Lady Brinton, and the noble Lord, Lord Russell. When are we going to have a more global strategy in relation to stalking?
Strategies are crucial and welcome but, like legislation, they have to be implemented in order to have their desired, much-needed effect. That requires systematic specialist training. As noble Lords will be only too aware, my long-standing concern has been about stalking in all its forms, not just that which involves domestic stalking. Training must be provided relating to all forms of stalking. There must be a national approach so that no matter where a victim seeks help and reports an incident, and wherever a perpetrator is apprehended, those who answer the phone and take whatever steps are necessary to support the victim and investigate a case must have similar experience.
As we know from the excellent inspections by HMICFRS, reports by experts and the evidence of survivors and the friends and families of victims, to date that has not been the case. These women, and sometimes men, have been utterly failed by the piecemeal approach to training. It is no exaggeration to say that countless women, such as Hollie Gazzard, would be still alive if there had been appropriate training, if their calls had been responded to in the proper manner and if the people answering the calls had understood what stalking was. Helen Pearson called the police 144 times over five years. If they had understood that she was a victim and was not wasting the police’s time, her situation could have been properly dealt with.
My strong preference would be to have a regulation in the Bill to provide for mandatory training, but I know from long experience that that would not be accepted by the Government. I first spoke about this in moving an amendment in February 2012, supported by the noble Baroness, Lady Brinton, when we secured agreement to create the offence of stalking. I have been told on countless occasions since then that the appropriate place for training requirements is in guidance—but guidance has ensured that only a few police forces have taken the need for training seriously and most have not, and women have been murdered and others have had their own lives and those of their families destroyed. Over the years it has been cruelly apparent that guidance is not enough.
With the ever-increasing focus on and understanding of the extent of the appalling violence against women and girls, including stalking, and with the appointment of Maggie Blyth to spearhead the policing strategy, I hope that the need for quality nationwide training will be understood and that it will be implemented. However, I would like an assurance from the Minister that the Secretary of State really will seek to ensure that the training takes place and, vitally, that there will be the necessary funding to enable it. I would also be grateful if she could explain what mechanism is or will be in place for that to be monitored, and how we as a Parliament can hold the Government to account on this vital issue.
Lord Paddick (LD)
My Lords, I pay tribute to the tireless work over many years of all three noble Lords who have spoken in this debate. Stalking remains widely misunderstood by many in the criminal justice system—specifically, how serious and complex it can be and how widespread it is, as noble Lords have explained. The amendment aims to remedy that situation, and we support it.
Baroness Newlove (Con)
My Lords, I thank the noble Lord, Lord Russell, for tabling this amendment. I praise the tireless work of the noble Baronesses, Lady Royall and Lady Brinton, in this area. I am delighted to put my name to the amendment because of the work of Laura Richards, who has also worked tirelessly. Even though she is not in the UK, she still works tirelessly on podcasts, which I suggest that everyone listens to; they are brilliant in the stories that they cover, but it is very sad to hear the journeys that some women go through.
I will not add much more to what my colleagues have said. Stalking, on its own, is horrific. I really welcome what we now have on domestic abuse stalking and I thank the Minister for the conversations we have had. However, it scares me that this piece of legislation has been left to wander in the fields again. I feel we have taken 10 steps forward and 50 back. Listening to victims of this horrendous crime in my former role as Victims’ Commissioner—victims I am still listening to—I know that the problem with stalking is that you cannot see it. If you had a scab on your hand and we could see it, we could then do something tangible. Stalking is horrific and coercive, both mentally and physically.
When we look at amending and putting this legislation into place, the default is that we must train better. Now we are asking that we have a standard of training for non-domestic abuse stalking. I believe that every word from the noble Lord, Lord Russell, and the noble Baronesses, Lady Brinton and Lady Royall, adds to the quality of what this training should be. Unfortunately, if a stalking victim phones up, it will not be the first time; they will be at the end of their tether. In society and under Governments past and present, we have waited until somebody is murdered brutally—taken. That should not be the case, as the horse has already bolted.
I ask the Government to look at this again: please put this national strategy for non-domestic abuse stalking right next to domestic abuse stalking. Then it will not be piecemeal and all these agencies will fully get what happens to victims of stalking.
Lord Mackay of Clashfern (Con)
My Lords, the first Bill I can remember that dealt with this subject did so under the name of “harassment”. That was before 1997. This whole evil has grown extraordinarily since then. I am not aware of any real analysis of the reason for that exponential growth, but it is certainly important that the people who have to deal with it understand what is involved. Unless and until that is developed fully, the problem will probably continue to increase.
In the list of people in this amendment, I do not see mention of the judiciary. Does the noble Lord, Lord Russell, have it in mind? Obviously, judges have to understand lots of different things that come before them and the judicial training system has been developed very much over a number of years. It is very effective. If it is intended to include the judiciary, it would be very advisable to say that, because the judicial training system would take account of that and, no doubt, as he said, look for the resources required to do it properly.
Lord Coaker (Lab)
My Lords, I add our strong support for this amendment. I pay tribute to my noble friend Lady Royall, the noble Lord, Lord Russell of Liverpool, and the noble Baronesses, Lady Newlove and Lady Brinton, along with many others, for their tireless efforts and leadership on this issue and their informative and inspirational words this afternoon.
The crucial point is that stalking is an offence that escalates. Victims and their families are being let down to an extent by the failure to recognise the seriousness of this crime—although, to be fair, that is improving—and the failure to manage serial and dangerous offenders. This Chamber has supported stronger action to tackle stalking perpetrators and protect victims in multiple pieces of legislation over the past few years, yet we find ourselves having to raise it again.
As the noble Lord, Lord Russell, pointed out, the amendment is a fairly moderate ask. Having said that, it is exceptionally important; it will make a huge difference to ensure that those interacting with stalking victims and investigating these offences have specialist training. The Minister should accept it and the Government should go even further in tackling this vile, criminal behaviour, on which the whole Chamber is united.
Baroness Williams of Trafford (Con)
My Lords, I join others in paying tribute to the noble Lord, Lord Russell of Liverpool, and his ongoing determination on this subject. The noble Baroness, Lady Royall, must also be commended as she not only educated me on the whole subject, way back when, but has shown that same tenacity—ditto the noble Baroness, Lady Brinton, who regularly shares her story with us. I join the noble Baroness, Lady Royall, in commending John Clough and others for their untiring campaigning on this. I have met John Clough; he is a truly wonderful man.
I totally get the sentiment of what the noble Baroness, Lady Royall, and the noble Lord, Lord Russell of Liverpool, are saying. He and I spoke earlier; we reflected on the journey we have come on, since I got into your Lordships’ House almost 10 years ago, in terms of the perception and awareness of and attitudes towards domestic violence, domestic abuse and stalking. While domestic abuse was certainly on the radar, there was a clunking attitude towards dealing with it; stalking is one step behind it, but to say we have gone backwards is just not the case—we have made great progress. However, I acknowledge—I think he sees this—that we have further to go, particularly in training on stalking and domestic abuse. It is a most dreadful crime; the impact on victims can be so dreadful.
I talked at length in Committee about the many actions to address stalking that we are taking through the tackling violence against women and girls strategy. I will not go through them all again, but the Government are totally committed to protecting and supporting the victims of stalking. We are determined to do everything we can to stop perpetrators at the earliest opportunity. On the point of the noble Lord, Lord Russell, that the VAWG strategy does not deal with male victims, I say that it makes it clear that, while the term “violence against women and girls” is used throughout the document, it refers to all victims of the relevant offences, including stalking. I am glad he raised that, as it allows me to clarify it.
The noble Lord also brought up the point that stalking is not only an awful crime but a very complex and multifaceted one. We talked about that earlier as well—the resentful stalker who may go after politicians, the intimacy-seeking stalker, the incompetent stalker and the predatory stalker. They come in all forms. As he said, many are not former partners of their victims, including so-called intimacy seekers and predatory stalkers. Within each category, there is a wide range of different types of stalking behaviour. Therefore, the Government totally acknowledge that the police need to be well informed about the many characteristics of stalking and the stalker to effectively investigate stalking cases. He can rest assured—I know he does—that it is a priority for the Government. I empathise with the aim of this amendment, but it is important to acknowledge the progress that is being made in the work we are doing.
It is vital that the police are provided with the correct materials and training to deal with stalking cases appropriately. That is why, in 2019, the College of Policing released a set of new advice products on stalking for police first responders, call handlers and investigators. These make clear, for example—I say this in response to my noble and learned friend Lord Mackay of Clashfern—the key differences between stalking and harassment. A range of advice and guidance products has been published by the College of Policing for forces to deliver locally to help responders to investigate stalking effectively, understand risks and respond appropriately to stalking cases. I know that training is also available to the police from providers in the charitable and private sectors. The noble Lord, Lord Russell of Liverpool, and I talked earlier about the work of the Suzy Lamplugh Trust, which runs the National Stalking Helpline and has been piloting a new training course for police called “Stalking Matters”.
Within Her Majesty’s Prison and Probation Service, all new probation staff and prison offender managers are required to complete mandatory domestic abuse awareness online learning, which includes a specific module on stalking. The module has recently been updated and rewritten, based on current research, by subject matter and academic experts within HM Prison and Probation Service. A process map has been developed to set out a consistent approach to working with stalking in the probation service, which provides links to relevant support and guidance documents, as well as learning that staff can complete. Furthermore, the stalking practitioner guidance is being finalised; this aims to raise awareness of the nature of, and various risks associated with, stalking. It will also direct practitioners to the support that is available within HM Prison and Probation Service when working with perpetrators of stalking.
When we had an opportunity to speak earlier, the noble Lord, Lord Russell of Liverpool, and I talked about the complexity involved; while the report from Maggie Blyth was excellent, there is complexity in practitioner understanding. I will take that away and we can perhaps discuss it further; there is no point having these things if they are not readily and easily understandable.
I now come to training within the CPS. E-learning modules are available to prosecutors; these cover the stalking and harassment offences, with emphasis on building a strong case, working closely with the police and engaging with victims throughout the legal process. Alongside the online course, elements of stalking and harassment are also covered in tutor-led mandatory training on proactive disclosure and hate crime. This training supports the Crown Prosecution Service’s legal guidance on stalking and harassment and restraining orders, the joint stalking and harassment protocol, and the associated checklist that must be used by police and prosecutors to ensure that they are taking the correct action in stalking cases.
The noble Baroness, Lady Royall, talked about police resources. She will know that we have a substantial police settlement for 2022-23 but her underlying point, I think, is that we have to put it to good use, and that the Government’s priorities need to be reflected in the work that the police do. She and the noble Lord, Lord Russell, also talked about the importance of data, the monitoring of ongoing work and Parliament’s duty to hold the Government to account on the policies that they make.
Of course, the police, the CPS and the probation service are operationally independent of government. The noble Lord, Lord Russell, and I discussed earlier the issue of mandating what training they should receive, especially, as I have just set out, when there is so much good work happening already. There is always more to do, but I do not think that the mandating of training is the best way of doing this, given the good work that is going on. There is also a very real risk that, if we were to legislate for one crime type, it might then suggest to law enforcement agencies that it should be prioritised over others. I know that that is not what the noble Lord and the noble Baroness seek. Appropriate training for criminal justice system professionals on tackling stalking is vital, but so too is training on tackling domestic abuse, sexual offences and other crime types. We do not regard these as less important; neither, I know, do the noble Lord or the noble Baroness.
In acknowledging and empathising with the sentiment behind the amendment put forward by the noble Lord, I assure him that the training provided to professionals working with the criminal justice system on stalking is robust and helps to address issues such as early identification of stalking cases—but I also acknowledge that there is more work to be done. I hope that the noble Lord will be content to withdraw his amendment in the knowledge that I have addressed his concerns as far as I can, and acknowledging the work that has been done. I know that we will come back to these matters at a future occasion.
Lord Russell of Liverpool (CB)
My Lords, I thank the Minister very much for what she said. As usual, she has been thorough and comprehensive. She said what I would have expected her to say, and I thank her for that. I understand that there is a certain point beyond which she is unable to go; I will come back to that in a minute.
I thank the noble Baroness, Lady Brinton, for reminding us—and me—that stalking affects a very large number of men, as well as women. It is easy to forget that, as there has been so much focus on violence against women and girls. The noble Baroness, Lady Royall, reminded us that we are at about our 10-year anniversary of trying to get Her Majesty’s Government to focus on this and acknowledge that it will not go away. As the noble and learned Lord, Lord Mackay, said, it ain’t getting better, it is getting worse, and we do not completely understand why this is so badly the case.
The noble Lord, Lord Paddick, was able to remind us from his own experience that guidance is not enough, in and of itself. The noble Baroness, Lady Newlove, reminded us of the role of champions such as Laura Richards, and others, who have been speaking up very effectively for the many victims—giving them a voice, trying to make us understand how they feel and what they have gone through. As she said, stalking is insidious. I suspect that, by the law of averages, we all probably know somebody who has been stalked, albeit that it is probably not a subject that we would readily raise around the dinner table. I suspect that, if we spoke to such people who we know—if they were prepared to open up about what their experience was like—and listened to them and watched the look in their eyes as they spoke about it, it would be pretty wrenching; that is the reality of it.
The noble and learned Lord, Lord Mackay, made a very good point about the judiciary, with which I absolutely agree; the judiciary needs training just as much as the rest of us. However, for the judiciary to be able to exercise its duties properly, it is incredibly important that among all the different bodies charged with identifying when a case of stalking is serious enough to become the subject of a prosecution, the way that this is pursued and the case is put together, by people who know what they are doing, is as watertight as it is humanly possible to be. However well intended and well trained, if a judge is faced with a prosecution case that, frankly, is not watertight, then, however strongly he or she may feel that an injustice is being done, if the case being put forward is inadequate, the law must follow its duty, possibly deciding not in favour of the victim—and it would not be the victim’s fault. That is the essence of what we are trying to avoid; it is going on and it will continue to go on until we really grasp it.
I will not detain your Lordships. I had hoped that we would do this in 30 minutes, but we will do it in under 45 minutes. I thank the Minister again for what she said, and the noble Lord, Lord Coaker. There is a huge focus on the inputs in many of these interactions from the Front Bench: there is a long list of money for this, an initiative for that, this service having this and that service having that. To come back to the issue of data, in the future I would like to hear less about inputs and more about outputs. We need the evidence that these input are actually working and making a difference. I know we will come back to this subject, but I genuinely believe that, until and unless all the different bodies dealing with these distraught victims, who come to the police perhaps after 100 instances of insidious stalking, are equipped with the knowledge and experience they need to really grab hold of it and give victims some justice, it will continue to haunt us and, indeed, stalk us. I beg leave to withdraw the amendment.
Baroness Newlove
“Offences motivated by hostility towards the sex or gender of the victim
(1) In this section—“relevant crime” means a reported crime in which—(a) the victim or any other person perceived the alleged offender, at the time of or immediately before or after the offence, to demonstrate hostility or prejudice based on sex, or(b) the victim or any other person perceived the crime to be motivated (wholly or partly) by hostility or prejudice towards persons who are of a particular sex; “sex” has the same meaning as in section 11 of the Equality Act 2010 (sex).(2) The Secretary of State must make regulations requiring the chief officer of police of any police force to provide information relating to—(a) the number of relevant crimes reported to the police force, and(b) the number of those crimes which, in the opinion of the chief officer of police, would be subject to subsection (4).(3) A court considering the seriousness of an offence arising from a relevant crime not included in subsection (4) must treat the fact that the offence is aggravated by hostility or prejudice towards sex or gender as an aggravating factor when determining a sentence.(4) Subsection (3) does not apply to—(a) an offence under the law of England and Wales which is for the time being specified in Schedule 3 to the Sexual Offences Act 2003, other than the offence specified in paragraph 14 of that Schedule (fraudulent evasion of excise duty),(b) an offence under the law of England and Wales which is for the time being specified in Part 6 of the Domestic Abuse Act 2021, or(c) an offence under the law of England and Wales which is defined in section 1 of the Domestic Abuse Act 2021 as “domestic abuse”.”Member’s explanatory statement
This amendment would require police forces to record data on crimes motivated by hostility towards the victim’s sex or gender, as well as requiring courts to take into account this hostility as an aggravating factor when deciding the seriousness of cases which are not sexual or domestic offences.
Baroness Newlove (Con)
My Lords, one of the themes that has come up again and again when we debate this Bill has been the need to do more to protect women and girls from the violence they face on an all too frequent basis. I start by paying tribute to my noble friend Lady Bertin and others across the House who have already made some tangible improvements to the Bill to ensure it does more to tackle violence against women and girls. Today, I hope we can provide a platform to underpin this work by recognising the cause of much of this violence: the hatred, abuse and entitlement, the misogyny—for that is what it is—that some hold in their hearts towards women. If we want to restore confidence for women that the police and the criminal justice system want to keep them safe from those who would do them harm, we need to start by naming it and then doing something about it.
In January 2021, UN Women UK showed in a poll of 1,000 UK women that although 80% of women of all ages said that they had experienced sexual harassment in public places, 96% of respondents did not report these incidents and 45% said that was because it would not change anything. Too often when it comes to violence against women, society demands the perfect victim before we act. We question women. We talk of self-defence lessons and, most recently, flagging down buses if they are worried. We ask, “What were you wearing? Had you been drinking? Where were you going?” We make the violence and abuse they experienced about them and whether they have provoked, or what they did to keep themselves safe.
Amendment 114F seeks to flip the script and ask what the police and the criminal justice system can do to catch those who put women at risk—to stop making women responsible and to hold those who commit these crimes accountable. It would do this by building on years of policing good practice. It is perverse that, despite 3 million crimes being committed against women in just three years, our legal and policing systems do not routinely recognise what we all know is blindingly obvious: the deep-rooted hostility towards women that motivates many of these crimes. As a society we have rightly taken steps to acknowledge the severity of racist or homophobic crimes, but have not yet acted on crimes driven by hatred of women.
Those who have listened to previous debates on this matter will know of the work started in Nottingham to address this issue, driven by the former police chief constable, Sue Fish, and rolled out to other police forces in England and Wales, including North Yorkshire, and Avon and Somerset. By recording when crimes are motivated by misogyny and training officers to recognise and record it, they have seen a substantial increase in the confidence of women to come forward and report crimes—not catcalling, although we know that shouting abuse in the street is a criminal offence, but rapes, sexual assault and harassment. This is the case not just in Nottingham. Women’s Aid reports that police forces that are now recording misogyny have not seen an influx in reporting of wolf-whistling, but instead receive a growing number of reports of serious crimes—a sign of the challenge we face and the value in recognising misogyny as a problem.
My amendment is in two parts. The first should be uncontroversial, as it simply seeks to guarantee what the Government have already promised: that all police forces will collect and report data on crimes motivated by hostility towards the sex or gender of the victim. This means that crimes motivated by misandry could also be recorded, but the evidence from those areas taking this approach is that between 80% and 90% of the victims are women.
The National Police Chiefs’ Council has, in its new violence against women and girls framework, recognised the need to target resources on high-risk spaces. It has also supported this approach and included sex or gender in hate crime reporting. It knows that data is a central part of the fight against any kind of crime. Without it, police forces are left stumbling in the dark with no way of knowing where or how to best deploy their resources to keep people safe. Noble Lords will remember that, during the passage of the Domestic Abuse Bill, the Minister promised that this would happen by autumn 2021, yet here we are in 2022, albeit in January, still waiting for it to happen. With a quarter of all forces already doing this, the three-quarters of women in England and Wales who live in the other areas have a right to expect better. Putting this in the Bill will ensure that we get it right.
The second part of the amendment would use this information in our criminal justice system by allowing courts to consider whether misogyny—or misandry for that matter—was an aggravating factor when an offence was committed. Hate crime legislation protects people targeted because of their identity. We use it to send a powerful message that attacking someone simply because you do not like the colour of their skin or their sexuality is not acceptable and to give higher sentences accordingly. Yet hate crime law recognises that someone can be a victim of more than one type of hate crime, except if the part of their identity being targeted is their being a woman. Muslim women may be victims of hate crime because they are Muslim and because they are women. Some 42% of black and ethnic minority women aged between 14 and 21 report experiencing unwanted attention at least once a month. Many women and girls with intellectual disabilities also experience abuse for the dual reasons of their disability and their sex or gender. Including sex or gender in the list of characteristics protected, as this amendment would do, would close that loophole and mean that victims of these crimes would not have to fit a tick box to be seen.
Finally, the amendment would also ensure that this approach does not lead to lower sentences for offences involving serious sexual violence or domestic abuse. Building on the work done by my noble friend Lady Bertin and the clear definitions provided of serious offences involving violence against women and girls in this legislation, Amendment 114F specifically disapplies the sentencing provisions from serious sexual and domestic offences. For the avoidance of doubt, that is not because these crimes cannot be motivated by misogyny. We carve out certain offences from other hate crime laws around religion and racial hatred to ensure that sentences are not inadvertently reduced; rather, they are enhanced when tariffs are applied in court.
This carve-out also answers the concern the Law Commission set out: that in recognising how misogyny drives crime in our criminal justice system, there is no hierarchy of offences. I know that some of my colleagues around the Chamber will want to ask why we are using the phrase “sex or gender”. This is because our focus is on the perpetrator, not the victim. Currently, the Crown Prosecution Service says that a hate crime is
“any criminal offence which is perceived by the victim or any other person, to be motivated by hostility or prejudice”.
Perception matters in hate crimes. Whether someone is born a woman or becomes one, if they are targeted for being a woman, being able to record that motivation will help tackle the cause and find those responsible for the harm. Excluding some women from this could give perpetrators a free pass. It risks valuable information about offending patterns being missed, and potentially gives perpetrators a chance further to demean a victim by claiming that they cannot experience misogyny because they are trans.
For too long, violence against women and girls has been consigned to the “too difficult” box and gone unaddressed. The police have started to recognise that this must change, led by the formidable work of Maggie Blyth, Sue Fish and others across the country. Now we must do the same. This amendment is our chance to show the same intent to tackle violence against women and girls wherever it occurs, rather than to continue to defer action; to learn from what works; and to ensure that the law is on the side of women, rather than on that of those who seek to abuse and harass them. It is time for deeds, not words. I beg to move.
Amendment 114G (to Amendment 114F)
Baroness Noakes
Baroness Noakes (Con)
My Lords, my Amendment 114G amends my noble friend Lady Newlove’s amendment and removes “or gender” from subsection (3) of her proposed new clause. When my noble friend tabled a different misogyny amendment in Committee, she constructed it using the formula “sex or gender”, and I argued against that formulation.
My noble friend’s new clause is headed “Offences motivated by hostility towards the sex or gender of the victim”, but the text of the clause is puzzling. Subsection (1) defines “relevant crime”, for the purposes of the new clause, in terms of
“hostility or prejudice based on sex”—
not on sex or gender. Of course, because it is the perception, that would also cover the perception of trans people. Sex has a definition, which picks up on that of the Equality Act 2010. When we get to subsection (2), which is about the recording of relevant crimes, that, too, because it makes no reference to gender, would clearly apply only to relevant crimes expressed in terms of sex, as set out in subsection (1).
Those of us who received the briefing this afternoon from the honourable Stella Creasy MP will have noted that it claims that this amendment refers throughout to sex and gender, but it quite clearly does not. Subsection (1), which governs subsection (2), refers only to prejudice or hostility based on sex. The problem is when we get to subsection (3), which is where my amendment bites. It states:
“A court considering the seriousness of an offence arising from a relevant crime”—
remember that a relevant crime is expressed in terms of hostility or prejudice based on sex—
“must treat the fact that the offence is aggravated by hostility or prejudice towards sex or gender as an aggravating factor”.
I really do not understand how that is supposed to work, and I do not think that “or gender” can fit with the definition of “relevant crime”, as it has been defined wholly in relation to sex in subsection (1).
Lord Carlile of Berriew (CB)
My Lords, I rise to support the original amendment, moved so ably by the noble Baroness, Lady Newlove, and to oppose the amendment to the amendment from the noble Baroness, Lady Noakes, which she moved just now. I hope she will forgive me for saying that her introduction of her amendment displayed a great deal of confusion, which is being much magnified in debate, about the differences, in so far as they exist, between the words “sex” and “gender”.
Gender is causing no confusion in the law, but I would urge the noble Baroness and others to take the trouble to have a look at the first legal textbook written on this subject, called A Practical Guide to Transsexual Law; it is authored by Robin White of Old Square Chambers in London, who is a trans woman herself and extremely expert in cases arising from trans issues, and her colleague in the same chambers, Nicola Newbegin. If noble Lords are suspicious about a lawyer in your Lordships’ number recommending the reading of a legal textbook, I reassure them that it is not because I want to make them go to sleep while doing their reading before they go to bed at night; it is actually one of the most fascinating textbooks written in recent years—and it has the virtue of being short as well.
The issues described in that book, which have interested me since I introduced the first transsexual rights Bill in the other place when I was a Member there, have evolved greatly over the years. I would say to those who are suspicious or uncomfortable about these issues that young people—people born after 1995, to date at random—they do not understand the problem. To them, trans people are included among their friends, and it is “just a thing, not an issue”, to quote one of my own daughters on the subject. It is becoming increasingly common for young people to move in circles where trans men and women, and, for that matter, gender diverse men and women, are absolutely standard parts of the community.
The Equality Act, which has been in existence for a considerable time, says that you must not be discriminated against because of your gender reassignment as a transsexual and that you may prefer the description “transgender person” or “trans male” or “female”. There is much more I could read out to your Lordships that illustrates that the law has been in place and has been well understood for a long time.
Let us just consider what the noble Baroness, Lady Newlove, is trying to achieve in subsection (3) of her proposed new clause. I need to confess a sort of interest at this point, in that I am married to a circuit judge who tries criminal cases only. So perhaps I have a little bit more evidence in my mind—she certainly does not agree with everything I say, by any means— on how judges behave not just from my own practice but from a lot of discussion about these issues. The amendment provides:
“A court considering the seriousness of an offence … must treat the fact that the offence is aggravated by hostility or prejudice towards sex or gender as an aggravating factor when determining a sentence.”
Can one seriously suggest that a circuit judge, or a magistrate for that matter, does not understand what that means? If the judge understands what that means, surely it is as just as any other aggravating factor.
Let us look at it down the other end of the telescope. Five or six young women go out for a night out, and during the course of that night out an offence takes place in which there is hostility or prejudice towards the one of them who is a trans woman. Would it really be right for the other five to have an aggravated sentence brought upon the offender, if the hostility was towards them as women on the grounds of sex, but not that trans woman, if the hostility was shown to them on the grounds of gender? It is a nonsensical suggestion, and what is in the noble Baroness’s proposed new subsection (3) is just common sense—the sort of common sense that judges apply in the courts every day. So I would urge your Lordships to take the view that the use of the phrase “sex or gender” in this amendment is just good 2022 common sense and, if one is minded to support the amendment, one should support it in its original form.
Lord Paddick (LD)
My Lords, I want to take a slightly different view of this. We support misogyny being treated as a hate crime and, personally, I do not understand the arguments of the Law Commission in relation to domestic violence and sexual offences. The same objections could be made to existing hate crimes such as homophobia, but they exist alongside these serious offences without difficulty. I wonder whether proposed new subsection (4) in the amendment is necessary.
May I suggest an alternative way out of the gender debate? I wonder whether, in line with the Law Commission’s report on hate crime in relation to other aspects of hate crime, the words in brackets—“or perceived sex”—should be added to the word “sex” at the end of new subsections (1)(a) and (1)(b) proposed by the amendment. I am thinking of the following hypothetical example. A man who shouts demeaning and derogatory terms for a woman, indicating a hatred of women, and who without provocation attacks a stranger in the street, indicating that the attack is motivated by a hatred of women, should be charged with the aggravated misogyny offence, whether the assailant is mistaken in identifying the victim as a woman or not. It should not matter whether the victim is a woman or not; it is the motivation of the attacker that is important. If that motivation is hatred of women, it should be an aggravating factor.
However, despite my concerns about the wording of the amendment, we have waited long enough for this important and necessary change in the law. Any defect in the wording of the amendment can be addressed in the other place, and if the noble Baroness divides the House, we will support her.
Baroness Fox of Buckley (Non-Afl)
My Lords, I raised my opposition to a version of this amendment previously. For once, I was planning to keep out of the gender identity argument—although I agree with both the speech and the amendment from the noble Baroness, Lady Noakes—but I feel I must make some response to the noble Lord, Lord Carlile, who said that the concept of gender is causing no problems in the law or among judges. I am delighted about that, but let me tell you that the concept of gender is causing a huge number of problems for many women.
The judge advises that we need to talk to young people who include trans people among their friends. I point out that I have trans people among my friends and spend a huge amount of time talking to young people. There is not just one view on this; there are lots of views. One of the problems we have to recognise is that open debate about gender and trans issues is often chilled, for fear of accusations of hate or bigotry—and, ironically, most of the misogynistic abuse that I and other women have received in recent months and years has been on this issue of being gender-critical.
I will now go back to what I was going to say. My opposition to this amendment is based on a key concern: the need to avoid fuelling a narrative of fear that posits the idea that terrible and unimaginably horrific, but rare, instances of sexual violence and murder are part of a continuum of widespread misogynistic attitudes. This can too easily align everything from online trolling and catcalling to rape and domestic abuse under the label of misogyny—hatred of women.
There is limited time because we have very major things to discuss, so I will focus my remarks. I appreciate that the amendment from the noble Baroness, Lady Newlove, explicitly distinguishes between sexual violence crimes and other forms of crime that may be motivated by misogynistic intent, and that it is not an attempt to create any new criminal offences, being more concerned with the police recording and reporting of the number of crimes motivated by hostility towards sex and, sometimes, gender. This, we are told, is crucial to identifying patterns of behaviour and targeting police resources, so that we can build a national picture of violence against women and girls. However, hate crime legislation generally, as echoed in this amendment, in fact means that the data collected is based almost entirely on subjective perceptions and will not allow an accurate picture to emerge.
The amendment talks of a reported crime in which
“(a) the victim or any other person perceived the alleged offender, at the time of or immediately before or after the offence, to demonstrate hostility or prejudice based on sex, or (b) the victim or any other person perceived the crime to be motivated (wholly or partly) by hostility or prejudice towards persons who are of a particular sex”.
So this amendment would not help us understand data as fact but more how victims—or any other third parties—subjectively see either the motivation of the alleged offenders or the crime. To compound the issue, there is no legal or formal definition of “hostility”, so the CPS suggests that we use the everyday understanding of the word, which includes ill will, spite, contempt, prejudice, unfriendliness, antagonism, resentment and dislike. This can lead only to the possibility of an ever- widening set of crimes being badged as misogynistic, with the only evidence being subjective.
The practical outcomes could be severe and serious, as the amendment would alter sentencing. This means, essentially, that, if someone thinks or feels that someone else is being hateful towards them, and the hostility in carrying out the crime is based on sex and explains their offence, that is enough for that person to be locked up in prison for longer. There is also a more insidious punishment: this amendment might mean that more and more behaviour—we know that we mean especially that of men and boys—is deemed to be misogynistic, destroying the reputation of those people once they are labelled as bigots who hate women, according to this categorisation, without necessarily being branded as such in reality.
According to the campaign literature sent out ahead of this discussion, this label of hostility via sex can be used to imply far more than hostility. However minor the original crime, if it is labelled as sex-based hostility we are told that it is an almost inevitable slippery slope and that this is the kind of person who will carry out, if they are not stopped, the most heinous crimes, such as rape, sexual violence and murder. Meanwhile, HOPE not Hate sent round a missive saying that this kind of sex-hostility is a slip road to far-right extremism.
Finally, the Fawcett Society claims that this amendment will give women protection from crime and help ensure the safety of women and girls. I say that it will not: if anything, it could distract the police from the practical, difficult but essential work of on-the-ground patrolling of streets, painstaking investigations, and so on, and the courage to see through those investigations and prosecutions. It might take valuable resources for the police away from policing if they are tangled up in the reporting and monitoring of staff and data which I do not think, as I have shown, is reliable. Consider one of the most gross examples of the abuse of women and girls: the grooming gangs that operated in parts of the north-west of England. Those women and girls would not have been helped one iota had those crimes been called misogynistic. The shameful neglect in the investigation and prosecution of that incident was surely not about whether it was seen as being driven by hostility to sex. This amendment avoids the real problem, is tokenistic and will not help women at all.
Lord Russell of Liverpool (CB)
My Lords, I have put my name to this amendment and will speak very briefly, not least because I have the privilege of being one of the Deputy Speakers of this House. I would just remind noble Lords that we are at Report, and at Report we are not meant to give either Second Reading or Committee speeches—it is a discourtesy to the House to be discursive. That is all that needs to be said on that.
Some noble Lords may be familiar with a newspaper that is normally far too left-wing for me, the Daily Telegraph. There is an article in today’s paper by a gentleman called Charles Hymas, which says—and I have no reason to believe it is not true, since I understand that there are fairly close links between the aforementioned organ and the party in government—that there are quite a few quite senior Back-Benchers in another place who are very keen to use this amendment, assuming your Lordships pass it, to enable them to have a proper discussion in another place about this issue and to decide then, as our elected representatives, whether this case has sufficient merit to be put into law and in what manner and form that should happen. I suggest that they are rather better qualified to do that than we are.
Having said that, my Lords, I will support this amendment. I think we should send it back to another place for them to have another look. The other place is also a better place to have what can be an extremely contorted and overimaginative debate about gender and the relative merits of sex and gender.
As others have said, I am not sure that generationally we are the best-equipped assembly to opine on these subjects. That does not mean that we are not able to have a point of view, and I am aware that some noble Lords and noble Baronesses have a very strong point of view. I simply point out that, however strongly they may feel, there are a great many others of a younger generation, and down the other end, who feel differently. I support this amendment, because I think your Lordships should give the other place a chance to decide for itself.
Lord Winston (Lab)
My Lords, I hope the noble Lord does not think I am being discourteous to the House by making a short intervention in this important debate. We have to be very careful about legal definitions of sex and gender. Primarily, the definitions are not legal but are in fact biological, as I have said in this Chamber before. That is a problem. That is one of the reasons why I agree with what the noble Baroness, Lady Fox, just said. For example, we have to understand that there are situations in which there might well be problems with—whatever you call it—misogyny or hate. Take a transgender woman who was originally assigned as a male and still has the genes of a male, and possibly some of the hormonal function of a male, who competes in a sporting event. That is a difficult issue that has not yet been properly dealt with. Clearly, it is quite likely that from time to time those sorts of situations will cause considerable anger, hostility and all sorts of effects that might be an offence under the Bill. We at least need to record that and decide how we deal with it.
Baroness Kennedy of The Shaws (Lab)
My Lords, I support the amendment, and I want to deal with one or two things that have come up in this discussion. The noble Baroness, Lady Noakes, suggested that the evidence base is very thin. The evidence base of women receiving threatening and abusive behaviour and sometimes assault, accompanied by expressions that make it very clear that it is directed at them as women, is substantial. I have just been receiving evidence for a working party in Scotland, and over this past year it has been shocking to see the extent to which this is a serious problem for girls and women. It should not be underestimated, and of course it is accelerated by social media, which is encouraging the kind of verbal assault that is so disgusting and disgraceful that it is hard to imagine women and girls having to deal with it in their daily lives. It really is endemic, so I do not think that what we are trying to do here can be minimised.
As for suggesting that we introduce a complicated debate about the comparatively very few women who are trans women and might be included in this, that seems just extraordinary to me. It is a diversion from the fact that women, who make up more than 50% of the population and are not a minority, are experiencing this on a daily basis. Let us get real about it.
The noble Baroness, Lady Newlove, has pointedly made something part of her amendment. She says that the focus of this is on the perpetrator. How does it come about that an aggravation is used? It is because there is evidence, in addition to the evidence of a regular crime, that it has been motivated by antagonism and hatred towards women.
Of course, misogyny is wider than simple, old-fashioned hating. It is about a sense of entitlement, usually by young men, towards women and their bodies. The ways in which women have to experience verbal nastiness of a high level undermine their self-confidence and self-expression, so this is really damaging in our society. The noble Baroness, Lady Fox, says it is a nonsense to suggest that this leads on to more grievous crime. I am afraid that it is not a nonsense, because we know that it normalises certain kinds of behaviours that then go undetected by the police.
I really want us to think seriously about how we stop this happening. When women say this has to stop, what is the answer? A misogynistic aggravation is not the answer; it will not solve all the problems, but it is a starting point to let women know that misogyny is taken seriously by the legislature. That is why I support this amendment to the Bill.
Baroness Bennett of Manor Castle (GP)
My Lords, acutely aware of the time, I will be extremely brief. It is a great pleasure to follow the noble Baroness, Lady Kennedy of The Shaws, and to agree with everything she just said.
I pick up a really important point from the noble Lord, Lord Russell of Liverpool. So many people have been campaigning on this issue for so long, with the noble Baroness, Lady Newlove, being such a powerful champion, and many other Members of your Lordships’ House as well. But I think we are looking tonight at two different kinds of amendments and two different structural issues. It is really important that we make it clear to those outside this Chamber that, as the noble Lord, Lord Russell, said, if we support Amendment 114F —I strongly support it—that will create the chance to have a debate in the other place. I want to make it clear to people that this is different from other amendments that will be considered later this evening.
My simple message to campaigners is that if Amendment 114F passes, as I hope it will, this is an opportunity for you to really make your voice heard in the other place. Write to your MP; make this a place where this debate is finally settled. I made a contribution in Committee, and back in March I made a contribution on the same issue on the then Domestic Abuse Bill. We really need to make progress, and this is an opportunity for this House and for people out there to get into this debate.
Baroness Warwick of Undercliffe (Lab)
My Lords, I will be very brief, since I supported an amendment in November attempting to achieve a similar outcome. I commend the noble Baroness, Lady Newlove, on her tenacity in pursuing this issue. This amendment simply builds on best practice already established in policing, where forces need to recognise the causes of violence against women. It attempts to fill a gap in our hate crime legislation, where sex and gender are the only protected characteristics not recognised, and to send a clear message that women’s safety matters. I simply reinforce those points and all those that the noble Baroness, Lady Newlove, made. I support her amendment.
Baroness Stowell of Beeston (Con)
I was not going to intervene in this debate, but I will do so briefly. First, I will not stand behind anyone else in a queue of people showing respect and admiration to my noble friend Lady Newlove, so it pains me when I find myself on the opposite side of an argument to her. That said, I agree with so much that she said in the way she described the crimes and assaults that many women experience. I also agree with a lot of what the noble Baroness, Lady Kennedy, said.
I do not want to get involved in any kind of discussion about the difference between sex and gender. The point that I want to put on the record, not least because of what the noble Lord, Lord Russell of Liverpool, said, is that there is not a consensus among women that misogyny should be introduced as a hate crime. I would be very concerned if that were to happen, not because I am in any way not concerned about the violence, the hatred and some of the discrimination that women face but because I do not want us to cultivate a society in which women are universally seen as victims and all men as aggressors. That is a risk and a potential consequence of us pursuing this course. I put that on record and look forward to the way in which my noble friend the Minister responds to this debate.
Baroness Jenkin of Kennington (Con)
My Lords, I too shall make a very brief intervention, in agreement with my noble friend Lady Stowell. I have some concerns that this is not the way to solve the problem of violence against women. I absolutely accept that misogyny does exist, I think women have good cause to be aggrieved about the increasing challenges we all face and the idea of misogyny as a hate crime certainly sounds attractive, but at a time when I have never known women angrier and more afraid, I think we have to ask whether this is really the right legislation to deal with our grievances. From my experience, women want better conviction rates for rape, better protection against domestic abuse and violence, and to be able to go for runs outside without fear of attack or even murder. With an average of two women murdered every week, that is what they want the police to focus on.
The Law Commission report says
“while we consider that there is a serious problem of crime that is connected to misogyny”—
I accept that too—
“we have concluded that the particular model of hate crime laws is unlikely to prove an effective response to misogynistic offending, and may prove more harmful than helpful, both to victims of violence against women and girls, and also to efforts to tackle hate crime more broadly. We suggest that reforms in other areas are more likely to result in tangible positive results.”
I agree, and I think there is a danger: we need to be careful what we wish for. There is every possibility that this kind of crime will get bogged down by bureaucracy and endless debate, none of which will improve the lives of women at all. The law of intended consequences may well be part of this. I just say to the noble Lord, Lord Carlile, that surely the example he gave is not correct, because transgender identity is already a protected characteristic. I was confused by that.
Baroness Hunt of Bethnal Green (CB)
My Lords, I will not take up too much of the House’s time. I am a Covid baby—I have learned the culture of this House via screens—so I hope your Lordships will forgive me if I get the protocol incorrect, but I consider you all my noble friends. I am really struck by the amendment of the noble Baroness, Lady Newlove, and support it wholeheartedly because I have seen the benefit of hate crime legislation and the benefit of aggravated offences on the grounds of sexuality, disability and race. It is illogical to me that that is not extended to women when it exists for every other protected characteristic.
On a personal note, this issue of sex and gender is something that I have been researching for a very long time. I am the former CEO of Stonewall—since 2019 I have been free—but I have been thinking about these issues since 1998, when, as a student at St Hilda’s College, Oxford, we were debating whether transwomen should be allowed in that women-only college. So, I am slightly a 1980s baby, but have thought about these issues for a very long time.
I am often thought to be trans. I am not, but I am often thought to be. I do not have my tie on this evening because it is going to be a long night—and if, unlike the gentlemen, I have the option to drop it, I will—but when a woman has been told for most of her adult life to accessorise, she does get attracted to the tie racks in Liberty as an option for those accessories. I experience discrimination on the grounds of my gender, sometimes on the basis of my sex—because I am a woman and perceived to be a woman—but often on the grounds of my gender, my gender identity and my gender presentation. These things are complicated; they do not lend themselves to pithy statements.
I have huge sympathy with those who have very different views from mine on trans issues and I think there is probably more that we can talk about together than what divides us. We have become caricatures of ourselves by the medium of social media and I have a huge amount of respect for the noble Baroness, Lady Jenkin, and the work she has done around women in politics, but I know we disagree on this. I hope we can find ways to come together, but I think this amendment referring to sex and gender is wholly beneficial to women. I hope to support it, hope to see it taken back to the other place, and I thank the noble Lord, Lord Russell, for his support.
Lord Coaker (Lab)
My Lords, we strongly support the amendment in the names of the noble Baroness, Lady Newlove, the noble Lord, Lord Russell of Liverpool, and my noble friend Lord Ponsonby of Shulbrede. We strongly support the amendment because, as my noble friend Lady Kennedy pointed out, misogyny sits behind much harassment and intimidating behaviour that, unfortunately, many women experience as a reality every day in our communities. It fuels behaviour that, far too often, escalates into serious offences. We have to repeat, again and again, that violence against women and girls does not occur in a vacuum.
I agree very much with what the noble Baroness, Lady Warwick, was alluding to and am proud of my own local police in Nottinghamshire, who have been leaders in this area, as the noble Baroness, Lady Newlove, pointed out. It was the first force, in 2016, to record misogyny as a hate crime. I can tell the Chamber that it made a very real difference in Nottinghamshire when the chief constable, Sue Fish, stood up and said she was going to make it a priority for her officers. It spoke to her officers in terms of how they dealt with it, but it also spoke to the women and girls, and indeed the men of Nottinghamshire, about the priority that was going to be given. It made a very real difference and continues to do so. Sue Fish should be congratulated on being the leader that she was and is.
This campaign to recognise misogyny as an aggravating factor in the same way that we recognise hostility against a person due to disability, race or other characteristics has been running for years. Now is the time for all of us to show some leadership, to close the gap in our law and to state clearly that we do not accept the status quo and that things must change. There is much support for this change and the Government should take this opportunity, an opportunity that exists for us now and that we should take.
Baroness Williams of Trafford (Con)
My Lords, I was quite pleased to hear noble Lords saying that your Lordships’ House should curtail debate this evening: I have never experienced it in all my time as a Minister.
I start by thanking my noble friend Lady Newlove and the noble Lords, Lord Russell of Liverpool and Lord Ponsonby, for this amendment. It speaks to their continued commitment to tackling violence against women and girls and I know they have campaigned tirelessly on this issue. Given their sincerity and their deep and obvious desire to do what is best in this sphere, I am saddened that I am not going to give them much comfort on this amendment, and I shall explain why.
As noble Lords may be aware, last month the Law Commission published its final report, Hate Crime Laws. It is a weighty tome—some 545 pages—and, as always with the Law Commission, it is a thoughtful and well-argued document that warrants very close reading. On behalf of the Government, I thank the Law Commission for the thorough and intelligent way in which it approached the task that it was given. I assure noble Lords that the Government will give all the recommendations, of which there are 34, very detailed consideration. As is customary, a full government response will be published in due course; it will address each of the recommendations and I do not want to pre-empt that process.
However, ahead of that I should just draw noble Lords’ attention to what the Law Commission said on the specific issue which Amendment 114F addresses; namely, adding sex and gender to hate crime laws or, in common parlance, “making misogyny a hate crime”. In its report, the Law Commission was unequivocal that the course of action represented by this amendment would not be appropriate, as it would potentially prove detrimental to women and girls. Indeed, it noted that to add these characteristics to the hate crime legislative framework
“may prove more harmful than helpful”
and would be
“the wrong solution to a very real problem.”
I add that transgender identity is already covered in hate crime laws.
In coming to the conclusion it did, the Law Commission applied its usual rigour, dedicating almost three years of thought and careful deliberation to its work. It did so by examining, in exhaustive fashion, whether any legal models would be appropriate to making misogyny a hate crime. It did so on the premise that
“violence against women and girls is extremely prevalent and harmful”,
as noble Lords have said—eliminating all doubt, if there was any, that it did not in good faith stretch every sinew to find an appropriate solution through the hate crime framework. Finally, it did so while listening to and acknowledging the voices of many practitioners who are dedicated to tackling violence against women and girls before making its recommendations, independent of government or political considerations. In this regard, there are few greater examples of what might be called evidence-based policy-making.
Baroness Newlove (Con)
My Lords, I thank everybody who has participated in this debate, whether you agree or not I think it has been—
Baroness Noakes (Con)
I believe I should deal with my amendment to my noble friend’s amendment before she gets into winding up. Much as I would love to wind up the whole debate, I will confine my remarks to my amendment, which simply sought to remove “or gender”. I think that is the smaller issue that we are dealing with today. The bigger issue is whether this is an appropriate addition to our hate crime framework in law. I will leave my noble friend to wind up on that, and I beg leave to withdraw my amendment.
Baroness Newlove (Con)
My Lords, I will get it right this time—I have only been here 12 years.
I thank everybody who has participated in this amendment. I just want to say that this amendment has no bearing on the definitions of sex and gender. It creates no new criminal offences at all. As with religion, which is certainly not biological, targeted hostility would aggravate an existing and proven offence and with the courts deciding that aggravation has been proven as a fact, the courts are capable of dealing with it. I thank the Minister but, unfortunately, I still wish to test the opinion of the House.
Lord Coaker
Lord Coaker (Lab)
My Lords, I move this amendment on behalf of my noble friend Lord Rosser; it is also in the names of my noble friend Lord Dubs and the noble Viscount, Lord Colville of Culross. I will be reasonably brief on this group of amendments, because, unlike the ones we are to reach later today, we have had prior debates on, and scrutiny of, some of these provisions.
The group covers the existing protest provisions in the Bill, but this amendment focuses on one particular priority issue, namely, the imposition on public processions conditions related to noise. Indeed, the clause targets protests for being too noisy. It provides a trigger for imposing conditions on public assemblies, public processions and one-person protests if a protest is too noisy. Many noble Lords in this Chamber will know that many people would have fallen foul of the conditions in this proposed new legislation had it indeed been the law at the time. I certainly have been on numerous demonstrations, as have many noble Lords behind me —and, I am sure, some in front of me—
Lord Coaker (Lab)
Whatever: they will have been on various demonstrations. Whether they were on behalf of the Countryside Alliance or not, the principle would have been the same and noise would have been a part of them. Has democracy collapsed in the face of noisy protests over the last couple of centuries? It has not. At some of the protests that I have been on—and, I am sure, at those that many noble Lords have been on—the noise has been phenomenal. It has been part of the object of them. Never have any Government of any colour sought to ban protests on the basis of noise or to put conditions on the basis of noise.
Protests are noisy—whether it is local families protesting the closure of a leisure centre or a march in front of this Parliament, protests make noise. The more well attended a protest is, the more popular support an issue has, in general, the noisier it will be. These clauses do not restrict protests for being violent or out of control or for causing damage; these are peaceful protests, but they can be restricted because somebody, in someone’s mind, is too noisy. The clause provides that a protest can trigger these conditions if the noise generated might cause
“serious unease, alarm or distress”.
It is an exceptionally low and vague threshold, as many noble Lords pointed out in Committee.
The Government have sought to do something about that. They have recognised it and thought, “This is a bit of a problem; they are quite right about some of the vagueness of this and about some of the definitions”, so the Government have brought forward a series of amendments, which are in this group. Without reading this to noble Lords—because they can read it for themselves—we can look at proposed new subsection (2ZC) in government Amendment 116, I will just leave this open and hanging in the air. If that clarifies what “noisy” means in the context of a protest, when it talks about people connected to organisations in the vicinity,
“not being reasonably able, for a prolonged period of time, to carry on”
their activities, the courts are going to have a field day. That is the clarification; that is the way in which the Government seek to do something about it. Even the Government recognise that vagueness is a problem. They are trying to do something about vagueness with a clarification that is equally vague, but which allows them to say that they have tried to address the problems raised in Committee.
Of course, the Government always have to balance protests with the rights of people to go about their lawful business. Balance is always important, but the right to protest in this country has never, ever had to have a condition placed upon it that is about noise. It never has. The noise generated at protests that I have been on has been immense, but never have the Government turned round or panicked and said that they needed to impose conditions on that in some way in order to do something about the protests. These are very serious amendments that we have put forward. These are very serious debates that will take place from now on, on the existing clauses and then on the new clauses. They involve the fundamental right of people to protest. Making noise is a fundamental part of the freedom to protest properly in a democracy.
Viscount Colville of Culross (CB)
My Lords, I also put my name to Amendments 115 and 123, because I am still concerned about the Minister’s assurance in Committee on Clauses 56 and 57 that the threshold for the police to impose these conditions on noise would be very high. However, the threshold in Clause 56(3) that the noise caused by protesters could cause reasonably firm people to suffer serious unease seems subjective, and a low threshold. I fear that it will put the police in an invidious position.
I refer the House to the JCHR report recommendations on these clauses. It says:
“Using multiple terms that are open to wide interpretation, such as ‘intensity’ and ‘serious unease’, leaves an excessive degree of judgment in the hands of a police officer … It will also give rise to uncertainty for those organising and participating in demonstrations and fails to provide convincing safeguards against arbitrary or discriminatory use of these powers.”
I urge your Lordships to support Amendments 115 and 123.
Viscount Hailsham (Con)
My Lords, I rise to support the Government on this matter. It rather caught me by surprise that I was going to but, having studied the amendments with some care, I am on their side. As regards Amendment 116, these provisions are a serious improvement on what went before. I am bound to say that I was very uneasy with what went before but Amendment 116 addresses some of the concerns. I have two drafting points to make, which could be addressed in the House of Commons if the Government were so minded.
First, I absolutely agree with those who worry about the word “significant”. “Significant” is pretty trivial; it is not “substantial” or “serious” and, speaking for myself, I rather hope that the Government substitute “substantial” or “serious” when the Bill gets to the House of Commons.
My second point concerns proposed new subsection (2ZC). Here, I do not think that the Government have gone far enough, because what is being contemplated in that provision as it stands—I am sorry, I simply do not agree with the noble Lord who spoke from the Opposition Benches on this—is a total inability to carry on the work in the vicinity of the noise. But we should also address circumstances where there is a considerable inconvenience to ordinary citizens, which takes me to my fundamental point: of course demonstrators have the right to demonstrate, but ordinary citizens also have rights to go about their ordinary business, to work, to enjoy reasonable tranquillity and to expect others to respect that. It seems that the law has gone too far in favour of a demonstration, and that is very unfortunate. On the whole, I therefore support the Government in this matter.
It is true that if I was drafting this thing, I would have done it slightly differently. I agree with the noble Lord, Lord Coaker, about unease. What does unease mean? The noble Viscount, Lord Colville, makes the same point and I agree. I also agree on the concept of not being able to carry on proper business. That is slightly doubtful to my way of thinking as well. However, on the whole, although I came initially to think these things had gone too far, I now think that the Government are broadly speaking right in trying to bring about a better balance between the rights of demonstrators and ordinary citizens.
Baroness Jones of Moulsecoomb (GP)
Could I just mention to the noble Viscount, Lord Hailsham, that these are ordinary people who protest? These are people who quite often just do not agree with the Government. I support a lot of protests that happen at the moment; there are sometimes protests that I do not support, but I support those people’s right to protest. On noise, I agree completely with the noble Lord, Lord Coaker. How do the Government seriously think that protest is going to happen without noise? That is a fundamental part of it, whether it is drums, chanting or singing, or just talking through a megaphone. These provisions really are so oppressive. I have attached my name to Amendments 122, 133 and 147. These clauses should be deleted from the Bill. They are repressive and plain nasty, and they really have to go.
Lord Hain (Lab)
My Lords, I have added my name to the amendments in this group standing in the name of the noble Lord, Lord Paddick, particularly those related to striking out Clauses 56, 57, 58 and 62. Briefly, in my view the Bill represents the biggest threat to the right to dissent and non-violent protest in my lifetime. It is deeply reactionary. It is an authoritarian attack on the fundamental liberties of our citizens.
If enacted in past generations, it would have throttled the suffragettes and blocked their ability to rattle Parliament’s cage to secure votes for women. It would have prevented antifascists stopping Mosley’s bullying, anti-Semitic blackshirts at Cable Street in the East End of London in 1936. It would have thwarted anti-apartheid protests that I led, in 1969 and 1970, which successfully stopped all white South African sports tours—a success which Nelson Mandela, then on Robben Island, hailed as a vital stepping stone in the ultimate defeat of apartheid. It would have prevented the Anti-Nazi League protests that stopped a resurgent and anti-Semitic, Islamophobic and fascist National Front in its tracks between 1977 and 1980, and in the early 1990s, similarly, the BNP. If Boris Johnson and Priti Patel want to be on the wrong side of history, the Bill is certainly the way to do it. I hope that this House will resist them.
Lord Deben (Con)
My Lords, if one is going to make a change of this kind, which, as the noble Lord, Lord Coaker, says, has not happened before, one has to have a very good reason for it. The Government have produced no good reason for it. What they have said is that there are many protests which are very difficult and awkward. There are protests which have embarrassed me considerably as chairman of the Climate Change Committee, because I have had to explain that they are right about what they are protesting against but should not be doing it in the way they are, so I think it reasonable for me to say that these amendments go far too far. We are a democratic society and if I cannot go outside here and make a noise to point out that I think a whole range of things that the Government —or any Government—are doing are unacceptable, then my human rights are very seriously impugned.
When I came into this House, I said that there were three things I wanted to talk about: the environment, Europe and human rights. I want to be able to go on protesting about the ludicrous policies on Europe. I want to go on protesting about some of the things which have not been done, and ought to be done, about the environment. I want to congratulate the Government on many of the things they have done on the environment and climate change, but I need also to have the opportunity of making it clear when one believes that what they have done is wrong. Dissent and protest are essential parts of democracy. These provisions go too far.
The Lord Bishop of Leeds
My Lords, I have a number of problems with this part of the Bill that are to do with form and content. The fact that these amendments were brought in at the stage they were seems an abuse of parliamentary scrutiny. Some of the debates we are having could have been sorted out had they been addressed in the normal way. That fits into a pattern of intimations about breaking the rule of law and the authoritarian complexion of the way in which some things are being done in, through or around Parliament. That is my problem with form.
On content, it seems that we would have to remove the statues of Gandhi and Mandela from Parliament Square were these provisions to go through. You cannot laud people later as being great and prophetic actors by exercising the right to dissent, at the same time as clamping down on that in the building over the road. We have heard a lot in recent debates about freedom, particularly in relation to Covid, freedom passes and things like that, but we cannot just pick and choose which freedoms are convenient to us in a democracy.
I say to the noble Lord, Lord Hain, that the dry run for Cable Street was actually the week before, in Holbeck Moor in Leeds. It would have been ruled out as well. There is a significant point to make about the word “significant”, which was mentioned earlier. How is it that in legislation we are able to use words that are so incapable of definition? If something is significant, it is “significant of” something. It is not just significant; that is meaningless as a definition. That is like when people write that something is incredible, which, if it was, would have no credibility; they actually mean the opposite. You can get away with it in ordinary parlance but not in legislation.
Lord Dubs (Lab)
My Lords, I am fully in support of the amendment, of course, to which I have put my name. I have served on the Joint Committee on Human Rights, and we have condemned this provision and said that it should not be part of the Bill because it is a breach of fundamental human rights. I have been on quite a lot of demos, and I would probably run foul of this legislation if it went through unamended. I cannot think of any demo that I have been on where we did not try to make noise, because that is part of what being on a demo means. I wonder whether the people who drafted the wording have ever been on a demo themselves—I do not believe it. Those of us who have been on demos know that the noise is encouraging; it tells spectators, who often join in support anyway, what we are about and what we seek to do. This is an absurd idea.
I think of the span of history—my noble friend Lord Hain contributed to this discussion—and there are so many important changes that started with noisy demos. How did some of those changes happen? Without noisy demos, a lot of changes do not happen. One looks at the suffragettes and all sorts of important demos; this is the nature of our democracy, and this Government are trying to trample all over it.
Baroness Hoey (Non-Afl)
My Lords, I support very much what the noble Lord, Lord Coaker, said on this provision. There are a lot of good things in the Bill, but this is certainly not one of them. People watching this—the public—will think that somehow the Government have lost common sense. The idea that anyone can go on a demonstration and not make noise shows such a lack of common sense that I really do not understand how anyone could possibly have put this forward.
The noble Lord, Lord Hain, mentioned all sorts of demonstrations and historical events that have been helped by noise. Every Saturday, the Zimbabwean diaspora turn up outside the Zimbabwean embassy, sing very loudly and play their drums and music in a loud way. Who is going to decide whether that is bringing unease to people? It certainly brings unease to Mnangagwa in Zimbabwe, I hope. This is something on which I am sure the Minister is sitting there and thinking, “Why on earth are we doing this?” I hope that, even at this stage, the Government will not press these ridiculous amendments.
Lord Cormack (Con)
My Lords, I wish to associate myself strongly with the splendid speech made by my noble friend Lord Deben, who was absolutely right. I hope that I would have been one of those protesting at the time of the Great Reform Bill—I do not know, but I hope that I would have been—but I was in those great crowds from the Countryside Alliance, and I took part in those peaceful demonstrations. Like my noble friend, I have found some of the demonstrations of recent years wholly unacceptable, because they really have interfered with ordinary, decent people going about their business. Sticking yourself to the roof of a train or a road seems something that we should deal with—but not noise.
The noble Baroness, Lady Hoey, was right when she talked about Zimbabwe. Do we wish to see regimes like that continue to repress their people? Is not it right that those living in this country should have a right to make life a little uncomfortable for those who live in the Zimbabwean high commission? It is just silly to put this in. A Bill that is injected with a dose of stupidity is not a very good Bill.
There is so much that I support in the Bill, but the Government have got it wrong here—this is not sensible, and nor is it practical. Are they really going to try to ensure that every demonstration not composed of deaf mutes has everybody arrested? Really, how stupid can you get? I beg of my noble friend who will reply to this debate to take this one away. There are many good things in the Bill, but this is not one of them.
The Lord Bishop of Bristol
The city of Bristol is a city of activists and protesters, and it has been so for a very long time, particularly at the time of the Great Reform Bill. Many protests nowadays focus on College Green, in the shadow of the cathedral; as a result, I am well aware of the passion and commitment of Bristol activists, and the very real hurt and trauma when protests are mishandled.
Often protests can be annoying, and often they are disruptive—but that is the point. Public spaces, like College Green in Bristol and Parliament Square, are places which are felt to belong to the public, and which have been places where decision-makers like us are confronted by people’s concerns.
Baroness Cavendish of Little Venice (CB)
Let us be honest here about some of the underlying drivers of the Government’s policy. People in this country generally did not like the fact that Insulate Britain was obstructing ambulances on major roads, or that Extinction Rebellion was in one case—which affected me directly—stopping people from getting on the Tube. As the noble Lord, Lord Deben, remarked, in both those cases, the protesters were pretty self-defeating. There is one part of the Government’s provisions that we will debate later that deals with major infrastructure, which I think would deal with both those issues.
The noble Viscount, Lord Hailsham, I think suggested that he feels there is a bit too much protest in this country, but he rightly drew attention to the word “unease”, and the difficulty of defining it. It is just as difficult to define the word “inconvenience” or the word “noise”, and several of the other words still present in the Bill. That is why we absolutely cannot support it, because it is completely wrong to put forward powers of this magnitude with language that is fundamentally not just unclear but not possible to resolve—as the government amendments show that it is not possible to resolve.
Lord Walney (CB)
My Lords, I fear that I am not going to make myself hugely popular by putting a note of dissent into this debate. I know that, given what has been said, noble Lords will do me the courtesy of listening for a moment or two.
Many good arguments have been made in the course of this debate and previously against some provisions in the Bill. Where I think that this House can do itself a disservice is in invoking the legacy of the suffragettes, Nelson Mandela and pro-democracy campaigners in repressive regimes. Is there not a fundamental difference between our liberal democracy—there have been some heinous attacks on individuals and institutions, and we speak of its strength when it is attacked—and those protestors who felt that they had to take disruptive means because they did not have the agency that we have the privilege to be able to have in this country: the right to decide our fate in the ballot and through peaceful process?
I am going to listen carefully to what the Minister says. Certainly, if the characterisation of these measures that have been put forward just now, and in previous iterations of this debate, were true, in that it is effectively sweeping away the right to peaceful protest and to make your voice heard through demonstrating, as a child of protesters myself and someone who has been on many protests—as have many noble Lords in this Chamber—I would, of course, oppose it too. But I have not yet heard a sufficient case that the measures that have been put forward would do that level of damage to the right to protest; rather, they are designed to protect the primacy of our democracy. We can agree or disagree that some of them go too far, but I have real problems with the way much of this has been framed through the discussion of the Bill.
Baroness Stowell of Beeston (Con)
My Lords, it is a great privilege to follow the noble Lord, Lord Walney. Noble Lords will recall—if they were present in Committee—that, in supporting the Bill, I did none the less raise some mild questions about noise. It is a shame the noble Lord, Lord Hogan-Howe, is not here, because I thought he was very compelling in the arguments he made, as a former police chief, as to why these measures around noise were manageable and relevant.
I will listen very closely to what my noble friend the Minister says on this, but I feel pleased that the Government have come forward with the clarifications that they have. I would add—to build on what the noble Lord, Lord Walney, said—that when I think about the Bill and the reason why I support the measures within it in principle, I start from the summer of 2019. I did mention this before, at an earlier stage of the passage of this Bill. This was a point at which there were new forms of protest and demonstration through the summer, and a lot of people who, unlike noble Lords, do not go on protests, were rather concerned about the way that things such as blocking Waterloo Bridge and bringing Oxford Circus to a complete standstill—and this went on for days—were supported by Members of Parliament and very senior high-profile people.
That kind of behaviour was so alien to the way in which people in this country normally protest. It was very alarming to people and we have to remember that we cannot argue in favour of that aspect of our democracy in terms of protest, without also reminding ourselves that some people who were alarmed at the support for that kind of behaviour also looked at Parliament in real concern when we did not respect democracy in the years before that in the way that we ignored the change that some people wanted to make by using the ballot box. I do think we have to see this in the bigger picture.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, we are at Report stage—although it would be very easy to misrecognise it as Second Reading. I have been supporting the Government this afternoon—but not at this stage and probably not for most of the rest of the debate.
The fact is that this amendment—and most that follow—to my mind, we must support. I entirely accept that it is nonsensical to suggest that by Clause 56, and most of those that follow, the Government is intent on repression. They are not trying consciously to suppress our hallowed rights of protest, of demonstration and of assembly. That is not the position. But I suggest strongly that that is the public perception—that is what the public believe—and understandably so, because it is such an overreaction to anything that has happened.
I too excoriate Insulate Britain: they behaved outrageously and undemocratically, so flatly contrary to the rule of law and wider interests, that we must amend to ensure that they are arrestable and imprisonable without going through the process of contempt of court proceedings in future. But these provisions, as the noble Lord, Lord Cormack, said, simply lack all common sense, they lack all balance and measure, and they are counterproductive.
The noble Baroness behind me suggested that we all, and the wider public, protest things such as stopping the Tube trains, but I would remind your Lordships—I think I have just read—that those who committed that apparent offence were resoundingly acquitted. The fact is that if we pass laws such as this law, that is going to be the reaction: the Government are going to be regarded as tyrants and the public will not play.
Baroness Fox of Buckley (Non-Afl)
My Lords, I tried to say that I think we do not want to muddle up too many things. The Bill might have been brought forward in order to deal with the popular revulsion at things such as the M25 sit-ins or getting on top of the Tube, and we have heard that from a number of noble Lords.
The point about this set of proposals, though, and things such as the triggering noise, is that they do not solve that problem. That is what drives me mad. The second lot of amendments—which were brought in anti-democratically in terms of process—at least looked like they referred to that set of egregious demonstrations. So that is that bit.
One thing that has been said which I think is very important is that there is a fractious atmosphere in society, which the noble Baroness, Lady Stowell, talked about last time we had this discussion, which is that people feel very strongly about some of the issues of the day. They are not prepared to always say that they support the right of demonstration; they think that something else is going on.
But one thing they definitely think is that the police are biased. They think that the police are erratic. Some people will say, “Well, the police won’t intervene because they’re all too busy taking the knee or driving around in rainbow-coloured vans”. Other people will say, “The police are acting like far-right stormtroopers protecting different types of people.” There is a public debate going on about the role of the police.
So, my objection to these amendment is that not only does it concentrate on noise, which nobody has ever complained about—who has brought that up?—but it puts the police in an even more invidious position. I do want to know how the Government will deal with that. The SOAS policy briefing, which I thought summed it up well, said that the Bill
“compels the police to make decisions about whether protests can go ahead, and therefore forces the police to become a visible and controversial actor in ordinary political debate.”
I think that this will make the position of the police much worse, so even if you are not on the side of the right to protest with no ifs and no buts—as I am—from the Government’s point of view and the Home Secretary’s point of view, who say they are doing it to help the police, they are actually putting the police in a position where they are wandering around assessing noise levels and therefore choosing which demos go ahead, which everybody will think is to do with politics and not procedure. So there seem to me to be some unintended consequences of that approach.
Lord Pannick (CB)
My Lords, I share many of the concerns that have been expressed—particularly the absence of a sufficient mischief here and the absence of proper definition of the ingredients of the offence.
I will add just one further point: the ability to demonstrate, and the ability to demonstrate while making a noise, is a very valuable safety valve in our civil society. If you close off that safety valve, you are going to cause a far greater mischief than is currently the case.
Lord Macdonald of River Glaven (CB)
My Lords, I do not think that the Government are trying to destroy democracy or steal all our freeborn rights from us, but I do think they are being extremely foolish. The wording of these amendments will create an absolute nightmare for the courts. Sitting here a moment ago I was trying to imagine how a judge would sum up one of these offences to a jury, and what the jury would make of it. It would be a chaotic scenario.
I will say one further thing, on a personal note. I attended both the great demonstrations against the Iraq war in 2002. One of them comprised over a million people, the second around 600,000 people. Those demonstrations would have been in breach of several of these amendments—not just the noise amendment but the various inconvenience amendments on making it difficult for people to get to their bank machines, hospitals and places of work. Under these amendments, those demonstrations would have been illegal. Is that really what Ministers seek to achieve with these amendments? If they do not, this is an extraordinarily foolish piece of drafting.
Lord Hendy (Lab)
My Lords, no one likes pickets. Even pickets do not like picketing. However, these clauses impinge on the right to picket, the right to picket is a fundamental aspect of the right to strike, and the right to strike is a fundamental aspect of the right to bargain collectively, which is a fundamental aspect of democracy at work.
Picketing is a highly regulated area of the law in a very sensitive political area. It has been regulated by legislation since 1875 and the last statutory amendment was in the Trade Union Act 2016. There is also a code of practice regulating picketing. There are no exemptions for pickets from either the criminal or the civil law, but these clauses will restrict even further the limited right to picket.
On the issue of noise, other noble Lords have pointed out the vagueness of the concepts involved here, which will impose a great burden on the discretion of the police in deciding what is noisy and what is not. It is notable that legislation has—and workers are very familiar with this—imposed limits on noise by way of decibels and duration in many industries. Those scientific techniques are not used here.
The very purpose of a picket in a trade dispute is to cause
“disruption to the activities of an organisation which are carried on in the vicinity”—
namely, the employer. So pickets will be caught. I note that the amendment states that
“serious disruption to the life of the community”
may include two situations: first, the supply of
“a time-sensitive product to consumers”
and, secondly,
“prolonged disruption of access to … essential goods or any … service, including, in particular, access to … the supply of money, food, water, energy or fuel … a system of communication … a transport facility … an educational institution, or … a service related to health.”
It does not take an expert to know that picketing is put at risk in almost every sector of the economy by these clauses, and it is for that reason that I have added my name to those of the noble Lord, Lord Paddick, my noble friend Lord Hain, and the noble Baroness, Lady Jones of Moulsecoomb, in asking for these clauses to no longer stand part.
Baroness Neville-Rolfe (Con)
My Lords, I also believe in freedom and in common sense. There are a number of provisions in this group, including the list we have just heard from the noble Lord, Lord Hendy. Now as I understand it, the Government are responding to the National Police Chiefs’ Council’s concerns. The council feels that, in the new world that has been described by others, public order legislation is not any longer appropriate and does not allow them to respond to the sort of disruptive protest tactics being used by some groups today that perhaps would not have been used in the past. I look forward to the Minister’s response, particularly on the issue of noise, which people have highlighted.
I have two questions to add. First, how will these provisions help against Insulate Britain and what its members have been doing? How will the new arrangements work, particularly the developments as regards juries that others have mentioned? Secondly, I know that there have been concerns about the overuse of delegated powers in this part of the Bill. Indeed, there was an excellent debate in the House last week on that very issue, which some noble Lords were present for. What were the recommendations from the DPRRC and Constitution Committee in this area, and can my noble friend explain how they have been met? My understanding is that definitions of “serious disruption” have now been added to the face of the Bill, which was a concern. But does that meet the concern expressed by our committees?
Lord Paddick (LD)
My Lords, I remind noble Lords that this group includes 26 amendments, and that noble Lords are entitled to speak only once on each group, in case people were thinking of having another go. I cannot possibly speak on all 26 amendments; if I spent only one minute on each, I would be here for 26 minutes. But we on these Benches oppose all the measures in Part 3 of the Bill, including the new government amendments introduced late at night in Committee. We will come to those in a later group.
I am a former senior police officer and part of a small, specially selected group of senior police officers trained in the policing of protests. My view, and the view of the majority of police officers interviewed by Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services, contrary to what the noble Baroness, Lady Neville-Rolfe, has just said, is that the limiting factor in the policing of protests on the police’s ability to control protests is the number of suitably trained police officers available, not a lack of police powers or legislation.
Not only are new powers and new offences unnecessary but there is a very real danger of dragging the police into political decisions on which protests should go ahead and which should not, as the noble Baroness, Lady Fox of Buckley, has just said. There is a very real danger of more scenes like those we saw at the Sarah Everard vigil on Clapham Common happening with greater frequency. There is a real danger of more and more police officers being drawn into policing protests to enforce more and more restrictions and bans, taking them away from policing their communities and, as a result, further undermining trust and confidence in the police and their ability to enforce the law.
I spoke at length in Committee and do not intend to repeat myself. I refer noble Lords to the Official Report. We support all the non-government amendments in this group. Particularly, we do not agree that protests should be banned because the police think they might be too noisy—so we will be voting in support of Amendment 115.
We agree with the former Conservative Home Secretary who led on the original public order legislation in 1986 that the police should not be able to dictate where and when public meetings or assemblies should take place or to ban them completely. To quote Lord Hurd of Westwell,
“that would be an excessive limit on the right of assembly and freedom of speech.”—[Official Report, Commons, 13/1/1986; col. 797.]
The Minister may say that the provisions simply bring limitations on assemblies into line with the limitations on processions, but I ask what has changed. It is still an excessive limit on the right of assembly and freedom of speech. I will therefore be testing the opinion of the House on Amendment 132. These measures are an outrageous limitation of people’s fundamental right in a democracy, and we oppose them.
Baroness Williams of Trafford (Con)
My Lords, I start by quoting the right reverend Prelate the Bishop of Bristol, who said that good debate relies on good listening. I hope that noble Lords will listen, as they did in the previous group, to what I have to say.
My noble friend Lord Deben and the noble Lords, Lord Hain and Lord Coaker, were all in agreement that many of them would have been in breach of these provisions in protests that they took part in. No. I disagree with that; the police rarely impose conditions on a protest, and we expect that to continue to be the case.
I thought the noble Lord, Lord Walney, made some compelling arguments about how lucky we are to live in a democracy and how much we value protest—we can hear the drumbeats outside, which no one is going to stop. To answer the right reverend Prelate the Bishop of Leeds, the provisions are not new today; they have been in the Bill from the start.
The government amendments give effect to the recommendations made by both the DPRRC and the Constitution Committee. Under the Public Order Act 1986 as amended by the Bill, the police may attach certain conditions to a public procession, public assembly or one-person protest, including where that is necessary to prevent serious disruption. The Bill enables the Secretary of State to define the meaning of “serious disruption” in regulations, and we have published an indicative draft of such regulations.
However, both the DPRRC and the Constitution Committee argued that definitions should be in the Bill, although the DPRRC agreed that there should be a power to amend the definition by regulations subject to the affirmative procedure. The government amendments therefore take the definitions as set out in the draft regulations and write them into the Public Order Act. Again, I express my thanks to my noble friend Lord Blencathra—although I do not see him in his place—the noble Baroness, Lady Taylor of Bolton, and the other members of the DPRRC and the Constitution Committee for their scrutiny of the Bill. I trust that the amendments will be acceptable to them and indeed to the House as a whole. The word “significant” is lifted from the draft regulations that the Constitution Committee said were not unreasonable.
Amendment 115, in the name of the noble Lord, Lord Rosser, would remove the new noise triggers for the police to impose conditions on public processions. Amendments 123, 124, 125 and 147 would collectively do the same for public assemblies and single-person protests. In response to those amendments, I reiterate to the House that noise generated by protesters can have a significant and detrimental impact on the wider public. It is unacceptable, as my noble friend Lord Hailsham says, that certain protests can seriously disrupt the lives of ordinary people.
It is absolutely right that the Government give the police the tools that they require to tackle disruptive protests. As the noble Lord, Lord Hogan-Howe, stated during the debate in Committee on these measures,
“noise can be more than an irritant.”—[Official Report, 24/11/21; col. 944.]
In some contexts, it can be tortuous, and it is important to contextualise the different situations in which it can happen, such as the time of day or where it takes place. Is it outside an old people’s home, or is it in Parliament Square? Is it anti-vaxxers outside a school, or in St Ann’s Square in Manchester?
Lord Coaker (Lab)
My Lords, I thank the Minister for her reply and all noble Lords who spoke in the debate. These amendments deal with existing parts of the Bill; we will come to the new clauses that the Government propose in later groups. We have very serious concerns about what the existing clauses, to which I tabled Amendment 115 and which many noble Lords have spoken about this evening, will do to the right to protest. I remind noble Lords, because I am going to seek to test the opinion of the House, that Amendment 115 specifically deals with the Bill’s provisions with respect to noise, which are ridiculous, irrelevant and simply will not work. They will impact on the right to protest. If they will not impact on the right to protest, what is the point of the Government proposing the law in the first place?
With respect to the noble Viscount, Lord Hailsham, and the noble Lord, Lord Deben, if I am right they were Members of Parliament during the Margaret Thatcher and John Major Governments. People will say, “This is a bygone age. What does Lord Hain know about it? He’s talking about things from decades ago.” But what about the noble Lord, Lord Deben, and the noble Viscount, Lord Hailsham? There were riots during the poll tax and the miners’ strike; look at all the protests that went on there, many of which I played a part in, particularly on the poll tax and the miners’ strike—not the riots.
Lord Coaker (Lab)
I was not born yesterday.
The noise was massive during the poll tax and the miners’ strike protests. The disruption outside Parliament was absolutely enormous: rattling the gates, banging the drums, stopping this and that. What did Margaret Thatcher do? She did not introduce a noise amendment to the right to protest. I completely and utterly reject the premiership of Margaret Thatcher, but she did not do this, and neither did John Major. What has happened that has caused the Government now to introduce these changes to the right to protest with respect to noise, which previous Prime Ministers did not do in the face of some of the most difficult demonstrations, whatever the rights and wrongs of them? It beggars belief.
I say this to the Minister: if these amendments do not pass and the Bill becomes law, there will be a demonstration on climate change, on the building of a dam or a housing estate, or on some road going through a forest, and the police will put conditions on it with respect to noise and the public will say, “When did this happen? Who passed this? What on earth were they thinking of?” If you ask the public whether they object to disruption, or whether they object to protests with respect to their lives, then of course they will say yes. I moan about demonstrations if I cannot get into Parliament, but it does not mean that they are wrong or that they should not take place.
Protesting is a part of democracy. Of course I do not believe that the Government are some sort of right-wing fascist organisation, but I believe that this particular measure is a fundamental attack on a freedom that the citizens of this country have enjoyed for centuries. As such, I hope the Chamber will support Amendment 115.
This amendment replaces the power for the Secretary of State to make regulations about the meaning of serious disruption for the purposes of section 12 of the Public Order Act 1986 with provisions on the face of the Bill, subject to a power to amend these provisions.
Member’s explanatory statement
This amendment and the amendments in the name of Baroness Williams of Trafford at page 49, line 27, page 49, line 28, page 49, line 30 and page 49, line 40 confer power on the Secretary of State to amend new subsections (2ZA) to (2ZC) of section 12 of the Public Order Act 1986 in the amendment in the name of Baroness Williams of Trafford at page 49, line 3 and make consequential amendments to Part 2 of that Act.
Member’s explanatory statement
See the explanatory statement for the amendment in the name of Baroness Williams of Trafford at page 49, line 22.
Member’s explanatory statement
See the explanatory statement for the amendment in the name of Baroness Williams of Trafford at page 49, line 22.
Member’s explanatory statement
See the explanatory statement for the amendment in the name of Baroness Williams of Trafford at page 49, line 22.
Member’s explanatory statement
See the explanatory statement for the amendment in the name of Baroness Williams of Trafford at page 49, line 22.
“(2ZA) For the purposes of subsection (1)(a), the cases in which a public assembly in England and Wales may result in serious disruption to the life of the community include, in particular, where—(a) it may result in a significant delay to the supply of a time-sensitive product to consumers of that product, or(b) it may result in a prolonged disruption of access to any essential goods or any essential service, including, in particular, access to— (i) the supply of money, food, water, energy or fuel,(ii) a system of communication,(iii) a place of worship,(iv) a transport facility,(v) an educational institution, or(vi) a service relating to health.(2ZB) In subsection (2ZA)(a) “time-sensitive product” means a product whose value or use to its consumers may be significantly reduced by a delay in the supply of the product to them.(2ZC) For the purposes of subsection (1)(aa), the cases in which the noise generated by persons taking part in a public assembly may result in serious disruption to the activities of an organisation which are carried on in the vicinity of the assembly include, in particular, where it may result in persons connected with the organisation not being reasonably able, for a prolonged period of time, to carry on in that vicinity the activities or any one of them.”Member’s explanatory statement
This amendment replaces the power for the Secretary of State to make regulations about the meaning of serious disruption for the purposes of section 14 of the Public Order Act 1986 with provisions on the face of the Bill, subject to a power to amend these provisions.
Member’s explanatory statement
This amendment and the amendments in the name of Baroness Williams of Trafford at page 51, line 8, page 51, line 9, page 51, line 11 and page 51, line 21 confer power on the Secretary of State to amend new subsections (2ZA) to (2ZC) of section 14 of the Public Order Act 1986 in the amendment in the name of Baroness Williams of Trafford at page 50, line 32 and make consequential amendments to Part 2 of that Act.
Member’s explanatory statement
See the explanatory statement for the amendment in the name of Baroness Williams of Trafford at page 51, line 3.
Member’s explanatory statement
See the explanatory statement for the amendment in the name of Baroness Williams of Trafford at page 51, line 3.
Member’s explanatory statement
See the explanatory statement for the amendment in the name of Baroness Williams of Trafford at page 51, line 3.
Member’s explanatory statement
See the explanatory statement for the amendment in the name of Baroness Williams of Trafford at page 51, line 3.
Lord Paddick
Lord Sharpe of Epsom (Con)
My Lords, I beg to move that further consideration on Report be now adjourned until 9.20 pm.
The Deputy Speaker (Baroness Barker) (LD)
The Question is that the House do adjourn during pleasure until 9.20 pm. The Question will be decided by a remote Division.
Baroness Smith of Basildon (Lab)
Would it be appropriate for the usual channels to meet for five minutes or so to see whether we need to have a Division on this issue? It may be of guidance to the House if we could adjourn for five minutes.
Baroness Scott of Bybrook (Con)
My Lords, I beg to move that, with the agreement of the House, we adjourn until 9.15 pm to let the Minister finish her dinner break.
Viscount Colville of Culross (CB)
My Lords, I hope we are all refreshed after that break, particularly the Minister. I thank her for giving the time and energy to meet me last week to consider my objections to Clause 59.
I have brought Amendments 133A and 133B before the House because Clause 59 has been too tightly drawn. It will prohibit large, peaceful and well-organised demonstrations taking place in Parliament Square at any time, even at the weekend, if there was any danger that the weight of numbers would obstruct a vehicle going into Parliament or even, in the words of the clause, make
“the passage of a vehicle more difficult”.
Parliament Square is the temple of protest. It is where the people of this country have gathered for centuries to voice their opposition to government policies, hoping their concerns will penetrate the walls of Parliament. In 2002, more than 400,000 people attended the countryside march. In 2018 and 2019, millions came to the People’s Vote and Brexit day celebration marches, and the women’s march drew thousands to support women’s rights. All ended with massed but organised protests in Parliament Square, all of which, by dint of huge numbers, will have obstructed the vehicle entrances to Parliament. I ask your Lordships to imagine the fury on all sides of the country if these were banned in future.
This is the mother of parliaments, outside which voters should gather to speak truth to power and where we, the parliamentarians who make the law, should hear them loud and clear. At this time, when politicians are seen to be out of touch with the feelings of the people, it is unconscionable that the House should pass a law shielding us from hearing what they have to say. A new poll shows that 79% of people disapprove of a ban, and 75% of them are Conservative voters.
The problem is that Clause 59, as with so much of Part 3 on public order, has been drafted to deal with the headlines about Extinction Rebellion and Insulate Britain deliberately blocking roads and bridges across the country and deliberately obstructing access to Parliament. The drafters have not considered the effect of the clause on large, peaceful protests outside Parliament.
I feel sure that many noble Lords have held protests outside Parliament and understand that permission first needs to be obtained from the GLA and the police. As it stands, the clause will make it impossible for the GLA, which controls the garden at the centre of Parliament Square, to give permission for any protest to take place if there is a danger of obstruction to Parliament by large numbers of protesters. The clause expands the controlled area beyond the garden to the roads and pavements of Parliament Square and half way up Whitehall, to the entrance of Downing Street. When granting permission, the GLA will now have to consider whether numbers of protesters will spill off the garden on to the road. The GLA considers 5,000 people to be the capacity of the garden. Any more will block the roads around Parliament Square.
These amendments are aimed purely at the permissions process between the GLA, other responsible bodies and the organisers of a protest. They are based on the existing wording granting the use of amplifying equipment in the square. They will ensure that large, peaceful protests continue to take place outside Parliament. I know that noble Lords will be worried that the wording of my amendments appears to give permission to protesters to obstruct vehicles; this is not the case. The police will still be involved in the consent process, requiring protesters to move on if they are deliberately blocking entrances to Parliament. Proposed new subsection (6) in Amendment 133B reinforces this by allowing the responsible person to withdraw an authorisation for a protest if the conditions are not being observed.
The Government and the Joint Committee on Human Rights are concerned that the police do not have powers to move on demonstrators who deliberately block access to Parliament. Even if these amendments are accepted, the powers granted in Clause 59 will still be available for the police to exercise. I urge the Minister to accept my amendments to ensure that Clause 59 does not cause an unintended ban on protests in Parliament Square. I know from talking to her that she does not want to become the Minister who bans protests outside Parliament. I beg to move.
Lord Paddick (LD)
My Lords, we support all the non-government amendments in this group. In particular, we agree that, just as protesters can be given permission to use amplification equipment in the vicinity of Parliament under existing legislation, large demonstrations should be able to block roads temporarily, given the necessary permission. We will vote for Amendments 133A and 133B should the noble Viscount, Lord Colville of Culross, divide the House.
In Committee, I spoke at length on why we oppose this clause and support Amendment 137A. I refer noble Lords to the Official Report.
Baroness Altmann (Con)
My Lords, I have added my name to these amendments. I congratulate the noble Viscount, Lord Colville, on his excellent introduction. This is the first time I have spoken this evening but my remarks apply to many other aspects of this Bill and many of the other areas that we are voting on.
There are some excellent and important measures in this Bill. I agree that banning dangerous or violent protestors is important; I am pleased that my noble friend the Minister said in an earlier debate that the law must protect the public and prevent extremist protests such as those by Extinction Rebellion and Insulate Britain. However, I respectfully suggest that the measures in Clause 59 are like using not a hammer but dynamite to crack a nut.
The Conservative Party has always championed law and order but also freedom of speech and expression, most importantly around Parliament Square—the very heart of our democracy. Amendments 133A and 133B would protect the public’s right to demonstrate and express views in Parliament Square, which is so important. I hope that colleagues on these Benches will consider supporting these important changes to the Bill.
I do not believe that the Government really intend to ban peaceful protest. My noble friend the Minister will assure the House that such protests can still proceed, and I have no doubt that she is sincere in that assurance. But I respectfully point out that, without these amendments, this legislation could prove a Trojan horse, allowing future Governments to introduce the shadow of repression into our country, and could represent a potential attack on the most fundamental freedoms of our democracy. We could allow this and any future Government to ban large demonstrations around Parliament Square on the basis of a ministerial diktat and police connivance. Indeed, the grounds on which such protests can be criminalised are quite flimsy. One example, as the noble Viscount, Lord Colville, mentioned, is proposed new subsection (4A)—to be inserted by Clause 59(3)(c)—which states that
“obstructing the passage of a vehicle includes making the passage of a vehicle more difficult.”
What does that mean? Is it a 30-second delay? Every large protest would be banned, which would effectively change the way our democracy has worked for centuries.
This country has a proud record of standing up to despots, authoritarian rulers and corrupt dictatorships. We have offered sanctuary to those fleeing repression, for which I will be eternally grateful. The most recent example is of Hong Kong residents fleeing Chinese repression, who witnessed their Government recently tearing down the statue memorialising the Tiananmen Square massacre. When those Hong Kong exiles arrive here and learn that this mother of all parliaments no longer allows large protests outside its door, at any time, what will they think?
Democratic Governments must not surround themselves only with yea-sayers, hearing only what they want or choose to hear and squashing dissent. I believe it is important for noble Lords to stand up for our cherished freedoms, prevent any descent into authoritarian rule and support these wholly reasonable amendments to this Bill.
Lord Rosser (Lab)
My Lords, my name is also added to the amendment in the name of the noble Viscount, Lord Colville of Culross, which he moved so eloquently and comprehensively. I really do not want to take up any more of the House’s time, but simply say that we support this amendment and what was said by him, the noble Baroness, Lady Altmann, and the noble Lord, Lord Paddick. If the noble Viscount is not happy with the response he gets and decides to test the opinion of the House, we will support him in the vote.
Baroness Williams of Trafford (Con)
My Lords, these amendments relate to Clauses 59 and 60, which ensure—as was originally proposed by the right honourable Harriet Harman, as chair of the JCHR, to whom we send our deepest sympathies—that vehicular access to the Parliamentary Estate is not prevented by protests or other activity; and Clause 61, which restates the common-law offence of public nuisance in statute.
I begin with Amendments 133A and 133B in the name of the noble Viscount, Lord Colville of Culross, which I was able to discuss with him and Dominic Grieve last week. They seek to avoid a perceived outcome of Clause 59 that the Greater London Authority will no longer authorise large-scale assemblies on Parliament Square, due to the risk that such assemblies could obstruct vehicles entering or exiting the controlled area around Parliament.
I am most grateful to the noble Viscount for meeting me last week to raise his concerns about Clause 59. I understand that he is concerned that this clause may have the unintended consequences that the Greater London Authority, which is responsible for Parliament Square Garden, would no longer be able to authorise assemblies in the garden if they risk blocking vehicular access to the Parliamentary Estate. I reassure him tonight, as I did the other day, that this is not the case.
The GLA’s by-laws for Parliament Square Garden require that written permission is granted for certain acts to be conducted in the garden; organising or taking part in an assembly is one of those acts. It is important to note that this by-law applies to the garden itself and does not extend to Carriage Gates, nor the road around the garden. The by-laws state that permission will not be given in respect of any matter defined as a “prohibited activity” under Section 143 of the Police Reform and Social Responsibility Act 2011. Clause 59 amends this section to include obstructing the passage of a vehicle into or out of an entrance or exit to the Parliamentary Estate as a prohibited activity.
In practice, this means that the GLA could not permit an assembly in Parliament Square Garden if its stated and primary aim is to obstruct vehicular passage in and out of Parliament. However, nothing in Clause 59 means that permission could not still be granted for any other assembly, even if that risks some individuals in attendance obstructing vehicles entering and exiting Parliament. This is the point I was trying to impress the other day.
Viscount Colville of Culross (CB)
I thank those from all over the House who have supported this amendment. I hope the Minister will listen very carefully to the concerns of the noble Baroness, Lady Altmann, about the sort of example we are setting to the refugees from Hong Kong, for instance.
I have listened very carefully to the words of the Minister who claims that this clause will not cause any problems for giving permission for large protests on Parliament Square. The lawyers I have talked to have said that the GLA will, under the by-law, particularly since it is now having to look at this extended area around the garden, have to take into account the sheer numbers and the effect of those numbers on obstructing vehicles. If there are half a million people taking part in a protest, inevitably they are going to obstruct vehicles, whether they mean to or not—of course they are. The GLA, I suppose, could cordon off the whole garden so that protesters could not go on to it, but it would make a bit of a nonsense and I do not think that is what the people of this country would want. Therefore, I would still like this amendment to be part of the Bill and I therefore want to test the opinion of the House.
“(3A) After section 143 insert—“143A Authorisation (1) The responsible person for any land in the Palace of Westminster controlled area may authorise a person to carry out in accordance with this section an activity that will obstruct the passage of a vehicle of any description into or from the Parliamentary Estate while on or adjoining the Palace of Westminster controlled area.(2) An application for the authorisation must be made by or on behalf of the person (or persons) seeking the authorisation.(3) The responsible person may— (a) determine the form in which and the manner in which an application is to be made; (b) specify the information to be provided in connection with an application;(c) require a fee to be paid for determining the application.(4) If an application is made to a responsible person, the person must—(a) determine the application, and(b) give notice in writing to the applicant of the person’s decision within the period of 21 days beginning with the day the person receives the application.(5) The notice must specify—(a) the person or persons authorised (whether by name or description),(b) the nature of the activity that is to be permitted,(c) the period to which the authorisation applies, and(d) any conditions to which the authorisation is subject.(6) The responsible person may at any time withdraw an authorisation if the conditions to which it is subject are not being observed by giving notice in writing to the applicant.””
Member’s explanatory statement
This amendment and the amendment in the name of Baroness Williams of Trafford at page 53, line 40 make it clear that one element of the new offence of public nuisance requires a person’s act or omission to create a risk of, or to cause, serious harm as defined in clause 60(2) to the public or a section of the public.
“(2) In subsection (1)(b)(i) “serious harm” means—(a) death, personal injury or disease,(b) loss of, or damage to, property, or(c) serious distress, serious annoyance, serious inconvenience or serious loss of amenity.”Member’s explanatory statement
See the explanatory statement for the amendment in the name of Baroness Williams of Trafford at page 55, line 33.
Member’s explanatory statement
This amendment amends Clause 60 to clarify that the Clause does not affect the civil liability of any person for the tort of public nuisance. The tort currently tracks the common law offence and this amendment makes it clear that the replacement of the offence does not affect the tort.
Member’s explanatory statement
This amendment is consequential on the amendment in the name of Baroness Williams of Trafford at page 56, line 23.
“(5A) For the purposes of subsection (1)(a), the cases in which the noise generated by a person taking part in a one-person protest may result in serious disruption to the activities of an organisation which are carried on in the vicinity of the protest include, in particular, where it may result in persons connected with the organisation not being reasonably able, for a prolonged period of time, to carry on in that vicinity the activities or any one of them.”Member’s explanatory statement
This amendment replaces the power for the Secretary of State to make regulations about the meaning of serious disruption for the purposes of section 14ZA of the Public Order Act 1986 with provisions on the face of the Bill, subject to a power to amend these provisions.
Member’s explanatory statement
This amendment and the amendments in the name of Baroness Williams of Trafford at page 58, line 19, page 58, line 20, page 58, line 22 and page 58, line 29 confer power on the Secretary of State to amend subsection (5A) of new section 14ZA of the Public Order Act 1986 in the amendment in the name of Baroness Williams of Trafford at page 57, line 22 and make consequential amendments to Part 2 of that Act.
Member’s explanatory statement
See the explanatory statement for the amendment in the name of Baroness Williams of Trafford at page 58, line 15.
Member’s explanatory statement
See the explanatory statement for the amendment in the name of Baroness Williams of Trafford at page 58, line 15.
Member’s explanatory statement
See the explanatory statement for the amendment in the name of Baroness Williams of Trafford at page 58, line 15.
Member’s explanatory statement
See the explanatory statement for the amendment in the name of Baroness Williams of Trafford at page 58, line 15.
Lord Paddick
“Offence of locking on
(1) A person commits an offence if—(a) they intentionally—(i) attach themselves to another person, to an object or to land,(ii) attach a person to another person, to an object or to land, or(iii) attach an object to another object or to land,(b) that act causes, or is capable of causing, serious disruption to—(i) two or more individuals, or(ii) an organisation,in a place other than in a dwelling, and(c) they intend that act to have a consequence mentioned in paragraph (b) or are reckless as to whether it will have such a consequence.(2) It is a defence for a person charged with an offence under subsection (1) to prove that they had a reasonable excuse for the act mentioned in paragraph (a) of that subsection.(3) A person guilty of an offence under subsection (1) is liable on summary conviction to imprisonment for a term not exceeding 51 weeks, to a fine or to both.(4) In relation to an offence committed before the coming into force of section 281(5) of the Criminal Justice Act 2003 (alteration of penalties for certain summary offences: England and Wales), the reference in subsection (3) to 51 weeks is to be read as a reference to 6 months.(5) In this section “dwelling” means—(a) a building or structure which is used as a dwelling, or(b) a part of a building or structure, if the part is used as a dwelling,and includes any yard, garden, grounds, garage or outhouse belonging to and used with a dwelling.”Member’s explanatory statement
This amendment creates a new offence of “locking on”, involving the attachment of an individual to another individual, to an object or to land, or an object to another object or to land. It is a requirement of the offence that the act causes or is capable of causing serious disruption to two or more individuals or an organisation and that the accused intends that to occur or is reckless as to whether it will occur.
Baroness Williams of Trafford (Con)
This group of amendments brings us back to the new public order measures which the Government initially put forward in Committee. I will not repeat the detailed explanation of each of the new clauses but will instead reiterate the Government’s overall case for these additional measures and highlight the significant changes to the package as compared to the amendments tabled in Committee.
These new measures bolster the police’s powers to respond to the disruptive, dangerous and disproportionately costly tactics employed recently by some groups of protesters. For example, the Metropolitan Police spent over £4 million and deployed over 6,000 officers and staff to police the Insulate Britain protests between 13 September and 20 November last year. Injunctions have their place, but they can be slow to implement. Therefore, it is completely right that the Government are introducing these measures to the Bill to give police the right powers to respond immediately to such protests.
It is against this backdrop that we need to build on the measures already in Part 3 of the Bill. We need to ensure that the criminal law is fit for purpose by ensuring that there are appropriate, targeted offences to prosecute those who engage in actions which endanger others and cause wholly unacceptable disruption, and that the penalties are commensurate with the harm caused. But we also need to ensure that the police have the necessary powers to take effective preventive action. These amendments are directed to that end.
Amendments 148, 149 and 150 reintroduce the offences of locking on and going equipped to lock on, and amend the offence of obstructing the highway, all of which were discussed at Committee. Amendment 151 reintroduces the new offence of obstruction of major transport works.
In response to the amendment put forward by the noble Lord, Lord Hendy, in Committee, we have added a defence for this offence relating to trade disputes. Alongside the defence of reasonable excuse, it will be a defence for individuals to prove that their actions were performed in contemplation or furtherance of a lawful trade dispute. This is to make it clear that this new offence does not interfere with the rights of workers to engage in lawful trade disputes.
Amendment 152 introduces a new offence of interference with the use or operation of key national infrastructure. By targeting key transport infrastructure and printing presses, protesters have been able to inflict disruption and misery on the daily lives of the working public and to undermine press freedom. This Government take such acts extremely seriously. The introduction of this offence, which carries a maximum sentence of 12 months’ imprisonment, reflects that.
“Interference” is defined here as an act that prevents the infrastructure in question being operated to any extent for any of its intended purposes. Acts which significantly delay the operation of key national infrastructure are included within the definition. As with the offence relating to the obstruction of major transport works, Amendment 152 includes a reasonable excuse defence and a defence for those engaged in a trade dispute.
Amendments 154 to 158 reintroduce both the suspicion-based and suspicion-less stop and search powers, which were introduced in Committee. The list of offences to which these powers will apply has been extended to include the new offence of interfering with the operation of key national infrastructure. The police need to be able to respond to a seriously disruptive protest—for example, one blocking a motorway. The public, however, would far rather the police take preventive action, such as seizing locking on equipment, to avoid the disruption happening in the first place, so that they can get to work on time and ambulances can quickly get patients to hospital.
Finally, Amendments 159 and 163 reintroduce serious disruption prevention orders, or SDPOs. As I set out in Committee, these court orders address the acts of a small number of prolific and disruptive protesters who repeatedly trample on the rights of the public to go about their daily business. These amendments are largely unchanged from a similar amendment tabled earlier, but we have included express provision to enable a court to adjourn proceedings to hear an application for an SDPO once it has sentenced the offender in question.
It will be for the courts to determine whether it is necessary and proportionate to make an order for the purposes set out in new Sections 342L and 342M of the Sentencing Code. In reaching such a decision, the courts are well versed in balancing the rights of the individual who may be made the subject of an SDPO and the rights and freedoms of the public who may be significantly adversely affected by the protest-related activities of that individual.
Lord Rosser (Lab)
We have amendments in this group, and I will refer also to the new government amendments. I will try to be brief since I do not wish to test the patience of the House, but I have a bit to get through. In that context, I congratulate the Minister on the quite enormous stamina which she has shown so far. I have to admit that it is way in excess of my stamina for this kind of thing.
We oppose the group of new government clauses on protest. In our view, they should not be added to the Bill, which already contains government proposals in relation to protests. The Bill has been in Parliament for some 11 months. However, these sweeping, significant and further controversial powers from the Government have not been looked at for a single minute by the elected House, which is normal practice in relation to controversial measures. In this House they have had just over one hour’s consideration, after midnight at the end of Committee, which meant, in effect, that the overwhelming majority of noble Lords were denied the opportunity to participate. We have now started to debate them here on Report at 9.50 pm and have been told that Report has to be completed tonight, whether before or after midnight. This is, frankly, an outrageous way to legislate. Sometimes a Bill needs late additions to respond to events that have to be addressed immediately. However, the Government did not apply this approach to abusive and intimidating protests outside schools and vaccine centres. Instead, this House compelled them to do so last week.
We support increasing sentences for those who protest dangerously by blocking motorways. This is also likely to cause a clear risk to life, and we were all aware of ambulances being impeded last year when motorways were obstructed and of members of the public being unable to complete time-critical journeys in the timescale required. Our Amendment 150A to government Amendment 150 would apply these increased sentences where they should actually be targeted: not at every road and highway across the board but at wilful obstruction of the motorways and major roads in the 4,300-mile strategic road network—SRN—at the core of our national transport system. Instruction of the SRN results in the most disruption due to volume of traffic, a lack of alternative routes and the difficulty of getting off such a major route because of infrequent junctions, for the large amounts of traffic obstructed. Our amendment would also largely prevent the higher penalties applying to obstruction of a grass verge or pavement, which may be interpreted as part of a highway.
The Government’s proposed locking-on amendment provides an exceptionally low threshold for a broad offence. It can be triggered by an act that is capable of causing disruption to two people. Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services is not convinced of the need for this power. Its report on balancing protest powers states that
“most interviewees did not wish to criminalise protest actions through the creation of a specific offence concerning locking-on.”
The reality is that powers already exist for dealing with lock-ons. What we should be looking at is proper guidance, training and, as the inspectorate raised, improving our use of existing resources and specialist officers.
Our Amendments 160A to 160C are based on recommendations of HMICFRS, including consolidating police guidance on public order in one place and keeping track of national and local needs for specialist officers. These are examples of what could have been debated and worked on, if these proposals had been given proper scrutiny time, to find the best way through, but this House has not had that opportunity. I will make a reference to suffragettes: since locking on was used by the suffragettes, I hope that the Government are not going to tell us that it emerged as a tactic for the first time between Second Reading and Report, and that they had no opportunity to bring forward carefully drafted legislation instead of the rushed, broadly drafted power now in front of us.
Government Amendments 151 to 153 on obstruction of major transport works and key infrastructure are overreaching and unnecessary, as there are already existing public order powers that can apply to these situations. Amendment 151 will have an impact particularly on environmental protesters. Frankly, we have reached a sorry state of affairs when we legislate still further specifically against those concerned about the proven threat of climate change and its impact on our way of life and that of our children and grandchildren, and the tardy action on environmental issues. As the Prime Minister himself once committed to lying down in front of the bulldozers in opposition to a third runway, one wonders how much thought he has given to these widely drawn new powers.
We are opposed to the new stop and search on suspicion powers in Amendment 154. We have concerns over their disproportionate use in relation to black and minority ethnic groups and those groups’ level of trust in the police—a problem that we have not faced up to in other uses of stop and search; we also have concerns over how widely the powers are drawn.
It is, though, the final two powers—on suspicionless stop and search and serious disruption prevention orders—that we believe are the most extreme and pernicious. Suspicionless stop and search is a power that, until now, we have used to target serious violent crime and terrorism. These new government clauses would replicate that power to target peaceful protests. Where the power is used, it would permit any member of the public near a protest to be stopped and searched without cause and without suspicion.
The second of the final two powers—serious disruption prevention orders, which can be made without a conviction—are, in effect, essentially protest banning orders. HMICFRS has said that it believed that protest banning orders
“would neither be compatible with human rights legislation nor create an effective deterrent.”
Like serious violence prevention orders, serious disruption prevention orders can be made using inadmissible evidence; they can be extended indefinitely; and breaching them is a criminal offence with terms of imprisonment attached.
These final two powers are overreaching, unwarranted powers which affect the rights of the British public. They should most certainly not be included in the Bill. The Government are trying to force them in through the back door, without full and necessary parliamentary scrutiny, including by this House.
The reason cannot be lack of parliamentary time to provide such full scrutiny—the Commons Chamber finished at 3.30 pm last Wednesday, following the Prime Minister’s performance at PMQs. We cannot support any of these last-minute, rushed and ill-thought-through broad powers in this group of new government amendments, with the exception of approving the increased sentences for wilfully obstructing motorways and major roads.
The absolute priority for us has to be opposing the Government’s suspicionless stop and search and the serious disruption prevention orders being put into statute. These, however, are down as the last new clauses in this group. Frankly, it is already quite late, and we ought to seek to have these votes as soon as possible, to ensure that as many noble Lords as possible can cast a vote.
I conclude by simply referring to what my noble friend Lord Blunkett wrote in April last year:
“Protest might be inconvenient for politicians, but it acts as a pressure valve, allowing citizens to express their views and vent frustrations that could otherwise boil over … If we suppress protest, we could see more anger towards institutions including the police, the judiciary and parliament.”
That is the direction in which we think the Government are heading with these new protest clauses.
Baroness Jones of Moulsecoomb (GP)
I shall speak briefly, because I too want to get to the votes. Despite government claims to the contrary, these are draconian laws that are part of a wider assault on our democracy. We have a Government who are passing rules for us but not acting according to those rules themselves. The police protect the powerful, while getting more oppressive powers to use against the voiceless. This is an autocracy, not a democracy. The Government know that they will face bigger and more vocal protests while they get on with their dog whistle policies, which fail at the moment to distract from the terrible impact of their politics.
There will be a lot of climate change protests in future—I can see myself getting arrested, perhaps more than I have so far. Climate change is the biggest threat to human civilisation. It is an existential threat, and this Government are not acting fast enough.
The Government claim to speak for ordinary people, but it is ordinary people who protest on the streets, and the Government do not speak for them anymore; they do not speak for the great British public, because the great British public find the Bill and these late amendments offensive. The Greens here will be voting against all of these late amendments. We will not support the Labour amendment on the obstruction of the highway, only because it opens the door to the Government bringing back their original amendment. I just hope that the Government listen.
Lord Carlile of Berriew (CB)
My Lords, the noble Lord, Lord Rosser, gave an excellent speech in opposition to these government amendments and in support of other amendments tabled, and I have little to add to it.
I want to say a word or two about stop and search without suspicion. At one time, every year in London, about 180,000 people were stopped and searched without suspicion under the Terrorism Act. It caused tremendous anger and offence to those who were searched, particularly to those groups who fell into the broad definition of tropes used by police officers to decide who to stop and search. That was stopped. Interestingly, the provisions of Section 44 of the Terrorism Act, as amended, now provide that an authorisation may be given for stop and search without suspicion by an assistant chief constable or above—a more senior officer than in this situation—and only if the person giving the authorisation
“considers it expedient for the prevention of acts of terrorism.”
The Terrorism Act stop and search power is there for the prevention of actual acts of actual terrorism which kill actual people.
The dilution of without-suspicion stop and search powers is a menacing and dangerous measure. I urge the Government to recognise that it is disproportionate to have a lower level of officer allowed to give an authorisation to stop and search basically middle-income, middle-class, middle-educated people who have strong feelings about the environment, who are not going to commit acts of terrorism but will just be a pretty awful nuisance—and that of course has to be dealt with in this Bill. It is disproportionate, and the Government should think twice about it.
Baroness Fox of Buckley (Non-Afl)
My Lords, the Government say that they are a law and order party, and it is important to recognise that law and order requires that, when Parliament makes criminal laws and sets out clear rules, the public themselves can decide whether they will be on the side of law and order or on the side of criminality. That requires that the laws that are introduced are proportional and have clarity.
Any member of the public needs to know whether they are breaking the law, so that they will not be labelled a criminal, but in this whole group of new amendments there is no clear guidance on, for example, what is a reasonable excuse. In an earlier set of amendments, the “ought to know” clause completely made it clear that one might not know. The phrase “reasonable excuse” is used as though one were guilty already and needed to give a good excuse for a perfectly reasonable, legal activity that is now treated with suspicion; the legal burden of proof is on the defence, whereas it should be a burden on the prosecution.
In Committee, when asked what reasonable excuse one might use for carrying a bicycle lock if it could be seen as potentially preparation for locking on, the noble Baroness, Lady Williams said:
“It is a defence for a person to prove that they had a reasonable excuse for carrying the equipment in question. For example, carrying a bike lock for the purposes of locking one’s bike to a designated space for bikes could be considered a reasonable excuse”.—[Official Report, 24/11/2021; col. 994.]
It struck me then that this is a situation whereby we have to explain to the authorities that in fact we are just carrying a bike lock and that we might want to lock our bike up, and that no, we were not the type of person who might misuse our bike lock. To be honest with you, that is no business of the police, the Government or the authorities. It seems alarming that people will need to have reasonable excuses for carrying out peaceful and lawful actions to avoid, potentially, prison terms. This is the micromanagement of what is considered to be the right kind of protest, when the Government claim that it is not attacking protests.
I would like to counter some of the arguments used by people I am broadly on the side of.
Baroness Fox of Buckley (Non-Afl)
I know that this side wants us all not to debate, but I am going to carry on for a moment. I want to get to the vote—I am trying to win a vote. It is allowed—just let me get on with it.
The point that I wanted to make was that this is not about whether we think that there is a climate emergency or not. It is not about what side you are on in particular demonstrations. There are some people on this side who may think that people labelled anti-vaxxers should not be allowed to have demonstrations. We have to be careful about picking and choosing which protests we want.
The proposals increase criminal liability without the need of knowledge of wrongdoing for a whole range of people who might just want to express a different political opinion, which I still think is what debate and protest is all about. If you do not have the knowledge of wrongdoing in that way, peaceful protests will be criminalised, and it will have a chilling effect on the right to protest.
The Government say that they are doing something on law and order, but they are inadvertently criminalising all sorts of innocent people, whether they like it or not. That will damage the right to protest.
Lord Hogan-Howe (CB)
My Lords, I suspect I am going to be in a small minority of people who are supporting the Government tonight. Regardless of that, I think the police should have an opportunity to make something of their case. The only, or main, reason we are debating this tonight is because of the disruption that was caused at Oxford Circus, Heathrow airport and on the M25, some of which the noble Lord, Lord Rosser, referred to. It was dangerous at times and deeply disruptive to normal work around London and in other places where it took place. The police were criticised, and I must admit that at times I wondered why they were not using some existing powers around Oxford Circus, which looked like a fairly straightforward case of obstruction. I think they have made a case since, although they have gone a little quieter as the debate has approached, about the sort of help they need.
One of the things they needed help with is locking on. The law is not at all clear that just by locking on to something you have committed an offence. If you do not damage it, what is the problem? Well, it is fine until it disrupts the business or what people are trying to do, so I think there is a need to consider a change of law. If you are going to look for equipment that is going to be used for locking on, there is not much point unless you have a stop and search power. How are you going to find it? There is no power of prevention for these things. This is a power to try to prevent people arriving at a point where they can use the locking-on materials. People are worried about the random nature of stop and search without cause, but it is limited by geography, as it is for a limited area; by time, for a matter of hours; and by the seniority of the officer giving the authorisation. The Section 60 power already exists. Some people do not like it, but it is now relatively rarely used. Most stop and searches are under Section 1, where cause has to be given.
I do not agree with the noble Lord, Lord Carlile, that the class of the person you are about to stop and search is relevant in any way. The law should be equal for everybody, and whether people are middle-class or whatever their background, it not relevant in deciding what the law should be and whether we should intervene in people’s life.
On the power around the road network, the noble Lord, Lord Rosser, said that Labour would prefer that we should target only motorways and major highways. But some hospitals are on side roads. Some ambulance stations are also on quite minor roads, so they can be disrupted, as can police stations and fire stations. So I do not think the quality of the road is relevant for this purpose; it is the intent and the disruption that is caused by the protest when it occurs.
My final point is that it was said by the noble Lord, Lord Rosser, that HMICFRS had called for the law to be changed to make sure that there is a proper record of public order skills around the country. I do not think that is a matter for law. It may well be that there is a need for more recording of skills, but, frankly, I do not think that is going to get us through this problem; you are going to have to have numbers of officers with the right powers.
The very final thing I shall say about these prevention orders is that the harm that these prevention orders are trying to remedy—
Lord Carlile of Berriew (CB)
Given the noble Lord’s criticism of what I said, which he was perfectly entitled to make, does he agree that if the police without suspicion wrongly stop and search people who normally support the police very strongly and obey the law, it will diminish the respect in which they hold the law?
Lord Hogan-Howe (CB)
If someone is stopped and searched without good cause, either maliciously or for any other reason, I do not care whether they were a criminal in the past or a good person; it is a bad thing. Regardless of their background, there has to be a good cause for that stop and search unless the law says that it should be done without cause.
As I was saying about prevention orders, the reason that they were considered was that the rate at which people were being released from bail to return to the protest was overwhelming the ability of the police to deal with the disruption. That is what is being looked at, to see whether there is a possibility of exerting some inhibiting behaviour on the protesters. It would still not be easy. If protesters turn out in sufficient numbers, they will always overwhelm the police—that is the nature of a democracy—but in these disruptions, quite often relatively small numbers have disrupted many people and, frankly, put their lives at risk. So in fact it is a serious matter and the Government’s proposals are fairly reasonable. There may be things that people can argue at the edges, but I do not object to this and I support the Government’s proposals.
Lord Paddick (LD)
My Lords, perhaps I could deal with the remarks of the noble Lord, Lord Hogan-Howe, to begin with. My recollection is that the report on public order from Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services showed that many officers did not want additional powers to deal with locking on. That is in the report. My experience is that the police are getting better and better at dealing with locking on, particularly people supergluing themselves to roadways—people are not now glued to the roadway for very long.
On hospitals that are on minor roads, the noble Lord, Lord Rosser, made it quite clear that he wanted the increased penalty of imprisonment for highway obstruction on the strategic road network where there is no realistic way around a blockage that has been put in. A hospital may be on a minor road, but there are other ways of getting to it, and I do not feel that that argument holds water. I will come to the noble Lord’s comments about the serious disruption orders shortly.
The Minister said that these amendments were debated in Committee. That debate started at 11.50 pm. The Minister stood up to make her closing remarks at 1 am. Does she really think that that is serious consideration and debate of these measures?
These government amendments were a hurried response to the Home Secretary’s knee-jerk, populist reaction to Insulate Britain protests at the Conservative Party conference. Consideration of this part of the Bill had to be taken out of order, to give civil servants time to cobble together these last-minute, ill-conceived, badly thought-through acts of desperation, introduced into this House late at night on the last day of Committee without any consideration by the other place. If the Government are determined to bring in these draconian, antidemocratic laws, reminiscent of Cold War Eastern bloc police states, they should withdraw them now and introduce them as a separate Bill to allow the democratically elected House time to consider them properly.
We oppose all these government amendments, for the reasons I set out in Committee—albeit in the early hours of the morning—and I refer noble Lords to the Official Report. Given the hour, we will vote against the most egregious measures: Amendment 151, which is clearly targeted at climate protesters; Amendment 155, which gives police the power to stop and search anyone and everyone in the vicinity of a protest, including innocent passers-by; and Amendment 159, by which the police can apply for an order to ban people from their democratic right to protest, even when they have never been to a protest in their life, let alone been convicted of any offence in connection with a protest. That is the power in these measures—you do not even have to have been to a protest to be banned from future ones. You do not even have to be convicted of an offence in connection with a protest before you can be banned from going to protests.
If the Official Opposition decide to vote on Amendment 148, on locking on, we will support them. We will also vote in favour of Amendment 150A, to restrict imprisonment for highway obstruction to blocking motorways and other parts of the strategic road network.
The anti-protest measures in the original Bill were dreadful. These measures, and the way they have been introduced, are outrageous.
Baroness Williams of Trafford (Con)
My Lords, I am not sure whether noble Lords want more time to debate or me to hurry up. If noble Lords will indulge me for a minute, I will thank them for the support for the new measures that has come from one area of the House, but it is clear that a number of other noble Lords are less enamoured of the government amendments. As I said in opening the debate, I think the British public will fully support these reasonable and proportionate measures to ensure that their daily lives are not disrupted by the sorts of tactics we saw from Insulate Britain last autumn. This is not an argument for or against climate change; it is about the disruption caused to the lives of the working British public.
“Wilful obstruction of highway
(1) Section 137 of the Highways Act 1980 (penalty for wilful obstruction) is amended as follows.(2) In subsection (1)—(a) after “liable to” insert “imprisonment for a term not exceeding 51 weeks or”;(b) for “not exceeding level 3 on the standard scale” substitute “or both”.(3) After subsection (1) insert—“(1A) In relation to an offence committed before the coming into force of section 281(5) of the Criminal Justice Act 2003 (alteration of penalties for certain summary offences: England and Wales), the reference in subsection (1) to 51 weeks is to be read as a reference to 6 months.(1B) For the purposes of this section it does not matter whether free passage along the highway in question has already been temporarily restricted or temporarily prohibited (whether by a constable, a traffic authority or otherwise).(1C) In subsection (1B), “traffic authority” has the same meaning as in the Road Traffic Regulation Act 1984 (see section 121A of that Act).””Member’s explanatory statement
This amendment increases the penalty for the offence of wilfully obstructing a highway. It also clarifies that for the purposes of the offence it does not matter whether free passage along the highway in question has already been temporarily restricted or prohibited.
Baroness Williams of Trafford
I beg to move.
Amendment 150A (to Amendment 150)
Lord Rosser
“(2) After subsection (1) insert—“(1ZA) If a person, without lawful authority or excuse, in any way wilfully obstructs the free passage along a highway which is part of the Strategic Road Network he is guilty of an offence and liable to imprisonment for a term not exceeding 51 weeks or a fine or both.””Member’s explanatory statement
This is an amendment to Government Amendment 150 creating a prison sentence for anyone wilfully obstructing a highway which is part of the Strategic Road Network, removing reference to a general highway.
Lord Rosser (Lab)
My Lords, on my amendment, I just say that I did not think that the real problem of wilful obstruction was on side roads; there has certainly been a problem of wilful obstruction in relation to motorways and major roads in the strategic road network for the reasons that I mentioned. The fact that there could be an issue of wilful obstruction on other, lesser highways is not, frankly, a justification for including all highways in these powers under government Amendment 150—hence our Amendment 150A, restricting it to the strategic road network. I wish to test the opinion of the House on Amendment 150A.
“Obstruction etc of major transport works
(1) A person commits an offence if the person—(a) obstructs the undertaker or a person acting under the authority of the undertaker—(i) in setting out the lines of any major transport works,(ii) in constructing or maintaining any major transport works, or (iii) in taking any steps that are reasonably necessary for the purposes of facilitating, or in connection with, the construction or maintenance of any major transport works, or(b) interferes with, moves or removes any apparatus which—(i) relates to the construction or maintenance of any major transport works, and(ii) belongs to the undertaker, to a person acting under the authority of the undertaker, to a statutory undertaker or to a person acting under the authority of a statutory undertaker.(2) It is a defence for a person charged with an offence under subsection (1) to prove that—(a) they had a reasonable excuse for the act mentioned in paragraph (a) or (b) of that subsection, or(b) the act mentioned in paragraph (a) or (b) of that subsection was done wholly or mainly in contemplation or furtherance of a trade dispute.(3) A person guilty of an offence under subsection (1) is liable on summary conviction to imprisonment for a term not exceeding 51 weeks, to a fine or to both.(4) In relation to an offence committed before the coming into force of section 281(5) of the Criminal Justice Act 2003 (alteration of penalties for certain summary offences: England and Wales), the reference in subsection (3) to 51 weeks is to be read as a reference to 6 months.(5) In this section “major transport works” means—(a) works in England and Wales—(i) relating to transport infrastructure, and(ii) the construction of which is authorised directly by an Act of Parliament, or(b) works the construction of which comprises development within subsection (6) that has been granted development consent by an order under section 114 of the Planning Act 2008.(6) Development is within this subsection if—(a) it is or forms part of a nationally significant infrastructure project within any of paragraphs (h) to (l) of section 14(1) of the Planning Act 2008,(b) it is or forms part of a project (or proposed project) in the field of transport in relation to which a direction has been given under section 35(1) of that Act (directions in relation to projects of national significance) by the Secretary of State, or(c) it is associated development in relation to development within paragraph (a) or (b).(7) In this section “undertaker”—(a) in relation to major transport works within subsection (5)(a), means a person who is authorised by or under the Act (whether as a result of being appointed the nominated undertaker for the purposes of the Act or otherwise) to construct or maintain any of the works;(b) in relation to major transport works within subsection (5)(b), means a person who is constructing or maintaining any of the works (whether as a result of being the undertaker for the purposes of the order granting development consent or otherwise).(8) In this section—“associated development” has the same meaning as in the Planning Act 2008 (see section 115 of that Act);“development” has the same meaning as in the Planning Act 2008 (see section 32 of that Act);“development consent” has the same meaning as in the Planning Act 2008 (see section 31 of that Act); “England” includes the English inshore region within the meaning of the Marine and Coastal Access Act 2009 (see section 322 of that Act);“maintain” includes inspect, repair, adjust, alter, remove, reconstruct and replace, and “maintenance” is to be construed accordingly;“nationally significant infrastructure project” has the same meaning as in the Planning Act 2008 (see section 14(1) of that Act);“statutory undertaker” means a person who is, or who is deemed to be, a statutory undertaker for the purposes of any provision of Part 11 of the Town and Country Planning Act 1990;“trade dispute” has the same meaning as in Part 4 of the Trade Union and Labour Relations (Consolidation) Act 1992, except that section 218 of that Act is to be read as if—(a) it made provision corresponding to section 244(4) of that Act, and(b) in subsection (5), the definition of worker included any person falling within paragraph (b) of the definition of worker in section 244(5) of that Act;“Wales” includes the Welsh inshore region within the meaning of the Marine and Coastal Access Act 2009 (see section 322 of that Act).(9) In section 14 of the Planning Act 2008 (nationally significant infrastructure projects), after subsection (3) insert—“(3A) An order under subsection (3)(a) may also amend section (Obstruction etc of major transport works) (6)(a) of the Police, Crime, Sentencing and Courts Act 2021 (obstruction etc of major transport works).””Member’s explanatory statement
This amendment contains a new offence of obstructing the construction or maintenance of major transport works. These are transport works that are authorised directly by an Act of Parliament or by certain development consent orders under the Planning Act 2008.
“Interference with use or operation of key national infrastructure
(1) A person commits an offence if—(a) they do an act which interferes with the use or operation of any key national infrastructure in England and Wales, and(b) they intend that act to interfere with the use or operation of such infrastructure or are reckless as to whether it will do so.(2) It is a defence for a person charged with an offence under subsection (1) to prove that—(a) they had a reasonable excuse for the act mentioned in paragraph (a) of that subsection, or(b) the act mentioned in paragraph (a) of that subsection was done wholly or mainly in contemplation or furtherance of a trade dispute.(3) A person guilty of an offence under subsection (1) is liable—(a) on summary conviction, to imprisonment for a term not exceeding 12 months, to a fine or to both;(b) on conviction on indictment, to imprisonment for a term not exceeding 12 months, to a fine, or to both.(4) In relation to an offence committed before the coming into force of paragraph 24(2) of Schedule 22 to the Sentencing Act 2020, the reference in subsection (3)(a) to 12 months is to be read as a reference to 6 months.(5) For the purposes of subsection (1) a person’s act interferes with the use or operation of key national infrastructure if it prevents the infrastructure from being used or operated to any extent for any of its intended purposes.(6) The cases in which infrastructure is prevented from being used or operated for any of its intended purposes include where its use or operation for any of those purposes is significantly delayed.(7) In this section “key national infrastructure” means—(a) road transport infrastructure,(b) rail infrastructure,(c) air transport infrastructure,(d) harbour infrastructure,(e) downstream oil infrastructure, or(f) newspaper printing infrastructure.Section (Key national infrastructure) makes further provision about these kinds of infrastructure.(8) The Secretary of State may by regulations made by statutory instrument— (a) amend subsection (7) to add a new kind of infrastructure or to vary or remove an existing kind of infrastructure;(b) amend section (Key national infrastructure) to add, amend or remove provision about a kind of infrastructure which is in, or is to be added to, subsection (7) or is to be removed from that subsection.(9) Regulations under subsection (8)—(a) may make different provision for different purposes;(b) may make consequential, supplementary, incidental, transitional, transitory or saving provision.(10) A statutory instrument containing regulations under subsection (8) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.(11) In this section—“England” includes the English inshore region within the meaning of the Marine and Coastal Access Act 2009 (see section 322 of that Act);“trade dispute” has the same meaning as in Part 4 of the Trade Union and Labour Relations (Consolidation) Act 1992, except that section 218 of that Act is to be read as if—(a) it made provision corresponding to section 244(4) of that Act, and(b) in subsection (5), the definition of worker included any person falling within paragraph (b) of the definition of worker in section 244(5) of that Act;“Wales” includes the Welsh inshore region within the meaning of the Marine and Coastal Access Act 2009 (see section 322 of that Act).”Member’s explanatory statement
This amendment makes it an offence for a person to do an act which interferes with the use or operation of key national infrastructure where the person intends the act to have that effect or is reckless as to whether it will do so. This is subject to a defence of reasonable excuse and a defence applying to industrial action.
“Key national infrastructure
(1) This section has effect for the purposes of section (Interference with use or operation of key national infrastructure).(2) “Road transport infrastructure” means—(a) a special road within the meaning of the Highways Act 1980 (see section 329(1) of that Act), or(b) a road which, under the system for assigning identification numbers to roads administered by the Secretary of State or the Welsh Ministers, has for the time being been assigned a number prefixed by A or B.(3) “Rail infrastructure” means infrastructure used for the purposes of railway services within the meaning of Part 1 of the Railways Act 1993 (see section 82 of that Act).(4) In the application of section 82 of the Railways Act 1993 for the purposes of subsection (3) “railway” has the wider meaning given in section 81(2) of that Act.(5) “Air transport infrastructure” means—(a) an airport within the meaning of the Airports Act 1986 (see section 82(1) of that Act), or(b) any infrastructure which—(i) does not form part of an airport within the meaning of that Act, and(ii) is used for the provision of air traffic services within the meaning of Part 1 of the Transport Act 2000 (see section 98 of that Act).(6) “Harbour infrastructure” means a harbour within the meaning of the Harbours Act 1964 (see section 57(1) of that Act) which provides facilities for or in connection with—(a) the embarking or disembarking of passengers who are carried in the course of a business, or(b) the loading or unloading of cargo which is carried in the course of a business.(7) “Downstream oil infrastructure” means infrastructure used for or in connection with any of the following activities—(a) the refinement or other processing of crude oil or oil feedstocks;(b) the storage of crude oil or crude oil-based fuel for onward distribution, other than storage by a person who supplies crude oil-based fuel to the public where the storage is for the purposes of such supply;(c) the loading or unloading of crude oil or crude oil-based fuel for onward distribution, other than unloading to a person who supplies crude oil-based fuel to the public where the unloading is for the purposes of such supply; (d) the carriage, by road, rail, sea or inland waterway, of crude oil or crude oil-based fuel for the purposes of onward distribution;(e) the conveyance of crude oil or crude oil-based fuel by means of a pipe-line within the meaning of the Pipe-lines Act 1962 (see section 65 of that Act).(8) “Newspaper printing infrastructure” means infrastructure the primary purpose of which is the printing of one or more national or local newspapers.(9) In this section—“local newspaper” means a newspaper which is published at least fortnightly and is in circulation in a part of England and Wales;“national newspaper” means a newspaper which is published at least fortnightly and is in circulation in England, in Wales or in both;“newspaper” includes a periodical or magazine.”Member’s explanatory statement
This amendment defines the different types of key national infrastructure for the purposes of the new Clause in the name of Baroness Williams of Trafford to be inserted after Clause 62 and creating the offence of interfering with the use or operation of such infrastructure.
“Powers to stop and search on suspicion
In section 1(8) of the Police and Criminal Evidence Act 1984 (offences in relation to which stop and search power applies)—(a) omit the “and” at the end of paragraph (d), and(b) after paragraph (e) insert—“(f) an offence under section 137 of the Highways Act 1980 (wilful obstruction) involving activity which causes or is capable of causing serious disruption to two or more individuals or to an organisation;(g) an offence under section 61 of the Police, Crime, Sentencing and Courts Act 2021 (intentionally or recklessly causing public nuisance);(h) an offence under section (Offence of locking on) of that Act (offence of locking on);(i) an offence under section (Obstruction etc of major transport works) of that Act (obstruction etc of major transport works); and(j) an offence under section (Interference with use or operation of key national infrastructure) of that Act (interference with use or operation of key national infrastructure).”.”Member’s explanatory statement
This amendment amends section 1 of the Police and Criminal Evidence Act 1984 to allow a constable to stop and search a person or vehicle if they have reasonable grounds for suspecting that they will find an article made, adapted or intended for use in the course of or in connection with an offence listed in the amendment.
“Powers to stop and search without suspicion
(1) This section applies if a police officer of or above the rank of inspector reasonably believes—(a) that any of the following offences may be committed in any locality within the officer’s police area—(i) an offence under section 137 of the Highways Act 1980 (wilful obstruction) involving activity which causes or is capable of causing serious disruption to two or more individuals or to an organisation;(ii) an offence under section 61 (intentionally or recklessly causing public nuisance);(iii) an offence under section (Offence of locking on) (offence of locking on);(iv) an offence under section (Obstruction etc of major transport works) (obstruction etc of major transport works);(v) an offence under section (Interference with use or operation of key national infrastructure) (interference with use or operation of key national infrastructure), or(b) that persons are carrying prohibited objects in any locality within the officer’s police area.(2) In this section “prohibited object” means an object which—(a) is made or adapted for use in the course of or in connection with an offence within subsection (1)(a), or(b) is intended by the person having it with them for such use by them or by some other person,and for the purposes of this section a person carries a prohibited object if they have it in their possession.(3) If the further condition in subsection (4) is met, the police officer may give an authorisation that the powers conferred by this section are to be exercisable— (a) anywhere within a specified locality within the officer’s police area, and(b) for a specified period not exceeding 24 hours.(4) The further condition is that the police officer reasonably believes that—(a) the authorisation is necessary to prevent the commission of offences within subsection (1)(a) or the carrying of prohibited objects (as the case may be),(b) the specified locality is no greater than is necessary to prevent such activity, and(c) the specified period is no longer than is necessary to prevent such activity.(5) If it appears to a police officer of or above the rank of superintendent that it is necessary to do so to prevent the commission of offences within subsection (1)(a) or the carrying of prohibited objects, the officer may direct that the authorisation is to continue in force for a further period not exceeding 24 hours.(6) This section confers on any constable in uniform power—(a) to stop any person and search them or anything carried by them for a prohibited object;(b) to stop any vehicle and search the vehicle, its driver and any passenger for a prohibited object.(7) A constable may, in the exercise of the powers conferred by subsection (6), stop any person or vehicle and make any search the constable thinks fit whether or not the constable has any grounds for suspecting that the person or vehicle is carrying a prohibited object.(8) If in the course of a search under this section a constable discovers an object which the constable has reasonable grounds for suspecting to be a prohibited object, the constable may seize it.(9) This section and sections (Further provisions about authorisations and directions under section (Powers to stop and search without suspicion)) (further provisions about authorisations and directions under this section), (Further provisions about searches under section (Powers to stop and search without suspicion)) (further provisions about searches under this section) and (Offence relating to section (Powers to stop and search without suspicion)) (offence relating to this section) apply (with the necessary modifications) to ships, aircraft and hovercraft as they apply to vehicles.(10) In this section and the sections mentioned in subsection (9)—“specified” means specified in an authorisation under this section;“vehicle” includes a caravan as defined in section 29(1) of the Caravan Sites and Control of Development Act 1960.(11) The powers conferred by this section and the sections mentioned in subsection (9) do not affect any power conferred otherwise than by this section or those sections.”Member’s explanatory statement
This amendment makes provision for a senior police officer to give an authorisation applying to a specified locality for a specified period and allowing a constable to stop and search a person or vehicle for an object made, adapted or intended for use in the course of or in connection with an offence listed in the amendment. While the authorisation is in force the constable may exercise the power whether or not they have any grounds for suspecting the person or vehicle is carrying such an object.
“Serious disruption prevention orders
(1) In Part 11 of the Sentencing Code (behaviour orders), after Chapter 1A (as inserted by section 141) insert—“CHAPTER 1BSERIOUS DISRUPTION PREVENTION ORDERSSerious disruption prevention orders made on conviction342L Serious disruption prevention order made on conviction(1) This section applies where—(a) a person aged 18 or over (“P”) is convicted of an offence (“the current offence”) which was committed on or after the day on which this section comes into force, and(b) the prosecution applies for a serious disruption prevention order to be made in respect of P.(2) The court dealing with P in respect of the current offence may make a serious disruption prevention order in respect of P if—(a) the court is satisfied on the balance of probabilities that the current offence is a protest-related offence,(b) the earlier offence condition is met, and(c) the court considers it necessary to make the order for a purpose mentioned in subsection (5).(3) The earlier offence condition is that— (a) within the relevant period, P has been convicted of an offence (“the earlier offence”),(b) the court is satisfied on the balance of probabilities that the earlier offence was a protest-related offence, and(c) the current offence and the earlier offence—(i) relate to different protests, or(ii) were committed on different days.(4) In subsection (3) “the relevant period” means the period of 5 years ending with the day on which P is convicted of the current offence; but an offence may be taken into account for the purposes of this section only if it was committed—(a) on or after the day on which this section comes into force, and(b) when P was aged 16 or over.(5) The purposes are—(a) to prevent P from committing a protest-related offence or a protest-related breach of an injunction;(b) to prevent P from carrying out activities related to a protest that result in, or are likely to result in, serious disruption to two or more individuals, or to an organisation, in England and Wales;(c) to prevent P from causing or contributing to—(i) the commission by any other person of a protest-related offence or a protest-related breach of an injunction, or(ii) the carrying out by any other person of activities related to a protest that result in, or are likely to result in, serious disruption to two or more individuals, or to an organisation, in England and Wales;(d) to protect two or more individuals, or an organisation, in England and Wales from the risk of serious disruption arising from—(i) a protest-related offence,(ii) a protest-related breach of an injunction, or(iii) activities related to a protest.(6) A serious disruption prevention order under this section is an order which, for a purpose mentioned in subsection (5)—(a) requires P to do anything described in the order;(b) prohibits P from doing anything described in the order.(7) The court may make a serious disruption prevention order in respect of P only if it is made in addition to—(a) a sentence imposed in respect of the current offence, or(b) an order discharging P conditionally.(8) For the purpose of deciding whether to make a serious disruption prevention order the court may consider evidence led by the prosecution or P.(9) It does not matter whether the evidence would have been admissible in the proceedings for the current offence.(10) The court may adjourn any proceedings on an application for a serious disruption prevention order even after sentencing P.(11) If P does not appear for any adjourned proceedings the court may—(a) further adjourn the proceedings,(b) issue a warrant for P’s arrest, or(c) hear the proceedings in P’s absence. (12) The court may not act under subsection (11)(b) unless it is satisfied that P has had adequate notice of the time and place of the adjourned proceedings.(13) The court may not act under subsection (11)(c) unless it is satisfied that P—(a) has had adequate notice of the time and place of the adjourned proceedings, and(b) has been informed that if P does not appear for those proceedings the court may hear the proceedings in P’s absence.(14) On making a serious disruption prevention order the court must in ordinary language explain to P the effects of the order.(15) Where an offence is found to have been committed over a period of 2 or more days, or at some time during a period of 2 or more days, it must be taken for the purposes of this section to have been committed on the last of those days.Serious disruption prevention orders made otherwise than on conviction342M Serious disruption prevention order made otherwise than on conviction(1) A magistrates’ court may make a serious disruption prevention order in respect of a person (“P”) where—(a) a person within subsection (7) applies by complaint to the court for a serious disruption prevention order to be made in respect of P,(b) P is aged 18 or over when the application is made,(c) the condition in subsection (2) is met, and(d) the court considers it necessary to make the order for a purpose mentioned in subsection (4).(2) This condition in this subsection is that the court is satisfied on the balance of probabilities that—(a) on at least two occasions in the relevant period, P has—(i) been convicted of a protest-related offence,(ii) been found in contempt of court for a protest-related breach of an injunction,(iii) carried out activities related to a protest that resulted in, or were likely to result in, serious disruption to two or more individuals, or to an organisation, in England and Wales,(iv) caused or contributed to the commission by any other person of a protest-related offence or a protest-related breach of an injunction, or(v) caused or contributed to the carrying out by any other person of activities related to a protest that resulted in, or were likely to result in, serious disruption to two or more individuals, or to an organisation, in England and Wales, and(b) each event mentioned in paragraph (a)—(i) relates to a different protest, or(ii) took place on a different day.(3) In subsection (2) “the relevant period” means the period of 5 years ending with the day on which the order is made; but an event may be taken into account for the purposes of this section only if it occurred—(a) on or after the day on which this section comes into force, and(b) when P was aged 16 or over.(4) The purposes are—(a) to prevent P from committing a protest-related offence or a protest-related breach of an injunction; (b) to prevent P from carrying out activities related to a protest that result in, or are likely to result in, serious disruption to two or more individuals, or to an organisation, in England and Wales;(c) to prevent P from causing or contributing to—(i) the commission by any other person of a protest-related offence or a protest-related breach of an injunction, or(ii) the carrying out by any other person of activities related to a protest that result in, or are likely to result in, serious disruption to two or more individuals, or to an organisation, in England and Wales;(d) to protect two or more individuals, or an organisation, in England and Wales from the risk of serious disruption arising from—(i) a protest-related offence,(ii) a protest-related breach of an injunction, or(iii) activities related to a protest.(5) A serious disruption prevention order under this section is an order which, for a purpose mentioned in subsection (4)—(a) requires P to do anything described in the order;(b) prohibits P from doing anything described in the order.(6) On making a serious disruption prevention order the court must in ordinary language explain to P the effects of the order.(7) The following persons are within this subsection—(a) a relevant chief officer of police;(b) the chief constable of the British Transport Police Force;(c) the chief constable of the Civil Nuclear Constabulary;(d) the chief constable of the Ministry of Defence Police.(8) For the purposes of subsection (7)(a) a chief officer of police is a relevant chief officer of police in relation to an application for a serious disruption prevention order in respect of P if—(a) P lives in the chief officer’s police area, or(b) the chief officer believes that P is in, or is intending to come to, the chief officer’s police area.(9) An application for a serious disruption prevention order made by a chief officer of police for a police area may be made only to a court acting for a local justice area that includes any part of that police area.(10) Where an offence is found to have been committed over a period of 2 or more days, or at some time during a period of 2 or more days, it must be taken for the purposes of this section to have been committed on the last of those days.(11) Section 127 of the Magistrates’ Courts Act 1980 (time limits) does not apply to a complaint under this section.Provisions of serious disruption prevention orders342N Provisions of serious disruption prevention order(1) The requirements imposed on a person (“P”) by a serious disruption prevention order may, in particular, have the effect of requiring P to present themselves to a particular person at a particular place at, or between, particular times on particular days.(2) Sections 342O and 342P make further provision about the inclusion of requirements (including notification requirements) in a serious disruption prevention order. (3) The prohibitions imposed on a person (“P”) by a serious disruption prevention order may, in particular, have the effect of prohibiting P from—(a) being at a particular place;(b) being at a particular place between particular times on particular days;(c) being at a particular place between particular times on any day;(d) being with particular persons;(e) participating in particular activities;(f) having particular articles with them;(g) using the internet to facilitate or encourage persons to—(i) commit a protest-related offence or a protest-related breach of an injunction, or(ii) carry out activities related to a protest that result in, or are likely to result in, serious disruption to two or more individuals, or to an organisation, in England and Wales.(4) References in this section to a particular place or particular persons, activities or articles include a place, persons, activities or articles of a particular description.(5) A serious disruption prevention order which imposes prohibitions on a person may include exceptions from those prohibitions.(6) Nothing in this section affects the generality of sections 342L(6) and 342M(5).(7) The requirements or prohibitions which are imposed on a person by a serious disruption prevention order must, so far as practicable, be such as to avoid—(a) any conflict with the person’s religious beliefs, and(b) any interference with the times, if any, at which the person normally works or attends any educational establishment.342O Requirements in serious disruption prevention order(1) A serious disruption prevention order which imposes on a person (“P”) a requirement, other than a notification requirement under section 342P, must specify a person who is to be responsible for supervising compliance with the requirement.(2) That person may be an individual or an organisation.(3) Before including such a requirement, the court must receive evidence about its suitability and enforceability from—(a) the individual to be specified under subsection (1), if an individual is to be specified;(b) an individual representing the organisation to be specified under subsection (1), if an organisation is to be specified.(4) Before including two or more such requirements, the court must consider their compatibility with each other.(5) It is the duty of a person specified under subsection (1)—(a) to make any necessary arrangements in connection with the requirements for which the person has responsibility (the “relevant requirements”);(b) to promote P’s compliance with the relevant requirements;(c) if the person considers that P—(i) has complied with all of the relevant requirements, or(ii) has failed to comply with a relevant requirement,to inform the appropriate chief officer of police. (6) In subsection (5)(c) “the appropriate chief officer of police” means—(a) the chief officer of police for the police area in which it appears to the person specified under subsection (1) that P lives, or(b) if it appears to that person that P lives in more than one police area, whichever of the chief officers of police of those areas the person thinks it is most appropriate to inform.(7) Where P is subject to a requirement in a serious disruption prevention order, other than a notification requirement under section 342P, P must—(a) keep in touch with the person specified under subsection (1) in relation to that requirement, in accordance with any instructions given by that person from time to time, and(b) notify that person of any change of P’s home address.(8) The obligations mentioned in subsection (7) have effect as if they were requirements imposed on P by the order.342P Notification requirements in serious disruption prevention order(1) A serious disruption prevention order made in respect of a person (“P”) must impose on P the notification requirements in subsections (2) and (4).(2) P must be required to notify the information in subsection (3) to the police within the period of 3 days beginning with the day on which the order takes effect.(3) That information is—(a) P’s name on the day that the notification is given and, where P uses one or more other names on that day, each of those names,(b) P’s home address on that day, and(c) the address of any other premises at which, on that day, P regularly resides or stays.(4) P must be required to notify the information mentioned in subsection (5) to the police within the period of 3 days beginning with the day on which P—(a) uses a name which has not been previously notified to the police in accordance with the order,(b) changes their home address, or(c) decides to live for a period of one month or more at any premises the address of which has not been previously notified to the police in accordance with the order.(5) That information is—(a) in a case within subsection (4)(a), the name which has not previously been notified,(b) in a case within subsection (4)(b), the new home address, and(c) in a case within subsection (4)(c), the address of the premises at which P has decided to live.(6) A serious disruption prevention order must provide that P gives a notification of the kind mentioned in subsection (2) or (4) by—(a) attending at a police station in a police area in which P lives, and(b) giving an oral notification to a police officer, or to any person authorised for the purpose by the officer in charge of the station.342Q Duration of serious disruption prevention order(1) A serious disruption prevention order takes effect on the day it is made, subject to subsections (3) and (4). (2) A serious disruption prevention order must specify the period for which it has effect, which must be a fixed period of not less than 1 week and not more than 2 years.(3) Subsection (4) applies in relation to a serious disruption prevention order made in respect of a person (“P”) if—(a) P has been remanded in or committed to custody by an order of a court,(b) a custodial sentence has been imposed on P or P is serving or otherwise subject to a such a sentence, or(c) P is on licence for part of the term of a custodial sentence.(4) The order may provide that it does not take effect until—(a) P is released from custody,(b) P ceases to be subject to a custodial sentence, or(c) P ceases to be on licence.(5) A serious disruption prevention order may specify periods for which particular requirements or prohibitions have effect.(6) Where a court makes a serious disruption prevention order in respect of a person and the person is already subject to such an order, the earlier order ceases to have effect.(7) In this section “custodial sentence” includes a pre-Code custodial sentence (see section 222(4)).342R Other information to be included in serious disruption prevention orderA serious disruption prevention order made in respect of a person must specify—(a) the reasons for making the order, and(b) the penalties which may be imposed on the person for breaching the order.Offences342S Offences relating to a serious disruption prevention order(1) Where a serious disruption prevention order has effect in respect of a person (“P”), P commits an offence if P—(a) fails without reasonable excuse to do anything P is required to do by the order,(b) without reasonable excuse does anything P is prohibited from doing by the order, or(c) notifies to the police, in purported compliance with the order, any information which P knows to be false.(2) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding 51 weeks or a fine or both.(3) In relation to an offence committed before the coming into force of section 281(5) of the Criminal Justice Act 2003 (alteration of penalties for certain summary offences: England and Wales), the reference in subsection (2) to 51 weeks is to be read as a reference to 6 months.Variation, renewal or discharge of serious disruption prevention order342T Variation, renewal or discharge of serious disruption prevention order(1) Where a serious disruption prevention order has been made in respect of a person (“P”), a person within subsection (2) may apply to the appropriate court for an order varying, renewing or discharging the order.(2) Those persons are—(a) P; (b) the chief officer of police for the police area in which P lives;(c) a chief officer of police who believes that P is in, or is intending to come to, the chief officer’s police area;(d) if the application for the order was made by a chief officer of police other than one within paragraph (b) or (c), the chief officer by whom the application was made;(e) the chief officer of police for a police area in which P committed an offence on the basis of which the order was made;(f) where the order was made following an application by a constable within subsection (3), that constable.(3) Those constables are—(a) the chief constable of the British Transport Police Force;(b) the chief constable of the Civil Nuclear Constabulary;(c) the chief constable of the Ministry of Defence Police.(4) An application under this section must be made—(a) where the appropriate court is a magistrates’ court, by complaint;(b) in any other case, in accordance with rules of court.(5) Before making a decision on an application under this section, the court must hear—(a) the person making the application, and(b) any other person within subsection (2) who wishes to be heard.(6) Subject to subsection (7), on an application under this section the court may make such order varying, renewing or discharging the serious disruption prevention order as it thinks appropriate.(7) The court may renew a serious disruption prevention order, or vary such an order so as to lengthen its duration or to impose an additional prohibition or requirement on P, only if it considers that to do so is necessary—(a) to prevent P from committing a protest-related offence or a protest-related breach of an injunction,(b) to prevent P from carrying out activities related to a protest that result in, or are likely to result in, serious disruption to two or more individuals, or to an organisation, in England and Wales,(c) to prevent P from causing or contributing to—(i) the commission by any other person of a protest-related offence or a protest-related breach of an injunction, or(ii) the carrying out by any other person of activities related to a protest that result in, or are likely to result in, serious disruption to two or more individuals, or to an organisation, in England and Wales, or(d) to protect two or more individuals, or an organisation, in England and Wales from the risk of serious disruption arising from—(i) a protest-related offence,(ii) a protest-related breach of an injunction, or(iii) activities related to a protest.(8) Sections 342N, 342O, 342P (other than subsections (2) and (3)), 342Q and 342R have effect in relation to the renewal of a serious disruption prevention order, or the variation of such an order so as to lengthen its duration or to impose a new requirement or prohibition, as they have effect in relation to the making of such an order. (9) On making an order under this section varying or renewing a serious disruption prevention order, the court must in ordinary language explain to P the effects of the serious disruption prevention order (as varied or renewed).(10) Section 127 of the Magistrates’ Courts Act 1980 does not apply to a complaint under this section.(11) In this section “the appropriate court” means—(a) where the Crown Court or the Court of Appeal made the order, the Crown Court;(b) where a magistrates’ court made the order and the application is made by P or a constable within subsection (3)—(i) that magistrates’ court, or(ii) a magistrates’ court for the area in which P lives;(c) where a magistrates’ court made the order and the application is made by a chief officer of police—(i) that magistrates’ court,(ii) a magistrates’ court for the area in which P lives, or(iii) a magistrates’ court acting for a local justice area that includes any part of the chief officer’s police area.Appeals342U Appeal against serious disruption prevention order(1) Where a serious disruption prevention order is made under section 342L (order on conviction) in respect of a person (“P”), P may appeal against the making of the order as if the order were a sentence passed on P for the offence.(2) Where a serious disruption prevention order is made under section 342M (order otherwise than on conviction) in respect of a person (“P”), P may appeal to the appropriate court against the making of the order.(3) A person who applied under section 342M (order otherwise than on conviction) for a serious disruption prevention order to be imposed in respect of a person may appeal to the appropriate court against a refusal to make the order.(4) Where an application is made under section 342T for an order varying, renewing or discharging a serious disruption prevention order made in respect of a person (“P”)—(a) the person who made the application may appeal to the appropriate court against a refusal to make an order under that section;(b) P may appeal to the appropriate court against the making of an order under that section which was made on the application of a person other than P;(c) a person within subsection (2) of that section (other than P) may appeal to the appropriate court against the making of an order under that section which was made on the application of P.(5) In this section “the appropriate court” means—(a) in relation to an appeal under subsection (2), the Crown Court;(b) in relation to an appeal under subsection (3) or (4)—(i) where the application in question was made to a magistrates’ court, the Crown Court;(ii) where the application in question was made to the Crown Court, the Court of Appeal.(6) On an appeal under this section to the Crown Court, the court may make—(a) such orders as may be necessary to give effect to its determination of the appeal, and (b) such incidental and consequential orders as appear to it to be appropriate.General342V Guidance(1) The Secretary of State may issue guidance to—(a) chief officers of police,(b) the chief constable of the British Transport Police Force,(c) the chief constable of the Civil Nuclear Constabulary, and(d) the chief constable of the Ministry of Defence Police,in relation to serious disruption prevention orders.(2) The guidance may in particular include—(a) guidance about the exercise by chief officers of police and the chief constables mentioned in subsection (1) of their functions under this Chapter,(b) guidance about identifying persons in respect of whom it may be appropriate for applications for serious disruption prevention orders to be made, and(c) guidance about providing assistance to prosecutors in connection with applications for serious disruption prevention orders.(3) The Secretary of State may revise any guidance issued under this section.(4) The Secretary of State must arrange for any guidance issued under this section to be published.(5) A chief officer of police or a chief constable mentioned in subsection (1) must have regard to any guidance issued under this section.342W Guidance: Parliamentary procedure(1) Before issuing guidance under section 342V, the Secretary of State must lay a draft of the guidance before Parliament.(2) If, within the 40-day period, either House of Parliament resolves not to approve the draft guidance, the guidance may not be issued.(3) If no such resolution is made within that period, the Secretary of State may issue the guidance.(4) In this section “the 40-day period”, in relation to draft guidance, means the period of 40 days beginning with the day on which the draft is laid before Parliament (or, if it is not laid before each House on the same day, the later of the days on which it is laid).(5) In calculating the 40-day period, no account is to be taken of any period during which—(a) Parliament is dissolved or prorogued, or(b) both Houses are adjourned for more than 4 days.342X Interpretation of ChapterIn this Chapter—“home address”, in relation to a person (“P”), means—(a) the address of P’s sole or main residence, or(b) if P has no such residence, the address or location of a place where P can regularly be found and, if there is more than one such place, such one of those places as P may select;“injunction” means an injunction granted by the High Court, the county court or a youth court;“protest-related breach”, in relation to an injunction, means a breach which is directly related to a protest; “protest-related offence” means an offence which is directly related to a protest.”(2) In section 3(2) of the Prosecution of Offences Act 1985 (functions of the Director of Public Prosecutions), before paragraph (g) insert—“(fi) to have the conduct of applications for orders under section 342L(1)(b) of the Sentencing Code (serious disruption prevention orders on conviction);”.”Member’s explanatory statement
This amendment contains provisions about serious disruption prevention orders. These are orders which can be imposed on a person who has committed two protest-related offences or who has, on at least two occasions, committed protest-related breaches of injunctions or caused or contributed to the commission of such offences or breaches or to activity related to a protest that resulted in serious disruption to two or more individuals or to an organisation.
“Repeal of Vagrancy Act 1824
(1) The Vagrancy Act 1824 is repealed.(2) In this section—“the 2014 Act” means the Anti-social Behaviour, Crime and Policing Act 2014;“begging” means asking for gifts on streets or in other public places (for which purpose it is immaterial whether gifts are of money or in kind, whether they are expressed as gifts or as loans, and whether a person asks expressly or impliedly, by displaying receptacles for donations or otherwise; but “begging” does not include soliciting donations to a registered charity with the express written authority of that charity);“registered charity” means a charity registered under section 30 of the Charities Act 2011, or exempted or excepted from registration under or by virtue of that section; and “sleeping rough” means sleeping (or making preparations to sleep, or possessing bedding or other equipment for the purpose of sleeping) on streets or in other public places, or in places or structures not designed for human habitation.(3) The following principles are to be applied in the exercise of powers under the 2014 Act—(a) begging or sleeping rough does not in itself amount to action causing alarm or distress (in the absence of other factors);(b) policing and other enforcement action should balance protection of the community with sensitivity to the problems that cause people to engage in begging or sleeping rough; and(c) powers under the 2014 Act should not in general be used in relation to people sleeping rough, and should be used in relation to people begging only where no other approach is reasonably available.(4) A constable or other person exercising functions under the 2014 Act, or considering whether to exercise functions under that Act, in connection with a person who has been, or may have been, involved in begging or sleeping rough, must consider whether the person could be referred to public authorities, or charitable or other persons, for help in addressing the problems that cause them to be involved in begging or sleeping rough.(5) The Secretary of State must issue guidance to local authorities and police forces about the implementation of subsections (3) and (4).(6) Local authorities and police forces must—(a) have regard to the guidance; and(b) take reasonable steps to provide education and training designed to ensure consistent and effective implementation of subsections (3) and (4).(7) Before issuing (or revising) the guidance the Secretary of State must consult—(a) representatives of police forces;(b) representatives of local authorities; and(c) persons representing the interests of homeless persons.(8) The following enactments are repealed (in consequence of subsection (1))—(a) the Vagrancy Act 1898;(b) the Vagrancy Act 1935;(c) sections 20(1)(g) and 24(1)(f) of the Sentencing Act 2020;(d) section 55(2)(b) of the Violent Crime Reduction Act 2006;(e) paragraph 18 of Schedule 8 to the Serious Organised Crime and Police Act 2005;(f) paragraphs 3(3)(b) and 7(3) of Schedule 3C to the Police Reform Act 2002;(g) paragraph 2(3)(aa) of Schedule 5 to that Act;(h) paragraph 4 of Schedule 6 to the Criminal Justice and Court Services Act 2000;(i) section 43(5) of the Mental Health Act 1983;(j) section 70 of the Criminal Justice Act 1982;(k) section 20 of the Criminal Justice Act 1967;(l) in section 48(2) of the Forestry Act 1967, the words “or against the Vagrancy Act 1824”;(m) in section 20(4) of the New Towns Act (Northern Ireland) 1965, the words “or against section 4 of the Vagrancy Act 1824”;(n) section 2(3)(c) of the House to House Collections Act 1939; and (o) in section 81 of the Public Health Acts Amendment Act 1907, the words “shall for the purpose of the Vagrancy Act 1824 and of any Act for the time being in force altering or amending the same, be deemed to be an open and public place, and”.(9) This section extends to England and Wales only.(10) This section comes into force at the end of the period of two months beginning with the date of Royal Assent.”Member’s explanatory statement
This new Clause would repeal the Vagrancy Act 1824 and establish that begging or sleeping rough is not itself criminal; it would require police officers to balance protection of the community with sensitivity to the problems that cause people to engage in begging or sleeping rough and ensure that general public order enforcement powers should not in general be used in relation to people sleeping rough, and should be used in relation to people begging only where no other approach is reasonably available.
Lord Best (CB)
My Lords, I apologise for being forced to move Amendment 160 and to speak to amendment 165 at this ridiculous hour. I hope that your Lordships can please hang on for just another few minutes, and I express my deep appreciation to those who have stayed to support these amendments to the Vagrancy Act 1824, which would be repealed by Amendment 160. I pay tribute to my colleagues from all parts of the House who are supporting this amendment, not least the noble Lord, Lord Young of Cookham, the erstwhile distinguished Housing Minister responsible for the important rough sleepers initiative in earlier times; the noble Lord, Lord Sandhurst, who has helped us with invaluable legal expertise; and Crisis—with congratulations and thanks to its new chief executive, Matt Downie—for its powerful campaigning on this repeal.
We discussed these amendments in Committee, and subsequently a number of us met with the Minister here today and the Minister for Rough Sleeping and Housing, Eddie Hughes. They explained that the Government are fully committed to repealing the law that makes homelessness a criminal act—but not necessarily now. Currently, the Vagrancy Act turns unfortunate casualties of our housing and care systems into criminals and deters them from seeking the protection and support they need to move away from the streets.
The shadow of the totally inappropriate Vagrancy Act still hangs over the public policy framework for homelessness and rough sleeping. The Government have done some really good work in helping thousands of homeless people into safe accommodation during the Covid crisis. These efforts may justify past delays in addressing the repeal of the Vagrancy Act, but any further delay would seriously undermine the reputation of the Government in this field.
Lord Young of Cookham (Con)
My Lords, I will add a very short footnote to the excellent speech of the noble Lord, Lord Best, and pay tribute to the way that he has spearheaded the campaign to repeal the Vagrancy Act. He has summarised the case for repeal succinctly. Nearly a year ago, on 25 February, the then Secretary of State said that the Act had been reviewed and, in his opinion, “should be repealed”. He said that it was
“an antiquated piece of legislation whose time has been and gone.”—[Official Report, Commons, 25/2/21; col. 1138.]
Since then, the noble Lord, Lord Best, and others have consulted extensively with a range of stakeholders—the police, local government, housing charities and legal experts—confirming the view that the Act is indeed redundant and can safely be repealed, with other, more up-to-date pieces of legislation to deal with aggressive behaviour. That took us to Committee stage, when the Government applied the brakes.
To get an insight into the Government’s reservations —as the noble Lord has just said—we met Ministers on 2 December and asked for details of why they believed that sections of the Act were still needed. We needed that so we could amend, if necessary, our amendments for Report and avoid a Division. We were told we could have the necessary details. Here, I am afraid, the Department for Levelling Up, whose policy area this is, has let my noble friend the Minister down. Despite repeated reminders, as we have just heard, only on the last working day before today did we get the reply—far too late to table amendments, six weeks after the meeting and with arguments I found less than compelling. As we are trying to deliver what is stated government policy, I think the performance of that department fell below the standard that we were entitled to receive.
The noble Lord, Lord Best, has set out what seems to me a perfectly respectable compromise, which even at this late stage would enable us to withdraw the amendment, and I hope that the Minister can agree to it. If not, then with some regret—because we have been willing to compromise throughout—I will support the amendment and hope it goes to the other place, where we know it will have support not just from the former Secretary of State but from Conservative Members of Parliament in London, including the former leader of Westminster City Council. I support the amendment.
Baroness Thornhill (LD)
My Lords, we on these Benches support the amendments in the name of the noble Lord, Lord Best, to which I have added my name. In view of the hour, I too will be brief, as the two noble Lords have already said it all. I thank the Minister for the time that she gave us both in meetings and in numerous emails. I genuinely believe that there is real commitment to undoing this blot on our societal conscience. Therefore, given the genuineness of that feeling, it is massively disappointing that it appears that the Government have decided not to seize the only opportunity that we can see in the legislative calendar to actually repeal this piece of legislation.
There is widespread support for repealing this Act. To do so would actually be popular and uncontroversial, unlike much of this Bill. It is unequivocally the right thing to do. The fact that in Scotland it has been repealed for years and that most police forces rarely, if ever, use the powers in the Act is surely evidence enough that, in reality, it is of little use in tackling the current issues of homelessness, where there are, as the noble Lord, Lord Young of Cookham, said, a raft of alternative measures at the disposal of the police and local authorities. It will be a great disappointment for many if this can is to be kicked further down the road. That is why, if it comes to a vote, we will be supporting the noble Lord, Lord Best. To steal a slogan from somewhere else, why do not the Government “Just Do It”?
Baroness Chakrabarti (Lab)
My Lords, your Lordships’ House can be proud tonight for seeking to prevent injustices well into the future, but in seeking to support the noble Lord, Lord Best, we can try to act on injustices that are nearly 200 years old.
Lord Ponsonby of Shulbrede (Lab)
My Lords, we will be supporting the noble Lord, Lord Best, if he chooses to press his amendment to a vote. If I may refer briefly to my experiences as a magistrate, it is indeed true that we do not actually see this charge brought very often—of course, we do see beggars, but it really is not that often. It seems to me that there is widespread cross-party support for repealing the Act. A compromise has been put forward by the noble Lord, Lord Best, and I will be interested in hearing the Minister’s response. If the noble Lord does choose to press his amendment, we will support him.
Baroness Williams of Trafford (Con)
My Lords, I will join other noble Lords in trying to be brief, given the lateness of the hour. I thank the noble Lord, Lord Best, my noble friend Lord Young of Cookham, and the noble Baroness, Lady Thornhill, for their commitment on this issue. I can only apologise that the letter was so late in returning to them.
I assured noble Lords in Committee, and I do so again now, that the Government firmly agree that no one should be criminalised simply for having nowhere to live or for sleeping rough. The Government’s dedication to supporting this group has been at the centre of our response to the pandemic, as the noble Lord, Lord Best, has said. We have also recently provided £28 million to local authorities to support them to promote vaccination among people sleeping rough and to provide emergency accommodation to get people off the streets. That builds on the success of the Everyone In programme.
The Government are fully committed to reviewing the Vagrancy Act, but the review has been delayed by the pandemic and by our resulting endeavours to protect vulnerable individuals. In Committee, I explained that rough sleeping and begging were complex issues, and that we therefore must give due consideration to how and why the Vagrancy Act was still used to tackle begging and what impact any changes to the Act will have. This includes consideration of any legislative gap left by repeal that may impact the police’s moves to deal with begging.
The noble Lord spoke about the way the Anti-social Behaviour, Crime and Policing Act 2014 can be used to deal with certain types of begging, but that Act is not always a suitable alternative. Begging is complex and does not always meet the legal tests in the 2014 legislation to allow the police or local authorities to tackle specific forms of begging where intervention may still be useful, specifically passive begging, where there is no associated anti-social behaviour but where, none the less, there might be an impact on communities as well as the individual. For example, someone who is sleeping rough might engage in passive begging and might use that money to survive on the street. They might be resistant to taking up offers of support, and this might have an indirect impact on communities or businesses. In such circumstances, there would be nothing the police could do to help compel the individual to take up support.
There are also international examples of different approaches taken to tackle begging, including passive begging, that we should consider. For example, should the police be able to intervene if begging affects businesses or, as in some countries, if begging is opportunistic, for example near an ATM, or fraudulent, such as feigning injury or illness?
The Government think that enforcement, when coupled with meaningful offers of support and close work with other agencies, can form an important part of moving people away from the streets. It is vital that the police can play their part here and that they have effective legislation at their fingertips, but this position does not negate the Government’s firm view that rough sleeping should not be criminalised and, where an individual is truly destitute, it is paramount that a multiagency approach is taken to provide that necessary support. To ensure that the response is effective, we need legislation that complements the delivery of services and allows for constructive engagement with vulnerable individuals. I recently wrote to the noble Lord with more information on the detail of our position.
As it stands, an outright repeal of the Vagrancy Act might leave a gap. That is why, as I explained when I met with the noble Lord, once the necessary work has been concluded, the Government are committed to repealing the outdated Act and replacing it with much more modern, fit-for-purpose legislation when parliamentary time allows. Until we have completed this work, it would be a bit premature to repeal the Act. In the light of the commitment that I have outlined, confirming that the Government will consult on what the appropriate legislation should look like, I ask the noble Lord to withdraw his amendment.
Lord Best (CB)
My Lords, I am sincerely grateful to noble Lords who supported the case for repeal of the Vagrancy Act. I thank the Minister for her comments, but I confess to being very disappointed that she has not been able to commit to a Third Reading amendment covering the repeal of just the rough sleeping part of the Vagrancy Act. Even though she made it clear that this will happen sometime one day, she has not been able to announce that this step will be taken at Third Reading. I really see no reason why we could not come to an agreement on this amendment, which is limited but repeals the most egregious aspect of the old Vagrancy Act.
However, the Minister has rejected our proposals, which means that people who are homeless will remain subject to being criminalised rather than being supported out of their predicament into the indefinite future. My only course of action is to hope that this can be resolved in the Commons. I would like to test the opinion of the House.
Lord Wolfson of Tredegar
“10A_ In Schedule 24, omit paragraph 154(f).”Member’s explanatory statement
This amendment repeals an amendment of section 38(4)(j) of the Crime and Disorder Act 1998, which has been repealed.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
My Lords, I know this is the business that most people have been waiting for. Amendments 161 and 162 have both arisen following the consolidation of sentencing procedural law into the Sentencing Code by the Sentencing Act 2020.
These amendments, as eagle-eyed noble Lords will have realised, omit provisions in Schedule 24 to the Sentencing Act 2020 and Schedule 13 to the Counter-Terrorism and Sentencing Act 2021 respectively. Those provisions are redundant, as they make amendments to provisions which have already been omitted or repealed. Omitting them will avoid any potential confusion regarding their operation. I beg to move.
Lord Wolfson of Tredegar
“Counter-Terrorism and Sentencing Act 2021 (c. 11)
12_ In Schedule 13 to the Counter-Terrorism and Sentencing Act 2021, omit paragraph 44.”Member’s explanatory statement
This amendment repeals an amendment in the Counter-Terrorism and Sentencing Act 2021 of section 106A of the Powers of Criminal Courts (Sentencing) Act 2000, which was repealed by the Sentencing Act 2020.
Member’s explanatory statement
This amendment is consequential to the Amendment tabled in Lord Best's name to After Clause 62.
“(sa) section (Knife crime prevention order on conviction: adjournment of proceedings) (2) to (4);”Member’s explanatory statement
This amendment is consequential on the new Clause in the name of Baroness Williams of Trafford to be inserted after Clause 142 and relating to adjournment of proceedings on an application for a knife crime prevention order.
“(ta) section (Football banning orders: relevant offences) for the purposes of making an order;(tb) section (Football banning orders: power to amend list of relevant offences);”Member’s explanatory statement
This amendment is consequential on the new Clauses in the name of Baroness Williams of Trafford to be inserted after Clause 164 and relating to football banning orders. It has the effect that the powers to make an order or regulations under the Clauses come into force on Royal Assent.
Lord Wolfson of Tredegar
“(aa) section (Required life sentence for manslaughter of emergency worker);”Member’s explanatory statement
This amendment is consequential on the new Clause in the name of Lord Wolfson of Tredegar to be inserted after Clause 2 and relating to a required life sentence for the manslaughter of an emergency worker.
“(ga) sections (Penalty for cruelty to children) and (Penalty for causing or allowing a child or vulnerable adult to die or suffer serious physical harm);”Member’s explanatory statement
This amendment is consequential upon the amendments in the name of Lord Wolfson of Tredegar to add clauses relating to offences against children before Clause 102.
Police, Crime, Sentencing and Courts Bill
Tuesday 25th January 2022
(2 years, 3 months ago)
Lords ChamberRead Full debate Police, Crime, Sentencing and Courts Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 95-I Marshalled list for Third Reading - (24 Jan 2022)
Lord Ashton of Hyde (Con)
My Lords, it may be helpful for me to say a few words about Third Reading amendments. In line with the procedure agreed by the House, yesterday evening the Public Bill Office advised the usual channels that Amendment 1 on the Marshalled List for Third Reading today falls outside the guidance in the Companion on Third Reading amendments. The Clerk of Legislation advised as follows:
“In my view, this amendment falls clearly outside the guidance. The issue was fully debated and decided on a vote at Report. The Minister was asked to reconsider and come back at Third Reading; he clearly and repeatedly declined (see cols 1947-50). In my view, the amendment is not addressing an uncertainty; it would reopen the issue and significantly change what the House decided.”
On the basis of that advice, the usual channels and the Convener of the Cross-Bench Peers are recommending to the House that Amendment 1, in the name of the noble and learned Lord, Lord Falconer of Thoroton, should not be moved. I therefore invite the noble and learned Lord, when the time comes, not to move his amendment.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, before we move on to the amendments, I want to put on record a few remarks about the position of the Bill in relation to devolution. The great majority of the provisions in the Bill apply to England and Wales; a number also apply to Scotland and/or Northern Ireland. Throughout the preparation and passage of the Bill we have been working closely with each of the devolved Administrations and I pay tribute to officials and Ministers in Scotland, Wales and Northern Ireland for their constructive engagement and support.
There are provisions in the Bill which engage the legislative consent process in the Scottish Parliament, Senedd Cymru and the Northern Ireland Assembly. I am pleased that the Scottish Parliament has issued legislative consent on the advice of the Scottish Government in respect of those provisions which relate to devolved matters in Scotland. Just last week, Senedd Cymru considered two legislative consent Motions and, on the recommendation of the Welsh Government, agreed to legislative consent to one of these Motions but rejected the other Motion. I am pleased to say that the LCM agreed by the Senedd gave legislative consent to all the measures in the Bill which, in the view of the UK Government, engaged the LCM process in the Senedd itself. In addition, the LCM passed by the Senedd also covered the measures in the Bill relating to the increase in the maximum penalty for assaulting an emergency worker and the extraction of information from electronic devices. In the view of the UK Government, these measures related strictly to reserved matters and therefore did not engage the LCM process or, indeed, require legislative consent.
Turning to the second Motion put forward by the Welsh Government, the Senedd declined to give its legislative consent to certain provisions in the Bill relating to criminal damage to memorials, public order and unauthorised encampments. I therefore want to put on record that, in the view of the UK Government, these measures again relate to reserved matters and therefore did not engage the LCM process, or indeed require legislative consent.
The Northern Ireland Assembly has already agreed to a legislative consent Motion in respect of certain measures in the Bill that engage the LCM process. That Motion did not, however, cover the Bill’s provisions relating to the extraction of information from electronic devices, which, in part, also engage the LCM process. I understand that the Northern Ireland Executive have now agreed to bring forward a supplementary LCM in respect of these measures, and that is due to be considered by the Assembly shortly.
Clause 3: Required life sentence for manslaughter of emergency worker
Amendment 1
Lord Falconer of Thoroton
“(c) manslaughter in circumstances where—(i) the death was not caused by dangerous driving or driving when under the influence of drink or drugs, and(ii) but for causing death or serious injury to the emergency worker, the unlawful act would have attracted a maximum sentence of less than five years imprisonment.”
Lord Falconer of Thoroton (Lab)
My Lords, on 24 November 2021, the Government announced in a press release that they were introducing into the Bill a provision that imposed a mandatory life sentence where a key emergency worker dies as a result of manslaughter. The introduction of that provision into the Bill was not the product of any debate in this House or the other place.
On 1 December 2021, the relevant amendment giving effect to the provision that there was a mandatory life sentence for manslaughter was tabled with the Table Office. On 8 December 2021, the matter was debated in this House. A large number of Peers spoke in the debate, including the noble Viscount, Lord Hailsham, the noble and learned Baroness, Lady Butler-Sloss, the noble Baronesses, Lady Fox, Lady Hamwee and Lady Jones of Moulsecoomb, the noble Lords, Lord Beith, Lord Pannick, Lord Carlile and Lord Marks, and the noble Earl, Lord Attlee. They gave a variety of reasons why the provision had particular defects; there was a range of detailed complaints about it. The noble Lord, Lord Ponsonby of Shulbrede, spoke on behalf of the Labour Front Bench and indicated that Labour accepted the amendment in principle but that there were problems with the detail.
Before there was a vote on the amendment itself, the noble Viscount, Lord Hailsham, suggested an adjournment to discuss the detail. There was a vote on that and it was rejected. There was then a vote on the amendment. Anybody fairly reading that debate would conclude that the principle of the amendment was agreed to—that this House agreed to the principle of a mandatory life sentence where an emergency worker dies as a result of manslaughter. However, nobody reading that debate could possibly conclude that the detail was treated as being resolved in relation to that.
One detail that affected many noble Lords was the consequence of having a mandatory life sentence for manslaughter if, for example, in a demonstration about, say, HS2, a demonstrator pushed over a police officer acting in the execution of his or her duty, who bumped their head—which would be common assault at worst—and died. That demonstrator would end up with a mandatory life sentence. They would not be saved from the mandatory life sentence by the exceptional circumstances defence.
This caused many people in the House considerable concern. I completely accept that the principle of the mandatory life sentence is no longer up for debate; that has been resolved. However, in conjunction with my noble friend Lady Chakrabarti—to whom I pay tribute for her work on this issue—I have crafted an amendment that does not touch the detail of the provision, in the sense that it leaves in place the principle agreed but says that, where the offence you would otherwise be charged with does not attract a sentence of more than five years, you will not be susceptible to it. This is to deal with the one-knock manslaughter case. It leads to justice and reflects where the House is coming from. I strongly commend the amendment to the House and very much hope that the noble Lord, Lord Wolfson, will address the detail.
Baroness Chakrabarti (Lab)
My Lords, I rise in support of my noble and learned friend Lord Falconer of Thoroton, who is, as your Lordships will appreciate, a former Lord Chancellor and law officer.
I reiterate that the Government came here on 8 December to commend Harper’s law to your Lordships’ House. However, in the course of that debate, to which I listened with great care, concerns were raised by every single group in your Lordships’ House about the potential unintended consequences that went beyond the Harper’s law case—a case of severe criminality that included dangerous driving that led to manslaughter. In particular, one-punch manslaughter was raised by the noble Lord, Lord Paddick, and many other noble Lords; as my noble and learned friend said, there was huge concern.
The reason why my noble and learned friend Lord Falconer is right to ventilate this today goes beyond what we believe about Harper’s law, mandatory sentences, or even judicial discretion. All of these should be of particular concern to this second, revising Chamber. The reason he is right to ventilate this issue is that where significant, potentially controversial and rights-impacting measures are to be introduced, it seems to me—and I believe to other Members of your Lordships’ House—that there should at least be two bites at the cherry. The measures should at least be looked at twice.
Without the aid of my noble and learned friend, what will happen is this: it is presented and debated once in the second Chamber—not even in the first Chamber and then the second Chamber. The vote is on the same day and that is it—because, let us be honest, this is not going to have detailed consideration when your Lordships’ amendments go back to the other place. Whatever my noble and learned friend decides—and with the greatest of respect, I totally agree with the clerk about the irregularity of his amendment in terms of procedure at Third Reading—we are forced into a gentlemen’s agreement that is not reciprocated in the other direction. There must be adequate time, and it seems to me that, going forward, any significant and controversial measure must at least be looked at twice, so that there can be an opportunity to ventilate, study it, and correct any potential glaring, unintended consequences.
Lord Grocott (Lab)
My Lords, I came cold to this debate, as it were, to hear what was to be said. I am certainly not an expert on the law, but I have had quite a bit to do with the Companion over the years, and I remember vividly a time when it was quite routine, on Third Reading, to present amendments that clearly should have been debated earlier. The authorities of the House at the time—and I may have been part of that—decided that we needed to tighten up the circumstances in which amendments could be laid at Third Reading. But—and this is a huge “but”, which my noble and learned friend Lord Falconer has already dealt with—it was always assumed that there would be flexibility in the decision about the admissibility of amendments at Third Reading.
There were occasions—I would have come armed with them if I had anticipated this debate—when the usual channels would get together, during or after Report, and say, “Look we really can’t resolve this now, we need to put down an amendment at Third Reading”. Had it been challenged by either Front Bench or by anyone among the usual channels, that would have been resolved at that point. But nearly always, there was such a common-sense argument about, “Well, we’ll let this one go at Third Reading, the air needs to be cleared with this at Third Reading”, that it was agreed among the usual channels; it was never seen as completely Stalinist rule. Indeed, as my noble and learned friend has said, there is flexibility actually written into it. But I can say with confidence that this issue has been addressed in the past. It seems to me overwhelmingly the case, in the way my noble and learned friend described it, that quite clearly it should come within the auspices of the Companion, with the agreement of the usual channels, to be able to debate this hugely important issue at Third Reading.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, I deeply regret the deformity to our law which results from the Harper amendment, made, as your Lordships know, for Third Reading. A mandatory life sentence for murder is one thing—indeed, one must recognise that, although entirely understandable, even that is questionable—but a mandatory life sentence for the manslaughter cases now spotlighted by the Harper amendment is really quite another.
I will content myself today by saying that not only may it cause a great injustice but it may be that, if one were a defence counsel in one of these cases, one would positively welcome Harper’s law and emphasise to the jury the awesome consequences of a conviction—consequences from which juries might well shrink. If this matter now goes back unamended to the House of Commons, I suggest that the other place may wish to reflect on those consequences. To pass as potentially unjust a law as this may prove to be counterproductive and a disaster for long-term justice.
Baroness Kennedy of The Shaws (Lab)
My Lords, I came into the debate late on the day we voted. I was really quite shocked to find what was being debated, and I listened very carefully to the contributions. Because I had not heard the Minister speak from the Dispatch Box, I did not take part in the debate; I felt that I would be criticised for coming in without having heard the full discussion. But I have practised in the criminal courts for 50 years—I was called to the Bar 50 years ago—so I can tell noble Lords that I was very alarmed at the content, and I echo what has just been said by one of our distinguished judges.
I really was concerned at the absence of discretion here. You could have such a range with this kind of manslaughter charge, and it is a shocking idea that a mandatory life sentence might be passed on someone very youthful in circumstances such as were described—you can never completely cover every possibility—by the noble and learned Lord, Lord Falconer, where the consequence of a tragedy could also lead to the double tragedy of somebody spending their life in prison because the sentence is mandatory. So I really do think we have to think twice here. Of course, we have to protect our public servants, but it is vital that we keep true to the idea that different cases require different responses, and that there have to be some exceptions.
Baroness Fox of Buckley (Non-Afl)
My Lords, relatively new as I am to this House, I try to follow procedure and often fail to do so, and I am rightly reprimanded by fellow Peers when that happens and when mistakes are made. I am also very conscious of the democratic deficit of this House as unelected legislators. But, in relation to this issue, I was shocked by what I saw as an abuse of procedure by the introduction of this very important Harper’s law at such a late stage. I felt that that was bending the stick, to say the least, in terms of taking this House and its procedures seriously.
So, from my point of view, the noble and learned Lord, Lord Falconer, has explained very well that this is a modest amendment that does not try to overturn the spirit of what was passed earlier on but is trying to deal with what I think are unintended consequences that the Government themselves do not want to see—that is not their intention. But Harper’s law is not a minor matter. Since that bit of a mess by which it was passed last time, I have had some sleepless nights imagining that I might in any way be responsible for the unintended consequences that I really do not think the Minister wants to happen, but which could happen unless the Bill is unamended—which is why I support this amendment in these unusual circumstances.
Lord Mackay of Clashfern (Con)
My Lords, as I understand the position, the amendment, without qualification, was pressed to and supported in a Division. The normal situation to deal with the kind of question that the noble and learned Lord mentioned would be to modify that amendment by another, but that, for reasons that may be quite understandable, did not happen. Therefore, the amendment that was passed was unqualified and accordingly, strictly speaking, the rule would be as the clerk has said.
However, this House has discretion in these matters. The rules that are laid down are the best we can think of for every circumstance, but not even we can think of all the possible circumstances. Therefore, the clerk is perfectly right in this case, but justice suggests that it would be wise for the House to realise that, in this particular situation, a modification of the original amendment was certainly raised in the debate, although it was not put formally into the procedure. Therefore, to do justice in this sort of case, it would be right for the House as a whole to agree, in this very special circumstance, that this matter should be dealt with.
Baroness Jones of Moulsecoomb (GP)
I want to throw my considerable Green weight behind the noble and learned Lord, Lord Falconer. The Members opposite must realise in their hearts that this is unfair. I came into politics to make things fairer and this is not fair. It is unjust, as we have heard. Please let us debate it properly. I would vote for it—anyone can move it to a vote—and I hope it would pass.
Lord Cormack (Con)
My Lords, I support my noble and learned friend Lord Mackay of Clashfern. He put this with beautiful simplicity and total clarity. He underlined the fact that, at the end of the day, we are answerable for what we decide. I deplore bringing in important things at the late stage of a Bill, which is why I withheld my vote when we were voting and not debating last week, because it made a mockery of Parliament. This is not making a mockery of Parliament; it is underlining the humanity of Parliament. I believe we should follow the sage advice of my noble and learned friend.
Lord Clarke of Nottingham (Con)
My Lords, I apologise and feel rather guilty about the fact that I have neglected this Bill during its passage through the House because I was simply unable to attend and I decided not to participate. I came to listen to this debate to find out what was being put on the statute book, having followed it a little from a distance. This issue therefore took me completely by surprise. I have listened to the exchanges, but I thought I should add the voice of a third former Lord Chancellor and Secretary of State for Justice to the very eloquent case that has been made on both sides by the two others who share that position.
Personally, I do not approve very much of mandatory sentences, which have spread on to the statute book far too frequently in recent years in response to dramatic and publicised cases. I do accept the mandatory life sentence for murder; that is a very long-standing practice. We should deal with considerable care when we add new mandatory sentences in response to understandably emotional and dramatic cases that appear in the media but, unfortunately, responding to the media has become a feature of criminal justice Bills rather too frequently.
I rose simply to do what my noble friend Lord Cormack did: to add my voice, in so far as it helps at all, to those that have been put forward. This House would be letting itself down if it just let this go through by overstrict adherence to the normal procedures, which of course we should normally follow.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
My Lords, this amendment has been tabled—in haste, it appears, as I will explain in a moment—at a very late stage in proceedings. It is not clear in its intention and appears to relate to an important category of people who I do not think any of the speakers in support of the amendment referred to. I will come back to that point.
I listened carefully to the noble Lord, Lord Grocott, who said that he came cold to this matter. Far from being cold, I have had a number of warm meetings with Members from all sides of this House on all matters relating to Ministry of Justice provisions in the Bill. I regret to say that until this amendment dropped without warning, half way through my dinner last night, none of its proposers had found the time to engage with me or approach me in any way on this matter since it was debated in your Lordships’ House. That is a matter of regret, because in my relatively short time here I have found that discussions before matters are raised in the Chamber can be very useful. Had the matter been raised with me, I would have had the opportunity—and I would have availed myself of it—of pointing out some of the confusion behind the amendment and asking the noble and learned Lord whether the amendment he has tabled is in fact the amendment he wanted to table. I will come back to that point.
Having heard the words of my noble and learned friends Lord Mackay of Clashfern and Lord Clarke and my noble friend Lord Cormack, I will not get into the propriety or otherwise but will deal with the substance of the point. Harper’s law, which is the focus of the amendment, requires the imposition of a life sentence in cases where an emergency worker is the victim of unlawful act manslaughter. The intention of the amendment appears to be to restrict this to cases that involve an underlying unlawful act that is of a certain level of seriousness. My understanding is that it seeks to do so by excluding from the scope of Harper’s law those cases in which the unlawful act that underpins the unlawful act manslaughter of the emergency worker is one that, had the offender been convicted of that as a stand-alone offence, would have carried
“a maximum sentence of less than five years imprisonment.”
There is, I am afraid, real confusion as to what the amendment seeks to do. Noble Lords who enjoy it really ought to turn to page 4, line 39 of the Bill and remind themselves that this seeks to include an exception into Harper’s law. That is very important when one sees that in proposed new paragraph (c)(i) of the amendment there is a “not”, so it ends up with a double negative.
It seems to me that there are two interpretations of this paragraph and, from what the noble and learned Lord said, I am really not sure which interpretation he seeks to put forward. The first is—bear with me here—that it appears to except from that five-year maximum category, and therefore include within Harper’s law, cases in which the death was
“caused by dangerous driving or driving when under the influence of drink or drugs,”
even if the maximum penalty for the unlawful act offence was less than five years. If that is the case, it is not clear why that should be if the main thrust of the noble and learned Lord’s argument is that Harper’s law should not apply if the underlying offence carried a sentence of less than five years.
I also point out, as I am sure the noble and learned Lord knows all too well, that dangerous driving and the other driving offences here do not and cannot themselves form a basis for unlawful act manslaughter in any case, because that is the result of the decision in Andrews v DPP.
The alternative explanation of this form of words put forward by the noble and learned Lord is that the amendment appears to intend that where the unlawful act underlying the unlawful act manslaughter is one that in and of itself would attract a maximum penalty of less than five years’ imprisonment, that will be outside Harper’s law unless that act is accompanied by
“dangerous driving or driving when under the influence”,
which in the context of unlawful act manslaughter would be the circumstances that render the unlawful act dangerous.
I apologise to the House for subjecting it to a disquisition on unlawful act manslaughter but this is precisely the sort of point I would have discussed with the noble and learned Lord, had it been brought to my attention before I was halfway through my main course last night. More to the point, this would be an insertion at page 4, line 39 of the Bill; it would therefore go into proposed new Section 258A, which applies where
“(a) a person aged under 18 is convicted of a relevant offence, (b) the offence was committed … when the person was aged 16 or over”.
So, this amendment to Harper’s law, which is put forward on the basis of general principle, applies only to 16 and 17 year-olds. I did not understand from any of the speeches in favour of the amendment that the principle underlying those speeches was limited to 16 and 17 year-olds. The point was put on the basis that it ought to be of general application.
Why, I ask rhetorically, since the point has not been made, is this limited to 16 and 17 year-olds? Of course, the answer is obvious: it is not intended to be limited to 16 and 17 year-olds. Again, had this amendment been shown to me before halfway through my main course last night, I would have pointed this out, with respect, to the noble and learned Lord. What we have, therefore, is a late amendment, brought without any discussion with me or my colleagues, which fundamentally seeks to uproot the position taken by this House in Committee and on Report. It also suffers from fundamental uncertainty as to what it actually does, and the fundamental problem that it seems to apply only to 16 and 17 year-olds.
Quite apart from all of that, I simply do not see any merit in restricting Harper’s law in this way. We have already taken care to ensure that the provisions inserted by Clause 3 will apply only in cases of unlawful act manslaughter of an emergency worker who is acting in exercise of their functions as such a worker. Unlawful act manslaughter, as noble Lords certainly know by now, captures those cases where an unlawful act has been intentionally performed in circumstances rendering it dangerous, and that has caused death. It is the Government’s position that the unlawful act manslaughter of an emergency worker merits a mandatory life sentence. The seriousness of such conduct and the harm it causes both to the emergency worker—obviously—and to our wider society are evident. I respectfully see no reason to limit the sentence in the way this amendment appears to intend.
I come to the point made by the noble Baroness, Lady Kennedy of The Shaws—I respectfully congratulate her on 50 years in the criminal justice system—about discretion. There is, of course, a judicial discretion built in here; we have had this debate on several occasions during consideration of the Bill. Where the court considers that there are exceptional circumstances relating either to the offence or the offender that justify the imposition of a sentence other than life imprisonment, this could be done. I accept that some people want the exception to be broader, while some people may not want an exception at all, but that has been the Government’s consistent position throughout the Bill. I find it a little surprising that, at Third Reading, such a fundamental point is apparently up for discussion again.
Before I sit down—and I apologise to the House for delaying it—I come to the “one knock” case that the noble and learned Lord has put. If a person at a protest or demonstration were to hit a police officer who was then, for example, to fall over, hit their head and, God forbid, die, that could be captured under Harper’s law if it amounted to unlawful act manslaughter. Why is that? The reason is that what has happened here is not a simple case of battery. Under the offences made out here, the offence for which the offender would be sentenced is unlawful act manslaughter, and the Government believe that that crime, when done against an emergency worker acting as such, merits a mandatory life sentence other than where there are exceptional circumstances.
Lord Falconer of Thoroton (Lab)
I am incredibly grateful for the support from all around the House. I am particularly grateful to my noble and learned predecessor and my noble and learned successor for supporting me in this matter.
The response from the Minister was incredibly disappointing. It was bombastic and technical and failed to address the essential issue, which is: what about the “one knock” manslaughter case? The answer that came in the end appeared to be, “Actually, we intend to cover that.”
The Minister made one good point on the drafting. He is absolutely right that my draft covers only 17 year-olds because it refers only to page 4. I would have had to submit the same draft in relation to pages 5 and 6 as well, which, if I had got page 4 in, I am sure would not have made much difference.
This is such an important issue that I would have been tempted to obtain the opinion of the House. All around the House there has been support for it, but the only encouragement I get is the technical point the Minister made. It may be that when this comes to the House of Commons, the Government will consider that they could improve my drafting and get to the same result. In those circumstances, with regret, I beg leave to withdraw the amendment.
Lord Rosser
Member’s explanatory statement
This clause is consequential on a clause which was not added to the bill, as it was defeated by a vote of the House. This clause therefore provides background detail for a power and a clause that do not exist. This amendment would remove this non-operational clause from the bill.
Lord Rosser (Lab)
My Lords, my amendment would leave out Clause 80. The clause is consequential on a new clause from the Government that this House declined by a Division last week to add to the Bill. That new clause introduced the offence of “interference with use or operation of key national infrastructure”. What is now Clause 80 should surely not have been moved following that vote; it provides background detail for a power and a clause that do not exist. It starts off, for example, by saying:
“This section has effect for the purposes of section (Interference with use or operation of key national infrastructure)”,
and goes on to define types of national infrastructure for the purpose of the Government’s new clause to which this House disagreed. My amendment would thus remove that non-operational clause from the Bill. I understand that the Government will not be opposing this necessary tidying-up amendment, and I thank the noble Baroness the Minister for that. I beg to move.
Lord Harris of Haringey (Lab)
My Lords, I want to make the very simple point that even if the Government were not going to accept the amendment, the clause would be pretty nonsensical due to the very strange way in which it defines “national infrastructure”. It has a unique set of definitions that includes some things that would not normally be regarded as infrastructure and excludes other things that are critical to the nation and the way it operates.
Baroness Williams of Trafford (Con)
My Lords, I thank the noble Lord, Lord Rosser, who has explained that the amendment would remove Clause 80 from the Bill. It defines “key national infrastructure” for the purposes of the Government’s proposed offence of interfering with the operation or use of key national infrastructure. Of course, I was extremely disappointed that the House voted not to add this new offence to the Bill on Report. The proposed offence would help protect the British public from the misery that certain individuals targeting our key national infrastructure have been able to cause.
The Government fully defend the right to peaceful protest, but we stand behind the British public in protecting them from the serious disruption caused by some who think their right to protest trumps the rights of the public to go about their daily lives. That said, the fact remains that as your Lordships did not support the introduction of the new offence, we are not going to play games: what is now Clause 80 of the Bill is redundant, and, consequently, the Government will not oppose this amendment.
Lord Rosser (Lab)
I had moved the amendment and wanted to put it to the vote, and I hoped that the House would be prepared to accept it. I thank the Minister for what she has said.
Lord Wolfson of Tredegar
“Imprisonment for public protection etc: duty to refer person released on licence to Parole Board
(1) Section 31A of the Crime (Sentences) Act 1997 (imprisonment or detention for public protection: termination of licences) is amended in accordance with subsections (2) to (6).(2) In subsection (2)(a), after “Chapter” insert “(whether or not the prisoner has subsequently been recalled to prison under section 32)”.(3) For subsection (3) substitute—“(3) Where—(a) the prisoner has been released on licence under this Chapter (whether or not the prisoner has subsequently been recalled to prison under section 32);(b) the qualifying period has expired; and(c) if the Secretary of State has made a previous reference of the prisoner’s case under this subsection, the period of twelve months beginning with the day of the disposal of that reference has expired,the Secretary of State must refer the prisoner’s case to the Parole Board under this subsection.”(4) In subsection (4)—(a) in the words before paragraph (a), for “an application” substitute “a reference”, and(b) in paragraph (b), for “application” substitute “reference”.(5) After subsection (4) insert—“(4A) A reference under subsection (3) must be made, and a reference under that subsection must be determined by the Parole Board under subsection (4), even if at the time of the reference or determination the prisoner is in prison having been recalled under section 32.(4B) If at the time of the determination the prisoner is in prison having been recalled under section 32—(a) subsection (2) does not apply, and(b) subsection (4)(a) has effect as if it required the Parole Board—(i) to determine whether it is satisfied that it is not necessary for the protection of the public for the prisoner, when released, to be released on licence in respect of the preventative sentence or sentences, and (ii) if it is so satisfied, to direct the Secretary of State accordingly.(4C) Where the Parole Board gives a direction under subsection (4B)(b)(ii)—(a) if at any time the Board directs the prisoner’s release under section 28, that section has effect in relation to the prisoner as if, in subsection (5), for “to release him on licence” there were substituted “to release the prisoner unconditionally”, and(b) if at any time the Board directs the prisoner’s release under section 32, that section has effect in relation to the prisoner as if, in subsection (5), for “immediate release on licence” there were substituted “immediate unconditional release”.”(6) In subsection (5), in the definition of “the qualifying period”, after “on licence” insert “(whether or not the prisoner has subsequently been recalled to prison under section 32)”.(7) Subsection (8) applies to an application made by a person under section 31A(3) of the Crime (Sentences) Act 1997 before this section comes into force.(8) If the application has not been determined when this section comes into force, subsections (4) to (4C) of section 31A of the Crime (Sentences) Act 1997 apply in relation to it as if it were a reference of the person’s case by the Secretary of State to the Parole Board under subsection (3) of that section.(9) Subsection (10) applies if a person remains on licence under Chapter 2 of Part 2 of the Crime (Sentences) Act 1997, or remains subject to release on licence under that Chapter, following—(a) the disposal before this section comes into force of the person’s application to the Parole Board under section 31A(3) of that Act, or(b) the disposal under subsection (4) of section 31A of that Act, as it has effect by virtue of subsection (8) of this section, of the person’s application to the Parole Board under subsection (3) of that section.(10) Subsection (3) of section 31A of the Crime (Sentences) Act 1997 applies in relation to the person as if the application had been a reference of the person’s case by the Secretary of State to the Parole Board under that subsection.”Member’s explanatory statement
This amendment and the amendments in the name of Lord Wolfson of Tredegar at page 133, line 13, page 135, line 13 and page 233, line 33 give effect to an undertaking given by Lord Wolfson on 15th December 2021 (Hansard col. 359). This amendment imposes a duty on the Secretary of State to refer the case of a person who is serving a sentence of imprisonment for public protection (or the equivalent youth sentence), and has been released on licence, to the Parole Board after ten years and annually after that.
Lord Wolfson of Tredegar (Con)
My Lords, following my commitment and undertaking to the House on Report, I am pleased to be able to bring this package of amendments relating to imprisonment for public protection—IPP—before the House this afternoon. I thank sincerely the noble Lord, Lord Blunkett—and I understand why he is unable to be in his place today—the noble and learned Lords, Lord Brown of Eaton-under-Heywood and Lord Judge, and my noble friend Lord Moylan for their commitment to this cause and continued engagement with me on this matter. We have had a series of meetings and calls, which have been invaluable. They offered me their considerable wisdom and experience both of this subject and of this House in order to get this amendment—if I may put it this way—across the table and over the line.
It was made very clear at all stages in this House that there was enormous strength of feeling that some beneficial change for IPP offenders was both right and necessary. I am pleased that we have cross-party support for this sensible, proportionate and effective change that will provide such benefit but at no risk to public protection.
I committed on Report to bringing forward an amendment which puts the Secretary of State’s policy of automatic referral of applications to terminate the IPP licence on to a statutory footing. This would enable all eligible IPP offenders to be referred to the Parole Board for consideration for licence termination at the appropriate time. The new clause that I have tabled delivers on this commitment.
The position is that Section 31A of the Crime (Sentences) Act 1997 sets out how IPP offenders are currently able to apply for licence termination. Once the qualifying period of 10 years has elapsed—that is, 10 years from the offender’s first release by the Parole Board—this section provides that offenders can apply to the Parole Board to be considered for licence termination. In practice, the Secretary of State has made it policy to do this on the offender’s behalf, but first had to obtain consent from the offender.
The principal change in the first of the amendments in my name is in new subsection (2), which amends the wording of Section 31A so that the Secretary of State will be legally required to automatically refer the offender where the 10-year qualifying period has expired. Where the offender has previously been referred to the Parole Board for licence termination, they will automatically be referred if 12 months have elapsed since the previous reference. That removes the need for the offender to give permission for the Secretary of State to make applications on their behalf, and will enable the IPP licence to be brought to a definitive end for more offenders.
The clause also adds a new subsection to Section 31A which deals with offenders who are in custody following recall under the IPP licence. When an offender is recalled to prison, their licence is automatically revoked, so they cannot have their licence terminated while they are in prison following recall because they are no longer on licence. But, in these cases, the Secretary of State will still be required to refer the offenders to the Parole Board on the point of eligibility and every 12 months thereafter. The Parole Board will then determine whether the licence should remain in force following any subsequent release decision. It will be up to the Parole Board whether to terminate the licence of an IPP offender in custody—but these provisions are specifically intended to ensure that all eligible IPP offenders, who are either on licence or have been recalled and had their licence revoked, have the opportunity to have their licence terminated.
The remaining subsections are technical, transitional and clarificatory to ensure that the clause works correctly. But I make it absolutely clear from the Dispatch Box that time spent in custody on recall does not affect the running of the 10-year qualifying period. There are two further amendments in my name, both of which are consequential. I am grateful to the noble and learned Lord, Lord Judge, for joining me in them. The second amendment ensures that this clause operates correctly with other subsections that might prevent a referral, and the third sets the commencement date at two months following Royal Assent.
Taken as a package, these amendments appropriately balance the need to protect the public with ensuring that IPP offenders who are assessed by the Parole Board as no longer posing a risk to the public are given every opportunity to have their IPP licence, and the IPP sentence as a whole, terminated. So, with renewed thanks to those noble and learned Lords who joined me, particularly in supporting the first amendment, for their sustained engagement, I beg to move Amendment 3.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, my noble and learned friend Lord Judge has asked that I go next. I have indeed added my name to the first substantive government amendment, but I indicated that I would—and I do—make it plain that I do so without any great enthusiasm. Rather, it is on the basis that one must be grateful for small mercies—here, alas, I put the emphasis on the “small”.
I am grateful to the Minister for doing what he could for us, and, so far as it goes, I welcome the small change brought about by the amendment. But, in my respectful view, it does not go remotely far enough. It is difficult to overemphasise how small a concession this is in relation to the overall problem of the remaining IPP prisoners. Even in respect of the recall prisoners, we had hoped that the maximum term for which a licence should remain in force would be reduced from 10 years to five.
Beyond that, I fervently hoped to do something for the 1,700-odd cohort of IPP prisoners who have never been released and who remain incarcerated 10 years after this whole sentencing regime was abolished by LASPO in 2012. Many of the 1,700 are substantially more than 10 years beyond their tariff term—but there it is. We now have to—and we do—put our faith in the House of Commons Justice Committee, which has taken evidence and listened to many, including me, and is shortly to report on the whole question of this remaining regime. One hopes that it will do something to meet this grave, continuing and, indeed, growing injustice. In the meantime, I make it plain that I support this most modest of amendments.
Lord Moylan (Con)
My Lords, with the agreement of the noble and learned Lord, Lord Judge, I rise to thank my noble friend the Minister. I know from conversations with him that the noble Lord, Lord Blunkett, who cannot be in his place today would join me in expressing our appreciation to my noble friend the Minister for the integrity, openness and engagement—and consequently the trust—he has engendered since Report. This is an example of government and the House working constructively to improve the operation of the criminal justice system and those affected by it.
The amendment moved by my noble friend addresses one limb of the amendment in my name in Committee and again on Report. It puts into effect the Government’s own previously announced policy of making the termination of licences automatic. I welcome that, but I still hope that soon the Government will also adopt the second limb of that amendment to reduce the qualifying period from 10 years to five. As the noble and learned Lord, Lord Brown of Eaton-under-Heywood, said, the Justice Select Committee in the other place is considering this whole case.
I hope that when my noble friend replies he will be able to say that, if that committee recommends a reduction in the qualifying period from 10 years to five, the Government will be quick to adopt that amendment and put it into effect. Both measures—the automaticity of the referral and the potential reduction of the qualifying period from 10 years to five—are primarily aimed at IPP prisoners out on licence, not those in prison, though I appreciate that my noble friend has pointed out that those on recall may gain some benefit from this.
This is the first crack in the wall of this regime made in the last 10 years. It would be very easy for noble Lords to think that now is a moment when we could perhaps relax; the Government, having made a concession and implicitly recognised an injustice, will move, quietly perhaps, to resolve the whole matter quickly. But that is not what the Ministry of Justice is expecting to see happen.
In a Written Answer given in the other place by my right honourable friend Kit Malthouse on 3 December last year, the Ministry of Justice set out in round numbers how many IPP prisoners it expected to see released on licence in each of the next five years. It came to 800. But when asked how many of those out on licence it expected to see recalled to prison over the same period, the total came to a staggering 3,400. The Ministry of Justice expects 2,600 more IPP prisoners, net, to be in jail over the next five years than there are today. That is nearly a doubling of the number of IPP prisoners in prison today. This problem is not resolved; we have not even begun to resolve it. This problem is going to get worse and the Government are obliged to take it seriously.
My noble friend referred on Report to the existence of an action plan. He said that the ministry had an action plan for dealing with the problem. Requests to see the action plan have been met with a response from my noble friend to the effect that it will be available shortly, or it is not currently available, but we may look forward to it. I do look forward to it; we might all look forward to it, but we would like to see it soon. We would like to see it address this problem and put this scandal properly behind us as soon as possible.
Lord Judge (CB)
My Lords, I thank the Minister, who has found himself wallowing in a misery of injustice and has done a great deal at least for the issue to be recorded in statute. For me, that is the only advantage of this amendment, but I respect very much the efforts he has made to produce an amendment at all.
Beyond that, I entirely agree with the observations from my noble and learned friend Lord Brown and the noble Lord, Lord Moylan. We have not got to the end of the beginning of this, but the end of the beginning has possibly come into sight. For me, after the shambles of this dreadful piece of statutory—I could get carried away and then I would be speaking unparliamentary language, but noble Lords all know what I mean; I shall just stick to shambles—we can begin to make up for what has gone on over too many years.
Baroness Burt of Solihull (LD)
My Lords, I am grateful to the Minister for the amendment. He has followed through on a commitment he made on Report, which is greatly appreciated. However, like all the other noble Lords who have spoken, I wish the Government had gone further. Indeed, our little cross-party team put several other amendments forward, a number of which have been alluded to by the noble Lord, Lord Moylan.
This is one small improvement to a system that needs to be abolished for this group of prisoners caught on the wrong side of history. It is, however, a movement in the right direction. When the Minister spoke to me on the day that he made the commitment to bring the amendment forward, he quoted Newton’s second law. For noble Lords who, like me, do not have a clue what Newton’s second law is, it says that it is easier to move an object already in motion than one at rest. Well, the object is in motion and we—and, I believe, he—will try to push it along as far and as fast as we can whenever the opportunity arises. The ball is rolling and we will keep on pushing for justice and fairness for those whom the law has left behind.
Lord Garnier (Con)
My Lords, I appreciate that Third Reading is not the time for long and ponderous speeches, but I wanted to place on record—as someone who tabled amendments on Report and in Committee to deal with IPPs and the injustice that remains—that I wholeheartedly support the remarks of the noble and learned Lords, Lord Brown and Lord Judge, my noble friend Lord Moylan, and the noble Baroness, Lady Burt.
This is just the beginning and must be seen as something that will continue to be looked at, both by the Select Committee in the other place and the Ministry of Justice. I also place on record my personal thanks to my noble friend the Minister, who has dealt with this question with sensitivity and within the bounds of possibility that being a Minister in this House places on him. I thank him for what he has done and look forward to hearing more that will undo the injustice that the IPP regime is still visiting on a number of people.
Lord Clarke of Nottingham (Con)
My Lords, I feel very guilty that I was unable to arrange my diary to take any part in the Bill as it went through because this is the part of the Bill in which I would otherwise have taken an active part. I have already apologised to the noble Lord, Lord Blunkett, outside this House for the fact that in the end I was not able to offer him any assistance.
I add only, as my noble and learned friend just has, my support and simply record that I was the Lord Chancellor who abolished indeterminate sentences in 2011 with the wholehearted support of the noble Lord, Lord Blunkett, who was then in the House of Commons with me and defused any attempts to preserve this stain on the statute book, which he had accidentally introduced without any expectation that it would be used as it was and resolve into a problem.
If you had told me when we abolished this sentence that there would be thousands of people in the position that they are now, 11 years after abolition, because they were left over to be dealt with, I would not have believed it. What I proposed was simply a change to the burden of proof that the Parole Board had to apply when deciding whether it was safe to release somebody, but that was never implemented. The fact that all these years later we face these problems is something of a disgrace. I thank the Minister for making this modest move, but I certainly agree with what everybody has said about the modesty of it. It needs urgently to be addressed by the Select Committee in the other place.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I too would like to echo the thanks for the Minister. He has, in a sense, been a lobbyist within the Ministry of Justice to get this modest amendment over the line. The noble Lord, Lord Moylan, summed up the position very well when he described it as the first crack in the wall. I was alarmed by the figures he quoted from his Written Question, where he seemed to indicate that there would be more prisoners in jail because of recalls, so the problem is likely to get worse and not better.
The noble Baroness, Lady Burt, referred to the Minister’s reference to Newton’s second law—that it is easier to move an object that is already in motion. My first degree was in physics, and I would phrase that slightly differently, in a way that is relevant to the politics: the rate of change of movement is proportional to the impressed force. We on this side are certainly interested in increasing the impressed force on this object which is currently under way.
Lord Wolfson of Tredegar (Con)
My Lords, I am grateful for the kind words a number of noble Lords have said. This may be a modest start, but it is a start, and I am sure that the conversation will continue. In particular, as I said when we discussed this matter substantively, I am well aware that the Justice Select Committee is looking at this matter. It will be reporting soon and, while I cannot go quite as far as my noble friend Lord Moylan would want me to by saying that, if the committee recommends, for example, changing the qualifying period from 10 years to five years, the Government will adopt it, I can say—which I hope would be obvious anyway—that we will take anything that comes out of the Justice Select Committee extremely seriously and look at it with very great care.
The action plan has been provided to the Justice Select Committee. We will review it again following the publication of its report to take account of our consideration following its recommendations. I hope the House will forgive me if I do not respond to everybody who contributed. I am conscious that we are at Third Reading and there is other business before the House. But I thank everybody who has contributed to this short debate. In particular, I respectfully thank the noble Baroness, Lady Burt of Solihull, for our conversations and the correspondence we have had, which she knows I have been dealing with.
I am conscious that Newton has now been invoked on a number of occasions. I am not altogether sure whether Newtonian physics applies to government action, but I will proceed on the basis that it does. I will try to push things as far as I can, but for present purposes, the only things I will immediately seek to move are these amendments.
Lord Wolfson of Tredegar
“(3A) Subsection (3) does not apply to a reference by the Secretary of State under section 31A(3).”Member’s explanatory statement
This amendment is consequential on the new Clause in the name of Lord Wolfson of Tredegar to be inserted after Clause 136. It disapplies section 33A(3) of the Crime (Sentences) Act 1997 (inserted by Clause 142) in relation to a reference by the Secretary of State under section 31A(3) of that Act.
“(3A) The reference in subsection (3)(a) to a requirement of the Secretary of State to refer a prisoner’s case to the Board does not include a requirement to do so under section 31A(3) of the 1997 Act.”Member’s explanatory statement
This amendment is consequential on the new Clause in the name of Lord Wolfson of Tredegar to be inserted after Clause 136. It disapplies section 267C(3) of the Criminal Justice Act 2003 (inserted by Clause 142) in relation to a reference by the Secretary of State under section 31A(3) of the Crime (Sentences) Act 1997.
Lord Wolfson of Tredegar
“(ma) section (Imprisonment for public protection etc: duty to refer person released on licence to Parole Board);”Member’s explanatory statement
This amendment is consequential on the new Clause in the name of Lord Wolfson of Tredegar to be inserted after Clause 136. It provides for that Clause to come into force two months after Royal Assent.
Baroness Williams of Trafford (Con)
My Lords, perhaps I may just detain the House a little longer to mark the end of this Bill’s passage through your Lordships’ House. It has been a big Bill, with much scrutiny across no fewer than 11 days of Committee; and six days on Report has added to its size. During this time, we have added some important new measures to the Bill, including to further tackle violence against women and girls. Noble Lords have also made a few changes to the Bill, against the advice of the Government. It will now be for the House of Commons to consider those amendments, and we will no doubt be debating them again soon.
I reiterate the Government’s disappointment at the removal of some very important measures, the aim of which was to prevent a repeat of the scenes we saw last year, with people blocking roads, preventing those going about their daily lives from doing so and—yes—preventing essential services such as ambulances getting through to hospitals. The public demanded that the Government act to stop this serious disruption. We did so, but noble Lords on the Benches opposite decided to block these measures. That will not go unnoticed by the public.
Lord Rosser (Lab)
I say to my noble friends behind me that I will resist the temptation to make political comments on the Bill. After all the days we have had in Committee and on Report, I am sure they will understand why I do not wish to go down that road.
I thank the Minister, the noble Baroness, Lady Williams of Trafford, and the noble Lords, Lord Wolfson of Tredegar and Lord Sharpe of Epsom, for all the work that they have so obviously done on this Bill. I also thank them for the meetings we have held and the changes that have been secured through government amendments or government support for amendments.
I also thank my noble friends Lord Coaker, Lord Ponsonby of Shulbrede and Lady Chapman of Darlington. As the Minister reminded us, my noble friend Lord Kennedy of Southwark has also been involved, as has been my noble and learned friend Lord Falconer of Thoroton. We seem to have had a fairly large Front Bench on this side of the House, and I am extremely grateful to all of them for the work that they have done.
I too thank the Bill team. Everything that the Minister said about them we would certainly endorse and wish to be associated with. They have been extremely helpful, and we have appreciated that. I also thank the many outside organisations with an interest in the terms of this Bill for the briefings that they have given us, both written and verbal. That has been extremely helpful too.
Talking of help, I would like to thank for the vital and invaluable work they do colleagues in our office here in the Lords, particularly Grace Wright, who has been a key figure and has certainly kept me on the straight and narrow. I am quite sure that any mistakes I have made have been nothing to do with her; she has prevented me making an awful lot as it is.
The Bill has been improved by amendments that this House has made and, in some cases, by resisting amendments to which this House has not agreed. As the Minister said, it now goes back to the Commons. Like her, I too wait to see what the Commons will now make of this Bill as amended by your Lordships.
I again thank everybody whom I have mentioned, and I am quite sure that there are others whom I should have mentioned but have not done so. For that, I apologise.
Lord Paddick (LD)
My Lords, I remember looking at this 307-page Bill—or at least it was 307 pages to begin with—in August and wondering how on earth to tackle it. I was reminded that the way to eat an elephant is one piece at a time, which is the approach we took. This was about five Bills stapled together, except the PPO could not staple them together because it was too big. The Bill returns to the other place considerably improved, although you cannot make a silk purse out a sow’s ear—these are separate metaphors; I am not mixing them—or should I say a boar’s ear in these days?
I shall not resist what the Minister has said about the Bill. As far as we on these Benches are concerned, the existing legislation to control protest was adequate, and the measures that we have removed from the Bill were not necessary in the first place. The majority of the police consider that a lack of police officers is the limiting factor when it comes to policing of protests rather than a lack of legislation.
I would normally thank the Minister and the Bill team for their engagement, but, certainly, I am not alone on these Benches, at least as far as the home affairs side of things is concerned, in feeling that the Government have not reached out to us as much as they could or should have done. None the less, we have all been in this together over a considerable period, and I am grateful for the time that the Government have given in allowing us to debate these issues.
I thank the Official Opposition, both the leadership and Back-Benchers, the Cross- Benchers, non-affiliated Peers and the Greens for their support and co-operation. In particular, I thank Elizabeth Plummer and Grace Wright for their invaluable help on the Bill, as well as all the outside organisations which helpfully provided us with briefings. We would not have done any of this without that help, and we hope that the Government will see the improvements that we have made to the Bill as improvements when it is considered by the other place.
Lord Cashman (Lab)
My Lords, as other noble Lords have said, the Bill has been much improved. I pay particular thanks to the noble Baroness, Lady Williams of Trafford, for working over six years with me and my friend, the noble Lord, Lord Lexden, in widening the pardons and the disregards for historical homosexual offences, including in the Armed Forces. It is truly historic when a state apologises for what it has done and reaches back over 500 years. It is the end of a six-year campaign that the noble Baroness, Lady Williams, has been an active part of. I cannot thank her and the Bill team enough, and indeed colleagues and the team in the Armed Forces. I also put on record our thanks to Professor Paul Johnson, the country’s leading expert on this. Finally, it might have been a six-year campaign, but some of us have campaigned for more than 33 years, not for ourselves but so that injustices can at last be put right.
Lord Marks of Henley-on-Thames (LD)
My Lords, I will try not to repeat too much of what my noble friend Lord Paddick said. He pointed out—it is not a new point—that this has been a long and difficult Bill. I am bound to say that we must all hope that such a mammoth Bill, with such a wide range of diverse topics shoehorned into a single piece of legislation, will never be put before Parliament again. It has taken too many days, with too little time for the content involved and too much pressure, not just on MPs and Peers but on parliamentary staff, officials and those many organisations that seek to brief us about legislation. For us here, there have been too many early starts and too many late nights. It has been a very difficult experience.
None the less, I completely agree that the House has done its job well. We are very grateful to the ministerial team and their officials. On justice issues, I am, of course, particularly grateful to the noble Lord, Lord Wolfson, for the care, courtesy, approachability and engagement, not to say humour, that he has shown in our discussions. We have had some significant successes, from our point of view, on breastfeeding voyeurism and common assault in the context of domestic abuse. We have had some limited progress—my goodness, it is limited—on IPPs. That is clearly not the end of the story.
On Home Office issues, we are grateful to the noble Baroness, Lady Williams, for her care and the comprehensively courteous way she has dealt with the House, although I am bound to say that I share my noble friend Lord Paddick’s view that we have felt that she has not been able, on behalf of the Government, to make the concessions she perhaps might have liked to have made in some areas.
These Ministers illustrate the pressure there has been on all of us. In this context, I mention the tireless and efficient work of my noble friend Lord Paddick, who has borne the brunt of days and weeks of debate over many hours and days of sitting, and there have been many more days of preparation.
Before the Bill finally passes, we on these Benches regard it as largely profoundly regressive. On human rights issues, the House must expect Liberal Democrats and others in the Opposition to continue robustly to defend individual liberty in a way that we do not believe the Bill does. On justice, we will keep the pressure up for a humane sentencing system dedicated to rehabilitation and reform, combined with increasing use of community sentences. We will continue to work on women’s justice, where it seems that we are accepting very slow progress when we should be looking for dramatic improvement.
Baroness Jones of Moulsecoomb (GP)
I realise that I ought to be gracious, but I have hated almost every minute we spent on this Bill over the days, weeks and months. I deeply regret that it will pass. I wish it had not been presented in the first place and I wish we had not been forced to let it through, but it has been historic. One of the things that has been historic is the united opposition to some of its worst parts. That is something the House can be proud of. I look forward to many more days, weeks and months of arguing with the noble Baroness and the noble Lord on the Benches opposite.
Police, Crime, Sentencing and Courts Bill
Monday 28th February 2022
(2 years, 2 months ago)
Commons ChamberRead Full debate Police, Crime, Sentencing and Courts Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Commons Consideration of Lords Amendments as at 28 February 2022 - (28 Feb 2022)
19:57 - The House divided: - Ayes: 314 / Noes: 190 - Question accordingly agreed to.
20:12 - The House divided: - Ayes: 315 / Noes: 189 - Question accordingly agreed to.
20:25 - The House divided: - Ayes: 304 / Noes: 198 - Question accordingly agreed to.
21:50 - The House divided: - Ayes: 314 / Noes: 190 - Question accordingly agreed to.
00:00 - The House divided: - Ayes: 288 / Noes: 238 - Question accordingly agreed to.
00:00 - The House divided: - Ayes: 289 / Noes: 237 - Question accordingly agreed to.
00:00 - The House divided: - Ayes: 298 / Noes: 236 - Question accordingly agreed to.
00:41 - The House divided: - Ayes: 292 / Noes: 238 - Question accordingly agreed to.
Mr Deputy Speaker (Mr Nigel Evans)
I must draw the House’s attention to the fact that financial privilege is engaged in Lords amendments 59 and 60. If Lords amendments 59 and 60 are agreed to, I will cause the customary entry waiving Commons financial privilege to be entered in the Journal.
Clause 7
Duties to collaborate and plan to prevent and reduce serious violence
The Minister for Crime and Policing (Kit Malthouse)
I beg to move, That this House agrees with Lords amendment 2.
Mr Deputy Speaker
With this it will be convenient to discuss the following:
Lords amendment 70, Government motion to disagree, and Government amendments (a) and (b) in lieu.
Lords amendment 72, and Government motion to disagree.
Lords amendments 114 to 116, Government motions to disagree, and Government amendments (a) and (b) in lieu.
Lords amendment 141, and Government motion to disagree.
Lords amendment 142, and Government motion to disagree.
Lords amendments 3 to 57, 59, 60, 108 to 113, 117, 147, 153 and 154.
Kit Malthouse
I propose first to talk about some of the key changes made to the Bill in the other place as a result of amendments brought forward by the Government, then to turn to the Lords amendments with which, sadly, the Government disagree for various reasons.
The Bill as passed by this House already included a number of significant measures to tackle violence against women and girls, and we have added to them during the Bill’s passage in the Lords. Lords amendments 13 to 15 make it clear in the Bill that domestic abuse and sexual violence are included within the meaning of the term “violence” for the purposes of the serious violence duty. It was always our wish that the serious violence duty should be all-encompassing, but following representations by Baroness Burton and others who were concerned to emphasise its importance, we are happy to agree to this being included in the Bill. The accompanying statutory guidance, which will be subject to public consultation, will make it clear that local areas, in drawing up their strategies to prevent and reduce serious violence, can and should include measures to tackle domestic abuse and sexual violence based on their local assessments.
With regard to Lords amendments 34 to 55, on Report in this House the Minister of State, my hon. Friend the Member for Louth and Horncastle (Victoria Atkins), reiterated the Government’s commitment to ensuring that the provisions of the Bill relating to the extraction of information from electronic devices are accompanied by strong privacy safeguards. These Lords amendments deliver on that commitment. Among other things, they add a new clause setting out the conditions that must be met in order for a device user to be treated as giving agreement to the extraction of information. These changes will increase victim confidence and ensure that the individual’s right to privacy is respected and placed at the centre of all investigations.
Lords amendment 56 will create new offences to criminalise recording images of, or operating equipment to observe, a person at a time when they are breastfeeding, without the person’s consent or reasonable belief that they consent. On Report, the hon. Member for Walthamstow (Stella Creasy) made a powerful case for introducing such offences. Although at that time we made it clear that the Law Commission is currently reviewing the law in this area, we do believe that this amendment will ensure that parents are protected from non-consensual photography and can feel safe to breastfeed in public, ahead of the publication of the Law Commission report later this year.
Another compelling argument was made on Report last July by the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper) and my hon. Friend the Member for East Worthing and Shoreham (Tim Loughton), who is sadly not in his place, to address concerns that the time limit for bringing prosecutions for common assault or battery involving domestic abuse is unfairly short. Currently a prosecution for common assault or battery must be brought within six months of an offence occurring. However, victims of domestic abuse may often, understandably, take some time to report an offence, leaving the police and the Crown Prosecution Service with little time to conduct an investigation and prosecute the offender. In some instances, the time limit has expired before the victim even approaches the police. To address this issue, Lords amendment 57 will extend the time limit for commencing a prosecution for common assault or battery involving domestic abuse so that the six months runs not from the date when the offence occurred but from when it is formally reported to the police through either a witness statement or a video recording made with a view to use as evidence. A prosecution must be commenced within an overall limit of two years of the offence. This amendment will make a real difference to victims of domestic abuse and stop perpetrators hiding behind an unfair limitation on victims’ ability to seek justice.
Lords amendments 59 and 60 will ensure that the police’s processing of personal data in non-crime hate incident records is made subject to a code of practice issued by the Home Secretary. The amendments will address concerns raised by my hon. Friend the Member for Shipley (Philip Davies), also sadly not in his place, in this House and by Lord Moylan and others in the other place by bringing parliamentary oversight to this process. The College of Policing is currently responsible for producing non-statutory hate crime operational guidance. The Government’s statutory code of practice, once in effect, will replace the relevant section of this guidance on non-crime hate incidents. The college’s guidance will remain in place until the new code enters into effect. When drafting the code, the Government will work closely with policing partners, including the College of Policing and the National Police Chiefs’ Council, to make sure that it will respect the operational importance of recording non-crime hate incidents to help to keep vulnerable people and communities safe while balancing the need to protect freedom of expression.
Let me turn to the Lords amendments that the Government cannot support—at least, not in their current form. Lords amendment 70 would require the Secretary of State to establish a review of the prevalence of, and the response of the criminal justice system to, the offence of administering a substance with intent under section 61 of the Sexual Offences Act 2003—commonly known as spiking. The Government share widespread concern about the offence that has prompted this amendment, whether spiking of drinks or spiking by needles, and we are taking the issue extremely seriously. I particularly commend my hon. Friend the Member for Gloucester (Richard Graham) for bringing forward his recent ten-minute rule Bill on this issue. Everyone should be able to enjoy a night out without fearing that they will be a victim of this dreadful crime.
In September 2021, the Home Secretary asked the National Police Chiefs Council to review urgently the extent and scale of needle spiking. It is clear from what the police have told us that this behaviour is not exclusively linked to sexual activity and that it demands a response that goes beyond the criminal justice system. We have therefore tabled our amendment in lieu of Lords amendment 70, which is drafted more broadly than the Lords amendment and is not linked to any specific offence. It will require the Home Secretary to prepare a report on the nature and prevalence of spiking and to set out the steps that the Government have taken or intend to take to address it. In this context we are also exploring the need for a specific criminal offence to target spiking directly, as my hon. Friend recommended in his ten-minute rule Bill. The Home Secretary will be required to publish this report and lay it before Parliament within 12 months of Royal Assent. In preparing the report we will want to take into account the findings of the current inquiry by the Home Affairs Committee. This approach addresses the concerns that prompted the Lords amendment but in a way that enables the Government to consider the issue in the round.
Lords amendment 72 seeks, in common parlance, to make misogyny a hate crime. Hon. Members may be aware that in December last year, at the Government’s request, the Law Commission provided recommendations on the reform of hate crime laws. Looking very carefully at this issue, it found that adding sex or gender to hate crime laws may prove “more harmful than helpful”, as well as “counterproductive”. The principal reason is that it could make it more difficult to prosecute the most serious crimes that harm women and girls, including rape and domestic abuse. Obviously such an awful unintended consequence is not the intention of those who tabled the amendment in the other place. As such, the amendment seeks to exclude certain offences where the risks to their prosecution are acute.
The Law Commission looked at every possible model and unfortunately also found the one proposed in the amendment unsatisfactory. Time is short and I do not want to dwell on all its problems, but the review identified that to reflect sex and gender in some offences but not others would make the law very complex and imply that very harmful excluded offences such as rape are less serious, would result in tokenistic coverage of many misogynistic crimes, and would create new inequalities in how different groups are protected by hate crime laws.
Joanna Cherry (Edinburgh South West) (SNP)
The inner house of the Court of Session, Scotland’s highest court, has recently clarified that in the Equality Act 2010 “sex” does indeed have the meaning set out in section 11—that is, that it refers to one or other sex, male or female. Does the Minister share my concern that this amendment has that definition of “sex” but the word “gender” is undefined? Is he aware that many feminists feel that gender is not the same as sex and that in fact gender is a tool of sex-based oppression?
Kit Malthouse
I acknowledge some of the problems with the amendment that the hon. and learned Lady sets out. I think it is Women’s Aid that rejected the amendment and said that it would do more harm than good on the basis that she outlined: it is not specific about targeting crimes against women in particular.
Stella Creasy (Walthamstow) (Lab/Co-op)
I would like to correct the record, because that is not what Women’s Aid has said.
The Minister highlighted the issue of a carve-out as being the reason why the Government do not believe in adding sex or gender to ensure that any perpetrator who attacks a woman or someone they believe to be a woman can be captured by the offences in question. I think we would all agree that is important, but he argues that the carve-out is not the right thing to do. Does he also make the same argument then that it is tokenistic to carve out offences based on racial or religious hatred, which we already do in our legislation? We have carve-outs. Stephen Lawrence’s killers were not prosecuted for a hate crime, but we recognise the hate behind it. Why does he think that women do not deserve the same protection?
Kit Malthouse
I had hoped to avoid the approach that the hon. Lady takes. Of course we believe that women deserve strong protection—we absolutely do—but all I can say to the hon. Lady is that the Law Commission, in looking at the evidence over a three-year period and consulting widely across the sector and society more generally, found that the additional complexity was likely to make it harder to prosecute these crimes. I ask her to reflect on the fact that in proceedings in this House, she put her name to an amendment compelling the Government to adopt the Law Commission’s proposals in full. I am not sure why she has now reversed that position, but I hope she appreciates that we are as dedicated to and interested in the safety of women as she is.
Sir Robert Buckland (South Swindon) (Con)
My right hon. Friend and I worked hard on the issues underpinning the Bill and on the Bill itself. May I press him on Lords amendment 72? I accept that the amendment is defective. It does not create a new offence, however, but is about aggravating factors in sentencing. I commend to him the positive findings of the Law Commission, namely its proposal to develop an offence of street harassment, albeit with a sexual motive. I take issue with that—I think it needs to be a wider offence of street harassment, because we need to deal with wider issues than sexual motive—but I press the Minister to commit the Government to getting on with work on the Law Commission’s important recommendation to create a new offence based not just on racial hatred, but on hatred motivated against gender or sex.
Kit Malthouse
My right hon. and learned Friend is right that we need to have a serious look at the suite of offences used in this area. He will know that many street harassment offences are classified as some kind of public order offence. That causes a number of problems, not least the lack of transparency with the police’s analysis of what is going on out there in our streets.
There are three further areas of work that we want to turn to, as we sadly reject this amendment, well motivated though it absolutely is, on the basis of the Law Commission’s evidence. Those three areas are first, as my right hon. and learned Friend says, to adopt the Law Commission’s other proposal of looking at a specific offence of public sexual harassment, as my neighbour, my right hon. Friend the Member for Romsey and Southampton North (Caroline Nokes), asked for today. Personally speaking, I think it could be a new offence, but it could be some amendment to public order offences to allow us to deal with this particular issue.
The second area is police recording. My right hon. and learned Friend the Member for South Swindon has raised the issue a number of times with me outside the Chamber, and he is right that we need to look carefully at the forces recording data at the moment, what they are learning from it and what impact it has, because the Law Commission was equivocal about the value of that recording. I am not convinced personally, and I would like to understand what impact it is having from a policing point of view.
The third area of work I would like to see is encouragement of reporting. One of the key things, whatever the offence type, is that we know a lot of women, particularly in the public realm, who are harassed do not have the confidence to come forward or do not think anything will happen if they do. I am pleased that the Under-Secretary of State for the Home Department, my hon. Friend the Member for Redditch (Rachel Maclean), is today launching an extensive communications campaign called “Enough”, encouraging bystanders and peers to report this kind of behaviour to the police.
Sir Robert Buckland
I have listened with care to my right hon. Friend, and I accept what he says. I am encouraged by what he says about development of the law. May I press him on reporting and recording? As part of the Domestic Abuse Act 2021 process, we undertook to ensure that recording was rolled out nationally. That was more than a year ago. For that to happen, there must be proper expedition on this. It is no good saying that there is not a particular offence on which the police can hang this recording. We need to get on with it, because the time is coming, sooner or later, when there will be a relevant offence, and I would rather that the Government were ahead of the pack rather than behind.
Kit Malthouse
I completely agree with my right hon. and learned Friend, and I am as impatient as he is, not least because I am keen to kick off some analysis programmes looking at particular patterns of behaviour in particular postcodes. We men all know women who have been subject to this kind of abuse out in the public realm. My personal theory is that this sort of behaviour is not something a man does once. Much of this offending is repeated, and there are prolific offenders in particular neighbourhoods who could and should be identified, and they would be if we were better able to record it and had more transparency from a public order offence point of view. That is what we will be committing to do.
Richard Graham (Gloucester) (Con)
I am grateful for what the Minister has said, particularly about the early amendment on spiking. On this particular offence of misogyny, can we have it on the record in this House that no one in this House has any time for misogyny? The issue is purely one of law and what will be most effective. Everything that my right hon. Friend the Minister has said in answer to my neighbour, my right hon. and learned Friend the Member for South Swindon (Sir Robert Buckland), is extremely relevant. Does my right hon. Friend recognise that some police forces, such as my own—Gloucestershire constabulary—are recording data on this and believe it to be useful? I hope he agrees that that could be an encouraging form of evidence towards the aggravating factor he referred to earlier.
Kit Malthouse
I completely agree with my hon. Friend, and he is absolutely right that we need to look carefully at the recording patterns and what they are telling forces such as Gloucestershire about how they can and should intervene in particular neighbourhoods. We then need to look to other forces exhibiting the same patterns of offending, but not necessarily recording it, so that we can act to spread this kind of practice more widely.
I am encouraged by my hon. Friend’s sense of cross-party enthusiasm for this issue. I know that some in the House—I am not sure necessarily anybody present here—would seek to make it a political issue, but as the person who devised and published the first ever violence against women and girls strategy in the entire country when I was deputy Mayor for policing at City Hall, I am proud of the work I have been able to do in this particular area over the past decade or so, and I hope I will do it for many years to come. This issue breaches all divides, because we are all sons, brothers, sisters, fathers—whatever it might be—and we all know people who have been subjected to this crime.
Wera Hobhouse (Bath) (LD)
The amendment to the hate legislation does not create a new offence, and the Minister will be aware of that. I had a long discussion with the Law Commission last week, and it admits that not all women’s rights organisations agree with its view. Many organisations, such as the Fawcett Society and the Young Women’s Trust, support this amendment.
Kit Malthouse
All I can do for the hon. Lady is quote from the Law Commission’s report, which I assume she has read, extensive though it is. It specifically states:
“We recognise that many people may disagree with our conclusion and find it difficult to understand given the prevalence of sex and gender-based violence and abuse…our recommendations have been decided…on the strength of the evidence and policy considerations before us.”
I hope she will understand that notwithstanding the division of opinion there may be, the fact that the Law Commission—after three years, and with weighty legal minds—disagrees with this move, along with large women’s organisations, such as Rape Crisis, means that in all conscience we cannot support an amendment that they say will make things worse. We have to commit ourselves to making things better and by other means, as my right hon. and learned Friend the Member for South Swindon (Sir Robert Buckland) has pointed out. That is exactly what I am doing today.
Jim Shannon (Strangford) (DUP)
I thank the Minister for all his work. I am concerned about how ladies and girls will have confidence in the processes coming forward. He has clearly said that the amendment is not acceptable because he feels that, legislatively, the Government are addressing those issues, but the people who speak to me—the ladies and gentlemen, and the young girls in particular—need to have confidence in the processes. I do not see that, so how will he legislatively ensure that that is there for ladies and girls?
Kit Malthouse
I completely sympathise with the hon. Gentleman’s sentiment. Having been in this House for nearly seven years, I have often realised that we mistake the introduction of legislation for actually doing something out there on the street. Although we can and should legislate to make things crimes and to better dispose of them, we actually need somebody to take off their bicycle clips, walk out of the office or station and do something different out there on the street to make those of us in society who feel unsafe—particularly, sadly, women and girls—feel safer.
We are trying to give concrete life to that through schemes such as the safer streets fund, where we are specifically spending money on public realm improvements, whether that is CCTV or better street lighting, in areas where women and girls feel unsafe. I hope that the huge increase in police numbers that we are seeing at the moment will see more uniforms out there on the street in those areas where women and girls feel unsafe. There are wider cultural issues that we also need to address. The hon. Gentleman is right to point out, however, that legislation will only take us so far and that what is required is action out there on the streets.
Lloyd Russell-Moyle (Brighton, Kemptown) (Lab/Co-op)
It sounds a bit like the Minister is saying that the words we say in here do not really matter, but the legislation that we pass here, including making misogyny an aggravating factor, sends messages to people out there. When I sat on the Committee of the Voyeurism (Offences) Act 2019, the Government were clear that although other laws could be used to stop the awful practice of upskirting, it needed to be in a clear law against it. During the passage of that Act, they promised that they would look at and bring forward a measure to make misogyny an aggravating factor in hate crime. Why are they delaying on the promises that they have made?
Kit Malthouse
I am sorry, but I am not sure that the Government ever made that promise. [Interruption.] Hold on, I do not know whether the hon. Gentleman has read the Law Commission’s report. Has he read it?
Lloyd Russell-Moyle
I have read the section that the Minister is referring to.
Kit Malthouse
The Law Commission report is unequivocal about the dangers that it may present. The hon. Member for Walthamstow (Stella Creasy) is shaking her head, but the report’s conclusion says:
“We recommend that sex or gender should not be added as a protected characteristic for the purposes of aggravated offences and enhanced sentencing.”
That is the specific recommendation in the report. The Law Commission has much greater and more skilled legal minds than mine, and other groups do not support the amendment.
I realise that the issue is of great importance to hon. Members, and we must all reflect on the feelings of insecurity that women and girls feel in the public realm, but we are being told by the experts—by the Law Commission—that the measure is likely to do more damage than good. That is not necessarily a substitute for us not doing anything and I have outlined what more we may do, but the point is that we have to listen to the experts. To be honest, I am quite surprised that a party led by a former Director of Public Prosecutions would seek to ignore the Law Commission.
Stella Creasy
I would like to correct the record, because the Minister seemed to suggest that I was against what the Law Commission has said. He is asking all hon. Members whether they have read it so it is worth checking whether he has, because it says that there is a case for there being offences motivated by misogyny—for example, stirring up incitement or public sexual harassment. Those of us who have constituents such as Muslim women who get attacked in the street for being both Muslim and a woman recognise that misogyny is about not just sex but power, so we need offences to tackle that.
Does the Minister recognise that if the Law Commission is saying that there are offences motivated by misogyny, the risk of not including it as an aggravating factor is that we could end up in a whack-a-mole situation? For example, we could end up saying, “In these cases of incitement, what is incitement? In these cases, what might be sexual harassment?” It would be simpler to include it and it would recognise what the police are telling us. I stress that the police are telling us that they want this data and they want the courts to back them. They want misogyny to be treated in the same way as racial or religious hatred, because they see it driving crimes on our streets. I am pleased to hear that he is concerned for women, but women have had concern for donkey’s years. What we now want is action.
Kit Malthouse
I can appreciate the hon. Lady’s requirement for action. As I say, action is what we are trying to put in place. To be clear, again, we are not saying that the fact that we are declining to make this Lords amendment means that we should not do anything. As I said to my right hon. and learned Friend the Member for South Swindon, there are further offences that we need to consider.
In fact, the Law Commission’s report went further and said that if we were to introduce that offence, it would complement other work on offences that may be coming forward, such as cyber-flashing, which my right hon. Friend the Member for Basingstoke (Mrs Miller) has raised several times in the House; rape threats; and intimate image abuse. There are several areas where we need to consider interlocking offences, and that work will take time beyond this Bill to get right. As my right hon. Friend the Member for Romsey and Southampton North urged us, we are committed to adopting both recommendations of the Law Commission, and that is exactly the work that we intend to do in the months to come.
Sara Britcliffe (Hyndburn) (Con)
Does the Minister agree that it is important for Opposition Members to understand what Rape Crisis England & Wales has said, which is that:
“Rape prosecutions are already at an all-time low, and we believe adding sex/gender as a protected characteristic would further complicate the judicial process and make it even harder to secure convictions.”?
Kit Malthouse
My hon. Friend has put her finger on the button of the problem. It is not that we are unsympathetic to the issue—of course we are not. I just do not see how, given the views of large organisations and of the Law Commission, somebody could, with any conscience, vote for something that they are being told might be damaging. I understand that the hon. Member for Walthamstow is exercised by the issue—as are all hon. Members present—but we hope to address it in other ways and to look seriously at the further offence that my right hon. and learned Friend the Member for South Swindon has urged us to look at and bring it forward in future.
Joanna Cherry
In support of the English Law Commission—hon. Members should be aware that the legislation applies only in England and Wales—in Scotland, when the Scottish Government were looking at introducing hate crime legislation, they rejected misogyny as an aggravating factor after submissions from Rape Crisis, Women’s Aid and Engender in Scotland. Baroness Helena Kennedy is now chairing a panel to look at that with a view to reporting. There are arguments on either side.
I am most concerned that if we are to have an aggravation based on sex or gender, gender must be defined. We already have a protected characteristic of transgender identity, which is very important, but in this Lords amendment, sex is defined but not gender. Does the Minister agree that, in future, we should define what we mean by gender so that people know what it means?
Kit Malthouse
There are a number of definitional issues within the Lords amendment that produce fatal flaws, but I absolutely commend the spirit behind it. It comes from a good place and from a concern that we share. Given that legal expertise advises us against it and advises us to pursue another course, that is our intention and that is what we will do.
I turn now to Lords amendments 114 to 116, which relate to the piloting and national roll-out of serious violence reduction orders. I assure the House that we want to pilot them robustly, which is why the assessment of the pilot will be conducted by an independent evaluator and the Government will thoroughly consider the report’s findings before any decision is made to roll them out across the whole of England and Wales.
The report of the pilot will be laid before Parliament, but commencement regulations are not generally subject to any parliamentary procedure and the Government do not agree that that approach should be changed for SVROs. To assuage the concerns that have been raised in relation to the pilot, amendments (a) and (b) in lieu of Lords amendments 114 to 116 will set out in the Bill a non-exhaustive list of matters that must be addressed in the report of the pilot.
Lords amendments 141 and 142 seek to create two new offences to tackle so-called sex for rent. We are clear that exploitation through sex for rent has no place in our society and is a revolting phenomenon. We therefore fully understand the motivation behind these amendments. There are existing offences in the Sexual Offences Act 2003 that can and have been used to prosecute this practice successfully, but we do recognise the need to do more to stamp out this abhorrent practice and to support those at risk of exploitation.
Dame Diana Johnson (Kingston upon Hull North) (Lab)
On the consultation that the Minister will undertake, is it a very targeted consultation on the specific offence of sex for rent, or does it recognise the sexual exploitation of women in other areas and broaden it out to prostitution more generally?
Kit Malthouse
I am grateful to the Chair of the Home Affairs Committee. I cannot give her a definition as it stands, but I am happy to write to her about the scope of the consultation. If she wishes to make representations about the scope, I am sure we will take them into account. However, we are very focused on the notion of a specific offence, so my assumption is that the consultation will be relatively specific.
Gavin Robinson (Belfast East) (DUP)
It does sound, from what the Minister has shared, that this is seen solely through the prism of advertisements online—where there is a suggestion of sex for rent, but through an online medium—but is that right? Will any suggested proposal brought forward in this consultation cover media outside the online sphere?
Kit Malthouse
We do believe that the online harms Bill will cover the vast majority of the offending where this is advertised, and I have to say that the vast majority of that these days does seem to be online. However, the hon. Member raises a very good point, and I will make sure that the team putting the consultation together consider whether we should include that in the scope of the consultation and if a further offence is needed.
Janet Daby
I thank the Minister for giving way on that point. Shelter states that over 30,000 women since the beginning of the pandemic have been pestered by landlords to exchange sex for a roof over their heads. Does the Minister not think that there is more the Government should be doing to move this forward? How long is the consultation period, and what will happen in the meantime?
Kit Malthouse
As I say, there are already offences being committed in those circumstances, and we have had successful prosecutions in exactly the circumstances the hon. Member outlines. Anybody who has been subjected to that kind of criminality should, I hope, feel in a position to report it. However, we need to look at whether there is scope for a more specific offence in this area, because at the moment some of the offending is dealt with through the prostitution legislation, which may not be entirely appropriate. The consultation that we will undertake before the summer recess will run for the normal period, and I hope we will then bring forward expedited legislation, possibly in the same vehicle in which we bring forward the further offences on street harassment. Let us see how we get on.
The other place has proposed some welcome improvements to the Bill, but it has also put forward some amendments that, while often well meaning and extremely well motivated, I am afraid we cannot commend to the House for the various reasons I have set out. I hope that the House will join me, as we support these various amendments, in sorting out what works and what does not, so that we can all move forward in this important area of policy.
Several hon. Members rose—
Mr Deputy Speaker (Mr Nigel Evans)
Order. As everybody can see, the Lords amendments are in three groups. Please speak only to the Lords amendments in group 1 and do not stray into groups 2 and 3, as there will be opportunities to speak about those Lords amendments later.
Sarah Jones (Croydon Central) (Lab)
I thank the Minister for his speech. He comes late to this party—he was not part of the Committee stage—and he has done well to catch up at this point.
We believe parts 3 and 4 of the Bill represent a power grab that bans peaceful protests and compounds inequalities, which is why we voted against the Bill in its entirety on Third Reading, but we also think that this Bill is a huge wasted opportunity. With crime up, prosecutions down, victims losing faith and criminals getting away with their crimes, there has never been a more crucial time to get to grips with law and order. Throughout the passage of the Bill, we have urged the Government to use this opportunity to move further and faster to tackle the epidemic of violence against women and girls.
Time and again, however, this Government have failed to act with the urgency that this epidemic requires. During the passage of the Bill, the Government have already rejected minimum sentences for rape and stalking, our plan to make street harassment a crime and our plans to protect victims with proper legal advice, but we still have time tonight, thanks to our friends in the other place, to make some changes. I urge the House to consider two Lords amendments in this group that the Government are rejecting that would make a real different to women’s lives.
I will start with sex for rent. Lords amendment 141 introduces a new offence of requiring or accepting sexual relations as a condition of accommodation. There are few things more horrific than someone using their power as a landlord or an agent to get sex. Predators advertise sex for rent blatantly. We can see in internet searches hundreds of adverts offering rooms or beds for free to young people, usually women, in return for sex. I understand the Government saying that they are going to look at this and potentially act at some point in the future, but women are being exploited all over the UK now and they cannot wait for another long Government consultation. As my hon. Friend the Member for Lewisham East (Janet Daby) has pointed out—the Minister needs to talk to Shelter to understand this better—the impact of the pandemic means that more people, especially women, are facing financial hardship, which is making them vulnerable to this vile exploitation.
Janet Daby
I thank my hon. Friend for making such a fantastic speech. Does she agree with me that there needs to be a specific offence to punish landlords who engage in this awful practice of exploitation through sex for rent?
Sarah Jones
I absolutely do agree with my hon. Friend, and that is what we are trying to achieve tonight. This is not overly complicated, and I think it is staggering, when the Government are introducing legislation far faster in other cases, that they will not support the Lords amendment—and women—in this way.
The second opportunity we have, thanks to the Lords, is Lords amendment 72, which would add prejudice based on sex and gender to hate crime legislation. This would make misogyny a hate crime, which we have talked about so much already tonight. I know that the Law Commission has some concerns, but this is a simple and straightforward step that will increase public awareness, improve victims’ confidence—crucially—in reporting, and enhance the way the police respond to violence against women and misogyny. The symbolism of this is so important. We were all so shocked by the Independent Office for Police Conduct report into Charing Cross station and the misogyny in those messages that we never thought we would see in the police.
Craig Whittaker (Calder Valley) (Con)
Would the hon. Lady agree with me that introducing this will require an extra burden of proof to be established through the court process, which as a result may actually make things worse for those reporting a crime?
Sarah Jones
I understand what the hon. Member is saying, but as my hon. Friend the Member for Walthamstow (Stella Creasy) said, there is a carve-out clause particularly designed to satisfy that concern. I believe that distinguishing between serious sexual violence crimes and other forms of crime that may be enacted with a misogynistic intent would solve that problem.
These kinds of misogynistic attitudes and this kind of behaviour are more widespread in society than we care to think. We must be absolutely intolerant of it, and the hate law speaks to that. Such attitudes erode the very fabric of society and we should collectively reject them.
Joanna Cherry
I share the hon. Lady’s horror of misogyny, but I do not understand why although “sex” is defined in the amendment, “gender” is not. What does she understand by the term “gender” in the amendment? Why is it not defined?
Sarah Jones
I understand the point that the hon. and learned Lady is making. The offences are motivated by hostility towards the sex or gender of the victim, and the amendment is designed to be as inclusive as possible, but I hear what she says. Refuge and some other women’s organisations have published a good briefing that tackles some of these issues, and perhaps we could have a conversation about it afterwards. I think her concerns are unfounded, but I understand the point she makes. These issues are complex and difficult, and we must make sure we get them right.
Joanna Cherry
But surely as legislators, if we use a word we have to define it. We all know that there have been problems with conflating sex and gender. The amendment clearly states “sex or gender” and since “sex” is defined, as one would expect, by reference to section 11 of the Equality Act 2010, surely we can define what we mean by “gender”. If we cannot define what we mean by “gender”, why are we including it as an aggravation?
Sarah Jones
The aim of the amendment is to try to make misogyny a hate crime in whatever form it comes, and to be as inclusive as possible in that definition.
Stella Creasy
Does my hon. Friend agree that given that “gender” is defined in legislation—indeed, the Government rather helpfully defined it in their consultation document, so we have a definition of “gender”—it is therefore important that we focus on perpetrators? The point behind hate crime is that I could be a victim of antisemitic abuse whether I am Jewish or not. It is about the motivation of the perpetrator. By recognising that sex or gender can motivate hostility based on misogyny, we are ensuring that no perpetrator could have a defence where they demean a victim, and no perpetrator can avoid that hostility being reported because somebody wants to put them in the trans box rather than in the misogyny box. The amendment is inclusive, but it ensures that it protects women, whether they were born or become one, using definitions that already exist in law.
Sarah Jones
I feel as if there should be a three-way conversation in another place to tackle some of these questions. But they are real questions, and my hon. Friend the Member for Walthamstow has campaigned on this issue for a very long time, and it is important that we listen to what she says.
Wera Hobhouse
Perhaps I can help out and say that, although no legislation is a silver bullet, this measure would make powerful progress and take a powerful stance against certain attitudes that are so prevalent and stare us in the face. We should send a signal that such attitudes are unacceptable, in the same way that we have done with other hate crime legislation.
Sarah Jones
The hon. Lady puts it very well, and I completely agree. We have seen with the recording of such crimes in Nottinghamshire and other places that this measure works. It is welcomed by the police, as it is a useful thing for them as well.
Ruth Edwards (Rushcliffe) (Con)
The hon. Lady talks about the importance of symbolism, and I agree with her. Is she concerned that if we were to accept an amendment that exempts domestic abuse and sexual offences from the aggravating element of misogyny, that would be a terrible message to send? They are some of the most serious crimes against women, yet they would be exempt from that aggravating factor in sentencing.
Sarah Jones
I thank the hon. Lady for that intervention, but as my hon. Friend the Member for Walthamstow said, there is precedent for this with the case of the murderers of Stephen Lawrence.
Ruth Edwards
Just to correct the record, surely the issue was that there was no hate crime legislation to prosecute that murder. It was not that it was specifically carved out.
Sarah Jones
By the time that prosecution happened such legislation was in place, and there is precedent for that. I could point the hon. Lady in the direction of a very good briefing that explains all that in much greater detail, and I would be happy to send that to her.
Tonight we have two opportunities—I mean to touch on them briefly, Mr Speaker—for the House to tackle pernicious practices that have no place in society, and we would support the Government if they chose to back the Lords amendments. I should acknowledge properly the work of the other place on this Bill. Members of the Lords did some terrific work voting late into the night, and we are grateful to them. Hard work and strong arguments by many of my Labour colleagues in the Commons and the Lords have already forced the Government into several defeats and U-turns. Indeed there have been more successful Labour amendments to this Bill than to any other Bill this Parliament.
Several hon. Members rose—
Mr Deputy Speaker (Mr Nigel Evans)
Order. Members should stand only if they want to take part in debate on the first group of amendments, not the second or third groups. We are time-limited, so perhaps Members could focus on the duration of their speeches as well as on the content, to give an opportunity for other Members to take part.
Caroline Nokes (Romsey and Southampton North) (Con)
As a woman who is perennially in a hurry and terribly impatient, I will ensure that my contribution is blissfully short. There is much in the Bill that I feel encouraged about. As hon. Members might expect, as Chair of the Women and Equalities Committee, I will focus specifically on those areas that affect women.
Inevitably, I will always say to the Government that they have missed opportunities, that they have not gone far enough and that more could have been done. I very much feel that the Bill could have done more, but I very much welcome the amendment on voyeurism and breastfeeding, which was put forward by the hon. Member for Walthamstow (Stella Creasy) and has been accepted by the Government. That is a step in the right direction for women. I also welcome Government amendment (a) in lieu of Lords amendment 70 on spiking. I am the first to acknowledge that spiking is not necessarily a gendered crime, but in many instances it is, and we know that young women in particular fall victim to it. Although there are concerns around spiking for robbery, for other forms of violence and abuse and, indeed, in some cases, just for entertainment, a massive proportion of it is about taking sexual advantage—usually of women.
As hon. Members might expect—it was inevitable—I turn to amendment 72 on misogyny. Consistency is important, so I have always said that I would accept and welcome what the Law Commission recommended in its review. However, if we are to go to its recommendations on misogyny and the complications that it rightly highlighted—this is an incredibly difficult area—we should also look at public sexual harassment, which it has also said should be a specific crime.
I started by saying that I am a woman in a hurry, and I am. I welcome my right hon. Friend the Minister’s comments on what the Government are planning to do on public sexual harassment, but this feels like a missed opportunity. I look for confirmation on whether the specific legislative vehicle—this looks very much like one—will be the victims Bill or something tailored to PSH, because this absolutely matters. If we are to start tackling the cultures that underpin violence against women, we must look at the cultures that mean that some men think it is okay to harass women on the street and on public transport.
Siobhan Baillie (Stroud) (Con)
Girls from Stroud High School got me into their school to talk about the public sexual harassment that they receive—often daily and often in their school uniforms—which is outrageous. Under the “Everyone’s Invited” campaign, many schoolgirls—and schoolboys as well—have reported exactly what they experience. Does my right hon. Friend agree that while the comments that we have heard from the Minister are incredibly positive, we must recognise that the calls for such changes come not just from this place or from adults but from young girls everywhere who are experiencing really tough times?
Caroline Nokes
My hon. Friend is absolutely right. It is in our schools that those calls are strongest, which means that young women in their school uniforms are being significantly impacted. They feel scared to walk home alone. They are given advice to stay to well-lit areas, to ensure that they walk in areas with CCTV and to be careful on public transport. Yet again, we are saying, “Girls, be careful,” and not, “Men, don’t do it.” That is why I feel so strongly about specific legislation on public sexual harassment that empowers women to point at behaviours and say, “That is a crime.”
Stella Creasy
I completely agree with everything that the right hon. Member said. It is frustrating as always that, yet again, we are asking women to think about how they keep themselves safe rather than thinking how we stop the perpetrators, let alone the focus being somehow on street lighting, as if these incidents happen only in certain places and spaces. She talks about public sexual harassment. One of the challenges, as the Law Commission admits—I have met and talked to the Law Commission about this—is that not all harassment motivated by misogyny is sexual. I go back to the Muslim women targeted to have their hijabs torn off and disabled women, who are targeted in particular. How can we expand our understanding of how misogyny is driving crimes if we think it is only about sex? Does she agree that we need to find a way to recognise that broader concept of harassment, abuse and incitement, as the Law Commission said should happen but did not come up with legislation?
Caroline Nokes
The hon. Lady makes an important and powerful point. It is imperative that we look at this issue not just in terms of sexual harassment. I apologise for detaining hon. Members a moment longer than I intended, but I want to highlight the case of a constituent who came to see me. She was 23-years-old and had a job in Waitrose pushing trolleys around the car park. She said, “I hate lunch time.” That seemed an odd comment to make, so I asked, “Is it particularly busy at lunch time?” She said, “No. It’s when the white van men turn up.” She told a tale of how, in the depths of winter, when wearing a beanie hat, a puffer coat and a mask—it was at the height of covid—a man walked up to her, put his hands either side of her face and said, “You’re too beautiful to be doing this job.” I have spoken to colleagues in this place who are eminent lawyers— they know much better than me what is criminal and what is not—and asked them, “Where’s the crime?” Not one of them could come up with an actual crime for that. The hon. Lady is therefore right: that was not sex-based; it was just harassment in the same way as we see people stood outside abortion clinics hurling abuse at people going to access those services. We must ensure that abuse directed at women on the grounds of their gender or sex is tackled, and tackled effectively.
The Women and Equalities Committee is about to do an enormous piece of work about the cultures that underpin this problem and hopes to come up with recommendations that the Government will listen to and act on. We want to see legislation that makes women feel safer because they can point at behaviours and say, “That is a specific crime,” that allows perpetrators to look at behaviours and think, “Actually, I shouldn’t do that—I might get in trouble,” and that allows the police and the Crown Prosecution Service to look at behaviours and think, “There’s the crime.”
Richard Graham
On a small point of clarification, my right hon. Friend quite rightly referred to how the vast majority of spiking cases are about men spiking women’s drinks, and there is no question about that, but I am sure she recognises that some cases—I think in particular of the heinous case of Reynhard Sinaga, who was found guilty in Manchester of spiking and raping at least 48 victims man on man—are the other way.
Caroline Nokes
I thank my hon. Friend for that comment. I hope that I did not in any way give the impression that men are not victims, because, yes, they are. When we talk about violence perpetrated against others, sometimes we do not adequately identify the many instances in which young men, and young gay men in particular, can fall victim to such horrific behaviours.
I want to see something on the statute book, and I will press my right hon. Friend the Minister for something quickly. It is not good enough to kick this issue into the long grass and say that we need another review or more consultation. We see that too often. Young women, the girls of the Girl Guides, those from Plan International UK, older women—the Soroptimists have summoned me to tell me that this must be done urgently—and the Women’s Institute all want action. Later this evening, I will attend the event downstairs—it is on now—looking at the Government’s strategy. If we are serious, we must send a clear and powerful message to both victims and perpetrators about what is and is not criminal. Everyone in this House knows a victim; we also all know a perpetrator.
Several hon. Members rose—
Mr Deputy Speaker (Mr Nigel Evans)
Order. To help those people who have asked about the noisy protest and the right to protest, that is in group 3, not group 1 or 2.
Anne McLaughlin (Glasgow North East) (SNP)
I will keep my comments to Lords amendments concerning the extraction of information from electronic devices. To be clear, it is not that the Scottish National party does not have views about everything else, and it is certainly not that we do not care; it is because provisions on those other matters are applicable to England and Wales only.
The Scottish Government have been working with the UK Government to refine the draft code of practice for the data extraction provisions to account for Scotland's interests. The UK Government have confirmed that the draft code of practice would not be finalised until after the Bill attains Royal Assent to ensure that it is fit for purpose. They have also confirmed that the data extraction provisions will not be commenced in Scotland until the code of practice has been finalised. The Scottish Government are therefore content that the arrangements for the code provide sufficient scope for Scottish input.
We are generally content with the Government amendments, which improve the powers by, for example, starting to define an “agreement” to a digital search, but some are concerned that they do not go far enough to protect privacy rights and access to justice. Digital strip searches are now a common tool for the police and, as Big Brother Watch has said, experience tells us that policy changes and guidance are not enough.
What is required is clear statutory change and retraining. I urge the Government to ensure that that is in place before they consider the widespread use of digital strip searches.
In Scotland, we have concerns about amendments 39, 40 and 44. That needs some further discussion with the Scottish Government. In English law, all children are children until the age of 18, but that is not the legal position in Scotland. The age of legal capacity in Scotland is 16. It certainly does not feel right to us for a nearly-18-year-old to have no say in whether their phone is taken from them and its data extracted.
Mrs Maria Miller (Basingstoke) (Con)
I think, listening objectively to today’s debate, there is an enormous level of agreement on both sides of the House that there is a job of work to be done to protect women against abuse, and that there are different options for how we might achieve that. That is the point at debate: what we do, not whether we need to do something. That is really important to acknowledge. I thank my right hon. Friend the Minister for his opening explanation of the resistance particularly to amendment 72, and I commend my near neighbour in Hampshire, my right hon. Friend the Member for Romsey and Southampton North (Caroline Nokes), the Chair of the Women and Equalities Committee, for her excellent and impassioned speech on why we need to do more.
The Lords amendments show that more can be done. Lords amendments 13 and 57 show that the Government can continue to be pressed to do more on these important issues. I am glad to see that they are doing more to extend serious violence duties to include domestic abuse and sex offenders. Lords amendment 57 extending the time limit in the way that it does will significantly help. The real issue is, if we want to tackle the issue of sexual harassment and the abuse of women, how do we do that most effectively? I think Amendment 72 has been looked at in detail by the Law Commission, which has been looking at the issues since 2018. There is, I am afraid to say, widespread support for the Government’s thesis that this is not the right way to tackle the problem.
The Law Commission is very clear that there is demonstrable need for additional law when it comes to supporting and protecting women and girls, and that there is more than ample evidence of the harm that is done. Its real concern is how we tackle this in practice. We have to listen very carefully; otherwise, we risk undoing the good work that has been done. The need for additional law is not under debate; it is the form that that law takes. Sometimes we just have to take a moment, and I think that this is a case in point. We cannot just say, “Something must be done.” We have to ensure that we are doing the right thing. We have to accept the role of the Law Commission in helping us to make law that works in practice. It does not see misogyny being a hate crime as the way to solve the problem that has been so eloquently outlined by hon. Members on both sides of the House. Its concern is not because of a lack of understanding of the problem; it is whether the change that is being proposed will work in practice.
Although I listened very carefully to the interventions of the hon. Member for Walthamstow (Stella Creasy), it concerns me that the solution that is being put forward involves carve-outs for domestic violence and sexual offences, which could in a way suggest, or give people ammunition to say, that those issues are not as connected with misogyny as I am frankly sure that most Members of this House would agree that they are. The concern is not about being able to prove that a crime was motivated by hostility to gender—a point made by the CPS and Rape Crisis. In particular, Rape Crisis said that such an approach would make trials even more complex—an issue brought out by an hon. Member earlier. I also fear trial juries being asked to navigate questions around gender-based hate crime, which frankly we in this House find very difficult to navigate our minds around—all of this leaving people very confused.
I really hope that the Minister, although he may not be able to go much further today, can very shortly tell us much more about what he will be doing on issues that the Women and Equalities Committee has been looking at for more than five years. We did Select Committee reports on sexual harassment in schools back in 2015, in universities, in public spaces, online and in the workplace. This is not a new issue; this has been an issue looked at not only by the Law Commission but by the Select Committee for well over six or seven years. It would be disappointing if the Government were coming back now to say that they will be taking further the idea of public sexual harassment, as if it were a new notion that had just emerged from the ether. It is something that many of us have been looking at, and calling for it to be tackled more effectively, for a number of years.
Perhaps my right hon. Friend the Minister can, when he sums up, indicate in a little more detail how he intends to take forward what I think will be a sensible way of trying to tackle the issue that has been so eloquently talked about in today’s debate. Adding sex or gender into hate crime law may not be the way to tackle things, but there is extensive evidence of how the harm disproportionately impacts women, especially online. The Government have a VAWG strategy, and today they are launching a communications strategy, but too many of us still see deficits in the law when it comes to sexual harassment. There needs to be more focus on prevention by demonstrating across the board that sexual harassment towards women, in the same way that my right hon. Friend the Member for Romsey and Southampton North talked about, is a crime that is utterly unacceptable whenever it occurs, at any stage of our lives. Until we get to that stage, all of us will be calling on the Government to take more action.
Stella Creasy
I will start, because I have had an unintended hiatus from being in the Chamber as a result of having to breastfeed a child, by welcoming the Government’s commitment to amendment 56. It is a cross-party amendment, and I pay tribute to Lord Pannick and Baroness Hayman for the work that they did in the House of Lords on it, my hon. Friend the Member for Manchester, Withington (Jeff Smith), who also led on it, and above all to Julia Cooper, who was a much braver woman than me. I experienced someone taking a photograph of me breastfeeding my child without my permission. She did too, but she challenged the person and went to the police. The police said that there was no protection for her. She started a petition. She took that voice and has turned it into this legislation. We should all be grateful for a woman like that, who stood up.
What Julia faced is what we are also here tonight to talk about on amendment 72. I certainly hope that the Minister, who has come to the debate rather late but I appreciate has come with a deep concern for women’s rights, has been talking to his colleague Lord Wolfson, whose argument against making it illegal to photograph without her consent a woman who was breastfeeding was that a man might be taking pornographic photographs of his wife on a beach and accidentally catch a woman breastfeeding in his camera lens, and that would be terrible. Of course, many of us think for some time about that husband’s discussions with his wife before we think that that is a realistic example.
Time and again on the Bill, we are told that, when it comes to women’s safety, matters are complex. It is put in the “too difficult” box. The trouble for Ministers tonight is that next week will be the anniversary of the murder of Sarah Everard. Since Sarah was murdered, we have had more deaths: the murders of Bibaa and Nicole, and of Sabina. In my constituency, I hear countless stories of violence against women. It is the fierce urgency of now that drives this piece of work. I am sure that the Minister is aware, because he has been asking us repeatedly whether we have read the report of the Law Commission, of its provenance. I was on the upskirting Bill, and the Government agreed to commit to the recommendation of the Law Commission as a result of an amendment that we tabled then, recognising that there were crimes driven by misogyny, and that that was putting women at risk.
It was time to turn the debate around—to stop telling women to keep themselves safe and providing money for lighting, because somehow it is about where they go running, and to start saying that this is about the perpetrators, and holding them to account for what they do. The challenge before the Minister is Lords amendment 72, which, again, is another cross-party effort. I pay tribute to Baroness Newlove, who is a goddess in my mind for her determination to speak up for victims, and Lord Russell, as well as my colleagues on the Government Benches who have been working to look at these issues. We are listening to the police. We are listening to the quarter of police forces that already record sex or gender when it motivates crimes, to help them catch the perpetrators. They recognise that it helps. It helps them to develop the patterns of behaviour.
I gently say to the Minister that when he says the problem is that women do not report, he needs to ask himself, as the policing Minister, not why women are not reporting, but why they do not feel they can come forward to report. It is not about the women; it is about the reporting. It is about the response they get. My colleague, the right hon. Member for Romsey and Southampton North (Caroline Nokes), is absolutely right when she says that everybody knows a victim and everybody probably knows a perpetrator. Many women will have experienced sexual harassment. They will have experienced abuse online, offline and in our daily lives to such an extent that it infuses what we do: the flinch when we come out of a tube station to make sure there is nobody behind us; carrying our keys in our hands; worrying about what our daughter is wearing; and hoping that our son is not one of those people who does it.
The truth for the Minister is that the police are telling us, “Actually, we have a clear policy that helps us to identify people early on.” He is right when he talks about patterns of escalation. Many perpetrators start with what people might think of as lower-level offences. I have to tell the Minister that I have always said I will stop campaigning on this issue when I go to the wedding where the bride gets up and says, “Well, he followed me down the street demanding I get in the back of the van because he wanted to grope me and I thought it was the most romantic thing ever.” It does not happen. What does happen is that that is the daily experience for women across the country and the truth is that the Bill does not offer anything to resolve that. It does not offer anything to back the police, when they say to us that they want to capture that data.
I understand the concern raised about the carve-out and I will come on to that specifically, but we should be very clear that the first thing the amendment would do is record all that data, including domestic abuse and rape, as misogynistic, because it would help to form a pattern. When we talk to the police in the areas where they are recording it, it is not, frankly, the catcalling that people are reporting. It is serious sexual assault, violence against women, rape and abuse, because they have the confidence that the police are going to recognise it for what it is, which is serious violence.
I also say to the Minister gently that he might want to correct the record, because the Law Commission did not look at this very proposal. This proposal is based on the Bertin amendment. The Bertin amendment carves out a definition of serious sexual violence which we did not have, so by its very definition the Law Commission could not have looked at it to consider whether or not it addresses that concern. It is not that we should not record data where crimes are misogynistically motivated, but how we deal with them in sentencing. Carving these offences out does not mean that they are not misogynistic; it means we ensure that the already pitiful sentencing regime does not go any lower.
There is something crucial in the amendment about how it works with the police and the courts, and what the police are telling us in the areas where they are doing this. I see Government Members who have police who are doing it. The police want the courts to back them. They are gathering the data and using it to track perpetrators, finding them early on in their offending careers before we get to the points that people are talking about in the press. They want the courts to back them, just as they back them when it comes to hatred of someone’s skin colour or their religion.
Twenty or 30 years ago, when I was a young woman—a long time ago—there was a culture where things were said on TV and things that people said that we would now rightly recognise as racist or as religious hatred. Hate crime legislation does not just target perpetrators, but cultures. Most of all it changes the culture within the police, because the police forces that are doing this are talking about the mindset change among their members. As a Member for a local community where women have been ignored by the Met police for years, I have to say that that mindset change is something we should all desperately want, so we can recognise the danger when somebody starts following women and how that might escalate. We have all seen it in those reporting histories.
Mrs Miller
I am listening very closely to what the hon. Lady is saying, but the Law Commission was very clear in saying that this would make matters so much more complex, and it worries about how that would affect securing the sort of convictions that I know the hon. Lady and I want to see.
Stella Creasy
I hope the right hon. Member will understand what I am saying. The Law Commission did not look at this amendment, which has learned from the Bertin amendment. [Interruption.] She shakes her head, but the Bertin amendment, which sets out explicitly the offences we would carve out, did not exist during the time of its work. One argument the Law Commission made was with regard to the difficulty of carving those offences out. The amendment builds on where a carve-out can be made.
Stella Creasy
I will happily give way to the Minister. I hope he is not going to tell me again to read the Law Commission review.
Kit Malthouse
This is an important issue and I am grateful to the hon. Lady, but I just wanted to point out to her that the Law Commission said in its consultation paper that it thought it might be possible to overcome the challenges involved in excluding certain violence against women and girls contexts and there would still be value in including sex or gender within hate crime laws for the remaining criminal contexts. It specifically considered the notion of carve-outs. However, following further reflection and analysis, and with the benefit of detailed and thoughtful consultation responses, it now believes that all the possible models to do so create more problems than they solve. So the Law Commission did look specifically at this model of carve-outs, and indeed it specifically considered the option of the full recognition of sex or gender in aggravated offences, with enhanced sentences on the same basis as for other recognised characteristics.
Stella Creasy
I am sorry, but the Minister is conflating two different things here. The Law Commission did not look at the Bertin amendment. What it looked at was whether one might inadvertently downgrade sentencing for rape or domestic abuse by including it within this hierarchy. That is why, for example, Rape Crisis was concerned about a generalist clause. I am sure the Minister has spoken to Rape Crisis since the Law Commission’s report was made. I certainly have. I talked to it about this amendment, and it has been much more positive about it. I hope, if the Minister is quoting Rape Crisis, that he will listen to it when it says that it recognises what is being tried here.
I am not here to say that the Lords amendment is perfect, but I am here to say the because there are other crimes that could be motivated by misogyny, which it is right to recognise within sentencing and to treat as serious—for example, exposure, cyber-flashing, assault or blackmail targeted at disabled women; we see a lot of that in the evidence base—that means that we should dismiss this entirely and say, “Well, we won’t do this at all,” is yet again to ask women to wait for something that will never come. That is the challenge we have here.
The Minister wants to say, “Let’s not politicise it.” I agree. I extend my hand to him to say let us work together to get this right, but let us recognise that misogyny is driving crimes and that the Law Commission has said that. Its arguments were technical ones about how to do the drafting, not about the principle. I hope that the Minister would acknowledge that, because he cannot both argue—
Stella Creasy
That is not what the Minister has said, but I am pleased to hear him say that—[Interruption.] Great. Wonderful—consensus is breaking out, but consensus will not deal with the fact that women right now are at risk and are being harmed. This proposal is helping to improve conviction rates and to track perpetrators in the areas where it is operating.
The Minister will be aware that an amendment to the Bill that became the Domestic Abuse Act 2021 was withdrawn in the other place because Ministers committed to making sure that all police forces would do the reporting, but they have not. We can agree that the reporting is necessary, but it is not sufficient to give the police the backing that they need or to say, “This is about street lighting”. We have to look at how we tackle violence against women and at why and how we could have a carve-out to make this work. That is essentially what an incitement offence would do—
Stella Creasy
I will happily give way to the Minister; I can see him shaking his head and I am keen to hear his male voice about my experience of violence.
Kit Malthouse
I am sorry, but the hon. Lady seems determined to have a fight about this and I really do not want one. She keeps referring to street lighting, but that is one of a suite of things that we need to do generally in the public realm regarding safety. For clarity, I of course acknowledge that there are offences that are motivated by misogyny—I say that clearly, as I did in my opening speech—but this requires a number of approaches and solutions. We are merely saying that the evidence that the Law Commission and other groups put before us is that this particular approach is likely to cause more harm than good. We have committed to look at the other areas that it has highlighted, particularly the crimes that are motivated by misogyny, which I read out from its report. I reassure hon. Members that we are duty-bound to respond to the Law Commission’s report in six months, and we will do so.
Stella Creasy
I hope that the Minister will forgive me if I mention that there are, I think, more than 17 Law Commission reports that have been published since 2010 that the Government have not responded to and acted on—and that is just to look at the Law Commission. He also keeps saying that the Law Commission has looked at this proposal. No—the Law Commission looked at including sex or gender in all instances. It then looked at whether it was possible to have a carve-out, but we did not have the Bertin amendment, which specifically identified the offences in question and helped to shape this Lords amendment.
The Minister has said that he does not want to have a fight about this. Well, he is going to have one, because he is opposing the proposal and not coming up with any alternatives. He is not saying, for example, “We will introduce a proposal in the other place that addresses these issues” or that he will listen not just to all the chief constables across the country who have said that they want to see this happen, but to the organisations that have. Seeing as he is obsessed with major organisations, let us run through them: the Fawcett Society; Citizens UK; Refuge; Stonewall; HOPE not hate; Dimensions; Tell MAMA; the Jo Cox Foundation; and Safe & the City. Many of us have been talking to people who have expressed concerns to identify what those are and learn from them; that is where this amendment has come from.
The Minister will use the Government majority to vote this Lords amendment down, to say that violence against women is a complicated issue and that there are other approaches, and he will wait patiently and in fear that, yet again, there will be another moment as there was a year ago. The trouble is that, for us as women, waiting in fear is our daily experience, because we do not see things changing any time soon. We see the evidence base from Nottinghamshire and from the Met police. We want to know why there is a postcode lottery when it comes to the police taking violence against women seriously. We want to know why our courts want to exclude sex or gender from the protected characteristics that we rightly recognise when crimes are motivated by a hatred of somebody just for who they are, and we will tackle that.
People made many of these arguments 20 years ago on recognising racially and religiously motivated abuse. We now, rightly, all benefit from the protection and the freedom that has been given to people, so that they do not have to live in fear that they will be attacked just because of the colour of their skin or their religious identity. The Minister’s problem is that he says that he listens to and knows women and that he understands this area, but if he understands it at all, he should listen to the suffragettes, who told us that it was “deeds not words” that matter. All we have heard tonight is words.
This proposal is backed by the police. Opposition Members and many Government Members want to back the police and want to see the courts back up the police. If he does not accept this amendment, the Minister has the time and the opportunity in the Lords to come up with an alternative. He will have my support and that of the Cross Benchers to make that happen. However, if he continues to ignore women, to say that he understands the challenge and to blame them for not coming forward and reporting things—[Interruption.] He is right to shake his head, but he can probably go home without looking over his shoulder. Many of us cannot.
Several hon. Members rose—
Mr Deputy Speaker (Mr Nigel Evans)
Order. I am just thinking about protecting a bit of time for the Front Benchers, so if I put on a four-minute time limit, we can hopefully get a few more Members in.
Craig Whittaker (Calder Valley) (Con)
I would like to speak in support of the Government and against making misogyny a hate crime, as suggested in Lords amendment 72. It is safe to say that everybody understands the strength of feeling about adding sex and gender to hate crime laws—as I do, not least, from my mailbox—and this debate has shown that. However, I feel unable to support the amendment in the light of the Law Commission’s conclusion in its independent review of hate crime laws in December last year. It said that such a step would potentially
“prove more harmful than helpful, both to victims of violence against women and girls, and also to efforts to tackle hate crime more broadly”—
the Law Commission’s words, not mine. It specifically noted that adding those characteristics may make the prosecution of crimes disproportionately affecting women and girls, such as sexual offences and domestic abuse, much more difficult.
That issue arises because establishing whether a hate crime has occurred would require additional proof to be demonstrated in court. The Law Commission notes, by contrast:
“It might be practically difficult to prove a sex or gender-based aggravation in the context of VAWG crimes that usually take place in private”.
As a result, the Law Commission notes:
“We are particularly concerned about the potential for this to make some sexual offence prosecutions more difficult”.
We should not put this in the “too difficult” box; it will just work against women and girls who are the victims.
The Law Commission subsequently recommended against adding these characteristics to the law. Given those and other potential unintended consequences, as we have heard, organisations responding to the consultation support the Law Commission’s review in opposing these characteristics being added to the law.
It is also worth Members noting, when they come to their decision today, that the Lords amendment seeks to mitigate the most serious risks identified in what I have spoken about by excluding certain offences from any hate crime designation, including sexual offences and domestic abuse. However, the Law Commission similarly identified that such models would not be helpful, noting that this would then make the addition of the characteristics largely “tokenistic”—the Law Commission’s words, not the Minister’s—by excluding the most serious offences that frequently harm women and girls. It also noted that the exclusion of these offences risks suggesting that they are, by default, less serious or not rooted in misogynistic hostility, and would treat sex and gender unequally to other characteristics in the scope of hate crime laws.
I therefore share the Law Commission’s concern that adding sex and gender to hate crime laws in any form could prove unacceptably counterproductive and work against women and girls.
Wera Hobhouse
I rise to speak in support of Lords amendment 72. Existing hate crime legislation must be extended to include misogyny, and the police must be required to record hate crimes as misogynistic. The amendment has the backing of such powerful organisations as the Fawcett Society, Refuge, the Young Women’s Trust and many more, as well as the police.
Last year was a terrible year for women and girls, with two high-profile cases of young women murdered on our streets by vile sexual predators, peaceful women’s protesters pinned to the ground by serving police officers, thousands of women being subjected to spiking, including in my Bath constituency, and countless other horrific crimes against women and girls.
There is growing and very obvious evidence that misogyny is at the centre of violence against women and girls. Nottinghamshire police have led the way to enabling cases of abuse and harassment to be recorded as misogyny; Avon and Somerset police are following suit. I commend all police forces that are doing so, but it should not be a postcode lottery.
Making misogyny a hate crime would send a powerful signal. We need a culture change, and we in this House have a duty to lead it. I have listened carefully to this evening’s debate, in which the Government have said that making misogyny a hate crime could lead to unintended consequences, possibly making it harder to prosecute the most serious cases of sexual violence. Of course we need to protect those women who are exposed to the most serious cases of sexual violence, but Lords amendment 72 especially sets out to avoid any such consequences.
Wera Hobhouse
I will not, because of time.
We should start sending a very strong signal today. Hate crime legislation has made a difference to religious and racial hate crime, so why should women not have the same right? Let us listen carefully to what is being said and make sure that we make progress. It would not be an entire answer, but making misogyny a hate crime would send such a powerful signal that certain attitudes that lead to harassment and later to more serious crimes are not okay, and they are not lawful.
Ruth Edwards
I spent last Friday evening in St Peter’s Rooms in Ruddington with a nurse, councillors, shop owners, a reiki practitioner, childcare professionals and many more members of the community. We were taking part in a training programme to help people to identify signs of domestic abuse, talk to survivors they might come across in their place of work and put them in touch with local professional services. The programme is called J9, after Janine Mundy, who was brutally murdered by her ex-husband. I think I must have taken part about 15 times now in the course, which I am delivering across the constituency with my constituent Nicola Brindley, but it never gets any easier to hear the stories of abuse suffered.
I therefore strongly welcome Lords amendment 57, which extends the time limit for prosecution for common assault or battery in domestic abuse cases. There are so many reasons why it takes time for victims to come forward. We must do everything we can to stand with them and support them when they do.
I also welcome Lords amendment 13, which clarifies the inclusion of domestic abuse and sexual offences in the serious violence duty, and Lords amendment 56, which protects women doing the most natural thing in the world: breastfeeding their child. I commend the hon. Member for Walthamstow (Stella Creasy) for all her work in the area.
Also before the House is the issue of making misogyny a hate crime, as set out in Lords amendment 72. I fully support the intention behind the amendment, as I think every Member does, but having read the Law Commission’s report, I share some of the concerns voiced. I take very seriously the concerns raised by organisations such as Rape Crisis, which believes that adding sex or gender as a protected characteristic would further complicate the judicial process and make it harder to secure convictions.
Lords amendment 72 also carves out sexual offences and offences related to domestic abuse from the scope of prosecution as a hate crime motivated by sex or gender, because there are considerable difficulties with keeping them in. As the Law Commission’s report shows, research has shown that sex or gender-based hostility is much more likely to be identified or proven in the context of sexual violence perpetrated by strangers in public settings, particularly where it is accompanied by physical violence. Using misogyny as an aggravating factor in such cases would risk perpetuating the highly damaging myth that there is a hierarchy of sexual violence, which already does so much damage to victims whose experience is different, but whose suffering is no less.
In many crimes of violence against women and girls, such as those in cases of domestic abuse where the victim is known to the perpetrator or is in an intimate relationship with them, it may be more difficult to evidence hostility to gender, so I understand why those offences have been left outside the amendment’s scope. I understand the very strong views of Opposition Members that the amendment should be made without including them, but I worry what sort of message we would send as a Parliament if we made crimes such as domestic abuse and sexual violence—some of the most serious crimes against women and girls—exempt from an aggravating sentencing factor of misogyny. Those concerns, which have been set out by the Law Council, Rape Crisis and Women’s Aid, are the reason I cannot support the amendment.
The findings of the Law Commission, which I believe began its consultation with the expectation of supporting such a change, show why it is so important that changes to law are based on evidence so that we can focus on the most effective measures, which is why I welcome the Home Office’s public consultation on the issue of sex for rent—
Caroline Lucas (Brighton, Pavilion) (Green)
The Bill is dangerous and undemocratic and has united a broad church of organisations in opposition. Even if all the Lords amendments that I rise to support today are agreed to, there would still be a huge amount in it that causes me concern. Our task today, though, is to try to improve what is before us.
Lords amendment 72 would play a key role in updating our existing hate crime laws to give our police forces and courts the vital tools that they need to tackle violence motivated by misogyny. By including sex or gender in hate crime reporting and sentencing, with exceptions for more serious sexual violence offences to ensure that sentences for them remain higher, it would give our police and courts the ability to track and hold to account those who target people for crimes purely because of who they are. As we have heard, selected police forces have already identified when crimes are motivated by hatred of someone’s sex or gender. They have already seen an increase in victims’ confidence to come forward and report those crimes.
The Government’s position is that making misogyny a hate crime goes against the Law Commission’s advice, but as the hon. Member for Walthamstow (Stella Creasy) set out extremely eloquently, that is not entirely correct; the Law Commission was not commenting on the Bertin amendment. In line with concerns raised by the Law Commission about changing the burden of proof in relation to sexual or domestic offences, the amendment creates a carve-out whereby it would not apply to such offences. It uses the wording “sex or gender”, which is in line with the approach proposed in the Law Commission’s report on hate crime, and which would ensure that all crimes motivated by misogyny, or indeed misandry, are captured by the new law rather than leaving loopholes that could undermine the system.
This simple but powerful change would send an incredibly important signal. It would be part of the cultural change that we have been talking about. It would give women and girls the same protections that we give to others who are targeted solely because of who they are. It would show how seriously we take crimes motivated by misogyny. Frankly, the Government have been kicking the issue into the long grass for too long. It is time to step up and do the right thing by women and girls.
I will speak briefly to Lords amendments 114 to 116. As numerous organisations from Liberty to the End Violence Against Women Coalition and the Runnymede Trust attest, serious violence is a human rights issue. It devastates communities across the country and demands an evidence-based approach that works with, rather than against, those communities that bear its brunt. There is simply no evidence that serious violence reduction orders will protect communities from harm, however, and there is a wealth of evidence that they will sanction injustice and discrimination and risk fracturing public trust in public services and in the authorities. There is a risk that they will entrench the harms of ineffective, suspicion-less stop and search and that they will expand the injustice of the doctrine of joint enterprise, with a disproportionate effect on over-policed and marginalised groups, including young women experiencing domestic abuse and criminal exploitation.
It therefore seems entirely right and sensible that a robust pilot be carried out and that decisions to roll out SVROs nationally be informed by its findings and come before Parliament, as Lords amendments 114 to 116 propose. The amendments, which I support, reinstate democratic oversight of laws engaging rights and equalities issues and affirm the importance of an evidence-based approach to tackling serious violence.
I turn to Lords amendments 141 and 142. I have received emails from a number of constituents about how tens of thousands of women are being propositioned by predators offering free or discounted accommodation in exchange for sexual favours. Only one person has ever been charged for that kind of crime, because the law is woefully inadequate, leaving men to get away with sexually exploiting renters in need of a home. The Lords amendments specifically criminalise such landlords; they also implement financial penalties on websites and platforms. That is why they have my support.
Laura Farris (Newbury) (Con)
I will confine my remarks to Lords amendment 72. Let me to say at the outset that I understand the laudable intention behind it, but I want to explain why, with the greatest of respect, I believe it to be misconceived.
It was the murder of Stephen Lawrence that set the origins of hate crime in train. He was killed in 1993, and hate crime became a criminal offence in 1998 under the Crime and Disorder Act. There was some confusion about the chronology earlier, but it is set out in paragraph 1.3 of the final report of the Law Commission. A hate crime is not a stand-alone offence, but it elevates another crime, most commonly assault, to an aggravated offence under section 28 of the 1998 Act if the prosecution can show that the offence was motivated wholly or partly by hostility towards another group. In the following year, the Court of Appeal finessed the test that applied, saying, in The Director of Public Prosecutions (DPP) v. Pal, that the prosecution must prove some demonstration of that hostility, most often a form of language that was used at the time when the crime was committed.
There are two reasons why I do not think that the amendment works in the context of violence against women. First, it sets the jury off down the wrong line of inquiry. Do we really want to legislate for a system that invites juries to judge the seriousness of an offence such as stalking, rape or domestic abuse through the prism of whether the perpetrator demonstrated hostility towards women? Even leading juries down that line of inquiry risks making acquittal more likely if they conclude that the defendant harboured no particular ill will towards women. When would we find examples of that kind of language? It would be much more likely in “stranger” contexts, and less likely when the victim had been on Tinder that night, had been out at a club or had been drinking, and this took place were behind closed doors—we know that that accounts for about 90% of serious sexual assaults—and we already have the greatest difficulties in securing convictions in such cases. Rape Crisis has said that
“the motivation of hostility is much more likely to apply to stranger perpetrators, and here we see the hate crime framework as propping up harmful myths about violence against women.”
My second reason concerns causation. Many offences against women are not motivated by hatred. Subtle, insidious factors are often at play—power, control, obsession, revenge, jealousy—none of which would meet the threshold for hate crime, but which are no less toxic or deserving of criminal punishment. In fact, we as a Parliament have worked collectively in the last decade to see the treatment of women through a more expansive lens. We recognised these complex causes when we passed the Domestic Abuse Act 2021, with its provisions on revenge porn and coercive control, and when we criminalised stalking in 2012. It is with that in mind that I am regretfully of the view that making misogyny a hate crime would be regressive rather than progressive, and would deliver less, not more, justice for female victims.
Alicia Kearns (Rutland and Melton) (Con)
I recently had a conversation with a constituent who has introduced reporting of misogyny as a crime in Nottinghamshire, where she is a senior police officer. She says that it has progressively changed the culture. Does my hon. Friend agree that the culture may change in police forces when acts of misogyny are recorded at an earlier stage?
Laura Farris
My hon. Friend makes an excellent point, and it is the point that the hon. Member for Walthamstow (Stella Creasy) was making about policing. It is true that the police have responded positively in reporting such incidents, but it is also true that the pilot has shown no increase in the number of prosecutions or successful convictions, with which we are primarily concerned. It is an enduring concern that we do not do enough to record violence against women and girls in general, and I think we ought to do more in that regard.
Let me address my final comments to the hon. Member for Croydon Central (Sarah Jones), who said in her opening remarks that this was a simple and straightforward step. The hon. Member for Bath (Wera Hobhouse) said that the evidence was “obvious”. Let me gently point out that prominent feminists in the House, including the Mother of the House, do not support this proposal for exactly the same as reasons as me. I hope that the closing remarks from the Opposition will reflect the fact that there is a respected strain of feminist opinion that does not take the same view as the hon. Member for Croydon Central.
Nick Fletcher (Don Valley) (Con)
The Bill contains many good provisions, but I will confine myself to the subject of the serious violence reduction orders. Let me start by thanking the House of Commons Library for its report of September 2021, “Knife Crime in England and Wales”, which has been very helpful.
In 2010, stop and search was widely used in the fight against knife crime. It succeeded not only in catching people carrying knives and offensive weapons, but in deterring people from carrying them. However, its success was limited, as it was scaled down because many felt that its implementation was disproportionate and reduced community trust. If it did indeed reduce community trust, especially in the police, it was counterproductive. As a result, by 2020 there were fewer than half as many stop and searches as in 2010: in fact, the reduction was some 56%.
Did this lead to a reduction in the number of fatal stabbings in London? I am all too aware that we know the answer to that question. No, it did not; it had the opposite effect. The number of fatal stabbings increased by 81% in London. Ten teenagers were fatally stabbed in 2010, and a decade later that grim statistic was 27. Twenty-seven teenagers with their lives before them had those lives snuffed out, and for what? If stop and search had not been scaled down, how many of those young men would be alive today? How many lives have been lost because of the reduction in stop and search? I ask again, how many? Who here wants to see a life taken away? Nobody does, but I believe that opposing stop and search has led to that.
Increasing stop and search with serious violence reduction orders would be likely to reduce knife crime, but it must be done along with changes in police practice to avoid the mistakes of the past. The Government’s amendment to Lords amendment 116 will play an important role in that. By collecting statistics on who is affected by SVROs and what their impact on reoffending is, we can ensure that police officers are using this tool in a specific and targeted way. What of outside London? It will help there too. Sadly, what we have seen in London seems to be spreading to cities and communities beyond our capital. In the past year in South Yorkshire, we have seen an epidemic of shootings and stabbings.
What has happened to bring this about? What can be done to stem this tide and bring lawfulness back to our communities? The answer is “many things”, and we all have a part to play. We in this House must vote for the Bill. It needs to become law so that the police have the tools that they need to combat crime and disorder. Outside the House, each of us can play an important part as well. We can work with the police. If they want to stop and search us, we should let them do so. It will save lives. Stop and search might have saved the lives of two young men who were stabbed to death last month locally.
I say this to every parent in the country, and to every person who is lucky enough to have the responsibility of bringing up children. We are role models to our children, so we should all act like role models. We should all set a good example for them to follow. We should live our lives responsibly, and we should be the good role models in their lives—not some local thug, and definitely not a glamorised thug on television. The best way to teach a child how to behave is to live our lives in the right way. We all have a part to play in making our communities better week by week, year by year. Let us work together, and let us work with the police. I commend this Bill.
Richard Graham
I find this fascinating. So often in these debates, it is entirely understandable for the Opposition to say that the Government have not been in listening mode, and therefore amendments from the Lords have been turned down. Today, however, the evidence is striking. The Government are accepting, I believe, 22 Lords amendments on a wide range of matters, including emergency workers, domestic abuse, breastfeeding, common assault, data, hare coursing and child cruelty. I think that that is a good indication of both Houses working together.
I want to say a few words on Lords amendment 70 on spiking, and the Government amendments in lieu of it, and then on Lords amendment 72 on misogyny. On spiking, I am grateful to the Minister for his kind words about my 10-minute rule Bill, which is supported by Members from five different parties in this House, and which I think has helped to ensure that spiking is covered in this Bill. Certainly, when I originally proposed it, the thinking was that that would not be possible, so I recognise the movement that the Government have made.
The specific reason that I do not think the Lords amendment does the job that it could do is that it specifically calls for an amendment to the offence under section 61 of the Sexual Offences Act 2003. The truth, as we covered in the 10-minute rule Bill, is that there is more to spiking than sexual offences, although they are a big part of the problem. I am therefore satisfied that the amendments in lieu tabled by the Government will make a significant difference to the issue of spiking. As the Minister has said, it is clear that this behaviour is not exclusively linked to sexual activity, and the requirement on the Home Secretary to provide a report on the wider issues is therefore important. I believe that the Minister’s commitment—he might want to nod to repeat it—that the Home Secretary will be required to publish and lay the report before Parliament within 12 months of the Royal Assent of this Bill, is significant.
I note that the Minister has also asked officials to explore the need for a specific criminal offence to target spiking directly. I believe that this would change patterns of behaviour. It would have a preventive effect, and it would give young people—particularly young women—more confidence, especially at university. I would be delighted if he was able to commit to come back to this within six months of Royal Assent with a decision on whether to proceed with this further specific criminal offence, and I hope that he will say something on that in his winding-up speech. I have decided to pull my 10-minute rule Bill from its Second Reading, which had been proposed for 18 March, on the basis that the Minister has given that commitment, and I hope he will give a further one in his winding-up.
On Lords amendment 72, we have heard from distinguished colleagues including my hon. Friend the Member for Newbury (Laura Farris), the hon. Member for Brighton, Pavilion (Caroline Lucas), my hon. Friend the Member for Rushcliffe (Ruth Edwards) and the hon. Member for Walthamstow (Stella Creasy)—four powerful advocates balancing strength of feeling with legal expertise on this issue. My own feeling is that, since I have just explained why I believe that a spiking Bill will help in terms of having a preventive effect and giving young people more confidence, there is something to this and I am glad that the Minister will come back and report to the House—
Kit Malthouse
With the leave of the House, I shall respond to the debate. I am grateful to all the Members who have spoken, and I hope that what has been exhibited is our shared concern for many of the issues we have talked about today, not least the safety of women and girls, which has naturally and rightly dominated the debate. A number of undertakings were sought from me, latterly by my hon. Friend the Member for Gloucester (Richard Graham), who has done so much work on the offence of spiking. I am happy to give him a commitment that we will come back within a six-month period, as he requested. Obviously we will be producing a wider report within 12 months, but we should be able to give him an indication at the time.
My right hon. Friend and neighbour, the Member for Romsey and Southampton North (Caroline Nokes), asked for a specific legislative vehicle, but I am afraid that I cannot preview the Queen’s Speech, much as I would love to. I cannot give her a specific vehicle, but I can tell her that we will be responding to the Law Commission’s report within six months. We are giving serious consideration to the work streams that I have talked about. As I have said to her, it is my personal view that we have an issue that needs to be addressed, either through public order offending, through recording or through a specific offence. I hope that on that basis she will feel able to support us this evening.
The work that we will be doing in this area sits alongside an awful lot of other work looking at the issue of street harassment, including our safety of women at night fund and the safer streets fund. In September we launched the new StreetSafe tool, allowing the police to access greater information and data about where people feel, or indeed are, unsafe. I am told that more than 12,000 reports have already been submitted through that line. In December, the College of Policing published new guidance showing what the police can and should do when they receive a report of public sexual harassment. The criminal offence is already available and other protective tools can be used. As I hope my right hon. Friend the Member for Romsey and Southampton North has just been to see, we have also launched a new communications campaign this evening. There is an awful lot to cover in this first group of amendments, but I hope that we have looked at a wide range of offences and I am grateful to my hon. Friend the Member for Gloucester for pointing out that we have been listening. The number of amendments we have accepted weigh in the balance of support for the votes that we are about to undertake.
On the misogyny issue, I commend the motivation behind the set of amendments that we are sadly declining. We understand people’s genuine concern about the safety of women and girls in the public sector, and indeed we share it. We are determined to make significant inroads in this area. As my right hon. Friend the Member for Basingstoke (Mrs Miller), my hon. Friend the Member for Calder Valley (Craig Whittaker) and my hon. Friend and neighbour the Member for Newbury have pointed out so effectively, we cannot in all conscience support an amendment that the Law Commission and other large groups interested in this area believe runs the risk of damaging the cause of women’s safety. That puts an obligation on us to bring forward alternatives that will do something positive for women’s safety. That battle is under way, and we commit to doing exactly that.
Lords amendment 2 agreed to.
Lords amendment 70 disagreed to.
Government amendments (a) and (b) made in lieu of Lords amendment 70.
Motion made, and Question put, That this House disagrees with Lords amendment 72.—(Kit Malthouse.)
The Parliamentary Under-Secretary of State for the Home Department (Tom Pursglove)
I beg to move, That this House agrees with Lords amendment 1.
Madam Deputy Speaker (Dame Rosie Winterton)
With this it will be convenient to discuss the following:
Lords amendment 58, and Government motion to disagree.
Lords amendment 107, and Government motion to disagree.
Lords amendments 61 to 69, 94 to 106, 121 to 140, 144, 145, 149 to 152 and 155 to 161.
Tom Pursglove
There are no less than 161 Lords amendments for the House to consider this evening. To ensure that as many hon. and right hon. Members as possible who wish to speak can do so, I do not propose to detail all the amendments in this group, as many were uncontentious and will have the support of the whole House. I will, however, outline the key Lords amendments in this group brought forward by the Government, before commenting on the two amendments in this group that were agreed by their lordships contrary to the Government’s sound advice.
I know that MPs from across the House will want to share our support for the family and friends of PC Andrew Harper and their campaign to strengthen the law so that no other families go through the same heartbreak they have suffered. We were therefore pleased to announce our amendment in the other place, following our commitment to look at what action may be possible in this area. Lords amendment 1, known as Harper’s law, will impose mandatory life sentences on those convicted of unlawful act manslaughter where the victim is an emergency worker acting in the exercise of their functions as such a worker. The amendment will apply to adult offenders and 16 and 17-year-olds. The amendment will also contain judicial discretion for the court to impose an alternative sentence in exceptional circumstances.
In the case of Andrew Harper, the court did not impose life sentences on any of the defendants. Each received sentences of between 13 and 19 years for manslaughter—sentences that were subsequently upheld by the Court of Appeal. They will all be incarcerated for a significant period, but the Government believe that where a person is convicted of unlawful act manslaughter and the person who has been killed is an emergency worker, that should be punished with life imprisonment, except where there are exceptional circumstances relating to the offender or the offence.
The successful campaign of Lissie Harper, PC Harper’s widow, and the Police Federation drew this issue to the Government’s attention, and we are grateful for that. Lissie has shown incredible bravery, fortitude and courage in campaigning for this change, and I know that it has had a profound impact on Members from all parts of the House and on our constituents in communities across the country, who have come together to support this change.
Barry Gardiner (Brent North) (Lab)
Will the Minister simply confirm that where an emergency service worker is off duty but an emergency occurs and they respond to that emergency, Harper’s law will apply to them?
Tom Pursglove
I am grateful for the hon. Gentleman’s question. If the scope of this measure was restricted to mandatory life sentences in situations where the emergency worker was directly responding to the unlawful act at the heart of the offence, it would not capture all the cases in which this Government believe the mandatory life sentence should apply. For example, offender A injures a defendant during a fight and, in their attempts to escape the scene, they run over the responding paramedic, who is on their way to save the life of the person injured by person A. In another scenario, offender B commits exactly the same actions, but in fleeing the scene, they run over and kill a police officer responding to a separate incident a mile down the road.
Both defendants have committed the same unlawful act, and in the same dangerous circumstances, and both have caused the death of an emergency worker as a result, but the grounds for implementing the mandatory life sentence would be based on the pure happenstance that one emergency worker was responding to that specific unlawful act, and the other was not. That disparity in sentencing would not accurately reflect the Government’s aim to ensure that those who commit the unlawful act manslaughter of emergency workers who are exercising their functions face a life sentence.
It is also worth setting out for the House’s benefit who counts as an emergency worker. We will define emergency workers in the same way as the Assaults on Emergency Workers (Offences) Act 2018 and section 68 of the Sentencing Act 2020. This definition includes police officers, prison officers, National Crime Agency officers and those employed in fire services, search and rescue services and frontline NHS health services, among others.
Barry Gardiner
The Minister has given us a great deal of information, but has not actually answered my specific question. I am happy for the Minister to continue, and if he can get assistance from the Box and answer it later, I will be very content.
Tom Pursglove
If I may, in the wind-up, I will happily clarify for the House’s benefit the point that the hon. Gentleman has raised. The points that I have put on the record are relevant, but I want to ensure that the House has complete clarity around those matters as we move forward.
Sir Robert Neill (Bromley and Chislehurst) (Con)
The Minister is absolutely right to pay tribute to Lissie Harper and to our emergency services. He also makes the point that these are not isolated incidents. Will he take on board the broader point that, although there is obviously great support for this piece of legislation, the area that has not been addressed is the difficulty that juries face in deciding whether the offence—the facts made out—is murder or manslaughter?
I hope that the Minister will revisit a missed opportunity, which is the definitions of homicide under our current law. The Law Commission and others have suggested that they ought to be revisited because they create some difficulty and uncertainty, particularly in the difficult area between the intention to kill or to commit grievous bodily harm and gross negligence at the top end. I hope that the Government will consider revisiting the Law Commission’s work on that, because other jurisdictions have different categories of homicide, rather than the perhaps now old-fashioned categories of murder and manslaughter. We might then find it easier for juries to more accurately reflect the culpability by their verdicts, which is what we want to achieve.
Tom Pursglove
I am grateful for my hon. Friend’s observations. We touched on those matters when we spoke last week when we engaged in advance of these proceedings. I said to him that that was something that I would certainly be willing to take away and consider, and I am willing to do that. He advocates that the Law Commission looks at the issue of homicide in the round and, as I say, I am happy to reflect on and consider that matter in the fullness of time.
To return to the question of the hon. Member for Brent North (Barry Gardiner), I am keen to provide the House with as much information as possible and to further clarify the position around it. If I understand his question correctly, it does apply to emergency workers who are off duty, but they must be acting as an emergency worker—off duty but still responding to an incident. I hope that that provides the House, in the correct terms, with the clarity that it is seeking on that point.
Ruth Edwards
Can I clarify whether the provisions will apply to volunteer emergency services workers, such as special constables or first responders?
Tom Pursglove
Again, I am grateful to my hon. Friend for the question. If I may, I will touch on those matters in the wind-up, because I am conscious that hon. Members have quite a lot of questions and that there are quite a few hon. Members who are keen to speak. I will gladly pick up those points in the wind-up later when we have concluded.
Lords amendment 104 places on statute an aggravating factor for assault committed against anyone providing a service to the public. It will send a strong message that assaults against public-facing workers are totally unacceptable and will reinforce the seriousness with which the courts treat such offences. It has been welcomed by those in the retail sector who have campaigned on this important issue. I pay tribute to my hon. Friend the Member for Stockton South (Matt Vickers), who has assiduously argued the case in this House for a change in the law in this area. In earlier proceedings, the House expressed a strong desire for such a change and I am proud that the Government are helping to deliver that.
In earlier stages of the Bill in this House, there were also calls for the Government to raise the maximum penalties for child cruelty offences. For years, my hon. Friend the Member for Tonbridge and Malling (Tom Tugendhat) has campaigned tirelessly for Tony’s law, which is named after Tony Hudgell. As a baby, Tony was abused to such an extent by his birth parents that he is severely disabled. No child should suffer such appalling abuse, especially from those who should love and care for them the most. It is right to ensure that, in such cases, the punishment can fit the crime. Such criminality is truly shocking and heinous.
Tom Tugendhat (Tonbridge and Malling) (Con)
May I just place on record the extreme gratitude of Tony’s real parents—the parents who actually love him—who have cared for him since a few days after he was born and have restored him to an extraordinary and loving child? May I also place on record my enormous gratitude to the Lord Chancellor for his work on the matter, and to the Minister and the Under-Secretary of State for Justice, my hon. Friend the Member for South Suffolk (James Cartlidge), who are both on the Front Bench, for showing the courage and determination to make sure the measure passes? This changes not, sadly, Tony’s life—thank God, he has been cared for well—but, with any luck, the lives of many in deterring such awful crimes from ever happening again.
Tom Pursglove
My hon. Friend puts the case very eloquently, and it is a privilege to be able to stand at this Dispatch Box and announce these changes in the House. He has been a tireless campaigner on this issue, and this change is a great credit to him, to Tony and to his adopted family, with their incredible care and their advocacy on these issues. I think all of them can be hugely proud of the work they have done to bring about this change. I am sure the House will agree, especially in the light of more recent appalling cases, that the courts should, where necessary, have the fullest range of sentencing powers available to deal appropriately with those who abuse children.
Lords amendments 121 and 122 extend the disregards and pardons scheme relating to historical convictions for same-sex sexual activity. The disregards scheme, introduced by the Protection of Freedoms Act 2012, enables men with historical cautions and convictions for certain gay sex offences to apply to the Secretary of State to have their cautions and convictions disregarded. If successful, the applicant is treated in all circumstances as if the offence had never occurred, and also receives an automatic pardon. The Government accept that the scope of the current scheme is too narrow, as it is largely confined to the now repealed offences of buggery and gross indecency between men, and excludes other repealed offences that may also have been used to criminalise same-sex sexual activity. Lords amendment 121 will therefore extend the scheme to enable individuals convicted of same-sex sexual activity under any repealed or abolished offence to apply to have that caution or conviction disregarded. Lords amendment 122 ensures that pardons provisions will reflect the extension. Taken together, these amendments will help put right the wrongs of the past when people were unjustly criminalised simply on the basis of their sexuality.
In their lordships’ House, there was significant debate on the issue of imprisonment for public protection. Lords amendment 101 will put the Secretary of State’s policy of automatic referral of applications to terminate the IPP licence on to a statutory footing. This would enable all eligible IPP offenders to be referred to the parole board for consideration of a licence termination at the appropriate time.
Lords amendments 61 to 69 deliver the Government’s commitment, made in our action plan for animal welfare, to crack down further on illegal hare coursing. They do this by broadening the circumstances in which the police can investigate and bring charges for hare coursing-related activity, and by increasing the powers of the courts for dealing with this activity on conviction. In bringing forward these amendments, the Government have acted swiftly and decisively in response to the widespread concern about the impact of hare coursing expressed by hon. Members. I pay tribute to my right hon. Friend the Member for Scarborough and Whitby (Sir Robert Goodwill), who raised this issue eloquently in Committee, and my hon. Friend the Member for North East Bedfordshire (Richard Fuller) for his private Member’s Bill on this subject. They have both been assiduous champions of this issue on behalf of their rural communities.
Let me turn to the two amendments in this group on which we have tabled motions to disagree. Lords amendment 58 seeks to confer certain police powers on the national food crime unit of the Food Standards Agency. We agree that food crime is a serious issue, costing billions of pounds each year, and it is right that the FSA should be empowered to respond accordingly, improve resilience and reduce the burden on police forces, but this is not the way to legislate on this issue. We are dealing here with the intrusive powers of the state. As such, we need to ensure that any exercise of PACE powers—powers under the Police and Criminal Evidence Act 1984—by the FSA would be necessary, proportionate and legitimate, with suitable governance and accountability arrangements in place. Amendment 58 puts the cart before the horse. That said, we are committed to working with the FSA, its sponsor the Department for Health and Social Care, and other partners to frame legislation that is fit for purpose.
Finally, Lords amendment 107 would allow local authorities to establish and maintain secure academies, either alone or in consortia. The parliamentary Under-Secretary of State for Justice, Lord Wolfson of Tredegar, made it clear in the other place that it would be legally possible for a local authority to set up an entity capable of entering into academy arrangements directly with the Secretary of State, and that is not prevented by the Academies Act 2010—so there is no legal bar, rendering the amendment unnecessary. Government policy is that academy trusts are not local authority influenced companies, and our position on secure schools is to mirror the procedures of academies. However, to repeat the commitment that Lord Wolfson made in the other place, my Department will assess in detail the potential role of local authorities in running this new form of provision, before we invite applications to run any future secure schools.
Sarah Champion (Rotherham) (Lab)
I hear what the Minister is saying, but looking into something is not the same as giving a clear commitment, here and now, that local authorities can run those secure academies.
Tom Pursglove
I am always grateful to the hon. Lady for her interventions, and I repeat my point: we do not believe there is a barrier, but as I say, we will review the matter in the way I have set out to the House. We of course recognise that local authorities have a long established role in children’s social care and the provision of secure accommodation for children and young people. In particular, the secure children’s home legal framework may present a more straightforward route to the expansion of local authority involvement in the provision of secure accommodation than does the 16-to-19 academies framework. I reiterate: there is no legal bar, and as such the amendment must be unnecessary. Fortunately, there is much agreement on this group of amendments in the House, and I will pick up on points raised during the debate when I wind it up.
Ellie Reeves (Lewisham West and Penge) (Lab)
It is a pleasure to follow the Minister. I will not speak to all 58 amendments under debate, as some are straightforward and many in this group at least—I am sure the Minister will be pleased to hear—have full support from the Labour Benches. We particularly welcome Lords amendments 1 and 150, which introduce Harper’s law. That has the Opposition’s full and strong support, and I join the Minister in paying tribute to Lissie Harper’s extraordinary and powerful work. When facing pain and grief unimaginable to most of us, she has campaigned for reform to protect our protectors. My right hon. Friend the Member for Torfaen (Nick Thomas-Symonds) and my hon. Friend the Member for Croydon Central (Sarah Jones) met Lissie Harper during her campaign, and I know they are particularly glad to see these amendments introduced by the Government. It is right that emergency service workers who put themselves at risk to keep the rest of us safe are protected by the strongest shield that the criminal justice system can provide.
We are also extremely pleased to see Lords amendments 27, 28 and 151, which will introduce Tony’s law, increasing penalties for those who commit child abuse. Again, I share the Minister’s admiration for the inspiring work of young Tony Hudgell and his loving parents, Paula and Mark. I also pay tribute to the hon. Member for Tonbridge and Malling (Tom Tugendhat), and my hon. Friend the Member for Rotherham (Sarah Champion) who have both done fantastic work throughout the passage of the Bill to increase protections for children, and supported Tony’s law in Committee. Cases as atrocious and horrifying as Tony’s are thankfully extremely rare, but it is right that when they do come before the courts, the judiciary can impose the full range of penalties that reflect the gravity of such horrific offending.
The Opposition welcome Lords amendment 104 which states that if someone who is carrying out a public service, such as a retail worker, is assaulted, the fact that they were carrying out a public service at the time of the offence will be an aggravating factor in sentencing. I am glad the Government have finally listened to the Opposition, trade unions and trade bodies who have been calling for greater protection, particularly for our shopworkers who have been unsung heroes and kept our country running throughout the pandemic. We pay particular thanks to the efforts of the Union of Shop, Distributive and Allied Workers, the Co-operative party, The British Retail Consortium, the Association of Convenience Stores, and Tesco, for their fantastic campaigning.
I pay tribute to my hon. Friend the Member for Nottingham North (Alex Norris) for his tireless work on this issue in recent years. I also pay tribute to the efforts of my hon. Friend the Member for Croydon Central and my noble Friend Lord Coaker, who throughout the Bill’s passage pushed for tougher penalties for those who assault shop workers.
Sarah Champion
Does my hon. Friend agree that it is illogical that the Government will not make the simple concessions for which the Opposition are asking to clarify the situation in favour of local authorities?
Ellie Reeves
I agree with my hon. Friend. Local authorities have a tremendous amount of experience in caring for vulnerable children with a high level of need in a secure environment. As she said in Committee:
“It makes no sense to exclude this knowledge and learning from the provisions in the Bill.”––[Official Report, Police, Crime, Sentencing and Courts Public Bill Committee, 15 June 2021; c. 567.]
Indeed, the failures of secure training centres that we have seen should encourage the Government to widen the pool of expertise as much as possible when moving to this new model of child detention. Charlie Taylor stated in his 2016 report:
“Children who are incarcerated must receive the highest quality education from outstanding professionals to repair the damage caused by a lack of engagement and patchy attendance.”
Ms Marie Rimmer (St Helens South and Whiston) (Lab)
Does my hon. Friend agree that children who commit crime are vulnerable, and in need of positive attention and support to learn what is wrong and what is right, and what is acceptable in society, so that they may learn to become good citizens and contribute positively to society?
Ellie Reeves
I absolutely agree. My hon. Friend speaks so passionately about this issue. It is absolutely right that those in secure academies are given the support that they need, and that they receive not just a good education but the very best that is available to them. To that end, we believe that local authorities must explicitly be brought into the fold when considering who will run these academies. Although we can argue about whether there is a legal bar, the fact is that having it explicitly in the Bill would put it beyond all doubt that local authorities could run these secure academies, and that education policy would not be a barrier to their doing so.
That is a small clarification, which the Government do not appear to oppose in practical terms, but it would send a signal to potential providers not only that local authorities are technically allowed to bid but that, given their wealth of experience in this area, their bids would be positively welcomed. The failures across the youth estate have been shocking, and the Government need to bring in providers with the necessary expertise and ethos to support children in secure settings, to help to address those failings. I hope that, for that reason, the Minister can today commit to their explicit inclusion as possible providers.
Although we are in agreement with the Government on the majority of the proposals in this group and welcome them, further clarification and action on some aspects are needed. Our support here does not detract from the very serious failings in other parts of the Bill, and the failure to make its focus the very real epidemic of violence against women. If the Government were fully serious about the issues facing our society, they would make that one of the main focuses of the Bill and drop the poorly thought-out draconian measures on protests and further police powers.
Sir Robert Neill
I am grateful for the chance to speak in the debate. This area of the Bill raises a number of important criminal justice matters, and I am grateful to the Minister for his very open approach to engaging with me and others around it. I have much sympathy with both him and the shadow Minister, in observing that there are sensible things that I hope we will broadly agree upon on most of this. I hope that I can make one or two observations on how we might take things forward once we have passed the legislation.
I have made my point in relation to the manslaughter of emergency workers, and I do not seek to repeat it, save to say that the Justice Committee has looked at the law of homicide and I think that we are in danger of missing an opportunity there. That does not mean that what is proposed is wrong, but we should be more ambitious than that, because many other common-law jurisdictions have reformed their law of manslaughter in a way that makes it more comprehensible to a jury. I looked with particular care at, for example, the judge’s directions in the PC Harper case and others. Even with the most impeccable directions it is not easy to follow now, against the factual background that we often have. We ought to be prepared to look at evidence from other common-law jurisdictions going forward.
There was an argument, of course, that the victim being an emergency worker is always an aggravating factor, but I understand the point about putting it on the statute book, given the particular value and weight that we place upon the service that these emergency workers have done. Similarly, I welcome the provision for aggravation in relation to assaults upon public service workers. I visited one of the local Co-op stores in my constituency and met some of my constituents who have been assaulted and threatened pretty appallingly by people. They do a great job for the public, and I think that we are right to give them a measure of protection too. I welcome the Government moving on that.
I will just turn to two other matters, one of which concerns IPP—imprisonment for public protection—sentences. The Minister knows that the Justice Committee is currently drawing up a report on this issue. We heard most compelling evidence on this situation, which Lord Brown, a former senior law Lord, described as an enduring blot on the British justice system. I paraphrase his words—that may not be exact—but that was the essence of it. I welcome what the Government are doing. It is a step in the right direction, but we need to ensure that those who are capable of being released safely are processed through the system much more quickly. That has been a blot on our system for too long. Resources have not been made available and all too often the provision to do the courses that were necessary for them to meet the trigger levels for release were not available. The danger was—we heard very powerful evidence on this from clinical psychologists and others—that sometimes the failure of the system to deal with the underlying issues which caused them to be subject to a IPP in the first place had now made them more dangerous to release, because they got to a degree of institutionalisation which makes it harder for them to be reformed. We need to be very alert to that.
Sarah Champion
I am very grateful to the hon. Gentleman for giving way and for starting the inquiry. One piece of written evidence received is from one of my constituents, who is suffering under an IPP with no hope of getting out and no understanding of why he is stuck there. I fully accept and agree with what he is saying. The impact that this is having on people’s mental health, the lifelong torture that these people are being put under, is just totally unacceptable. Of course one should serve one’s time, but I cannot even imagine what having an indefinite time ahead must do to someone’s psyche.
Sir Robert Neill
I am very grateful to the hon. Lady. We heard very compelling testimony on precisely those points. That is not to say that some people who are serving IPP sentences have not committed very serious offences and that some of them, because of their background, do not present a very real threat to the public. It may well be that in certain cases it will be a very long time before they are capable of being released, if ever, but there are many others who fall below that threshold who are trapped unfairly in the system, and who ought to be capable of being looked at afresh, processed and released safely into the community, but we have not yet managed to do that. The Government’s amendment holds the feet of the Parole Board to the fire on that, which is good so far as it goes.
The other point I want to make is that we heard compelling evidence from Lord Blunkett, the originator of the IPP sentences, who accepted that it had not worked out as he had intended. That was powerful and very humbling testimony. There was also very powerful testimony from Lord Thomas of Cwmgiedd, the former Lord Chief Justice, who has taken up this cause. He made the point that what we are doing so far is helpful. Improving the ability of people to access courses and gain the threshold for release is helpful and that is what the Government are, through their amendment, seeking to do. The need to review every case, rather than leaving them in limbo, is really important so we do not get drift.
However, there are two things we are not yet doing. We are not tackling the issue of needless recall. Recall is an important tool to have while we have a licence, but there is a real concern that in many cases the trigger for the recall bears no proportion to either the index offence which had caused the original sentence or the amount of time that might then be spent inside thereafter. In some cases, there was a real concern that recall was triggered for comparatively administrative breaches of the licence, rather than substantive ones linked to reoffending or increasing risk. I urge Ministers, when the Parole Board looks at each case as it will now be obliged to do under the legislation, to ensure that we do not have, frankly, risk-averse recalls. It is always a terrible balance to strike and I am very conscious of the burden on the Parole Board and probation officers in doing that, but we ought to ensure it is not done on a tick-box basis just to make sure we have protected ourselves against criticism—almost a back-covering exercise, I hate to say.
There is a temptation for that in the current arrangements, but we can do better than that and I hope we will. We ought to be assessing whether the breach suggests there is an ongoing risk of reoffending or a danger to the public. That ought to be the test.
Sarah Champion
I want to start with a positive and then I will move on. I begin by welcoming Lords amendment 98, Tony’s law, which increases the maximum sentences for causing or allowing a child or vulnerable adult to suffer serious injury or death. That change to the law follows the tireless campaigning by the parents of Tony Hudgell. As a baby, Tony suffered such serious physical abuse by his birth parents that both of his legs had to be amputated and he nearly lost his life. The sentences for cases such as Tony’s must reflect the lifelong trauma and harm that was inflicted on him.
I campaigned for that change last year, following in the wake of Tony’s parents’ MP, the hon. Member for Tonbridge and Malling (Tom Tugendhat), and I thank the Minister for listening to me, the hon. Member and to Tony’s family and others who have campaigned for the change in the law. It is so necessary and I am so grateful that that has now been adopted.
And now for the less positive part. I have to speak to Lords amendment 107, which is designed to ensure that local authorities can run secure 16 to 19 academies, either alone or in consortiums. I worked with Article 39 and the National Association for Youth Justice to table an amendment on this in the Bill Committee. I was delighted when peers voted in favour of this vital amendment in the other place, as tabled by Lord German and Lord Marks, and I ask the Minister to please keep it in place. As he knows, I have a huge amount of respect for him because he is very fair and because he listens, but as I said, local authorities are also clear that they need a very strong signal from him that they are eligible. This is not me, but the local authorities asking for that clarity. As I said, I find it illogical that he will not accept this amendment.
In December 2016, the Government committed to phasing out child prisons, young offender institutions and secure training centres and replacing them with a network of secure children’s homes and secure schools—now renamed secure 16 to 19 academies. I welcome that progress, because it is very clear that secure training centres were not fit for purpose, as the Youth Justice Board has conceded. However, when the Government looked for an organisation to run the first secure school, they barred local authorities from the tendering process. That decision was heavily criticised by many organisations that specialise on these issues. I find it illogical.
Excluding local authorities risks repeating the serious mistakes of the past, when private providers were contracted to operate secure training centres despite having no prior experience of looking after vulnerable children. There is clear, tragic evidence of what that can lead to. Two children, Gareth Myatt and Adam Rickwood, tragically died following restraint in secure training centres run by the private firms G4S and Serco, respectively, in 2004; the High Court later found that an unlawful restraint regime had persisted in the centres for at least a decade. In a 2016 BBC “Panorama” documentary, staff were filmed verbally and physically assaulting children at the Medway secure training centre, managed by G4S. One manager boasted of stabbing a child’s leg and arm with a fork; another recounted deliberately winding up a child so that he could physically assault him. No child deserves to suffer such abuse, no matter their past or present behaviour.
Local authorities are best placed to run secure 16-to-19 academies because they have experience of education, secure schools and, of course, the local social services that manage and support vulnerable young people. As I keep saying, it is entirely illogical to prevent local authorities from carrying out this work: it makes it harder to integrate services for children while they are in custody and when they return to the community.
The Minister has already argued, as Ministers in previous debates have, that nothing in the law prevents local authorities from running secure 16-to-19 academies. However, as Lord German said in the other place:
“At present, local authorities are excluded simply because there is a view that anything called an ‘academy’ in England cannot be run by a local authority, which seems to create an absolute block to the opportunity for everyone in these institutions to have the best opportunities for life and education.”—[Official Report, House of Lords, 17 November 2021; Vol. 816, c. 271.]
It must be clearly stated in the law that local authorities can establish and maintain 16-to-19 academies. I believe—I look to my hon. Friend the Member for Lewisham West and Penge (Ellie Reeves) on the Front Bench—that the Opposition will divide the House on the amendment; that is how strongly we feel about it. If Government Members vote against it, what will the chilling effect on local authorities be?
The Minister could accept the amendment this evening without pressing it to a vote. It would then be very clear to local authorities that they are eligible to apply to run 16-to-19 academies. I plead with the Minister to do so, because his actions tonight will make the difference for local authorities thinking that they can apply to run such schemes. It must be really clearly stated in the law and in this debate that local authorities can establish and maintain such academies. I urge the Minister and his MPs to support the amendment to avoid another generation of children not getting the best wraparound services they all deserve.
Mr Jonathan Djanogly (Huntingdon) (Con)
May I say how pleased I am to see the Government bringing forward proposals to stamp out illegal hare coursing? It is an issue that I and many other rural MPs have campaigned on for the best part of a decade, not least as a result of the extreme violence shown by coursers in Cambridgeshire and many other rural parts of the country to those who try to stop them—farmers, local people and even police. The coursers show disregard for property rights and cause huge amounts of damage to crops and hedges.
Shailesh Vara
As a Cambridgeshire neighbour, I am well aware of the difficulties that the Bill seeks to put right. When the matter has been raised with the police, one of the main points that they make is that until now the legislation has had no teeth. When the Bill becomes law, hopefully they will have what they have always wanted. Does my hon. Friend agree that what we really need, once the Bill is on the statute book, is for the police and the Crown Prosecution Service to ensure that the maximum penalties are inflicted on those who are found guilty, not only as punishment for them but to act as a powerful deterrent to others?
Mr Djanogly
I agree with my hon. Friend in every regard. He has made the important point that when legislation is on the statute book, it must be enforced. I think he will agree with me, given the experiences we have both had in talking to local police, that they seek this legislation, they are waiting for it and they will act on it, and no doubt we are both keen to see that happen.
Farmers have been complaining bitterly to me, with good cause. They have a tough enough job as it is without the worry of these coursing criminals. The basic problem is that the provisions of the Hunting Act 2004 often failed to work owing to their complexity, so prosecutors started to use the old 19th-century anti-poaching laws. While those worked evidentially, they failed to have the penalty clout that was required. Fines of tens or hundreds of pounds were pretty meaningless when there were dogs worth tens of thousands and gambling opportunities worth hundreds of thousands. I even heard that the coursing was being streamed into city pubs for gambling purposes. The problem then became worse, because the threat of intimidation was so high for farmers, versus a low penalty risk for the perpetrators, that many farmers did not want to become involved in prosecutions at all.
Now, with this legislation leading to higher levels of fines and confiscation orders, and the ability to charge for the detained dogs and their living costs, I think that we have a much better chance of significantly reducing coursing. Now, armed with these powers, rural police forces will be able to get to work against the perpetrators. I know that in Cambridgeshire they will have the support of all the county MPs, one of whom we have heard from this evening. All of them have been actively involved in this campaign. These anti-coursing measures represent a great example of the Government’s acting in the best interests of the countryside and the farming community to counter rural crime, and they have my full support.
Dr Kieran Mullan (Crewe and Nantwich) (Con)
I rise to support Lords amendment 1, commonly known as Harper’s Law, and to take this opportunity to welcome a number of key reforms introduced by the Bill while also highlighting areas in which I think we should go further.
Let me begin by commenting on what I consider to be the all too frequent yawning gap between what the public, on whose behalf justice is delivered, see as justice, and what the judicial system delivers. I do so conscious that the debate on sentencing has been polarised and distorted by a sort of intellectual snobbery towards anyone who makes the case for longer sentencing. Anyone who mentions this in polite circles, or to any number of think-tanks or charities involved in justice reform, will be met with variations of what is essentially the same disparaging attitude: “Oh, you must be part of the hang ’em and flog ’em brigade”—as if it were not valid or legitimate to say that justice is a social good, that it is served by punishment as well as rehabilitation, and that in some cases serving the social good is better achieved by an emphasis on punishment.
I noted with interest the comment from the family of Sarah Everard that the fact that the perpetrator was given a whole life term, rather than just a life sentence with a minimum period, was the only thing that gave them comfort. We do not often see that narrative in a documentary or a policy paper about justice. Do we really think that that was because the perpetrator was a policeman, although that was the reason in law that he was given a whole-life order—that if he had not been a policeman and had killed Sarah, her family would have been satisfied with a life sentence without a whole-life order? Of course it was not, I believe that their feelings would reflect those of most people who saw their loved one brutally murdered, whatever the circumstances, although very few of them would see a whole-life order as the outcome.
The term “life sentence” is misleading and is often misreported, and in my view it should be reformed. We must remember that the origins of our justice system were a result of our society saying, “You, as the individual and the family, cannot deliver your own justice. The courts will do it on your behalf.” The courts are therefore a servant of the public, and have a responsibility to ensure, at the very least, a broad alignment with what they would want. At present, when it comes to serious offences and hardened criminals, I do not think that they do. That is not to disparage judges; they operate largely within a framework of precedent which they cannot change, so we must recognise that it will take more intervention from us to break some of those precedents.
I would like to highlight child sex offences as another area where there is a yawning gap between what offenders are likely to receive and what the public would consider to be justice. This is not to say that rehabilitation and diversion are not important, and I welcome the measures in this Bill that will help to achieve that. Ultimately, in the longer term, that will lead to fewer victims of crime, but it will not happen overnight and we must ensure that justice is delivered to families and victims in the meantime. This Bill makes huge gains in that regard.
Robbie Moore (Keighley) (Con)
It is once again a great pleasure to be able to speak in favour of this Bill. As we know, the first duty of any Government is to keep their citizens and communities safe, and a huge part of that is guaranteeing that the punishments for those who commit the worst crimes ensure that society receives the justice it deserves and is protected from criminals. On that point, I would like to focus on the amendments that relate to Tony’s law. I pay tribute to my hon. Friend the Member for Tonbridge and Malling (Tom Tugendhat) and the hon. Member for Rotherham (Sarah Champion), who have campaigned tirelessly to ensure that Tony’s law is enshrined in statute.
Child cruelty is abhorrent, and it is simply unthinkable that someone could commit such crimes, yet they do sadly happen. That includes the crimes that caused the tragic death of Star Hobson in Keighley back in 2020, which shook my entire constituency and indeed the whole country. Star suffered sickening abuse and brutality at the hands of her mother, Frankie Smith, and her mother’s partner, Savannah Brockhill. Star was punched, kicked and stamped on multiple times by Brockhill, with her mother doing nothing to stop the brutality. It is hard to believe that a human, not least a mother and her partner, could be so cruel. During their trials, the court heard that this physical abuse caused Star unsurvivable injuries, including a skull fracture. Following the trial, many of my constituents and I expressed our real concerns about the sentences given to Brockhill and Smith, particularly as Smith initially received only eight years in prison. That was in spite of the fact that she had facilitated the horrible abuse that killed her daughter. It is right that the sentence was referred to the Court of Appeal following a letter that I and many others sent to the Attorney General, my right hon. and learned Friend the Member for Fareham (Suella Braverman).
We need to ensure that sentencing for child cruelty is fit for purpose. Unfortunately, the tragic death of Star Hobson is not an isolated incident. Child cruelty happens across the country, which is why the Lords amendments to enact Tony’s law are so important. These amendments will ensure that anyone who causes or allows the death of a child in their care will face up to life imprisonment, instead of the current 14-year maximum. Likewise, the punishment for those who cause or allow serious physical harm to a child will toughen from 10 to 14 years.
The crimes I have spoken of are some of the worst imaginable. It is simply incomprehensible that someone could treat a child so cruelly. This abuse must not be allowed to stand, which is why I am so delighted that the Government are encompassing Tony’s law in the Bill.
I finish by putting on record my thanks to my hon. Friends the Members for Stockton South (Matt Vickers) and for Crewe and Nantwich (Dr Mullan), who have campaigned tirelessly in this place to make sure that Harper’s law is included in this legislation. It is commendable that the Government have made these amendments to the Bill.
Matt Vickers (Stockton South) (Con)
I am delighted to see a Bill that will do so much to deliver justice and make our communities safer. There is so much to be said, but I will speak briefly on two changes to our law that are very much overdue.
First, we are making it a statutory aggravating offence to assault someone who is providing a public service. When the pandemic struck, many fled to the safety of their home, but our army of key workers bravely rolled up their sleeves and got on with their job to keep this country going. Health and social care workers, transport workers and retail workers are owed a huge debt of gratitude, but not everyone in our society has shown them that gratitude.
As chair of the all-party parliamentary group on the future of retail, I hear the horrific and increasing abuse suffered by retail workers in town centres and shopping parades across the country. Last year there were 455 assaults on retail workers—not every month, not every week, but every single day. The youngster with their first job stacking shelves and the semi-retired person with an extra part-time job on the tills to top up their income to buy their grandkids something nice for Christmas: these are normal people just doing their job. They are often not well paid, they do not have stab-proof vests or body-worn cameras, and every day they have to return to the scene of the crime.
These people are not assaulted because they wear shirts with Tesco or Co-op written on them; they are assaulted because they are upholding the rules that are in place to protect us. They verify people’s age when buying knives or alcohol, and during the pandemic they checked people’s masks and social distancing, undertaking statutory duties and responsibilities that we in Parliament have placed on them. It is right that they will now have statutory protections.
Lords amendment 1 enacts Harper’s law, and I cannot imagine that anyone has not been touched by the horrific and devastating circumstances of PC Harper’s death. I cannot imagine anyone was not moved by the unbelievable heroism, bravery and determination of his family and his wife, Lissie, in campaigning for this change to ensure that no one else will have to go through such terrible misjustice. When our amazing emergency service workers run towards danger to protect others, it is right that our legal system will now have their back by delivering justice for them and their families.
Ruth Edwards
Pointy black-tipped ears, furry and brown, and the ability to make a getaway at 45 mph. This is the description of the suspect I found digging in our veg patch the other week. I am, of course, talking about the brown hare. The occasional episode of vegetable vandalism aside, we feel privileged to share our home with these fascinating creatures that we often see streaking over the fields around our house or lolloping through our garden.
I strongly welcome Lords amendments 61 to 69, which create tougher penalties for hare coursing by increasing the maximum penalty for trespassing in pursuit of game to up to six months’ imprisonment. New offences have also been created: trespass with the intention of using a dog to search for or pursue a hare; and, secondly, being equipped to do so.
Hare coursing is a huge problem in rural parts of Rushcliffe and throughout the Vale of Belvoir. Last night, I spoke to a local farmer, who told me that hare coursers had been trespassing on his land for as long as he could remember; several times a month they vandalise his property, destroying locks and pulling gates off their posts to gain access. They destroy his crop by driving all over it and, obviously, they destroy the local hare population. He told me there were now hardly any left. Worst of all, he told me, “We know who is doing a lot of it. It’s a couple of local families but they seem to be above the law.” Farmers who had challenged them had their workshops broken into and vandalised, which is why I am not sharing his name today.
I hope these new offences will give the police better powers to target such criminals. I welcome the new powers for courts to order the reimbursement of the police for kennelling dogs seized in relation to hare coursing, because taxpayers certainly should not be paying for it. I also welcome new powers for courts to disqualify offenders from owning a dog—no one engaged in this sort of cruelty to animals should be owning one.
Tom Pursglove
I thank Members from across the House for their many and varied contributions to the various amendments we are considering this evening. I wish to respond to a number of the points made.
First, let me respond to my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill) on IPPs. I have heard his view that the amendment does not go far enough and does not take action to help IPP offenders who are still in prison. The number of IPP offenders in prison, having never been released, stood at 1,661 on 30 September 2021, which represents enormous progress when we compare it with the peak of 6,000 in 2012. The IPP action plan, produced and regularly refreshed by Her Majesty’s Prison and Probation Service, remains the best means of providing all those continuing to serve the IPP sentence with every opportunity to show they can be safely released by the Parole Board. The action plan sets out a series of measures designed to rehabilitate IPP prisoners, including through psychology-led reviews, and improved central and regional strategic oversight of IPP progression. There is clear evidence that these measures are working, and the number of IPP prisoners has decreased. IPP prisoners continue to be released in significant numbers and have a high chance of a positive outcome from Parole Board hearings. In 2020-21, more than two thirds of IPP Parole Board oral hearings resulted in a positive outcome, either a release or a progressive move to open prison.
Despite all that, I hope I can reassure my hon. Friend by saying that, as Ministers have said during the passage of this Bill, in this House and in the other place, we are mindful that the Justice Committee in this House is currently conducting an inquiry into IPP sentences, and we look forward to hearing the recommendations of his Committee and we will certainly consider them closely. I, along with my fellow Ministers, will continue to engage with IPP stakeholders in this House and elsewhere, and we will continue to give full consideration to any options recommended. I hope that that gives him the reassurance that he is looking for as to our intentions.
Sir Robert Neill
I am grateful to the Minister, as it does. I hope that he makes sure that we have a timely response; perhaps he can meet me once our Committee has reported.
Tom Pursglove
Yes, I am always keen that the Department is as timely as possible in engaging with my hon. Friend’s excellent Committee. We are always grateful for the tireless, thorough and considered work that he and colleagues do.
Let me turn to the issue of Harper’s law. Again, I was very grateful to Members from across the House, including the hon. Member for Brent North (Barry Gardiner) and my hon. Friend the Member for Rushcliffe (Ruth Edwards), for their clear, full-throated support for these changes. I was able to address one of the technical issues to provide clarity for the House earlier, and I just wish to provide further clarity, as I promised I would, on whether volunteers can be emergency workers under Harper’s law. The answer is yes, it applies to emergency workers who are engaged to supply emergency services in a voluntary capacity as well as to paid employees. It uses exactly the same definition as in the 2018 Act, and I hope that that helps to put the technical aspects of this provision on the record for the House’s benefit.
Lords amendment 107 covers the issue of secure schools. I am always conscious that I do not want to disappoint the hon. Member for Rotherham (Sarah Champion). We have always had a very constructive working relationship on a whole host of issues, including on the Marriage and Civil Partnership (Minimum Age) Bill, which I know she will be delighted completed its Commons consideration on Friday. None the less, on this occasion, I am afraid that I cannot deliver precisely on what she wishes to see. However, I reiterate the point that, before we invite applications for any future secure schools, the Ministry of Justice will assess in detail the potential role of local authorities in running this new form of provision. The Department for Education remains committed to moving towards a school system where every school has the benefits of being part of a family of schools in a strong multi-academy trust. The DFE will set out its plans in a schools White Paper to be published in the coming months.
Sarah Champion
Round 5, Minister.
Will the Minister please clarify what the objection is to making it very clear that local authorities can apply to run and maintain 16 to 19 academies? Moreover, is he able to explain why they were prevented from doing so in the first round of tendering?
Tom Pursglove
The hon. Lady is persistent in these matters. All I can do, I am afraid, is simply refer her back to the comments that I have already made during the course of this debate. I will happily take away—[Interruption.] The hon. Lady is chuntering from a sedentary position. I am not sure whether she was here for the duration of this debate. We have covered this matter in some detail. I will gladly take away a copy of Hansard and study the points that she has raised in the course of this debate. If there is any further detail that I am able to provide, I will happily do so.
Tom Pursglove
I refer to the point that I made earlier, which is that we believe there is no barrier.
Lords amendment 58 covers food standards. I hope that I can offer some comfort to the House. We are broadly supportive of the intention to confer such powers, which would be consistent with powers available to other bodies, but reject the amendment on the basis that there is further work to do before any legislative amendments are made. The current chairman of the Food Standards Agency, Susan Jebb, wrote to the Minister for Crime and Policing on 11 August 2021 expressing concern that the existing powers of the National Food Crime Unit were insufficient for their purposes. The Minister responded in October, expressing support for the request and indicated the Home Office’s intent to work with the NFCU to find a suitable legislative vehicle. In order to fully support any extension of the Police and Criminal Evidence Act 1984 powers to the NFCU, we would need reassurance that this is necessary, proportionate and legitimate and that suitable governance, accountability and oversight of investigations and complaints arrangements will be in place. There is also a lack of clarity over the necessary protocols when PACE powers would be exercised, which will need consideration with the NFCU before legislative amendments are made, but we will of course legislate at the next available opportunity.
I am also grateful to Members for their strong support for the hare coursing changes that the Government are introducing, particularly the observations made by my hon. Friends the Members for Huntingdon (Mr Djanogly) and for Rushcliffe (Ruth Edwards), and by my hon. Friend the Member for North West Cambridgeshire (Shailesh Vara), who is my neighbour, from just over the border. This issue matters a great deal. We have listened carefully to a wide range of voices, telling us just that. Hare coursing is not a quaint country tradition. It involves horrible cruelty to a much loved wild animal. It is associated with illegal gambling and other criminality. It brings serious harm to the rural areas where it takes place. Subject to parliamentary approval, we intend to get the tougher sentences in place before the start of the next hare coursing season.
I conclude by again thanking Members from across the House for their thoughtful contributions to this debate and also Members in the other place for their thorough consideration of these matters and for the engagement that colleagues have provided throughout the Bill. As a Minister coming to this rather late in the day, may I also place on record my sincere appreciation to my hon. Friends the Member for Louth and Horncastle (Victoria Atkins) and for Croydon South (Chris Philp) as well as to my right hon. and learned Friend the Member for South Swindon (Sir Robert Buckland) for all their work in getting us to this stage.
Lords amendment 1 agreed to.
Lords amendment 58 disagreed to.
Clause 139
Secure 16 to 19 Academies
Motion made, and Question put, That this House disagrees with Lords amendment 107.—(Tom Pursglove.)
Madam Deputy Speaker (Dame Rosie Winterton)
We now move to the third set of amendments. When I call the Minister to move the motion, it would be useful if those who are trying to catch my eye indicate they wish to speak.
After Clause 54
Accountability of public authorities: duties on police workforce
Kit Malthouse
I beg to move that this House disagrees with Lords amendment 71.
Madam Deputy Speaker (Dame Rosie Winterton)
With this it will be convenient to discuss the following:
Lords amendment 74, and Government amendment (a) thereto.
Lords amendment 88, and Government amendment (a) thereto.
Lords amendment 73, and Government motion to disagree.
Lords amendment 80, Government motion to disagree, and Government amendments (a) to (f) to the words so restored to the Bill.
Lords amendment 81, and Government motion to disagree.
Lords amendment 82, and Government motion to disagree.
Lords amendment 87, Government motion to disagree, and Government amendments (a) to (f) to the words so restored to the Bill.
Lords amendments 89 and 146, Government motions to disagree, and Government amendments (a) and (b) in lieu.
Lords amendment 143, Government motion to disagree, and Government amendments (a) to (c) in lieu.
Lords amendments 75 to 79, 83 to 86, 90 to 93, 118 to 120 and 148.
Kit Malthouse
Lords amendment 71 would introduce a duty of candour for the police workforce. I am sure that hon. Members know that the Government take police integrity and accountability extremely seriously. So much so that, in February 2020, we introduced a statutory duty of co-operation for serving police officers as part of wider integrity reforms.
A failure to co-operate in that way constitutes a breach of the statutory standards of professional behaviour by which all officers must abide and could therefore result in a formal disciplinary sanction. It is our view that the duty to co-operate puts a greater onus on officers than the duty of candour provided for in the Lords amendment, as they could ultimately be dismissed for a breach. In essence, the Lords is proposing a dilution.
Hon. Members will also be aware of the Government’s forthcoming response to the Daniel Morgan independent panel and to Bishop James Jones’ report concerning the bereaved Hillsborough families’ experiences, and we will set out our view on a wider duty of candour for all public authorities. Before the Government respond to those reports, however, it is clearly imperative that the Hillsborough families are given the opportunity to share their views.
None the less, we are closely monitoring the impact of the new legislation on police co-operation with inquiries and investigations. As we consider the case for a wider duty of candour for other public servants and bodies, we will determine whether there are gaps in the existing framework that need to be filled to ensure public confidence. I assure the House that we will set out our conclusions later this year.
Before I turn to the Lords amendments to part 3 of the Bill, I point out to hon. Members that over the last couple of years, with regard to public order, we have all seen that the police have struggled with some of the demonstrations that we have seen on our streets. Last autumn, Insulate Britain’s new tactics put a lot of police officers in danger, caused a significant amount of misery to many thousands of people who simply wanted to get to work or to otherwise go about their daily lives, and were difficult to address. Since, we have seen further examples of wholly unacceptable forms of protest. I am afraid that their lordships may regret the day that they voted down the significant number of measures that we had inserted in the Bill.
The House of Lords did, however, recognise that freedom of speech and assembly are qualified rights under the European convention on human rights, and there are times when it is appropriate to restrict those rights to protect the rights of non-protesters. For that reason, we are sympathetic to Lords amendment 143, which would introduce fast-track public space protection orders. The Government have listened to the concerns raised in the other place about the harm caused by disruptive protests outside schools and vaccination centres. We agree in principle with the amendment, and our amendments (a) to (c) in lieu of Lords amendment 143 will have a similar effect but will ensure that provision for expedited PSPOs works with the grain of the existing legislative framework.
Jim Shannon
I very much look forward to the tightening of the laws, but I am also conscious that I look for balance. As one who has protested on the streets of Northern Ireland on many occasions—legally—with an important desire to do so, I ask whether the Minister feels that the balance is right in this legislation. In our words, the right to protest should be done in a peaceful manner, not to obstruct anybody.
Kit Malthouse
I do indeed believe that the balance is right, but the hon. Gentleman does not have to take my word for it. Her Majesty’s inspectorate of constabulary and fire & rescue services was specifically tasked with looking at the balance of legislation and protest. After some examination, it decided that the balance had swung too far in favour of protest and too much away from the rights of others to go about their daily lives.
Jesse Norman (Hereford and South Herefordshire) (Con)
My right hon. Friend knows that I have real concerns about the noisy protest legislation. How often does he expect it to be applied and how many past protests have been subject to something like that kind of police discretion?
Kit Malthouse
Obviously, it is hard for me to predict how often these things will be used. I will come on to talk about the noise provision more specifically, but it is worth pointing out that it is not common for conditions to be placed on protest generally. The National Police Chiefs’ Council tells us that in the three months to April ’21, there were 2,500 protests, and conditions were put on them no more than a dozen times. The Metropolitan police has confirmed that in 2019—hon. Members have to remember that in London, a protest takes place pretty much every day, and sometimes several in one day—it put conditions on only 15 times and, in 2020, only six times. Admittedly, 2020 saw a suppressed number of protests because of the pandemic, but this is nevertheless rare, and the police take care in placing such conditions.
Kit Malthouse
I will make a little bit of progress.
On my previous point about the Lords accepting the need for protection outside schools and vaccination centres, we believe it should not just be people working in those two types of facility who are protected from highly disruptive protests. The Government continue to believe it is essential that the police are able in some circumstances to place conditions on protests to prevent noise causing serious harm or impinging on the rights of others. The vast majority of protests in England and Wales will be unaffected by this legislation. The power may be used only in the most exceptional circumstances where police assess the noise from protests to be unjustifiable and damaging to others. I can assure the House that conditions will, by law, be imposed only where necessary and proportionate, with due consideration to all our freedoms of expression and assembly. The police are already legally bound to assess this balance with the powers they currently have.
Several hon. Members rose—
Kit Malthouse
I will come to the hon. Members in a moment.
I am sure that all hon. Members will recall vividly how proceedings in St Margaret’s church were intruded on by protesters’ noise when we were paying our respects to our colleague Sir David Amess. I am not sure we could call that intrusion damaging; if anything, it made us sing all the loudly and filled the church with an air of defiance as we mourned. However, we have to reflect on the fact that developments in amplification mean that noise can be used as a weapon and can cause significant psychological damage. This is why most local authorities have a noise enforcement team with powers to act. We need to recognise that, in a protest situation, noise could be used to make worship, business or residence impossible in particular premises, and our fellow citizens would expect protection from the police in those circumstances.
Barry Gardiner
To assure the House that there will be an objective standard rather than a subjective one, can the Minister explain either what decibel level there would have to be or for how long such a noise nuisance would have to continue for enforcing the powers to be reasonable and objective?
Kit Malthouse
As the House would expect, we are not prescribing limits in the way the hon. Gentleman is asking for, not least because the varying circumstances with which the police are presented mean that hard and fast rules do not necessary obtain. For example, it could be that one person with an amplifier attempting to drown out—I do not know—pursuit of worship in a particular church, temple or synagogue could be deemed over time to be a nuisance, and therefore be damaging and impinging on the rights of worship of others, whereas a crowd of individuals outside making a similar noise for a shorter time may not. As I have just laid out, I did not regard the noise that intruded on our grief in St Margaret’s as damaging—I would not have thought that that hit the bar—but if someone was outside the hon. Gentleman’s constituency office protesting day in, day out with a large and powerful amplifier, he might quite rightly in those circumstances seek protection from the police or indeed from the local authority. There is a series of these situations that the police are now presented with because of developments in amplification.
Caroline Lucas
Would the Minister acknowledge that our public order laws already make it harder to protest than in practically any other democracy, and that the kind of legislation he is bringing in now, as we have just seen, is completely subjective and puts the police in an impossible position? Laws already exist to deal with the so-called problems that he is raising. This is about throwing red meat to his Back Benchers so that he can try to get a bit more popularity, and it stinks.
Kit Malthouse
I do not know who is throwing the red meat here, but it is certainly not me. Obviously the hon. Lady has a constituency that will lap up her remarks, no doubt released on social media. In truth, the police have been asking for some time for improvements to the elderly public order legislation. We put the measures through consideration by Her Majesty’s Inspectorate of Constabulary and Fire and Rescue Services, which felt they were proportionate and sensible for us to pursue.
Joanna Cherry
The Minister is implying that the police and Her Majesty’s Inspectorate of Constabulary and Fire and Rescue Services in some way wanted this new noise trigger. Will he accept that I am correct when I say that neither the police, nor Her Majesty’s Inspectorate of Constabulary and Fire and Rescue Services, requested the noise trigger at all?
Kit Malthouse
The inspectorate obviously would not request that because that is not its job, but we certainly asked it to look at the balance that we are trying to present with what I think are relatively modest improvements to public order legislation. Indeed, from memory of the report, it felt we should go further, which we are unable to do because of the structure of the Bill. That means that on the rare occasion where noise is causing other people’s rights to be impinged on, and where worship or business or residence is impossible, we would seek protection.
Jesse Norman
I think it would help me, and it might help others in the Chamber, if the Minister would consider putting in place a review, perhaps a year or two years into the use of this power, if the House chooses to grant it.
Kit Malthouse
I am happy to commit to reviewing the offence. I would love to put a time limit on it but, as I said when I outlined the number of times conditions would be met, this measure may be used on only a very small number of occasions. We will have to consider the range of situations in which it is used, and obviously review it as we do with all public order legislation. We take very seriously the fact that protest is a fundamental building block of any liberal democracy, and now more than ever that is writ large. This is an important freedom for us in this country, and I am sure that lots of Members from all side of the House have been on protests of all kinds over the years. We must ensure that legislation moves with the times and reflects changes in technology, and that we give the police the powers they need, albeit in rare and often exceptional circumstances.
Anne Marie Morris (Newton Abbot) (Ind)
The Minister is being generous in accepting interventions. Does he think that, while well intended, the Bill may have the unintended consequence that individuals who think they are within the law in the way they demonstrate, because of the Bill’s subjectivity find themselves unexpectedly criminalised? That for them would be devastating.
Kit Malthouse
No, not necessarily—[Laughter.] No, no. As a former Westminster councillor and London Assembly member for central London, who was subjected to dozens of protests of all sizes, shapes and forms, I would encourage all people who are protesting, wherever they are, to engage with the police first and discuss their own safety and the safety of others. In any democracy it is responsible to ensure that people give forewarning of what they are about to do.
Jeremy Corbyn (Islington North) (Ind)
Does the Minister appreciate that many people listening to this debate will be very suspicious of his words? They will see in the proposed regulations and discussions with the police a fundamental desire by him and his Government to shut down, control, and eliminate protest within our society. People have a right to protest, a right to make their voices heard, and a right to dissent. Surely that is fundamental to a democratic society. It is no good praising people in Russia if we close down protest here.
Kit Malthouse
Of course we are not closing down protest. The right hon. Gentleman is right that people have a fundamental right to dissent, to protest and to make their views known in the public sphere as they do in the private sphere, but, as the House of Lords and the European Court of Human Rights have said, the right to protest is not unqualified, and I am afraid that, in the last couple of years, we have seen protestors using tactics that are massively disruptive to other people’s lives. People just wanting to go about their business have been so frustrated that they have been leaping out of their cars and taking things into their own hands. We have seen protestors running on to the fast lane of motorways, causing danger to themselves and motorists, and distracting police officers from stopping people from being stabbed or burgled in all our neighbourhoods. We have a duty to address that, and the role of the House and that of the police is to strike a balance between competing rights. That is what we do, and that is what we are trying to do with these modest measures.
Kit Malthouse
No. I have given way lots of times. There will be many speakers, and I do not want to use up all the time. We have only got until midnight to get through all of this stuff. I will move on from the noise powers, which, as I say, we think will be used only in exceptional circumstances but must be available given changes in amplification.
Lords amendment 80 would prevent the alignment of the police’s ability to place conditions on public assembly with their existing powers to place conditions on public processions. HMICFRS found that a distinction between processions and assemblies was no longer appropriate. In the light of the practical challenges of safely policing protests, there is an unjustifiable inconsistency in the current law. When does a procession become an assembly and vice versa?
Lords amendments 74 to 79 implement a recommendation to the Delegated Powers and Regulatory Reform Committee to the effect that the term “serious disruption” should be defined in the Bill rather than in regulations. I trust that the amendments have allayed the concerns raised by my right hon. Friend the Member for Maidenhead (Mrs May), who is not in her place, in our previous debates on the matter.
I am afraid that Lords amendments 81 and 82 arise from a misunderstanding of the effect of the provisions in clause 58, which are designed, in the words of the Joint Committee on Human Rights, to protect the rights of access to the parliamentary estate for those with business there. The changes to the Police Reform and Social Responsibility Act 2011, which governs prohibited activities in the vicinity of Parliament, will not prevent protests outside Parliament, nor will they prevent the Greater London Authority from authorising assemblies outside Parliament. Clause 58 will simply enable a police officer to direct an individual to cease or not to begin obstructing the passage of a vehicle into or out of the parliamentary estate. That is extremely important for those who are disabled or otherwise need a vehicle to access the estate, either to work here or to exercise their democratic rights. We expect police officers to use their sound judgements to determine when it is appropriate to make use of the power, and I do not see how it can lead to a prohibition of any kind on protests outside Parliament. Lords amendments 81 and 82 are therefore unnecessary.
Lords amendment 88 is a stripped-out version of the Government’s proposal to increase the maximum penalty for those who obstruct the highway. It would limit the increase in the maximum penalties to the obstruction of the strategic road network. Many major roads lie outside the SRN; indeed, some 98% of all roads in England do not form part of it. Were we to limit the increase in the maximum penalty in that way, protestors could continue to cause extensive and wholly disproportionate disruption to commuters and parents dropping their children off at school without facing sentences proportionate to the harm they have caused. Amendment (a) to Lords amendment 88 will ensure that the full extent of our road network is protected with the increase in maximum penalties.
Tonia Antoniazzi
The Minister talks about the cost of demonstrations—those on the road networks in particular—to people’s lives, and he has made statements about the costs of those protests. I tabled a written question asking him what assessment has been made of the cost to the public purse of the prison sentences being given out to Insulate Britain activists. That is a problem, because those sentences are not proportionate to what is happening. Surely there are better ways that are more cost-effective.
Kit Malthouse
At the moment, those incarcerations are at the behest of a judge in a civil matter relating to the injunctions, and there is nothing that the Government can necessarily do about that. However, I point out that deterring people from such action may result in cost savings further down the line for the wider population. I urge Opposition Members, and anybody looking at this issue, to ask themselves whether they believe that protests should not be restrained in any way, shape or form, or that there is a balance to be struck. If they believe, as the ECHR does, and as the House of Lords has accepted in some of its amendments to the Bill, that a balance should be struck, the only question is where.
Our view, which is backed up by evidence from HMI and elsewhere, is that the balance has swung too far away from the general public, who want to go about their lives, recognising the very many important issues that are raised by protest. While they acknowledge those problems, they want to get on with their lives, and they want protection from the state of their right to get to school, to hospital and to work. That is not a right to be taken lightly. One of the most frustrating things about some of these protests has been their self-defeating result. Notwithstanding the cause, important or otherwise, the protestors have turned off millions of their fellow citizens and caused a level of intolerance towards issues such as climate change, which is regrettable. We have a job to balance those rights, and that is what we are attempting to do.
Alex Sobel (Leeds North West) (Lab/Co-op)
The Minister seeks to take public opinion as a whole, but people have had to take these matters into their own hands because air quality is killing their children, and because of the Government’s inaction on the very simple act of insulating housing. The proportionality is in the wrong place, and he is seeking to take on public opinion where it does not exist. If the Government took the right actions, surely there would be no need for the protests in the first place. People should be allowed to protest proportionately.
Kit Malthouse
We cannot operate a democracy on the basis that, unless the Government agree with everything that someone wants, they will protest. It is a crazy thing to say, I am afraid. Much progress in this country has been brought about by protest, but much more has been brought about by political campaigning and winning elections. Frankly, if someone wants to make a change in the country, as all Opposition Members are proving, that is the way to go about it. I hope that the House will appreciate that we are trying hard to strike a balance between competing rights.
Kit Malthouse
No, I have given away enough; I have to move on. We acknowledge the fundamental importance of the right to protest in this country. We live in a liberal democracy. The right of someone to dissent and to go out on the street and make their views known is critical, but so is my right to get to hospital, to work or to church, and to do so without somebody blasting me out with noise. We have been balancing competing rights for decades, if not centuries, in this country. We are a mature democracy that can cope with that kind of responsibility—have no fear. We are ringed around by independent courts, a bicameral Parliament, all sorts of checks and balances on the power of Government to strike this balance, legislation, and our participation in supranational treaties. There are lots of ways that we protect ourselves and our human rights, but in the end, fundamentally, all democratic Governments have to strike that balance, and that is what we are attempting to do.
Lords amendments 118 to 120 give effect to a commitment made by the Prime Minister following the final of Euro 2020, in response to disgraceful online racist abuse directed at certain England players. The amendments would enable a court to impose a football banning order against persons convicted of online hate offences connected to football. That will prevent such offenders from spreading their criminal, hateful views at football matches, and I very much hope that the measure will also deter others from engaging in similar behaviours that are so harmful to victims and to our national game.
Lords amendments 89 and 146 would repeal the Vagrancy Act 1824. The Government are committed to ending rough sleeping, and as a result of our actions we have seen an historic reduction in rough sleeping in recent years. We agree that no one should be criminalised simply for sleeping rough, and that the time has indeed come to repeal the antiquated Vagrancy Act 1824. I know that that sentiment is keenly shared by a number of hon. Members. I pay tribute to the campaign that has been run by my hon. Friend the Member for Cities of London and Westminster (Nickie Aiken), my right hon. Friend the Member for Newark (Robert Jenrick), my hon. Friend the Member for Harrow East (Bob Blackman) and my predecessor in my constituency of North West Hampshire, Lord Young, in the other place.
However, we must balance our role in providing essential support for the vulnerable with ensuring that we do not weaken the ability of the police to intervene where needed. Therefore, while our amendments in lieu will provide for the Vagrancy Act to be repealed in full in England and Wales, we intend to enact replacement legislation in the coming Session before bringing the repeal of the 1824 Act into force. To allow for that, and ultimately to ensure that the police have the tools they need, we will delay commencement of the repeal for up to 18 months. In the meantime, we will publish a bold new strategy to end rough sleeping. The strategy will set up how we will ensure that rough sleeping is prevented in the first instance and is effectively responded to in the rare cases where it does occur, and that our police have the ability to intervene where needed and keep everybody safe, including the person at issue.
Several hon. Members rose—
Madam Deputy Speaker (Dame Rosie Winterton)
Order. We have very limited time, so after the next speaker from the Opposition Front Bench there will be a time limit of five minutes. I suspect that that may have to come down during the course of the debate. Priority will be given to people who have not spoken previously.
Sarah Jones
I want to begin by making a comment in this House on the Government’s procedure in the other place. The Government tried to sideline the Commons from its role in the democratic process by bringing into the Lords substantial but last-minute amendments on protests that would have had a fundamental impact on our rights. The Lords had very little time to scrutinise them and that is generally considered to be very poor form. Instead of chasing headlines and rushing in last-minute sweeping amendments clearly not thought through, they should be focusing on driving up prosecution rates, improving their woeful record on crime and dealing with the problems that really matter to the British people.
Labour voted against the Bill in its entirety on Second Reading and Third Reading because of parts 3 and 4, which represent a power grab that effectively bans peaceful protests and will compound the inequalities experienced by Gypsies and Travellers. I want to pay particular thanks to colleagues in the other place who have stood up for democracy and prevented the draconian provisions on protests that the Government tried to get through at the last minute.
Before I come to the protest amendments, I want briefly to touch on the other amendments in this grouping. First, we are grateful that the Government have listened to reason on so many of our amendments. I want to mention two in this grouping in particular. I pay tribute to the hard work of Lord Bassam in pressuring the Government to extend football banning orders to online racist abuse in Lords amendments 148, 118, 119 and 120. Racists who abuse football players do not deserve to be anywhere near a game of football. The amendments send a strong message that disgraceful racist behaviour has no place in the world of football, online or in person.
We are also glad that Lords amendment 89, which will repeal the Vagrancy Act 1824, has been accepted by the Government and that they have finally decided to act. No one should be criminalised simply for sleeping rough. But I hope the Minister can provide some reassurance to the House that this crucial change will not be kicked into the long grass and that the new legislation will be brought in at the earliest opportunity.
I want to touch on Lords amendment 71. The Government are refusing to introduce a duty of candour on police officers at this stage to co-operate with inquiries. The Minister claimed that the existing schedule on standards of professional behaviour is sufficient, but we do not believe that it is. It states that police officers must act with honesty and integrity, which of course they should, but the amendment passed in the Lords goes significantly further to ensure that where the police are required to provide information to inquiries or other such proceedings, they must have regard to the pleadings allegations terms of reference and parameters of the relevant proceedings, but not be limited by them, in particular where they hold information that might change the ambit of the proceedings inquiry or investigation. That is a really important distinction. The Lords amendment goes significantly further than the statutory duty of co-operation.
In June 2021, the Daniel Morgan independent panel, which took eight years to report, recommended the creation of a statutory duty of candour to be owed by all law enforcement agencies to those whom they serve. It is time for decisions to be made and for actions to be taken to restore public confidence in the police service.
Part 4 of the Bill represents an attack on the Gypsy, Traveller and Roma communities, even though the police have made it clear that they neither want nor need these powers. The Government have rejected our calls to remove part 4, and that is one of the major reasons why we voted against the Bill in its entirety. Although Lords amendments 91 to 93 are very small technical amendments, they confirm the principles around the powers of seizure of property that we Opposition Members believe are unfair.
The problem that many Government Members seem to articulate whenever we debate this issue is actually one of antisocial behaviour. The solution to antisocial behaviour, wherever it comes, is tougher antisocial behaviour action. Under this Government, we saw 1.7 million incidents in the year to September 2021 and nothing has been done. Marginalising an entire minority is not the answer to antisocial behaviour. We need to distinguish between the two and not criminalise a minority.
I turn to the Lords amendments on protest. Over the past five days, thousands of people have been arrested and detained at anti-war protests across Russia. We would all defend their right to protest and yet here we are, in the mother of all democracies, debating an amendment to a Bill that would criminalise singing at a peaceful protest in this country. Britain has a long-standing and important democratic freedom to gather and to speak or to protest. The Minister quoted an HMICFRS report, but he misunderstood its conclusions. The report said that we need a
“modest reset of the scales”
because police forces are usually good at planning protests but the “balance may tip”. The report’s recommendations were not legislative; they were to update and improve guidance to senior police officers, to improve the way in which the police assess the impact of protests, to improve police intelligence and to improve debrief processes, all of which are very sensible.
The Government asked the HMICFRS to look at some legislative options, which it did, and it gave some qualified support to some of them, but at no point was noise any part of that conversation. I have spoken to many senior police officers and at no point have any of them asked for any changes to the law on noise. The Bill goes way beyond the right balance between the right to protest and the right for others, which we agree with, to go about their daily lives.
Mike Amesbury (Weaver Vale) (Lab)
Does my hon. Friend concur that those who protested in Peterloo were probably a little bit noisy, as were those who protested for women’s suffrage and those who protested against the poll tax? Indeed, she mentioned the international situation in Russia. This is about freedom and democracy. I am sure that she would concur with that.
Rachael Maskell
Protests occur so that people can be heard, and if people need to be heard, they need to make a noise. I was particularly struck over the weekend not only by the masses who have stood up against an authoritarian state, but by the actions that the police have had to take against those people. If we are to criminalise people for exercising their rights, is that not just going down the same path?
Sarah Jones
My hon. Friend is right: this is about getting the right balance. We believe that the measures in part 3 of the Bill already threaten that careful balance by putting too much power into the hands of the Home Secretary, undermining rights, and hindering, rather than helping, the police to do their job. Labour’s Lords amendment 73 therefore focuses on the imposition of conditions related to noise on public processions. It would omit subsections (2) and (3) from clause 55, which broadens the circumstances in which conditions can be imposed by a senior police officer based on the noise generated by the people taking part and the impact that that has on the people in the area. Essentially, part 3 provides a trigger for imposing conditions on public assemblies, public processions and one-person protests if a protest is too noisy. The Opposition want those provisions removed from the Bill.
We also support Lords amendment 80, which was tabled by Lord Paddick and removes clause 56 from the Bill altogether, and we urge hon. Members to vote for Lords amendment 81 to ensure that permission can be granted for major protests in Parliament Square despite new rules on obstructing vehicle access.
Barry Gardiner
Does my hon. Friend agree that the level of nuisance caused by any noise or vocalisation at a protest may be a matter not just of decibels, but of content? Because somebody might perceive one kind of content to be more of a nuisance than another, the level of nuisance, in and of itself, is subjective.
Sarah Jones
That is an important point. The way the police interpret the laws we give them will always be subjective to some degree. We have to be very careful to define in law exactly what we mean, because the police implement the laws we give them and their job needs to be as clear as possible.
Mr Alistair Carmichael (Orkney and Shetland) (LD)
If we consider what the future will hold if the House follows the route that the Government suggest, there are two options: either the police will be left constantly at odds with those who wish to protest, or we will be left with legislation on the statute book that the police do not want and will never use. In either instance, what is the point?
Sarah Jones
That is a very valid point. On the noise issue, I cannot see that the police will find a way to use the legislation. It would be a waste of legislation: it would not be implemented.
The Government motion to disagree and amendments in lieu of Lords amendment 80 would restore the original wording of clause 56 and add a vague definition of “serious disruption” that would apply to the noise provisions in the Bill. The Opposition do not believe that it is adequate; it could apply to singing in the street outside a place of worship or a transport facility. It does not work, and we do not support it. Additionally, although the provision would be in the Bill, the amendments in lieu would allow the Home Secretary to change it at any point, so it is slightly pointless.
On public spaces protection orders, the Opposition believe that rather than introducing sweeping powers that could catch people protesting against the closure of their local library or singing songs in the street, the Government should focus on genuine problems such as those considered in the clauses that Labour introduced to stop intimidatory protests outside schools or vaccine clinics. That is why we tabled a targeted amendment, Lords amendment 143, so that schools, local councils and the NHS could fast-track local buffer zones to prevent intimidatory anti-vax protests outside schools and vaccine clinics. We won that vote in the Lords and are pleased that, after a period of inaction, the Government have accepted Labour’s proposals to crack down on those dangerous protests and give schoolchildren and NHS staff the protection that they need.
We also supported giving the courts the ability to increase sentences if protesters put lives at risk by blocking motorways. Labour’s Lords amendment 88 limits the Government’s original amendment so that it applies only to motorways and A-roads rather than to any highway, which could include a path. It is not proportionate to apply a maximum six-month sentence to the blocking of a grass verge or a public footpath. We need a common-sense and balanced approach instead. The Government should look at the HMICFRS report and focus on improving training, guidance, co-ordination and resources to manage public order policing as the inspectorate has recommended, rather than new powers that either are too wide-ranging or replicate powers that the police already have.
The point of protest is to capture attention. Protests are noisy and sometimes annoying—I find them annoying; we all find it annoying to have to listen to some of the ongoing singing that we hear in this place—but they are fundamental to our democracy.
If the public order provisions on noise in the Bill had been in place earlier, they would have stopped the suffragettes who marched for the right to vote, the children shouting loudly for action on climate change, or the Whitehall protesters against the Russian invasion. That is why Labour will keep pushing to limit the harmful provisions in this Bill.
There are elements of the Bill that we welcome, and it has been improved thanks to the hard work of Labour colleagues and, indeed, colleagues in all parts of the House. However, the Government have included disproportionate and draconian provisions that risk undermining our human rights and dividing communities. The right hon. Member for Maidenhead (Mrs May) is not present, but if she were, she might say that there is a fine line between being “popular” and being “populist”. We on these Benches want to see the Government stop chasing headlines and get back to the core duties of the Home Office: to keep people safe, bring criminals to justice, and uphold the rights and responsibilities of the rule of law.
Jesse Norman
I want to speak in particular about the issue of noisy protest, but I should begin by saying that, as the Minister outlined very well, there is a great deal of good in the Bill, covering many different areas.
There are facts on which I think everyone in the House would agree from the off. No one can doubt that in recent years the capacity for effective protest has been dramatically enhanced by technology, and enhanced a second time through the use of social media. No one can doubt, I think, that there are irresponsible and aggressive individuals and organisations who seek to inflict the maximum interruption and difficulty on the lives of others in the causes that they promote. And no one can doubt that the public have a right to go about their business without undue impediment. I do not think that any Member would contest those points.
I thank the Minister for engaging with me on this issue and for his clarifications this evening, both on the number of protests that this measure would be likely to affect and on the possibility of a review over a suitable but, I hope, not too long period, but—in my view at least—the measure should not be on the statute book. No serious case has been made that noise is a genuine problem. The Minister has conceded, and one understands why, that the measure is not likely to be used except in the tiniest minority of cases. We therefore have to ask whether the justification for it is adequate and proportionate. The offence is still vague and poorly defined, which is never a good thing in law. The police, as has been conceded, already have significant legal powers in relation to protests, and I regret to say that, worse, in some quarters they are the subject of a degree of public mistrust, which may be increased by our adding to their discretionary powers. Furthermore, I suspect that the measure will be extremely difficult for the courts to handle and adjudicate, even it proves to be compliant with article 11 of the Human Rights Act. All those are conservative—with a small and a large “c”—concerns that people might have about the operation of the rule of law in this country.
When people in Kyiv are dying for their beliefs and for the rights of freedom of speech and of association, the timing is unfortunate. I understand the motivations, and I understand that this has been lightly and sparingly applied, but an increase in discretion to qualify rights of protest that have been fundamental to our society and democratic traditions for hundreds of years is, I think, highly regrettable.
Anne McLaughlin
Let me begin by speaking about Lords amendments 73 to 89, which broadly cover the provisions in part 3, on public order. Part 3 does not technically extend to Scotland, but we are still very keen to lend our voice of complete opposition. As I mentioned on Second Reading, we support amendments that seek to mitigate the worst elements of part 3 because they will have an impact on everyone in these islands. We all have the right to speak up and hold power to account, including anyone travelling from Scotland to protest here, at the seat of power. While decisions are made on behalf of the people of Scotland by this place—and we hope that that may not be the case for much longer—the people of Scotland must retain the right to protest outside it.
In the past, I have made the journey from Scotland to this place to protest against many things, including the Iraq war, and I genuinely look forward every week to seeing who will be outside and what they will be bringing to the demonstration, whether I agree with what they are demonstrating about or not. Who can forget the wonderful WASPI women and the numerous noisy protests they held in the streets around Parliament? Rosie Dickson from WASPI Glasgow has told me how concerned she is that Scottish women born in the 1950s who have been unfairly denied their pensions by a Westminster Government now face
“having their human right to protest against it removed”.
They are being unfairly denied their right to their pensions, and now unfairly denied their right to object to that.
We support Lords amendments 73, 80 to 82 and 87, which I will speak to. I have concerns about Lords amendment 88, although on balance it is probably better than what was there before. Lords amendment 73 would remove subsections (2) and (3) from clause 55, which, unamended, would allow the police to impose conditions on a protest if they had a reasonable belief that the noise generated by the participants in the protest may result in
“serious disruption to the activities of an organisation which are carried on in the vicinity of the procession”,
or may have a significant and
“relevant impact on persons in the vicinity”.
The attention these noise restrictions have received from the wider public and the media is telling. Everybody knows that protests are noisy—that is how people get their point across. The louder they shout, the more we listen. Every day we are witnessing people protesting against the atrocities in Ukraine. Why on earth would we usher in legislation to curtail that?
Mr Carmichael
The hon. Lady will have heard the noisy protests in this Chamber every Wednesday between 12 and 12.30. We are okay, because we are protected by parliamentary privilege, but surely if Conservative Members want to end noisy protests, they should be prepared to practise what they preach.
Madam Deputy Speaker (Dame Eleanor Laing)
Some of us do try to keep that under control. We try our very best amid a lack of co-operation.
Anne McLaughlin
I was trying to find a way to work that into what I was saying, so I thank the right hon. Gentleman for that.
We know that without demos and protests, a lot of things would not change. The Minister said that things changed through political campaigning and getting elected, but actually things change because people in local communities rise up and tell us what they want us to do. That is how democracy should function.
Alison Thewliss (Glasgow Central) (SNP)
My hon. Friend is making some very good points on the importance of protests. One of the most significant protests in my constituency of late was when the people of Kenmure Street came together to try to stop their neighbours being removed from their homes by the Home Office. Does she agree that the Government should be trying to protect that kind of protest—the community involved and standing up for what is right for their neighbours—not trying to remove it?
Anne McLaughlin
I absolutely do, because if people feel empowered by being part of that democracy, other than getting to vote every four years, that can only be a good thing.
The notion that the police can intervene on any kind of noise threshold—as we have heard, we do not know what the threshold is—puts the fundamental right to protest at risk. This Bill will create a situation where people who are simply trying to have their voices heard will be dragged into the criminal justice system. We are going to need extremely large prisons by the time this Government have finished with all this legislation. The reduced knowledge threshold, where a person ought to have known that restrictions were in force, is an Orwellian nightmare. A protester will have to second-guess how the authorities will judge their behaviour.
The language used in clause 55 is vague at best: “serious unease”, “alarm” and “distress”. A protest may seem more alarming or distressing to one police officer than to another. This hands far too much discretion to the police, and there is a point when too much discretion becomes a burden. That was echoed by former police chiefs and senior officers, who have warned against the political pressure that this Bill will place on frontline officers. If the police do not think these powers are necessary, why do the Government? As we have heard from a number of speakers, the powers already exist for them to deal sufficiently with a protest that could result in serious public disorder, serious damage to property or serious disruption to the life of the community. I just do not think the Government have made a good enough argument that the powers are insufficient. For those reasons, we support Lords amendment 73.
We also support Lords amendment 80, which would remove the police’s ability to impose greater conditions on static demonstrations. The Public Order Act 1986 was careful to delineate and differentiate the conditions that can be imposed on static demonstrations and those that can be imposed on a march or moving protest, which is sensible as it reflects the relative ease with which a static demonstration can be policed. Clause 56, which the amendment seeks to remove, will see the distinction removed.
In the words of Big Brother Watch, clause 56 could potentially hand the police
“unfettered discretion to impose any condition they see fit including, for example, restrictions on the words or slogans that can be expressed on placards.”
That is a democratic outrage. This is an attempt by the Government to level the distinction between static and moving protests. As they tend to do, they are levelling down, not levelling up. For that reason, we support Lords amendment 80.
We also lend support to Lords amendment 87, which removes the police’s ability to impose conditions on a one-person protest. What a situation. The might of the Government and their legislative power is bearing down on single protesters, which is ridiculous and disproportionate in equal measure. Worryingly, it has the potential to snare anyone who even stops to engage with that protester as committing a criminal offence. As I said, we are going to need much larger prisons.
Lords amendment 88 would narrow the scope of the offence of wilful obstruction of the highway to include only highways that are part of the strategic road network. We are caught in a trap where, on the one hand, I am glad to see this offence is restricted to the strategic road network but, on the other hand, I am alarmed to see the associated sentence increased from a fine to 51 weeks’ imprisonment—much larger prisons. This amendment is targeted at some very specific protesters whom we have all witnessed taking their protests to the streets and roads, but I feel this severe penalty has the potential to create a chilling effect—I have used that term all too often in the past six months during our consideration of the Judicial Review and Courts Bill and the Nationality and Borders Bill, although, from what I am hearing from the other place tonight, there is now not much left of the latter.
Turning to Government amendments 90 to 93, I am disappointed that the only amendments to part 4, on unauthorised encampments, appear to be technical clarifying amendments that do nothing to row back on the measures expanding the criminalisation of trespass and the accompanying police powers. Again, this is an area where existing powers are available to the police. This is more to do with targeting a minority than targeting trespass.
We know this Bill will disproportionately interfere with the right of respect for the private and family life of Gypsy, Roma and Traveller groups. The new seizure powers in respect of vehicles—vehicles often being the home of Gypsies and Travellers, in particular—are very likely to mean that people will end up facing homelessness. I can only hope that, in mitigation, the Government will focus on providing further support and funding to local authorities across these islands for authorised sites and implementing a national sites strategy. They might want to speak to the Scottish Government about some of their work on this. The Court of Appeal has set out that this community has an enshrined freedom to move from one place to another, and that the state has a positive obligation to protect Gypsy, Roma and Traveller communities’ traditional way of life.
What are the Government so afraid of? From the man outside Parliament today adorned in plastic bottles to make a point about the overuse of plastics, to the many who finally found their voice in the last two years through the Black Lives Matter movement, and who are using that voice to make a very simple point that black lives matter every bit as much as white lives. From our Ukrainian brothers and sisters here on these islands who feel so helpless right now and who need to come together to protest against what is happening in their country, to people who simply wish to save the planet. What are the Government so afraid of? Well, I thank and applaud those protesters. This Government want to stop and criminalise them.
Robert Jenrick (Newark) (Con)
I will be brief and speak to two issues: first, in praise and thanks; and secondly, by way of caution.
In praise and thanks, I am delighted that the Government have accepted the amendment moved in the other place by the noble Lord Best and the noble Lord Young repealing the Vagrancy Act 1824.
Almost 200 years ago, as the cities were filling with the dispossessed at the end of the Napoleonic wars, our forebears in this place came together and passed a piece of legislation that today seems anachronistic and wrong. As a result of the votes later tonight, we will consign that legislation to history. Our understanding of rough sleeping and homelessness has transformed unrecognisably over the course of those two centuries. Today, we see it as a crisis of housing, of health, of social justice and of the criminal justice system. We do not see it as a criminal offence for someone to find themselves sleeping rough on the streets, and we should not live in a country where it is a criminal offence.
Madam Deputy Speaker (Dame Eleanor Laing)
I shall have to reduce the time limit to three minutes if there is a chance for most people to make a short contribution.
Imran Hussain (Bradford East) (Lab)
I rise to speak in favour of Lords amendments 73 and 80.
Like many of my hon. Friends, I marched and protested in opposition to the Iraq war. They were some of the largest and most important protests that we have ever seen. Anyone who attended or saw them would agree they were big, they were noisy and, by their very nature, they caused some disruption. None the less, it was absolutely right that the people were allowed to protest against one of the biggest injustices of our time, even if it was in direct opposition to the policy of the Government. Let us be clear: if protests of this kind, or protests such as those against the poll tax, were to take place today under the measures in the Bill, there would be a real fear that they could be stopped by this Government.
As has been reiterated time and again in this Chamber, the right to peaceful protest, however disruptive it may be to Ministers and Members of Parliament, is one of the fundamental tenets of our democracy. Yet the restrictions that the Government want to impose in the Bill would allow the police to render protests inert, amounting to what is an effective ban. Of course, we have yet to be given any clarity about why the Government are giving themselves such draconian powers, especially when the Government and the police already have ample powers to prevent protests that threaten public order and to take action against those protests they deem disruptive.
It could not be clearer that the powers that the Government want to hand themselves are an extreme overreach, which should leave us all worried about their ability to stifle popular protests against their policies. The reality is that these measures are nothing more than a petty vengeance against protesters by Ministers who are too thin-skinned to accept any criticism. Frankly, they are measures that put the protection of ministerial egos and business interests before the protection of human rights, as part of an intentional journey towards the creation of a Big Brother state that stifles protest and dissent.
Let there be no doubt: this is an extraordinary ideological attack on our civil liberties, with draconian laws, from the undermining of our trade unions to the taking away of our British citizenship without notice, all passed by this Government to curb our freedoms and restrict our rights. That is why this Government must be challenged on every occasion to stop the further erosion of our civil liberties.
Nickie Aiken (Cities of London and Westminster) (Con)
In the time given, I wish to speak on Government amendments (a) and (b) to the Bill in lieu of Lords amendments 189 and 146. Of course, I am speaking about the amendment to repeal the Vagrancy Act 1824, which brings us a massive step closer to ending rough sleeping and would drastically change how we view and help those on the streets.
For almost 200 years, the criminalisation of the homeless has shamed our country, but at long last the Vagrancy Act’s days are numbered. I thank the Minister for his constructive discussions with me, and my right hon. Friend the Member for Newark (Robert Jenrick) for being beside me, both when he was on the Front Bench and now on the Back Benches, fighting for the repeal of the Vagrancy Act.
I know there has been some concern in our discussions about the Vagrancy Act’s disappearing and our inability to deal with aggressive begging. I want to make the point that there are powers in place today in the Anti-social Behaviour, Crime and Policing Act 2014 which are now used by the police in the majority of cases against aggressive begging. It should be no surprise, therefore, that arrests and prosecutions under the Vagrancy Act have plummeted since 2014. From the conversations I have had with the Met and the City of London Police, I believe alternative powers to deal with aggressive begging are already available.
I am a pragmatist, so I accept the Government’s position of seeking a thorough and comprehensive review, but I ask the Minister to ensure that that is done quickly and concisely; up to 18 months is a very long time, so I ask him to please bring it forward. I hope that during the review he and the Home Secretary might consider revising the specific guidance on aggressive begging under the 2014 Act. I would welcome his response on that.
Finally, in my constituency of the Cities of London and Westminster we have the largest number of rough sleepers in the United Kingdom. I hope that the repeal of the Vagrancy Act will send a clear message to those sleeping on the street, tonight and every night that we will help and support them to turn their lives around and we will no longer criminalise them.
Olivia Blake (Sheffield, Hallam) (Lab)
I am really proud to represent Sheffield Hallam for so many reasons, but one that is particularly relevant to today’s debate is the city’s long and proud tradition of protest. In the 1800s, Sheffield’s Chartists took part in mass demonstrations, holding nightly meetings in Sheffield’s Paradise Square to protest against the then royal ban on open-air meetings. Sheffield played a pivotal role in the struggle for women’s suffrage, and our city’s suffragettes took to the streets time and again to fight for the right to vote. My point is that protests have formed the world around us. They are the reason that I stand here today. They have made our world a better place. Protest is often the start of change. Yes, it is often loud and often messy, because people have been ignored for too long and we need to listen.
Without protests, our country would be unrecognisable. Women would not have won the vote. There would be no NHS. Parliament would be less democratic. The right to protest is a person’s right to shape the world around them—to stand up for what they believe is right and to oppose what they believe is wrong. It is a fundamental cornerstone of our democracy. As such, the Police, Crime, Sentencing and Courts Bill is a flagrant attack on the core principles of that democracy. When this Bill was first proposed, we rightly saw people come together and spread out into the streets because what was being proposed was utterly draconian. I am proud to have worked with the Bishop of Sheffield and many others to talk about how this will impact on Sheffield’s history but also our future.
Having heard what has happened in the other place, I am glad that several amendments have been proposed that would mitigate the worst impacts of the Bill—particularly amendment 73 removing the ability of the police to impose noise-based restrictions on public processions, amendment 80 on giving police the power to impose greater conditions on static demonstrations, and amendment 87 removing their ability to impose conditions on one-person protests. The idea that one person cannot protest or should not be allowed to express themselves is completely at odds with what our democracy should stand for.
We live in a climate and ecological emergency where the future is not only for our country but for the whole planet, and it will be determined by the actions that are taken over the next few years. It is absolutely right that people should be able to hold us to account by raising their voices on our inaction. We have seen a brilliant wave of young people standing up for our environment—for a liveable planet for future generations. We should hold on to those thoughts as we protect protest.
Bob Blackman (Harrow East) (Con)
I rise to consider Lords amendments 89 and 146 and the Government’s amendments in lieu. I congratulate my right hon. Friend the Member for Newark (Robert Jenrick) and my hon. Friend the Member for Cities of London and Westminster (Nickie Aiken) on their speeches on this subject. I declare my interest as the co-chairman of the all-party parliamentary group on ending homelessness.
There are two aspects to the Vagrancy Act. The first, of course, is being homeless. I have always taken the view that someone should be assisted and not arrested if they have nowhere to live. That is one of the reasons it is desperately important that we end the Vagrancy Act as fast as we possibly can. One of the considerations is that when we go and speak to people who are homeless, rough sleeping on the street, they will say that they fear authority—they fear the police. They should not fear the police; the police should be able to assist in trying to direct them to charities or other bodies that can help them to find a secure place to live instead of their being threatened with either being moved on or literally being arrested. That is one of the most important reasons why we want this off the statute book as fast as possible.
The other aspect is begging. Antisocial behaviour, begging under false pretence of need, forcing others to beg and trespassing are all outlawed under our much more modern legal actions. The police have the powers to deal with this without using the Vagrancy Act, but they will use it because it is a catch-all. In 2014, 2,219 people were prosecuted under the Vagrancy Act, but in 2019 this dropped to 742, demonstrating that we do not need it any more and we must get rid of it.
During the pandemic, my right hon. Friend the Member for Newark led the way on ensuring that everyone was taken off the streets, for which I commend him and the whole Department. However, the rough sleeper count is now back to 4,500—half what it was in 2019 but still far too high.
I am glad that the Government have given way, finally, on abolishing the Vagrancy Act, but I am worried, because we cannot afford to wait 18 months. We will then reach the 200th anniversary of that Act being brought in, which was way before any of us were thought of, let alone born. The reality is, Minister, that you are considering the introduction of a new Bill that will delay things yet further. Can you give us—
Bob Blackman
Sorry, Madam Deputy Speaker. Will the Minister make sure that the consultation is very short? I see no reason to extend it beyond four weeks, and then the measure can be introduced and we can get rid of that Act once and for all.
Layla Moran (Oxford West and Abingdon) (LD)
Much of what the Liberal Democrats have issue with in the Bill has been covered by my right hon. Friend the Member for Orkney and Shetland (Mr Carmichael) in previous consideration. We are making a dangerous and draconian move today. We are told that it will be small steps, and I hope that is true, but in the light of what is happening in Ukraine, it is not a good look.
I will focus today on a chink of light in the Bill—a piece of positivity to take home with us tonight—which is the Vagrancy Act and Government amendment 146. I am delighted, genuinely, that the Government have tabled the amendment. It is four years and 21 days since I asked the then Prime Minister, the right hon. Member for Maidenhead (Mrs May), a question about the Vagrancy Act. I laid the first repeal Bill on that day, and there have been three since then and countless homelessness Ministers—we have lost count. I know that the Government want to claim credit for all these things like they were all their idea, and that is fine, but I end with a genuine thank you to all those Members on the Government Benches and the Opposition Benches, because this has been a cross-party proposal from the moment it was conceived.
Above all, I give credit to the students who brought me this idea in the first place. I have had many emails from them in the past couple of days saying they were in their third year at university, they had been kicked out of the clubs and they had talked to the homeless people on the streets of Oxford. They had asked them what scared them, and the homeless people told them about the Vagrancy Act. That started a petition, and that is how this began. It was the citizen creating change—that is democracy. It is extraordinary for them to start a petition and for it to end here, and I genuinely thank the Government for listening to their voices.
I echo the words and sentiments of the hon. Member for Harrow East (Bob Blackman) and others when they say there is no need to delay and that lawyers have looked at this. There are parts of the country where the police do not use the Vagrancy Act at all. We have tried and tested ways of dealing with this issue. We have already got the legislation. Every day that Act continues is another day that a homeless person is sleeping rough on our streets, scared that one single person—this Act is old, so no witness is needed—can come up to them and prosecute them under this Dickensian, outdated law. We do not need it one day more; this is a better country than that. We should not be saying to homeless people, “You are a criminal.” Instead, we should be acting with compassion and care, and I hope that is what we have started today.
David Simmonds (Ruislip, Northwood and Pinner) (Con)
Like many colleagues, I welcome enormously the steps that the Government are taking in respect of the Vagrancy Act. I will say no more about that and seek to concentrate on two of the most important aspects of the Bill for my constituents. They are two of the most important aspects where we need to be steadfast in not accepting some of the amendments that would weaken some of those key provisions.
The first is a point that has been aired a great deal in a lot of public correspondence: noise nuisance. The Environmental Protection Act 1990 set the legal framework and definitions that local authority noise teams need to use when seeking to address the disturbance being caused to the peaceful enjoyment of one’s home or property and the peaceful enjoyment and ability of people to go about their duties in their place of work. The Minister, like me, is an emanation of local government, so he will be aware of the frustrations that so many people express time and again, when they are unable to gain that peaceful enjoyment. The powers are weak, and the ability to ensure that action is taken to address disturbance is found to fall short. Many of my constituents will welcome the fact that the Government are taking steps not just to make protests, which sit outside the definitions of that Act, actionable under law and by the police, but to address the persistent disruption that can be created by noises that are not exceptionally loud, but designed to make it difficult for people to go about their duties or to enjoy their home or place of work in peace. Given the age of that legislation, the Bill takes a reasonable step.
The Bill mentions that the Minister is of the view that nothing is incompatible with the rights under the European convention. I am a member of the Joint Committee on Human Rights—I know that other members are present in the Chamber—which has taken evidence on a point that the hon. Member for Croydon Central (Sarah Jones) highlighted. I simply say how much I welcome the unamended powers in part 4 of the Bill, which seek to strengthen the position in respect of unauthorised encampments.
Again, as an emanation of local government, I am aware that my local authority and my neighbouring local authority spend hundreds of thousands of pounds of council tax payers’ money every year to clean up the consequences of unauthorised encampments in public parks and places that are normally enjoyed by our constituents going about their business, but who are prevented from enjoying those spaces by their unauthorised and unlawful use. The strengthening of those powers will make a material difference to our ability to maintain our constituents’ quality of life. For those reasons, I strongly support the Government in taking forward those powers unamended.
Lloyd Russell-Moyle
When people complain to me about the noise at Prime Minister’s questions, I always tell them that they can tune into any of the two-hour hearings of the Select Committees that I sit on and listen to some calm forensic questioning, but they do not, because shouting—the impassioned barrage of noise—is a fundamental of PMQs and of democracy. Democracy is noisy. Democracy is irritating, but that is democracy.
It will come as no surprise to hon. Members that I have attended a good number of protests and never once—never once—have I attended a protest without the intention to disrupt or to make a noise. Quite frankly, what would be the point? When our constituents feel that they cannot be heard through other means, they stand outside and they shout. Even if they are fox hunting supporters or Brexiteers, I smile when I walk past them as they are performing that basic level of democracy—from the agora to Parliament Square. The idea that we would criminalise those people is frankly disgusting.
Clive Lewis (Norwich South) (Lab)
My hon. Friend is making some excellent points. Does he see the irony that as we watch Putin’s tanks roll into Ukraine and protesters having their peaceful protests broken up by the police, we in this place are debating a Bill that would take away the right to protest?
Lloyd Russell-Moyle
I do. The expansion of police powers is highly disproportionate. In the words of a former police chief and senior officers who have written to the Government, it will place an “onerous burden” on and apply “greater political pressure” to frontline police. Ultimately, it will be up to the police to determine whether the low threshold has been met.
Ruth Walshe, a volunteer from Green and Black Cross, detailed her experiences of the police during the Black Lives Matter protests in 2020. She heard the police say to her:
“‘who does that b**** think she is’, ‘can’t we lock them and put them in a cell’, ‘what do those f****** want’”.
Reports of that type of behaviour are corroborated by the Charing Cross report, which found that officers present at those protests had made horrific homophobic, sexist and racist remarks. There are very many good police officers, but collectively, there is a problem in the police. Rather than trying to deal with those systemic problems, the Government are saying, “Make racist, sexist or homophobic abuses and you get more powers to control woman, people of colour and queer people.” It is outrageous.
I also rise to speak in support of Lords amendment 87, which would remove clause 61, which should really be called the “Get Steve Bray” clause. I have found Steve bloody irritating at times, but creating an unprecedented and disproportionate law to go after a man who interrupts the Minister’s Sky News interviews is quite frankly pathetic. Some hon. Members may remember Brian Haw, the peace campaigner who lived opposite. It was wrong then for the Labour Government to try to get rid of him from Parliament Square and it was right that Conservative Members stood up for him to stop the law being changed. They should be doing it now.
I will end with this observation. The Government did not like the Black Lives Matter protests when tens of thousands of young people went on to the streets for racial equality, they were embarrassed by the anti-Trump demonstrations during his state visit and they despised the 1 million people who marched to try to stop Brexit, so we are here with a Bill that tries to make the snowflakes opposite feel better. That, frankly, is what they are: the Secretary of State is a snowflake, and the Minister’s Back Benchers are snowflakes. They cannot cope with a bit of robust debate. They cry into their port in the evening when people say things they do not like or they are too noisy. Rather than debate them back or viscerally argue back, what they do is shut them down and make them illegal. It is nasty, it is wrong and it should go.
Ian Levy (Blyth Valley) (Con)
I will be brief, as I realise that time is pressing.
My father, sadly, passed away in September last year. Some years earlier, on his way home from work, he was involved in road traffic accident that left him almost dead and crippled, lying in a field. He never walked again. He was crippled by a hit-and-run driver, but because he received treatment in hospital very quickly, he survived, and because protesters were not blocking the road to the hospital he attended, he survived. My father went on to see marriages, grandchildren and great-grandchildren. My parents enjoyed years of marriage and had their 63rd wedding anniversary. I strongly believe that if protesters had blocked that road to the hospital A&E where I saw my father with his leg just about hanging off—it was absolutely horrific—[Interruption.] Thank you very much. In that case, I would not have had that time with my father, so I will be supporting this Bill tonight in memory of my father.
Joanna Cherry
I rise to support Lords amendments 73, 80 and 87, and to remind the House that they are very much in line with the recommendations made by the Joint Committee on Human Rights, when we looked at part 3 of the Bill and reached the conclusion that the restrictions on non-violent protest in the Bill were inconsistent with our rights.
Given the short amount of time, I am going to focus on the noise trigger, because I think that that is the most egregious part of this. A restriction on the right to protest that targets noise strikes at the very heart of why people gather together to protest—to have their voices heard about an issue that is important to them and which they want other people to treat with importance. We noted in the Committee that the larger and better supported a demonstration is, the louder it is likely to be, so restrictions on noise could disproportionately impact on the demonstrations that have the greatest public backing.
Much of the written and oral evidence we received emphasised the centrality of noise to effective protest. For example, Liberty and Big Brother Watch highlighted:
“Protests, by their very nature, are noisy. Noise is also a crucial means of expressing collective solidarity or grief and, quite literally, making voices heard by those in power.”
This was echoed in oral evidence by Zehrah Hasan, the director of Black Protest Legal Support, who said:
“Creating noise at a protest is quite literally a part of people making their voices heard.”
Another witness told us that
“this new trigger, which is noise, is an absolute affront to the right to protest. This noise trigger should not exist for the purposes of imposing any conditions on assemblies and processions. It is essentially an existential threat to the right to protest.”
That is just a flavour of the evidence we heard.
The Minister has referred to the European convention on human rights, but that is intended to provide rights that are “practical and effective”, not “theoretical and illusory”. If the police have discretion to shut down protests because they are noisy, the right to protest will become theoretical and illusory in England and Wales. Thankfully, these laws are not going to apply in Scotland, but as my hon. Friend the Member for Glasgow North East (Anne McLaughlin) said, many Scots come to London to protest and they will be affected by these laws.
I emphasise that, because it was made clear to the Joint Committee on Human Rights that neither the police, nor Her Majesty’s Inspectorate of Constabulary and Fire and Rescue Services, requested this noise trigger. They may have requested other changes, but they did not request that. As even Conservative Members have said, this measure is a fundamental threat to the right of freedom of speech and assembly in this country, and as the JCHR said in our report, it should not be in the Bill and it should go.
Mr Steve Baker (Wycombe) (Con)
I rise to speak to the amendments about noise, including Lords amendment 73 on processions, Lords amendment 80 on assemblies, and Lords amendment 87 on one-person protests. I am pleased that the Stop Brexit man, Mr Steve Bray, has come up, because I completely agree: he is profoundly annoying. He is very persistent, and he seems to have singled me out personally on a great many occasions—[Interruption.] I can’t think why. No indeed, I am grateful to Members for raising that. I cannot imagine why. The thing about Steve Bray is that he has become a great British institution. He is an oddball, he is a novelty, he is entertaining and, yes, he is annoying. Indeed, he could often be quietened down just by being offered an interview, and I would recommend that course of action to anyone.
The crucial point about Mr Bray is that he did not make one blind bit of difference to the course of events in this country—an entire waste of money for whoever has been paying for him to be there. Indeed, on his birthday one year he ran into me and my right hon. Friend the Member for Rayleigh and Wickford (Mr Francois), and posed for a beautiful selfie so that together we could, cheekily, enjoy his birthday. He is a great British institution, entirely pointless, and willing to celebrate with his opponents on his birthday. I do not think we should accept any amendments in order to target hard cases, because hard cases make for bad law.
I also wish to mention an article written jointly by me and the former right hon. Member for Beaconsfield, Dominic Grieve QC. In the aftermath of the protests over the Sarah Everard vigil, he and I wrote an article contextualising this Bill. I had then, and I have now, considerable concerns about what we are doing on protest, but I decided to hold my nose and vote with the Government. I have often said to people that I cannot be fighting on every front; nor should I be since I was elected as a Conservative. However, one person alone has persuaded me that I should agree with their lordships on the Bill. That person is the ostensibly Liberal Prime Minister of Canada, Mr Trudeau, and his treatment, ostensibly from a left liberal perspective, of protesters with whom he disagreed.
I note that the hon. Member for Croydon Central (Sarah Jones) condemned anti-vax protesters, and yes, they may well have a dangerous point of view. I have been pro-vaccine throughout this crisis, but we cannot condemn protesters because we happen to disagree with them politically. Goodness knows, right now I am the victim of a defamatory campaign in my constituency by people who evidently have not bothered to trouble themselves to look at my views.
Sarah Jones
Just to be clear, I am not against people having a position; our amendment seeks to make sure that clinics ensure that people get their vaccines, that NHS workers can get to work, and that we do not have anti-vax protesters stopping people going to work and doing their business.
Mr Baker
I am grateful to the hon. Lady for that clarification. Like her, I would like people to have the freedom to get vaccinated, and I have said that throughout the crisis.
With apologies to my right hon. Friend the Minister—and he is a friend—I agree with my right hon. Friend the Member for Hereford and South Herefordshire (Jesse Norman) and others. I commend to my right hon. Friend the Member for Newark (Robert Jenrick) just flirting with it—just get in that rebel Lobby with us. Let us say to the Government that actually this is going too far on noise. It is time to say, as the hon. Member for Brighton, Kemptown (Lloyd Russell-Moyle) vividly demonstrated, that yes protests are inherently noisy and annoying. If noise is ever used as a weapon, I am sure other instruments of law could be used.
Mr Tanmanjeet Singh Dhesi (Slough) (Lab)
As the dogs of war are unleashed in Ukraine, and women and men are dying defending their independence and freedom, it is timely to reflect on our own freedoms as citizens. We are debating one of the most egregious attempts to stifle our most fundamental rights, with ill thought through reforms without evidence-based justification. I am not alone in that assessment: more than 800,000 petitioners, ex-police chiefs and senior advisers as well as three UN special rapporteurs and Members of the House of Lords from across the political spectrum all have deep-rooted concerns about the Bill and its lasting implications in limiting our freedoms and dividing our communities.
Surely the freedom to protest is one of the most important freedoms. Protest has been the engine of reform throughout Britain’s history from the peasants’ poll tax protest of 1381 to the recent Black Lives Matter movement. The rights to challenge authority, to speak up, to chant and to march are freedoms that are part of who we are; we relinquish them at our peril.
Conservative Members will complain that the Bill does not remove the freedom to protest. Not in so many words, but the right to protest must include the right to be noisy. A quiet, supine protest or a protest denied because the shouting was too loud is no protest at all. The point of protest is to give a collective voice to those who feel that they have not been listened to, particularly for marginalised and oppressed communities who have been told too many times to keep quiet. The Public Order Act 1986 was introduced by the Thatcher Government in the wake of the miners’ strike. Are Ministers really saying that Thatcher did not go far enough and that she was a soft touch on protestors? That is not how I remember it. I beseech the Home Secretary and Ministers to think again, even at this late stage.
Caroline Lucas
The hon. Member is giving a good speech. Does he agree that the Bill is part of a wider pattern that makes it even more dangerous? When we consider it alongside voter suppression measures, attacks on the Electoral Commission and judicial review, the extension of the Official Secrets Act and threats to the Human Rights Act, it is part of an attack on the very heart of our democracy.
Mr Dhesi
I completely agree with the hon. Lady. As she says, the damage from the many things being combined by the Government will have a devastating impact on our democracy.
The measures proposed by the Government to tackle crime are also deeply worrying. They are failing to tackle the roots of crime and antisocial behaviour, and yet I am hardly surprised. Their record is of taking more than 20,000 police officers off our streets and ceding ground to criminals, and even now they have not made up for the numbers of police, civilian staff and police community and support officers that they cut. When people do not see police in their communities, as has been the case in my constituency, they feel less safe and secure, and crime goes up. In actual fact it is up 14%, according to the Office for National Statistics—not to mention the huge reduction in convictions for rape and domestic abuse. Why are the Government, through the Bill, making such an appalling attack against the Gypsy, Roma and Traveller communities even though the police do not want the extra powers?
There is chaos in the criminal justice system with a backlog of years for cases. Victims and witnesses are simply giving up and criminals are laughing up their sleeves. The Government’s response is to close courts, with 300 closed since 2010. They simply do not get it. We must defend the right to protest, to picket and to make a racket when we feel that we are not being listened to.
Richard Fuller (North East Bedfordshire) (Con)
I rise to speak to the amendments on noise and protest. Frankly, I should not have to. At the beginning of the Bill process, I was discussing the Bill with a friend of mine who said, “This is a ridiculous thing to put in the Bill.” I said, “Don’t worry—the Government will accept amendments in Committee.” They did not. Then I said, “Don’t worry—if they do not do it in Committee, they will surely accept their lordships’ amendments.” I have certainly yet to see the Government make enough concessions on that. That has led me to worry.
I worry that at a time when Conservatives should be promoting freedom of speech, we have created a weapon for our opponents to say that we oppose it. We should not be doing that. I worry that Government Members give the impression that we think that demonstrations are okay as long as they are nicely decorous, barely audible and easy to miss, and we forget that anger and frustration are natural human emotions that find their expression in a democratic society through the ability to protest and, yes, make a noise. I worry that, while Opposition Members have talked about the concern regarding large protests, the measures will actually have more effect on more marginal issues and smaller groups. I think back to the 1980s and the group AIDS Coalition to Unleash Power, which was protesting to provide AIDS treatment to people. There was never a noisier, more active, disruptive group than ACT UP in my memory. They were representing a group that was marginalised, so they could only make a noise to make their voice heard. I worry that the Bill will have an undue impact on marginal groups.
I worry that, at a time when we need clarity so much in the way in which the law affects people’s lives, the Bill is so vague that people will say, “Why are we ‘noisy’ and not them?” How on earth does that help us to create a calmer discourse between those who have different opinions? I worry that we are asking the police to make too many judgments at a time when the police themselves want clarity, and not to be put into the mix. I love the fact that the British police do not care what people are protesting about, so why are we creating something where, in the moment, they have to make a judgment? I worry ultimately that, at a time when in our society we need trust between people with profoundly different opinions, the provisions in the Bill do nothing at all to help in that regard.
Liz Saville Roberts (Dwyfor Meirionnydd) (PC)
Recent days have indeed underlined the importance of peaceful protest and freedom of expression. Only this weekend I helped to organise, alongside my hon. Friend the Member for Arfon (Hywel Williams), a rally for solidarity in Caernarfon for the people of Ukraine against the illegal invasion of their country. We joined, of course, a wave of demonstrations that have been sweeping across Europe. Meanwhile, the whole world is witnessing the bravery of protestors in Russia, who are defying Putin’s authoritarian regime to take to the streets against the illegal invasion of Ukraine. Thousands of Russians have been arrested, some simply for holding up anti-war signs—a clear violation of people’s right to peacefully protest. Yet what do we find ourselves discussing here?
While the UK Government are quick to denounce the authoritarianism of Putin’s Russia, they are set on implementing part 3 of the Bill, which is a direct threat to people’s right to protest in Wales—a right that is integral to the history of Wales as a nation. From protests against the enclosure of land in Gwynedd in the 1810s, the Chartist uprising in Newport in the 1830s, the Rebecca riots by tenant farmers against the payment of tolls in the 1840s, language rights—the very essence of noise—protests in the 1960s, and the miners’ strikes in the 1980s, to recent protests on racial injustice and the cost-of-living crisis, it is clear that the act of protest is woven through the past and present of Wales.
I welcome the changes to part 3 in the other place to remove the limits on our protest rights, such as Lords amendment 30, which removes new restrictions from public assemblies, but the Government have made it clear that they have no intention whatsoever of listening to the overwhelming cross-party opposition on these issues. Not content with clamping down on our right to protest, the UK Government have launched a new attack on Welsh Gypsies, Romas and Travellers through part 4 of the Bill. Despite already being marginalised by society, it will criminalise their way of life and allow for the confiscation of their homes. Importantly, it will directly undermine existing devolved Welsh legislation.
The criminalisation of Gypsy, Roma and Traveller adults will have a knock-on effect for their children, who are at greater risk of being taken into care, directly undermining the Rights of Children and Young Persons (Wales) Measure 2011, which places a duty on Welsh Ministers to have due regard for the rights of children as set out under the United Nations convention on the rights of the child. Criminalisation contravenes part 3 of the Housing (Wales) Act 2014, which places a legal obligation on local authorities in Wales to both assess and provide for residential and transit provision for Gypsies and Travellers. Our Senedd rightly refused to grant consent for the changes to part 4. It would therefore be wrong to apply it in Wales. That is just one example of the creeping effect of this place on devolved legislation. We must stand firm against it; otherwise, our Senedd in Wales will be being ignored.
Brendan Clarke-Smith (Bassetlaw) (Con)
I will always defend the right to protest. Members could say that it is part of the glue that binds us together, which I will come on to a little later. Recently, Unite the union decided to picket a jobs fair that I organised in Worksop, which I thought was quite a bizarre thing to protest against. It was well attended by people from outside the constituency.
We had people from Broxtowe Labour and Socialist Worker, and people bussed in from Nottingham and Chesterfield, but nevertheless I defend their right to do that, not least because it helps to support my pledge to increase footfall in Worksop town centre. While it was unpleasant for some of the more vulnerable job seekers, it did not put people off. Hundreds attended and many secured jobs there and then.
What I will certainly not defend is mindless hooliganism, breaching the rights of others, putting livelihoods at risk and indeed putting lives at risk. Some of the worst episodes I have witnessed involved so-called protesters gluing themselves to trains and buses. Aside from the mindless damage caused by those protesters—be they from groups such as Extinction Rebellion or others—we witnessed first-hand these people preventing ambulances getting to hospitals, which happened right here on Westminster Bridge. We also saw them blocking motorways such as the M25 and preventing people from getting to work. And this coming at a time when people were desperate to protect their livelihoods in the face of the huge challenges of the covid-19 pandemic. Our children have been prevented from getting to school at a time when their education has already been affected by disruption on numerous occasions. I asked those people, “How are you helping to protect the environment when you are stopping people from using public transport?”
I have sadly succumbed to the parliamentary stone since entering this place. I have been told many times that I look nothing like my official photograph on the website or my roller banner and a little more worse for wear. Yet as bad as it is getting, I still do not quite feel the need to glue my face to the floor as an Insulate Britain protester decided would be a good idea, although I gather that was to disrupt traffic rather than for aesthetic reasons.
It is not just about roads. We have also seen disruption around schools and vaccination centres, but it would be a mistake to limit legislation to those areas. We must make sure we protect our critical national infrastructure and we need to make sure that happens all over the country and in constituencies like mine. Whether it is dealing with harmful acts by legislating to stop them being reprobates in Retford, hoodlums in Harworth or—I am going to stop with the alliteration before I get back to Worksop—the Bill will make action that is tough but fair a reality. That is why we should not accept amendments that water down this excellent Bill.
Jeremy Corbyn (Islington North) (Ind)
I want to refer to two parts of the Bill: on protests and on Travelling communities.
I was one of the organisers of the huge 2003 demonstration against the war in Iraq. It was obvious that whatever restrictions the police or the Government wanted to put on that demonstration, they could not because the numbers—1 million in Hyde Park and hundreds of thousands more in the streets—were so huge. That demonstration was historic for its size and effect. What we have before us now is far too much discretion being given to the police to decide whether a demonstration should go ahead or not, or whether it is appropriately noisy or not. I do not think that many police even want that discretion. The Minister was very vague on when there would be any review of the legislation, should it go through tonight. He conceded that it should be reviewed, but did not say when that would happen.
If a demonstration is to mean anything, it must be effective, it must be loud and it must cause some degree of disruption. What I see coming ahead is the police trying to arrest samba bands and taking away PA equipment and so on. That will send a message all around the world that this country is closing down on demonstrations at the very time we are saying we support demonstrations in other parts of the world. Every single one of the rights we have was won by people being brave enough to protest. The Chartists and many others put themselves at enormous risk to get a message across and bring about a change in society. Protest is an essential part of a decent, free and democratic society. We should not be voting for restrictions and we should not be giving the police the powers to prevent protests in our society. That is a very bad move.
The other side of the Bill that I will refer to in the little time that I have left is the attitude towards Travelling communities. They are abused and discriminated against all over this continent of Europe, and they are treated abominably. They get a very bad press and are treated like pariahs by much of the media, yet we claim to support the European convention on human rights and, through our Human Rights Act 1998, we claim to support the right to lead that nomadic life, the right to be Travellers and the right to access appropriate sites.
What we are doing is bowing down before some unpleasant anti-Gypsy, Roma and Traveller community pressures to restrict that right. We should not be doing it, because if we restrict that right and go against Gypsy, Roma and Traveller communities, we go after many, many other communities as well. In my view, it is discrimination, pure and simple, against an historic tradition of the right to roam in our society.
Paula Barker (Liverpool, Wavertree) (Lab)
Ever since I entered this place, not one Bill has occupied as much space in my inbox as this one, and I am sure that many Government Members have been similarly inundated with messages from their constituents. Many of my constituents are horrified, disturbed and frankly suspicious of this Government’s attempt to severely suppress the right to protest. Some of those who are getting in contact with me have never attended a protest, but like me, they are absolutely committed to preserving and protecting our fundamental rights. These constituents are currently watching the autocratic President Putin on their TV screens arresting hundreds of his own people for peacefully protesting and demonstrating against his country’s barbaric assault on Ukraine.
The Conservative party of the 21st century has shed all illusions of being a party that is committed to conserving, protecting and defending our liberal democracy and, indeed, of being a party that is committed to the liberalism that I had assumed was a key tenet of its ideology. Thankfully, the other place has rejected a string of proposals that would have given the police in England and Wales increased powers, including the power to stop and search anyone at a protest without suspicion. Even many Conservative peers did not support the Government’s proposals.
Sadly, however, the likes of clause 55 still exist in the Bill. Make no mistake, the noise clause is a crack-down on dissent. It provides more tools in the establishment’s armoury. It is authoritarian and draconian. The clause effectively ends the right to protest as we know it and provides yet another example of this virtue-signalling Government—
Paula Barker
I am sorry; I will not, because the hon. Member has just come in, and lots of Opposition Members wish to speak and have been here since the start of the debate.
The clause is yet another example of this Government giving extra powers to the police that they have neither asked for nor do they need. I have long given up appealing to Government Members to do the right thing. Rather, it is best that we just tell them that they are doing the wrong thing, and they will be doing the wrong thing if the Bill passes. Hundreds of solidarity protesters gathered on Downing Street at the weekend to express support and solidarity to Ukraine and her people. Those sentiments have been expressed right across the House. The protesters were noisy, and they were loud. Are this Government telling me and everyone else in the Chamber today that they would shut them up next time? What a sorry state of affairs.
Allan Dorans (Ayr, Carrick and Cumnock) (SNP)
I wish to speak in support of Lords amendments 73 and 80, which would remove the ability of the police to impose noise-based restrictions on processions and greater conditions on static demonstrations. Peaceful protest is a legitimate and integral part of our unwritten constitution and for the Government to interfere with those rights and to try to impose restrictions and unnecessary conditions that affect and violate basic human rights is nothing less than appalling.
If Lords amendments 73 and 80 are not accepted, there are great concerns that police officers will be placed in the unenviable position of having to adjudicate between different stakeholders on the basis of broad and ambiguous criteria about whether to allow a “noisy” or “disruptive” protest to take place or continue. Far from enabling the police to maintain public order, these provisions will place an onerous burden on police officers in the exercise of their professional discretion, subjecting the police to even greater political pressure.
The police already have sufficient powers under the Public Order Act 1986. The additional powers in clauses 55 and 56 of the Bill are neither necessary nor welcomed by many senior police officers. As a uniformed police inspector in the Metropolitan police, I had extensive experience of dealing with public order and with processions and demonstrations of all sizes, and I can say honestly that none of them needed any further legislation; they could all be effectively dealt with by the current legislation.
There are serious concerns that the police, who serve a vital function in enforcing the law, are being instrumentalised for political purposes. That will erode the trust of the public, seriously damage the relationship between the police and the public, and adversely affect the cherished tradition of policing by consent that is at the heart of policing and our society.
Despite the disparaging remarks made by the hon. Member for Brighton, Kemptown (Lloyd Russell-Moyle), I pay tribute to the police officers out there policing our streets, who are overwhelmingly honest, trustworthy and hardworking. I commend them for putting themselves at risk and in danger to keep us all safe.
Kit Malthouse
I am grateful to all hon. Members who have spoken in what at times has been an impassioned debate. I have to say that it has been quite a rich experience to hear a defence of democracy from an Opposition whom I watched for month after month using every technical device at their disposal to try to overturn the democratic decision that the British people took in the 2016 referendum. Those months, happily, are long behind us, and the British people gave their verdict on that attempt to circumvent democracy in the 2019 general election, from which I am happy to say we all benefited.
Much of tonight’s debate has been about the difficult job for any democratic Government of balancing the rights of competing groups: the rights of people who own land, and of those who use land; the rights of public authorities that have parks, and of the Travelling community; the rights of those who want to go about their business and access hospitals, schools or businesses, and of those who wish to protest. These are difficult balances that democratic Governments have to strike from time to time. The Labour party has had to do it in the past; I well remember it banning any protest within 1 km of Parliament. The first arrest was of a woman reading the names of the Iraq war dead at the Cenotaph, if I remember rightly. That, I will admit, was a step too far.
We believe that the package of measures that we have put forward on protest represents a modest rebalancing.
Several hon. Members rose—
Kit Malthouse
I am not giving way. It is a modest rebalancing of the rights of the majority of British people who want to go about their business and the rights of those who quite legitimately want to protest. We yield to no man or woman in our desire to protect those inalienable rights of protest and dissent in this country. Our party has been in the position of protesting and dissenting in the past, as have many parties represented in this House. We do not take it for granted; we wish to protect it, and we believe that we are doing so while striking a balance.
On the undertaking that I was asked to give about the Vagrancy Act, let me say that 18 months is a maximum. If we can act faster, we will, but intensive work will obviously be required to get us there.
I believe that the Bill in its entirety represents a solid step forward, both for the safety of the country and for the difficult job of balancing our competing rights in what is now and will always be a liberal democracy.
Lords amendment 71 disagreed to.
Government amendment (a) made to Lords amendment 74.
Lords amendment 74, as amended, agreed to.
Government amendment (a) made to Lords amendment 88.
Lords amendment 88, as amended, agreed to.
More than six hours having elapsed since the commencement of proceedings on consideration of Lords amendments, the proceedings were interrupted (Programme Order, this day).
The Deputy Speaker put forthwith the Questions necessary for the disposal of the business to be concluded at that time (Standing Order No. 83F).
Motion made, and Question put, That this House disagrees with Lords amendment 73.—(Kit Malthouse.)
Lords amendment 73 disagreed to.
Police, Crime, Sentencing and Courts Bill
Tuesday 22nd March 2022
(2 years, 1 month ago)
Lords ChamberRead Full debate Police, Crime, Sentencing and Courts Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 123-I Marshalled list for Consideration of Commons Reasons and Amendments - (21 Mar 2022)
11:55 - Division on Motion A1 - Ayes: 181 / Noes: 157 - Motion A1 agreed.
13:46 - Division on Motion D1 - Ayes: 198 / Noes: 155 - Motion D1 agreed.
Lord Sharpe of Epsom
That this House do not insist on its Amendment 58, to which the Commons have disagreed for their Reason 58A.
Lord Sharpe of Epsom (Con)
My Lords, I will also speak to Lords Amendments 89 and 146, and Amendments 114 to 116, which are in this group.
Noble Lords will recall that Amendment 58, put forward by the noble Lord, Lord Rooker, would confer a power on the Secretary of State, by regulations, to apply any provisions of the Police and Criminal Evidence Act 1984 to the investigation of offences by officers of the Food Standards Agency’s National Food Crime Unit. As I set out during the debate on Report, the Government recognise the serious nature of food crime and the importance of empowering the National Food Crime Unit to investigate these offences independently, so that its specialist knowledge is put to best use and the burden on the police is reduced. We support the principle behind the noble Lord’s amendment and recognise his concern on the likelihood of another food safety scandal.
However, it remains the case that there is further work to do before we can move forward with legislation. Before proceeding with an extension of police powers to the National Food Crime Unit, we would need reassurance that what is proposed is necessary and proportionate and that suitable accountability arrangements will be in place, including in respect of the investigation of complaints.
Specifically, we will need to work with the National Food Crime Unit, the Independent Office for Police Conduct and Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services on establishing a formal independent oversight framework for the NFCU’s exercise of these powers and the potential for the NFCU to be brought under their respective jurisdictions, as the Gangmasters and Labour Abuse Authority has been. This is likely to require other legislative changes in addition to that provided for in Amendment 58.
Given that we are dealing with intrusive powers of the state, I am sure that noble Lords will understand that we must ensure that these necessary oversight mechanisms are in place in tandem with conferring certain police powers on the NFCU and not legislate for these separately as an afterthought. These are complex issues that will require detailed consideration and I know that noble Lords would not want the Government to confer intrusive powers on the NFCU without also putting in place the arrangements for use of these powers to be properly and independently scrutinised and for any misuse of powers to be dealt with swiftly and appropriately.
We are committed to working with the Food Standards Agency and its sponsoring department, the Department of Health and Social Care, to take this work forward, as we recognise that these legislative changes are in the long-term interest of all those concerned with combating food crime. The Health Secretary has agreed that the Food Standards Agency should publicly consult on the question of additional investigatory powers later in the spring, which will allow a broad spectrum of views to inform and enhance the development of these proposals. I know that the noble Lord, Lord Rooker, and other noble Lords want to make progress with this issue, but I hope that this House will agree with the other place that it is premature to legislate in this Bill and that additional time is needed to get the package of legislative changes right.
Turning to Lords Amendments 89 and 146, I commend the noble Lord, Lord Best, my noble friend Lord Young of Cookham and other noble Lords who have campaigned with such determination and, I might add, so effectively for the repeal of the Vagrancy Act 1824. The Government agree that the Act is antiquated and no longer fit for purpose. That is why we have brought forward amendments in lieu to consign this outdated Hanoverian statute to history.
However, as my noble friend Lady Williams indicated on Report, we must balance our role in providing essential support for the vulnerable with making sure that we do not weaken the ability of the police to protect communities who play an important role in local partnership approaches to reducing rough sleeping. We must ensure that the police have the tools that they need to effectively respond to behaviour that impacts negatively on communities and to protect all individuals.
Therefore, although the Government are committed to repealing the Vagrancy Act in full in England and Wales, these provisions will be commenced only once we have suitable replacement legislation in place. As the Policing Minister indicated in the debate in the Commons, it is our intention to commence the repeal within 18 months of Royal Assent. As a first step, we intend to consult on this issue in the coming months.
In the meantime, we will deliver a bold new rough sleeping strategy, which will set out how we will end rough sleeping, building on recent success in ensuring that rough sleeping is prevented in the first instance and is effectively responded to in the rare cases where it does occur, but also ensuring that our police have the ability to intervene where needed to keep people safe.
Finally, the House will recall that Amendments 114, 115 and 116 seek to specify matters to be addressed in the report on the operation of the pilot for serious violence reduction orders and to provide for the national rollout of SVROs to be conditional on a parliamentary vote. I appreciate the case that the noble Baroness, Lady Meacher, and other noble Lords have made and agree that the pilot must be robust and its evaluation thorough. The assessment of the pilot will be conducted by an independent evaluator and the Government will consider thoroughly the findings of the report on pilot before any decision is made to roll SVROs out across England and Wales. The report will be laid before Parliament. However, commencement regulations are not normally subject to any parliamentary procedure and, although we are not bound to follow the precedents in this regard, the Government remain of the view that this approach should not be changed for SVROs.
However, we accept that the Bill can and should say more about the evaluation of the pilot and the content of the report on its outcome. Amendments 116A and 116B agreed by the Commons are directed to this end. These amendments specify a non-exhaustive list of matters that must be addressed in the report of the pilot. They include information on the number of offenders with an SVRO; information about the offences that were the basis for application for an SVRO; information about the exercise by constables of the powers in Section 342E of the Sentencing Code; an assessment of the impact of SVROs on people with protected characteristics within the meaning of the Equality Act 2010; an initial assessment of the impact of SVROs on reoffending rates of those who are subject to an SVRO; an assessment of the impact on offenders of being subject to an SVRO; and information about the number of offences committed under Section 342G of the Sentencing Code and the number of suspected offences under that section that have been investigated. This a comprehensive list and, as I indicated, it is not intended to be exhaustive.
We have listened and acted. I hope that the noble Baroness, Lady Meacher, will agree that the Commons amendments in lieu respect the spirit of her amendments. For all those reasons, I invite the House to support the Motions in my noble friend’s name. I beg to move.
Motion A1 (as an amendment to Motion A)
Lord Rooker
Leave out from “House” to end and insert “do insist on its Amendment 58”.
Lord Rooker (Lab)
My Lords, contrary to what we have just heard, this issue was not discussed in the House of Commons when it was sent there. The Minister said about three or four sentences, which I will refer to in a moment.
This is a piece of enabling legislation, which will save hours of parliamentary time and slotting for parliamentary time in due course. I am reminded of the late Alf Morris; once when someone said to him, “We’ll kick that into the long grass”, he asked, “How long is the grass?” and the answer came back: “Can you see the giraffe?” That is what I am trying to avoid.
Amendment 58 seeks to place the new section after Section 114B in the Police and Criminal Evidence Act 1984. Section 114B(1) states:
“The Secretary of State may by regulations apply any provision of this Act which relates to investigations of offences conducted by police officers to investigations of labour market offences conducted by labour abuse prevention officers.”
That was the bit that the Government put in the PACE Act to help over exactly the same problem with the gangmasters. Amendment 58 is taken from subsection (1) of that part of the legislation.
In a public presentation last Friday of the Food Standards Agency’s new five-year plan, the current chair, Professor Susan Jebb, said:
“We are pursuing greater powers for the National Food Crime Unit”.
This amendment does just that. There is no pressure on timing. The Secretary of State “may” act. It is pure enabling.
Baroness Boycott (CB)
I support the amendment from the noble Lord, Lord Rooker. It is insane that we do not have this. Food crime is complicated and difficult. Food chains are very long with no roles of responsibility. It is not like selling an egg to your next-door neighbour and then they end up sick; the egg has probably travelled 1,000 miles and nobody really gives a stuff about what happens at the other end.
There are lots of categories of food crime: illegal processing, which can mean the unapproved slaughter or ingestion of food; waste diversion, which means you send waste food back into the supply chain; adulteration, which is fake food; substitution, which is what happened in the horsemeat scandal; misrepresent-ation, which is endless and to do with marketing saying, for example, that pork has come from a happy pig when, in fact, it came from some pig reared in Poland in a miserable condition; and discount fraud. It is very common, widespread and difficult to deal with.
The fact that we bring only a tiny number of prosecutions, as the noble Lord, Lord Rooker, mentioned, is a scandal, but it is one that we can fix. The FSA has a brilliant new chair in Professor Susan Jebb, who is gagging to go and to get on top of this. It would do more than just sort out crime; it would also bring safety and responsibility. It would stop this massive dispersion of food into all different places.
The noble Lord, Lord Rooker, mentioned the horsemeat scandal of however many years ago. At that point I was working for the current Prime Minister as chair of the London Food Board. He rather jovially suggested that he and I should go up to Trafalgar Square and eat a horsemeat burger. We did not, because it probably would have got him into even more trouble than usual. However, the point is that at that moment we all saw the chains. Some of that horsemeat had passed through no fewer than 15 hands as it travelled around, each time making a little bit of money. Every moment is a moment for adulteration. I cannot understand why the Government are not happy to accept the amendment and to put it in the Bill. We would then have a much brighter future for all of us.
Lord Cunningham of Felling (Lab)
My Lords, I strongly support my noble friend—indeed, my very personal friend. He and I wrote the White Paper on the Food Standards Agency. It was necessary then and it was the right thing to do. The public had lost confidence in politicians of all parties and we had to create a new and independent organisation. That is what we did. Believe me, I cannot for the life of me understand why Ministers object to the proposal. It is already in legislation, so what is the problem?
The reality is that food crime is a global occupation. The European Union is concerned about it, as is the Government of Australia. In the United States of America, the Department of Justice recently fined a Brazilian company $110 million for trying to rig the beef market. For that matter, it also tried to rig the chicken market there. We need these powers to combat that level of organised and very sophisticated criminal activity in food markets. I do not know why there is any hesitation about this. If America can do it, we can. Australia is looking very closely at the activities of this same food company intervening in the Australian market. It already has two subsidiaries here in the UK. I have drawn this to the attention of the noble Lord, Lord Benyon. The reality is that, unless we strengthen the Food Standards Agency, these people will fiddle, rig, and have criminal activities in our food markets. We cannot stand by and allow that to happen. As I said at the outset, I strongly support my noble friend’s amendment. I urge noble Lords on all sides of the House to support it too.
Lord Young of Cookham (Con)
My Lords, in his opening remarks my noble friend spoke to Amendment 89, and I hope that it is in order to introduce a more consensual note to this debate by welcoming Amendment 89. The first subsection of the new clause states:
“The Vagrancy Act 1824 is repealed.”
This shows the value of your Lordships’ House. When the legislation came to this House, there was nothing in it at all about the Vagrancy Act. But an all-party campaign, led by the noble Lord, Lord Best, who had hoped to speak to this amendment, inserted an amendment that would have repealed the Vagrancy Act in its entirety. That went back to the other place and, following a very constructive meeting with the Minister, my noble friend Lady Williams, and Minister Eddie Hughes, a satisfactory compromise was reached that is set out in Motion J and government Amendment 89, which, as I said, begins:
“The Vagrancy Act 1824 is repealed.”
My noble friend explained that there may be sections of the Vagrancy Act that need to be kept and therefore that total repeal is subject to a review, with an undertaking that it will be repealed in its entirety, subject to that review, within 18 months. I am most grateful to my ministerial friends for their constructive approach and I wonder whether the Minister, when he winds up, can say when the review that he referred to will be completed, and when we can have the assurance that there is nothing in the Vagrancy Act that needs to be kept and that, within the total span of 18 months, it will be repealed in its entirety. On behalf of all those who supported the campaign led by the noble Lord, Lord Best, I say that we very much welcome the outcome of our discussions.
The Lord Bishop of Manchester
My Lords, I echo the thoughts that the noble Lord, Lord Young, has just shared. I declare my interest as chair of the Manchester Homelessness Partnership board and as co-chair of the national police ethics committee, because I also wish to speak to the Motion regarding serious violence reduction orders.
I support the Vagrancy Act repeal, as I know my right reverend and most reverend friends on these Benches do, and have sought to see that included in previous Bills. I am grateful that it is now on track and I look forward to working with Ministers and others to ensure that we avoid any unintended consequences and do not simply recreate the old Act in more modern language.
On serious violence reduction orders, I am deeply concerned about knife crime. In fact, in Greater Manchester we are holding a summit on the afternoon of Friday of next week and I would be delighted if the noble Baroness the Minister could join us on that occasion, if her diary permits. As one of those who sponsored Amendments 114 to 116, I am grateful that we now have an expanded list of things that the review of the pilot must include and I am grateful for the assurances that we have heard today that the list is not exhaustive.
I still have concerns that these orders may prove unworkable, that they may put vulnerable women and girls at greater risk or that they may damage community relations with police through their disproportionate application. At worst, I think that all those things could happen, but for now I am willing to accept that the review is in good faith. Again, I look forward to seeing how the lessons learned from it will be taken fully on board and incorporated into any subsequent national rollout of SVROs.
Baroness Bakewell of Hardington Mandeville (LD)
My Lords, I will speak briefly to Motion A1. I congratulate the noble Lord, Lord Rooker, on his introduction and support his amendment. Organised food crime costs billions and the police have far more urgent priorities to deal with. Food-borne illnesses cost money in lost earnings and even in some cases result in death. In the current food shortage scenario, it is open season for the unscrupulous to take advantage and exploit the public by producing and selling adulterated food that is not fit for human consumption. They avoid prosecution while the police are completely overstretched. This amendment would assist the FSA to act to prevent future food scandals. I fully support the noble Lord, Lord Rooker, and urge the Government to accept this very sensible amendment.
Lord Paddick (LD)
My Lords, we support Motion A1 in the name of the noble Lord, Lord Rooker. Compared with other important issues that the House is considering today, it is a relatively minor one. None the less, it will save no time if we abstain, so if the noble Lord divides the House, we will support him.
On Motion J, although the repeal of the Vagrancy Act is very welcome and something for which Liberal Democrats have been campaigning for many years, it is unfortunate that the Government are still insisting on delaying the repeal of the outdated and unnecessary Act until replacement legislation is in place, as we believe that existing alternative legislation is sufficient. Unlike the noble Lord, Lord Young of Cookham, I heard the Minister say that the Government will commence, not conclude, repeal in 18 months—I wrote it down. If I am right and the noble Lord is wrong, can the Minister tell us how long it will take to repeal the Act in its entirety?
On Motion L, serious violence reduction orders will allow the police to stop and search people without any suspicion that those targeted have anything on them at the time they are stopped and searched that they should not have in their possession. It is another form of stop and search without suspicion, which is notorious for being ineffective. It is even less effective at finding weapons than stop and search based on suspicion and it is disproportionately focused on black people, even compared with stop and search based on suspicion. As a consequence, it is notorious for the damage that it causes to the relationships between the police and the communities they are supposed to help. The Government’s own impact assessment shows that these measures will disproportionately impact black communities and fly in the face of the Government’s response to the report by the independent Commission on Race and Ethnic Disparities.
The police need to work together with communities suffering serious violence to build trust and confidence and to demonstrate that they are on the side of the community—not using powers disproportionately against it, as these new powers, by the Government’s own admission, will continue to do. Even Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services says that the disproportionate use of powers against certain communities is “undermining police legitimacy”.
Like the right reverend Prelate the Bishop of Manchester, we have concerns. We believe that serious violence reduction orders are likely to make serious violence worse, as they further alienate the very communities the police need to co-operate with to identify the perpetrators. However, we have reluctantly agreed to see how SVROs, arguably a manifesto commitment, work in practice in a limited number of pilot areas. We supported an amendment in the name of the noble Baroness, Lady Meacher, on Report that would have strengthened the proposed pilot evaluation and prevented SVROs from being introduced beyond the pilot phase until a report on the pilot had been laid before Parliament and both Houses had agreed to the rollout.
The Minister has given assurances that the pilot will be independently evaluated and that the Government will not continue with the scheme if it proves, as we suspect, to be ineffective or counterproductive. The evaluation must include crime reduction outcomes and community impact assessments. Given those reassurances and the Government’s strengthening of the pilot evaluation, we have agreed with the noble Baroness, Lady Meacher, not to insist on her amendments, but we will be watching the pilots very carefully and listening to the communities affected, whose trust and confidence in the police is essential if knife crime is to be tackled effectively.
Lord Rosser (Lab)
There are three issues in this group and I wish to say something about all of them. Starting with Motion A1, I thank the noble Lord, Lord Sharpe of Epsom, for sending me a copy of his letter of 22 February to my noble friend Lord Rooker on Lords Amendment 58, which relates to the Food Standards Agency. As the letter says, the amendment gives powers available to the police under the Police and Criminal Evidence Act 1984 to the National Food Crime Unit of the Food Standards Agency. However, the Commons disagreed with the amendment, giving this reason:
“Because it is premature to confer new search and seizure powers on the Food Standards Agency until the accompanying accountability arrangements, including in respect of the handling of complaints about the exercise of such powers, have been determined.”
Yet Lords Amendment 58 does not lay down a specific date or timescale by which powers available to the police under PACE have to be given to the National Food Crime Unit. It simply says:
“The Secretary of State may by regulations apply any provisions of this Act to investigation of offences conducted by officers of the National Food Crime Unit in respect of search and seizure.”
If I am right, the Commons reason suggests that the Commons and the Government never actually read the terms of Lords Amendment 58. That is surprising, since the letter from the Minister to my noble friend Lord Rooker states that
“the Government agrees in principle that these powers should be conferred upon NFCU officers in order to support their vital work tackling food crime.”
There is no argument about whether the powers should be given, but simply over when they should be given. Lords Amendment 58 would give the statutory authority to the Secretary of State to give those powers but leaves it up to the Secretary of State to decide when the time is right. So what is the problem with the amendment?
The letter from the Minister goes on to say:
“Food crime is a very serious issue and empowering the NFCU to investigate these offences independently will ensure that their specialist knowledge is put to best use and that the burden on police forces is reduced”.
Yet the Commons and the Government have disagreed the amendment. The Minister goes on to say that
“further work is required to fully work through the implications of these proposals to ensure that any exercise of police powers by a non-police body is necessary, proportionate and legitimate and that suitable governance and accountability arrangements will be in place”,
and:
“For these reasons we have tabled a motion to disagree with Lords amendment 58”.
But Lords Amendment 58 does not say that the Secretary of State has to do it; it would simply give the Secretary of State the necessary statutory power to do it if and when the Secretary of State so wishes, which is the point being made by my noble friend Lord Rooker. Frankly, the Government really are struggling to think of a credible argument why Lords Amendment 58 should not be accepted.
The powers currently available to the Food Standards Agency under food law relate to the enforcement of regulatory matters. The NFCU investigates cases of serious crime, often involving offences such as fraud. However, the FSA’s existing powers do not sufficiently equip the NFCU to investigate these crimes fully and lawfully, and to collect evidence to the higher standard needed to prove criminal intent, without the support of partners in the hard-pressed environments of policing or local authorities.
As part of the FSA, the NFCU already has access to sensitive law enforcement powers around directed surveillance, securing communications data and the management of convert human intelligence sources. But NFCU officers have not yet been given essential investigatory powers, including the power to apply to courts for warrants to search premises and seize evidence, or to interview suspects without police officers present. The unit has to rely on the support of partners, including the police forces, to carry out these activities. This means that the courts are not hearing from the experts familiar with the cases, which can increase the likelihood that warrants are not authorised.
As I understand it, competing demands on police time have led to delays in several NFCU investigations. At present, the NFCU needs the police to go to court and swear warrants on its behalf, so investigations are delayed if the police decline or take time to do so, or if the court refuses to authorise the warrant, which is more likely if the person swearing it cannot answer questions about the case. The NFCU also needs the police to be present when warrants are executed, which can lead to delays in the unit being able to carry out searches or seize critical evidence if the police have other priorities. As I understand it, the evidence seized then needs to be taken into police custody before it can be transferred to the NFCU. These issues can and do create delay, which is a problem in running a live investigation and trying to gather evidence before it is moved or destroyed.
I understand that NFCU investigations have been impacted by all the issues to which I have referred. I am also advised that the FSA’s view is that these additional powers are essential to enable the National Food Crime Unit to properly investigate and pursue complex food crime cases. As has been said, this was also identified as a gap in its systems to keep food safe in the independent review by Professor Elliott in I think 2014 following the horsemeat scandal.
In the Commons debate on this Lords amendment, the Minister said that the chairman of the Food Standards Agency had written to the Minister for Crime and Policing on 11 August 2021, expressing concern that the existing powers of the National Food Crime Unit were insufficient for their purpose. The Minister responded in October by expressing support for the request and indicating the Home Office’s intent to work with the NFCU to find a suitable legislative vehicle.
Lord Sharpe of Epsom (Con)
I am grateful to the noble Lord, Lord Rooker, for his comments and to all noble Lords who participated in this short debate. I will try to reassure the noble Lord, Lord Rooker, that we fully recognise the need to make quick progress with the consultation on extending Police and Criminal Evidence Act powers to the Food Standards Agency and then to introduce the necessary legislation as soon as parliamentary time allows.
The noble Lord very properly pushed me on a credible argument for this. I refer back to one of the paragraphs in my opening remarks: we specifically need to work with the National Food Crime Unit, the Independent Office for Police Conduct and Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services on establishing a formal independent oversight framework for the NFCU’s exercise of these powers and the potential for the NFCU to be brought under their respective jurisdictions. The noble Lord referred to gangmasters; that is what happened with the Gangmasters and Labour Abuse Authority. That is likely to require other legislative changes in addition to those provided for in Amendment 58. The issue is one of linked legislation. I have no doubt that the noble Lord will monitor this closely and I will ensure that he is kept informed of all developments. I hope that, on that basis, he will not press his Motion A1.
My noble friend Lord Young of Cookham asked about our commitment to commencing the repeal of the Vagrancy Act just as soon as we have consulted on and legislated for replacement legislation. The noble Lords, Lord Paddick and Lord Rosser, asked me precisely when. Perhaps it would help to clarify this if I read out what the Minister said in the Commons:
“On the undertaking that I was asked to give about the Vagrancy Act, let me say that 18 months is a maximum. If we can act faster, we will, but intensive work will obviously be required to get us there.”—[Official Report, Commons, 28/2/22; col. 855.]
My noble friend Lord Young asked about the consultation. All I can say is that it will take place this spring.
The noble Lord, Lord Rosser, quite rightly asked why the House will not necessarily have a debate on the SVRO pilot. We have done this because, subject to the Bill receiving Royal Assent, we expect the pilot to take two years, having started in early 2023. It will then take some two or three months to complete the evaluation. That timetable firmly takes us beyond the life of this Parliament. I hope that the noble Lord understands that it would not be right for me to commit a future Government or Chief Whip to provide parliamentary time to a debate on the report of the pilot. That is not within my gift or anyone’s gift. But we have said that in principle we endorse the case that has been made for such a debate and we understand the concerns. Therefore, we commit to sending all noble Lords the terms of reference for the independent evaluation of the pilot once they have been finalised and to lay a copy of those in the Library of the House.
In conclusion, I hope that, in the light of the Commons amendments in lieu providing clarity in the Bill on the matters to be addressed through the pilot and the observations about affording this House the opportunity to debate the pilot report, the noble Lord, and indeed the whole House, will support Motion L when we come to it.
Lord Paddick (LD)
I am still confused, despite what the noble Lord read from Commons Hansard. There will be consultation and replacement legislation, but will the repeal start in 18 months’ time or will the Vagrancy Act in its entirety be repealed in a maximum of 18 months? I am still not sure.
Lord Sharpe of Epsom (Con)
I go back to the statement that I just read: 18 months is a maximum for this issue to be resolved.
Lord Rooker (Lab)
My Lords, I will make two very short points. All the issues that the Minister has talked about could be dealt with in the regulations—that is the whole point. The issue of parliamentary time is the giveaway.
From time to time, the House is fortunate to have one or more of its Members on the board of the FSA, such as the noble Baroness, Lady Howarth of Breckland, and the noble Lord, Lord Krebs, who was the founding chair of the FSA. He is tied up in committee this morning, but I have his authority to say that he will vote for this Motion. Currently, we have someone sitting in the Chamber who, as a member of the board, has inside knowledge of the crimes that the Food Standard Agency’s National Food Crime Unit is dealing with. However, because the noble Lord, Lord Blencathra, is a member of the board, he cannot speak in this debate—but he will vote for the Motion.
Baroness Williams of Trafford
That this House do not insist on its Amendment 70 and do agree with the Commons in their Amendments 70A and 70B in lieu.
“Administering a substance with intent to cause harm
(1) The Secretary of State must, before the end of the relevant period—
(a) prepare and publish a report—
(i) about the nature and prevalence of the conduct described in subsection (2), and
(ii) setting out any steps Her Majesty’s Government has taken or intends to take in relation to the matters referred to in sub-paragraph (i), and
(b) lay the report before Parliament.
(2) The conduct referred to in subsection (1)(a)(i) is a person intentionally administering a substance to, or causing a substance to be taken by, another person—
(a) without the consent of that other person, and
(b) with the intention of causing harm (whether or not amounting to an offence) to that other person.
(3) In subsection (1), the “relevant period” means the period of 12 months beginning with the day on which this Act is passed.”
“(ka) section (Administering a substance with intent to cause harm);”
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, in moving Motion B, with the leave of the House, I will also speak to Motion M. Amendment 70, originally tabled by the noble Lord, Lord Ponsonby of Shulbrede, and passed by this House on Report, would require the Secretary of State to
“establish a review into the prevalence of, and the response of the criminal justice system to, the offence of administering a substance with intent under section 61 of the Sexual Offences Act 2003”.
As I have made clear previously, the Government share that concern about spiking, whether it is spiking of drinks or by needles, which has prompted this amendment and we are taking the issue very seriously.
In September last year, my right honourable friend the Home Secretary asked the National Police Chiefs’ Council to review urgently the extent and scale of the issue of needle spiking. We still have much to learn, as the noble Lord acknowledged at the time, but it is clear from what the police have told us that the behaviour is not exclusively carried out with the intention of perpetrating a sexual assault. Sometimes, financial crime might be a motivation. Indeed, many reported incidents do not appear to be linked to any secondary offending at all. It seems that sometimes the act might be an end in itself, yet all examples of this behaviour are serious in their impact on the victim and in the fear and anxiety felt more widely by those seeking simply to enjoy a night out.
It is also clear that we need a response that goes beyond the criminal justice system and encompasses health, education and the night-time economy. In the Commons, therefore, the Government tabled Amendment 70A in lieu, which is drafted more broadly. It requires the Home Secretary to prepare a report on the nature and prevalence of “spiking”—which, for these purposes, we are defining as
“intentionally administering a substance to someone without their consent and with the intention of causing them harm.”
The report will also set out the steps that the Government have taken or intend to take to address it. The Home Secretary will be required to publish the report, and lay it before Parliament, within 12 months of Royal Assent.
I hope that this addresses the concerns that underpinned the amendment tabled by the noble Lord, Lord Ponsonby, but in a way that enables the Government to consider the issue in the round. In addition, the Government are looking at whether creating a new offence specifically of spiking would help the police and courts to tackle the issue. If we need to take action to do this, we will not hesitate to do so.
Amendments 141 and 142 provide for bespoke new offences to tackle so-called sex for rent. We are very clear that exploitation through sex for rent has no place in society and we understand the motivation behind the amendments. However, as I previously explained, there are two existing offences in the Sexual Offences Act 2003 that can be, and have been, used to successfully prosecute this practice, including the Section 52 offence of causing or inciting prostitution for gain. We recognise the need to stamp out this terrible practice and support those at risk of exploitation. Again, on Report I set out some of the actions that we have already taken, including producing updated guidance for prosecutors and measures in the forthcoming online safety Bill to tackle harmful content on the internet.
We recognise that we need to go further. We are determined to act on the concerns that have been raised on this issue, both in your Lordships’ House and in the other place. Accordingly, we will launch a public consultation before the summer to invite views on the issue of sex for rent and, as part of this, we will look at the effectiveness of existing legislation and whether there is a case for a bespoke criminal offence. Following our commitment to undertake a consultation on this issue, the Commons disagreed with the Lords amendment by a majority of over 100.
All sides of the House share the heartfelt desire of the noble Lord, Lord Ponsonby, to do more to tackle spiking and sex for rent. We are fully committed to doing so. We will publish a report on the nature and prevalence of spiking and the actions that we are taking in response, including consideration of the case for a bespoke offence, and we will be consulting before the summer on the issue of sex for rent. In the light of these clear commitments, I invite the House to agree Motions B and M. I beg to move.
Lord Paddick (LD)
My Lords, the amendments in this group were introduced by the Official Opposition and we supported them. We welcome the Government’s undertakings in Amendment 70A in Motion B to prepare and publish a report on spiking, for example of drinks, intentionally and without a person’s consent and with the intention of causing harm, so as to establish the extent of the problem and therefore to inform what measures need to be taken to address it.
We also welcome the Government’s commitment to undertake a consultation on whether the existing law in respect of requiring or arranging sexual relations as a condition of accommodation—so-called sex for rent—needs to be strengthened. The prevalence of the phenomenon and the lack of prosecutions under the Sexual Offences Act 2003, which the Government believe covers these scenarios, indicate that such action is likely to be necessary. We are grateful to the Official Opposition, particularly to the noble Lord, Lord Ponsonby of Shulbrede, for raising these important issues and securing government action to address them.
Baroness Kennedy of Cradley (Non-Afl)
My Lords, I declare my interest as director of Generation Rent. I will speak briefly to Motion M. Campaigners have argued consistently for a specific offence to more easily prosecute predators who seek to exploit women and men, including renters, by asking for sexual favours in return for a roof over their heads. It is disappointing that the Government did not accept the Lords amendment. It is not right that a victim has to be defined as a prostitute for justice to be served. The fact that there has only ever been one prosecution is proof that the current law is woefully inadequate.
However, movement has been made on this issue: there is recognition that it needs addressing and, of course, we welcome the public consultation as a step forward. In welcoming that, I ask the Minister—I am sure that other noble Lords will want to know the answer too—when the timetable and the terms of reference for the consultation will be published.
Regarding action against online platforms and hosts, for too long the tech firms have not been held accountable for hosting harmful and abusive content. Instead, they have been able to facilitate the exploitation of renters through sex-for-rent ads, completely without consequence. The Minister confirmed that this will be dealt with in the online safety Bill. Can she confirm that paragraphs 16(a) and 16(b) of Schedule 7 will mean that sex-for-rent ads will be classed as priority illegal content and will therefore be dealt with under the schedule? Can she confirm the sanctions that will be used to deter tech platforms from hosting sex-for-rent ads and the consequences if they continue to do so?
I appreciate that, as a Minister in a different department, the noble Baroness may not know the full detail of the DCMS Bill to answer my specific questions about sex for rent and Schedule 7, but if she could commit that she or someone else will write to me to explain exactly how the online safety Bill will deal with online sex-for-rent ads under the “Priority offences” schedule on illegal content, I would be very grateful. Will these online safety provisions be part of the public consultation or will the consultation deal solely with the criminal justice aspects of sex for rent?
Lord Ponsonby of Shulbrede (Lab)
My Lords, I open by thanking the noble Baroness, Lady Williams, for the way in which she introduced the two government Motions.
First, on Lords Amendment 70 in my name and the Government’s Amendment 70A, it is fair to say that the Government’s response goes wider than my original amendment. That is a good thing. It is indeed true that the Government are considering the issue in the round. Sexual motivation is not the only reason why people are spiked through their drinks or through needles; there may be any number of motivations for people doing it, so it is reasonable to look at this matter in the round and that is what the Government are proposing to do through their amendment. I thank the noble Lord, Lord Paddick, for his support on this matter.
Moving on to sex for rent, I pay tribute to my noble friend Lady Kennedy, who has played a leading role in this House in promoting Amendments 141 and 142. She showed her knowledge in this area in the questions that she put to the Minister about how this matter will be taken forward regarding the online safety Bill. She put some pertinent questions and I hope that I can be copied in on the answers regarding the timetable and whether particular aspects of the DCMS Bill will address the sex-for-rent issue.
The further concession, if I can use that word, which the Minister has made is that there will be a public consultation, which will launch by the Summer Recess. Of course that is welcome but, as she fairly pointed out, there are a number of elements to this. It is not an issue for one department or one that is easy to solve. Indeed, it is not easy to quantify, although there is no shortage of horrific examples that one can see online on any number of websites where people seek sex-for-rent arrangements.
I thank the Minister for the way she introduced the Government’s Motions. We will support them if they are put to a vote.
Baroness Williams of Trafford (Con)
I thank the noble Lords, Lord Ponsonby and Lord Paddick, for their very constructive comments, and the noble Baroness, Lady Kennedy of Cradley, for her always very constructive approach in bringing these matters forward.
The point about someone having to identify as a prostitute is a really serious matter. I say again that anyone who makes a report to the police would benefit from the anonymity provisions in the Sexual Offences (Amendment) Act 1992. The Section 52 offence applies when an identified victim has been caused to engage in prostitution or incited to do so, whether the prostitution takes place or not. The Section 53 offence applies where a victim has on one or more occasions provide sexual services to another person in return for financial gain.
The consultation on this will be before the Summer Recess. We will write about the terms of reference once they are settled. The consultation will be confined to the case for a bespoke new offence.
On the online safety Bill and where it meets what we have been talking about, the legislation will define the harmful content and the activity covered by the duty of care. This includes illegal content and activity, harms for children and legal but harmful content, and activity for adults. The relevant offences, which are Sections 52 and 53 of the Sexual Offences Act 2003, have been included in that list of priority illegal harms in the Bill, demonstrating the importance that the Government attach to the tackling of these harms.
I hope that answers the noble Lords’ questions. Again, I thank them for their constructive work on this.
Lord Wolfson of Tredegar
Moved by
That this House do not insist on its Amendment 71, to which the Commons have disagreed for their Reason 71A.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
My Lords, I will also speak to Motionexpand-col4 K on secure schools, which is in this group.
The House will recall that Amendment 71 would introduce a duty of candour for the police workforce. The other place has now considered this amendment and rejected the proposed duty, without, I might add, putting the amendment to a vote.
The Government take police integrity and accountability extremely seriously. As has been outlined to the House previously, in February 2020 we introduced a statutory duty of co-operation for serving police officers as part of wider integrity reforms. This duty forms part of the standards of professional behaviour set out in Schedule 2 to the Police (Conduct) Regulations 2020, and therefore has the force of law.
For the benefit of the House, I will reiterate the extent and focus of this duty. It says:
“Police officers have a responsibility to give appropriate cooperation during investigations, inquiries and formal proceedings, participating openly and professionally in line with the expectations of a police officer when identified as a witness”.
A failure to co-operate is a breach of the statutory standards of professional behaviour by which all officers must abide, and could therefore result in disciplinary sanction. I therefore suggest again to the House that this duty to co-operate puts a greater onus on officers than the duty of candour provided for in Amendment 71, because a breach of this duty could ultimately lead to dismissal. We are reluctant to dilute the existing measures in place to compel individual officers to co-operate.
This duty to co-operate was introduced in 2020, after the issues highlighted in the Bishop James Jones report concerning the bereaved Hillsborough families’ experiences, and the issues relating to the work of the Daniel Morgan Independent Panel. We are keen that this duty becomes rooted within the police workforce before considering any further changes to legislation. The recently commenced inquiry, chaired by the right honourable Dame Elish Angiolini QC, will provide a proper test for this duty. Noble Lords will also be aware that a response to the Daniel Morgan Independent Panel and the Bishop James Jones report concerning the bereaved Hillsborough families’ experiences will provide a government view on a wider duty of candour for all public bodies. Before the Government respond to these reports, it is of course imperative that the Hillsborough families are given the opportunity to share their views.
We will continue to assess the impact of the existing duty on police co-operation with inquiries and investigations. As we consider the case for a broader duty of candour for public servants and bodies, we will determine whether the existing duty is sufficient to ensure public confidence. As for timing, I can assure the House that we will set out our conclusions later this year.
Given these considerations and the decision of the elected House, I respectfully ask the House not to insist on Amendment 71.
Turning to Amendment 107, the House will recall that the amendment sought to confirm that local authorities can establish and maintain secure 16 to 19 academies, either alone or in consortia. The elected House disagreed with this amendment by a substantial majority of 190. In inviting this House not to insist on the amendment, I remind noble Lords that there is no legal bar preventing a local authority setting up an entity capable of entering into academy arrangements directly with the Secretary of State, or indeed doing so itself. This is not prevented by the Academies Act. I therefore ask the House not to insist, on the grounds that this renders the amendment unnecessary and it could have disruptive consequences for the academies legal framework.
I appreciate that existing government policy is not completely aligned with the spirit of this amendment. But I want to be positive, and recognise the expertise of the local government sector and the critical role that it already plays. Local authorities have a long-established role in children’s social care and the provision of secure accommodation for children. I should therefore highlight that, in practice, there are already important ways in which local authorities can be—and already are—involved in academy trusts, which we would certainly be open to utilising also in secure schools. Trusts can, and do, procure services from local authorities; some local authorities have established spin-out companies specifically to provide services to trusts and maintained schools alike. In principle, there would be nothing to prevent a spin-off company entering into an agreement with the Secretary of State for Education to establish an academy trust.
Our vision for secure schools is to take a new and innovative approach to the delivery of youth custody and to engage visionary, child-focused providers—many of which are charities—in the running of establishments. It would therefore certainly be possible, for example, for a charity and a local authority to come together to put forward a bid to establish a trust in which both parties could have some involvement across both the governance structure and the delivery of services.
Lord Paddick (LD)
My Lords, in relation to Motion C, one of the main recommendations of the Daniel Morgan Independent Panel, led by the noble Baroness, Lady O’Loan, was for the police to be subject to a statutory duty of candour, as has been introduced into the National Health Service, and Lords Amendment 71 sought to establish that. The Government with their Amendment 71A, in Motion C, claim that police officers are already under a duty to co-operate during investigations, inquiries and formal proceedings and that it would be premature to add such a provision pending further consideration by the Government.
The provision to which the Minister referred makes a lack of candour a matter for police misconduct proceedings, except in the most serious cases where a complaint is made by someone who is not a member of a police force and who is directly affected by the conduct. Whether a police misconduct investigation is held, or misconduct proceedings are brought, is a matter for the relevant chief constable of the police force concerned.
Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services has today published a report in which it describes the Metropolitan Police’s approach to tackling corruption as “not fit for purpose”. Publishing the report, Her Majesty’s Inspector of Constabulary, Matt Parr, said:
“It is unacceptable that 35 years after Daniel Morgan’s murder, the Metropolitan Police has not done enough to ensure its failings from that investigation cannot be repeated. In fact, we found no evidence that someone, somewhere, had adopted the view that this must never happen again.”
That is why we need a statutory duty of candour. In the case of the issues covered by the Daniel Morgan Independent Panel, there was systemic and institutional withholding of information by the police sanctioned at the highest level. Arguably, the current Commissioner of the Metropolitan Police, who as an assistant commissioner decided to withhold essential information from the panel, would have had to order an investigation into herself under the provisions that the Minister is relying on.
The provision that the Government are relying on is not fit for purpose in the circumstances of police cover-ups, even when there is a member of a police force who is a whistleblower, because the whistleblower is a member of the police force and cannot bring a complaint against his or her own force. However, work is ongoing by the families of the victims of the Hillsborough disaster and the family of Daniel Morgan to ensure that a comprehensive, effective and legally binding duty of candour is imposed on all public institutions. Therefore, we have reluctantly decided not to insist on Lords Amendment 71.
In relation to Motion K, we are grateful to the noble Lord, Lord Wolfson, for clarifying that there is no legal barrier to local authorities setting up and running academies and for the Government’s acknowledgement of the important role that local authorities have played in the past in running secure accommodation for young offenders.
Lord Rosser (Lab)
There are, as has been said, two issues here, the duty of candour and secure academies. I note what the Minister said on the duty of candour and must say that our views are rather more in line with those just expressed by the noble Lord, Lord Paddick. One might think it rather odd, particularly at the present time when trust in the police appears to be at such a low level, that the Government and the Commons decided to disagree with such an amendment, but it is their prerogative to do so.
As the Minister said, this issue is not going to be dropped. There are people within Parliament, including ourselves, and people outside Parliament, to whom reference has been made, who intend to pursue the issue of a duty of candour. I think I am right in saying that the Minister referred to the fact that the Government would further consider the position—indeed, that is given as a reason for disagreeing—and that they would come up with conclusions later this year. While indicating that we intend to pursue the issue, we will, with some reluctance, leave this in that context. It is certainly not going to be pushed to one side now. It will be pursued and we will wait to see what conclusions the Government come up with later this year. The issue of trust in the police is a serious matter and I know the Government agree. We need to make sure that the mechanism is in place to improve the levels of trust that currently seem to exist.
On secure academies, the Government and the Commons have disagreed the amendment from the noble Lord, Lord German, which would put explicitly in the Bill that local authorities can establish and maintain secure academies. The aim of the amendment was to put beyond doubt that applications from local authorities to run secure academies would be welcomed and would be considered on their merit, on a level playing field with other providers.
The Government’s response has been that there is no legal barrier to local authorities setting up an entity that could enter into an academy arrangement with the Secretary of State, so there is not a legal barrier to them establishing a secure academy. The Government said that the Ministry of Justice
“will assess in detail the potential role of local authorities in running this new form of provision, before we invite applications to run any future secure schools.”—[Official Report, Commons, 28/2/22; col. 803.]
The Minister also made that point.
Our response in the Commons was that this does not go far enough. We argued that local authorities have the expertise needed to run services and provide care for vulnerable children with a high level of need in a secure environment and that the Government should widen the pool of expertise that providers bring and ensure that local authorities are explicitly brought into the fold when planning for secure academies.
We recognise that the Government have committed to look at the involvement of local authorities in providing secure academies before any new applications are invited, so we will now deal with and pursue this issue outside of the Bill. However, we strongly support the noble Lord, Lord German, in saying that what is needed, and what we will keep calling on Ministers to deliver, is, frankly, not vague statements that a local authority could provide a secure academy but a proactive change to bring the expertise that local authorities have into that pool of providers.
Lord Wolfson of Tredegar (Con)
My Lords, I am grateful to the noble Lords who took part in this debate. I will take matters fairly briefly, given the amount of other business before the House.
On the duty of candour, I emphasise the essential point that the disciplinary system provides clear sanctions that can lead to dismissal. We should not introduce criminal sanctions for the police alone. Ultimately, the inspectorate can determine whether forces are following the guidance. We will monitor that extremely carefully.
I do not want to take up the House’s time too much on the report, which has been published in the last half an hour. My right honourable friend the Home Secretary has already issued a statement, which noble Lords will be able to find online, but my understanding is that the Metropolitan Police has 56 days to respond formally to the report. The Home Secretary will of course return to Parliament to provide a full government response once the final report and responses have been received.
I am grateful to all noble Lords for their engagement on the issue of secure schools. I have tried to set out the legal position clearly. I hope that the undertaking that I have set out will be sufficient. Again, with apologies to the House for not dealing in too much detail with the new report, because I am sure there will be other opportunities to debate it, I beg to move.
Baroness Williams of Trafford
Moved by
That this House do not insist on its Amendment 72, to which the Commons have disagreed for their Reason 72A.
Baroness Williams of Trafford (Con)
My Lords, I am grateful to the noble Lord, Lord Russell of Liverpool, for seeking to move the debate forward by tabling an amendment in lieu. Before I turn to the specifics of his Amendment 72B, I will say something about the wider context. The Government take the issue of violence against women and girls very seriously. The last couple of years has, sadly, seen some terrible incidents and I do not think that anyone could doubt that there is more to do.
The Government have ambitious plans in this area. We have debated them often enough in your Lordships’ House, such that I do not need to set out again everything that the Government are doing to tackle violence against women and girls, but I reiterate that this is an absolute priority for the Government. Although we might disagree on the best approach, all of us, and Members in the other place, are on the same side. All of us share the same absolute determination to do our very best to tackle these awful crimes.
I am glad that in tabling this amendment, the noble Lord, Lord Russell of Liverpool, is not pressing to add the characteristics of sex or gender to hate crime laws, making misogyny a hate crime, as it is colloquially known. I do not decry the motives of anyone who advocated that course of action but, as the Law Commission identified in its review examining the question of whether to add sex or gender to hate crime laws, this amendment is not the right course of action.
Lord Russell of Liverpool
Moved by
As an amendment to Motion D, at end insert “and do propose Amendment 72B in lieu—
72B: After Clause 54, insert the following new Clause—
“Intimidatory offences aggravated by sex or gender
(1) A person must not commit an act—
(a) which amounts to harassment or intimidation of another,
(b) which he or she knows or ought to know amounts to harassment or intimidation of the other, and
(c) which is aggravated by hostility towards sex or gender.
(2) For the purposes of this section, the person whose act is in question ought to know that it amounts to or involves harassment or intimidation of another if a reasonable person in possession of the same information would think the act amounted to harassment or intimidation of the other.
(3) Subsection (1) or (2) does not apply to an act if the person who pursued it shows—
(a) that it was pursued for the purpose of preventing or detecting crime,
(b) that it was pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment, or
(c) that in the particular circumstances the conduct was reasonable.
(4) A person who commits an act in breach of subsection (1) is guilty of an offence.
(5) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding six months, or a fine not exceeding level 5 on the standard scale, or both.
6 Police, Crime, Sentencing and Courts Bill
(6) An offence is “aggravated by hostility towards sex or gender” for the purposes of this section if—
(a) at the time of committing the offence, or immediately before or after doing so, the offender demonstrates towards the victim of the offence hostility based on the victim’s sex or gender (or presumed sex or gender); or
(b) the offence is motivated (wholly or partly) by hostility towards members of a group based on their sex or gender.
(7) The Secretary of State must make regulations within six months of the passing of this Act requiring the chief officer of police of any police force to provide information relating to—
(a) the number of crimes reported to the police force which, in the opinion of the chief officer of police, fall under subsection (6), and
(b) the number of crimes reported to the police force which, in the opinion of the chief officer of police, do not fall under subsection (6) but in which the victim indicated they believed they were targeted due to their sex or gender.”
Lord Russell of Liverpool (CB)
My Lords, the noble Baroness, Lady Newlove, who would have been presenting this amendment and making the argument for it—which is why on Report the precursor to this amendment became known as the Newlove amendment —is today receiving, rightly, yet another honorary degree to add to her rather large handful of them, and thoroughly deserved it is. However, she is here in spirit and if we were still able to vote virtually, she would be voting in favour.
This Amendment 72B in Motion D1 is a response to the rejection by another place of that amendment, which, in essence, argued that we should make misogyny a hate crime. The debate about misogyny—what it is and what we should do about it—was discussed at length in the passage of the Domestic Abuse Bill last spring. One result of that debate was that, in return for particular amendments not being pressed, as the Minister indicated, Her Majesty’s Government agreed almost exactly one year ago—which is also the anniversary of the murder of Sarah Everard—at the Dispatch Box to mandate all police forces in England and Wales to undertake a trial period of recording misogynistic hate crimes. That undertaking was given with an undertaking that it would begin in autumn 2021—not 2022, not 2023, not 2024 but autumn 2021. Noble Lords will not be surprised to hear that I will be returning to that subject later.
To summarise what happened in another place the other week, I will use the words of the Minister, Kit Malthouse, to summarise the Government’s view:
“On the misogyny issue, I commend the motivation behind the set of amendments that we are sadly declining. We understand people’s genuine concern about the safety of women and girls in the public sector”—
I suspect that when one is at the Dispatch Box one occasionally says things that when you read them do not make complete sense. I do not think he meant only women and girls in the public sector; I think he meant women and girls in general in public—
“and indeed we share it. We are determined to make significant inroads in this area … we cannot in all conscience support an amendment that the Law Commission and other large groups interested in this area believe runs the risk of damaging the cause of women’s safety. That puts an obligation on us to bring forward alternatives that will do something positive for women’s safety. That battle is under way, and we commit to doing exactly that.”—[Official Report, Commons, 28/2/22; col. 786.]
So today the battle recommences.
I am very glad to see the noble Baroness, Lady Kennedy of The Shaws, in her place, because I would like to recommend that all noble Lords who have not had the opportunity to do so read her report Misogyny: A Human Rights Issue, published last week by the Scottish Government. It recommends a much more proactive and focused approach to this problem than we are at the moment able to consider in England and Wales.
The working group underneath the noble Baroness agreed on a definition of misogyny to help focus its investigations and recommendations. I think it is worth reading it out for your Lordships, because it encapsulates pretty accurately what it is that we are talking about when we talk about misogyny—because, depending on who you talk to, you might get different definitions. The definition used by the group led by the noble Baroness, Lady Kennedy, is:
“Misogyny is a way of thinking that upholds the primary status of men and a sense of male entitlement, while subordinating women and limiting their power and freedom. Conduct based on this thinking can include a range of abusive and controlling behaviours including rape, sexual offences, harassment and bullying, and domestic abuse.”
Motion D1 is designed to focus on two key areas. First, it is a direct response to Minister Kit Malthouse’s undertaking to bring forward alternatives: we decided to bring forward our own alternative, which reinforces the commitment to ask all police forces across England and Wales to record misogynistic hate crimes. It also addresses the category of public order offences, ensuring that stronger sentences are handed down when an offence is motivated by hostility towards the sex or gender of the victim. This would allow the police and courts to take stronger action against gateway offences, which may lead on to serious violent or sexual offences if they are not properly addressed at an early stage. By bringing the treatment of these offences into line with the approach taken to racially or religiously aggravated public order offences, this amendment would enable the courts to raise the maximum sentence, allowing a range of factors to continue to be considered such as the degree of culpability and the degree of damage to the victim.
Baroness Kennedy of The Shaws (Lab)
My Lords, I support the noble Lord, Lord Russell. I am glad that he referred to the fact that Scotland had commissioned a report on this. Indeed, the report, which I chaired the working group to complete, took the same view as the Law Commission of England and Wales, in that we did not suggest that there should be a hate crime relating to sex or gender. In fact, we felt that misogyny is different in its nature and that the hate crime framework is not an appropriate way to deal with the problem.
I voted for the amendment from the noble Baroness, Lady Newlove, because nothing else seems to be on offer at the moment in England and Wales, but Scotland is looking at the creation of misogyny legislation. That is not because misogyny should be criminalised, because ways of thinking should never be criminalised. I have said that in this House before. I spoke only last Thursday in the International Women’s Day debate, in which I described how important it is to protect ways of thinking, because in our forum internum is our creativity, imagination and the ways in which we solve the world’s problems. Unfortunately, it is also the seat of the rather negative sentiments that people might feel, such as hatred. It is the actions that flow from that way of thinking that one has to look at and see whether they are appropriately criminalised.
In this House, we repeatedly have debates about the failure to prosecute rape, about domestic violence, stalking, revenge porn and so on. These continue to be insoluble and difficult to prosecute because of the mindsets of many of the decision-makers—even police officers on the ground, those prosecuting and making decisions about prosecuting, and those within our courtrooms. Unless we deal with this way of thinking in our society, we will continue to have these problems. I say that as someone who has practised at the Bar for more decades than I care to count. I have written about this and studied it. I have spent time looking at other jurisdictions, all of which have the same problems. Misogyny is a problem at the base of all this. Unless you address it seriously, you will not address the problems of how we deal with this continuing flourishing of crime against women and girls.
I urge the Government—any Government—to address misogyny. Our world is filled with it; it is a serious problem, and the way to address it is by trying to shift the dial among those who make the decisions to make them address their own way of thinking. That is what we sought to do in the working group that worked on this in Scotland. I urge all noble Lords to read the recommendations we made, because it is a serious piece of work. It is not knee-jerk or about saying, “Let’s just draw down the hate crime stuff”, because we are talking about what happens to 52% of our population. There is hardly a woman who will not be able to describe having been harassed, spoken to in unacceptable ways, degraded, humiliated or dehumanised at some point in her lifetime. That is what women are complaining of, and it is every woman, so let us have that in mind.
I heard what the Minister said about seeking to address this seriously. The Law Commission said that it was not within its remit to look at whether there should be a public harassment offence. We decided on having a public misogyny harassment offence and did not make it simply about sexual harassment, because the harassment is not of a sexual nature for older women; it is not the saying of the gross things that we have heard about from so many women.
What has happened in our society, and the reason why this is so urgent now, is that the internet—social media—has disinhibited people to say things that they would normally keep to themselves, even if they did have those intents on some women. Even if they did want to degrade and humiliate women, they would keep it to themselves. However, the internet has allowed people to pour this stuff out and it is translated on to the street. What used to be only online five years ago is now happening at the bus stop.
I want people to have this in mind; it is not some trivial matter. Noble Lords must see the enormity of the problem now: the stuff that is said to young women coming out of student unions, pubs and clubs would make men in this Chamber ashamed of their own gender—their own sex. Something has to be done about it. It is very different from what is experienced by men, so let us not make this mad equivalence, as though men at the end of their night in the pub say to each other, “Charlie, text me when you get home.” Men do not do that, because they do not have the same fear built into them from the age of nine that somehow there is something fearful out there, and it takes male form. That is the problem for girls and women: they are brought up knowing that there is something to be afraid of.
We really have to take this seriously. I support what the noble Lord, Lord Russell, has asked us to do because it is a signal to the women out there that we take it seriously. Women came in front of our commission and said that something has to be done. It may be that, in the longer term, we will have to introduce a misogyny Bill, like in Scotland. We advocated that where there is an offence, such as assault, threatening behaviour or criminal damage, judges can enhance the sentence so that there is an aggravation. It should not be inside a hate crime Bill, because it is different.
Most men do not hate women, but somehow from boyhood they breathe in this sense of entitlement and now feel entitled to say publicly things to women that noble Lords would not believe. Women who are parliamentarians, who write in newspapers or are campaign leaders receive online and now offline the most egregious threats to be raped or killed, which put them in fear. Is it any wonder, therefore, that women do not want to take part in public life or step forward to ask for equal pay or an improvement in their status in the workplace? They are undermined in their self-confidence and self-worth. We have to do something about it.
Baroness Fox of Buckley (Non-Afl)
My Lords, I disagree with this amendment, but I agree with one part, at least, of what the noble Baroness, Lady Kennedy, just said: any woman will indeed have heard the vile abuse that is spewed out online and can go offline to the bus stop, as she indicated. There is a coarsening of what is said to women, but that is my challenge: although it is vile, legislation to deal with what is said to women could well be a serious challenge to free speech.
Free speech matters because an emphasis on the cause of women’s safety could well be, and some women certainly believe so, at odds with the cause of women’s freedom and liberation. Despite everything, if we are going to say that words matter, by constantly talking about misogyny as a problem that is so rife in society we are, as I have said, in danger of frightening young women into believing that misogyny is indeed everywhere and that all men are misogynists and so on, so I want some caution here.
Baroness D’Souza (CB)
My Lords, in defending freedom of expression, which often includes offensive speech, various criteria are maintained, which largely concern the context in which the speech occurs. There are two particular aspects. The first is whether the hate speech, misogynistic or otherwise, is able to be avoided. Is there a way in which the individual can avoid the speech, for example by not turning on the radio or their text messages, or whatever it might be? The second is one that has already been alluded to by the noble Baroness, Lady Fox. It is the extent to which there is a direct relationship between hate speech, misogynistic speech, and actual harm coming to an individual woman.
The noble Baroness, Lady Kennedy of The Shaws, who is to be commended on almost everything that she does, talked about protecting thoughts. In a way, what one is doing is contradicting that by saying that if someone is thinking about delivering offensive speech that will automatically, if it is expressed, lead to action. I think there is a tiny bit of confusion here. Although I will support the amendment, there is an element of curtailing freedom of speech that we ought to be mindful of.
Baroness Jones of Moulsecoomb (GP)
My Lords, recently I was going home late and I got into a cab and was chatting to the cabbie. At some point he said, “Oh, you posh young birds”. It was so inappropriate on so many levels that I did not know what to do. I did not tip him, of course. It struck me that it was not necessarily offensive—but I did object to it.
I have heard today two incredibly powerful speeches in favour of the Motion, from the noble Lord, Lord Russell, and the noble Baroness, Lady Kennedy. I do not understand why the Government have not heard this message. It is not coming from just these two people; it is coming from millions of women who experience misogyny and really do need protection. It is not enough to say, as the police often do, “Don’t wear short skirts, don’t go out after dark and don’t drink too much” and things like that. This is on a completely different level. It is about protecting women who cannot protect themselves, so I hope that the Government are listening.
I noticed that the noble Lord, Lord Wolfson, was writing very seriously during these speeches. I hope he was making prestigious notes about what was said and how important it was, and I hope the Government are listening.
Baroness Bertin (Con)
My Lords, I support the amendment and thank the noble Lord, Lord Russell of Liverpool, for all his support on this issue. I say to the noble Baroness, Lady Kennedy of The Shaws: “What a powerful speech”.
I particularly want to reiterate the points made about police recording. I am really quite depressed that this amendment has had to be laid—depressed as a Conservative Peer, because I have been so heartened by the commitment that this Government have shown on the issue of violence against women and girls. But at the moment, on the issue of misogyny—it exists, it is there and is corrosive; it is huge, if you ask me—there is a lack of grip. There has also been a lack of leadership and accountability, in particular on the issue of recording, and that really matters.
It matters because we should not make promises at the Dispatch Box and not keep them. That picks away at the faith and trust we have in our democracy. I do not wish to make too big a point out of this, but it is important and we do notice it. It also matters because it helps victims to have much more faith in the system; it gives them confidence. We have heard that from chief constables who have voluntarily taken this approach on board. It matters because it helps them do their job as well. It helps them target their resources, understand where the repeat perpetrators are, and target the culture within their own police forces—which, as we know, is a huge problem.
I hope that noble Lords will support the amendment, as I will. It really matters. Misogyny exists, it is corrosive and it needs to be tackled, and this is a very thoughtful and reasonable approach.
Lord Paddick (LD)
My Lords, I rise with some trepidation as the first man to speak in the debate—sorry, after the noble Lord, Lord Russell, of course, the proposer of the Motion. Something seriously needs to be done about misogyny in society, as the noble Baronesses said. I think it was the noble Baroness, Lady Kennedy of The Shaws, who said that misogyny is not hatred of women. My understanding is that it is hatred of women who are not subservient to men and who do not allow men to do what they want because they can, because they are stronger or because they think they can get away with it.
I have to say that I do not understand the Law Commission’s assessment that having misogyny as an aggravating factor would undermine the investigation and prosecution of things such as domestic abuse and sexual violence. Racism is treated as an aggravating factor by the courts, yet black victims of domestic abuse and sexual violence are not disadvantaged by having racism as an aggravating factor. So why should women be disadvantaged were misogyny to be an aggravating factor? Perhaps the Minister can answer that question.
I agree with the noble Baroness, Lady Kennedy of The Shaws, that we must deal with misogyny in terms of the actions that have a detrimental impact on women—not the thought but the deed, not the prejudice but the discrimination against women.
Amendment 72B in Motion D1 would create a new offence of harassment or intimidation aggravated by hostility towards sex or gender, where the maximum penalty for the new offence is the same as the offence, under Section 4 of the Public Order Act 1986, of intentional harassment, alarm or distress without any aggravating factor. So there is an issue there.
There is a crisis of misogyny in society in general and in the police service in particular. Urgent, decisive action needs to be taken, notwithstanding the Law Commission’s findings. Creating a new offence, as suggested by the noble Lord, Lord Russell of Liverpool, in the form and with the penalties suggested might not be the right answer, but it is a vehicle to allow the Government to come forward with a better alternative using the Bill. We do not know when the next legislative opportunity will arise and we need to force the Government to take action now.
This urgency is reinforced by the fact that, as the noble Lord, Lord Russell of Liverpool, said, the undertakings given by the Government when we last debated this issue during the passage of the Domestic Abuse Bill—now an Act—to ensure that all police forces flag offences aggravated by hostility towards sex or gender do not appear to be happening. Even if the Government are not convinced that legislative change is needed, surely they must deliver on their commitment to ensure that the nature and extent of the problem of misogyny in society is measured by the recording of such offences by the police. Surely the Government must understand why police forces might be reluctant to record misogyny as a hate crime when there is clear evidence of a culture of misogyny in police forces. That is why they should be compelled to do so by the Government.
I am concerned that the Government, encouraged by the Law Commission, are going into reverse on the issue of misogyny, betraying women who suffer every day from male violence. If for no other reason, we should support Motion D1 and Amendment 72B.
Lord Ponsonby of Shulbrede (Lab)
My Lords, this has been an extraordinary debate in many ways. It has really gone to the heart of the issue. I pay tribute to the noble Lord, Lord Russell, in the way he moved his amendment.
I will start by addressing a specific point that the noble Lord, Lord Paddick, made about the way sentencing is done in courts. I speak as a magistrate who sits in London. When I sentence on a matter where there is racism as part of the sentence, I explicitly have to say in court what the uplift is because of the racist element. However, when there are other aggravating factors, be they misogyny or any other factor, such as the fact that the victim works in a public-facing way, I am not required to do that, but I can if I wish to. That is a very specific example of the difference in the way sentences deal with particular different types of aggravating factors.
Baroness Williams of Trafford (Con)
My Lords, I agree with the noble Lord, Lord Ponsonby, that this has been a very interesting debate. Part of what has been interesting for me is hearing the differing views on misogyny across the House. This goes to the heart of the difficulties of this issue. The noble Baroness, Lady Jones of Moulsecoomb, asked if my noble friend Lord Wolfson was making prestigious notes. I wondered if he was making prodigious notes, but they might be both prestigious and prodigious—I do not know.
I thank all noble Lords who have taken part. I will restate three important points that I made in my opening remarks, as well as make some further points that were asked about. First, we are still pursuing the commitment that we previously made on data recording. I quote the comments that I made this time last year:
“I advise the House that, on an experimental basis, we will ask”—
not mandate, but ask—
“police forces to identify and record any crimes of violence against the person, including stalking and harassment, as well as sexual offences where the victim perceives it to have been motivated by a hostility based on their sex. As I have said, this can then inform longer-term decisions once we have considered the recommendations made by the Law Commission. We will shortly begin the consultation with the National Police Chiefs’ Council and forces on this with a view to commencing the experimental collection of data from this autumn.”—[Official Report, 17/3/21; col. 371.]
As the noble Lord, Lord Russell of Liverpool, pointed out, that was autumn 2021. I have absolutely voiced my disappointment on that. I am pleased that the wheels are in motion, albeit moving more slowly than I had hoped. We are making some progress.
The second point is that, before the Summer Recess, we will launch the public consultation on a new offence of public sexual harassment. I think that that reinforces the point made by the noble Baroness, Lady Fox.
Thirdly, the Law Commission, having studied this issue and a variety of possible solutions, recommended against making misogyny a hate crime. I am grateful to the noble Baroness, Lady Kennedy of The Shaws, for her points. I know that that is a source of regret for some noble Lords, but we cannot ignore the firm advice of experts that legislating in this way could do more harm to women than good. No one wants that outcome.
The noble Lord, Lord Russell of Liverpool, made an interesting point about Cara McGoogan’s article in the Daily Telegraph. The points that he raised about racism, misogyny and domestic violence within the police are being looked at by the noble Baroness, Lady Casey, and Dame Elish Angiolini. I know that we will get on to Child Q this afternoon when I repeat the Urgent Question. It is not a point that I dismiss at all; we all have to get to grips with the culture of the police.
The noble Baronesses, Lady Fox and Lady Kennedy of The Shaws, talked in different ways about the internet translating into real life. Obviously the online harms Bill is coming up. I do not want to give a complete prequel to that, but in that Bill we will need to consider the balance between free speech and protecting our children, women and girls. The noble Lord, Lord Ponsonby, referred to this and, as a parent, I am glad that my children had grown up by the time these problems began to surface, but I worry for the children, women and girls of the future.
To conclude, we are continuing to explore all options to tackle violence against women and girls and we are taking forward real change to achieve that. I invite the noble Lord to withdraw his amendment and I commend Motion D to the House.
Lord Russell of Liverpool (CB)
My Lords, this has been an interesting 55 minutes or so. We always seem to be at our finest when we discuss problems that a lot of people seem to agree are insoluble, which is disappointing in a way. It would be nice to talk about problems that are solvable.
I am grateful to all noble Lords who have spoken and to the three men who managed to stand up. Essentially, to some extent I apologise, as I feel I must, on behalf of many of my sex. The attitudes of an awful lot of males are a concern and are shaming. Unless more of us stand up and talk about it, it probably will not go away.
The noble Baroness, Lady Kennedy, is a pioneer in this area. I again recommend that all noble Lords read her report. When I started reading the preface, I realised that I was reading a report unlike most others I have read—and, in talking to her before we came in this morning, I discovered why: the noble Baroness wrote it herself and that does show. It is cogent, it is spirited, it is clear in its intent and it communicates brilliantly. So I recommend that more Ministers and noble Lords, when they put their names to a report, should write the preface themselves rather than get somebody else to do it. The noble Baroness’s point that what she is trying to do in her report is focus on egregious, unpleasant, aggressive and harmful actions, not thoughts, is also really important. We all think things that perhaps we should not from time to time. Mercifully, most of us do not act on them—or, if you get to my age, you probably forget them. At my age, the most important thing is to learn new things more quickly than you forget old things.
I take the point made by the noble Baroness, Lady Fox, about women’s freedom. But to suggest in some way that what we propose is potentially to label all men as misogynistic—and to send a message to all women that all men are basically misogynistic—is perhaps, might I suggest, slightly decrying the intelligence and perspicacity of members of the female sex to work out for themselves when something is genuinely misogynistic in a very unpleasant way and when it is less harmful. The noble Baroness is particularly skilled at talking about absolutes and problems. It would be great if we could move on and perhaps focus more on solutions than on the problems that are in the way of trying to find solutions.
My noble friend Lady D’Souza made an excellent point. We need to be careful that the law of unintended consequences does not lead us, in a sense, to suppress when what we are trying to do is liberate. I say to the noble Baroness, Lady Jones, that if she sees that taxi driver again I am sure she will give him a piece of her mind—or will change her accent to talk a bit more like me, so he will think that she is even posher than she really is.
I say to the noble Baroness, Lady Bertin, that it is always good to hear from the Government Back Benches. She made the good point that if you make a commitment, you should be able to keep it. The Minister has been frank and honest about some of the problems the Government have encountered, but I come back to the point I made earlier: this should and would have been foreseeable if they had done the proper analysis much earlier of what was implied by the commitment they were making.
The noble Lord, Lord Paddick, is far more skilled in these details than I am, and in particular on the law of unintended consequences in how one puts laws together and applies them. He makes a very good point but, again, there is the incredible importance of recording misogynistic data, so we actually know what we are talking about instead of just guessing.
The noble Lord, Lord Ponsonby, shared his direct experience as a magistrate and it was very compelling. If it is racially motivated, you have to fess up and say that up front, but if it is equally or more egregious, you do not have to. The fact that it is optional tells you that we are barking slightly up the wrong tree.
Finally, I turn to the noble Baroness’s contribution. What is so frustrating is that we spend so much time talking about all the problems that get in the way of trying to do something about this. We do not hear very much about prospective solutions. To some extent that is what Kit Malthouse invited us to do and committed the Government to doing—trying to find solutions.
On the point about asking police forces to comply with this rather than mandating them, I disagree with asking them. I actually think that we should mandate. Police chiefs are used to having a variety of things mandated by the Home Office, so would not be surprised or shocked. They might not particularly like it if the Home Office did so in this case, but I would strongly encourage the Government to think about doing that.
It is worth reading Hansard to see what happened when the Commons was considering our amendments. The vast majority of time in the early part of that debate was spent on the Newlove amendment, with speakers from all sides of the House, including a considerable number of Conservative Back-Benchers, particularly women. There was also a prominent man, the ex-Secretary of State for Justice, Robert Buckland. He has been intimately involved in helping to develop this amendment. I have also involved the noble and learned Lord, Lord Judge, in thinking through the validity and force of what we are talking about.
There is a growing concern and voice in another place that we need to stop talking about problems; we need to commit to doing solutions. So, for the reason that I feel that the soles of the feet of Kit Malthouse deserve to be subjected to a rather higher temperature than I think he feels at the moment, I would like to test the opinion of the House.
Police, Crime, Sentencing and Courts Bill
Tuesday 22nd March 2022
(2 years, 1 month ago)
Lords ChamberRead Full debate Police, Crime, Sentencing and Courts Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 123-I Marshalled list for Consideration of Commons Reasons and Amendments - (21 Mar 2022)
16:27 - Division on Motion E1 - Ayes: 208 / Noes: 166 - Motion E1 agreed.
16:42 - Division on Motion F2 - Ayes: 190 / Noes: 175 - Motion F2 agreed.
Baroness Williams of Trafford
That this House do not insist on its Amendment 73, to which the Commons have disagreed for their Reason 73A, do agree with the Commons in their Amendment 74A, do not insist on its Amendment 87 and do agree with the Commons in their Amendments 87A, 87B, 87C, 87D, 87E and 87F to the words restored to the Bill by the Commons disagreement to Lords Amendment 87.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, with the leave of the House I will also speak to Motions F, F1, F2, G, H, H1 and N.
I shall begin with Amendment 143, as I believe that there is a large measure of agreement across the House on the need to better protect schools and vaccination centres from disruptive protests that take place outside such locations. The Government have listened carefully to the arguments put forward by the noble Lord, Lord Coaker, for introducing fast-tracked public spaces protection orders on a case-by-case basis.
Amendments 143A to 143C are similar to Amendment 143. They make provision for expedited PSPOs, which local authorities can apply to public places around schools, and to vaccine and test-and-trace centres, for up to six months. As with the original amendment, an expedited PSPO would need to be made with the consent of the relevant chief officer of police and, as the case may be, the appropriate authority for the school or NHS body in question. The local authority would then be required to consult on the expedited PSPO once it was in place. These amendments in lieu were welcomed by the shadow Policing Minister in the Commons, and I hope they will be similarly accepted by the noble Lord, Lord Coaker, and others.
It is the Government’s view that we must balance the rights of protesters to exercise their freedom of speech and assembly with the rights of non-protestors who might be adversely affected by a protest. Part 3 of this Bill has always been about a modest resetting of that balance, and it firmly remains our view that the provisions in Clauses 55, 56 and 61, which Amendments 73, 80 and 87 seek wholly or partly to expunge, should remain part of the Bill.
Noble Lords will recall that Amendments 73 and 87 relate to measures that would enable the police to attach conditions to a protest in circumstances relating to the generation of noise. As I have said to the House before, but it is worth saying again, we expect the vast majority of protests to be unaffected by these provisions. It is exceptional for the police to attach any conditions to a protest, and that will not change. Of course, protests are generally by their nature noisy; their purpose is to advance a particular cause. These measures do not prevent noisy protests, but the Government continue to believe that it is completely unacceptable that a small minority of protestors can, through the use of amplification equipment or other means, impose disruption and misery upon the public through the excessive noise they generate. The noble Lord, Lord Hogan-Howe, put it well in Committee:
“We have to consider its effect on people, where it is either so loud or so persistent that it cannot be ignored.”—[Official Report, 24/11/21; col. 944.]
If we accept that there must be limitations on egregious noise in other contexts—that is why local authorities have noise abatement powers—the same principle should apply in the context of a protest where the level of noise becomes injurious to others.
Amendment 80 would remove Clause 56. This clause would enable the police to attach any type of condition to a public assembly, in the same way that they can attach any type of condition to a public procession. The distinction between processions and assemblies no longer reflects the contemporary realities of policing protests over three and a half decades after the Public Order Act was enacted. This point has forcefully been made both by the national policing lead for public order, Chief Constable Harrington, and by Her Majesty’s inspectors of constabulary. We should recognise their expertise in this regard and accept that the 1986 Act needs to be updated.
Turning to Amendments 81 and 82, I am grateful for the further opportunity I have had to discuss them with the noble Viscount, Lord Colville. The noble Viscount has made a powerful point that the Palace of Westminster is the symbolic representation of our vibrant democracy and that it must be open to those who want to do so to protest in the vicinity of these Houses of Parliament. I want again to reassure the House that Clause 58 will not have the effect that some noble Lords have feared.
Since our last debate, we have discussed this further with the Greater London Authority, which has categorically confirmed that, were Clause 58 in its original form to be enacted, it will continue to authorise rallies and protests, as it currently does, on the GLA-managed area of Parliament Square Garden.
Since I had the opportunity to discuss this further with the noble Viscount last week, my officials have also been in touch with the Metropolitan Police, and it has similarly confirmed that the provisions in Clause 58 do not affect its ability to manage large protests of 5,000 people or more within Parliament Square. I should stress that it is not the function of the Metropolitan Police to authorise or otherwise protests in the vicinity of Parliament but to exercise its powers under the Public Order Act to attach conditions to a protest. The Metropolitan Police has also reassured us that, as with other public order powers, it will use this new power of direction only in a manner that is reasonable, necessary and proportionate to the rights of individuals to engage in peaceful protest.
As we are talking about the Houses of Parliament, I think this might be a good moment to reflect on the death of PC Palmer, five years ago today. I cannot believe it was five years ago, but it is. We pay tribute to him for the way he tried to protect the Palace when he was murdered.
Finally, moving to Amendment 88, this is a watered-down version of the Government’s plan to increase the maximum penalty for the existing offence of obstructing a highway. It is vital that we protect all our roads from the disruptive and damaging actions that we have seen some protestors employ in recent months. Limiting this increase to the strategic road network only, which excludes most A roads, as well as more minor roads, as this amendment seeks to do, would allow individuals to continue to block our roads without facing the appropriate sanction. I should stress that we are increasing the maximum penalty for this offence. It would continue to be for the court to decide the appropriate sentence in any particular case, and I would expect the sentence imposed to reflect the harm caused.
We have listened to and reflected on the concerns raised by noble Lords on Report. As is entirely proper, this House asked the other place to think again. It has now done so. The elected House has now endorsed, not once but twice, the provisions in the Bill enabling the police to attach conditions to a protest relating to the generation of noise. The elected House has also disagreed, following separate Divisions, with the Lords amendments relating to the policing of assemblies and protests in the vicinity of Parliament. We have done our duty as a revising Chamber, but now that the Commons has clearly expressed its view, I put it to the House that it is time to let this Bill pass. I commend the Commons reasons and amendments to the House.
Motion E1 (as an amendment to Motion E)
Lord Coaker
Moved by
Leave out from “House” and insert “do insist on its Amendment 73, do disagree with the Commons in their Amendment 74A and propose Amendment 74B to Lords Amendment 74 in lieu and Amendments 74C, 74D, 74E, 74F and 74G as consequential amendments, and do insist on its Amendment 87 and disagree with the Commons in their Amendments 87A, 87B, 87C, 87D, 87E and 87F—
74B: Leave out lines 20 to 26
74C: As an amendment to Lords Amendment 75, leave out “any of subsections (2ZA) to (2ZC)” and insert “subsection (2ZA) or (2ZB)”
74D: As an amendment to Lords Amendment 76, leave out “any” and insert “either”
74E: As an amendment to the Bill, page 47, leave out lines 36 and 37
74F: As an amendment to the Bill, page 47, line 40, leave out “an expression mentioned in subsection 12(a) or (b)” and insert “that expression”
74G: As an amendment to the Bill, page 47, leave out lines 44 and 45
Lord Coaker (Lab)
My Lords, first, I join the Minister in her tribute to PC Keith Palmer and in the sentiments she expressed, which will be shared by all of us across this House. As he protected us, he protected our democracy. As ever, we are grateful to PC Palmer for his sacrifice and for the sacrifice of so many others. I am pleased to join the Minister in her tribute.
This is an extremely important group of amendments. I thank the Minister for her thoughtful reply, even though I am going to disagree with some of it. I appreciate the comments she made and the way in which she made them.
This morning, on my walk into Parliament, knowing that we were going to discuss the issue of protests, I went to the gardens next to us and stood next to the tribute to the Pankhursts. I went across into Parliament Square to see Gandhi, Millicent Fawcett and Mandela. I wonder what they would say to us today as we discuss these amendments. I know the Government’s response will be that this is a different time, but that is irrelevant; or that this is an age that has amplifications, as we heard from the Minister, and they were not dealing with that. I suspect that, in their time, the Suffragettes, Mandela, Gandhi and all of those sorts of people were subject to being told that they were too extreme and were going too far.
I say to the Minister that this is a fundamental principle. I say again that I do not believe that the Minister wants to ban protests. I accept that. I am not saying that we have a Government who want to completely ban protests, completely end demonstrations and completely end the right to protest. I do not believe that. What I believe is that the Bill in certain ways undermines certain conditions which have always applied to people’s ability to protest.
The Government have got themselves in a right mess on this, as I will demonstrate, with respect to noise, which is the particular focus of the amendments that I want to point out. Let me quote from the Government’s own website, on thresholds. Our Amendments 73 and 87 would remove the Government’s proposed noise trigger which would allow the police to put conditions on marches or one-person protests that get too noisy. The problem is this: what on earth does too noisy mean? I would not like to debate that. One person’s too noisy is another person’s not noisy enough; some people get irritated by not very much noise and some people get irritated by no noise at all.
I went to the Government’s website for clarification on what too noisy means. When making use of these powers, the website helpfully gives advice for deciding what is too noisy. These are the thresholds that have to be met: who is impacted and how many people, which is fair enough, though it does not define it; who is vulnerable; and the duration of the impact. It very helpfully says that, if it is a short time, it is unlikely to meet the threshold. Presumably even if a protest is too noisy, if it is not for very long it is okay, because it is unlikely to meet the threshold.
The next threshold shows how ridiculous things are. Presumably a Minister has passed this; when I was in the Home Office, a Minister had to sign these things off—somebody has. If a protest is outside a building with double-glazing, it is not likely to have the same impact as if it is outside a building that does not have double-glazing. Double-glazing is a threshold now. If you are organising a demonstration, and if you are going to be noisy, you need to find areas where the buildings have double-glazing—that is what it actually says. I tell you, this will be a good advert for the double-glazing companies. It actually says on the Government’s own website that, if the protest is outside a building with double-glazing, it is not likely to have the same impact.
The serious point I am making is that you can see the problems the Government are having in trying to define what they mean by “too noisy”. As soon as you do that, you disappear down a hole. There is an old phrase, “If you are in a hole stop digging”. The Government are still digging.
The Minister berates the Opposition but the Government have not even convinced their own MPs. I will quote just two. Robert Jenrick, who was a Cabinet Minister until a few months ago, wondered
“whether the Government are going too far in this respect.”
He does not answer his own question but I think it answers itself. Steve Baker MP said:
“Let us say to the Government that actually this is going too far”. —[Official Report, Commons, 28/2/22; cols. 838 and 848.]
Somebody else made the point that Margaret Thatcher introduced the Public Order Act in 1986, which did not say anything about noise. John Major, following the poll tax protests, did not do anything about noise, and neither did David Cameron or Theresa May. But now we have a situation where being too noisy is regarded as something that it is important for the Government to legislate on.
Baroness Jones of Moulsecoomb (GP)
My Lords, I shall speak to my two Motions F1 and H1. I am sure it is no surprise that Green Party policy is a bit more radical than that of other parties—there is a lot of grumbling behind me; I hope it is support, not criticism—and is firmly against crackdowns on protest and the oppressive measures in the Bill against the Gypsy, Roma and Traveller communities. Personally, I would throw the Bill out; if they were any chance of filibustering it, I would stay here for several days in a row. However, that is not looking likely so, as the noble Lord, Lord Coaker, said, I accept what is happening today but with very bad grace, and I shall probably sit here snarling when we let this through. Incidentally, I am so glad that I am not on the other side of the Chamber with him shouting at me; that must be very distressing. It is great being here behind him.
I think the vast majority of the British public—I would like to think that sometimes I speak for them—agree that a potential ban on noisy protest is ridiculous, and of course we have heard some of the more ridiculous things that the Government have said already. I quite often feel sorry for their Front Bench, who have to come out and speak in favour of some of the stuff that this Government cook up which is clearly ridiculous.
Some of the Bill’s measures will make things more difficult for the police. They already have reputational problems with the general public, and this is going to make it worse for them; if they get tired or annoyed then they are likely to do something that will upset a lot of people, and cases will come to court. That is not good for anyone.
I have noticed a tendency to talk about protesters as if they are not people. My experience of protest, which is probably similar to that of some other noble Lords here, is that protesters are people. You might think they are all hippies and people like that, but they are not; some of them are ratepayers. Some of them earn a living and pay their taxes. People do not approve of crackdowns on protest because there are times when they themselves want to protest. They want to protest about a crossing that is in the wrong place on their own road or to complain about cars idling outside their children’s school. People protest. It is all very well to call them “protesters” but actually they are just people.
On the obstruction of the highway, I do not like the Commons amendment. I am not persuaded by the fact that there was a huge majority in the other place supporting the Government on it, because what else can you expect with an 80-plus majority? I do not like the original Lords amendment either because I think it was an absolute blunder. Obstructing the highway should not land anyone in prison for a year. There is a point here about how you can still be put into prison for a year even if the roads have already been closed by a traffic authority. When roads in Sheffield, sometimes quite minor ones, were closed for trees to be cut down, local people who were furious about that and were doing their best to stop it protested on those closed roads. Under the Bill, they could have faced up to 51 weeks in prison for protesting on their own road to try to protect their own trees. Peaceful protesters should never face jail. The original amendment was bad and the compromise is also bad.
We had the opportunity to throw this out completely but, sadly, the usual channels made it impossible to do so. If I thought I could convince enough people like the noble Lord, Lord Pannick, then I would push the Motion to a vote, but I did not even have enough voices to get a proper vote on Report so I will stick to sulking over here.
Still, the Government have badly misunderstood what the British public think about protest. Protest is something that we accept as part of our democracy. In other Bills, such as the Elections Bill, the Government are suppressing democracy, and here they are suppressing democracy again. I am devastated that we are allowing the Bill through.
Lord Paddick (LD)
My Lords, I will speak to my Motion F2 and the other amendments in this group. I start by joining the Minister in paying tribute to the selfless actions of PC Keith Palmer, who tragically died five years ago today.
I apologise for the length of my remarks, but there are numerous important issues contained in this group. I promise not to spend an average of more than two minutes on each Motion. There are few subjects on which I am an expert, but the policing of public order is one. I was one of a small cadre of advanced trained public order senior officers, and I have extensive experience of policing events. I remind the House that the majority of police forces outside London told HMICFRS that they did not need new public order legislation, and that the limiting factor in policing protests was the number of public-order-trained police officers they had to police protests. A whistleblower who worked for HMICFRS said that the conclusions in its review of public order policing did not reflect the evidence that the inspectorate had gathered. Having read the report in full, I agree. There is no justification for more public order legislation.
In relation to Motion E, the police already have powers to impose any conditions necessary—including an outright ban—on public processions, if a senior police officer reasonably believes that it will result in serious public disorder, serious damage to property or serious disruption to the life of the community, or if the purpose is to intimidate others. Adding a noise trigger to those powers will do more harm than good. As I said in Committee, from my experience, the more conditions you impose on a procession, the more likely those conditions are to be resisted and, therefore, the more police officers you will need to enforce them. As I have said, police forces already say that they do not have enough public-order-trained police officers.
A peaceful protest with no anticipated violent infiltrators and an agreed route—however large—can be policed with a minimum number of police officers and a lot of traffic cones and miles of white tape. Imposing conditions which the organisers are resisting is likely to require between double and five times the number of police officers. This is because confrontation must be anticipated, and the conditions may have to be imposed by force—such as a march wanting to take a different route. An outright ban on a protest, as well as being unlikely to be successful—as we saw with the Sarah Everard vigil on Clapham Common—requires about 10 times as many police officers as are required for a compliant, peaceful demonstration. How many police officers would it have taken to police the Sarah Everard vigil, in the middle of a common, if there had been agreement between the police and the organisers? The more conditions which can be imposed, and the more draconian those conditions, the bigger the drain will be on already overstretched police resources.
The second issue is the impact on trust and confidence in the police, as the noble Baroness, Lady Jones of Moulsecoomb, has just said. The impact of the policing of the Sarah Everard vigil was hugely negative, and the government proposals will simply increase the potential for, and frequency of, such scenes. By banning some demonstrations on the basis of anticipated noise, and not others, the police will be subjected to accusations that they are being political rather than practical. They will be accused of being selective about which protests can take place for political reasons—such as banning demonstrations against war, as they are likely to be enormous and noisy, but allowing demonstrations in favour of war to go ahead, as they are not likely to be very well supported, to take a Russian example. Such a change in the law is likely to draw the police reputation into even more disrepute. In addition, I ask how many times the business of this House or the other place has been disrupted because of noise by protestors. I suggest none —and I do not believe that the House has double glazing. In any event, the police can always divert disruptive demonstrations away from sensitive areas. This change—the noise trigger—is unnecessary and damaging, and we will be voting to support the Labour amendments.
Motion F is about maintaining the current position, where the police can impose conditions on those holding an assembly, a static protest or a meeting but cannot ban it altogether. The Government argue that their proposals simply bring assemblies into line with the powers that the police have in relation to processions, but there are very good reasons why the two should be treated differently.
As I said in Committee, on 13 January 1986 in the House of Commons, the then Conservative Home Secretary, later Lord Hurd of Westwell, explained why processions were being treated differently from assemblies:
“We stopped short of a power to ban”
assemblies
“because we believed that that would be an excessive limit on the right of assembly and freedom of speech. For this reason, clause 14 does not permit the police to impose conditions changing the date and time of an assembly.”—[Official Report, Commons, 13/1/1986; col. 797.]
We agree, and the effect of my amendment is to achieve the same result.
Already, if a senior police officer reasonably believes that an assembly may result in serious public disorder, serious damage to property or serious disruption to the life of a community, or that the purpose of the assembly is to intimidate others, he or she can, under existing legislation, impose conditions on where the assembly takes place; tell an existing assembly to move somewhere else; limit how long it goes on for; and/or limit the numbers attending. The wording of my Amendment 80G in Motion F2 is different from simply insisting on the amendment we made to remove the new provision proposed by the Government on Report —as Motion F1 in the name of the noble Baroness, Lady Jones of Moulsecoomb, does—but the effect is the same.
The only thing the police cannot do under existing legislation is to ban a static protest altogether. The police already have all the tools they need to deal with unlawful assemblies, but to give the police the power to stop people protesting at all smacks of Putin’s Russia, not the United Kingdom of Great Britain and Northern Ireland. I will seek the opinion of the House on Amendment 80G in Motion F2.
On Motion G, we share the concerns of others that all large demonstrations that have the potential to spill over into the road and, either by accident or design, impede vehicular access to Parliament could be banned even when Parliament is not sitting. We believe that this is legislative overreach, relying as it does on the discretion of the police to enforce it or not. However, we do not agree that the police should be able to give permission to allow entrances to Parliament to be blocked when Parliament is in session, so we do not insist on Lords Amendment 82.
On Motion H, we share the concerns of others that those who engage in peaceful sit-down protests, however short the duration, should face the potential penalty of imprisonment for highway obstruction where previously they could have been only fined. As we saw with the Insulate Britain protests, existing legislation, including the application for and enforcement of injunctions, can be successfully used to deal with persistent offenders, including imprisonment for those who breach injunctions. However, with the undertaking given by the Minister at the Dispatch Box that imprisonment is intended to be used only in the most egregious cases, we hope that this increased penalty does not have the chilling effect it may otherwise have done on peaceful protest.
On Motion N, we are grateful to the noble Lord, Lord Coaker, for raising the issue and for the Government’s response.
Baroness Fox of Buckley (Non-Afl)
My Lords, I regret that we heard the Home Secretary and now the Minister accept the principle of the Opposition’s fast-track public space protection orders in relation to Motion H and use that to justify broader anti-protest amendments as a balance in protecting non-protesters. I regret it but I am not surprised. The danger of advocating any measures that strengthen anti-protest measures is that it sets a tone that suggests that some protesters are good and some are bad, which politicises a general and universal right that I think we should defend. Putting that to one side, I want to oppose the Government’s doubling-down on a noise trigger and follow on particularly from the remarks made by the noble Baroness, Lady Jones, and others who have expressed their opposition so well.
I want to nod to the democratic dilemma of this ping-pong and whether we are actually blocking democracy. When summing up the rejection of the second tranche of anti-protest amendments on Report, the noble Baroness, Lady Williams, chided all of us who opposed them for ignoring the public’s demand that authorities deal with new forms of protest activities such as those we have seen used by Extinction Rebellion and its offspring, such as Insulate Britain.
I disagreed that those amendments would have dealt with those new forms of protest. I thought they were so broad as to sweep up all and any protests, including anyone who might have wanted to protest against net zero, to take an example of a different political side. The state also already has huge powers, whether the Emergency Workers (Obstruction) Act or the Public Order Act, as we have heard, that could have been used to deal with these forms of protest which are a particular nuisance, as the public would have it. Despite that, I felt the Government were at least responding to a particular form of protest about which there has been some public agitation and concern. Therefore, that chiding was listened to.
But now, here we are with government amendments on protest that bear absolutely no relation to the Home Office’s motivation on new forms of protest. I do not think the Government have a democratic mandate for these amendments. Fundamental and foundational democratic rights, such as the right to assemble or protest or the right to free speech, should be protected by an iron curtain. If there is any attempt to undermine them, the presumption must rest with the Government to justify in absolutely clear terms, with a sense of the absolutely exceptional reasons for the proposed changes, any more draconian measures being brought in.
It just does not add up. As I have noticed before, even these new types of protest that apparently upset the public are often silent, so the noise trigger does not apply to them in any way whatever. The authorities should consider proposing accruing further power when limiting the right to assembly, and ultimately the right to free speech, only ever in exceptional circumstances. In this instance, those exceptional circumstances are just not there.
Even more galling is the smoke and mirrors of posing these proposals as protecting the public from the consequences of protest. The public are described as “non-protesters”; as I think the noble Baroness, Lady Jones, pointed out, this turns the public into two different groups of people, but actually the public are the people who go on protests. They might not go on all of them all the time, but it is their right as the public that we are talking about. There is an Alice in Wonderland approach here that gets the issues upside-down and implies that the Government are far removed from the reality that free protests have been crucial for the public over centuries. The denial of that right, whether in Putin’s Russia or China’s Hong Kong, should be a visceral reminder to us here of why protest —warts and all—matters.
Of course not all protests are popular. Many of the modern protests I have mentioned, such as those by Extinction Rebellion, I do not support and they irritate me but, as with all fundamental democratic rights—free speech, free association and so on—it does not matter whether they are annoying, unpleasant or objectionable, or even if those demonstrations are directed in a hostile way against what you believe to be true.
We cannot pick and choose which speech or which protest we agree with and then endorse only the ones that we like. We have to make sure that we do not let those kinds of political prejudices get in the way. We are bound to feel uncomfortable at times when people protest for things that we disagree with, but that is freedom for you. It has never been claimed that living in a free society is safe and cosy. It is designed to make you, on occasion, feel uncomfortable. But there are principles here. As the Court of Appeal notes:
“The right to protest becomes effectively worthless if the protesters’ choice of ‘when and where’ to protest is not respected as far as possible”,
and I stand by that.
The Lord Bishop of Manchester
My Lords, ever since this Bill began its progress through your Lordships’ House, I have struggled to understand why the source of noise seems to make a difference.
I am lucky to live in a large, busy and somewhat noisy city. Last week one of our local Jewish communities, which I live at the heart of, celebrated Purim, and it celebrated it noisily. I live close to Salford City football ground. I have a season ticket and go to watch matches there. But I would not need to be in the ground to know the score; I could tell from the noise that emerges from it. I am well within earshot of the annual Parklife festival in Heaton Park in north Manchester, which brings countless people from all over the country and beyond to have a fun weekend. I struggle to see why a night of noise from a religious festival or a weekend of noise from a pop concert is somehow acceptable, but noise from a protest for a night or a weekend somehow is not. If noise is a nuisance, it is a nuisance. The fact that it is generated by protests and not by pop music seems entirely irrelevant.
I take great comfort from what the noble Lord, Lord Coaker, said earlier. I have double glazing, so perhaps nothing at all is a nuisance to me; but not all my neighbours in Salford are quite so lucky. Unless the Minister can give me some clarity as to why the source of the noise make such a substantial difference that we have to legislate against it, I will be supporting the amendment in the name of the noble Lord, Lord Coaker, and others this afternoon.
Lord Hogan-Howe (CB)
My Lords, I suggest that noble Lords may want to follow Sheffield Wednesday because, if you lived anywhere near the ground, you would never be disturbed by much noise from the team scoring.
I support the right to protest. What I am about to say may leave people thinking that I do not, but I genuinely do. I say that as somebody who, like the noble Lord, Lord Paddick, has been a gold commander for public order events with tens of thousands of people—hundreds of thousands on occasion. Sometimes people in London imagine that the only protests that happen are with the Metropolitan Police leading them, but of course other forces have to deal with similar challenges an awful lot of the time.
There are different types of protest, but we seem to have started to talk about the only types of protest being the ones that happen in Whitehall, which we all regularly see and hear and which we have the most experience of, but they are not the only types of protest that happen around the country. I want to say a few words about those types of protest, and why I broadly support the Government’s idea to look at why noise can be a problem. Noise can be threatening and intimidating, it can be a nuisance and it can damage health. Surely the test of whether or not noise is okay is whether somebody of reasonable firmness—not somebody who is particularly sensitive—can withstand it. In certain circumstances we would all be very prone to being damaged by noise. Imagine a family who had someone who was terminally ill. Some of us who can cope with noise most of the time cannot cope with it all the time. So I think there is a test that can be applied, and the police would be quite able to apply it.
There is another example, I would suggest, of something that is lawful generally but when done too much can be a crime: picketing. That may have been contentious in the past, but people have engaged in it as part of a trade union dispute. However, it was made illegal, some time ago now, to gather in such a large number that it would intimidate people and prevent them working or doing other things that were reasonable. Picketing is therefore lawful, but not if it is done in such numbers and is causing such damage that it would cause normal people to be worried that they could not carry on with their normal lives.
The question that is not really addressed by those who object to the Government’s proposal is: is it always okay for protesters to cause noise nuisance, even if somebody is unreasonably damaged by that noise? If it is outside your home or your business, and it is day after week after month, is that okay? If not, how are you going to deal with it? I have not heard any proposals for doing that. Of course, it is okay in Whitehall, but it is not okay if it is at your home. We have had examples where people have had complaints and protests against them at their home or business repeatedly and frequently. We have to at least consider this when scrutinising this legislation. It is important to them, even if some people do not think it is important in general.
A question was raised as to whether police officers could assess whether noise “may” cause damage. That is a reasonable question, but, of course, police officers do this type of thing every day. They have to decide whether a breach of the peace is likely, and they might make an arrest or make an intervention around threatening behaviour. Whether something may happen is one of the things that they have to decide. They are just normal people who have to make a reasonable assessment. I do not worry about them too much on those grounds: they make that sort of decision every day and I suspect that they can carry on making it even if this was to be made further legislation.
There was a question about whether the police could intervene in a particular protest if there were tens of thousands of people involved and they were causing lots of noise. Could the police intervene and do they have enough staff? That is a fair question, but, of course, they do not have to intervene on that day. Perhaps it is impossible to intervene, but they can use that as evidence to decide whether to impose a condition in the future. That is one of the reasons why we have law: to decide whether you are able to impose conditions, what the reasons are for the conditions, and whether you can gather enough evidence to say that your “may” is a reasonable test. Therefore, it may not be on the first occasion that the protest happens, but it may be on the subsequent one, which, if noble Lords accept my argument, is something that at least has to be considered if there are repeated protests causing excessive noise for people, making it difficult for them to enjoy their lives.
I understand why people complain about this government proposal, but I honestly think that the people who oppose it have not yet addressed how they would deal with the problem if it was their home, their parents or their business. How do they intend to stop the noise, which can be so damaging to life? That is the question I would ask but, broadly, I support the Government’s proposal.
Baroness Altmann (Con)
My Lords, I commend my noble friend for all the hard work that she has done on this Bill and for accepting a number of the amendments, as well as the Government’s own amendments which she has brought forward, having listened carefully to the debates in this House and in the other place.
I do not believe for a moment that my noble friend or her colleagues on the Front Bench would intend to ban peaceful protest, but Part 3 of the Bill seems to be straying towards authoritarianism. We see at the moment how democracy is fragile and how important it is to protect it. This House is challenging what looks like an attempt to undermine the democratic right to protest, with what could be disproportionate criminalisation of peaceful protest.
Demonstrations must almost always be noisy. The demonstrators want their voices heard—that is the point of the protest. As I understand it, the Joint Committee on Human Rights confirms that the police already have powers to stop extreme and disruptive protests. If there is enough power already, I am not clear how, in practice, as the noble Lords, Lord Coaker and Lord Paddick, explained, the police would be able to assess how to implement this legislation. It may well be an unwise hostage to fortune that could be used for repression of unwanted opposition. As we are passing primary legislation which will outlast the current Administration—and who knows what the future holds?—I urge my noble friend to listen carefully to what has been said this afternoon about the vagueness of the word “noisy”.
The Lord Bishop of Leeds
My Lords, I was not going to add to the argument, but—and I do not want to depress the noble Lord, Lord Coaker—I have never been on a demonstration. At least, I have not been on a demonstration that was protesting against something. I have been on two marches that were very noisy and were accompanied by bands and so on, and which were protests for something. On the definitions of these things, I would love to know whether we are talking about protest, which is assumed to be against something, or a call for something, which is entirely positive. If the phenomenon is the same, what are we faffing around with this for? I just do not understand. I also got arrested for busking, which could be related to noise but I was only 20 and it was on the Paris metro, so it does not count. But being serious, I do not understand why the Government are pushing this when there is no call for it and it is unlikely to achieve anything because the definition is so vague.
Lord Pannick (CB)
My Lords, my objection to the noise provisions, in addition to the points made by the noble Lords, Lord Coaker and Lord Paddick, is the complete uncertainty of the concepts the Government wish to introduce into legislation. What level of noise is unacceptable, what level of disruption is unacceptable, and how will the organisers of a protest control the noise generated by the people demonstrating? What are they supposed to do in these circumstances? Enacting legislation of this sort will inevitably cause problems for the police, raise expectations that cannot be met and—I declare my interest as a practising barrister—undoubtedly lead to prolonged and expensive litigation that will result in the conditions being overturned.
Baroness Wheatcroft (CB)
My Lords, on the first Sunday after the invasion of Ukraine, I joined the protestors in Trafalgar Square. They were peaceful but noisy. It may well be that there were some minor oligarchs—maybe even friends of the Prime Minister—living in those new and very expensive penthouses overlooking the square, and I would like to think that they were annoyed. Unfortunately, I suspect that they have double glazing. However, the right to protest and to cause a degree of annoyance to a few people is surely something that Ukrainians would be amazed we were even thinking of curtailing.
I absolutely believe the Minister when she says that the Government have no intention of curbing that right, but this will be on the statute book if we allow it to go through, and not every Government might be quite as benevolent as the one we are currently living with. For that reason alone, we should absolutely support the amendment of the noble Lord, Lord Coaker. It is extraordinary that we are even contemplating this. It is like the Elections Bill. These are clauses which we are promised will be used in only the most innocuous of fashions. However, they give power to future Administrations to do things that none of us in this Chamber, or indeed at the other end, would like to see happen. For that reason alone, we should just say no—and what is more, we should say no time after time.
Lord Hendy (Lab)
My Lords, in addition to the objections to Motion F that have already been made, I have particular one. I made it earlier in the proceedings on the Bill, and it is the one the noble Lord, Lord Purvis, made a moment ago. It concerns the right to picket. Part 3 deals with demonstrations and freedom of expression generally. The provision that is sought to be reintroduced to the Bill will affect all those things, but will also affect the right to picket
“in contemplation or furtherance of a trade dispute”.
The right to picket is not only protected by Article 10 of the European Convention, concerning freedom of expression, but by Article 11, which protects freedom of association and the right to be a member of a trade union for the purposes of protecting one’s interests. It is a right that has been highly regulated in English and Welsh law for more than 100 years, beginning with the Conspiracy, and Protection of Property Act 1875, which, I point out for the benefit of the noble Lord, Lord Purvis, prohibits pickets picketing domestic houses. The restrictions on the right to picket in English legislation are reiterated in Section 220 of the Trade Unions and Labour Relations (Consolidation) Act 1992, which nevertheless preserves the right to picket in contemplation or furtherance of a trade dispute, but imposes restrictions on it by way, among other things, of a code of practice which extends over 19 pages. In 2016, Parliament sought to increase the number of restrictions on picketing by way of the Trade Union Act.
My submission is a simple one: the right to picket industrially is already sufficiently protected and should be excluded from any restrictions. I accept the justification for excluding all restrictions on the right to demonstrate as set out in the Bill, but if there are to be restrictions, the right to picket should have some exemption. I recall that in Committee, the Minister thought there was some substance to that argument because she introduced an amendment on, I think, blocking strategic highways which contained a particular protection for those engaged in a trade dispute.
If anybody doubts that this will affect picketing, one has only to look at Amendment 80A. It inserts a new subsection (2ZA), which refers to actions that
“may result in a significant delay to the supply of a time-sensitive product … or … may result in a prolonged disruption of access to any essential goods or any essential service, including, in particular, access to … the supply of money, food, water, energy or fuel … a system of communication … a place of worship … a transport facility … an educational institution, or … a service relating to health.”
I remind noble Lords that “a transport facility” will of course include P&O ships. If this provision is enacted, and if RMT and Nautilus International invite pickets to stand at Dover docks to discourage workers from taking their place, or other workers from refuelling or revictualling vessels or discharging cargo, they will not only be subject to all the existing picketing restrictions under UK legislation, but they will be bound not to be noisy. I therefore support the amendment of my noble friend Lord Coaker.
Viscount Stansgate (Lab)
My Lords, before we vote on this Motion, I invite Members to consider what the history of our country would have been like if the laws that the Government are proposing had been in place at the time. We are very proud of the development of parliamentary democracy in this country, but I can think of major occasions in the past when major change took place which was quite right and very noisy. Do you think that the Chartist demonstration that took place two miles from here at Kennington was noiseless? Were the suffragettes and suffragists who waged the campaign to give women the right to vote somehow noiseless? They were noisy. Do you think that the poll tax demonstrations were noiseless? They were noisy, and the Government of the day finally realised that it was a mistaken policy. I modestly mention to your Lordships that this legislation will unleash terrible trouble in the future. I do not know what kind or when, and I am not a barrister so I will not benefit personally from any of the legal cases that will arise, but it will cause trouble and it should not be passed.
Baroness Williams of Trafford (Con)
My Lords, I cannot see anyone trying to get up. If they are doing, they are probably behind me; do not encourage them. I thank all noble Lords who have taken part in this debate. I say to the noble Lord, Lord Coaker, that we always keep all legislation under review. The Minister in the other place, in saying that, was not saying anything unusual.
I am glad that I give the noble Baroness, Lady Jones of Moulsecoomb, the opportunity to vent at every piece of legislation that I bring into this House, because we are friends and I feel that it is some form of therapy for her. I do not know why she was picking out the noble Lord, Lord Pannick, for not supporting her, but that is probably a side issue that I do not know anything about. She talked about reading the public mood, and I will get on to that and the facts behind the public mood shortly; I warn her that she will not like it. About Putin’s Russia, or indeed Ukraine, I do not want to make a cheap point but I see the point about democracy. The people of Ukraine or Russia will look at this Parliament and realise how very lucky we are that we can not only argue but shout at each other and the majority wins. Noble Lords will be particularly pleased because there is generally a majority against the Government in this place.
Amendments 143A to 143C provide for the expedited public spaces protection orders. I am glad that they find favour with the noble Lord, Lord Coaker. In doing so, clearly he makes the distinction between noise generally, noisy protests and noise that is injurious to others, as evidenced by his amendments.
I welcome the noble Lord’s acceptance of the decision taken by the other place in relation to the increase in the maximum penalty for the offence of obstructing a highway as reflected in Amendment 88A. I am sorry that the noble Baroness, Lady Jones of Moulsecoomb, takes a different view, but I hope she will not press Motion H1, given that the courts are able to take into account the level of disruption when sentencing for this offence.
I know the noble Viscount, Lord Colville, is not in his place, but I want to make the point that we have had a very constructive discussion on Amendments 81 and 82. I hope that he will have heard it remotely. Like him, we want to monitor carefully the impact of Clause 58 to ensure that it does not have the unintended consequences of inhibiting large protests in the vicinity of Parliament. I was particularly struck by our conversation: when I was coming into Parliament on my bike this morning—I know noble Lords are very impressed—there was an ambulance trying to get into Parliament, and it kind of illustrated the point for me.
Amendments 73, 80 and 87 relate to the powers of the police—not the Government or the Secretary of State—to attach conditions to protests, including, in particular, in relation to the generation of noise. I know that noble Lords continue to have concerns about these provisions, and I hear that in the House today. I think they are unfounded, and I say again that the provisions do not ban noisy protests; the overwhelming majority of protests will be unaffected by these provisions. But are noble Lords really saying that any amount of noise, in any situation, at any time and for any length of time, is acceptable if it is generated by protestors? The amendments of the noble Lord, Lord Coaker, clearly demonstrate that it is not. The Government do not subscribe to this view and nor does the majority of the British public. Back to the noble Baroness, Lady Jones of Moulsecoomb: we have seen in a recent YouGov poll that 53% of respondents supported giving senior police officers powers to set noise limits on protests, compared to just 33% of respondents opposing the measure.
As I said in my opening remarks, the elected House has now endorsed the noise-related measures on two separate occasions during the passage of this Bill. They have the support of the British public that they should now be allowed to pass. I invite the House to reject Motion E1.
Lord Coaker (Lab)
My Lords, I thank the Minister for her reply and all noble Lords who have responded to the debate on my amendment. I do not want to detain the House because there is a lot of other business to pursue. Let me just say that the noise provision is the one we really object to. I think that, if it is passed, in a year or two years, a senior police officer will restrict a demonstration on the basis of noise. The Minister has prayed in aid public opinion in her favour. The public will ask who on earth passed legislation that means they cannot demonstrate in a democracy in their own country—who allowed that to happen? It will be this Parliament, and for that reason I press Motion E1.
Baroness Williams of Trafford
Moved by
That this House do not insist on its Amendment 80 and do agree with the Commons in their Amendments 80A, 80B, 80C, 80D, 80E and 80F to the words restored to the Bill by the Commons disagreement to Lords Amendment 80.
80A: Page 48, line 40, at end insert—
““(2ZA) For the purposes of subsection (1)(a), the cases in which a public assembly
in England and Wales may result in serious disruption to the life of the community include, in particular, where—
(a) it may result in a significant delay to the supply of a time-sensitive product to consumers of that product, or
(b) it may result in a prolonged disruption of access to any essential goods or any essential service, including, in particular, access to—
(i) the supply of money, food, water, energy or fuel,
(ii) a system of communication,
(iii) a place of worship,
(iv) a transport facility,
(v) an educational institution, or (vi) a service relating to health.
(2ZB) In subsection (2ZA)(a) “time-sensitive product” means a product whose value or use to its consumers may be significantly reduced by a delay in the supply of the product to them.
(2ZC) For the purposes of subsection (1)(aa), the cases in which the noise generated by persons taking part in a public assembly may result in serious disruption to the activities of an organisation which are carried on in the vicinity of the assembly include, in particular, where it may result in persons connected with the organisation not being reasonably able, for a prolonged period of time, to carry on in that vicinity the activities or any one of them.”
80B: Page 49, line 13, leave out “make” and insert “amend any of subsections (2ZA) to (2ZC) for the purposes of making”
80C: Page 49, line 18, after “particular” insert “, amend any of those subsections for the purposes of”
80D: Page 49, line 19, leave out “define” and insert “defining”
80E: Page 49, line 21, leave out “give” and insert “giving”
80F: Page 49, line 31, at end insert “, including provision which makes consequential amendments to this Part.”
Baroness Williams of Trafford (Con)
My Lords, I have already spoken to Motion F and I beg to move.
Lord Paddick
Moved by
Leave out from “House” and insert “do insist on its Amendment 80, do disagree with the Commons in their Amendments 80A, 80B, 80C, 80D, 80E and 80F, and do propose Amendment 80G instead of the words so left out of the Bill—
80G: After Clause 55, insert the following new Clause—
“Imposing conditions on public assemblies
(1) Section 14 of the Public Order Act 1986 (imposing conditions on public assemblies) is amended as follows.
(2) After subsection (2) insert—
“(2A) For the purposes of subsection (1)(a), the cases in which a public assembly in England and Wales may result in serious disruption to the life of the community include, in particular, where—
(a) it may result in a significant delay to the supply of a time-sensitive product to consumers of that product, or
(b) it may result in a prolonged disruption of access to any essential goods or any essential service, including, in particular, access to—
(i) the supply of money, food, water, energy or fuel,
(ii) a system of communication,
(iii) a place of worship,
(iv) a transport facility,
(v) an educational institution, or
(vi) a service relating to health.
(2B) In subsection (2A)(a) “time-sensitive product” means a product whose value or use to its consumers may be significantly reduced by a delay in the supply of the product to them.”
(3) After subsection (10A) (as inserted by section 57(11)) insert—
“(11) The Secretary of State may by regulations amend subsection (2A) or (2B) for the purposes of making provision about the meaning for the purposes of this section of serious disruption to the life of the community.
(12) Regulations under subsection (11) may, in particular, amend either of those subsections for the purposes of—
(a) defining any aspect of that expression for the purposes of this section;
(b) giving examples of cases in which a public assembly is or is not to be treated as resulting in serious disruption to the life of the community.
(13) Regulations under subsection (11)—
(a) are to be made by statutory instrument;
(b) may apply only in relation to public assemblies in England and Wales;
(c) may make incidental, supplementary, consequential, transitional, transitory or saving provision, including provision which makes consequential amendments to this Part.
(14) A statutory instrument containing regulations under subsection (11) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.””
Lord Paddick (LD)
My Lords, because the police will otherwise have the powers to ban assemblies, I beg to move Motion F2.
Baroness Williams of Trafford
That this House do not insist on its Amendments 81 and 82, to which the Commons have disagreed for their Reasons 81A and 82A.
81A: Because it is not appropriate to enable authorisation to be given for obstruction of access to the Parliamentary Estate.
82A: Because it is not appropriate to enable authorisation to be given for obstruction of access to the Parliamentary Estate.
Baroness Williams of Trafford
That this House do agree with the Commons in their Amendment 88A.
88A: Leave out lines 5 to 9 and insert—
“(2) In subsection (1)—
(a) after “liable to” insert “imprisonment for a term not exceeding 51 weeks or”;
(b) for “not exceeding level 3 on the standard scale” substitute “or both”.”
Baroness Williams of Trafford
That this House do not insist on its Amendments 89 and 146 and do agree with the Commons in their Amendments 146A and 146B in lieu.
146A: Page 56, line 32, at end insert the following new Clause—
“Repeal of the Vagrancy Act 1824 etc
(1) The Vagrancy Act 1824 is repealed.
(2) Subsections (3) to (7) contain amendments and repeals in consequence of subsection (1).
(3) The following are repealed— (a) the Vagrancy Act 1935;
(b) section 2(3)(c) of the House to House Collections Act 1939 (licences);
(c) section 20 of the Criminal Justice Act 1967 (power of magistrates’ court to commit on bail for sentence);
(d) in the Criminal Justice Act 1982—
(i) section 70 and the italic heading immediately before that section (vagrancy offences), and
(ii) paragraph 1 of Schedule 14 and the italic heading immediately before that paragraph (minor and consequential amendments);
(e) section 43(5) of the Mental Health Act 1983 (power of magistrates’ courts to commit for restriction order);
(f) section 26(5) of the Criminal Justice Act 1991 (alteration of certain penalties);
(g) in the Criminal Justice Act 2003—
(i) paragraphs 1 and 2 of Schedule 25 and the italic heading immediately before those paragraphs (summary offences no longer punishable with imprisonment), and
(ii) paragraphs 145 and 146 of Schedule 32 and the italic heading immediately before those paragraphs (amendments relating to sentencing);
(h) paragraph 18 of Schedule 8 to the Serious Organised Crime and Police Act 2005 (powers of accredited persons).
(4) In section 81 of the Public Health Acts Amendment Act 1907 (extending definition of public place and street for certain purposes), omit the words from “shall”, in the first place it occurs, to “public place, and”.
(5) In section 48(2) of the Forestry Act 1967 (powers of entry and enforcement), omit “or against the Vagrancy Act 1824”.
(6) In the Police Reform Act 2002—
(a) in Schedule 3C (powers of community support officers and community support volunteers)—
(i) omit paragraph 3(3)(b), (ii) omit paragraph 7(3), (iii) in paragraph 7(4), omit “or (3)”, and (iv) in paragraph 7(7)(a), omit “or (3)”, and
(b) in Schedule 5 (powers exercisable by accredited persons), omit paragraph 2(3)(aa).
(7) In the Sentencing Code—
(a) in section 20(1) (committal in certain cases where offender committed in respect of another offence)—(i) at the end of paragraph (e), insert “or”, and
(ii) omit paragraph (g) (and the “or” immediately before it), and
(b) omit section 24(1)(f) (further powers to commit offender to the Crown Court to be dealt with).
(8) The amendments and repeals made by this section do not apply in relation to an offence committed before this section comes into force.”
146B: Page 194, line 22, after “61” insert “, (Repeal of the Vagrancy Act 1824 etc)”
Lord Best (CB)
My Lords, I hope the House will indulge me if I say a few concluding words about Motion J on the repeal of the Vagrancy Act, with my sincere apologies that I failed to speak during the earlier debate. I welcome the Commons Amendments 146A and 146B in lieu of Lords Amendments 89 and 146, which were passed by your Lordships on 17 January. The Commons version covers the same ground as our amendments and will finally repeal the notorious Vagrancy Act 1824. This means that being homeless and sleeping rough will no longer make you a criminal.
Baroness Williams of Trafford
That this House do not insist on its Amendment 107, to which the Commons have disagreed for their Reason 107A.
107A: Because the amendment is unnecessary as there is no legal barrier to local authorities setting up and running academies.
Baroness Williams of Trafford
That this House do not insist on its Amendments 114, 115 and 116 and do agree with the Commons in their Amendments 116A and 116B in lieu.
116A: Page 137, line 5, at end insert—
“(3A) A report under subsection (3) must in particular include—
(a) information about the number of offenders in respect of whom serious violence reduction orders have been made;
(b) information about the offences that were the basis for applications as a result of which serious violence reduction orders were made;
(c) information about the exercise by constables of the powers in section 342E of the Sentencing Code (serious violence reduction orders: powers of constables);
(d) an assessment of the impact of the operation of Chapter 1A of Part 11 of the Sentencing Code on people with protected characteristics (within the meaning of the Equality Act 2010);
(e) an initial assessment of the impact of serious violence reduction orders on the reoffending rates of offenders in respect of whom such orders have been made;
(f) an assessment of the impact on offenders of being subject to a serious violence reduction order;
(g) information about the number of offences committed under section 342G of the Sentencing Code (offences relating to a serious violence reduction order) and the number of suspected offences under that section that have been investigated.”
116B: Page 137, line 22, after “section” insert—
“serious violence reduction order” has the same meaning as in Chapter 1A of Part 11 of the Sentencing Code (see section 342B of the Sentencing Code);”
Baroness Williams of Trafford
That this House do not insist on its Amendments 141 and 142, to which the Commons have disagreed for their Reasons 141A and 142A.
141A: Because conduct requiring or arranging sexual relations as a condition of accommodation may already constitute an offence under the Sexual Offences Act 2003 and the Government is committed to undertaking a consultation on whether the law in respect of such conduct needs to be strengthened.
142A: Because conduct requiring or arranging sexual relations as a condition of accommodation may already constitute an offence under the Sexual Offences Act 2003 and the Government is committed to undertaking a consultation on whether the law in respect of such conduct needs to be strengthened.
Baroness Williams of Trafford
That this House do not insist on its Amendment 143 and do agree with the Commons in their Amendments 143A, 143B and 143C in lieu.
143A Page 56, line 32, at end insert—
“Expedited public spaces protection orders
(1) The Anti-social Behaviour, Crime and Policing Act 2014 is amended as follows.
(2) After section 59 insert—
“59A Power to make expedited public spaces protection orders
(1) A local authority may make an expedited public spaces protection order (an “expedited order”) in relation to a public place within the local authority’s area if satisfied on reasonable grounds that three conditions are met.
(2) The first condition is that the public place is in the vicinity of—
(a) a school in the local authority’s area, or
(b) a site in the local authority’s area where, or from which—
(i) vaccines are provided to members of the public by, or pursuant to arrangements with, an NHS body, or (ii) test and trace services are provided.
The reference in paragraph (b)(i) to arrangements includes arrangements made by the NHS body in the exercise of functions of another person by virtue of any provision of the National Health Service Act 2006.
(3) The second condition is that activities carried on, or likely to be carried on, in the public place by one or more individuals in the course of a protest or demonstration have had, or are likely to have, the effect of—
(a) harassing or intimidating members of staff or volunteers at the school or site,
(b) harassing or intimidating persons using the services of the school or site,
(c) impeding the provision of services by staff or volunteers at the school or site, or
(d) impeding access by persons seeking to use the services of the school or site.
(4) The third condition is that the effect or likely effect mentioned in subsection (3)—
(a) is, or is likely to be, of a persistent or continuing nature,
(b) is, or is likely to be, such as to make the activities unreasonable, and
(c) justifies the restrictions imposed by the order.
(5) An expedited order is an order that identifies the public place referred to in subsection (1) (“the restricted area”) and— (a) prohibits specified things being done in the restricted area,
(b) requires specified things to be done by persons carrying on specified activities in that area, or (c) does both of those things.
(6) The only prohibitions or requirements that may be imposed are ones that are reasonable to impose in order—
(a) to prevent the harassment, intimidation or impediment referred to in subsection (3) from continuing, occurring or recurring, or
(b) to reduce that harassment, intimidation or impediment or to reduce the risk of its continuance, occurrence or recurrence.
(7) A prohibition or requirement may be framed—
(a) so as to apply to all persons, or only to persons in specified categories, or to all persons except those in specified categories;
(b) so as to apply at all times, or only at specified times, or at all times except those specified;
(c) so as to apply in all circumstances, or only in specified circumstances, or in all circumstances except those specified.
(8) An expedited order must—
(a) identify the activities referred to in subsection (3);
(b) explain the effect of section 63 (where it applies) and section 67;
(c) specify the period for which the order has effect.
(9) An expedited order may not be made in relation to a public place if that place (or any part of it) is or has been the subject of an expedited order (“the earlier order”), unless the period specified in subsection (11) has expired.
(10) In subsection (9) the second reference to “an expedited order” is to be read as including a reference to a public spaces protection order (made after the day on which this section comes into force) which neither prohibited nor required anything that could not have been prohibited or required by an expedited order.
(11) The period specified in this subsection is the period of a year beginning with the day on which the earlier order ceased to have effect.
(12) An expedited order must be published in accordance with regulations made by the Secretary of State.
(13) For the purposes of subsection (2), a public place that is coextensive with, includes, or is wholly or partly within, a school or site is regarded as being “in the vicinity of” that school or site.
(14) In this section references to a “school” are to be read as including a 16 to 19 Academy.
(15) In this section “test and trace services” means—
(a) in relation to England, services of the programme known as NHS Test and Trace;
(b) in relation to Wales, services of the programme known as Test, Trace, Protect.”
(3) After section 60 insert—
“60A Duration of expedited orders
(1) An expedited order may not have effect for a period of more than 6 months.
(2) Subject to subsection (1), the local authority that made an expedited order may, before the time when the order is due to expire, extend the period for which the order has effect if satisfied on reasonable grounds that doing so is necessary to prevent—
(a) occurrence or recurrence after that time of the activities identified in the order, or
(b) an increase in the frequency or seriousness of those activities after that time.
(3) Where a local authority has made an expedited order, the authority may, at any time before the order is due to expire, reduce the period for which the order is to have effect if satisfied on reasonable grounds that the reduced period will be sufficient having regard to the degree of risk of an occurrence, recurrence or increase such as is mentioned in subsection (2)(a) or (b).
(4) An extension or reduction under this section of the period for which an order has effect must be published in accordance with regulations made by the Secretary of State.
(5) An expedited order may be extended or reduced under this section more than once.”
(4) After section 72 insert—
“72A Expedited orders: Convention rights and consents
(1) A local authority, in deciding—
(a) whether to make an expedited order (under section 59A) and if so what it should include,
(b) whether to extend or reduce the period for which an expedited order has effect (under section 60A) and if so by how much,
(c) whether to vary an expedited order (under section 61) and if so how, or
(d) whether to discharge an expedited order (under section 61), must have particular regard to the rights of freedom of expression and freedom of assembly set out in articles 10 and 11 of the Convention.
(2) In subsection (1) “Convention” has the meaning given by section 21(1) of the Human Rights Act 1998.
(3) A local authority must obtain the necessary consents before—
(a) making an expedited order,
(b) extending or reducing the period for which an expedited order has effect, or
(c) varying or discharging an expedited order.
(4) If the order referred to in subsection (3) was made, or is proposed to be made, in reliance on section 59A(2)(a), “the necessary consents” means the consent of—
(a) the chief officer of police for the police area that includes the restricted area, and
(b) a person authorised (whether in specific or general terms) by the appropriate authority for the school or 16 to 19 Academy.
(5) If the order referred to in subsection (3) was made, or is proposed to be made, in reliance on section 59A(2)(b), “the necessary consents” means the consent of—
(a) the chief officer of police for the police area that includes the restricted area, and
(b) a person authorised by the appropriate NHS authority.
(6) In this section—
“appropriate authority” means—
(a) in relation to a school maintained by a local authority, the governing body;
(b) in relation to any other school or a 16 to 19 Academy, the proprietor;
“appropriate NHS authority” means—
(a) if the order was made, or is proposed to be made, in reliance on sub-paragraph (i) of section 59A(2)(b), the NHS body mentioned in that sub-paragraph;
(b) if the order was made, or is proposed to be made, in reliance on sub-paragraph (ii) of section 59A(2)(b) and the site is in England, the UK Health Security Agency;
(c) if the order was made, or is proposed to be made, in reliance on that sub-paragraph and the site is in Wales, the Local Health Board for the area in which the site is located.
(7) In this section “proprietor”, in relation to a school or a 16 to 19 Academy, has the meaning given in section 579(1) of the Education Act 1996.
72B Consultation and notifications after making expedited order
(1) A local authority must carry out the necessary consultation as soon as reasonably practicable after making an expedited order.
(2) In subsection (1) “necessary consultation” means consulting with the following about the terms and effects of the order—
(a) the chief officer of police, and the local policing body, for the police area that includes the restricted area;
(b) whatever community representatives the local authority thinks it appropriate to consult;
(c) the owner or occupier of land within the restricted area.
(3) A local authority must carry out the necessary notification (if any) as soon as reasonably practicable after—
(a) making an expedited order,
(b) extending or reducing the period for which an expedited order has effect, or
(c) varying or discharging an expedited order.
(4) In subsection (3) “necessary notification” means notifying the following of the extension, reduction, variation or discharge—
(a) the parish council or community council (if any) for the area that includes the restricted area;
(b) in the case of an expedited order made by a district council in England, the county council (if any) for the area that includes the restricted area;
(c) the owner or occupier of land within the restricted area.
(5) The requirement to notify the owner or occupier of land within the restricted area—
(a) does not apply to land that is owned or occupied by the local authority;
(b) applies only if, and to the extent that, it is reasonably practicable to notify the owner or occupier of the land.”
(5) Schedule (Expedited public spaces protection orders) contains amendments relating to subsections (1) to (4).”
143B: Page 220, line 15, at end insert the following new Schedule—
“SCHEDULE
EXPEDITED PUBLIC SPACES PROTECTION ORDERS
1 The Anti-social Behaviour, Crime and Policing Act 2014 is amended as follows.
2 In the heading of Chapter 2 of Part 4, at the end insert “and expedited orders”.
3 In the italic heading before section 59, at the end insert “and expedited orders”.
4 In the heading of section 59 (power to make orders), before “orders” insert “public spaces protection”.
5 In the heading of section 60 (duration of orders), after “of” insert “public spaces protection”.
6 (1) Section 61 (variation and discharge of orders) is amended as follows.
(2) In subsection (1), in the words before paragraph (a), after “protection order” insert “or expedited order”.
(3) In subsection (2), for “make a variation under subsection (1)(a)” substitute “under subsection (1)(a) make a variation to a public spaces protection order”.
(4) After subsection (2) insert—
“(2A) A local authority may under subsection (1)(a) make a variation to an expedited order that results in the order applying to an area to which it did not previously apply only if the conditions in section
59A(2) to (4) are met as regards that area.”
(5) In subsection (3), after “59(5)” insert “or 59A(6) (as the case may be)”.
(6) In subsection (4), after “order” insert “or expedited order”.
7 (1) Section 62 (premises etc to which alcohol prohibition does not apply) is amended as follows.
(2) In subsection (1), in the words before paragraph (a), after “order” insert “or expedited order”.
(3) In subsection (2), in the words before paragraph (a), after “order” insert “or an expedited order”.
8 In section 63 (consumption of alcohol in breach of prohibition order), in subsection (1)—
(a) in paragraph (a), after “order” insert “or an expedited order”;
(b) in the words after paragraph (b) omit “public spaces protection”.
9 (1) Section 64 (orders restricting public right of way over highway) is amended as follows.
(2) In subsection (1), in the words before paragraph (a), after “order” insert “or expedited order”.
(3) After subsection (1) insert—
“(1A) Before making a public spaces protection order that restricts the public right of way over a highway, a local authority must take the prior consultation steps (see subsection (2)).
(1B) A local authority may not make an expedited order that restricts the public right of way over a highway unless it—
(a) takes the prior consultation steps before making the order, or
(b) takes the subsequent consultation steps (see subsection (2A)) as soon as reasonably practicable after making the order.”
(4) In subsection (2), for the words from “Before” to “must” substitute “To take the “prior consultation steps” in relation to an order means to”.
(5) After subsection (2) insert—
“(2A) To take the “subsequent consultation steps” in relation to an expedited order means to—
(a) notify potentially affected persons of the order,
(b) invite those persons to make representations within a specified period about the terms and effects of the order,
(c) inform those persons how they can see a copy of the order, and
(d) consider any representations made.
The definition of “potentially affected persons” in subsection (2) applies to this subsection as if the reference there to “the proposed order” were to “the order”.”
(6) After subsection (3) insert—
“(3B) Where a local authority proposes to make an expedited order restricting the public right of way over a highway that is also within the area of another local authority it must, if it thinks appropriate to do so, consult that other authority before, or as soon as reasonably practicable after, making the order.”
(7) In subsections (4), (5), (6), (7) and (8), after “order” insert “or expedited order”.
10 In section 65 (categories of highway over which public right of way may not be restricted), in subsection (1), in the words before paragraph (a), after “order” insert “or an expedited order”.
11 (1) Section 66 (challenging validity of orders) is amended as follows.
(2) In subsections (1) and (6), after “public spaces protection order”, in each place it occurs, insert “or an expedited order”.
(3) In subsection (7), in the words before paragraph (a)—
(a) after “order”, in the first place it occurs, insert “or an expedited order”;
(b) for “a public spaces protection”, in the second place it occurs, substitute “such an”.
12 (1) Section 67 (offence of failing to comply with order) is amended as follows.
(2) In subsections (1) and (4), after “order”, in each place it occurs, insert “or an expedited order”.
(3) In subsection (3), after “order” insert “or expedited order”.
13 (1) Section 68 (fixed penalty notices) is amended as follows.
(2) In subsection (1), at the end insert “or an expedited order”.
(3) In subsection (3), at the end insert “or expedited order”.
14 In section 70 (byelaws), after “protection order” insert “or an expedited order”.
15 (1) Section 71 (bodies other than local authorities with statutory functions in relation to land) is amended as follows.
(2) In subsections (3) to (5), after “public spaces protection order”, in each place it occurs, insert “or an expedited order”.
(3) In subsection (6)—
(a) in paragraph (a), after “order” insert “or expedited order”;
(b) in paragraph (b)(i), after “order” insert “, or an expedited order,”.
16 In the heading of section 72 (Convention rights, consultation, publicity and notification), at the beginning insert “Public spaces protection orders:”
17 (1) Section 74 (interpretation of Chapter 2 of Part 4) is amended as follows.
(2) In subsection (1)—
(a) at the appropriate places insert—
““16 to 19 Academy” has the meaning given by section 1B of the Academies Act 2010;”;
““expedited order” has the meaning given by section 59A(1);”;
““Local Health Board” means a Local Health Board established under section 11 of the National Health Service (Wales) Act 2006;”;
““NHS body” has the meaning given in section 275 of the National Health Service Act 2006;”;
““school” has the meaning given by section 4 of the
Education Act 1996.”;
(b) for the definition of “restricted area” substitute—
““restricted area”—
(a) in relation to a public spaces protection order, has the meaning given by section 59(4);
(b) in relation to an expedited order, has the meaning given by section 59A(5).”
(3) After subsection (2) insert—
“(3) For the purposes of this Chapter, an expedited order “regulates” an activity if the activity is—
(a) prohibited by virtue of section 59A(5)(a), or
(b) subjected to requirements by virtue of section 59A(5)(b), whether or not for all persons and at all times.””
143C: Page 195, line 27, at end insert—
“(ka) section (Expedited public spaces protection orders) for the purposes of making regulations;”
The Deputy Speaker (Lord Duncan of Springbank) (Con)
Let us take a moment or two to clear the Chamber before we move onto the next piece of business.
Police, Crime, Sentencing and Courts Bill
Thursday 31st March 2022
(2 years, 1 month ago)
Lords ChamberRead Full debate Police, Crime, Sentencing and Courts Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 143-I Marshalled list for Consideration of Commons Amendments - (30 Mar 2022)
13:05 - Division on Motion C1 - Ayes: 177 / Noes: 138 - Motion C1 agreed.
13:18 - Division on Motion D1 - Ayes: 163 / Noes: 151 - Motion D1 agreed.
Baroness Williams of Trafford
That this House do not insist on its Amendment 58 and do agree with the Commons in their Amendments 58C, 58D and 58E in lieu.
“PACE etc powers for food crime officers
(1) In the Police and Criminal Evidence Act 1984, after section 114B insert—
“114C Power to apply Act to food crime officers
(1) The Secretary of State may by regulations apply any provision of this Act which relates to investigations of offences conducted by police officers to investigations of offences conducted by food crime officers.
(2) The regulations may apply provisions of this Act with any modifications specified in the regulations.
(3) In this section “food crime officer” means an officer of the Food Standards Agency who—
(a) is acting for the purposes of the performance by the Food Standards Agency of its functions under the Food Standards Act 1999 or any other enactment (including functions relating to the investigation of offences), and
(b) is authorised (whether generally or specifically) by the Secretary of State for the purposes of this section.
(4) The investigations for the purposes of which provisions of this Act may be applied by regulations under this section include investigations of offences committed, or suspected of having been committed, before the coming into force of the regulations or of this section.
(5) Regulations under this section are to be made by statutory instrument.
(6) Regulations under this section may make—
(a) different provision for different purposes;
(b) provision which applies generally or for particular purposes;
(c) incidental, supplementary, consequential, transitional or transitory provision or savings.
(7) A statutory instrument containing regulations under this section is subject to annulment in pursuance of a resolution of either House of Parliament.
(8) In this section “enactment” includes—
(a) an enactment comprised in subordinate legislation within the meaning of the Interpretation Act 1978, and
(b) an enactment comprised in, or in an instrument made under, a Measure or Act of Senedd Cymru.”
(2) In the Criminal Justice and Public Order Act 1994, after section 39 insert—
“39A Power to apply sections 36 and 37 in relation to food crime officers
(1) The Secretary of State may by regulations provide for any provision of section 36 or 37 that applies in relation to a constable to apply in relation to a food crime officer.
(2) Regulations under subsection (1) may apply any provision of section 36 or 37 with any modifications specified in the regulations.
(3) Regulations under subsection (1) may not apply a provision of section 36 or 37 in relation to a failure or refusal which occurred before the regulations come into force.
(4) Regulations under subsection (1) are to be made by statutory instrument.
(5) Regulations under subsection (1) may make—
(a) different provision for different purposes;
(b) provision which applies generally or for particular purposes;
(c) incidental, supplementary, consequential, transitional or transitory provision or savings.
(6) A statutory instrument containing regulations under subsection (1) is subject to annulment in pursuance of a resolution of either House of Parliament.
(7) In this section “food crime officer” has the meaning given by section 114C of the Police and Criminal Evidence Act 1984 (PACE powers for food crime officers).”
(3) In the Food Standards Act 1999, after section 25 insert—
“25A Obstruction of food crime officers
(1) A person commits an offence if the person—
(a) intentionally obstructs a food crime officer who is acting in the exercise of functions conferred on the officer by virtue of section 114C of the Police and Criminal Evidence Act 1984 (PACE powers for food crime officers),
(b) fails without reasonable excuse to comply with any requirement made of the person by such a food crime officer who is so acting, or
(c) in purported compliance with such a requirement provides information which the person knows to be false or misleading in any material particular or recklessly provides information which is false or misleading in any material particular.
(2) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding 3 months or to a fine, or to both.
(3) In this section “food crime officer” has the meaning given by section 114C of the Police and Criminal Evidence Act 1984 (PACE powers for food crime officers).”
(4) In the Police Reform Act 2002—
(a) in section 10 (general functions of the Director General)—
(i) in subsection (1), at the end of paragraph (ga) insert “; and (gb) to carry out such corresponding functions in relation to officers of the Food Standards Agency acting in the exercise of functions conferred on them by virtue of—
(i) section 114C of the Police and Criminal Evidence Act 1984 (PACE powers for food crime officers), or
(ii) section 39A of the Criminal Justice and Public Order Act 1994 (powers for food crime officers: inferences from silence).”, and
(ii) in subsection (3), after paragraph (bd) insert—
“(be) any regulations under section 26E of this Act (food crime officers);”, and
(b) after section 26D insert—
“26E Food crime officers
(1) The Secretary of State may make regulations conferring functions on the Director General in relation to officers of the Food Standards Agency (the “Agency”) acting in the exercise of functions conferred on them by virtue of—
(a) section 114C of the Police and Criminal Evidence Act 1984 (PACE powers for food crime officers), or
(b) section 39A of the Criminal Justice and Public Order Act 1994 (powers for food crime officers: inferences from silence).
(2) Regulations under this section may, in particular—
(a) apply (with or without modifications), or make provision similar to, any provision of or made under this Part;
(b) make provision for payment by the Agency to, or in respect of, the Office or in respect of the Director General.
(3) The Director General and the Parliamentary Commissioner for Administration may jointly investigate a matter in relation to which—
(a) the Director General has functions by virtue of this section, and
(b) the Parliamentary Commissioner for Administration has functions by virtue of the Parliamentary Commissioner Act 1967.
(4) An officer of the Agency may disclose information to the Director General or to a person acting on the Director General’s behalf, for the purposes of the exercise by the Director General or by any person acting on the Director General’s behalf, of an Agency complaints function.
(5) The Director General and the Parliamentary Commissioner for Administration may disclose information to each other for the purposes of the exercise of a function—
(a) by virtue of this section, or
(b) under the Parliamentary Commissioner Act 1967.
(6) Regulations under this section may, in particular, make—
(a) further provision about the disclosure of information under subsection (4) or (5);
(b) provision about the further disclosure of information that has been so disclosed.
(7) A disclosure of information authorised by this section does not breach—
(a) any obligation of confidence owed by the person making the disclosure, or
(b) any other restriction on the disclosure of information (however imposed).
(8) But this section does not authorise a disclosure of information that—
(a) would contravene the data protection legislation (but in determining whether a disclosure would do so, the power conferred by this section is to be taken into account), or
(b) is prohibited by any of Parts 1 to 7 or Chapter 1 of Part 9 of the Investigatory Powers Act 2016.
(9) In this section—
“Agency complaints function” means a function in relation to the exercise of functions by officers of the Agency;
“data protection legislation” has the same meaning as in the Data Protection Act 2018 (see section 3 of that Act).”
(5) The amendments made by subsections (1) to (3) and any regulations made under provision inserted by subsections (1) and (2) bind the Crown.
(6) No contravention by the Crown of section 25A of the Food Standards Act 1999 (as inserted by subsection (3)) makes the Crown criminally liable; but the High Court may declare unlawful any act or omission of the Crown which constitutes such a contravention.
(7) That section applies to persons in the public service of the Crown as it applies to other persons.
(8) If the Secretary of State certifies that it appears requisite or expedient in the interests of national security that any powers of entry conferred by regulations made under provision inserted by subsection (1) should not be exercisable in relation to any Crown premises specified in the certificate, those powers shall not be exercisable in relation to those premises.
(9) In this section “Crown premises” means premises held or used by or on behalf of the Crown.
(10) Nothing in this section affects Her Majesty in her private capacity; and this subsection is to be interpreted as if section 38(3) of the Crown Proceedings Act 1947 (references to Her Majesty in her private capacity) were contained in this Act.”
“(za) section (PACE etc powers for food crime officers);”
“(da) section (PACE etc powers for food crime officers);”
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, with the leave of the House, I will also speak to Motions B and D.
Amendments 58C to 58E respond to the tenacious and clever campaign by the noble Lord, Lord Rooker, to confer appropriate police powers on the Food Standards Agency to enable it more effectively to tackle food crime. We have always been clear that we support the case, in principle, for conferring additional powers on the FSA, but we need to do this in a holistic way. The original Lords Amendment 58 did not deliver all the powers the FSA was seeking, nor did it provide for independent oversight of what are intrusive and coercive powers of the state. Amendments 58C to 58E remedy these omissions.
The amendments do four things. First, they will enable regulations to be made conferring relevant PACE powers on the FSA. Secondly, they will enable regulations to apply provisions in Sections 36 and 37 of the Criminal Justice and Public Order Act 1994 which relate to drawing inferences from a suspect’s failure to account for certain matters, such as their presence at a particular place. Thirdly, they create an offence of obstructing a food crime officer in the execution of functions conferred on them by regulations made under new Section 114C of PACE. Finally, they amend the Police Reform Act 2002 to bring food crime officers within the remit of the Independent Office for Police Conduct. Before exercising the various regulation-making powers provided for in these amendments, the Food Standards Agency will consult interested parties to ensure that we get the detail right and confer on food crime officers only those powers which are necessary and appropriate to their role. I trust these amendments will be welcomed by the noble Lord, Lord Rooker, and indeed the whole House.
I turn now to Amendment 72C, on which I will be as brief as possible because we have rightly dedicated much discussion to this topic and, as I have said before, the Government are pursuing a very broad programme dedicated to tackling violence against women and girls. Your Lordships will have seen that the Commons has spoken and, in doing so, has rejected the Lords amendment by a substantial margin and endorsed an amendment in lieu which firmly commits the Government to responding to the Law Commission’s recommendations related to adding sex or gender to hate crime laws. As I said in our last debate, the Government will also consult on whether to pursue a new public sexual harassment offence before the Summer Recess. Notwithstanding that, this House has signalled that it would like to see quicker progress, particularly on the matter of police recording. If noble Lords permit me, I will address this issue in further debates and in doing so, I hope I can provide reassurance that the Government are listening.
I want to reaffirm that the Government are pursuing the recording of hostility to sex, and that we take the commitment I made to do so during the debates on the Domestic Abuse Bill very seriously. I do intend to see that this work is accelerated, and that remains the case. I also expressed my regret in the last debate that we have not secured the pace of change that was rightly expected on this issue. The recording of sex hostility has proven—with the benefit of hindsight—more complex than parallel experiences we have undertaken with the recording of statutory hate crimes. For the sake of transparency, it is important that the Government are honest when things have taken longer than we might have expected or hoped, even if, as in this case, they are still moving in the right direction.
It would also be beneficial for the House if I outlined some of the challenges we have encountered, so as to assure noble Lords that the issues we are experiencing are technical but perfectly capable of resolution. The Government’s starting point is that we want to get the recording processes right and to do so in a way that delivers useful data. One of the principal quandaries we have been working through to this end is the blurred boundaries between this new recording category and other categories of hate crime. This manifests in contested—or, at the very least, widely confused—interpretations of sex and gender. I am sure that all noble Lords will be mindful of that. As such, this is an issue that crops up frequently in the very debates we have been having in this place. I hope that noble Lords can understand the importance attached to precision and clarity here. We do benefit from a statutory definition of sex, but, given the unique complexities, there is a risk that forces will have their own individual sense of what these terms mean. Therefore, we need to ensure consistency across the board.
We also need to acknowledge that the police already record hostility on the grounds of transgender identity, which means that there are issues to resolve as to the boundaries between different recording categories that do not apply to quite the same degree when recording most hate crimes. In many cases, the difference will be clear, but not always. The closest equivalent puzzle is regarding race and religion, where recording the actual characteristics of the victim—or, indeed, an interpretation of the often confused utterances of the offender—will produce very different answers as to the prevalence of certain hostility in society.
The matters are, of course, not insurmountable. We have resolved them in the past: where there is a conflict between two principles, such as whether a victim’s race or religion was targeted, we have successfully developed a working rule. In the case of race and religion, we tend to stress not what the actual characteristic of the victim is, but what the best available judgment suggests regarding the intent behind what the offender said or did. This will not always prove satisfactory to the victim, but it aims to paint a clearer, if imperfect, picture of the true levels of hostility that might exist in communities. When embarking on these new exercises, there is always a danger that we become bound up in striving for a degree of spurious rigour on data, whereas a common-sense judgment might point to the likely animus at the heart of the offender’s own, often muddled, beliefs. None the less, in this case we did wish briefly to pause and resolve these questions before embarking on a process which might result in less useful insights.
I hope that this provides a broad illustration of some of the difficulties we have encountered, and that it helps to illustrate the Government’s position on why legislation is immaterial to fixing them, particularly as we already have the legal powers we need. Whatever remaining questions we need to answer, I am confident that we will have resolved them in the next few months or, hopefully, sooner. I will certainly ensure that there is a renewed impetus in doing so.
Lord Rooker (Lab)
My Lords, I will be very brief. I say thank you, first, to the House for agreeing the amendment last Tuesday in such substantial numbers, because it sent a better message to the other place than the original vote, which was at 10 pm, and, secondly, to the Government.
The leaders of the FSA will say that these amendments are vital to its core mission and will make tangible benefits to the way that it can deal with food crime. I do not think that I ever claimed that my little amendment of 30 words would solve the problem; the proof of the pudding, of course, is that 1,300 words have come back from the Commons. I know the parliamentary draftsmen are good, but they did not do that last Wednesday. This shows the point: the Minister in the other place said, as the Minister has just said here, that there was no issue of principle between us. I notice, however, that Mr Malthouse spoke about the “unfortunate way” that we dealt with the matter in this place—well, I only know one way to deal with it, and that is within the rules, which is what we did.
It is worth saying that Alistair Carmichael, the Lib Dem—who represents the second-best constituency in the UK, I might add—said
“It tells something about the attitude of the Home Office and this Government in general to Parliament and the other place that for something as prosaic as this it has taken two rounds of ping-pong before the Government have been prepared to accept what was surely to the rest of the world blindingly obvious.”—[Official Report, Commons, 28/3/22; col. 637.]
And it was something on which the Government agreed in principle anyway. The issue was parliamentary time. I know that there will be a consultation and that it will be several months, maybe even a year, before any of this comes into operation, but the fact is that parliamentary time is incredibly valuable. I know that, both as a troublesome Back-Bencher in opposition and as a Minister for 12 years: if you can get it, use it.
The Food Standards Agency issue in this Bill did not fit, but it fitted the Long Title. This is a classic example of where the use of that will save us enormous parliamentary time later on. It also makes the consultation that the FSA will do much more meaningful to the people who will be consulted, because Parliament has already done the primary legislation for it all. So I say thank you very much and I am very pleased with the outcome.
Lord Russell of Liverpool (CB)
My Lords, I speak to Motion B1. I thank the Minister for the way that she explained the Government’s view on this. Interestingly, we had a discussion in yesterday’s Cross-Bench weekly meeting about the diplomacy and constitutional sensitivity involved in ping-pong. There was a range of views; I will not say what they were but they were in fact quite moderate and very balanced, so we are conscious of the delicacy of pushing ping-pong too far. However, I think—I hope—that the Minister would accept that pushing this particular subject to the extent that we have has helped and provided some clarity, not only to those of us who have been pushing for it but to both Houses and, frankly, to the Minister and the ministerial team themselves, who I think were perhaps not fully aware of exactly what they had embarked upon when the commitment was made just over a year ago to make the police record this sort of data.
There were two objectives in going for yet another round of ping-pong. The first was to get reassurance that that commitment really was being followed through with vigour and a sense of direction and purpose. The second objective, which the Minister has just demonstrated, is for the Government to adopt a more open and frankly more honest explanation when they come across difficulties. We often promise to do things and then realise that they are slightly more complicated to carry out than we had imagined or realised at the beginning. But the best thing to do is to say so, because that builds trust, and one of the most important things in the dialogue about this is to do everything that we can to reinforce that trust and good will, particularly for women and girls at the moment who, all the evidence suggests, are not finding it easy to report crimes to anybody, let alone the police. It is incredibly important that we do everything possible to reinforce that trust and make them more willing to do so.
My contention is that the best way to do that is to be honest about what is going well and what is going less well, and what is working and what is not, rather than to pretend that this is all terribly important and one of our major priorities, while newspaper story after newspaper story and television documentary after television documentary tell us that it ain’t working in the way that the Government try to make us believe that it is.
So I welcome this new spirit of openness. I also welcome the fact that I landed the Minister and her Bill team with no fewer than 14 extremely detailed questions yesterday afternoon to consider. They come directly from the police forces that were earliest in starting to record this data, so they are informed by their experiences, good and bad, and their knowledge of some of the complications. I hope that she found those questions helpful because they get to the heart of some of the complexities that we are trying to deal with. The most important thing is that, when we get to the end of rolling this out, the data produced is reliable, accurate, and helpful to the police and to the Crown Prosecution Service, which is somewhat lagging behind in understanding how to use some of this data in informing prosecutions.
So I am grateful to the Minister and her team for responding positively. When the time comes, I will not test the opinion of the House, as I think we have achieved what we set out to do.
Lord Coaker (Lab)
My Lords, I will speak to a couple of the other Motions before I speak to Motion C1 in my name. I congratulate my noble friend Lord Rooker on securing the government amendment and moving the Government away from their position and coming forward with an amendment. I pay tribute to my noble friend Lord Rooker’s work: he has been an example to us all about how to change legislation. But, to be fair to the Government as well, it was good to see them responding sensibly to the points that my noble friend made; they deserve some credit for seeing sense.
On the important work that the noble Lord, Lord Russell, has done with the noble Baroness, Lady Newlove, and many others on misogyny and other associated issues, I say that he is another example to us all of how to give bring about change. The Minister’s comments at the Dispatch Box today show real progress with respect to that. All of us will want to see the progress that is made, and I was particularly struck by the way that the Minister said that she would keep the House updated. That is particularly important, and I thank her for that.
This is a hugely important issue. Many promises have been made over a number of years and perhaps now, given the horror of some of the things that have happened over recent times, maybe this is a sea-change moment when we will see real progress made—so I again pay tribute to the noble Lord, Lord Russell, and many others.
We support Motion D1, in the name of the noble Lord, Lord Paddick. It is crucial in opposing the Government’s noise provisions as it removes the proposed noise trigger for public assemblies. On the wider question of police powers to put conditions on static protests, this new version of the clause proposed by the noble Lord responds to the concerns raised by Ministers and proposes a compromise in line with the JCHR—but I will leave the noble Lord to say more about his own Motion D1 and I look forward to hearing it.
My Motion C1 maintains our previous position that the noise trigger should be removed in full. Our Amendments 73 and 87 remove the Government’s proposed noise trigger, which would allow the police to put conditions on marches or one-person protests which get not “noisy” but “too noisy”. The Government have still not made the case that the power is proportionate, and the more we ask, the less they seem to know about how it could possibly work in practice. For example, the government Amendments 73C and 87H on “serious unease” show that the Government are still in a hole and still digging in recognising that there are problems with the definition of what “too noisy” means.
To indulge noble Lords for just a few minutes, the new subsection inserted by Clause 56(5) has the wording that
“it may cause such persons to suffer serious unease, alarm or distress.”
The Government propose to take out “serious unease”: that is the compromise. We welcome the word “unease” going, but, of course the Government have also taken out “serious”, so we now have a situation where they have lowered the threshold as a compromise—which is a ridiculous point to arrive at and just the shows the confusion.
As noble Lords know, it is really important to read the background notes to all of this. I thought that I must be reading an old version, but it is dated 28 February 2022, so it is updated. The policy paper is entitled Police, Crime, Sentencing and Courts Bill 2021: Protest Powers Factsheet. The Minister in the other place said that it did not matter that “serious” was missed out, because actually everyone knows that it still means serious, even though it has been taken out of the Bill. So I refer to the background. The policy paper was published by the Government on 28 February. I will use it as an example of the hole that the Government are in in trying to define “too noisy”. They cannot do it. There are breaches of the peace as it stands already—but anyway, let me read this:
“This power can only be used when the police reasonably believe that the noise from the protest may cause serious disruption to the activities of an organisation or cause a significant impact on people in the vicinity of the protest. ‘Impact’ is defined as intimidation, harassment, serious unease”—
which will be taken out, which is fine, but the Government’s own background paper says
“serious alarm, or serious distress with the police then having to consider whether the impact is significant.”
So the background policy paper published by the Home Office is now out of step with the amendment that the Government propose to the Bill. “Serious” is no longer there, so, instead of having “serious unease” and in the same sentence “alarm or distress”—in other words, “serious unease, serious alarm or serious distress”—that has been taken out.
Now I am not an expert on these things, but I would say to noble Lords that I would expect in court that serious distress would be more serious than just distress. Now I am not a genius, but I am also sure that if I were in a court and said that it is serious alarm, that would be a higher threshold than alarm. I may be wrong: I leave that to others to judge. But that is the compromise that the Government have come forward with.
In other words, to come forward with me saying all the things that I will come on to in a minute about other things, they are saying, “We’ve got to say something else, Coaker will be off again”. Well, I am, because it does not make sense. I am using humour to demonstrate a really serious point. By legislating in this way the Government show that they do not know what they are doing on “too noisy”. Instead of retreating in a managed, orderly way, they are panicking—“What do we do? How do we do something? We’ve got to say something”—and they come up with this in such haste that they do not think it through properly and they take the word “serious” out, as well as “unease”. I just say to noble Lords, “It just goes on”.
Of course, we then had the famous double-glazing incident, which many noble Lords said to me afterwards could not be true. I just referred them to the guidance. They went away and read it and said, “Goodness me, it does say double-glazing.” I thought the Government might retreat on double-glazing. For those noble Lords who were not here, for it to be too noisy, there are certain thresholds the Government have laid out, so we can understand what “too noisy” may be. So, for example, it says
“A noisy protest outside an office with double glazing may not meet the threshold”.
So, I posed the question that, therefore, what you would need to do if you were having a demonstration and were going to make a lot of noise would be to look at the street, or the area you were going to be in, and look for double-glazing. You could make sure, because if you were demonstrating in a street with double-glazing, you would be fine, even if you made too much noise. However, if you went down an older street that did not have double-glazing, then you would be in trouble.
I had to read it a few times. I actually read it to my wife and said, “Have I misread this?” She said no. But it is such a serious point: this is what we are asking the police to use. In demonstrations in future, the police will be asked to consider whether a demonstration is too noisy on the basis of the number of houses that have double-glazing. Unbelievable.
I thought the Government would retreat, and then it somehow got into the Times, and it must have been a great headline for the Government—they must have been really pleased—
“Police and crime bill: Noisy protests to be silenced by double glazing inspections.”
That was the headline in the Times of 25 March, if noble Lords missed it. That must have made interesting reading in the Home Office. I would have liked to have been the Minister going to report to the Home Secretary on that. “Who signed it off?” was the question I always asked. I thought the Home Office would retreat, but no. So that is the headline for the article: the double- glazing.
I stress again that I am trying, through humour, to make a really serious point about how noisy is too noisy. So, here we go again. I do not know about noble Lords, but I would have retreated. I am sure the Minister would have retreated as well, had it been up to her—I will leave her to answer that—but instead, listen to this, from the Times.
“The Home Office defended the guidance, insisting that it was one of many considerations that the police may have to take into account … ‘It is perfectly reasonable to suggest the type and construction of a building targeted would impact on the level of outside noise that penetrates through’.”
So we are now getting into the thickness of walls—old buildings, sound-proofed or not—and so it goes on. We have gone from double-glazing to the thickness of walls as to where we can demonstrate.
I highlight again that definition bedevils legislation—I accept that—but we have to be really careful with “too noisy”. Where will it apply? This is something that needs proper investigation. Other hypothetical situations where the “too noisy” provisions would not apply, as well as where there is a lot of double-glazing, would be where a protest
“only lasts a short amount of time”.
You can make as much noise as you want as long as it only lasts a short amount of time. The guidance says that
“the same amount of noise over several days”
might be an issue. So, if you do it for six days, you are all right, but if you do it for several days, you have a problem.
Then listen to this:
“A noisy protest in a town centre may not meet the threshold”.
So the towns are going to be excluded from the “too noisy” provisions. Again, how are the police going to decide what a town centre is? It does not include London, presumably, because that is a city, but does it include a suburb of a city? If it goes into the suburbs of London, is that a town centre? In Nottingham, we call lots of the suburbs “towns”. What is a town centre? It does not apply there. Somebody said to me, “I thought the Government’s levelling-up agenda was about including towns”, but a noisy protest in a town centre may not meet the threshold.
I have given those examples of the guidance the Minister has had to show that the Government are in real trouble on “too noisy”. What the Government are asking us to do is to pass a piece of legislation that has a provision in it that is unworkable, ill-defined, illogical and will not work. That is not the job of legislators. There is controversy, there is difficulty, there is difference of opinion, but silliness and ridiculous legislation is not acceptable.
I just say to finish, before I move to Motion C1, that I know and accept that the Government do not want to ban protest—it is ridiculous to suggest that the Government are against any protest; I do not believe that. Nor do I believe that the Government really want to undermine the ability of people to protest, but I do say this: we should erode that right, even with the application of certain conditions, only with very serious care.
Many people, including me, have protested time and time again, and conditions have been put on those marches. A number of noble Lords have been in Governments that have been the victims of massive demonstrations—I am talking about legal ones. No Government in the past have ever sought to restrict demonstrations on the basis that they make too much noise. Margaret Thatcher did not do it; John Major did not do it; David Cameron did not do it; Theresa May did not do it; why on earth are we doing it now? It will not work; this condition is anti-democratic and it sends a signal to people that is unacceptable. It is an infringement of people’s democratic right to protest and we should reject it again.
Lord Paddick (LD)
My Lords, Motion D1 is in my name, but I shall take the Motions in order. On Motion A, we are pleased the Government have decided to give the Food Standards Agency the Police and Criminal Evidence Act powers that it is seeking.
On Motion B, we do not see the Government’s amendments in lieu, Amendments 72C and 72D, to be any kind of concession, in that the Government are duty-bound to respond to the Law Commission report on hate crimes in any event. We support the noble Lord, Lord Russell of Liverpool, in his Motion B1, Amendments 72E and 72F, that police forces should be forced to record or flag offences aggravated by sex or gender by means of primary legislation set out in the Bill as this is the only practical way to ensure 43 autonomous chief constables comply.
I am not quite sure about the Minister’s arguments about the complexity around sex and gender: in relation to hate crime, it matters not whether the victim is somebody born a woman or is a trans woman, only whether the assailant believed that the victim was a woman and was motivated by hatred of women. I fear the Government are just looking for excuses. Having said that, misogyny is a problem in the police and in society as a whole, and we do need urgent action. With the noble Lord, Lord Russell of Liverpool, the noble Baroness, Lady Newlove, and Stella Creasy MP on the case, progress may be slow, but it is inevitable.
On Motion C, the so-called noise trigger in relation to processions, it is very difficult to follow the noble Lord, Lord Coaker, on that issue, but we agree with his Motion C1 that the noise trigger should not be part of the Bill in relation to processions or static protests, as I will come to in a moment in relation to Motion D. As the noble Lord, Lord Cormack, said when we last considered it, these measures are not sensible or practical. I may be incorrect, but it seems to me that the larger the protest, the more popular the cause, the more likely the protest is to be noisy and therefore the more likely it is to be banned. Only a very unpopular cause, which is not going to be as noisy, will go ahead, if we are not careful.
As Liberty has pointed out in its useful briefing, Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services, the body whose report is relied on by the Government to justify the measures in Part 3, did not examine or support the establishment of a noise trigger. In evidence to the Joint Committee on Human Rights, the National Police Chiefs’ Council lead for public order did not reference or advocate for a new power based on the noise that protests generate. I repeat, outside London—where the chief police officer and her deputy are appointed by the Home Secretary—the majority of police forces said police officer numbers were the limiting factor in effectively policing protests, not a lack of legislation.
On my Motion D1, Amendments 80J and 80G, we continue to be concerned about what the then Conservative Home Secretary said about the difference between processions and assemblies when the original public order legislation was debated in the other place. He believed that giving the police the power to ban an assembly would be an excessive limit on the human rights of assembly and freedom of speech.
Lord Cormack (Con)
My Lords, I intervene briefly, partly because the noble Lord, Lord Paddick, was kind enough to refer to an earlier speech that I had made. I congratulate the noble Lords, Lord Coaker and Lord Russell, who have been able to move things forward in an acceptable way, but I think there comes a point where this House has to have very real regard for its constitutional position vis-à-vis the other place. We were justified in asking the other place to think again and, I believe, justified in asking it to think yet again.
I was approached last week by two Conservative Back-Benchers—I will not name them—and they were keen that we should give them another opportunity to think again, which we did. But the fact is that they have not thought again, not by a majority. Some may have changed their votes, but they did not change the position of the other place. It is my reluctant view, particularly on the noise issue, which I think is rather preposterous, that we should now yield to the other place, but if ever a Bill called for post-legislative scrutiny to examine closely how it plays out on the streets and in the public squares, this is it. I hope there will be a proper opportunity to keep these matters under review, but we should have a mind for our constitutional position, and have regard for the fact that we are not the elected House and there is a point beyond which we should not go.
Baroness Fox of Buckley (Non-Afl)
My Lords, I think the noble Lord, Lord Cormack, is right to raise the important point about our constitutional obligations. I am tentative about what I am going to say because I am anxious not to act in defiance of an elected Chamber, not just for constitutional reasons but because democracy is very valuable, and we should have modesty in relation to our role in this place. However, I do feel that, at the very least, the Government are obliged to untangle some serious confusion about why the legislation in relation to protest is even necessary.
When it was originally introduced, there were grandiose claims that this was the Government responding to public concerns—a real clamour from the public—about dealing with new forms of protest. It is true that there has been a lot of anger in the public realm about new forms of protest. Anybody who objected to the amendments tabled by the Government was dismissed as “ignoring voters’ concerns”—just by objecting, in effect, they were being anti-democratic. Yet now the Minister comes back here and suggests that, in relation to the noise trigger, for example, it is a just a modest update of the law and it will not be used very often. It seems to me that the original motivation for these clauses has been lost, and we have ended up with a disproportionate and unnecessary commitment by the Government to deal with a non-problem.
There is perhaps some confusion because earlier this week, as people will have read in the newspaper, a mum was banned from driving for what was described as “nudging” some Insulate Britain protesters. She was trying to get her 11 year-old to school and was exasperated that the protesters would not move, and that the police were not acting to remove them. There was some popular backlash to the fact that this driver was the person who was prosecuted, and at a meeting I talked to people who said, “Well, the mum is not guilty of dangerous driving. The problem here was the failure of the police to police the protest.” They went on to say, “At least the Government are acting and bringing in a new law that will deal with this sort of thing.” When I explained the nature of the new laws that were being brought in, in relation to noise and static assemblies, they said, “What’s the good of that? That won’t deal with the problem of the mum and the motorway and the protester”, and they are right.
Despite reservations, I support the noble Lords, Lord Coaker and Lord Paddick, in the amended amendments that they have brought back, taking on board the modest comments that have been made. I think that these anti-protest clauses are being mis-sold to the public, who, when it is explained to them, do not see any connection between their clamour and these clauses being brought in by the Government.
If there is an issue with protest, it is possibly that the police have not consistently policed protests that have happened over the last few years with the powers that they have, and there is public concern about that. It seems to me that both these clauses, as illustrated by the points made from the Front Bench, will make the police’s job even more complicated and will compromise them politically because they will be accused of subjective interpretations of what is “too noisy” and what is the threat of a static demonstration. I think the Government will inadvertently help to politicise the police, and make the situation of protests more confusing, and they are not doing what I think they originally wanted to do, which was to assure the public that their concerns about new forms of protest would be honoured in legislation. These parts of the Bill do nothing useful for anyone.
Lord Deben (Con)
My Lords, I do think that we ought to consider carefully what my noble friend Lord Cormack said, but it might lead one to a different conclusion. This House is increasingly treated as if it does not really matter at all. The Government are not taking seriously very simple suggestions, when making them is our job—suggestions to make Acts work properly. Today we have had an example of what the Government can do. I thought the noble Lord, Lord Russell, put that extremely well. The Government have recognised that the sensible, continuous pressure of the House of Lords has brought them to make alterations—not exactly as the noble Lord would like, but a good way in that direction. It is notable that it has taken us all this time to do it.
What worries me—I say to my noble friend Lord Cormack that this is a serious constitutional matter—is that the deal works only if the House of Lords believes that its debates and discussions are useful and taken into account by government. What I have seen here is wholly different. This is nothing to do with my noble friend Lady Williams; it is to do with the Government as a whole. When I was Secretary of State, I would say to my Lords Minister, “These are the five things I need. Those are the 10 things I’d like to have, but if their Lordships produce good arguments for other things, then you must give way to them, because that is the purpose”. What Lords Minister today is able to do that? Yet that was the deal; that was why we were here. This is a really serious issue. It is no good the Government saying in the end, “Well, we’ll just use the majority in the House of Commons to shut you up”, when the arguments we have been bringing forward are not great arguments of state or great arguments which clash; they are about making the law work.
The other change that has taken place in the House of Commons is that Members there do not debate these Bills any longer. They do not have the hours that we used to have. When I was a Member of that House, we used to have to have 100 hours of debate before you could get a guillotine. Now we do not have to have anything like that; guillotines are automatic. So if this House does not do its job and discuss these things in detail, they will not be discussed at all. That is the constitutional issue we face today.
I will address only the one thing which I think is very clear. It is incomprehensible to have a law which gives the police the right to stop a protest because it might be too noisy. The Notes of course make it ludicrous. I am very worried about the domestic arrangements of the noble Lord, Lord Coaker, if the only thing he can discuss with his wife is the laws as presented by this Government. If I started to discuss those with my wife, I think my domestic arrangements would be very unsuitable. I merely say that the reason you go on a protest is to draw attention to something. The noble Lord rightly said, and I think I said it myself when I intervened previously, that the more popular the cause, the more likely it is that there will be noise. If I had a protest about the unfair treatment of chihuahuas, I might not get many people with me and I probably would not be stopped—but a protest on, for example, the unsatisfactory dealings with Ukrainians coming to this country might raise huge numbers. Do the chihuahuas get a campaign but the Ukrainians do not—and who makes that decision?
Lord Cormack (Con)
I am most grateful. My noble friend makes a very powerful speech and makes it very sensibly. However, I would just point out that, at the time he was giving instructions and saying, “There are five things I want, but others I’ll give way on”, the House of Lords was a very different place. It had a massive, built-in hereditary Tory majority.
Lord Deben (Con)
I do not think that helps the issue. All that says is that we are a different place because Parliament has decided that we should be. I am not sure that we are necessarily a better place; I would not like to draw attention to that. I am merely saying that we are a place and that we are here to make certain kinds of decisions. I have more sympathy for my noble friend the Minister than I do for almost any other Minister and I admire her enormously—which is why I really find this difficult. I really wanted to be able to say today that I support the Government, but I cannot, as somebody who came into this House saying that I would concentrate on Europe—that has been difficult—the environment and human rights. One of the first human rights is that I can walk with lots of other people to say that something is wrong. For the police to have the powers to say that we cannot, because it might be too noisy, is wrong.
Baroness Wheatcroft (CB)
My Lords, I am very grateful to the noble Lord, Lord Deben, for voicing the fears which I suspect many in this House share. The Government’s majority at the other end, coupled with the attitude of the Executive, would render this House redundant if it could. Today we have seen the possibility of negotiation on a couple of amendments. However, as the noble Lord, Lord Deben, and the noble Baroness, Lady Fox, have said, the right to protest is absolutely crucial to human rights. That the Government should be taking the power, even only possibly, to curtail that right is surely something that this House should fight against.
I completely agree with the noble Lord, Lord Cormack, that there are conventions—there are—and, when dealing with conventional legislation, I have no doubt that we should abide by those conventions. But, as far as I can see, this Government are determined to take powers that are, in our democracy, unconventional. I therefore believe that it is not just our right but our duty to keep trying to tell them that up with this we will not put. They may not intend to use these powers—although quite what the Home Secretary intends is anybody’s guess; certainly not to let in Ukrainian refugees, as far as I can see—but, once they are on the statute book, another Government could. It therefore seems to me that there is no doubt about it: we should hold our ground, not on every amendment that this House passes but on those where we believe we have a real duty to stand up for the democratic rights of the country.
Baroness Jones of Moulsecoomb (GP)
My Lords, I shall speak to Amendments C1 and D1. As usual, I really enjoyed the contribution from the noble Lord, Lord Coaker, because he drew attention to the fact that the Bill is badly written. We knew that when it arrived, which is why it has had so many amendments here in your Lordships’ House. It is still badly written, and it is our duty not to let badly written Bills through. They lay themselves open to court cases and all sorts of potential miscarriages of justice. I personally think that the Government are holding this House in contempt, and that is why they produce so many badly written Bills. Because they have a huge majority in the other place, they can afford not to care about how the Bills are written or about their content.
The noble Lord, Lord Coaker, also said that he did not think the Government were trying to suppress protest. I do not agree with him there, because I think they are. Protests are expensive in terms of police time and clearing up afterwards. They are very disruptive and are almost always anti-Government, so why would the Government not try to suppress them? But they are necessary for free speech and a necessary part of our democratic process. I love demonstrations because they are a chance to meet people who agree with me, which is sometimes a rarity.
Not only is this Bill an assault on freedom of speech and democracy, it clearly should not be passed. It is badly written, and it has bad content. You cannot have a vague and wide-ranging definition of which protests are likely to be too noisy or disruptive. It will be a subjective judgment made by police officers with their own biases. Do not forget that: police officers are human beings as well, and they will have innate biases. As we have heard from the noble Lord, Lord Paddick, the police do not even want these powers anyway. Those of us who believe in clear laws that can be challenged in court do not want them either.
I have been elected five times—once to Southwark Council under first past the post and four times to the London Assembly under proportional representation—so I understand what it is to have a democratic mandate. I understand to some extent the Government’s point of view, who feel they have a big mandate and the right to push things through, but I also understand that this unelected Chamber has a mandate of another kind. Although I love being here, I am not happy about being part of an unelected Chamber; it offends me deeply and I would like it to be abolished so we have an elected Chamber. However, we have a mandate to look at legislation and improve it where we can. As other noble Lords have said, the Government are not listening to us; they do not take into account the expertise—I do not count myself among the experts—that we have here. They do not listen to us.
To protect civil liberties, we have to send this Bill back. I have been assured by a few who have been in this House for decades that ping-pong used to last much longer and that Bills got sent back again and again until this House was happy that legislation was expressed properly and clearly. We really should ask MPs to look at this again and think about whether this is good for democracy in this country. The noble Lord, Lord Cormack, said we should stop and look at it later. No: let us get it right now.
Viscount Stansgate (Lab)
My Lords, I know the House is anxious to move to a vote, although I am here to support my noble friend’s Amendment C1. He used great humour to serious effect, but when I think of how this debate will be viewed when we look back on it, I think the point raised by the noble Lord, Lord Cormack, will be at the very heart of what we are discussing. Yes, there is the incident case of the legislation, but it is the nature of the relationship between this House and the other place that is at the heart of what we are here to do. I much admired the comments of the noble Lord, Lord Deben, and others who have raised this.
If the noble Lord, Lord Cormack, and I were playing ping-pong, there is, as far as I know, no constitutional limit to the number of times we can bat backwards and forwards, as the noble Baroness just mentioned. The noble Lord says we should call a halt after two attempts, but I think there is a different way of looking at it and we should send this back again. There is time. I do agree with the comments made by people with great experience of both Houses that the amount of time the House of Commons devotes seriously to legislation is—I will not say a disgrace—very little. In many cases, many Members I know who go through the Division Lobbies to overturn amendments we have made in this House could not tell you what they are about. They really could not. So, there are good reasons for taking this question on noise seriously and asking the House of Commons to think yet again.
Baroness Williams of Trafford (Con)
My Lords, I thank all noble Lords who have spoken in this debate. I thought I would start by talking about time on debates. This House does spend time on debate. We have gone on until 2 am, 3 am and, once, 4 am in debate. We do not curtail it.
The Government have given way on this Bill in a number of ways. I am very glad my noble friend Lord Cashman—he is my noble friend—is in the Chamber because one thing we have worked on over far too many years is the disregards for historical offences by LGBT people that are no longer offences today. I am incredibly proud that we have secured that through this Bill. To go back to the point from my noble friend Lord Deben about the Secretary of State saying which things they want to get through, I am not going to try to thwart the will of the Home Secretary; I approached her personally on this matter. She had no hesitation in giving way and helping us promote that through this House. I am very glad it has gone through already. We have short memories sometimes; we forget what has gone through on Report. Just this morning we conceded on the PACE powers, and what we are down to is the sticking point on two matters—powers that are vested in the police, not the Home Secretary.
I am pleased that Amendments 58C to 58E have found favour with the noble Lords, Lord Rooker and Lord Coaker, and I am very grateful to the noble Lord, Lord Russell, for his very constructive approach to the issue of the police recording offences aggravated by sex or gender. I do think, through this Bill—not legislatively but through a practical solution—that we have a good way forward. We can all agree the outcome we want to see, which is the collection of data that is usable, useful and consistent. I have outlined that it is not straightforward. I also acknowledge the detailed questions he sent to us yesterday afternoon. I am afraid that, in the short time available, we have not had the chance to consider them, but we will do so and provide him with answers as soon as possible and keep the House updated.
The two outstanding public order measures have been subject to extensive debate and scrutiny in this House and the other place for close to 13 months. The noble Lord, Lord Coaker, asked whether removing “serious unease” risks watering down the threshold, as the qualifier “serious” will no longer apply to alarm or distress triggers. That is not the case: the adjective “serious” can be applied only to the unease trigger, not to the alarm or distress triggers. He seeks to caricature these provisions with his point about double-glazing. The House found him very amusing, but it is not a double-glazing test. The Bill provides that, in determining whether the level of noise may have a significant impact on persons in the vicinity of a protest, the police must have regard to, among other things, the likely intensity of the impact.
The factsheet we have published to aid understanding of these provisions is not guidance for the police. A noisy protest outside a building with double glazing will have less of an impact on the occupants of that building than if there is no double glazing. That is a statement of the obvious but is a matter of judgment for the police on a case-by-case basis. The tests to be applied are clearly set out in the Bill and the police are well versed in applying similar tests in other contexts. The elected House has now reconsidered the amendments on public order a second time and has insisted on its disagreement with the relevant Lords amendments, but in the spirit of compromise it has put forward a constructive amendment to address concerns about the drafting of these provisions. I urge the House to accept this amendment.
I assure my noble friend Lord Cormack that in the normal way, this Bill will be subject to post-legislative scrutiny three to five years after Royal Assent. On the issue raised by the noble Baroness, Lady Fox, the Bill also increases the maximum penalty for obstructing the highway. To answer my noble friend Lord Deben, we have honoured the deal. The Government have listened in so many ways on this Bill, as I have illustrated with a couple of examples, but part of this deal is that ultimately, the views of the elected House should have primacy. I say to the noble Baroness, Lady Wheatcroft, that, as I said earlier, the powers are vested not in the Home Secretary but in the police.
I note that the noble Lord, Lord Paddick, has also put forward his own compromise Amendment, 80J, which would enable the police to set conditions prescribing the start and end times of an assembly, as proposed by the Joint Committee on Human Rights. In our response to the JCHR report, we quoted from the HMICFRS report on the policing of protests, which said that
“protests are fluid, and it is not always possible to make this distinction”
between assemblies and processions.
“Some begin as assemblies and become processions, and vice versa. The practical challenges of safely policing a protest are not necessarily greater in the case of processions than in the case of assemblies, so this would not justify making a wider range of conditions available for processions than for assemblies”.
Given the findings of HMICFRS and the evidence provided by the police, we continue to believe that it is necessary and proportionate to ensure that the police have the power to place the same conditions on assemblies that they do on processions, and in addition to specifying the start and end time of—
Baroness Butler-Sloss (CB)
I am sorry to interrupt the Minister. What is the point of a factsheet if the police are not to take account of it?
Baroness Williams of Trafford (Con)
My Lords, it is intended to be helpful. Going back to something the noble Lord, Lord Blunkett, said at Second Reading, which seems like an age ago now, we must provide clarity to the police. I totally agree with the points he made then.
Given the findings of HMICFRS and the evidence provided by the police, we still think it necessary and proportionate to ensure that the police have the power to place the same conditions on assemblies as they do on processions. In addition to specifying the start and end time of an assembly, as provided for in Amendment 80J, or the place where the assembly may take place and the maximum number of participants, as the 1986 Act currently provides for, it should be left to the operational judgment of the police to apply other necessary conditions—for example, conditions prohibiting the use of lock-on equipment where this could cause serious disruption to the life of the community.
This House has fulfilled its responsibilities as a revising Chamber, and I commend noble Lords for the time they have taken in scrutinising the Bill. It is now time for this Bill to pass.
Baroness Williams of Trafford
That this House do not insist on its Amendment 72B and do agree with the Commons in their Amendments 72C and 72D in lieu.
“Response to Law Commission report on hate crime laws
(1) The Secretary of State must, before the end of the period of 12 months beginning with the day on which this Act is passed—
(a) prepare and publish a response to Recommendation 8 of the Law Commission report on hate crime (adding sex or gender as a protected characteristic for the purposes of aggravated offences and enhanced sentencing), and
(b) lay the response before Parliament.
(2) In this section “the Law Commission report on hate crime” means the Law Commission report “Hate Crime Laws” that was published on 7 December 2021.”
“(ka) section (Response to Law Commission report on hate crime laws);”
Baroness Williams of Trafford
That this House do not insist on its Amendment 73, to which the Commons have disagreed for their Reason 73A; do not insist on its disagreement with the Commons in their Amendment 74A to its Amendment 74, on its Amendment 74B to that Amendment in lieu, or on its con- sequential Amendments 74C, 74D, 74E, 74F and 74G; do not insist on its Amendment 87, or on its disagreement with the Commons in their Amendments 87A, 87B, 87C, 87D, 87E and 87F to the words restored to the Bill; and do agree with the Commons in their Amendment 73C to the words restored to the Bill by their disagreement with Lords Amendment 73 and in their Amendment 87H to the words restored by their disagreement with Lords Amendment 87.
Baroness Williams of Trafford (Con)
I beg to move.
Motion C1 (as an amendment to Motion C)
Lord Coaker
Leave out from “House” to end and insert “do insist on its Amendments 73, 74B, 74C, 74D, 74E, 74F, 74G and 87, do insist on its disagreement to Commons Amendments 74A, 87A, 87B, 87C, 87D, 87E and 87F, and do disagree with the Commons in their Amendments 73C and 87H”
Baroness Williams of Trafford
That this House do not insist on its Amendment 80, do not insist on its disagreement with the Commons in their Amendments 80A, 80B, 80C, 80D, 80E and 80F to the words restored to the Bill by their disagreement with that Amendment, do not insist on its Amendment 80G instead of the words left out by that Amendment and do agree with the Commons in their Amendment 80H to the words restored to the Bill by their disagreement with Lords Amendment 80.
Baroness Williams of Trafford (Con)
I beg to move.
Motion D1 (as an amendment to Motion D)
Lord Paddick
Leave out from “House” and insert “do insist on its Amendment 80 and on its disagreement with the Commons in their Amendments 80A, 80B, 80C, 80D, 80E and 80F, do disagree with the Commons in their Amendment 80H, and do not insist on its Amendment 80G but do propose Amendment 80J instead of the words left out of the Bill by Amendment 80—
“Imposing conditions on public assemblies
(1) Section 14 of the Public Order Act 1986 (imposing conditions on public assemblies) is amended as follows.
(2) In subsection (1), after the third “held,” insert “the time at which (but not the date on which) it is to start and conclude,”.
(3) After subsection (2) insert—
“(2A) For the purposes of subsection (1)(a), the cases in which a public assembly in England and Wales may result in serious disruption to the life of the community include, in particular, where—
(a) it may result in a significant delay to the supply of a time- sensitive product to consumers of that product, or
(b) it may result in a prolonged disruption of access to any essential goods or any essential service, including, in particular, access to—
(i) the supply of money, food, water, energy or fuel,
(ii) a system of communication,
(iii) a place of worship,
(iv) a transport facility,
(v) an educational institution, or
(vi) a service relating to health.
(2B) In subsection (2A)(a) “time-sensitive product” means a product whose value or use to its consumers may be significantly reduced by a delay in the supply of the product to them.”
(4) After subsection (10A) (as inserted by section 57(11)) insert—
“(11) The Secretary of State may by regulations amend subsection (2A) or (2B) for the purposes of making provision about the meaning for the purposes of this section of serious disruption to the life of the community.
(12) Regulations under subsection (11) may, in particular, amend either of those subsections for the purposes of—
(a) defining any aspect of that expression for the purposes of this section;
(b) giving examples of cases in which a public assembly is or is not to be treated as resulting in serious disruption to the life of the community.
(13) Regulations under subsection (11)—
(a) are to be made by statutory instrument;
(b) may apply only in relation to public assemblies in England and Wales;
(c) may make incidental, supplementary, consequential, transitional, transitory or saving provision, including provision which makes consequential amendments to this Part.
(14) A statutory instrument containing regulations under subsection
(11) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.””
Police, Crime, Sentencing and Courts Bill
Monday 25th April 2022
(2 years ago)
Commons ChamberRead Full debate Police, Crime, Sentencing and Courts Act 2022 Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: Commons Consideration of Lords Message as at 25 April 2022 - (25 Apr 2022)
18:29 - The House divided: - Ayes: 300 / Noes: 220 - Question accordingly agreed to.
18:43 - The House divided: - Ayes: 302 / Noes: 221 - Question accordingly agreed to.
Madam Deputy Speaker (Dame Rosie Winterton)
Financial privilege is not engaged by any of the items in the Lords message relating to the Police, Crime, Sentencing and Courts Bill.
Clause 55
Imposing conditions on public processions
The Minister for Crime and Policing (Kit Malthouse)
I beg to move,
That this House insists on its disagreement with Lords in their Amendment 73, insists on its Amendment 73C to the words restored to the Bill by its disagreement to that Amendment, insists on its Amendment 74A to Lords Amendment 74, disagrees with the Lords in their Amendment 74B to that Amendment in lieu, disagrees with the Lords in their consequential Amendments 74C, 74D, 74E, 74F and 74G, insists on its disagreement with the Lords in their Amendment 87, insists on its Amendments 87A, 87B, 87C, 87D, 87E, 87F and 87H to the words restored to the Bill by its disagreement to that Amendment but proposes Amendment (a) in lieu of Lords Amendment 73 and additional Amendment (b) to the words restored to the Bill by its disagreement with the Lords in their Amendment 87.
Madam Deputy Speaker
With this it will be convenient to consider the following Government motion:
That this House insists on its disagreement with the Lords in their Amendment 80, insists on its Amendments 80A, 80B, 80C, 80D, 80E, 80F and 80H to the words restored to the Bill by its disagreement with that Amendment, disagrees with the Lords in their Amendment 80J instead of the words left out by that Amendment but proposes additional Amendment (a) to the words restored to the Bill by its disagreement with the Lords in their Amendment 80.
Kit Malthouse
I rise to speak to the motions in the name of my right hon. Friend the Home Secretary, including the associated amendments in lieu. We return yet again, I have to say with a smidgin of ennui and irritation, to the issue of police powers to attach conditions to protests. It is disappointing that the debate on these provisions continues to be characterised by misinformation about what the Bill actually does and irrationality.
I shall start with the issue of noise. As I said in round 2 of ping-pong, at the Opposition’s behest, we have added provisions to the Bill that can be used to limit noise and disruptive protests outside schools and vaccination centres. I am therefore at a loss to understand why they would not agree to these provisions outside, say, a convent, a hospital, an animal sanctuary or, God forbid, a factory. What happened to the workers’ rights?
It cannot be that a protest can inflict any amount of noise on those living or working in the vicinity for prolonged periods of time, day or night. I agree that it would not be necessary or proportionate, for example, to attach conditions relating to the generation of noise to a procession that will pass a particular location within a matter of hours, but the same cannot be said of an ongoing raucous protest, perhaps encamped in a residential area, which includes the banging of drums and the use of loudhailers. It is intolerable that local residents should have to endure that day and night, and it is right that in those circumstances, the police should have the power to act. I do not understand why those residents’ rights are so lightly set aside by the Opposition. When the hon. Member for Croydon Central (Sarah Jones) rises to address the motions, I hope she will answer that question.
I can, however, assure the hon. Members for North Antrim (Ian Paisley) and for Belfast East (Gavin Robinson)—they questioned me on this in the last round—that there are no new powers here to restrict what is said and, for that matter, sung. These provisions are simply about the harm caused by excessive noise; the content is irrelevant. Of course, the existing criminal law relating to hate or intimidatory speech will continue to apply.
Jim Shannon (Strangford) (DUP)
I have a real concern about Lords amendment 80. I am not sure that my concern, or the concerns of my hon. Friends the Members for Belfast East (Gavin Robinson), and for North Antrim (Ian Paisley), have been dispelled. Can the Minister give me an assurance in this House today, on the record in Hansard, that open-air or other events will not be affected? The letter of the law does not give that protection; sadly—this has been done in this country already—officers have the power to arrest those preaching the word of God. I seek an assurance from the Minister that on no occasion and under no circumstances will the opportunity to preach the gospel in the streets of this kingdom be in any way thwarted, reduced or restricted.
Kit Malthouse
As I have already explained, what is said is irrelevant for the purposes of this legislation. The Bill merely covers the distress that may be caused by the volume or persistence of the noise. The existing criminal law already covers content. If the content—obviously, not in this case—is intimidating, somehow hateful or incites some kind of violence, there are already provisions against that kind of speech. The hon. Gentleman describes somebody simply preaching the gospel; if they are not causing alarm or distress through the level or persistence of the noise, I cannot see why that would be offensive to anybody, or that the police would use these powers.
I turn to the other provisions in clause 56, enabling the police to attach any condition to a public assembly where such conditions are necessary to prevent serious public disorder, serious damage to property, serious disruption to the life of the community or intimidation. I welcome the belated acceptance by the other place that existing powers in section 14 of the Public Order Act 1986 are insufficient, but I am afraid Lords amendment 87J is not up to the task. The police have told us that the distinction drawn in that Act between processions and assemblies is outdated, and it does not reflect current-day challenges of policing dynamic protests that can morph from a procession to an assembly and back again. The current situation prompts all sorts of questions. For example, how slowly would a procession have to move before it becomes static? If protesters walk in a 200 metre circle, is that a procession or a static protest?
It will continue to be the case that any conditions must be proportionate, and necessary to prevent serious disorder and the other serious harms set out in the Bill. None of that, however, is to say that we have not listened to and reflected on the views expressed by the other place. In the last round, we raised the threshold for the exercise of noise-related powers by removing the “serious unease” trigger, and we have tabled an amendment in lieu that will place a duty on the Secretary of State to prepare and publish a report on the operation of the relevant provisions in clauses 55, 56 and 61 within two years of their commencement. In one of our earlier debates, my right hon. Friends the Members for Newark (Robert Jenrick), and for Hereford and South Herefordshire (Jesse Norman), stressed the need for a post-legislative review of those provisions, and the amendments would enshrine that in law.
We have reached a stage of the legislative process where the issue at stake is no longer simply the merits or otherwise of the measures that we are debating. A more fundamental issue is at stake: the primacy of this elected House in our constitutional arrangements. This House has already debated and expressly approved the noise-related provisions on no less than three occasions: on Report last July; on consideration of Lords amendments at the end of February; and again at the end of March. That is not to mention the separate votes on Second and Third Reading of the Bill. I hope and expect that hon. Members will endorse the provisions for a fourth time when we come to the Division. The other place, composed as it is of hereditary and appointed Members without any democratic mandate, has done its duty in asking this House to reconsider this issue. We have now done so and made our position abundantly clear. We should send the provisions back to the Lords again, with a clear and unequivocal message that they should now let them, and the Bill, proceed.
Sarah Jones (Croydon Central) (Lab)
I am sorry that the Minister finds himself bored by the democratic process, but this is the process, and sadly he has to come to the Dispatch Box to engage in this debate. There is one—[Interruption.]
Madam Deputy Speaker (Dame Rosie Winterton)
Order. The hon. Lady is giving a speech. Carry on, Sarah Jones.
Sarah Jones
Thank you, Madam Deputy Speaker. I do not mind how noisy the Minister is; I do not want to curtail his right to be as noisy as he likes.
We are debating one topic: the right to protest and make noise. We have indeed debated it several times. Members from across the House have spoken passionately about why this issue matters, and why the Government have got this so wrong. One might think that, with crime up 14%, the arrest rate having halved since 2010, and prosecution rates at an all-time low, the Government might spend their time on the bread-and-butter issues of law and order, such as fighting criminals. Instead, they seem intent on criminalising singing at peaceful protests. That suggests that the Government are tired, out of ideas and have no plan, and are searching round for anything eye-catching to distract from their years of failure.
The Lords responded to the Minister’s defence of his policy by voting against it again. Lords amendments 73 and 87 remove the Government’s proposed noise trigger, which would allow the police to put conditions on marches or one-person protests that are “too noisy”. Labour agrees with the Lords, and we support Lords amendment 80, which removes clause 56 from the Bill altogether. As with most Government policies thought up on the hoof, there are many questions about how the proposed powers would work.
Kit Malthouse
This is a genuine question. For many years, I was a councillor in central London and a London Assembly member. I am conscious that central London is particularly targeted by protests, which happen pretty much every weekend and often every day of the week. Central London is characterised by a quite dense residential population. Where is the balance between the rights of those residents to the peaceful enjoyment of their homes, and the rights of protesters to protest throughout the night, which the hon. Lady seems intent on preserving? Will she please explain why residents do not deserve some kind of protection from noise?
Sarah Jones
I ask the Minister back: where is the evidence that residents have asked for this change in legislation? [Interruption.] I see no evidence that anybody has asked for this change in the law, not least the police—
Sarah Jones
My inbox—I do not know about the Minister’s—is full of emails asking us to vote against the Government’s provisions today. I have not had a single one asking me to vote in favour.
Beth Winter (Cynon Valley) (Lab)
I may be able to enlighten the Minister as to why there is no need for the provisions on noise. The Minister for Social Justice in Wales, Jane Hutt, has been quoted as saying that the current legal framework already provides sufficient scope, and that
“this means there is no requirement or need to include a new, far more draconian measure”.
We have sufficient laws in place, and there is no need for these provisions. The Bill rides roughshod over the devolution settlement.
Sarah Jones
My hon. Friend is right. I am proud to have campaigned with Jane Hutt. She knows what she is talking about, and she delivers results—something that this Government could learn from.
Recently published guidance on this bizarre change to the law gives us the helpful tip that
“a noisy protest outside an office with double glazing may not meet the threshold”
in the Bill. The guidance is seriously asking the police to base their consideration of whether a protest is too noisy on how many buildings around it have double-glazed windows. How on earth will the police know? Is it fair to our police if the law is so peculiar that they could interpret it in a million different ways, and would stand accused of bias whatever they did? I urge Ministers to bear in mind the consequences of these provisions on the police officers trying to put them into practice.
Kit Malthouse
I am grateful to the hon. Lady for giving way, if only so that I can, hopefully, enliven our proceedings slightly. I am a bit confused; the hon. Member for Cynon Valley (Beth Winter) seemed to imply that the Minister in the Welsh Government says that there is plenty of legislation to deal with this problem. Is she therefore content for legislation to be used in Wales to control protest noise?
Sarah Jones
The point we are trying to make is that there is a balance to be struck between what is reasonable in protests and what is not. We believe that the right to protest is not an absolute right; there have to be provisions in place to ensure that protests are reasonable, and do not put out the public too much. These provisions on noise are almost impossible to interpret—they are really unclear—and the police and the public have not asked for them. There are existing rules to ensure that reasonable, peaceful protest can take place, and the Bill rides roughshod over those genuine rights.
Margaret Greenwood (Wirral West) (Lab)
My hon. Friend is making some good points, particularly around interpretation. In Wirral West, we had a successful campaign against underground coal gasification after the coalition Government granted a licence for drilling in the Dee estuary underneath Hilbre island. People were very concerned about that, and we had a mass demonstration on the beach. When people go to a demonstration, they do not know who else will be there. I am concerned that people will feel intimidated by this law, and will perhaps feel that they should not attend a protest that they want to go on because of concerns that they will not be in control of the noise volume.
Sarah Jones
That is an interesting point. Thank goodness for those protests and for our right to protest in that way. It is not fair and not right to force the police to make political decisions about how much is too much noise. Imagine a scenario where two sides of a public debate are protesting, with one group on a street where there is lots of double glazing and the other on a street where there are old houses and no double glazing. Are we really saying that the police, who might close one protest for being too noisy and not the other, would not find themselves in a difficult political situation, with criticism from the public?
Sir Mike Penning (Hemel Hempstead) (Con)
I will not detain the House for long, because that is what the other Chamber is doing. The House has voted with huge majorities to put the legislation through, and actually the need for it is found in most of our constituency surgeries. [Interruption.] If the hon. Member for Croydon Central (Sarah Jones) listens for five minutes, she might hear my argument. It is fine to disagree with me, but chuntering is probably not the answer.
One of the biggest things that upsets my constituents is noisy neighbours, whether the noise comes from music or hard floors upstairs. At my surgeries, people often ask, “How can we control this? Can the council make recordings?” The council works hard to try to address these disputes, which are small in scale but mean a lot to the individuals who are having their lives blighted by noise.
As a trade unionist, I am more than happy to have legal demonstrations. They are part and parcel of the process—[Interruption.] I was in the Fire Brigades Union when we were thrown out of the Labour party, so I have a bit of a track record here. However, we are talking about people having their lives blighted continually because of a right being exercised near their homes or offices day in, day out. To be fair, we are talking not about a demonstration on a beach but about one right outside where people live.
Sarah Jones
The right hon. Member brings a lot of experience to the House, and I listen to him carefully. I agree with him about noisy neighbours, which are a distressing part of my case load because we often struggle hard to do something about it. However, the Bill does not do anything on that; it is about protests. We need to be clear that those are two completely different things. There are rules on antisocial behaviour and neighbours, and local authorities and the police have powers to deal with that—sadly, often those cases do not get dealt with—but that is not what we are arguing about.
Madam Deputy Speaker (Dame Rosie Winterton)
Order. May I give a little reminder that interventions should be quite brief?
Sir Mike Penning
Thank you, Madam Deputy Speaker, you made my point exactly. With respect to the shadow Minister, they are different, and I agree that the Bill has nothing to do with noisy neighbours, but noisy demonstrations blight people’s lives in exactly the same way, and that is why the legislation is trying to do something about them.
We may disagree, and that is probably right and proper—this place is about debating and not just agreeing with each other all the time—but the principle must be that this House, with huge majorities, has voted for these measures. I respect many of the people on both sides of the other House—they bring huge amounts of experience—but they are not elected. They should listen to this House and consider the size of the majority. If it had been tiny, we could argue about the principle, but it was not, and the measures have been voted through. On that, I completely agree with the Minister, who is in the position where I used to be.
Anne McLaughlin (Glasgow North East) (SNP)
Throughout the proceedings on this woefully drafted Bill, I have maintained that, although it is largely reserved to England and Wales, part 3 on protest will severely restrict anyone from Scotland, or indeed anyone across these islands, from exercising their fundamental and democratic right to protest. None of us can sit back and allow that to happen. What happens here in the coming days will outlive this Government, so the Scottish National party will vote against the Government motions to disagree with the Lords, who have worked tirelessly to help restore some balance to the Bill. I am seriously concerned about what will happen when the Bill is forced through the Lobby, and I know that that worries some Conservative Back Benchers who have been lobbying Members of the other place to allow the Commons the opportunity to think again on protest measures. We are back here to consider part 3 on protest, and rightly so.
The protest measures in the Bill have been the headline grabbers—the clauses most briefed on, tweeted on, reported and debated—and, most importantly, they are the clauses that people are concerned about, because they are a threat to our long-held right to have our voices heard. My office also receives hundreds of emails on a daily basis asking me to stand up and act against the threat to those rights. People are worried not just because of this Bill in particular—although it is terrifying—but because of the context in which it is being pushed through this place.
This week, we will debate the Elections Bill, the Nationality and Borders Bill and the Judicial Review and Courts Bill, each carrying its own threat to our fundamental rights. People know how this works: they know that the Government have seemingly unfettered powers to make any law that they want. Baroness Jones of Moulsecoomb put it best when she said:
“Because they have a huge majority…they can afford not to care about how the Bills are written or about their content.”—[Official Report, House of Lords, 31 March 2022; Vol. 820, c. 1707.]
The Bill is badly written. No well written legislation would require so many amendments—it borders on the ridiculous. When we are forced to create a database for amendments just to keep track, we know that fundamentally something has gone wrong at the front end. However, it is our job to amend, correct and stop badly drafted legislation and, whatever the Minister says, it is the second House’s job to have its say on that.
I will speak briefly on specific amendments, but I would like to make a general point: all the amendments under discussion clean up ambiguous and badly worded clauses that will, as the shadow Minister, the hon. Member for Croydon Central (Sarah Jones), said, only force the police into making quasi-political decisions on the spot. Former police chiefs and senior officers have warned against the
“political pressure the Bill will place on frontline officers.”
It has become apparent through these debates that it is not more legislation or laws that the police need or want.
Lords Amendment 73 would remove sections of the Bill that allow the police to intervene and limit processions based on the criterion of noise. We have heard a lot about that today. The Government have got this wrong—they simply have. They have tried to make assurances that powers to act on noise will be used only in the most extreme circumstances, but it is all just too vague. As the shadow Minister said, what kind of law would ask a frontline police officer to assess the thickness of walls in an office or the kind of glazing in a building prior to intervening on a protest? Seriously! It is in the guidance, if Government Members opposite want to check it. Here is a quote from the guidance:
“A noisy protest outside an office with double glazing may not meet the threshold”.
It is not just the way a building is constructed that frontline officers might have to contend with, but the duration of the noise and the type of noise. The list goes on. This is ill-conceived and ill-defined. It will load pressure on to already pressurised police forces and simply will not work. And that is before we get to the crux of the matter: our right to protest is our democratic right. It is not for this Government or any successive Governments to take that away.
We continue to oppose the Government’s apparent concession to remove the term “serious unease” for the simple fact that it is nestled in badly drafted sections and has the unintentional—or possibly intentional—effect of lowering the threshold for police intervention. Removing the term would lower the threshold of “serious alarm or distress” to “alarm or distress”. My hon. Friend the Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald) eloquently made that point in a previous debate, and I stand by his remarks.
We supported Lords amendment 80, to remove clause 56 on public assemblies, and we continue to support it. This is yet another clause rife with hidden dangers, attempting to replace public order legislation that is operating perfectly well. The Public Order Act was careful to delineate and differentiate the conditions that could be imposed on static demonstrations, as opposed to a march or a moving protest, and that was sensible. That reflected the relative ease by which a static demonstration can be policed.
Kit Malthouse
I understand the hon. Lady’s point, but I am afraid I disagree with it. In Scottish jurisprudence, Scotland has an advantage over England in that it has a well-expressed and commonly used offence of nuisance. Would she support the use of this legislation in controlling nuisance emanating from a protest?
Anne McLaughlin
So many of us have already answered that on so many occasions. There already exists legislation and the powers for the police to control demonstrations that are not peaceful and out of control, but we are not talking about that. The proposed legislation allows the police to make decisions according to very spurious guidance. The removal of the distinction regarding statics demonstration could hand the police unfettered discretion to impose further conditions on static protests, such as the words and slogans that can be used on placards. That is ridiculous. Sometimes they are the best bits! I really wish I had the time to read out some of my favourite words and slogans that I have seen recently, but I do not think the Government would be too pleased about that.
Finally, I want to touch on Lords amendment 87, on one-person protests. The amendment removes the ability of the police to impose conditions on a one-person protest. That was rejected in the last round of ping-pong and the Lords have rightly asked for it to be reconsidered. I have twice now heard the Minister talk in derisory terms about the House of Lords because some of them are hereditary and none of them are elected. The SNP is opposed to the House of Lords on that basis, but his party is not and it puts people in there all the time. If that is the system he supports, he cannot really complain when they do the job they are asked to do. Are we really going to see a law passed today that will allow the might of the state to bear down on a single, individual protester? It is ridiculous, disproportionate and nothing short of bullying. And be careful anyone who even stops to chat to a protester, because they could be snared by the clause, too. How many times have we all stopped to chat to the wonderful array of protesters outside this place, whether we agree with them or not? Well, Madam Deputy Speaker, doing so could soon see you committing a criminal offence.
We are not impressed with the Government’s amendments to lay reports before the House with regard to changes to the Public Order Act. They are lip service posing as concessions. They are better than nothing, but they are not much better.
I understand that time is short, so I will finish with this: we support the Lords in their amendments and fundamentally disagree with the undemocratic way the Government are throwing their weight around. If the Government are intent on dissuading protest, they are intent on silencing voices. From the huffing and puffing coming from the Minister today it is clear he is no fan of democracy, so I am sure he will not mind if I tell him the Bill is undemocratic, unworkable and unfair.
David Simmonds (Ruislip, Northwood and Pinner) (Con)
A noise annoys. That was a common reproof from my mother in my early days, and indeed to her grandchildren today. I think we all recognise, in the course of the debates we have had in this House, that there are occasions when noise is a part of the democratic process that helps the atmosphere and the challenge, and there are times when it becomes extremely disruptive to the democratic process and begins to get in the way. I rise to support the Minister and the Government on that point. I would like to set out briefly the particular reasons why I take that position.
Like the Minister and a number of colleagues across the House, I have spent a lot of time in local government. I am very aware that one of the most common complaints to local authorities is about disruption caused by noise. This element of the Bill deals with a very specific subset of noise where it is caused by protest, and I agree with what the Minister and the Government have said. It probably depends where in the country someone is and what their experience has been. Certainly for local authorities in places such as my area—I speak with experience of a local authority where Heathrow has occasioned many protests over the years—where relatively low levels of noise carry on 24 hours a day, sometimes for days on end, or where extremely loud noises are generated by the kind of portable amplification technology that has become available even to lone protestors, such things can cause enormous disruption.
That disruption is not just to residents who live in those places—I appreciate that for central London Members of Parliament it is certainly a very big factor—but to businesses. I have many constituents who either work or have business interests in central London. Hoteliers may struggle to sell their hotel rooms in a location where there is constant disruption caused by noisy protest, which means that people cannot sleep and the normal business of an office is disrupted.
In my view, given the development of tactics used by some protests that aim specifically to make persistent noisy protests that do not cross the thresholds set out in existing legislation, it is right that we update the law. We have heard a lot that existing powers are available, in particular to local authorities, to address concerns about noise. I have heard that argument made at the Joint Committee on Human Rights, and we have heard it in a number of debates on a lot of different aspects of the Bill.
However, it seems clear to me that there are occasions when the role of this House is not simply to respond to what the police are asking for, but to recognise when constituents, businesses and residents have concerns and find that the powers available, for example to local authorities, are not sufficient to remedy the problems they are experiencing. It is then the duty of the House to consider how we increase the penalties and powers available, so that those problems can be properly addressed. For example, as the Bill contains provisions to deal with trespass that crosses a criminal threshold and powers to increase sentencing, in my view it is right that it also increases the powers of the police to deal with persistent and noisy protests.
For people experiencing disruption to their sleep, disruption to their family life and disruption to their business—disruption to normal lawful activity that these types of protest can cause—waiting for the processes available to a local authority is simply insufficient. By law, councils have to go through various processes to gather evidence, which takes a long time. It can be enormously difficult to identify the cause in a way that meets the legal test, whereas the police have powers to act, when an offence is being committed, to deal with those things and ensure that residents and businesses are no longer impacted inappropriately. For those reasons, although it is right that the Government have listened to what has been said in the other place, I think it is right that we push ahead with this.
The powers will be required for a relatively narrow subset of occasions. In my view, however, the disruption that is caused to businesses, my constituents’ business activities and interests in central London, and many other people around the country—in places such as Heathrow, where persistent, long-running protests can cause this kind of disruption—demonstrates that there is a need for an improvement in the powers. I wholly support the Minister in defending them at the Dispatch Box.
Beth Winter
We truly are in a remarkable situation of political crisis for the Government, who seem determined to pursue an assault on the rule of law, democracy, the devolution settlement and human rights. In the week that the Government intend to prorogue the House, multiple Bills are coming before us, following repeated Government defeats in the Lords. The Government are seeking to pursue this assault on democracy just a few days after the Prime Minister was found to have broken the law.
Much of this legislation was not part of the Tory Government’s election manifesto. The Government cannot therefore claim, in pursuing this legislation, that it commands the support of the electorate. That is certainly the case regarding today’s amendments. The mass of public opinion is better demonstrated by the joint coalition of non-governmental organisations opposing the Bill, which stretches from Amnesty International to 38 Degrees, End Violence Against Women and many, many more. The Lords have reflected that civil society concern. I welcome their decision to insist on their amendments to clauses 55 and 61.
My noble Friend Lord Coaker, the former Member of this House for Gedling, spoke plainly when the other place last considered the Bill. As he highlighted, the Government proposals make a bad Bill even worse by lowering the threshold from establishing policing powers in relation to
“serious unease, alarm or distress”
to simply “alarm” or “distress”, making shutdown of protest even more likely. He highlighted that the Government’s fact sheet guidance for the clauses on “too noisy” protests make it clear that this is unworkable and, in reality, makes protest unpoliceable.
If the Government cannot clarify whether a protest would meet the noise threshold under this legislation because of double-glazing, they do not know what they are doing. Therefore, amid the confusion, we can only conclude that the Government are simply creating powers that can be exploited to shut down noisy protest and scrutiny of the Executive.
In referring to the earlier comments about the devolved settlement, I wish to share with the Minister—if he is not already aware of this—the fact that the Welsh Government have withheld legislative consent from the provisions of the Bill that come within their competence, including clauses that relate to the right to protest and noise nuisance. I have the legislative consent memorandum with me today, if he is interested in seeing it. The Welsh Minister for Social Justice, Jane Hutt, stated that the wish was to
“send a united message to the UK Government that this eradication of the fundamental right to have our voices heard cannot and will not be tolerated.”
The Government should and must respect the devolution settlement. The Welsh Government have withheld legislative consent from 17 Bills so far. This is absolutely unacceptable.
Colleagues on the Government side have said that the police want this legislation, but police constables in Wales have expressed significant reservations about the Bill in recent evidence to the Welsh Affairs Committee. Carl Foulkes of North Wales Police said that police officers could choose not to enforce part of the Bill. Jeremy Vaughan of South Wales Police insisted that
“protest…by its very nature, needs to be disruptive”.
He insisted that “most” in the police would be “vociferous and protective” of the public’s right to protest.
Beth Winter
No, I will not.
As with the Judicial Review and Courts Bill, the Elections Bill and the Nationality and Borders Bill, which we will discuss later this week, the Government are in chaos, thrashing around to restore order. The Government must accept the Lords amendments, although we would be in a far better position if they dropped the Bill completely.
Nadia Whittome (Nottingham East) (Lab)
It was through protest that many of our fundamental rights were won, including the right to vote. Noise is an essential part of protest. What is the point of a demonstration if no one can hear its message? What is it if not a show of strength of feeling? Thousands of people gathered together will inevitably be loud. Make no mistake: the Bill is an assault on our right to protest and our ability to hold the powerful to account. What is to stop a corporation that is being protested against calling the police and claiming that the noise is causing significant disruption in order to shut down the demonstration?
The powers also give huge discretion to police officers. That will make the law on protests completely unpredictable. People will attend protests not knowing whether the noise that they are making is illegal and whether they will go home that evening and have dinner with their family or be thrown in the back of a police van. I have no faith that the police would show restraint with these new powers when other powers have been abused time and again.
In recent weeks Members across the House will have seen the heroic actions of anti-war protesters in Russia and Ukraine. If MPs truly support their right to protest and their ability to make noise, they should vote against these powers. Many Conservative Members also consider themselves great champions of freedom of speech, quick to condemn so-called cancel culture. If they truly believe in freedom of expression, they should vote against the powers.
I would also bet that the majority of Members in this Chamber will at some point have taken part in a protest that could have fallen foul of a noise trigger—thank goodness the Chamber is not subject to these anti-noise laws, because otherwise I expect that would be happening every Wednesday. I urge every Member here to think about those protests, the causes they were championing and the people they were with. If they feel that those protests were legitimate and that they should not have been arrested for making some noise, I urge them to extend the same right to others and to vote down these powers.
Kit Malthouse
Let me deal with the closing point from the hon. Member for Nottingham East (Nadia Whittome) about Prime Minister’s Question Time. She will recall that the Speaker spends quite a lot of his time semi-threatening Members of the House, saying that they should keep quiet so that the voices and rights of Members on both sides of the House can be respected. Control is exercised, as we all make our views known.
As we close this debate, I want to focus broadly on where we agree. We all agree that, in an ancient democracy such as ours, protest is intrinsic to, and a cornerstone of, our rights. The Government are resolute in defending the rights of freedom of speech and of assembly. We should all be able to take to the streets to express our views on the issues of the day. In doing so, it is inevitable that some will be offended, inconvenienced or put out, and we should all accept that as part of the debate.
However, I think we have all accepted, on both sides of the House, that even in a protest situation, controls can and should be mandated and that there is not an unqualified right. As both Opposition Front Benchers—the hon. Members for Croydon Central (Sarah Jones) and for Glasgow North East (Anne McLaughlin)—have accepted, in Scotland and Wales there is a legal basis for controlling all forms of protest, including noise. All that we are trying to do is give the police the power to do so in challenging and exceptional situations in England as well.
When one person is exercising a right that infringes on the rights of others, whether it involves the use of hate speech, running on to motorways, endangering lives or generating such a cacophony of noise that it causes alarm or distress, the law must be able to step in—as it does, perhaps for a tenant or resident in Croydon. I would be interested in the view of the hon. Member for Croydon Central on this: if the noise that the resident complained about from the neighbours was Bob Dylan protest songs all day and all night in furtherance of a protest in their home, should that just be allowed? [Interruption.] Well, exactly. The point is that we have to be able to qualify these rights and we have to give the police control in exceptional circumstances.
The time has come to say unequivocally to the House of Lords that enough is enough. As my right hon. Friend the Member for Hemel Hempstead (Sir Mike Penning) said, this elected House has made its views on the measures crystal clear four times. It is time for the other place to acknowledge that, accept the amendments that the Government have put forward in the spirit of accommodation and let the Bill pass.
Question put.
Police, Crime, Sentencing and Courts Bill
Tuesday 26th April 2022
(2 years ago)
Lords ChamberRead Full debate Police, Crime, Sentencing and Courts Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 149-I Marshalled list for Consideration of Commons Amendments - (26 Apr 2022)
22:43 - Division on Motion A1 - Ayes: 133 / Noes: 180 - Motion A1 disagreed.
22:56 - Division on Motion B1 - Ayes: 84 / Noes: 171 - Motion B1 disagreed.
23:09 - Division on Motion B2 - Ayes: 113 / Noes: 169 - Motion B2 disagreed.
Baroness Williams of Trafford
That this House do not insist on its Amendment 73; do not insist on its disagreement with the Commons in their Amendment 73C to the words restored by their disagreement to Amendment 73; do not insist on its disagreement with the Commons in their Amendment 74A to its Amendment 74, on its Amendment 74B to that Amendment in lieu, or on its consequential Amendments 74C, 74D, 74E, 74F and 74G; do not insist on its Amendment 87, or on its disagreement with the Commons in their Amendments 87A, 87B, 87C, 87D, 87E, 87F and 87H to the words restored to the Bill; and do agree with the Commons in their Amendment 73E in lieu of Lords Amendment 73 and in their Amendment 87K to the words restored by their disagreement with Lords Amendment 87.
“(5) The Secretary of State must, before the end of the period of 2 years beginning with the day on which this section comes into force—
(a) prepare and publish a report on the operation of the amendments to section 12 of the Public Order Act 1986 made by this section, and
(b) lay the report before Parliament.”
“(2) The Secretary of State must, before the end of the period of 2 years beginning with the day on which this section comes into force—
(a) prepare and publish a report on the operation of section 14ZA of the Public Order Act 1986, and
(b) lay the report before Parliament.”
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, in moving Motion A, and with the leave of the House, I will also speak to Motion B.
We return to familiar ground, namely the powers of the police to attach conditions to a protest, in particular relating to the generation of noise. In our last debate on these issues, we heard quite an entertaining speech from the noble Lord, Lord Coaker, who sought to caricature these provisions, but it would be no laughing matter if a group of protesters camped outside someone’s house or place of work and blasted out noise from loudspeakers at all times of the day and night.
By any objective test—under the Bill it is an objective test—the noise generated would amount to intimidation or harassment or cause those in the vicinity to suffer alarm or distress. In such a case the police should now be able to act, and, as the noble Lord, Lord Hogan-Howe, has pointed out, the public would expect them to act. In such a case, the police could place clear and enforceable conditions on the protest, perhaps prohibiting the use of amplification equipment or musical instruments between the hours of 10 pm and 7 am. So I hope we will not hear again the accusation that these provisions are unworkable. They are workable, proportionate and fully justified, albeit that, as I have said before, we expect them to be infrequently used.
On Motion B, I reiterate that the national policing lead for public order, Chief Constable Harrington, has been clear about the challenges of policing demonstrations which can start off as a procession but morph into an assembly, or vice versa. There is now no good reason for treating the two differently in law, and the provisions in Clause 56 should stand. We will of course want to keep the operation of these provisions under review, and Amendments 73E, 80K and 87K put forward by the Commons now enshrine in the Bill a commitment to post-legislative review to be completed within two years of commencement of the relevant clauses.
This is the third time that noble Lords’ amendments on these issues have been rejected by the Commons. The Commons has now voted on no less than four occasions during the passage of this Bill to endorse the noise-related provisions in Part 3. This brings me to the broader constitutional issue raised by my noble friend Lord Deben in our last debate.
My noble friend argued that the Government was failing to honour “the deal” between your Lordships’ House and the other place. We have honoured that deal and continue to do so. Given that the Commons is the elected House with a democratic mandate, the deal has never been that the other place rolls over whenever this House rejects a particular provision in a Bill. Rather, the deal is that the Commons reflects on the concerns raised by this House and thinks again. Having done so, the Commons may agree the substance of a Lords amendment, may propose a middle way, or may decide, as in this case, that it cannot accept a particular Lords amendment.
In relation to this Bill, there are many examples where the Commons has accepted the letter or the spirit of an amendment put forward by noble Lords, but in relation to the two public order issues, where the two Houses continue to disagree, the Commons has considered and reconsidered the concerns voice by noble Lords but has concluded, as is its right, that the provisions sent to this House last July should stand. The deal is that we, the unelected House, now accept the clearly and repeatedly expressed view of the Commons. We have done our constitutional duty and it is now time to let this Bill pass.
Motion A1 (as an amendment to Motion A)
Lord Coaker
Leave out from “House” to end and insert “do insist on its Amendment 73; do insist on its disagreement with the Commons in their Amendment 73C to the words restored by their disagreement to Amendment 73; do insist on its disagreement with the Commons in their Amendment 74A to its Amendment 74, on its Amendment 74B to that Amendment in lieu, and on its consequential Amendments 74C, 74D, 74E, 74F and 74G; do insist on its Amendment 87, and on its disagreement with the Commons in their Amendments 87A, 87B, 87C, 87D, 87E, 87F and 87H to the words restored to the Bill; and do disagree with the Commons in their Amendment 73E in lieu of Lords Amendment 73 and in their Amendment 87K to the words restored by their disagreement with Lords Amendment 87.”
Lord Coaker (Lab)
My Lords, I beg to move the Motion in my name. I will leave the noble Lord, Lord Paddick, to speak to his worthwhile and important amendment and, in view of the time, will concentrate on those in my name, namely A1 and B2. Amendment A1 would remove the noise provision from marches and one-person protests, while Amendment B2 would remove the noise provision from public assemblies. In other words, we have responded to what the Commons has said and narrowed it down to the particular issue of noise.
I am sure that, in her conclusion, the Minister will point to something that I suggest actually shows the importance of standing up against the Commons to get concessions. As a result of us doing that, the Government have made a concession; they tabled Amendment 73E, which was not in the previous concessions that they gave. As a result of us telling the Commons to think again, it did, and has come forward with Amendment 73E.
The same arguments were made to me last time: that we should not be pushing the Commons again, that we should not be standing up to it again, and that we had done our job and had pushed it as far as we could. Yet we pushed one more time and here is Amendment 73E, where the Government have promised a review—Governments always promise a review of one sort or another when they are in trouble. This amendment promises a review after two years to see whether the noise clause in the Bill is actually working or not. There we are—there is a concession. They do not say what will happen if they find it has not worked, why they have decided on two years, or why they did not include a review in two years of whether they should have put it in, but there we go—there is a review.
I say to the Minister that, of course, the elected House has the right to get its own way, but it does not have the right to do so easily without being held to account, without being pushed and without being made to think about what it is doing. I will come to that with respect to noise in a minute. We have narrowed it down; we have listened, but the Minister and others made exactly the same argument to me a few days ago. I resisted that and said we had every right to push the Commons again and, lo and behold, we get a concession.
I think that is the House of Lords doing its job; I think that is the Minister doing her job. She will have gone back to the Home Office and said: “He’s off again. We’ve got to offer something. What can we do?”—I am not doing a “Yes Minister” plot here, but they would have done “Yes Minister”-type activity. They will have sat in the office, and somebody will have said, “We can offer a review. Minister, it is always very easy to offer a review, because actually it does not mean very much but it sounds good, and we can add a bit around looking at whether the provision works or not. You do not have say you do or you don’t, but actually it is very good because Coaker will have to say, ‘Well, thank you very much for offering us a review.’” My important constitutional point is that it was not in there until I said that it was not our constitutional right to defeat or kill the Bill, but it was our constitutional right to say to the Commons, “You have got this completely wrong on noise.”
I will not name people here—although one is about—but I have been encouraged by noble Lords on all sides saying: “This is barking mad, but sometimes you have to vote for it because you are whipped to vote for it; but you carry on.” And I am going to carry on. I am sure that if people go through Hansard when I was a Home Office Minister, they will be able to find things quite as ridiculous as this, but banning something on the grounds that it is too noisy without any idea how you are going to define “too noisy” is, I suggest, ridiculous.
I say as a serious point that the Government have now adapted and adopted all sorts of conditions that they can put on marches but also added those to assemblies. That is a debate that we and the noble Lord, Lord Paddick, have had on a number of occasions, but the Government have extended the power to put conditions on assemblies. We have now accepted that; we have said that that is the Commons having their way and we will accept it. But on the issue of noise, saying that you can ban a demonstration, a protest or an assembly on the grounds that it is too noisy is not only ridiculous but it undermines the right to protest.
I have said numerous times that I do not attack the Government for wanting to ban protests. I do not attack the Government for wanting to end the right to demonstrate. That is nonsensical; I do not believe that. Although not as much as me, I suspect that one or two Members of your Lordships’ House opposite have been on demonstrations. I hope they have not been too noisy. I do not know what “too noisy” means, but I just say that that is a problem.
The Minister knows that the police did not actually ask for this. I do not know who did. I do not know how it turned up in the Bill, but it did and there it is: we have noise. You can tell the Government are in trouble. I am not going to go through all the various issues that I raised about the brilliant publicity the Government got as a result of me pointing out certain thresholds that had to be met in order for the noise provisions to be implemented, but I say to noble Lords that they should read the Police, Crime, Sentencing and Courts Bill 2021: noise-related provisions factsheet. It is a brilliant piece of government explanation, an exposition on what thresholds have to be met in order for noise conditions to be placed on a demonstration by the police. Only a senior officer will be able to determine what “too noisy” is. I forget the rank. I should have written it down. I think it is chief inspector or above. I wonder whether it should be a chief inspector. We have the noble Lord, Lord Paddick, here. Perhaps he could advise us. What is the correct rank for a police officer to work out whether something is too noisy? Goodness me, it is an important decision that impacts on the right to protest. It cannot just be a chief inspector, so a superintendent, maybe. It could even be something just for the chief of police to determine, but who knows?
Lord Coaker (Lab)
No. As an aside, I googled double-gazing companies, just in case the Minister wanted a hand with that. However, I thought that was not taking this, or dealing with this, with the seriousness it needs. I get criticised for using humour but the reason I do so is not to trivialise an important point of principle; all I am doing is saying that I am quoting from a government document on the website, available and updated for the benefit of this deliberation. The Government have got their way on a whole range of different issues; it is the right of the Commons, as the Minister pointed out, to have its way as the elected House. We have an absolute right, though, as the House of Lords, to push right until the last minute on things that are nonsensical. The “too noisy” provision is a nonsense. Protests are about noise.
The police have perfectly adequate powers; they arrest people for making noise, using breaches of the peace and so on. The government document says that the trouble with a breach of the peace is that it does not have very much power, except that the police can arrest you. I would have thought that being able to arrest was adequate. I do not know about other noble Lords but I have never been arrested. I suggest to this House that for the vast majority of people, believing that they were going to be arrested would be a pretty serious threat to them. For the vast majority of people, that would stop them. The Government’s document says that it is not an adequate power. My view is that the power of arrest is a pretty important power that the police can use.
The right to protest is a fundamental right of democracy—a fundamental right that all of us, including me, have used—and one that involves making noise. The Government have got their way in respect of place and conditions, not only on processions but on assembly. We pushed back and the Government have now made a further concession to have a review after two years as to whether this “too noisy” provision has worked. It is time for us to push back again and say that the provision is a nonsense; it is ridiculous. It does not work, it will not work and it is not needed. I hope that when it comes to a Division, noble Lords will consider this a step too far in allowing the police to act to control protests, processions and marches. I beg to move.
Lord Paddick (LD)
My Lords, for all the reasons explained by the noble Lord, Lord Coaker, we support Motions A1 and B2 on the noise trigger. Specifically, asking the police to anticipate what noise levels a protest that has yet to take place might result in is likely to bring the police into unnecessary and avoidable conflict with the public, further undermining the trust and confidence that the police rely on to be effective. The more popular the protest, the more likely it is to be noisy and the more likely it is to be banned.
I cannot play the noble Lord, Lord Coaker, at his own game, but he did ask me a specific question about the rank of officer who should be judging whether a protest is too noisy. Perhaps an additional condition should be for that officer to have a hearing test, because we cannot possibly have hearing-impaired senior officers making such important judgments.
On Motions B and B1, we insist on the amendment passed by this House the last time this issue was considered. That amendment allows the police to impose conditions on the start and end time of an assembly, meeting or political rally, in addition to the existing powers they have to set or move where the assembly takes place and to limit the numbers attending and its duration, but not to ban an assembly, meeting or political rally completely. In particular, Article 10 of the European Convention on Human Rights states that everyone has the right to freedom of peaceful assembly and to freedom of association with others.
Of course, it may be necessary, in exceptional circumstances, to place restrictions on this right, and existing legislation and Motion B1 allow that, but when it comes to taking away the right to freedom of peaceful assembly completely, by allowing the police to ban people meeting together, we agree with the then Conservative Home Secretary in the other place when the original legislation was passed that that would be an excessive limit on the right of assembly and freedom of speech. Allowing the police to prevent people peacefully meeting together—to ban political rallies, for example—surely puts us on the slippery slope of the erosion of fundamental human rights and the imposition of a police state. I ask noble Lords to support Motion B1.
Baroness Bennett of Manor Castle (GP)
My Lords, I rise briefly to offer the Green group’s support for Motions A1 and B1. Another thought the police might have to consider is the historical place: how their judgment might be judged, both at that moment and later in history.
I have on my office wall a cartoon from Punch about the suffragettes. It has a whole series of episodes from a Minister’s day. It starts with the Minister in his bath. The suffragettes shout “Votes for women” through his window and he jumps up in horror. He then goes on the golf course. The suffragettes leap out of a bunker and shout “Votes for women”. He then breathes a sigh of relief when he gets to the House. The suffragettes appear through his window, shouting “Votes for women”.
I do not know whether the Minister knows “The March of the Women”, one of the suffragettes’ anthems. It starts:
“Shout, shout, up with your song! Cry with the wind for the dawn is breaking … Loud and louder it swells, Thunder of freedom”.
Noisy protest has been, and is, a central part of our democracy. It has been a central part of creating our democracy. Protest—having your voice heard—is not and must not be a crime.
Baroness Williams of Trafford (Con)
My Lords, I thank noble Lords who have contributed to this short debate. I say from the outset that these provisions do not enable the police to ban noisy protests. They enable the police to attach conditions to a protest in relation to the generation of noise. That is quite an important distinction. Similarly, Clause 56 does not enable the police to ban assemblies. I simply reiterate that these provisions represent a measured and proportionate rebalancing of people’s rights to protest peacefully with the rights of those whose lives may be unacceptably disrupted by the tactics employed by the minority of protests—such as those by the group Just Stop Oil, whose members believe that their rights and point of view trump everybody else’s.
Setting aside the substance of the amendments, the central issue now before noble Lords is whether it is appropriate to send these amendments back to the Commons for a third time. We have already—quite properly—asked them to reconsider these issues not once but twice. I do not think that asking the same question for a third time will yield a different answer.
On seniority—that is, the rank of a police officer—for an upcoming protest, the chief constable of the relevant force will be responsible for making the decision on whether the threshold is likely to be met. This power can be delegated to an assistant chief constable under Section 15 of the Public Order Act. For a protest that is already in train, the most senior officer at the scene will decide whether the threshold is met; depending on the circumstances, that senior officer would typically be an inspector, chief inspector or superintendent.
With that said, I hope noble Lords will agree to Motions A and B.
Lord Coaker (Lab)
My Lords, I wish to test the opinion of the House on Motion A1.
Baroness Williams of Trafford
That this House do not insist on its Amendment 80, do not insist on its disagreement with the Commons in their Amendments 80A, 80B, 80C, 80D, 80E, 80F and 80H to the words restored to the Bill by their disagreement with that Amendment, do not insist on its Amendment 80J instead of the words left out by that Amendment and do agree with the Commons in their Amendment 80K to the words restored to the Bill by their disagreement with Lords Amendment 80.
“(7) The Secretary of State must, before the end of the period of 2 years beginning with the day on which this section comes into force—
(a) prepare and publish a report on the operation of the amendments to section 14 of the Public Order Act 1986 made by this section, and
(b) lay the report before Parliament.”
Baroness Williams of Trafford (Con)
I have already spoken to Motion B, so I beg to move.
Motion B1 (as an amendment to Motion B)
Lord Paddick
Leave out from “House” to end and insert “do insist on its Amendment 80, do insist on its disagreement with the Commons in their Amendments 80A, 80B, 80C, 80D, 80E, 80F and 80H to the words restored to the Bill by their disagreement with that Amendment, do insist on its Amendment 80J instead of the words left out of the Bill by that Amendment and do disagree with the Commons in their Amendment 80K to the words restored to the Bill by their disagreement with Lords Amendment 80.”
The Deputy Speaker (Baroness Fookes) (Con)
I should inform the House that if Motion B1 is agreed to, I will not be able to call Motion B2 for reasons of pre-emption.
Lord Coaker
At end insert “and do propose Amendments 80L and 80M to the words so restored, Amendment 80N to Commons Amendment 80A and Amendments 80P, 80Q, 80R, 80S and 80T as consequential amendments—
Royal Assent
Thursday 28th April 2022
(2 years ago)
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